U.S. $200,000,000
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 29, 1996
(Amending and Restating the Credit Agreement dated as of February 28,
1996),
among
HIGHLAND VIDEO ASSOCIATES, L.P.,
TELESAT ACQUISITION LIMITED PARTNERSHIP
and
GLOBAL ACQUISITION PARTNERS, L.P.
as the Borrowers,
VARIOUS FINANCIAL INSTITUTIONS
as the Lenders,
BANK OF MONTREAL
as Syndication Agent,
CHEMICAL BANK
as Documentation Agent
and
THE BANK OF NOVA SCOTIA
as the Administrative Agent for the Lenders.
<PAGE>
-44-
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 29,
1996, among HIGHLAND VIDEO ASSOCIATES, L.P., a Pennsylvania limited partnership
("HVA"), TELESAT ACQUISITION LIMITED PARTNERSHIP, a Delaware limited partnership
("TALP"), GLOBAL ACQUISITION PARTNERS, L.P., a Delaware limited partnership
("Global"; Global, HVA and TALP are sometimes individually referred to as a
"Borrower", and collectively referred to as the "Borrowers"), the various
financial institutions as are or may become parties hereto (collectively, the
"Lenders"), BANK OF MONTREAL ("BMO"), as syndication agent (in such capacity,
the "Syndication Agent"), CHEMICAL BANK ("Chemical"), as documentation agent (in
such capacity, the "Documentation Agent") and THE BANK OF NOVA SCOTIA
("Scotiabank"), as administrative agent (in such capacity, the "Administrative
Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrowers are engaged directly and through their
respective Subsidiaries in the business of owning and operating Cable Systems;
WHEREAS, pursuant to that certain Credit Agreement, dated as of
February 28, 1996 (the "Existing Credit Agreement"), among HVA, the Lenders
party thereto, the Syndication Agent, the Documentation Agent and the
Administrative Agent, the Lenders made available to HVA (as the only Borrower
thereunder) Commitments for Loans in a maximum aggregate principal amount of
$200,000,000, including a sub-facility for Letters of Credit not to exceed at
any one time outstanding a maximum aggregate Stated Amount of $30,000,000 (with
all loans and Letters of Credit outstanding under the Existing Credit Agreement
the Amendment Effective Date being referred to as "Existing Credit Extensions");
WHEREAS, each of TALP and Global desire to become and HVA and the
other Obligors desire to add their Affiliates, TALP and Global, as additional
Borrowers under this Agreement (subject, in the case of Global, to satisfaction
of, inter alia, the conditions set forth in Sections 5.2.2 and 5.3);
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth, to amend and restate the Existing Credit
Agreement in its entirety, as evidenced by this Agreement, to, among other
things, add TALP and Global as Borrowers hereunder;
WHEREAS, pursuant to the terms of this Agreement the Borrowers desire
to obtain Commitments pursuant to which
(a) Loans, in a maximum aggregate principal amount
(together with all Letter of Credit Outstandings) at any time outstanding not to
exceed the lesser of (i) the Applicable Commitment Amount for such Borrower and
(ii) in the aggregate for all Borrowers, $200,000,000 (subject to reduction in
the Commitment Amount, as set forth in this Agreement), will be made by the
Lenders to the Borrowers (or any one of them) from time to time prior to the
Commitment Termination Date; and
(b) the Issuer will issue Letters of Credit for the
account of the Borrowers (or any one of them) from time to time prior to the
Commitment Termination Date in a maximum aggregate Stated Amount at any one time
outstanding not to exceed $30,000,000 (provided, that the aggregate outstanding
principal amount of Loans and Letter of Credit Outstandings to all Borrowers at
any time shall not exceed the then existing Commitment Amount or, in any event,
to any specific Borrower shall not exceed the Applicable Commitment Amount of
such Borrower);
WHEREAS, on the Amendment Effective Date TALP shall borrow up to
$39,500,000, which Loan proceeds shall be used for the Olympus Refinancing by
TALP in connection with the addition of TALP as a Borrower; and
WHEREAS, the Lenders and the Issuer are willing, on the terms and
subject to the conditions hereinafter set forth (including Article V), to amend
and restate in its entirety the Existing Credit Agreement and to extend such
Commitments and make such Loans to the Borrowers and issue (or participate in)
Letters of Credit for the account of the Borrowers;
NOW, THEREFORE, the parties hereto agree as follows:
DEFINITIONS AND ACCOUNTING TERMS
Defined TermsDefined Terms. The following terms (whether or not underscored)
when used in this Agreement, including its preamble and recitals, shall, except
where the context otherwise requires, have the following meanings (such meanings
to be equally applicable to the singular and plural forms thereof):
"ACI" means Adelphia Cablevision, Inc., a Pennsylvania corporation.
"Acquisition" means, collectively,
(a) any transaction, or any series of related transactions by which
any Borrower or any of their Subsidiaries (i) acquires any business (whether
through the purchase of equity interests, merger or otherwise) or all or
substantially all of the assets of any Person or (ii) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than by reason of the happening of a contingency) or a majority (by
percentage or voting power) of the outstanding equity interests of a Person
(other than a corporation or a natural person) following which such corporation
or Person is consolidated with such Borrower in accordance with GAAP; and
(b) the addition of TALP and Global as Borrowers with the
simultaneous Borrowing by TALP of up to $39,500,000, which Loan proceeds will be
used for the Olympus Refinancing by TALP in connection with the addition of TALP
as a Borrower hereunder.
"Acquisition Loans" are Loans that are made in connection with the
consummation of the Global Acquisition (or, in lieu thereof, the Alternative
Acquisition).
"Adelphia" means Adelphia Communications Corporation, a Delaware
corporation.
"Adelphia Aggregate Capital Contribution Amount" means the aggregate
amount of Capital Contributions made following the Effective Date to the
Borrowers less the sum of the aggregate amount of (i) any such Capital
Contributions used by the Borrowers or any of their Subsidiaries since the
Effective Date, either directly or indirectly, to make Capital Expenditures, to
pay Management Fees or to make Investments permitted to be made pursuant to
clause (d) of Section 7.2.5, (ii) all capital contributions, distributions or
Investments made, either directly or indirectly, by the Borrowers or any of
their Subsidiaries since the Effective Date from such Capital Contributions, in
or in favor of Affiliates of such Borrower (other than such Borrower's
Restricted Subsidiaries), (iii) restricted payments of the type described in
clause (a) of Section 7.2.6 made from Capital Contributions on or subsequent to
the Effective Date, and (iv) repayments of the principal amount of and interest
on Subordinated Debt.
"Adjusted Global EBITDA" means, on any date of determination, the
revenue of CTVF attributable to the Assets to be Acquired for the full Fiscal
Quarter immediately preceding such date, multiplied by 60%.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 5% or more of the securities (on a fully
diluted basis) having ordinary voting power for the
election of directors or managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" means, on any date, this Amended and Restated Credit
Agreement as originally in effect on the Amendment Effective Date and as
thereafter from time to time further amended, supplemented, amended and restated
or otherwise modified and in effect on such date.
"Alternative Acquisition" means an Acquisition by HVA of assets not
owned by CTVF that are utilized in the cable television industry or the purchase
of all of the outstanding capital stock or equity interests of a Person (other
than CTVF) engaged in the cable television industry; provided, that in either
case such Alternative Acquisition shall only be permitted, subject to the other
terms of this Agreement, if the Global Letter of Credit has expired or been
terminated pursuant to its terms without being drawn upon.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Administrative Agent at its Domestic Office as its
base rate for Dollar loans; and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 0.5%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions of
credit. Changes in the rate of interest on that portion of any Loans maintained
as Base Rate Loans will take effect simultaneously with each change in the
Alternate Base Rate. The Administrative Agent will give notice promptly to the
Borrowers and the Lenders of changes in the Alternate Base Rate.
"Amendment Effective Date" means the date this Agreement become
effective pursuant to Section 10.8.
"Annualized Operating Cash Flow" means, on any date and with respect
to the Borrowers and their Restricted Subsidiaries, the product of (a) the
Operating Cash Flow for the Borrowers and such Restricted Subsidiaries for the
most recently ended Fiscal Quarter multiplied by (b) four.
"Applicable Commitment Amount" means
(a) with respect to HVA, $200,000,000;
(b) with respect to Global, $84,000,000; and
(c) with respect to TALP, $39,500,000;
in each case as such amount may be reduced from time to time pursuant
to the terms of this Agreement.
"Applicable Margin" means, with respect to any Loan of any type, the
margin set forth below opposite the Leverage Ratio as in effect at the end of
the immediately preceding Fiscal Quarter and under the column designated for
such Loan, as follows:
<TABLE>
<CAPTION>
Applicable Margin
--------------------------------------------------------------------------------
Base Rate Loans LIBO Rate Loans CD Rate Loans
Leverage Ratio
- --------------------------------------- ------------------------- ------------------------- --------------
<S> <C> <C> <C>
Greater than or equal to 6.0:1 1.000% 2.000% 2.125%
Greater than or equal to 5.5:1 but 0.875% 1.875% 2.000%
less than 6.0:1
Greater than or equal to 5.0:1 but 0.500% 1.500% 1.625%
less than 5.5:1
Greater than or equal to 4.5:1 but 0.250% 1.250% 1.375%
less than 5.0:1
Greater than or equal to 4.0:1 but 0.000% 1.000% 1.125%
less than 4.5:1
Less than 4.0:1 0.000% 0.750% 0.875%
</TABLE>
"Approvals" is defined in Section 8.1.14.
"Assessment Rate" is defined in Section 3.2.1.
"Asset Sale" is defined in Section 7.2.8.
"Assets to be Acquired" means the assets to be purchased from CTVF,
as more fully described in Schedule II hereto.
"Assignee Lender" is defined in Section 10.11.1.
"Authorized Officer" means, relative to any Obligor, those of its
officers or general partners, as the case may be, whose signatures and
incumbency shall have been certified to the Administrative Agent and the Lenders
pursuant to Section 5.1.1 of the Existing Credit Agreement or pursuant to
Section 5.1.1 hereof.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Basic Subscriber Fee" means the minimum standard monthly fees and
charges for "basic service" (as such term is commonly understood in the cable
television industry) charged to customers of any Cable System.
"Basic Subscribers" means, at any time, all subscribers subscribing
to any Cable System (excluding "second connects" as such term is commonly
understood in the cable television industry) (i) who pay the Basic Subscriber
Fee for service and (ii) whose accounts are not more than 60 days past due in
payment. In the case of commercial buildings, such as hotels or motels, or in
the case of multiple residential dwellings, such as apartment houses and
multifamily homes, which do not obtain reduced bulk service rates, each separate
guest unit or dwelling unit receiving service shall be counted as one
subscriber. The number of subscribers in a commercial building or in a multiple
residential dwelling which obtains a reduced bulk service rate shall be computed
by dividing (x) the aggregate Dollar amount of monthly subscriber's fees paid on
account of such commercial building or multiple residential dwelling for basic
service by (y) the Basic Subscriber Fee.
"BMO" is defined in the preamble.
"Borrower" and "Borrowers" is defined in the preamble.
"Borrower Management Agreements" means, collectively, (i) the
Management Services Agreement, dated as of March 27, 1992, by and between ACI
and HVA, (ii) the Management Services Agreement, dated as of May 12, 1995, by
and between Olympus and TALP, and (iii) the Management Services Agreement, dated
as of April 1, 1996, by and between Adelphia and Global, in each case as such
agreements may be amended, supplemented, amended and restated or otherwise
modified from time to time.
"Borrower Management Fees" means the aggregate amount of management
fees payable by the Borrowers to the Managers pursuant to the Borrower
Management Agreements.
"Borrowing" means the Loans of the same type and, in the case of
Fixed Rate Loans, having the same Interest Period made by all Lenders on the
same Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.3.
"Borrowing Request" means a loan request and certificate duly
executed by an Authorized Officer of any Borrower, substantially in the form of
Exhibit B-1 hereto.
"Bucktail" means Bucktail Broadcasting Corporation, a Pennsylvania
corporation.
"Bucktail Management Agreement" means the Amended and Restated
Management Services Agreement for Managed Systems, dated as of January 29, 1993,
by and between ACI and Bucktail, as amended, supplemented, amended and restated
or otherwise modified from time to time.
"Bucktail Management Fees" means the management fees payable by
Bucktail to a Manager pursuant to the Bucktail Management Agreement.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required
to be closed in New York; and
(b) relative to the making, continuing, prepaying or
repaying of any LIBO Rate Loans, any day on which dealings in Dollars are
carried on in the London interbank market.
"Cable Systems" means the assets of any Person, constituting any CATV
system or SMATV system (including all related FCC Licenses, Franchises and
permits issued under federal, state or local laws from time to time, and all
agreements with public utilities and microwave transmission companies, pole
attachment agreements, use agreements, access or rental agreements, utility
easements and all other property owned or used in connection with the
entertainment and services provided pursuant to, and all interest of the holder
thereof to receive revenues from, or pursuant to, said FCC Licenses, Franchises
and permits) 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.
"Capital Contribution" means the aggregate amount of any (i) cash
capital contribution made in, and (ii) the principal amount of any Intercompany
Subordinated Loan made to, the Borrowers after the Effective Date by Adelphia,
the Rigas Family or any Affiliate of either of the foregoing, as notified by the
maker of such capital contribution or Intercompany Subordinated Loan to the
Administrative Agent on (or promptly following) the date made.
"Capital Expenditures" means, for any period and with respect to any
Person and its Subsidiaries, the sum of
(a) the aggregate amount of all expenditures of such
Person and its Subsidiaries for fixed or capital assets
made during such period which, in accordance with GAAP, would be classified as
capital expenditures; and
(b) without duplication of clause (a), the aggregate
amount of all Capitalized Lease Liabilities of such Person
and its Subsidiaries incurred during such period.
"Capital Security" means
(a) any share, membership, partnership or other percentage
interest, unit of participation, membership
interests or limited liability company interests in any limited liability
company or in each case other equivalent (however designated) of a corporate
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 or any type
referred to in clause (a) of this definition.
"Capitalized Lease Liabilities" means, with respect to any Person and
its Subsidiaries, all monetary obligations of such Person and its Subsidiaries
under any leasing or similar arrangement which, in accordance with GAAP, would
be classified as capitalized leases, and, for purposes of this Agreement and
each other Loan Document, the amount of such obligations shall be the
capitalized amount thereof, determined in accordance with GAAP, and the stated
maturity thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than
one year after such time, issued or guaranteed by the
United States Government;
(b) commercial paper, maturing not more than one year
from the date of issue, which is issued by
(i) a corporation (other than an Affiliate of
any Obligor) organized under the laws of any state of
the United States or of the District of Columbia, rated A-1 by S&P or P-1 by
Moody's and having a net worth of not less than $500,000,000, or
(ii) any Lender (or its holding company); or
(c) any certificate of deposit or bankers acceptance,
maturing not more than one year after such time, which is
issued by either
<PAGE>
- --------------------------------------------------------------------------------
(i) a commercial banking institution that is a
member of the Federal Reserve System, has a combined
capital and surplus and undivided profits of not less than $250,000,000 and has
one of the two highest long-term debt ratings by S&P
or Moody's or
- --------------------------------------------------------------------------------
(ii) any Lender.
"CD Rate" is defined in Section 3.2.1.
"CD Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate determined by reference
to the CD Rate (Reserve Adjusted).
"CD Rate (Reserve Adjusted)" is defined in Section 3.2.1.
"CD Reserve Requirement" is defined in Section 3.2.1.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) the failure of (i) the Rigas Family and/or Adelphia to
own, directly or indirectly, free and clear of all
Liens and other encumbrances (other than in favor of the Administrative Agent
under a Loan Document), general and limited partnership interests of (A) HVA
that constitute at least 60% of the then outstanding economic interests in HVA,
(B) Global that constitute 100% of the then outstanding economic interests in
Global, and (C) Olympus that constitute at least 51% of the then outstanding
economic interests in Olympus or (ii) James P. Rigas, Michael J. Rigas, Timothy
J. Rigas and John J. Rigas to possess, directly or indirectly, the power to
direct or cause the direction of the management and policies of HVA;
(b) the failure of (i) Olympus to own, directly or
indirectly, 99.90% of the Capital Securities (of the
type described in clause (a) of the definition of Capital Securities) of TALP or
(ii) Olympus to possess, directly or indirectly, the power to direct or cause
the direction of the management or policies of TALP;
(c) the failure of Adelphia to own, directly or
indirectly, (i) 50% or more of the Capital Securities (of the type described in
clause (a) of the definition of Capital Securities) of Olympus having under
ordinary circumstances (not dependent on any contingency) voting power or (ii)
51% or more of the Capital Securities
<PAGE>
- --------------------------------------------------------------------------------
(of the type described in clause (a) of the definition of Capital Securities)
of Olympus;
- --------------------------------------------------------------------------------
(d) the failure of the Rigas Family to own, directly or
indirectly, (i) Capital Securities (of the type
described in clause (a) of the definition of Capital Securities) of Adelphia
having under ordinary circumstances (not dependent on any contingency) voting
power to elect at least a majority of the directors of Adelphia on a fully
diluted basis or (ii) a sufficient number of Capital Securities (of the type
described in clause (a) of the definition of Capital Securities) of Adelphia as
is necessary, on a fully diluted basis, to satisfy the requirements relating to
the ownership of economic interests in HVA, in Olympus and in Global set forth
in clause (a);
(e) from the date the Global Acquisition has been
consummated, (i) the failure of wholly-owned Subsidiaries of Adelphia (which, on
the date of the consummation of the Global Acquisition shall be GCI (as the sole
general partner of Global and OPC as the sole limited partner of Global) to own,
directly free and clear of all Liens or other encumbrances (other than in favor
of the Administrative Agent under a Loan Document), 100% of the outstanding
general and limited partnership interests in Global or (ii) the failure of James
P. Rigas, Michael J. Rigas, Timothy J. Rigas and John J. Rigas to possess,
directly or indirectly, the power to direct or cause the direction of the
management and policies of Global; or
(f) the failure of Adelphia (i) to own, directly or
indirectly, a sufficient number of shares on a fully
diluted basis, of the Capital Securities (of the type described in clause (a) of
the definition of Capital Securities) of ACI having under ordinary circumstances
(not dependent on any contingency) voting rights to elect a majority of the
Board of Directors of ACI, or (ii) to own, directly or indirectly, at least 51%,
on a fully diluted basis, of the Capital Securities (of the type described in
clause (a) of the definition of Capital Securities) of ACI having under ordinary
circumstances (not dependent upon any contingency) voting rights to elect
members of the Board of Directors of ACI, or (iii) to possess, directly or
indirectly, the power to direct or cause the direction of the management and
policies of ACI.
"Chemical" is defined in the preamble.
"Closing Date Certificate" means, collectively, the Closing Date
Certificates executed and delivered pursuant to clause (a) of Section 5.1.1 of
this Agreement and Section 5.1.1 of this Agreement and Section 5.1.1 of the
Existing Credit Agreement, substantially in the form of Exhibit F hereto and
Exhibit F thereto, respectively.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Commitment" means, as the context may require, a Lender's Loan
Commitment or the Issuer's (or a Lender's) Letter of Credit Commitment.
"Commitment Amount" means, on any date, $200,000,000, as such amount
may be reduced from time to time pursuant to Section 2.2
"Commitment Termination Date" means the earlier of
(a) September 30, 2004;
(b) the date on which the Commitment Amount is terminated
in full or reduced to zero (including pursuant to Section 2.2); and
(c) the date on which any Commitment Termination Event
occurs.
Upon the occurrence of any event described in clause (b) or (c), the Commitments
shall terminate automatically and without further action.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default described in
clauses (a) through (e) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of the Loans to be due and
payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the
giving of notice by the Administrative Agent, acting at
the direction of the Required Lenders, to the Borrowers that the Commitments
have been terminated.
"Compliance Certificate" means a certificate duly executed by the
chief financial Authorized Officer of each Borrower, in substantially the form
of Exhibit E hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time with the consent of the Administrative Agent.
"Contingent Liability" means any agreement, undertaking or
arrangement by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the
indebtedness, obligation or any other liability of any other Person (other than
by endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other Person.
The amount of any Person's obligation under any Contingent Liability shall
(subject to any limitation set forth therein) be deemed to be the outstanding
principal amount (or maximum principal amount, if larger) of the debt,
obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of any
Borrower, substantially in the form of Exhibit C hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with any
Borrower, are treated as a single employer under Section 414(b) or 414(c) of the
Code or section 4001 of ERISA.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension
of any Stated Expiry Date of any existing Letter of
Credit, by the Issuer and participation in such Letter of Credit by the Lenders
pursuant to the terms of this Agreement.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"CTCC" means Coudersport Television Cable Company, a Pennsylvania
corporation.
"CTCC Management Agreement" means Management Services Agreement,
dated as of March 27, 1992, by and between ACI and CTCC, as amended or otherwise
modified from time to time.
"CTCC Management Fees" means the management fees payable by CTCC to a
Manager pursuant to the CTCC Management Agreement.
"CTVF" means Cable TV Fund 11-B, Ltd., a Colorado limited
partnership.
"DCP" means Dorellenic Cable Partners, a Pennsylvania general
partnership.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto
as Schedule I, as it may be amended, supplemented or otherwise modified from
time to time by any Borrower with the written consent of the Required Lenders.
"Documentation Agent" is defined in the preamble.
"Dollar" and the symbol "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the Lender
Assignment Notice or such other office of a Lender (or any successor or assign
of such Lender) within the United States as may be designated from time to time
by notice from such Lender, as the case may be, to each other Person party
hereto. A Lender may have separate Domestic Offices for purposes of making,
maintaining or continuing, as the case may be, Base Rate Loans and CD Rate
Loans.
"Effective Date" means February 28, 1996.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
CERCLA and all state law equivalents, consent decrees and administrative orders)
relating to public health and safety and protection of the environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections.
"Event of Default" is defined in Section 8.1.
"Excess Cash Balance" means, on any date of determination, the sum of
cash and Cash Equivalent Investments then held in the name of any Borrower or
their respective Restricted Subsidiaries totalling in excess of $1,000,000.
"Existing Credit Agreement" is defined in the second recital.
"Existing Credit Extensions" is defined in the second recital.
"FCC" means the Federal Communications Commission or any successor
agency thereto.
"FCC License" means any license or permit issued by the FCC,
including licenses issued in connection with the operation of community antenna
television systems, community antenna relay systems, microwave systems, earth
stations and businesses and other two-way radios.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York; provided, however, that if such rate is not so
published for any day which is a Business Day, the rate for such day shall be
the average of the quotations for such day on such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it.
"Fee Letter" means the confidential fee letter, dated September 27,
1995, from Scotiabank to HVA and acknowledged and agreed to by HVA, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g. the "1996 Fiscal Year") refer to the Fiscal Year
ending on the December 31 occurring during such calendar year.
"Fixed Rate Loan" means any CD Rate Loan or any LIBO Rate Loan.
"FPL" means FPL Group Capital Inc., a Florida corporation.
"Franchise" means any franchise, permit, license or other
authorization granted by any governmental unit or authority, including all laws,
regulations and ordinances relating thereto, for the construction, operation and
maintenance of a CATV system or SMATV system and the reception and transmission
of signals by microwave, and shall include, without limitation, all FCC Licenses
and all certificates of compliance and cable television registration statements
which are required to be issued by or filed with the FCC or any state, county,
city, town, village or local governmental authority in connection with the
ongoing operation of business by the Borrowers and their Subsidiaries.
"Franchise Agreement" means all ordinances, agreements, contracts and
all other documents stating the terms and conditions of any Franchise, including
all exhibits and schedules thereto, all amendments thereto, all consents,
waivers and extensions issued in connection therewith, all documents
incorporated therein by reference and the application pursuant to which any
Franchise was granted.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"GCI" means Global Cablevision, Inc., a Delaware corporation.
"General Partners" means, as the context may require, (i) Highland
Holdings, John J. Rigas, Michael J. Rigas and Timothy J. Rigas, as the general
partners of HVA, (ii) Olympus, as the general partner of TALP and (iii) prior to
the consummation of the Global Acquisition, DCP, as the general partner of
Global and following the consummation of the Global Acquisition, GCI, as the
general partner of Global.
"Global" is defined in the preamble.
"Global Acquisition" means the acquisition by Global of the Assets to
be Acquired in accordance with the terms of the Purchase Agreement.
"Global Group" means Global and each of its Subsidiaries.
"Global Letter of Credit" means the Irrevocable Standby Letter of
Credit Number 2079/95/80085, dated October 6, 1995, in the original stated
amount of $84,000,000 issued by The Bank of Nova Scotia for the benefit of CTVF.
"Global Partners Security Agreement" means the Security Agreement
executed and delivered pursuant to Section 5.3 by each Person that owns a
limited or general partnership interest in Global, substantially in the form of
Exhibit J-4 hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Global Partnership Agreement" means (i) prior to the date of the
consummation of the Global Acquisition, the Partnership Agreement of Global,
dated as of September 14, 1995 (as amended or otherwise modified in accordance
with its terms prior to such date), and (ii) on and subsequent to the date of
the consummation of the Global Acquisition, the Amended and Restated Partnership
Agreement of Global (as of such date), as amended, supplemented, amended and
restated or otherwise modified from time to time.
"Global Pledge Agreement" means the Pledge Agreement, executed and
delivered pursuant to Section 7.1.10, substantially in the form of Exhibit I-4
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Guarantees" means, collectively, the Subsidiary Guaranty and each
other Guaranty delivered from time to time in respect of the Obligations.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous
or toxic chemical, material or substance within the
meaning of any other applicable federal, state or local law, regulation,
ordinance or requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning any
hazardous, toxic or dangerous waste, substance or material, all as amended or
hereafter amended.
"HCAT" means Henderson Community Antenna Television, Inc., a North
Carolina corporation.
"HCAT Management Fees" means the management fees payable by HCAT to a
Manager pursuant to the Henderson Management Agreement.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under interest rate swap agreements, interest rate
cap agreements and interest rate collar agreements, and all other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or currency exchange rates.
"Henderson Management Agreement" means Management Services Agreement
for Managed Systems, dated as of January 10, 1995, by and between ACI and HCAT,
as amended, supplemented, amended and restated or otherwise modified from time
to time.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Highland Holdings" means Highland Holdings, a Pennsylvania general
partnership.
"Highland Holdings Partnership Agreement" means the Highland Holdings
General Partnership Agreement, dated March 27, 1992, as amended on December 23,
1992, and as further amended on March 31, 1993, among the Rigas Family and
Daniel R. Milliard, as amended, supplemented, amended and restated or otherwise
modified from time to time.
"HVA" is defined in the preamble.
"HVA Group" means HVA and its Subsidiaries (which shall include
CTCC).
"HVA Partners Security Agreement" means the Security Agreement dated
as of February 28, 1996, executed and delivered pursuant to Section 5.1.7 of the
Existing Credit Agreement by each Person that owns a limited or general interest
in HVA, a conformed copy of which is attached as Exhibit J-1 hereto, as amended
on the Amendment Effective Date and as further amended, supplemented, amended
and restated or otherwise modified from time to time.
"HVA Partnership Agreement" means the First Amended and Restated
Limited Partnership Agreement of Highland Video Associates, L.P., dated as of
January 29, 1993, among the General Partners and Highland Holdings, as amended
by the First Amendment thereto dated as of March 31, 1993 and as further
amended, supplemented, amended and restated or otherwise modified from time to
time.
"HVA Pledge Agreement" means the Pledge Agreement dated as of
February 28, 1996, executed and delivered pursuant to clause (a) of Section
5.1.6 of the Existing Credit Agreement, a conformed copy of which is attached as
Exhibit I-1 hereto, as amended on the Amendment Effective Date and as further
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of any Obligor, any qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of
any item in such financial statement and which, as a
condition to its removal, would require an adjustment to such item the effect of
which would be to cause such Obligor to be in default of any of its obligations
under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and
all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(b) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit (including
the Letters of Credit), whether or not drawn, and banker's acceptances issued
for the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with
GAAP, recorded as Capitalized Lease Liabilities;
(d) all other items which, in accordance with GAAP, would
be included as liabilities on the liability side of
the balance sheet of such Person as of the date at which Indebtedness is to be
determined;
(e) net liabilities of such Person under all Hedging
Obligations;
(f) whether or not so included as liabilities in
accordance with GAAP, all obligations of such Person to pay the deferred
purchase price of property or services (other than trade accounts payable,
deferred employee compensation and like accrued liabilities in the ordinary
course of business) and indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such Person (including
indebtedness arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been assumed by such
Person or is limited in recourse; and
(g) all Contingent Liabilities of such Person in respect
of any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Intercompany Subordinated Loan" means the unsecured Subordinated
Debt incurred by any Borrower and payable to an Affiliate of such Borrower in
accordance with the terms of the Intercompany Subordination Agreement, to the
extent permitted by clause (d) of Section 7.2.2.
"Intercompany Subordination Agreement" means, collectively (as the
context may require), (i) the Intercompany Subordination Agreement, dated as of
February 28, 1996, executed and delivered pursuant to Section 5.1.8 of the
Existing Credit Agreement, a conformed copy of which is attached as Exhibit G-1
hereto, and (ii) each Intercompany Subordination Agreement from time to time
executed by TALP and/or Global, in each case substantially in the form of
Exhibit G-1 hereto with such changes as agreed to by the Administrative Agent,
in each case as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Interest Expense" means, for any Fiscal Quarter and with respect to
the Borrowers and their Restricted Subsidiaries, the aggregate consolidated
interest expense on Senior Funded Debt of the Borrowers and their Restricted
Subsidiaries for such Fiscal Quarter, as determined in accordance with GAAP,
including, without duplication, (i) commitment fees paid or owed with respect to
the then unused portion of the Commitment Amount, (ii) all other fees paid or
owed with respect to the issuance or maintenance of Contingent Liabilities
(including the Letters of Credit and any other letters of credit), which, in
accordance with GAAP, would be included as interest expense, (iii) net costs or
benefits under Hedging Obligations and (iv) the portion of any payments made in
respect of Capitalized Lease Liabilities of the Borrowers and their Restricted
Subsidiaries allocable to interest expense, but excluding any amortization of
costs and expenses incurred in connection with, and relating to, the Existing
Credit Agreement, this Agreement or other financings permitted by this
Agreement.
"Interest Period" means, relative to any Fixed Rate Loans, the period
beginning on (and including) the date on which such Fixed Rate Loan is made or
continued as, or converted into, a Fixed Rate Loan pursuant to Section 2.4 or
2.5 and shall end on (but exclude) the day which is, in the case of a CD Rate
Loan, 30, 60, 90, 180 or, if generally available, 360 days thereafter, or which,
in the case of a LIBO Rate Loan, numerically corresponds to such date one, two,
three, six or, if generally available, twelve months thereafter (or, if such
month has no numerically corresponding day, on the last Business Day of such
month), in either case as any Borrower may select in its relevant notice
pursuant to Section 2.4 or 2.5; provided, however, that
(a) no more than eight Interest Periods may be in effect
at any one time;
(b) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
(c) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period
shall end on the next following Business Day; provided, however, that, with
respect to any Interest Period applicable to LIBO Rate Loans, if such next
following Business Day is the first Business Day of a calendar month, then such
Interest Period shall end on the next preceding Business Day;
(d) no Interest Period shall end later than any Quarterly
Payment Date if the effect of establishing such
Interest Period would be that the aggregate unpaid principal amount of all LIBO
Rate Loans and/or CD Rate Loans having Interest Periods ending after such
Quarterly Payment Date would exceed the amount of Loans permitted to be
outstanding on such date; and
(e) no Interest Period may end later than the Stated
Maturity Date.
"Investment" means (a) any investment in any Person, whether by means
of (i) share purchase, capital, equity or similar contribution, loan, advance,
time deposit or otherwise (excluding commission, moving, travel and similar
advances to officers and employees made in the ordinary course of business) or
(ii) capital contribution (including all debt and accounts receivable) which are
not current assets or which did not arise from sales to such Person in the
ordinary course of business and (b) all guarantees of Contingent Liabilities in
respect of the foregoing. The amount of any Investment shall be the original
principal or capital amount thereof less all returns of principal or equity
thereon (and without adjustment by reason of the financial condition of such
other Person) and shall, if made by the transfer or exchange of property other
than cash, be deemed to have been made in an original principal or capital
amount equal to the fair market value of such property.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of any Borrower, substantially in the
form of Exhibit B-2 hereto and any additional forms that may be requested by the
Issuer.
"Issuer" means Scotiabank in its capacity as the issuer of the
Letters of Credit.
"Jones" means Jones Intercable, Inc., a Colorado corporation.
"Lender Assignment Notice" means a notice to be delivered to the
Administrative Agent and HVA pursuant to Section 10.11.1 substantially in the
form of Exhibit D hereto.
"Lender Parties" means, collectively, each Lender, the Issuer and
each Managing Agent, and each of their respective successors, transferees and
assigns.
"Lenders" is defined in the preamble.
"Letter of Credit" is defined in Section 2.1.2.
"Letter of Credit Commitment" means the Issuer's obligation to issue
Letters of Credit pursuant to Section 2.1.2 and, with respect to each Lender,
the obligations of such Lender to participate in such Letters of Credit pursuant
to Section 2.6.1.
"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $30,000,000 (or, if less, the then existing Commitment Amount).
"Letter of Credit Outstandings" means, on any date, an amount equal
to the sum of
(a) the then aggregate amount which is undrawn and
available under all issued and outstanding Letters of Credit,
plus
(b) the then aggregate amount of all unpaid and
outstanding Reimbursement Obligations.
"Leverage Ratio" means, as of the last day of any Fiscal Quarter,
the ratio of
(a) Senior Funded Debt on the last day of such Fiscal
Quarter to
(b) Annualized Operating Cash Flow determined on the last
day of such Fiscal Quarter.
"LIBO Rate" is defined in Section 3.2.1.
"LIBO Rate Loan" means a Loan bearing interest, at all times during
an Interest Period applicable to such Loan, at a fixed rate of interest
determined by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" is defined in Section 3.2.1.
"LIBOR Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the Lender
Assignment Notice or such other office of a Lender as designated from time to
time by notice from such Lender to the Borrowers and the Administrative Agent,
whether or not outside the United States, which shall be making or maintaining
LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" is defined in Section 3.2.1.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" is defined in Section 2.1.1.
"Loan Commitment" means, relative to any Lender, such Lender's
obligation to make Loans pursuant to Section 2.1.1.
"Loan Document" means this Agreement, the Notes, each Extension
Request, the Letters of Credit, the Security Agreements, the Pledge Agreements,
the Guarantees, the Fee Letter, any Supplemental Partners Security Agreement,
any Rate Protection Agreement with a Swap Party, the Subordination Agreements,
and any other certificate and agreement executed and delivered pursuant hereto
or thereto.
"Management Agreements" means any of the Borrower Management
Agreements, the CTCC Management Agreement, the Henderson Management Agreement,
the Radnor Management Agreement, the Bucktail Management Agreement, the
Montgomery Management Agreement and each other agreement with respect to the
management of the Cable Systems of any Obligor (which is a corporation or
partnership) that is acceptable to the Administrative Agent.
"Management Fees" means any of the Borrower Management Fees, the CTCC
Management Fees, the Henderson Management Fees, the Radnor Management Fees, the
Bucktail Management Fees, the Montgomery Management Fees and any of the
management fees payable by any other Obligor (which is a corporation or
partnership) to any Manager pursuant to any other Management Agreement.
"Manager" means, as the context may require, as of the Amendment
Effective Date, ACI, Adelphia or Olympus, in their capacity as manager under the
Management Agreements, and shall also include any Affiliate of ACI, Adelphia or
Olympus, in their capacity as manager under any of the Management Agreements.
"Manager Subordination Agreement" means, collectively (as the context
may require), (i) the Manager Subordination Agreement, dated February 28, 1996,
executed and delivered pursuant to Section 5.1.8 of the Existing Credit
Agreement, a conformed copy of which is attached as Exhibit G-2 hereto, and (ii)
each Manager Subordination Agreement from time to time executed by TALP and/or
Global, in each case substantially in the form of Exhibit G-2 hereto with such
changes as agreed to by the Administrative Agent, in each case as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Managing Agents" means, collectively, Scotiabank, BMO and Chemical.
"Maximum Availability" means, on any date, the maximum Commitment
Amount that will be available on such date after giving effect to all scheduled
or voluntary reductions in the Commitment Amount, as set forth in this
Agreement.
"Measurement Period" means, for any period, the four consecutive
Fiscal Quarters calculated on the basis of the most recent Fiscal Quarter ended
and the three immediately preceding Fiscal Quarters then ending.
"Montgomery" means Montgomery Cablevision Associates, L.P., a
Pennsylvania limited partnership.
"Montgomery Management Agreement" means the Amended and Restated
Management Services Agreement for Managed Systems, dated as of January 29, 1993,
between ACI and Montgomery, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Montgomery Management Fees" means the management fees payable by
Montgomery to a Manager pursuant to the Montgomery Management Agreement.
"Moody's means Moody's Investors Services, Inc.
"Net Disposition Proceeds" means, with respect to any Permitted
Disposition of the types described in clauses (c) or (d) of the definition of
"Permitted Disposition", the excess of the gross cash proceeds received as a
result of such Permitted Disposition less
all reasonable fees and expenses with respect to legal and other
professional fees, sales commissions and disbursements actually incurred in
connection with such Permitted Disposition and all taxes actually paid in
connection with such Permitted Disposition;
provided, however, that Net Disposition Proceeds shall include the net amount
(determined as provided above) of any insurance proceeds or condemnation awards
received in connection with the damage, destruction or condemnation, as the case
may be, of property of any Borrower or any of their Restricted Subsidiaries, any
such proceeds or awards, as the case may be, to be treated as if resulting from
a disposition of the type described in clauses (c) or (d) of the definition of
"Permitted Disposition".
"Net Income" of any Person means, for any period, all amounts which,
in accordance with GAAP, would be included as net income on the consolidated
statements of income of such Person at such time (excluding extraordinary gains
and extraordinary losses) and for purposes of this Agreement, "Net Income" shall
be the aggregate amount of Net Income of the HVA Group, the Global Group and the
TALP Group.
"Note" means a promissory note of any Borrower payable to any Lender,
in the form of Exhibit A hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of such Borrower to such Lender resulting from outstanding Loans,
and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Obligations" means all obligations (monetary or otherwise) of the
Borrowers and each other Obligor arising under or in connection with this
Agreement, the Notes, the Letters of Credit and each other Loan Document.
"Obligor" means each Borrower, each Partner, each Manager or any
other Person (other than the Administrative Agent, the Issuer or any Lender)
obligated under any Loan Document.
"Obligor Pledge Agreement" means the Pledge Agreement, dated as of
February 28, 1996, executed and delivered pursuant to clause (b) of Section
5.1.6, of the Existing Credit Agreement, a conformed copy of which is attached
as Exhibit I-2 hereto, as amended on the Amendment Effective Date and as further
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Official Body" means any government or political subdivision or any
agency, authority, bureau, central bank, commission, department, or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"Olympus" means Olympus Communications, L.P., a Delaware limited
partnership.
"Olympus Refinancing" means the repayment of a loan by TALP to
Olympus in the principal amount of $39,500,000 made by Olympus to TALP on
February 28, 1995.
"OPC" means Orchard Park Cablevision, Inc., a Delaware corporation.
"Operating Cash Flow" means, without duplication, during any period
and with respect to the Borrowers and their Restricted Subsidiaries, the sum
during such period of:
(a) Net Income of the Borrowers and their Restricted
Subsidiaries during such period;
plus
(b) Management Fees included in the determination of Net
Income of the Borrowers and their Restricted
Subsidiaries during such period;
plus
(c) interest expense (including the portion of any
rent paid in respect of Capitalized Lease Liabilities which is allocable to
interest expense), depreciation, amortization and income taxes, determined in
accordance with GAAP, included in the determination of Net Income of the
Borrowers and their Restricted Subsidiaries during such period; plus
(d) other non-cash expenses of the Borrowers and their
Restricted Subsidiaries during such period;
provided, that in calculating Operating Cash Flow, (i) there shall be excluded
from such calculation all non-cash income and non-cash gains and all fees,
interest income, dividends and distributions received from Affiliates to the
extent such fees, interest income, dividends and distributions (x) were not paid
in cash or (y) if paid in cash, exceed 10% of Operating Cash Flow for such
period (before giving effect to such payment), (ii) no more than 10% of Net
Income from Investments made pursuant to clause (d) of Section 7.2.5 shall be
included in such calculation and (iii) the Adjusted Global EBITDA shall be used
with respect to the Assets to be Acquired on the date of the consummation of the
Global Acquisition and for the first Compliance Certificate delivered following
the consummation of the Global Acquisition; provided, that if any Borrower or
any of their Restricted Subsidiaries shall have made one or more Acquisitions
during such period, Operating Cash Flow for such period shall be adjusted on a
pro forma basis to give effect to all such Acquisitions as if they had occurred
at the beginning of such period, and provided, further, that if any Borrower or
any of their Restricted Subsidiaries shall have effected one or more Asset Sales
during such period, Operating Cash Flow for such period shall be adjusted on a
pro forma basis to give effect to all such Permitted Dispositions of the type
described in clauses (c) or (d) of the definition of "Permitted Dispositions" as
if they had occurred at the beginning of such period.
"Organic Document" means, relative to any Obligor, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized shares of capital stock
or its certificate of partnership, partnership agreement and similar
arrangements relating to the control or management of such Obligor, as the case
may be.
"Participant" is defined in Section 10.11.2.
"Partners" means the General Partners, Highland Holdings, in its
capacity as the limited partner of HVA and DCP, as the limited partner of TALP.
"Partnership Security Agreement" means the Security Agreement, dated
February 28, 1996, executed and delivered pursuant to Section 5.1.7 of the
Existing Credit Agreement by each Person that owns any general or limited
partnership interests in any Restricted Subsidiary of HVA, a conformed copy of
which is attached as Exhibit J-2 hereto, as amended on the Amendment Effective
Date and as further amended, supplemented, amended and restated or otherwise
modified from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which any
Borrower or any corporation, trade or business that is, along with such
Borrower, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning of
section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage set forth
opposite its signature hereto or set forth in the Lender Assignment Notice, as
such percentage may be adjusted from time to time pursuant to Lender Assignment
Notice(s) executed by such Lender and its Assignee Lender(s) and delivered
pursuant to Section 10.11.1.
"Permitted Business Acquisition" means any Investment or Acquisition
made in the ordinary course of business by any Borrower or any of their
Restricted Subsidiaries of a Person that owns a CATV system but only if (i) as a
result of such Acquisition or Investment such Person becomes a Restricted
Subsidiary of such Borrower or any of its Restricted Subsidiaries, (ii) no
Default shall have occurred and be continuing immediately prior to such
Acquisition or Investment and after giving effect thereto and (iii) the
aggregate consideration paid (including any assumption of Indebtedness and the
fair market value of any non-cash consideration) to consummate each such
Acquisition is (x) equal to the fair market value of the assets the subject of
such Acquisition and (y) included as an Investment in the Fiscal Quarter in
which such Acquisition is to be consummated for purposes of computing the limits
prescribed by clause (d) of Section 7.2.5.
"Permitted Disposition" means any sale, transfer, lease,
contribution, conveyance or other disposition of any assets of any Borrower or
any of their Restricted Subsidiaries, whether in a single transaction or a
series of related transactions, to any Person, but only if (i) no Default has
occurred and is continuing both immediately before and after giving effect
thereto, (ii) the consideration received for such sale, transfer, lease,
contribution, conveyance or other disposition represents fair market value and
(iii) such sale, transfer, lease, contribution, conveyance or other disposition
is
(a) made in the ordinary course of business of any
Borrower or any of their Restricted Subsidiaries;
(b) a sale, transfer, lease, contribution, conveyance
or other disposition from (i) any Borrower or any
of their Restricted Subsidiaries to any of their respective wholly-owned
Restricted Subsidiaries, (ii) a Subsidiary of any Borrower to such Borrower, or
(iii) a wholly-owned Restricted Subsidiary of any Borrower to another
wholly-owned Restricted Subsidiary of such Borrower;
(c) a sale of a CATV system acquired by any Borrower
or any of their Restricted Subsidiaries after the
Effective Date (other than CATV systems acquired in the Global Acquisition or
the Alternative Acquisition) so long as (i) the consideration received for such
sale is not less than the fair market value of such CATV system and is greater
than the purchase price paid by such Borrower or any of its Restricted
Subsidiaries for such CATV system and (ii) at least 80% of the consideration for
such disposition shall be cash; provided, however, that upon the direct or
indirect receipt by any Borrower or any of their Restricted Subsidiaries, as the
case may be, of any cash in respect of any part of such non-cash consideration,
such cash shall be applied in accordance with Section 3.1.4 as Net Disposition
Proceeds; or
(d) a sale or other disposition of any CATV system of any
Borrower or any of their Restricted Subsidiaries other than those of the type
described in clause (a) or (b) above, but only if
(i) the sum of (x) Annualized Operating Cash
Flow for the immediately preceding Fiscal Quarter attributable to such CATV
system to be disposed of and (y) the Annualized Operating Cash Flow attributable
to all other assets of the type described in clauses (c) and (d) hereof sold or
otherwise disposed of by the Borrowers or any of their Restricted Subsidiaries
during the 12-month period prior to the date of determination (with the
computation of attributable Annualized Operating Cash Flow being made for the
Fiscal Quarter ended immediately prior to such sale or other disposition) does
not exceed 15% of the Annualized Operating Cash Flow for the Borrowers and their
Restricted Subsidiaries for the immediately preceding Fiscal Quarter; and
(ii) the sum of (x) Annualized Operating Cash
Flow for the immediately preceding Fiscal Quarter
attributable to such CATV system to be disposed of and (y) the Annualized
Operating Cash Flow attributable to all other assets of the types described in
clauses (c) and (d) hereof sold or otherwise disposed of by the Borrowers or any
of their Restricted Subsidiaries (with the computation of attributable
Annualized Operating Cash Flow being made for the Fiscal Quarter ended
immediately prior to such sale or disposition) since the Effective Date does not
exceed 25% of the Annualized Operating Cash Flow for the Borrowers and their
Restricted Subsidiaries for the immediately preceding Fiscal Quarter, in each
case, so long as the consideration for such sale or disposition shall be cash.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreements" means, collectively, the HVA Pledge Agreement,
the TALP Pledge Agreement, the Global Pledge Agreement and the Obligor Pledge
Agreement.
"Pole Agreement" means any pole attachment agreement or underground
conduit use agreement which was entered into in connection with the operation of
any Cable System.
"Premium Subscriptions" means all subscriptions to a motion picture
or other entertainment services subscribed to by any Basic Subscriber of any
Cable System (excluding any subscriptions to pay-per-view events) at an
additional charge in excess of the Basic Subscriber Fee, exclusive of all such
subscriptions as to which the payment of such additional charges is more than 60
days past due.
"Pro-Forma Debt Service" means, at any date of determination and with
respect to the Borrowers and their Restricted Subsidiaries, the sum, without
duplication, of all Pro-Forma Interest Expense, commitment fees, and scheduled
principal payments, including the current maturities thereof, due on any Senior
Funded Debt, but excluding principal payments due on Subordinated Debt or
principal payments due in connection with clause (g) of Section 7.2.2, of the
Borrowers and their Restricted Subsidiaries, for the four Fiscal Quarters
immediately succeeding such date of determination. Pro forma principal payments
under this Agreement shall be equal to the outstanding principal amount of the
Loans on the date of determination less the Maximum Availability at the end of
the fourth Fiscal Quarter immediately succeeding such date of determination.
"Pro-Forma Interest Expense" means, at any date of determination
thereof, the Interest Expense (calculated using interest rates in effect for the
most recent ended Fiscal Quarter of HVA) of the Borrowers and their Restricted
Subsidiaries for the four Fiscal Quarters immediately succeeding such date of
determination.
"Purchase Agreement" means the Purchase and Sale Agreement, dated as
of October 6, 1995, among Global, CTVF and Jones, as in effect on the Effective
Date and thereafter as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with Section 7.2.9.
"Quarterly Payment Date" means the last day of each March, June,
September, and December or, if any such day is not a Business Day, the next
succeeding Business Day.
"Radnor" means Adelphia Cablevision Associates of Radnor, L.P., a
Pennsylvania limited partnership.
"Radnor Management Agreement" means Amended and Restated Management
Services Agreement for Managed Systems, dated as of January 29, 1993, by and
between ACI and Radnor, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Radnor Management Fees" means the management fees payable by Radnor
to a Manager pursuant to the Radnor Management Agreement.
"Rate Protection Agreement" means any interest rate swap agreement,
interest rate cap agreement or interest rate collar agreement, and any other
agreement or arrangement designed to protect a Person against fluctuations in
interest rate or currency exchange rates.
"Release" means a "release", as such term is defined in CERCLA.
"Required Lenders" means Lenders holding at least 66-2/3% of the then
aggregate outstanding principal amount of the Notes then held by all the
Lenders, or, if no such principal amount is then outstanding, Lenders having at
least 66-2/3% of the Commitments.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901,
et seq., as in effect from time to time.
"Restricted Subsidiary" means
(a) with respect to HVA, (i) CTCC, (ii) each Subsidiary of
HVA existing on the Effective Date and (iii) each
other Subsidiary of HVA formed or acquired after the Effective Date that is not
an Unrestricted Subsidiary; and
(b) with respect to TALP and Global, (i) each existing
Subsidiary of TALP or Global (if any) on the Amendment
Effective Date and (ii) each other Subsidiary of TALP or Global formed or
acquired after the Amendment Effective Date that is not an Unrestricted
Subsidiary.
"Rigas Family" means John J. Rigas, Timothy J. Rigas, Michael J.
Rigas, James P. Rigas, Ellen K. Rigas, or any of their respective spouses,
estates, or lineal descendants, or any trust created for the direct and sole
benefit of any such Persons or, while and to the extent they are serving in such
capacity, the executors, administrators or personal representatives of such
Persons.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc.
"Scotiabank" is defined in the preamble.
"Security Agreements" means the HVA Partners Security Agreement, the
TALP Partners Security Agreement, the Global Partners Security Agreement, the
Partnership Security Agreement, the Pledge Agreements and each Supplemental
Partners Security Agreement.
"Senior Funded Debt" means, as of any date as of which the amount
thereof is to be determined, (a) the sum of all Indebtedness of the type
described in clauses (a), (b) and (c) of the definition of Indebtedness of the
Borrowers and their Restricted Subsidiaries which (i) is purportedly secured by
a perfected Lien and (ii) is not by its terms subordinated to any other
Indebtedness of the Borrowers or their Restricted Subsidiaries less (b) the
Excess Cash Balance on the date of determination.
"Stated Amount" of each Letter of Credit means the total amount
available to be drawn under such Letter of Credit upon the issuance thereof.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means September 30, 2004.
"Subordinated Debt" means all Indebtedness of the Borrowers and their
Restricted Subsidiaries related to or resulting from any (i) Intercompany
Subordinated Loan and (ii) deferred Management Fees, subordinated (in each case)
on terms satisfactory to the Administrative Agent, including the following
terms:
(a) payments of principal and interest of the Subordinated
Debt shall be subject to the limitations set forth
in this Agreement until the Obligations have been paid in cash in full, all
Letters of Credit have terminated or expired and the Commitments have been
terminated;
(b) no security interest in or Lien on any assets of any
Obligor shall be given to secure Subordinated Debt;
(c) upon any payment or distribution of assets of any
Borrower upon the occurrence of any of the events
described in Section 8.1.9, all Obligations, including interest accruing thereon
(whether or not permitted as a claim) shall be paid in full in cash directly to
the Administrative Agent before any payment of any amounts (including, without
limitation, principal and interest) on Subordinated Debt shall be made;
(d) in the event of a Default under Section 8.1.9, the
Lenders or the Administrative Agent shall (i) have the
right to file a claim on behalf of the holders of Subordinated Debt and collect
and receive all such payments, (ii) be irrevocably granted a power of attorney
to act on behalf of the holder of the Subordinated Debt, and (iii) be granted a
security interest in any dividend or distribution resulting from a proceeding of
the type described in Section 8.1.9;
(e) if prior to payment in full of the Obligations in
cash, the holder of Subordinated Debt receives any
payment (other than as permitted pursuant to Sections 7.2.13 and 7.2.14) in
respect of such Subordinated Debt or a Lien on (or security interest in) any
assets of any Obligor, such payment or security shall be delivered to the
Administrative Agent; and
(f) there will be no cross defaults or cross accelerations
with any other Indebtedness.
"Subordination Agreements" means each Intercompany Subordination
Agreement and each Manager Subordination Agreement.
"Subsidiary" means, with respect to any Person, (i) any corporation
of which more than 50% of the outstanding capital stock having ordinary voting
power to elect a majority of the board of directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned by such Person, by such
Person and one or more other Subsidiaries of such Person, or by one or more
other Subsidiaries of such Person, or (ii) any partnership, joint venture or
other entity as to which such Person, such Person and one or more of its
Subsidiaries or one or more Subsidiaries of such Person own more than a 50%
ownership, equity or similar interest or have 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; provided, that for purposes of this Agreement, CTCC shall be
deemed to be a Subsidiary of HVA.
"Subsidiary Guarantor" means, individually, each Subsidiary of HVA
existing on the Effective Date and each other Subsidiary of any Borrower that is
required, pursuant to Section 7.1.10, to execute and deliver a guaranty in
substantially the form of the Subsidiary Guaranty, and collectively means all
such Persons.
"Subsidiary Guaranty" means, collectively, (i) the Subsidiary
Guaranty dated as of February 28, 1996, executed and delivered pursuant to
clause (a) of Section 5.1.5 of the Existing Credit Agreement, a conformed copy
of which is attached as Exhibit H-1 hereto, as amended on the Amendment
Effective Date, and (ii) the Subsidiary Guaranty executed and delivered pursuant
to clause (a) of Section 7.1.10 in substantially the form of Exhibit H-1 hereto,
in each case as amended, supplemented, amended and restated or otherwise
modified from time to time.
"Supplemental Partners Security Agreement" is defined in clause (c)
of Section 7.1.10.
"Swap Party" means any Person that has entered into a Rate Protection
Agreement with any Borrower but only if such Person was a Lender (or an
Affiliate of a Lender) on the date such Rate Protection Agreement was executed
and delivered.
"TALP" is defined in the preamble.
"TALP Group" means TALP and each of its Subsidiaries.
"TALP Partners Security Agreement" means the Security Agreement
executed and delivered pursuant to Section 5.1.7 by each Person that owns a
limited or general interest in TALP, substantially in the form of Exhibit J-3
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"TALP Partnership Agreement" means the Limited Partnership Agreement
of Telesat Acquisition Limited Partnership, dated May 12, 1995, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"TALP Pledge Agreement" means the Pledge Agreement, executed and
delivered pursuant to Section 7.1.10, substantially in the form of Exhibit I-3
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Taxes" is defined in Section 4.6.
"Total Fixed Charges" means, without duplication, for the most recent
four Fiscal Quarters, and with respect to the Borrowers and their Restricted
Subsidiaries, the sum of (i) all Interest Expense, (ii) the aggregate
outstanding Loans at the beginning of any period of determination less the
Maximum Availability at the end of such period (which shall never be deemed to
be less than zero), (iii) all fees owed pursuant to Section 3.3.1, (iv) all
Capital Expenditures of the Borrowers and their Restricted Subsidiaries (other
than those funded by Capital Contributions), and (v) all Management Fees which
are paid in cash by the Borrowers and their Restricted Subsidiaries (other than
those funded by Capital Contributions pursuant to Section 7.2.13) and calculated
in the manner specified in Section 7.2.12.
"type" means, relative to any Loan, the portion thereof, if any,
being maintained as a Base Rate Loan, a CD Rate Loan or a LIBO Rate Loan.
"United States" or "U.S." means the United States of America, its
fifty States and the District of Columbia.
"Unrestricted Subsidiaries" shall mean Subsidiaries of any Borrower
(other than Subsidiaries which have executed and delivered a Subsidiary
Guaranty) which are classified after the Effective Date by a resolution of the
Board of Directors of such Borrower that is promptly delivered to the
Administrative Agent as an Unrestricted Subsidiary, and which shall not engage
in any business activity other than in the acquisition and ownership of
financial assets and FCC Licenses (other than those necessary for the ongoing
business and operation of the Borrowers and their Restricted Subsidiaries).
<PAGE>
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
"wholly-owned Subsidiary" means, with respect to any Person, any
Subsidiary of such Person all of the Capital Securities of the types set forth
in clause (a) of such definition (and all rights and options to purchase such
Capital Securities) of which, other than directors' qualifying shares, are
owned, beneficially and of record, by such Person and/or one or more
wholly-owned Subsidiaries of such Person, and the term "wholly-owned Restricted
Subsidiary" shall mean a Restricted Subsidiary of a Borrower that is also a
wholly-owned Subsidiary of such Borrower.
Use of Defined TermsUse of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Note and other Loan Document, notice and other communication delivered from
time to time in connection with this Agreement or any other Loan Document.
Cross-ReferencesCross-References. Unless otherwise specified, references in
this Agreement, each other Loan Document and each Subordination Agreement to any
Article or Section are references to such Article or Section of this Agreement
or such other Loan Document, as the case may be, and, unless otherwise
specified, references in any Article, Section or definition to any clause are
references to such clause of such Article, Section or definition.
Accounting and Financial Determinations; No Duplication; Combined Basis and
ConsolidationAccounting and Financial Determinations; No Duplication; Combined
Basis and Consolidation. Unless otherwise specified, (i) all accounting terms
used herein or in any other Loan Document shall be interpreted, all accounting
determinations and computations hereunder or thereunder (including under Section
7.2.4) shall be made, and all financial statements required to be delivered
hereunder or thereunder shall be prepared in accordance with, those generally
accepted accounting principles ("GAAP") applied in the preparation of the
financial statements referred to in Section 6.5 and (ii) all accounting
determinations and computations hereunder or under any other Loan Documents
(including under Section 7.2.4) shall be made on a consolidated basis for HVA
and its Restricted Subsidiaries (other than CTCC), combined with CTCC, combined
with Global and its Restricted Subsidiaries and combined with TALP and its
Restricted Subsidiaries), and all such accounting determinations and
computations shall be made without duplication.
<PAGE>
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COMMITMENTS, LOANS, BORROWING AND
ISSUANCE PROCEDURES AND NOTES AND LETTERS OF CREDIT
CommitmentsCommitments. On the terms and subject to the conditions of this
Agreement (including Article V),
each Lender severally agrees to make Loans pursuant to the Commitments
described in this Section 2.1; and
the Issuer agrees that it will issue Letters of Credit pursuant to Section
2.1.2, and each Lender severally agrees that it will participate in such Letters
of Credit in accordance with Section 2.6.1.
Loan Commitment of Each LenderLoan Commitment of Each Lender. From time to
time on any Business Day occurring prior to the Commitment Termination Date,
each Lender will, subject to the terms of this Agreement (including Section
2.1.3), make loans (relative to such Lender, and of any type, its "Loans") to
the Borrowers (or any one of them) equal to such Lender's Percentage of the
aggregate amount of the Borrowing requested by such Borrower to be made on such
day; provided, that in no event shall any Lender be required to make any Loans
to Global unless and until the conditions in Sections 5.2.2 and 5.3 have been
(or, concurrently with the making of the initial Loans to Global, will be),
satisfied. On the terms and subject to the conditions hereof, each Borrower may,
prior to the Commitment Termination Date, from time to time borrow, prepay and
reborrow Loans.
Letter of Credit CommitmentLetter of Credit Commitment. From time to time on
any Business Day occurring prior to the Commitment Termination Date, the Issuer
will, subject to the terms of this Agreement (including Section 2.1.4),
issue one or more letters of credit (a "Letter of Credit") for the account of
a Borrower in the Stated Amount requested by such Borrower on such day; or
extend the Stated Expiry Date of an existing Letter of Credit previously
issued hereunder to a date not later than the earlier of (x) the Commitment
Termination Date and (y) one year from the date of such extension; provided,
that in no event shall the Issuer be required to issue a Letter of Credit for
the account of Global unless and until the conditions in Sections 5.2.2 and 5.3
have been (or, concurrently with the issuance of the initial Letter of Credit
for the account of Global, will be), satisfied.
Lenders Not Permitted or Required to Make LoansLenders Not Permitted or
Required to Make Loans. No Lender shall be permitted or required to make any
Loan if, after giving effect thereto, the aggregate outstanding principal amount
of all Loans and Letter of Credit Outstandings
of all Lenders
on any date occurring prior to the consummation of the Global Acquisition (or,
in lieu thereof, the Alternative Acquisition), would exceed $116,000,000, or
on any date occurring on or after the consummation of the Global Acquisition
(or, in lieu thereof, the Alternative Acquisition), or, if neither the Global
Acquisition nor the Alternative Acquisition has been consummated on or prior to
September 30, 1996, would exceed (A) the Commitment Amount then in effect or (B)
the Applicable Commitment Amount in respect of the Borrower requesting the
Credit Extension; or
of such Lender would (in any event) exceed such Lender's Percentage of (A) the
Commitment Amount or (B) the Applicable Commitment Amount in respect of the
Borrower requesting the Credit Extension.
In addition to the foregoing, the Lenders shall not be required to make (i)
Acquisition Loans in connection with the Global Acquisition (or, in lieu of the
Global Acquisition, the Alternative Acquisition), in an aggregate principal
amount in excess of $84,000,000 (or such lesser amount as determined in
accordance with clause (c) of Section 2.2.2) or (ii) Loans to Global unless the
conditions set forth in Section 5.3 have been (or concurrently with the initial
Loans, will be satisfied.
Issuer Not Permitted or Required to Issue Letters of CreditIssuer Not
Permitted or Required to Issue Letters of Credit. The Issuer shall not be
permitted or required to issue any Letter of Credit if, after giving effect
thereto,
(a) the aggregate amount of all Letter of Credit
Outstandings would exceed the Letter of Credit Commitment
Amount, or
(b) the sum of the aggregate amount of all Letter of
Credit Outstandings plus the aggregate principal amount of all Loans then
outstanding (i) on any date occurring prior to the consummation of the Global
Acquisition (or, in lieu thereof, the Alternative Acquisition), would exceed
$116,000,000 or (ii) on any date occurring on or after the consummation of the
Global Acquisition (or, in lieu thereof, the Alternative Acquisition), or, if
neither the Global Acquisition nor the Alternative Acquisition has been
consummated on or prior to September 30, 1996, would exceed the Commitment
Amount then in effect.
In addition to the foregoing, the Issuer shall not be permitted or required to
issue any Letter of Credit for the account of any Borrower if, after giving
effect to such issuance, the sum of (i) the principal amount of Loans made to
such Borrower and (ii) all Letter of Credit Outstandings for the account of such
Borrower exceeds the Applicable Commitment Amount of such Borrower.
Existing Credit ExtensionsExisting Credit Extensions. The parties hereto
acknowledge and agree that the Existing Credit Extensions listed in Item 2.1.5
of the Disclosure Schedule shall for all purposes be Credit Extensions made
under and governed in accordance with the terms of this Agreement.
Reduction of Commitment AmountReduction of Commitment Amount. The Commitment
Amount is subject to reduction from time to time pursuant to this Section 2.2.
Optional Reduction of Commitment AmountOptional Reduction of Commitment
Amount. Subject to compliance with the provisions of Section 3.1.2 and the
following provisos, any Borrower may, from time to time on any Business Day
occurring after the time of the initial Credit Extension, voluntarily reduce the
Commitment Amount; provided, that all such reductions shall require at least
three Business Days' prior notice to the Administrative Agent and be permanent,
and any partial reduction of the Commitment Amount shall be in a minimum amount
of $1,000,000 and in an integral multiple of $500,000; provided, further,
however, that in no event may the Commitment Amount be reduced below
$200,000,000 prior to the earlier of (i) the consummation of the Global
Acquisition (or, in lieu of the Global Acquisition, the Alternative Acquisition)
or (ii) September 30, 1996.
Mandatory Reduction of Commitment AmountMandatory Reduction of Commitment
Amount. Prior to the Commitment Termination Date, the Commitment Amount shall
also be permanently reduced as follows:
Commencing on December 31, 1998, and on each subsequent Quarterly Payment Date
occurring during each period set forth below, the Commitment Amount will be
reduced in an amount corresponding to the percentage of the Commitment Amount
existing on the Effective Date set forth opposite such period:
Amount Of
Period Reduction
12/31/98 through (and including) 03/31/00 2.500%
04/01/00 through(and including) 03/31/01 3.125%
04/01/01 through(and including)03/31/02 4.375%
04/01/02 through (and including) 03/31/03 5.000%
04/01/03 through(and including)03/31/04 5.625%
04/01/04 through(and including)09/30/04 6.250%.
The Commitment Amount will be permanently reduced in an amount equal to 100%
of the Net Disposition Proceeds to the extent (and on the dates) required
pursuant to Section 3.1.4, with the commitment reduction applied against future
scheduled reductions in the Commitment Amount (as set forth in clause (a) above)
on a weighted average basis; provided, however, that in no event will the
Commitment Amount be reduced below $84,000,000 prior to September 30, 1996.
The Commitment Amount will be permanently reduced by $84,000,000 on September
30, 1996 if the Global Acquisition or, in lieu of the Global Acquisition, the
Alternative Acquisition, has not been consummated on or prior to September 30,
1996, and will be permanently reduced, Dollar for Dollar, on the date of the
consummation of the Global Acquisition (or Alternative Acquisition, as the case
may be), to the extent that the purchase price consideration paid in connection
with either such Acquisition is less than $84,000,000, with the commitment
reduction applied against future scheduled reductions in the Commitment Amount
(as set forth in clause (a) above) on a weighted average basis.
Borrowing ProcedureBorrowing Procedure. By delivering a Borrowing Request to
the Administrative Agent on or before 12:00 noon, New York City time, on a
Business Day, each Borrower may from time to time irrevocably request, (i) in
the case of LIBO Rate Loans, on not less than three nor more than five Business
Days' notice, (ii) in the case of CD Rate Loans, on not less than two nor more
than five Business Days' notice and (iii) in the case of Base Rate Loans, on not
less than one nor more than five Business Days' notice, that a Borrowing be made
in a minimum amount of $1,000,000 and an integral multiple of $500,000, or in
the unused amount of the Commitment Amount; provided, however, that the Lenders
hereby agree to waive the requirement of no less than one Business Day's prior
notice in the case of Base Rate Loans to be made on the Amendment Effective Date
and on the date of the consummation of the Global Acquisition so long as the
applicable Borrowing Request is delivered to the Administrative Agent no later
than 12:00 noon, New York time, on the date of such Borrowing. On the terms and
subject to the conditions of this Agreement, each Borrowing shall be comprised
of the type of Loans, and shall be made on the Business Day, specified in such
Borrowing Request. On or before 12:00 noon, New York City time, on such Business
Day each Lender shall deposit with the Administrative Agent same day funds in an
amount equal to such Lender's Percentage of the requested Borrowing. Such
deposit will be made to an account which the Administrative Agent shall specify
from time to time by notice to the Lenders. To the extent funds are received
from the Lenders, the Administrative Agent shall make such funds available to
the Borrower that requested such Borrowing by wire transfer to the accounts such
Borrower shall have specified in its Borrowing Request. No Lender's obligation
to make any Loan shall be affected by any other Lender's failure to make any
Loan.
Continuation and Conversion ElectionsContinuation and Conversion Elections. By
delivering a Continuation/Conversion Notice to the Administrative Agent on or
before 12:00 noon, New York City time, on a Business Day, each Borrower may from
time to time irrevocably elect, on not less than three nor more than five
Business Days' notice that all, or any portion in an aggregate minimum amount of
$1,000,000 and an integral multiple of $500,000, of any Loans be, in the case of
Base Rate Loans, converted into Fixed Rate Loans of either type or, in the case
of Fixed Rate Loans of either type, be converted into a Base Rate Loan or a
Fixed Rate Loan of the other type or continued as a Fixed Rate Loan of such type
(in the absence of delivery of a Continuation/Conversion Notice with respect to
any Fixed Rate Loan at least three Business Days before the last day of the then
current Interest Period with respect thereto, such Fixed Rate Loan shall, on
such last day, automatically convert to a Base Rate Loan); provided, however,
that (i) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of all Lenders, and (ii) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted
into, Fixed Rate Loans when any Default has occurred and is continuing.
FundingFunding. Each Lender may, if it so elects, fulfill its obligation to
make, continue or convert Fixed Rate Loans hereunder by causing one of its
foreign branches or Affiliates (or an international banking facility created by
such Lender) to make or maintain such Fixed Rate Loan; provided, however, that
such Fixed Rate Loan shall nonetheless be deemed to have been made and to be
held by such Lender, and the joint and several obligation of each Borrower to
repay such Fixed Rate Loan shall nevertheless be to such Lender for the account
of such foreign branch, Affiliate or international banking facility. In
addition, each Borrower hereby consents and agrees that, for purposes of any
determination to be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall
be conclusively assumed that each Lender elected to fund all Fixed Rate Loans by
purchasing, as the case may be, Dollar certificates of deposit in the U.S. or
Dollar deposits in its LIBOR Office's interbank eurodollar market.
Issuance ProceduresIssuance Procedures. By delivering to the Administrative
Agent an Issuance Request on or before 10:00 a.m., New York City time, on a
Business Day, each Borrower may, from time to time irrevocably request, on not
less than five nor more than ten Business Days' notice, in the case of an
initial issuance of a Letter of Credit, and not less than five Business Days'
notice prior to the existing Stated Expiry Date (or, if a Letter of Credit has
an automatic extension provision, at least five Business Days' notice prior to
the date that such Letter of Credit will, by its terms, be extended or, if
earlier, the date on which a notice from the Issuer is required to be delivered
to the beneficiary of the Letter of Credit informing the beneficiary that the
Letter of Credit will not be extended), in the case of a request for the
extension of the Stated Expiry Date of a Letter of Credit, that the Issuer
issue, or extend the Stated Expiry Date of, as the case may be, a Letter of
Credit in such form as may be requested by such Borrower and approved by the
Issuer, solely for the purposes described in clause (b) of Section 7.1.9. Each
Letter of Credit shall by its terms be stated to expire on a date (its "Stated
Expiry Date") no later than the earlier to occur of (i) the Commitment
Termination Date or (ii) one year from the date of its issuance. The Issuer will
make available to the beneficiary thereof the original of each Letter of Credit
which it issues hereunder.
Other Lenders' ParticipationOther Lenders' Participation. Upon the issuance of
each Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Lender shall be deemed to have irrevocably purchased, to the extent
of its Percentage to make Loans, a participation interest in such Letter of
Credit (including the Contingent Liability and any Reimbursement Obligation with
respect thereto), and such Lender shall, to the extent of its Percentage, be
responsible for reimbursing promptly (and in any event within one Business Day)
the Issuer for Reimbursement Obligations arising under the Letter of Credit
issued by the Issuer which have not been reimbursed by the Borrowers in
accordance with Section 2.6.3. In addition, such Lender shall, to the extent of
its Percentage, be entitled to receive a ratable portion of the Letter of Credit
fees payable pursuant to Section 3.3.2 with respect to each Letter of Credit
(other than the issuance fees payable to the Issuer with respect to such Letter
of Credit pursuant to the last sentence of Section 3.3.2), the interest payable
pursuant to Section 2.6.2 and, if applicable, of interest payable pursuant to
Section 3.3.3 with respect to any Reimbursement Obligation not paid when due. To
the extent that any Lender has reimbursed the Issuer for a Disbursement as
required by this Section, such Lender shall be entitled to receive its ratable
portion of any amounts subsequently received (from the Borrowers or otherwise)
in respect of such Disbursement.
DisbursementsDisbursements. The Issuer will notify the Borrowers and the
Administrative Agent promptly of the presentment for payment of any Letter of
Credit issued by the Issuer, together with notice of the date (the "Disbursement
Date") such payment shall be made (each such payment, a "Disbursement"). Subject
to the terms and provisions of such Letter of Credit and this Agreement, the
Issuer shall make such payment to the beneficiary (or its designee) of such
Letter of Credit. Prior to 11:00 a.m., New York City time, on the first Business
Day following the Disbursement Date, each Borrower jointly and severally agrees
to reimburse the Administrative Agent, for the account of the Issuer, for all
amounts which the Issuer has disbursed under such Letter of Credit, together
with interest thereon at a rate per annum equal to the rate then in effect for
Base Rate Loans (with the then Applicable Base Rate Margin for Loans accruing on
such amount) for the period from the Disbursement Date through the date of such
reimbursement.
ReimbursementReimbursement. The joint and several obligation (a "Reimbursement
Obligation") of each Borrower under Section 2.6.2 to reimburse the Issuer with
respect to each Disbursement (including interest thereon), and, upon the failure
of the Borrowers to reimburse the Issuer, each Lender's obligation under Section
2.6.1 to reimburse the Issuer, shall be absolute and unconditional under any and
all circumstances and irrespective of any setoff, counterclaim or defense to
payment which the Borrowers or such Lender, as the case may be, may have or have
had against the Issuer or any such Lender, including any defense based upon the
failure of any Disbursement to conform to the terms of the applicable Letter of
Credit (if, in the Issuer's good faith opinion, such Disbursement is determined
to be appropriate) or any non-application or misapplication by the beneficiary
of the proceeds of such Letter of Credit; provided, however, that after paying
in full its Reimbursement Obligation hereunder, nothing herein shall adversely
affect the right of any Borrower or such Lender, as the case may be, to commence
any proceeding against the Issuer for any wrongful Disbursement made by the
Issuer under a Letter of Credit as a result of acts or omissions constituting
gross negligence or wilful misconduct on the part of the Issuer.
Deemed DisbursementsDeemed Disbursements. Upon the occurrence and during the
continuation of any Default of the type described in Section 8.1.9 or, with
notice from the Administrative Agent, upon the occurrence and during the
continuation of any other Event of Default,
an amount equal to that portion of all Letter of Credit Outstandings
attributable to the then aggregate amount which is undrawn and available under
all Letters of Credit issued and outstanding hereunder shall, without demand
upon or notice to the Borrowers, be deemed to have been paid or disbursed by the
Issuer under such Letters of Credit (notwithstanding that such amount may not in
fact have been so paid or disbursed); and
upon notification by the Administrative Agent to the Borrowers of their
obligations under this Section, each Borrower shall be immediately obligated to
reimburse the Issuer for the amount deemed to have been so paid or disbursed by
the Issuer.
Any amounts so payable by the Borrowers pursuant to this Section shall be
deposited in cash with the Administrative Agent and held as collateral security
for the Obligations in connection with the Letters of Credit issued by the
Issuer. At such time when the Defaults or Events of Default giving rise to the
deemed disbursements hereunder shall have been cured or waived, the
Administrative Agent shall return to the Borrowers (or any one of them) all
amounts then on deposit with the Administrative Agent pursuant to this Section
which have not been applied to the partial satisfaction of such Obligations.
Nature of Reimbursement ObligationsNature of Reimbursement Obligations. The
Borrowers and, to the extent set forth in Section 2.6.1, each Lender shall
assume all risks of the acts, omissions or misuse of any Letter of Credit by the
beneficiary thereof. The Issuer (except to the extent of its own gross
negligence or wilful misconduct) shall not responsible for:
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
Letter of Credit or any document submitted by any party in connection with the
application for and issuance of a Letter of Credit, even if it should in fact
prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent
or forged;
the form, validity, sufficiency, accuracy, genuineness or legal effect of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or the proceeds thereof in
whole or in part, which may prove to be invalid or ineffective for any reason;
the failure of the beneficiary of a Letter of Credit to comply fully with
conditions required in order to demand payment under a Letter of Credit;
errors, omissions, interruptions or delays in transmission or delivery of
any messages, by mail, cable, telegraph, telex or
otherwise; or
any loss or delay in the transmission or otherwise of any document or draft
required in order to make a Disbursement under a Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Lender. In furtherance and
extension and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by the Issuer in good faith (and not
constituting gross negligence or willful misconduct) shall be binding upon the
Borrowers and each such Lender, and shall not put the Issuer under any resulting
liability to any Borrower or any such Lender, as the case may be.
NotesNotes. Each Lender's Loans under its Commitment shall be evidenced by a
Note executed by each Borrower and payable to the order of such Lender in a
maximum principal amount equal to such Lender's Percentage of the original
Commitment Amount. Each Borrower hereby irrevocably authorizes each Lender to
make (or cause to be made) appropriate notations on the grid attached to such
Lender's Note (or on any continuation of such grid), which notations, if made,
shall evidence, inter alia, the date of, the outstanding principal of, and the
interest rate and Interest Period applicable to the Loans evidenced thereby.
Such notations shall be conclusive and binding on the Borrowers absent manifest
error; provided, however, that the failure of any Lender to make any such
notations shall not limit or otherwise affect any Obligations of any Borrower or
any other Obligor. Upon any Borrower's reasonable request of any Lender, such
Lender will furnish copies of such grid to such Borrower.
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
Repayments and PrepaymentsRepayments and Prepayments. Repayments and
prepayments of Loans shall be made as set forth in this Section 3.1 and, except
as may be required by Section 4.4, shall be without premium or penalty.
Final MaturityFinal Maturity. On the Stated Maturity Date, the Borrowers shall
repay in full the unpaid principal amount of each Loan.
Voluntary PrepaymentsVoluntary Prepayments. By delivering a notice to the
Administrative Agent on or before 10:00 a.m., New York City time, on a Business
Day prior to the Stated Maturity Date, any Borrower may from time to time, on
not less than three nor more than five Business Days' notice, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of any
Loans; provided, however, that (i) any such prepayment shall be made pro rata
among Loans of all Lenders of the same type and, if applicable, having the same
Interest Period; (ii) all such voluntary partial prepayments shall be in an
aggregate minimum amount of $1,000,000 and an integral multiple of $500,000; and
(iii) all LIBO Rate and CD Rate breakage costs, if any, incurred as a result of
any such prepayment shall be for the joint and several account of the Borrowers.
Mandatory PrepaymentsMandatory Prepayments. In addition to the terms of
Sections 3.1.4 and 3.1.5, on each date when any reduction of the Commitment
Amount shall become effective, including pursuant to Section 2.2, the Borrowers
shall make a mandatory prepayment of all Loans, and if required deliver cash
collateral for Letter of Credit Outstandings, equal to the excess, if any, of
the aggregate outstanding principal amount of all Loans and Letter of Credit
Outstandings over the Commitment Amount as so reduced.
Net Disposition ProceedsNet Disposition Proceeds. The Borrowers shall apply
Net Disposition Proceeds to a reduction in the then existing Commitment Amount
and the prepayment of the outstanding principal amount of Loans within 360 days
following the receipt thereof; provided, however, that if no Default has
occurred and is continuing, any Borrower may at any time during such 360-day
period apply such Net Disposition Proceeds to purchase a new Cable System;
provided, further, however, that, to the extent that such Net Disposition
Proceeds are not so applied before the expiration of such 360-day period or a
Default shall occur and be continuing, the Commitment Amount shall be
permanently reduced by the amount of Net Disposition Proceeds not so applied and
the Borrowers shall, without any further action or notice, within three days of
the expiration of such 360-day period or the occurrence of such Default, as the
case may be, cause the remaining portion of such Net Disposition Proceeds to be
applied to a prepayment of the Loans outstanding in excess of the Commitment
Amount, as so reduced, as provided in this Agreement.
Acceleration of Stated Maturity DateAcceleration of Stated Maturity Date.
Immediately upon any acceleration of the Stated Maturity Date of any Loans
pursuant to Section 8.2 or Section 8.3, the Borrowers shall repay all Loans to
the full extent of such acceleration.
Interest ProvisionsInterest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
RatesRates. Pursuant to an appropriately delivered Borrowing Request or
Continuation/Conversion Notice, each Borrower may elect that Loans comprising a
Borrowing accrue interest at any of the following rates per annum:
Alternate Base Rate. With respect to that portion of such Borrowing maintained
as Base Rate Loans, such rate shall be equal to the sum of the Alternate Base
Rate from time to time in effect plus the Applicable Margin.
CD Rate (Reserve Adjusted). With respect to that portion of such Borrowing
maintained as CD Rate Loans, during each Interest Period applicable thereto such
rate shall be equal to the sum of the CD Rate (Reserve Adjusted) for such
Interest Period plus the Applicable Margin.
LIBO Rate (Reserve Adjusted). With respect to the portion of such Borrowing
maintained as LIBO Rate Loans, during each Interest Period applicable thereto
such rate shall be equal to the sum of the LIBO Rate (Reserve Adjusted) for such
Interest Period plus the Applicable Margin.
The "CD Rate (Reserve Adjusted)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a CD Rate Loan for any
Interest Period, a rate per annum (rounded upwards, if necessary, to the nearest
1/16 of 1%) determined pursuant to the following formula:
CDR(RA) = CDR + AR
(1.00 - CDRR)
where:
CDR(RA) = CD Rate (Reserve Adjusted)
CDR = CD Rate
CDRR = CD Reserve Requirement
AR = Assessment Rate
The CD Rate (Reserve Adjusted) for any Interest Period for CD Rate Loans will be
determined by the Administrative Agent on the basis of the CD Reserve
Requirement and Assessment Rate in effect on, and the applicable rates furnished
to and received by the Administrative Agent from Scotiabank, on the first day of
such Interest Period.
"CD Rate" means, relative to any Interest Period for CD Rate Loans,
the rate of interest determined by the Administrative Agent to be the arithmetic
average (rounded upwards, if necessary, to the nearest 1/16 of 1%) of the
prevailing rates per annum bid at 10:00 a.m., New York City time (or as soon
thereafter as practicable), on the first day of such Interest Period by two or
more certificate of deposit dealers of recognized standing located in New York
for the purchase at face value from Scotiabank of its certificates of deposit in
an amount approximately equal to the CD Rate Loan being made or maintained by
Scotiabank to which such Interest Period applies and having a maturity
approximately equal to such Interest Period.
The "CD Reserve Requirement" means, relative to any Interest Period
for CD Rate Loans, a percentage (expressed as a decimal) equal to the maximum
aggregate reserve requirements (including all basic, supplemental, marginal and
other reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements), specified under regulations issued
from time to time by the F.R.S. Board and then applicable to the class of banks
of which the Administrative Agent is a member, on deposits of the type used as a
reference in determining the CD Rate and having a maturity approximately equal
to such Interest Period.
The "Assessment Rate" means, for any Interest Period for CD Rate
Loans, the net annual assessment rate (rounded upwards, if necessary, to the
next higher 1/100 of 1%) estimated by the Administrative Agent to be the then
highest current annual assessment payable by any Lender to the Federal Deposit
Insurance Corporation (or any successor) for insuring time deposits at offices
of such Lender in the United States.
The "LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a LIBO Rate Loan for any
Interest Period, a rate per annum (rounded upwards, if necessary, to the nearest
1/16 of 1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO
Rate Loans will be determined by the Administrative Agent on the basis of the
LIBOR Reserve Percentage in effect on, and the applicable rates furnished to and
received by the Administrative Agent from Scotiabank, two Business Days before
the first day of such Interest Period.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate
Loans, the rate of interest equal to the average (rounded upwards, if necessary,
to the nearest 1/16 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to Scotiabank's LIBOR Office in the
London interbank market as at or about 10:00 a.m., New York City time, two
Business Days prior to the beginning of such Interest Period for delivery on the
first day of such Interest Period, and in an amount approximately equal to the
amount of Scotiabank's LIBO Rate Loan and for a period approximately equal to
such Interest Period.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of and including
"Eurocurrency Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such Interest Period.
All Fixed Rate Loans shall bear interest from and including the first
day of the applicable Interest Period to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such Fixed
Rate Loan.
Post-Maturity RatesPost-Maturity Rates. After the date any principal amount of
any Loan is due and payable (whether on the Stated Maturity Date, upon
acceleration or otherwise), or after any other monetary Obligation of any
Borrower shall have become due and payable, the Borrowers shall pay, but only to
the extent permitted by law, interest (after as well as before judgment) on such
amounts at a rate per annum equal to the Alternate Base Rate plus the Applicable
Margin plus an additional margin of 2%.
Payment DatesPayment Dates. Interest accrued on each Loan shall be payable,
without duplication:
on the Stated Maturity Date therefor;
on the date of any payment or prepayment, in whole or in part, of principal
outstanding on such Loan;
with respect to Base Rate Loans, on each Quarterly Payment Date occurring
after the Effective Date;
with respect to CD Rate Loans, the last day of each applicable Interest Period
(and, if such Interest Period shall exceed 90 days, on the 90th day of such
Interest Period);
with respect to LIBO Rate Loans, the last day of each applicable Interest
Period (and, if such Interest Period shall exceed three months, the last day of
each three month period);
with respect to any Base Rate Loans converted into Fixed Rate Loans on a day
when interest would not otherwise have been payable pursuant to clause (c), on
the date of such conversion; and
immediately upon the acceleration of any Loan pursuant to Section 8.2 or
Section 8.3.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
Change in Applicable MarginChange in Applicable Margin. The change in the
Applicable Margin with respect to any Loan shall take effect on the earlier of
(i) two Business Days after the date of delivery of a Compliance Certificate
pursuant to clause (d) of Section 7.1.1 or (ii) if a Compliance Certificate is
not timely delivered pursuant to clause (d) of Section 7.1.1, the last date on
which such Compliance Certificate should have been delivered; provided, that if
financial statements and the related Compliance Certificate for any Fiscal
Quarter required by clauses (a), (c) or (d) of Section 7.1.1 are not delivered
to the Administrative Agent on or before the date when due and the Applicable
Margin indicated by the Leverage Ratio for such Fiscal Quarter is increased for
the subsequent period from that previously in effect, the Applicable Margin
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.
FeesFees. The Borrowers agree to pay the fees set forth in this Section 3.3.
All such fees shall be non-refundable.
Commitment Fees.Commitment Fees. The Borrowers agree to pay to the
Administrative Agent, for the pro rata account of each Lender, ongoing
commitment fees equal to 3/8 of 1% per annum of the average daily unused portion
of the Commitment Amount (net of Letter of Credit Outstandings), such fees to
accrue from the Effective Date until the Commitment Termination Date (including
during any period thereof when any availability under the Commitment is
suspended by reason of the Borrowers' inability to satisfy any condition of
Article V); provided, however, that through the earlier of (i) the date of the
consummation of the Global Acquisition (or, in lieu of the Global Acquisition,
the Alternative Acquisition) and (ii) the reduction of the Commitment Amount in
accordance with clause (c) of Section 2.2.2, the commitment fee shall accrue on
$84,000,000 of the total Commitment Amount at a rate equal to 3/16 of 1% per
annum. Such commitment fee shall be paid in arrears on each Quarterly Payment
Date and on the date of any reduction in the Commitment Amount (on the amount so
reduced).
Letter of Credit FeeLetter of Credit Fee. The Borrowers agree to pay to the
Administrative Agent, for the pro rata account of the Issuer and each other
Lender, a Letter of Credit fee in an amount equal to the then Applicable Margin
for LIBO Rate Loans, multiplied by the average daily undrawn Stated Amount of
all Letters of Credit outstanding during the applicable period, with such fees
being payable quarterly in arrears on each Quarterly Payment Date. The Borrowers
further agree to pay to the Issuer on the date of issuance of each Letter of
Credit by the Issuer an issuance fee in an amount equal to the higher of (i)
$100, and (ii) 1/4 of 1% of the Stated Amount thereof.
Other FeesOther Fees. The Borrowers agree to pay to (a) Scotiabank for its own
account the fees in the amounts and on the dates set forth in the Fee Letter and
(b) the other Lenders such other fees that are payable when and as due in
accordance with such Borrower's written agreement (if any) with each such
Lender.
Guaranty ProvisionsGuaranty Provisions. Each Borrower acknowledges and agrees
that all Obligations (including all Obligations outstanding on the Amendment
Effective Date) 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.
GuarantyGuaranty. Each Borrower hereby absolutely, unconditionally and
irrevocably
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 Obligor, 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
indemnifies and holds harmless each of the Lenders, the Issuer and the
Managing Agents (the "Lender Parties") for any and all costs and expenses
(including reasonable 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 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 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 Obligor (or any other Person) before or as a condition to
the obligations of each other Borrower hereunder.
Acceleration of GuarantyAcceleration of Guaranty. Each Borrower agrees that,
in the event of a Default of the type set forth in Section 8.1.9 and if such
event shall occur at a time when any of the Obligations of the Borrowers and
each other Obligor may not then be due and payable, each Borrower will pay to
the Administrator for the account of Lenders forthwith the full amount which
would be payable hereunder by such Borrower if all such Obligations were then
due and payable.
Guaranty absolute, etcGuaranty absolute, etc. Section 3.4 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 Obligor 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
Obligor 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 Section 3.4 shall be absolute, unconditional
and irrevocable irrespective of:
any lack of validity, legality or enforceability of this Agreement, any Note
or any other Loan Document;
the failure of any Lender Party
to assert any claim or demand or to enforce any right or remedy against any
other Borrower, any other Obligor or any other Person (including any other
guarantor) under Section 3.4 of this Agreement, any other Loan Document or
otherwise, or
to exercise any right or remedy against any other guarantor of, or collateral
securing, any Obligations of any other Borrower or
any other Obligor;
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 Obligor, or
any other extension, compromise or renewal of any Obligation of any other
Borrower or any other Obligor;
any reduction, limitation, impairment or termination of the Obligations of any
other Borrower or any other Obligor 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 Obligor or otherwise;
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;
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
Obligor; or
any other circumstance which might otherwise constitute a defense available
to, or a legal or equitable discharge of, any other Borrower, any other Obligor,
any surety or any guarantor.
Reinstatement, etcReinstatement, etc. Each Borrower agrees that Section 3.4
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 Obligor or otherwise, all as
though such payment had not been made.
Waiver, etcWaiver, 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 Obligor and Section 3.4 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 Obligor or any other Person
(including any other guarantor) or entity or any collateral securing the
Obligations of any other Borrower or any other Obligor, as the case may be.
Postponement of Subrogation, etcPostponement of Subrogation, etc. No Borrower
will exercise any rights which it may acquire by way of rights of subrogation
under Section 3.4, 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
Obligor. 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 Obligor 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 Obligor, whether matured
or unmatured, in accordance with the terms hereof; provided, however, that if
any Borrower has made payment to the Lender Parties of all or any part of the
Obligations of the Borrowers or any other Obligor;
and
all Obligations of the Borrowers and each other Obligor 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 Obligor (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 Section 3.4 to any Lender Party.
Guaranty ProvisionsGuaranty 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; provided, that notwithstanding the
foregoing or anything contained in this Agreement to the contrary, Global shall
not be (nor deemed to be) a guarantor or subject to any of the terms of Section
3.5 unless and until the Global Acquisition has occurred and it has borrowed the
initial Acquisition Loans hereunder.
CERTAIN CD RATE, LIBO RATE AND OTHER PROVISIONS
Fixed Rate Lending UnlawfulFixed Rate Lending Unlawful. If any Lender shall
determine (which determination shall, upon notice thereof to the Borrowers and
the Lenders, be conclusive and binding on the Borrowers) that the introduction
of or any change in or in the interpretation of any law makes it unlawful, or
any central bank or other governmental authority asserts that it is unlawful,
for such Lender to make, continue or maintain any Loan as, or to convert any
Loan into, a Fixed Rate Loan of a certain type, the obligations of all Lenders
to make, continue, maintain or convert any such Loans shall, upon such
determination, forthwith be suspended until such Lender shall notify the
Administrative Agent that the circumstances causing such suspension no longer
exist, and all Fixed Rate Loans of such type shall automatically convert into
Base Rate Loans at the end of the then current Interest Periods with respect
thereto or sooner, if required by such law or assertion.
Deposits UnavailableDeposits Unavailable. If the Administrative Agent shall
have determined that
Dollar certificates of deposit or Dollar deposits, as the case may be, in the
relevant amount and for the relevant Interest Period are not available to any of
the Lenders in its relevant market; or
by reason of circumstances affecting Scotiabank's relevant market, adequate
means do not exist for ascertaining the interest rate applicable hereunder to
Fixed Rate Loans of such type,
then, upon notice from the Administrative Agent to the Borrowers and the
Lenders, the obligations of all Lenders under Section 2.4 and Section 2.5 to
make or continue any Loans as, or to convert any Loans into, Fixed Rate Loans of
such type shall forthwith be suspended until the Administrative Agent shall
notify the Borrowers and the Lenders that the circumstances causing such
suspension no longer exist.
Increased Fixed Rate Loan Costs, etc.Increased Fixed Rate Loan Costs, etc. The
Borrowers agree to reimburse each Lender for any increase in the cost to such
Lender of, or any reduction in the amount of any sum receivable by such Lender
in respect of, making, continuing or maintaining (or of its obligation to make,
continue or maintain) any Loans as, or of converting (or of its obligation to
convert) any Loans into, Fixed Rate Loans. Such Lender shall promptly notify the
Administrative Agent and the Borrowers in writing of the occurrence of any such
event, such notice to state, in reasonable detail, the reasons therefor and the
additional amount required fully to compensate such Lender for such increased
cost or reduced amount. Such additional amounts shall be payable by the
Borrowers directly to such Lender within five days of its receipt of such
notice, and such notice shall, in the absence of manifest error, be conclusive
and binding on the Borrowers.
Funding LossesFunding Losses. In the event any Lender shall incur any loss or
expense (including any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to make,
continue or maintain any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a Fixed Rate Loan)
as a result of
any conversion or repayment or prepayment of the principal amount of any Fixed
Rate Loans on a date other than the scheduled last day of the Interest Period
applicable thereto, whether pursuant to Section 3.1 or otherwise;
any Loans not being made as Fixed Rate Loans in accordance with the Borrowing
Request therefor; or
any Loans not being continued as, or converted into, Fixed Rate Loans in
accordance with the Continuation/Conversion Notice
therefor,
then, upon the written notice of such Lender to the Borrowers (with a copy to
the Administrative Agent), the Borrowers shall, within five days of their
receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Such written notice (which shall include calculations in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrowers.
Increased Capital CostsIncreased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other governmental authority affects or would affect the amount of capital
required or expected to be maintained by any Lender or any Person controlling
such Lender, and such Lender determines (in its sole and absolute discretion)
that the rate of return on its or such controlling Person's capital as a
consequence of its Commitment or the Loans made, or the Letters of Credit issued
or participated in, by such Lender is reduced to a level below that which such
Lender or such controlling Person could have achieved but for the occurrence of
any such circumstance, then, in any such case upon notice from time to time by
such Lender to the Borrowers, the Borrowers shall immediately pay directly to
such Lender additional amounts sufficient to compensate such Lender or such
controlling Person for such reduction in rate of return. A statement of such
Lender as to any such additional amount or amounts (including calculations
thereof in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on the Borrowers. In determining such amount, such Lender
may use any method of averaging and attribution that it (in its sole and
absolute discretion) shall deem applicable.
TaxesTaxes. All payments by the Borrowers of principal of, and interest on,
the Loans and all other amounts payable hereunder shall be made free and clear
of and without deduction for any present or future income, excise, stamp or
franchise taxes and other taxes, fees, duties, withholdings or other charges of
any nature whatsoever imposed by any taxing authority, but excluding franchise
taxes and taxes imposed on or measured by any Lender's net income or receipts
(such non-excluded items being called "Taxes"). In the event that any
withholding or deduction from any payment to be made by any Borrower hereunder
is required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then such Borrower will
pay directly to the relevant authority the full amount required to be so
withheld or deducted;
promptly forward to the Administrative Agent an official receipt or other
documentation satisfactory to the Administrative Agent evidencing such payment
to such authority; and
pay to the Administrative Agent for the account of the Lenders such additional
amount or amounts as is necessary to ensure that the net amount actually
received by each Lender will equal the full amount such Lender would have
received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Administrative Agent or
any Lender with respect to any payment received by the Administrative Agent or
such Lender hereunder, the Administrative Agent or such Lender may pay such
Taxes and the Borrowers will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had not such Taxes been asserted.
If any Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, the Borrowers shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section 4.6, a distribution hereunder by the
Administrative Agent or any Lender to or for the account of any Lender shall be
deemed a payment by the Borrowers.
Upon the request of any Borrower or the Administrative Agent, each
Lender that is organized under the laws of a jurisdiction other than the United
States shall, prior to the date of the initial Credit Extension, execute and
deliver to such Borrower and the Administrative Agent, on or about the first
scheduled payment date in each Fiscal Year, one or more (as any Borrower or the
Administrative Agent may reasonably request) United States Internal Revenue
Service Forms 4224 or Forms 1001 or such other forms or documents (or successor
forms or documents), appropriately completed, as may be applicable to establish
the extent, if any, to which a payment to such Lender is exempt from withholding
or deduction of Taxes.
Payments, Computations, etc.Payments, Computations, etc. Unless otherwise
expressly provided, all payments by the Borrowers pursuant to this Agreement,
the Notes, each Letter of Credit or any other Loan Document shall be made by the
Borrowers to the Administrative Agent for the pro rata account of the Lenders
entitled to receive such payment. All such payments required to be made to the
Administrative Agent shall be the joint and several obligations of each
Borrower, regardless of which Borrower originally requested that the applicable
Credit Extension be made, and all such payments shall be made, without setoff,
deduction or counterclaim, not later than 12:00 noon, New York City time, on the
date due, in same day or immediately available funds, to such account as the
Administrative Agent shall specify from time to time by notice to the Borrowers.
Funds received after that time shall be deemed to have been received by the
Administrative Agent on the next succeeding Business Day. The Administrative
Agent shall promptly remit in same day funds to each Lender its share, if any,
of such payments received by the Administrative Agent for the account of such
Lender. All interest and fees shall be computed on the basis of the actual
number of days (including the first day but excluding the last day) occurring
during the period for which such interest or fee is payable over a year
comprised of 360 days (or, in the case of (i) the calculation of the commitment
fees payable pursuant to Section 3.3.1 and (ii) interest on a Base Rate Loan,
365 days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (c) of the definition of the term
"Interest Period" with respect to LIBO Rate Loans) be made on the next
succeeding Business Day and such extension of time shall be included in
computing interest and fees, if any, in connection with such payment.
Sharing of PaymentsSharing of Payments. If any Lender shall obtain any payment
or other recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Loan or Reimbursement Obligation (other than
pursuant to the terms of Sections 4.3, 4.4, 4.5 and 4.6) in excess of its pro
rata share of payments then or therewith obtained by all Lenders, such Lender
shall purchase from the other Lenders such participations in Credit Extensions
made by them as shall be necessary to cause such purchasing Lender to share the
excess payment or other recovery ratably with each of them; provided, however,
that if all or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing Lender, the purchase shall be rescinded and each
Lender which has sold a participation to the purchasing Lender shall repay to
the purchasing Lender the purchase price to the ratable extent of such recovery
together with an amount equal to such selling Lender's ratable share (according
to the proportion of
the amount of such selling Lender's required repayment to the purchasing
Lender
to
the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrowers agree that any Lender so
purchasing a participation from another Lender pursuant to this Section may, to
the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.9) with respect to such participation as fully
as if such Lender were the direct creditor of such Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Lenders entitled under this Section to share in the benefits of any
recovery on such secured claim.
SetoffSetoff. Each Lender shall, upon the occurrence of any Default described
in clauses (a) through (e) of Section 8.1.9 or upon the occurrence of any other
Event of Default, have the right to appropriate and apply to the payment of the
Obligations owing to it (whether or not then due) any and all balances, credits,
deposits, accounts or moneys of each Borrower then or thereafter maintained with
such Lender; provided, however, that any such appropriation and application
shall be subject to the provisions of Section 4.8. Each Lender agrees to notify
promptly the applicable Borrower and the Administrative Agent after any such
setoff and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such setoff and
application. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff under applicable law
or otherwise) which such Lender may have.
CONDITIONS TO CREDIT EXTENSIONS
Initial Credit ExtensionInitial Credit Extension. The obligations of the
Lenders and the Issuer to fund any Credit Extension on or subsequent to the
Amendment Effective Date shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Section 5.1.
Corporate and Partnership Documents, etc.Corporate and Partnership Documents,
etc. The Administrative Agent shall have received,
with counterparts for each Lender,
the Closing Date Certificate, dated the date of the Amendment Effective Date,
executed and delivered by an Authorized Officer of TALP, certifying, among other
things,
(i) that attached thereto is a true and complete
copy of such Person's Organic Documents, certified
by the Secretary of State of the State of Delaware and dated a date reasonably
near the Amendment Effective Date, and that there have been no amendments since
the date of certification;
(ii) that attached thereto is a true and
complete copy of the TALP Partnership Agreement, as in
effect on the date of such certificate;
(iii) that attached thereto is a true and
complete copy of all partnership action by or on behalf of
TALP authorizing the execution, delivery and performance of this Agreement, the
Notes, each other Loan Document to which TALP is a party, and that such
authorization has not been modified, rescinded or amended and is in full force
and effect;
(iv) that attached thereto is a true and
complete copy of its (A) Management Agreement and
(B) Franchise Agreements, in each case as in effect on the Amendment Effective
Date, together with all amendments, waivers and other modifications made thereto
and a part thereof and that each such Management Agreement and Franchise
Agreement is in full force and effect;
(v) as to the name, incumbency and specimen
signature of each Authorized Officer of TALP authorized
to execute this Agreement, the Notes, each other Loan Document to be executed by
it (and the Administrative Agent and each Lender may conclusively rely on such
certificate until it shall have received a further certificate cancelling or
amending such prior certificate); and
a certificate, dated the date of the initial Credit Extension, of an
Authorized Officer of each other Obligor (not an individual), including HVA,
certifying
(i) that attached thereto is a true and complete
copy of its certificate of limited or general
partnership or incorporation, as applicable, certified by the Secretary of the
jurisdiction under which such Obligor is organized or incorporated and dated a
date reasonably near the Amendment Effective Date, and that there have been no
amendments since the date of certification;
(ii) that attached thereto is a true and
complete copy of the other Organic Documents of such
Obligor, as in effect on the date of such certificate;
(iii) that attached thereto is a true and
complete copy of all partnership or corporate action by or
on behalf of such Obligor authorizing the execution, delivery and performance of
each Loan Document to which such Obligor is a party and that such authorization
has not been modified, rescinded or amended and is in full force and effect;
(iv) that attached thereto is a true and
complete copy of its Franchise Agreements as in effect on the Amendment
Effective Date, together with all amendments, waivers and other modifications
made thereto and a part thereof and that each such Franchise Agreement is in
full force and effect; and
(v) as to the name, incumbency and specimen
signature of each Authorized Officer of such Obligor
authorized to execute this Agreement and each Loan Document to be executed by it
(and the Administrative Agent and each Lender may conclusively rely on such
certificate until it shall have received a further certificate cancelling or
amending such prior certificate);
provided, however, that the documents, certificates and other attachments
described in clause (b)(i), (b)(ii) and (b)(iv) shall not be required from HVA
or any of its Subsidiaries or CTCC if there has been no change in such
documents, certificates or attachments from those delivered by such Persons
pursuant to the terms of the Existing Credit Agreement.
Delivery of NotesDelivery of Notes. The Administrative Agent shall have
received, for the account of each Lender, its Notes duly executed and delivered
by HVA, Global and TALP.
Payment of Outstanding Indebtedness, etc.Payment of Outstanding Indebtedness,
etc. All Indebtedness (if any) identified in Item 7.2.2(b) ("Indebtedness to be
Paid") of the Disclosure Schedule, together with all interest and fees, and all
prepayment premiums and other amounts due and payable with respect thereto,
shall have been paid in full; and all Liens securing payment of any such
Indebtedness shall have been released and the Administrative Agent shall have
received all Uniform Commercial Code Form UCC-3 termination statements or other
instruments as may be suitable or appropriate in connection therewith.
Due DiligenceDue Diligence. The Administrative Agent shall have completed and
be satisfied in all respects with their review of (i) the assets, operations and
prospects of TALP and its Subsidiaries, and (ii) the unaudited financial
statements of TALP for the Fiscal Quarter ended September 30, 1995.
Guaranty.Guaranty. The Administrative Agent shall have received duly executed
counterparts for each Lender of the first amendment to the Subsidiary Guaranty
in form and substance satisfactory to the Administrative Agent, dated as of the
date hereof and duly executed and delivered by an Authorized Officer of each
Subsidiary of HVA and CTCC.
Obligor Pledge Agreement and HVA Pledge Agreement AmendmentsObligor Pledge
Agreement and HVA Pledge Agreement Amendments. The Administrative Agent shall
have received counterparts for each Lender of the first amendment to (a) the HVA
Pledge Agreement and (b) the Obligor Pledge Agreement, in each case in form and
substance satisfactory to the Administrative Agent, dated as of the date hereof
and duly executed and delivered by each Person that executed and delivered the
Obligor Pledge Agreement on the Effective Date.
Security AgreementsSecurity Agreements. The Administrative Agent shall have
received counterparts for each Lender of (i) the TALP Partners Security
Agreement, dated as of the date hereof, duly executed and delivered by an
Authorized Officer of Olympus and DCP and any other Person that owns a general
or limited partnership interest in TALP, (ii) the first amendment to the HVA
Partners Security Agreement in form and substance satisfactory to the
Administrative Agent, dated as of the date hereof and duly executed and
delivered by each Person that executed and delivered the HVA Partners Security
Agreement on the Effective Date, and (iii) the first amendment to the
Partnership Security Agreement in form and substance satisfactory to the
Administrative Agent, dated as of the date hereof and duly executed and
delivered by each Person that executed and delivered the Partnership Security
Agreement on the Effective Date, together (in the case of the TALP Partners
Security Agreement) with
duly executed Uniform Commercial Code financing statements (Form UCC-1 or Form
UCC-3, as the case may be) naming each partner of TALP as the debtors and the
Administrative Agent as the secured party, to be filed under the Uniform
Commercial Code of all jurisdictions as may be necessary or, in the opinion of
the Administrative Agent, desirable to perfect the security interest of the
Administrative Agent pursuant to the TALP Partners Security Agreement;
executed copies of proper Uniform Commercial Code Form UCC-3 termination
statements, if any, necessary to release all Liens and other rights of any
Person
in any collateral described in the TALP Partners Security Agreement previously
granted by any Person, and
securing any of the Indebtedness identified in Item 7.2.2(b) ("Indebtedness
to be Paid") of the Disclosure Schedule,
together with such other Uniform Commercial Code Form UCC-3
termination statements as the Administrative Agent may reasonably request from
such Obligors; and
certified copies of Uniform Commercial Code Requests for Information or Copies
(Form UCC-11), or a similar search report certified by a party acceptable to the
Administrative Agent, dated a date reasonably near to the Amendment Effective
Date, listing all effective financing statements which name each of the
aforementioned Persons party to the TALP Partners Security Agreement (under
their present names and any previous names) as the debtor and which are filed in
the jurisdictions in which filings were made pursuant to clause (a) above,
together with copies of such financing statements (none of which shall cover any
collateral described in the TALP Partners Security Agreements).
Subordination AgreementsSubordination Agreements. The Administrative Agent
shall have received, with counterparts for each Lender, the Manager
Subordination Agreement in the form of Exhibit G-2 hereto with such changes as
are satisfactory to the Administrative Agent, dated as of the date hereof, duly
executed and delivered by TALP and Olympus.
InsuranceInsurance. The Administrative Agent shall have received evidence that
all insurance policies, coverages and riders required pursuant to Section 7.1.4
are in effect for the TALP Group.
Closing Fees, Expenses, etc.Closing Fees, Expenses, etc. The Administrative
Agent shall have received for its own account, or for the account of each
Lender, as the case may be, all fees, costs and expenses due and payable under
this Agreement. In addition, each other Lender shall have received payment of
any other fees, costs and expenses then due and payable by the Borrowers to each
such Lender.
ApprovalsApprovals. The Administrative Agent shall have received evidence
satisfactory to it that the TALP Group possesses all governmental
authorizations, consents and approvals (if any) necessary for the execution,
delivery and performance of this Agreement and each other Loan Document to be
executed by any member of the TALP Group, and for the continued operation of
their respective businesses.
Management AgreementsManagement Agreements. The Administrative Agent shall
have received, with copies for each Lender, the Management Agreements to which
any member of the TALP Group is a party, each as in effect on the Amendment
Effective Date, together with all amendments, waivers and other modifications
made thereto and a part thereof, certified in the Closing Date Certificate as
being true and correct and in full force and effect and such Management
Agreements shall be in form and substance (including terms regarding the
subordination to the Obligations of all Management Fees payable thereunder)
satisfactory to the Administrative Agent.
Opinions of CounselOpinions of Counsel. The Administrative Agent shall have
received opinions, dated the Amendment Effective Date and addressed to the
Administrative Agent and all Lenders, from
Colin Higgin, Deputy General Counsel to the Borrowers and each other Obligor,
in form and substance satisfactory to the Administrative Agent;
Fleischman & Walsh, FCC counsel to the Borrowers, in form and substance
satisfactory to the Administrative Agent; and
Buchanan Ingersoll, a Professional Corporation, special Pennsylvania and New
York counsel to the Borrowers and each other Obligor, in form and substance
satisfactory to the Administrative Agent.
Delivery of Franchise Agreements and FCC LicensesDelivery of Franchise
Agreements and FCC Licenses. The Administrative Agent shall have received copies
of all FCC Licenses, material permits and other rights, including, without
limitation, all Franchises, owned, possessed or used by each member of the TALP
Group which are necessary to own and operate their respective properties and
Cable Systems and to carry on their respective businesses as conducted on the
Amendment Effective Date, and the Administrative Agent shall be satisfied that
all such instruments are in the name of such member of the TALP Group.
Solvency, etc.Solvency, etc. The Administrative Agent shall have received,
with counterparts for each Lender, a certificate duly executed and delivered by
the chief accounting, financial or other executive Authorized Officer of HVA and
of TALP, dated the Amendment Effective Date, with the form, scope and substance
of such certificates being satisfactory to the Administrative Agent.
Affirmation and ConsentAffirmation and Consent. The Administrative Agent shall
have received, with counterparts for each Lender, an Affirmation and Consent in
form and substance satisfactory to the Administrative Agent from each Obligor
(other than HVA) that existed on the Effective Date.
Additional Conditions Precedent to the Making of Acquisition LoansAdditional
Conditions Precedent to the Making of Acquisition Loans. In addition to the
conditions set forth above in Section 5.1, the obligations of the Lenders to
extend Loans which have the effect of causing the outstanding principal amount
of Loans and Letter of Credit Outstandings to exceed $116,000,000 for the first
time since the Effective Date shall be further subject to the prior or
concurrent satisfaction of each of the conditions set forth in this Section 5.2.
Alternative AcquisitionAlternative Acquisition. The obligations of the Lenders
to extend Acquisition Loans in connection with the consummation of the
Alternative Acquisition shall be subject to the following conditions:
the Borrowers shall have received the prior written consent of the Required
Lenders (not to be unreasonably withheld);
the Global Letter of Credit shall have expired or been terminated; and
the Borrowers shall have delivered such information, documents and
certificates as the Required Lenders may request, including a certificate in
form and substance satisfactory to the Administrative Agent demonstrating
compliance with all financial covenants on a pro forma historical basis on the
date the Alternative Acquisition is to be consummated and giving effect to the
Alternative Acquisition and the Acquisition Loans to be made in connection
therewith.
Global AcquisitionGlobal Acquisition. The obligations of the Lenders to extend
Acquisition Loans to Global in connection with the Global Acquisition (it being
agreed that only Global shall be permitted to borrow such Acquisition Loans in
connection with the Global Acquisition) shall be subject to the following
conditions:
HVA or Global shall have delivered a certificate in form and substance
satisfactory to the Administrative Agent from an authorized officer of Global
demonstrating compliance with all financial covenants on a pro forma historical
basis on the date the Global Acquisition is to be consummated and after giving
effect to the consummation of the Global Acquisition, and the Loans to be made
in connection therewith; provided, that for purposes of calculating such pro
forma historical financial covenants as of the first day of the period during
which the Acquisition Loans are to be made, Adjusted Global EBITDA shall be
utilized;
since September 30, 1995, (i) no material adverse change shall have occurred
with respect to the cable television systems acquired in the Global Acquisition
or their financial condition or operations, taken as a whole, other than any
change arising out of events or conditions that affect the cable television
industry generally, and (ii) there shall be no material damage, destruction,
loss or other casualty to the Assets to be Acquired, taken as a whole, that has
not been repaired or replaced;
the Global Acquisition shall have been consummated on the terms set forth in
the Purchase Agreement (with such changes thereto as the Administrative Agent
may agree to), with the purchase price payable not to exceed $84,000,000;
all of the issued limited and general partnership interests in Global
shall be pledged to the Administrative Agent by each
of the owners thereof; and
Global shall have been consolidated with and into HVA (with HVA being the
surviving partnership of such merger or consolidation) contemporaneously with
the consummation of the Global Acquisition, or evidence satisfactory to the
Managing Agents shall have been delivered by HVA that (i) at least 99% of all of
the issued and outstanding equity of Global is owned by HVA or an Affiliate of
HVA or (ii) all rights and obligations under the Purchase Agreement have been
assigned by Global to HVA or a Restricted Subsidiary of HVA that has delivered a
Subsidiary Guaranty, and that HVA or such Restricted Subsidiary will be the
purchaser of the Assets to be Acquired, in each case on terms satisfactory to
the Managing Agents.
Credit Extensions to GlobalCredit Extensions to Global. In addition to the
other provisions set forth in this Agreement, the obligation of each Lender to
fund any initial Loan to Global or of the Issuer to issue an initial Letter of
Credit for the account of Global shall be subject to the prior or
contemporaneous satisfaction by (or on behalf of Global) with the satisfaction
of the conditions precedent set forth in clause (a) of Section 5.1.1, Sections
5.1.2, 5.1.3, and 5.1.6 through 5.1.14 (inclusive), substituting for TALP (or
the TALP Group) "Global", in addition to a solvency certificate in the form
delivered pursuant to Section 5.1.15 from each Borrower.
All Credit ExtensionsAll Credit Extensions. The obligation of each Lender to
fund any Loan on the occasion of any Credit Extension or the Issuer to issue a
Letter of Credit shall be subject to the satisfaction of each of the conditions
precedent set forth in this Section 5.4.
Compliance with Warranties, No Default, etc.Compliance with Warranties, No
Default, etc. Both before and after giving effect to any Credit Extensions (but,
if any Default of the nature referred to in Section 8.1.5 shall have occurred
with respect to any other Indebtedness, without giving effect to the
application, directly or indirectly, of the proceeds thereof) the following
statements shall be true and correct
the representations and warranties of each Obligor set forth in Article VI
(excluding, however, those contained in Section 6.7) and in each other Loan
Document shall be true and correct with the same effect as if then made (unless
stated to relate solely to an earlier date, in which case such representations
and warranties shall be true and correct as of such earlier date);
except as disclosed by any Borrower to the Administrative Agent and the
Lenders pursuant to Section 6.7,
no labor controversy, litigation, arbitration or governmental investigation or
proceeding shall be pending or, to the knowledge of any Borrower, threatened
against the Borrowers or any of their Subsidiaries which could reasonably be
expected to have a material adverse effect on such Borrower's consolidated
business, operations, assets, revenues, properties or prospects or which
purports to affect the legality, validity or enforceability of this Agreement,
the Notes or any other Loan Document; and
no development shall have occurred in any labor controversy, litigation,
arbitration or governmental investigation or proceeding disclosed pursuant to
Section 6.7 which could reasonably be expected to have a material adverse effect
on the consolidated businesses, operations, assets, revenues, properties or
prospects of any Borrower and its Subsidiaries; and
no Default (including under clause (a) of Section 7.2.4) shall have then
occurred and be continuing, and no Borrower nor any of their Subsidiaries or any
other Obligor shall be in violation of any law or governmental regulation or
court order or decree which could reasonably be expected to have a material
adverse effect on the assets, financial condition, revenues, operations,
properties or prospects of such Borrower or any of its Subsidiaries or any other
Obligor.
Credit Extension RequestCredit Extension Request. The Administrative Agent
shall have received a Borrowing Request if Loans are being requested, or an
Issuance Request if a Letter of Credit is being requested or extended. Each of
the delivery of a Borrowing Request or Issuance Request and the acceptance by a
Borrower of the proceeds of such Credit Extension shall constitute a
representation and warranty by the Borrowers that on the date of such Credit
Extension (both immediately before and after giving effect to such Credit
Extension and the application of the proceeds thereof) the statements made in
Section 5.4.1 are true and correct.
Satisfactory Legal FormSatisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrowers or any of its
Subsidiaries or any other Obligors shall be satisfactory in form and substance
to the Administrative Agent and its counsel; the Administrative Agent and its
counsel shall have received all information, approvals, opinions, documents or
instruments as each such Person may reasonably request.
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders, the Issuer and the Administrative
Agent to enter into this Agreement and to make Credit Extensions hereunder, the
Borrowers represent and warrant to the Administrative Agent, the Issuer and each
Lender as set forth in this Article VI.
Organization, etc.Organization, etc. (a) HVA is a limited partnership and is
validly organized and existing and in good standing under the laws of the
Commonwealth of Pennsylvania and each of its Subsidiaries is a corporation or
partnership validly organized and existing and in good standing under the laws
of the State of its incorporation or formation, as the case may be, and each of
HVA and each of its Subsidiaries is duly qualified to do business and is in good
standing in each jurisdiction where the nature of its business requires such
qualification. Each of TALP and Global is a limited partnership and is validly
organized and existing and in good standing under the laws of the State of
Delaware and each of its Subsidiaries is a corporation or partnership validly
organized and existing and in good standing under the laws of the State of its
incorporation or formation, as the case may be, and each of TALP and its
Subsidiaries and Global and its Subsidiaries is duly qualified to do business
and is in good standing in each jurisdiction where the nature of its business
requires such qualification. No filing, recording, publishing or other act is
necessary or appropriate in connection with the existence or the business of the
Borrowers or any of their Subsidiaries.
Each other Obligor (that is not an individual) is a corporation or partnership
validly organized and existing and in good standing under the laws of the State
of its incorporation or formation, as the case may be, and is duly qualified to
do business and is in good standing in each jurisdiction where the nature of
their respective businesses requires such qualification. No filing, recording,
publishing or other act is necessary or appropriate in connection with the
existence or the business of such Obligor.
Each Borrower and their Restricted Subsidiaries each have full power and
authority and hold all requisite governmental licenses, permits and other
approvals (i) to enter into and perform their Obligations under this Agreement,
the Notes and each other Loan Document to which it is a party, and (ii) to own
and hold under lease their respective properties and to conduct business
substantially as currently conducted.
Each other Obligor has the full power, authority and legal capacity, as the
case may be, to execute and deliver, as applicable, each Loan Document to which
it is a party and to perform its obligations thereunder and, if applicable,
holds all requisite governmental licenses, permits and other approvals to enter
into and perform its Obligations under such Loan Documents and to own and hold
under lease its properties and to conduct business substantially as currently
conducted.
Each Manager has the full corporate power and authority and holds all
requisite governmental licenses, permits and other approvals to enter into and
perform its Obligations under the Manager Subordination Agreement and each
Manager has full power and authority and holds all requisite governmental
licenses, permits and other approvals to own and hold under lease its property
and to conduct business substantially as currently conducted.
The Partners are the only partners of the Borrowers.
Due Authorization, Non-Contravention, etc.Due Authorization,
Non-Contravention, etc. The execution, delivery and performance by each Borrower
of this Agreement, the Notes and each other Loan Document executed or to be
executed by it, and the execution, delivery and performance by each other
Obligor of each Loan Document executed or to be executed by it, are within such
Borrower's and each such Obligor's powers, corporate, partnership or otherwise,
and, if applicable, have been duly authorized by all necessary corporate or
partnership action, as the case may be, and do not
contravene such Borrower's or any such Obligor's Organic Documents;
contravene any contractual restriction, law or governmental regulation or
court decree or order binding on or affecting such Borrower or any such Obligor;
or
result in, or require the creation or imposition of, any Lien on any of any
Obligor's properties other than those contemplated by the Loan Documents.
Government Approval, Regulation, etc.Government Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or other Person is required for
the due execution, delivery or performance by any Borrower or any other Obligor
of this Agreement, the Notes or any other Loan Document to which it is a party.
No Borrower nor any of their Subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
Validity, etc.Validity, etc. This Agreement constitutes, and the Notes and
each other Loan Document executed by each Borrower will, on the due execution
and delivery thereof, constitute, the legal, valid and binding obligations of
such Borrower enforceable in accordance with their respective terms. Each Loan
Document executed pursuant hereto by each other Obligor will, on the due
execution and delivery thereof by such Obligor, be the legal, valid and binding
obligation of such Obligor enforceable in accordance with its terms. The
Franchise Agreements constitute the legal, valid and binding obligations of the
parties thereto, enforceable in accordance with their respective terms.
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Financial InformationFinancial Information. The
consolidated balance sheet of HVA and its Subsidiaries (other than CTCC),
combined with CTCC as at September 30, 1995, and the related consolidated
statements of earnings and cash flow of HVA and its Subsidiaries (other than
CTCC), combined with CTCC;
audited combined balance sheet of HVA and its Subsidiaries and CTCC and the
related combined statements of earnings and cash flow of HVA and its
Subsidiaries and CTCC for the year ended December 31, 1994;
consolidated balance sheet of TALP and its Subsidiaries as at September 30,
1995, and the related consolidated statements of earnings and cash flow of TALP
and its Subsidiaries; and
audited consolidated balance sheet of CTVF and the related consolidated
statements of earnings and cash flow of CTVF for the year ended December 31,
1994, and the consolidated balance sheet of CTVF as at September 30, 1995 and
the related consolidated statements of earnings and cash flow of CTVF and its
Subsidiaries;
copies of which in each case have been furnished to the Administrative Agent and
each Lender, have been prepared in accordance with GAAP consistently applied,
and present fairly the combined financial condition of the entities covered
thereby as at the dates thereof and the results of their operations for the
periods then ended.
No Material Adverse ChangeNo Material Adverse Change. Since December 31, 1994
(in the case of HVA) and September 30, 1995 (in the case of TALP and Global),
there has been no material adverse change in the financial condition,
operations, assets, business, properties or prospects of (i) HVA or HVA and its
Subsidiaries, taken as a whole, or (ii) TALP or TALP and its Subsidiaries, taken
as a whole or (iii) Global or Global and its Subsidiaries, taken as a whole.
Litigation, Labor Controversies, etc.Litigation, Labor Controversies, etc.
There is no pending or, to the knowledge of the Borrowers or any General
Partner, threatened litigation, action, proceeding, or labor controversy
affecting any Borrower or any of their Subsidiaries or CTCC, or any of their
respective properties, businesses, assets or revenues, which may materially
adversely
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affect the financial condition, operations, assets, business, properties or
prospects of HVA and its Subsidiaries, taken as a whole or TALP and its
Subsidiaries, taken as a whole or Global and its Subsidiaries, taken as a whole,
or which purports to affect the legality, validity or enforceability of this
Agreement, the Notes, any other Loan Document, the Management Agreements, the
Organic Documents of any Obligor or any Franchise Agreement to which an Obligor
is a party, except as disclosed in Item 6.7 ("Litigation") of the Disclosure
Schedule.
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SubsidiariesSubsidiaries. The Borrowers have no Subsidiaries, except those
Subsidiaries
which are identified in Item 6.8 ("Existing Subsidiaries") of the Disclosure
Schedule; or
which are permitted to have been acquired in accordance with Section 7.2.5 or
created in accordance with Section 7.2.7.
Ownership of PropertiesOwnership of Properties. The Borrowers and their
Subsidiaries own good and marketable title to all of their respective properties
and assets, real and personal, tangible and intangible, of any nature whatsoever
(including patents, trademarks, trade names, service marks and copyrights), free
and clear of all Liens, charges or claims (including infringement claims with
respect to patents, trademarks, copyrights and the like) except as permitted
pursuant to Section 7.2.3.
TaxesTaxes. The Borrowers and each of their Subsidiaries have filed all tax
returns and reports required by law to have been filed by each of them and have
paid all taxes and governmental charges thereby shown to be owing, except any
such taxes or charges which are being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on their respective books.
Pension and Welfare PlansPension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the date of any Credit Extension hereunder, no
steps have been taken to terminate any Pension Plan, and no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a Lien
under section 302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which might result in the incurrence
by any Borrower or any member of the Controlled Group of any material liability,
fine or penalty. Except as disclosed in Item 6.11 ("Employee Benefit Plans") of
the Disclosure Schedule, no Borrower nor any member of the Controlled Group of
any Borrower has any contingent liability with respect to any post-retirement
benefit under a Welfare Plan, other than liability for continuation coverage
described in Part 6 of Title I of ERISA.
Environmental WarrantiesEnvironmental Warranties. The Borrowers and their
Subsidiaries are in material compliance with all Environmental Laws applicable
to the operation of their respective businesses in all jurisdictions in which
they are presently doing business, such that they will not incur or be subject
to any liability or penalty thereunder. No Borrower nor any of their
Subsidiaries manages any Hazardous Materials in violation of any Environmental
Law, and there are no known conditions or previously owned or leased properties
or operations of any Borrower or any of their Subsidiaries or tenants of any
Borrower or such Subsidiary which may give rise to any liabilities and costs
under any Environmental Law.
Regulations G, U and XRegulations G, U and X. No Borrower nor any of their
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock, and no proceeds of any Credit Extensions
will be used to acquire any equity security of a class which is registered
pursuant to Section 12 of the Securities and Exchange Act of 1934 or any "margin
stock". Terms for which meanings are provided in F.R.S. Board Regulation G, U or
X or any regulations substituted therefor, as from time to time in effect, are
used in this Section with such meanings.
The FranchisesThe Franchises. Each Franchise of each Borrower and each of
their Restricted Subsidiaries is in full force and effect pursuant to each
agreement set forth in Item 6.1.4 ("Franchises") of the Disclosure Schedule, was
lawfully issued pursuant to the rules and regulations of each jurisdiction set
forth in Item 6.14 ("Franchises") of the Disclosure Schedule and authorizes such
Borrower and each such Restricted Subsidiary to operate such Franchise until the
dates set forth in Item 6.14 ("Franchises") of the Disclosure Schedule, and no
other or further approval, filing or other action of any Official Body is or
will be necessary or advisable in order to permit any Borrower's or any of its
Restricted Subsidiaries' operation of its Cable Systems in accordance with the
terms thereof. Item 6.14 ("Franchises") of the Disclosure Schedule correctly
identifies each franchisee. Each Borrower and its Restricted Subsidiaries are in
compliance with all material terms and conditions of each of their respective
Franchises and FCC Licenses and no event has occurred or exists which permits
or, after the giving of notice or the lapse of time or both, would permit the
revocation or termination of any such Franchise or FCC License. No Unrestricted
Subsidiary owns or has rights to any FCC License or Franchise necessary for the
ongoing operations of the Borrowers and their Restricted Subsidiaries or their
respective Cable Systems.
Patents, Copyrights, FCC Licenses, etc.Patents, Copyrights, FCC Licenses, etc.
Each Borrower and each of their Restricted Subsidiaries owns, possesses and has
the right to use all licenses, permits and other rights, including all material
agreements with public utilities and microwave transmission companies, pole use
access or rental agreements and all other utility easements, necessary to own
and operate its properties and its Cable Systems and to carry on its business as
presently conducted or as presently planned to be conducted. Each of the
foregoing is in full force and effect and each Borrower and each of their
Restricted Subsidiaries is in compliance in all material respects with all the
terms and conditions of each thereof, with no known conflict with the rights of
others. Item 6.15 ("Patents, Copyrights, FCC Licenses, etc.") of the Disclosure
Schedule hereto correctly identifies each such license, permit or other right
relating to the Cable Systems of each Borrower and each of their Restricted
Subsidiaries and all patents, copyrights, trademarks, service marks or trade
names owned or used by such Borrower and each of its Restricted Subsidiaries.
Partnership Agreements; Management AgreementsPartnership Agreements;
Management Agreements. Each partnership agreement of each Obligor that is a
partnership and each Management Agreement is in full force and effect and no
default or event which, with the passage of time or notice or both, would
constitute a default, has occurred and is continuing under any such Management
Agreement or partnership agreement.
SubordinationSubordination. The payment or repayment of the Subordinated Debt
and all interest, fees and other obligations with respect thereto is subject to
the terms and conditions of the Subordination Agreements, which are in full
force and effect. The Subordinated Debt and all interest, fees and other
obligations with respect thereto constitute "Subordinated Debt" under the
Subordination Agreements.
Accuracy of InformationAccuracy of Information. All factual information
furnished by or on behalf of any Borrower or any of their Subsidiaries in
writing to the Administrative Agent or any Lender for purposes of or in
connection with the Existing Credit Agreement or this Agreement, any other Loan
Document or any transaction contemplated hereby or thereby (true and complete
copies of which were furnished to the Administrative Agent and each Lender in
connection with its execution and delivery hereof) is, and all other such
factual information hereafter furnished by or on behalf of any Borrower or any
of their Subsidiaries to the Administrative Agent or any Lender will be, true
and accurate in every material respect on the date as of which such information
is dated or certified and as of the date of execution and delivery of this
Agreement by the Administrative Agent and such Lender (unless such information
relates to an earlier date, in which case such information shall be true and
accurate in every respect as of such earlier date), and such information is not,
or shall not be, as the case may be, incomplete by omitting to state any
material fact necessary to make such information not misleading.
Compliance with Leverage RatioCompliance with Leverage Ratio. Both before and
after giving effect to the making of any Credit Extension requested by any
Borrower, the Leverage Ratio on such date is not greater than the Leverage Ratio
applicable pursuant to clause (a) of Section 7.2.4 to the most recently ended
Fiscal Quarter for which the financial statements and Compliance Certificate
required by clauses (a), (c) and (d) of Section 7.1.1 have been delivered.
SolvencySolvency. Both before and immediately after giving effect to any
Credit Extension requested hereunder:
the fair value of the assets of each Borrower and its Subsidiaries on a
consolidated basis will exceed the total amount of liabilities (including
contingent, subordinated, unmatured and unliquidated liabilities) of such
Borrower and its Subsidiaries on a consolidated basis, on a going-concern basis;
the present fair salable value (as defined below) of the assets of each
Borrower and its Subsidiaries on a consolidated basis will exceed the probable
total liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of such Borrower and its Subsidiaries on a
consolidated basis as they become absolute and matured;
each Borrower and its Subsidiaries on a consolidated basis will be able to pay
their debts, including contingent liabilities, as they mature and become due;
each Borrower and its Subsidiaries on a consolidated basis are not, and will
not be, engaged in a business for which their consolidated capital is, or would
be, unreasonably small for such Borrower's consolidated business; and
each Borrower and its Subsidiaries on a consolidated basis have not incurred
(by way of assumption or otherwise) any obligations or liabilities (contingent
or otherwise) under this Agreement or any other Loan Document, nor have they
made any conveyance pursuant to or in connection therewith, with actual intent
to hinder, delay or defraud either present or future creditors of such Borrower
or any of its Subsidiaries.
For purposes of this Section, the "fair salable value" of a Borrower's and its
Subsidiaries' assets means the amount which may be realized within a reasonable
time, either through collection or sale of such assets at the regular market
value, based upon the amount which could be obtained for such assets within such
period by a capable and diligent seller from an interested buyer who is willing
(but is under no compulsion) to purchase under ordinary selling conditions.
Compliance with LawsCompliance with Laws. Each Borrower and its Restricted
Subsidiaries and the Cable Systems owned or to be owned by them are in
compliance in all material respects with all applicable federal, state and local
laws, rules and regulations.
COVENANTS
Affirmative CovenantsAffirmative Covenants. Each Borrower agrees with the
Administrative Agent, the Issuer and each Lender that, until all Commitments
have terminated and all monetary Obligations have been paid in full, such
Borrower will perform the obligations set forth in this Section 7.1.
Financial Information, Reports, Notices, etc.Financial Information, Reports,
Notices, etc. The Borrowers will furnish, or will cause to be furnished, to each
Lender, the Issuer and the Administrative Agent copies of the following
financial statements, reports, notices and information:
as soon as available and in any event within 90 days after the end of each of
the first three Fiscal Quarters of each Fiscal Year of the Borrowers, (i) a
consolidated and combined balance sheet of the Borrowers and their Restricted
Subsidiaries and a consolidating (and combined with CTCC, in the case of HVA)
balance sheet of each Borrower and its Restricted Subsidiaries, as of the end of
such Fiscal Quarter, and (ii) a consolidated and combined statement of earnings
and cash flow of the Borrowers and their Restricted Subsidiaries and a
consolidating (and combined with CTCC, in the case of HVA) statement of earnings
and cash flow of each Borrower and its Restricted Subsidiaries, for such Fiscal
Quarter and for the period commencing at the end of the previous Fiscal Year and
ending with the end of such Fiscal Quarter, in each case certified by the chief
financial Authorized Officer of each Borrower;
as soon as available and in any event within 30 days after the end of each
Fiscal Quarter, a subscriber's report of such Borrower as of the end of such
Fiscal Quarter setting forth (i) the number of Basic Subscribers of such
Borrower and its Restricted Subsidiaries, (ii) the number of Premium
Subscriptions of such Borrower and its Restricted Subsidiaries and (iii) the
number of "homes passed" (as such term is commonly understood in the cable
television industry) of such Borrower and its Restricted Subsidiaries;
as soon as available and in any event within 120 days after the end of each
Fiscal Year of the Borrowers, a copy of the annual audit report for such Fiscal
Year for the Borrowers and their Restricted Subsidiaries and for each Borrower
and its Restricted Subsidiaries, including therein a consolidated and combined
balance sheet of the Borrowers and their Restricted Subsidiaries (and a
consolidating (and combined with CTCC, in the case of HVA) balance sheet of each
Borrower and its Restricted Subsidiaries) as of the end of such Fiscal Year and
a consolidated and combined statement of earnings and cash flow of the Borrowers
and their Restricted Subsidiaries (and a consolidating (and combined with CTCC,
in the case of HVA) statement of earnings and cash flow of each Borrower and its
Restricted Subsidiaries) for such Fiscal Year, in each case certified (without
any Impermissible Qualification) in a manner acceptable to the Administrative
Agent and the Required Lenders by Deloitte & Touche LLP or other independent
public accountants reasonably acceptable to the Administrative Agent, together
with a certificate from such accountants certifying that (i) in making the
examination necessary for the signing of such annual report by such accountants,
they have not become aware of any Default that has occurred and is continuing,
or, if they have become aware of such Default, describing such Default and (ii)
such accountants have authorized such Borrower to deliver such financial
statements and opinion thereon to the Administrative Agent, the Issuer and the
Lenders pursuant to this Agreement;
as soon as available and in any event within 90 days after the end of each of
the first three Fiscal Quarters of each Fiscal Year and within 120 days after
the end of the last Fiscal Quarter of each Fiscal Year, a Compliance
Certificate, executed by each chief financial Authorized Officer of the
Borrowers, (i) showing (in reasonable detail and with appropriate calculations
and computations in all respects satisfactory to the Administrative Agent)
compliance with the financial covenants set forth in Section 7.2.4 and (ii)
giving notice of (A) the incurrence of Indebtedness of the types described in
clauses (d), (e) and (g) of Section 7.2.2, (B) any Investments made, as
permitted pursuant to clauses (d) through (f) of Section 7.2.5, (C) any payment
of dividends or distributions, as permitted pursuant to Section 7.2.6, (D) the
occurrence of any liquidations, dissolutions or mergers, as permitted pursuant
to Section 7.2.7, (E) the occurrence of any Permitted Business Acquisition or
Permitted Disposition, (F) notice of any (i) voluntary liquidation or
dissolution by any Subsidiary of Borrowers' into a Borrower or another
Subsidiary of the Borrowers, (ii) merger by any Subsidiary of a Borrower with
and into such Borrower or another Subsidiary of such Borrower, or (iii) the
purchase by a Borrower or any of its Subsidiaries of any partnership interests
or capital stock of such Borrower or any other Subsidiary of such Borrower,
during the preceding Fiscal Quarter, (G) any capital contribution made by
Adelphia or any Affiliate of Adelphia to such Borrower, (H) the sale or
distribution of any limited partnership interest in such Borrower and (I) the
occurrence of any Default or Event of Default;
as soon as possible and in any event within five days after becoming aware of
the occurrence of any Default, a statement of the chief financial Authorized
Officer of any Borrower setting forth details of such Default and the action
which the Borrowers have taken and propose to take with respect thereto;
as soon as possible and in any event within three days after (x) the
occurrence of any adverse development with respect to any litigation, action,
proceeding, or labor controversy described in Section 6.7 or (y) the
commencement of any labor controversy, litigation, action, proceeding of the
type described in Section 6.7, notice thereof and copies of all documentation
relating thereto;
promptly after the sending or filing thereof, copies of all reports and
registration statements which any Borrower or any of its Subsidiaries files with
the Securities and Exchange Commission or any national securities exchange;
promptly and in any event within 10 Business Days following a filing of such
reports with the Securities and Exchange Commission, copies of each of
Adelphia's annual reports on Form 10-K, quarterly reports on Form 10-Q and all
other material filings made by Adelphia with the Securities and Exchange
Commission;
immediately upon becoming aware of the institution of any steps by any
Borrower or any other Person to terminate any Pension Plan, or the failure to
make a required contribution to any Pension Plan if such failure is sufficient
to give rise to a Lien under section 302(f) of ERISA, or the taking of any
action with respect to a Pension Plan which could result in the requirement that
any Borrower furnish a bond or other security to the PBGC or such Pension Plan,
or the occurrence of any event with respect to any Pension Plan which could
result in the incurrence by any Borrower of any material liability, fine or
penalty, or any material increase in the contingent liability of any Borrower
with respect to any post-retirement Welfare Plan benefit, notice thereof and
copies of all documentation relating thereto;
promptly after the occurrence of (i) any lapse or other termination of any FCC
License, permit, Franchise or other authorization issued to any Borrower or any
of their Restricted Subsidiaries by any Official Body or (ii) any refusal by any
Official Body to renew or extend any such FCC License, permit, Franchise or
other authorization, notice thereof;
promptly upon their becoming available to any Borrower, copies of (i) any
periodic or special report filed by such Borrower or any of its Restricted
Subsidiaries with the FCC or any governmental authority succeeding to any of its
functions or with any state or local authority regulating any of their
respective Cable Systems if (A) such report indicates any material changes in
the business, operations, assets, properties or financial condition of such
Borrower and its Subsidiaries, taken as a whole, or (B) a copy thereof is
requested by any Lender and (ii) any notice or other communication from the FCC
or from any state or local authority regulating cable systems which specifically
relates to the operation of any Cable System of any Borrower or any of its
Restricted Subsidiaries, or which relates to matters which, in each case, if
unremedied, could reasonably be expected to have a material adverse effect on
the business, operations, assets, properties or financial condition of such
Borrower and its Subsidiaries, taken as a whole; and
such other information respecting the condition or operations, financial or
otherwise, of any Partner, the Borrowers or any of their Subsidiaries as any
Lender through the Administrative Agent may from time to time reasonably
request.
Compliance with Laws, etc.Compliance with Laws, etc. Each Borrower will, and
will cause each of its Subsidiaries to, comply in all material respects with all
applicable laws, rules, regulations and orders, such compliance to include
(without limitation):
the maintenance and preservation of its partnership, corporate or other
organizational existence, as the case may be, and
qualification as a foreign partnership or corporation, as the case may be;
the maintenance in full force and effect of all material authorizations,
consents, approvals, licenses, exemptions and other actions by, and all
registrations, qualifications, designations and declarations and other filings
with, each Official Body necessary or advisable in connection with the execution
and delivery of the Existing Credit Agreement, this Agreement, the Notes, each
other Loan Document and the ownership and operation of each of its Cable
Systems; and
the payment, before the same become delinquent, of all taxes, assessments and
governmental charges imposed upon it or upon its property except to the extent
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves in accordance with GAAP shall have been set aside on its
books.
Maintenance of PropertiesMaintenance of Properties. Each Borrower will, and
will cause each of its Subsidiaries to, maintain, preserve, protect and keep its
properties in good repair, working order and condition, and make necessary and
proper repairs, renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times unless such Borrower
determines in good faith that the continued maintenance of any of its properties
is no longer economically desirable.
InsuranceInsurance. Each Borrower will, and will cause each of its
Subsidiaries to, maintain insurance (including business interruption insurance)
with insurers having an A.M. Best policyholders rating of not less than A, or
such other insurers as the Administrative Agent may approve in writing, with
respect to their respective properties and business against such casualties and
contingencies and of such types and in such amounts as is customarily maintained
by partnerships or companies, as the case may be, engaged in similar businesses
and will furnish to each Lender within 10 Business Days of the end of each
Fiscal Year a certificate of insurance with respect to all insurance maintained
by or on behalf of such Borrower or any of its Subsidiaries in accordance with
this Section.
Books and RecordsBooks and Records. Each Borrower will, and will cause each of
its Subsidiaries to, keep books and records which accurately reflect all of its
business affairs and transactions and permit the Administrative Agent and each
Lender or any of their respective representatives to visit all of its offices,
to discuss its financial matters with its officers and independent public
accountant (and each Borrower hereby authorizes such independent public
accountant to discuss such Borrower's financial matters with each Lender or its
representatives whether or not any representative of such Borrower is present)
and to examine (and, at the expense of such Borrower, photocopy extracts from)
any of its books or other corporate or partnership records; provided, however,
that each Borrower and its representatives shall be given reasonable prior
notice of, and an opportunity to attend any meeting between such independent
public accountant, the Administrative Agent, such Lender or any of their
respective representatives at which such issues will be discussed. The Borrowers
shall pay any fees of such independent public accountant incurred in connection
with the Administrative Agent's or any Lender's exercise of its rights pursuant
to this Section.
Environmental CovenantEnvironmental Covenant. Each Borrower will, and will
cause each of its Subsidiaries to,
use and operate all of its facilities and properties in material compliance
with all Environmental Laws, keep all necessary permits, approvals,
certificates, licenses and other authorizations relating to environmental
matters in effect and remain in material compliance therewith, and handle all
Hazardous Materials in material compliance with all applicable Environmental
Laws;
immediately notify the Administrative Agent and provide copies upon receipt of
all written claims, complaints, notices or inquiries relating to the condition
of its facilities and properties or compliance with Environmental Laws, and
shall promptly cure and have dismissed with prejudice to the satisfaction of the
complaining authority any actions and proceedings relating to compliance with
Environmental Laws; and
provide such information and certifications which the Administrative Agent may
reasonably request from time to time to evidence compliance with this Section
7.1.6.
Rate ProtectionRate Protection. On or prior to the 90th day following the
Effective Date, HVA will enter into one or more Rate Protection Agreements in
substance reasonably satisfactory to the Administrative Agent which shall
provide for payments of interest by the Borrowers on the Loans outstanding
hereunder at a maximum rate (satisfactory to the Administrative Agent), on an
aggregate notional principal amount equal to at least 50% of the principal
amount of the Loans outstanding on the Effective Date (after the making of the
initial Loans) and which Rate Protection Agreements shall remain in effect at
any time that the Leverage Ratio is greater than (or equal to) 4.75:1 or as
otherwise agreed to by the Administrative Agent. All Rate Protection Agreements
entered into between the Borrowers and any counterparty other than a Lender
shall be unsecured and all Rate Protection Agreements entered into between the
Borrowers and any Swap Party shall be secured, on a pari passu basis, with the
security interests granted by the Borrowers to the Administrative Agent on
behalf of the Lenders pursuant to the Security Agreements.
SubordinationSubordination. Each Borrower will take all action necessary to
ensure that the payment or repayment of the Subordinated Debt is subject to the
terms and conditions of the Subordination Agreements at all times.
Use of ProceedsUse of Proceeds. The proceeds of the Credit Extensions will be
applied as follows:
the proceeds of the Credit Extension made on the Effective Date will be used
by HVA (i) in an amount not to exceed $70,000,000 to satisfy in full the
Indebtedness identified in Item 7.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule attached to the Existing Credit Agreement; and (ii) to pay
fees and expenses incurred in connection with the Existing Credit Agreement and
the transactions contemplated in connection therewith;
the proceeds of up to $39,500,000 of Loans made on the Amendment Effective
Date shall be made to TALP and applied to repay the amounts owing to Olympus in
respect of the Olympus Refinancing;
the proceeds of (i) Loans made subsequent to the Effective Date (other than
those made on the date of the consummation of the Global Acquisition or, in lieu
thereof, the Alternative Acquisition), will be used for the ongoing working
capital and general corporate and partnership purposes, as the case may be, of
the Borrowers and their Restricted Subsidiaries and (ii) the Letters of Credit
will be issued in support of obligations for the payment of goods and services
and in support of financial obligations (including surety, bonding and
performance obligations) arising in the ordinary course of the Borrowers' or
their Restricted Subsidiaries' business; and
the proceeds of Acquisition Loans shall be made to Global and shall be used on
the date of the consummation of the Global Acquisition, or in lieu thereof, to
HVA on the date of the consummation of the Alternative Acquisition, to finance
in whole or in part the purchase price of such Acquisition (provided, that the
aggregate outstanding principal amount of Loans and Letter of Credit Outstanding
will only be permitted to exceed $116,000,000 following the Effective Date if
such amount in excess of $116,000,000 shall initially be made as Acquisition
Loans for the purposes set forth above in this clause (d), it being acknowledged
that once made in accordance with the terms of this Agreement (including this
clause (d)), Acquisition Loans may be borrowed, repaid and reborrowed by any
Borrower, and will otherwise be treated the same as, any other Loans that were
not originally made as Acquisition Loans.
Future SubsidiariesFuture Subsidiaries. Upon any Person becoming, after the
Effective Date, either a direct or indirect Restricted Subsidiary of any
Borrower or upon any Borrower or any Restricted Subsidiary of such Borrower
acquiring additional capital stock of, or partnership, ownership or similar
equity interest in, any other Person or an existing Restricted Subsidiary, such
Borrower or such Subsidiary, as the case may be, shall promptly notify the
Administrative Agent of such event, and, unless otherwise agreed to between the
Borrowers and the Administrative Agent,
such Person (if a Restricted Subsidiary of any Borrower before or after giving
effect to such acquisition) shall become a party to the Subsidiary Guaranty, if
not already a party thereto, in a manner satisfactory to the Administrative
Agent;
such Person (if a Restricted Subsidiary of any Borrower before or after giving
effect to such acquisition) shall become a party to the Obligor Pledge
Agreement, if not already a party thereto, in a manner satisfactory to the
Administrative Agent, and pledge to the Administrative Agent, for its benefit
and that of the Issuer and the Lenders, all of the outstanding shares of such
capital stock of such Person owned or held by it, along with undated stock
powers for such certificates, executed in blank (or, if any such shares of
capital stock are uncertificated, confirmation and evidence satisfactory to the
Administrative Agent that the security interest in such uncertificated
securities has been transferred to and perfected by the Administrative Agent,
for its benefit and that of the Issuer and the Lenders, in accordance with
Section 8-313 and Section 8-321 of the Uniform Commercial Code, as in effect in
the State of New York, or any similar law which may be applicable);
if such Person is a partnership that is (or will be) a Restricted Subsidiary
before (or after giving effect to) such acquisition, the general and limited
partners thereof shall become parties to a security agreement (each such
security agreement being a "Supplemental Partners Security Agreement") whereby
all of such general and limited partners grant a security interest in all of
their partnership interests in such Restricted Subsidiary in favor of the
Administrative Agent, the Supplemental Partners Security Agreement to contain
substantially all the same or analogous terms and conditions set forth in the
Partnership Security Agreement, in each case, if not already a party thereto,
and deliver
acknowledgment copies of properly filed Uniform Commercial Code financing
statements (Form UCC-1), naming such Person becoming a party to the Supplemental
Partners Security Agreement as the debtor and the Administrative Agent as the
secured party, or other similar instruments or documents, filed under the
Uniform Commercial Code of all jurisdictions as may be necessary or, in the
opinion of the Administrative Agent, desirable to perfect the security interest
of the Administrative Agent pursuant to the Supplemental Partners Security
Agreement;
executed copies of proper Uniform Commercial Code Form UCC-3 termination
statements, if any, necessary to release all Liens and other rights of any
Person in any collateral described in the Supplemental Partners Security
Agreement previously granted by such Person becoming a party to the Supplemental
Partners Security Agreement, together with such other Uniform Commercial Code
Form UCC-3 termination statements as the Administrative Agent may reasonably
request from such Person becoming a party to the Supplemental Partners Security
Agreement; and
certified copies of Uniform Commercial Code Requests for Information or Copies
(Form UCC-11), or a similar search report certified by a party acceptable to the
Administrative Agent, dated a date reasonably near to the date of the granting
of such security interest, listing all effective financing statements naming
such Person becoming a party to the Supplemental Partners Security Agreement
(under its present name and any previous names), as the debtor and which are
filed in the jurisdictions in which filings were made pursuant to clause (i)
above, together with copies of such financing statements (none of which (other
than those described in clause (i), if such Form UCC-11 or search report, as the
case may be, is current enough to list such financing statements described in
clause (i)) shall cover any collateral described in the Supplemental Partners
Security Agreement);
such Person, if it is party to a Management Agreement, shall become a party to
the Manager Subordination Agreement, if not already a party thereto, in a manner
satisfactory to the Administrative Agent,
together, in each case, with such opinions, in form and substance satisfactory
to the Administrative Agent, as the Administrative Agent may reasonably require.
No Borrower nor any of their Restricted Subsidiaries shall acquire or otherwise
establish or own any interest in any corporation, partnership, joint venture or
other entity unless all the capital stock, in the case of a corporation, or all
the partnership, ownership or other equity interests, in the case of any
partnership, joint venture or other entity, is owned by the Borrowers or each
such Restricted Subsidiary free and clear of all Liens, as the case may be.
Notwithstanding anything to the foregoing, after the Effective Date, CTCC shall
not acquire additional capital stock of, or partnership, ownership or similar
equity interest in, an existing Restricted Subsidiary.
Acquisition CollateralAcquisition Collateral. On (or no later than two
Business Days following) the date of the making of Acquisition Loans in
connection with the consummation of the Global Acquisition (or, if applicable,
the Alternative Acquisition), the Administrative Agent shall be satisfied that
the Lenders shall have received first priority perfected Liens on all issued and
outstanding equity of Global or, if different, the Restricted Subsidiary that
owns (i) the Assets to be Acquired or (ii) any other personal and material real
property acquired (in the case of the Alternative Acquisition) in accordance
with the terms of Section 7.1.10.
Negative CovenantsNegative Covenants. Each Borrower agrees with the
Administrative Agent, the Issuer and each Lender that, until all Commitments
have terminated and all monetary Obligations have been paid in full, such
Borrower will perform the obligations set forth in this Section 7.2.
Business ActivitiesBusiness Activities. The Borrowers will not, and will not
permit any of their Subsidiaries to, engage in any business activity, except
owning, operating, managing and investing in any Cable Systems and such
activities as may be incidental or related thereto.
IndebtednessIndebtedness. The Borrowers will not, and will not permit any of
their Subsidiaries to, create, incur, assume or suffer to exist or otherwise
become or be liable in respect of any Indebtedness, other than, without
duplication, the following:
Indebtedness in respect of the Credit Extensions and other Obligations;
until the Amendment Effective Date, Indebtedness (if any) identified in
Item 7.2.2(b) ("Indebtedness to be Paid") of the
Disclosure Schedule;
Indebtedness existing as of the Amendment Effective Date which is identified
in Item 7.2.2(c) ("Ongoing Indebtedness") of the Disclosure Schedule;
subject to Sections 7.2.13 and 7.2.14, unsecured Subordinated Debt of the
Borrowers in respect of (i) deferred Management Fees owing to a Manager that has
executed and delivered a Manager Subordination Agreement and (ii) the
Intercompany Subordinated Loan in an aggregate outstanding principal amount not
to exceed $40,000,000 owing to one or more Affiliates of the Borrowers that have
previously executed and delivered to the Administrative Agent the Intercompany
Subordination Agreement;
Indebtedness in an aggregate principal amount not to exceed $15,000,000 for
the Borrowers and their Restricted Subsidiaries at any time outstanding which is
(i) incurred in respect of Capitalized Lease Liabilities or (ii) owing to a
vendor of any assets to finance its acquisition of such assets;
unsecured Indebtedness incurred in the ordinary course of business of the
Borrowers and their Restricted Subsidiaries (including open accounts extended by
suppliers on normal trade terms in connection with purchases of goods and
services, but excluding Indebtedness incurred through the borrowing of money or
Contingent Liabilities);
Indebtedness of any Borrower's Restricted Subsidiaries owing to such Borrower
and unsecured Indebtedness of any Borrower owing to its Restricted Subsidiaries
(but only to the extent that the amount owing by such Borrower to such
Restricted Subsidiaries is subordinated to the Obligations on terms satisfactory
to the Administrative Agent), and which in the case of Indebtedness of any
Restricted Subsidiaries of any Borrower owing to such Borrower, shall not be
forgiven or otherwise discharged for any consideration other than payment Dollar
for Dollar in cash, unless the Administrative Agent otherwise consents; and
unsecured Indebtedness of any Borrower owing to another Borrower, which shall
not be forgiven or otherwise discharged for any consideration other than payment
Dollar for Dollar in cash, unless the Administrative Agent otherwise consents;
provided, however, that no Indebtedness otherwise permitted by clauses (a), (d)
or (g) shall be permitted if, after giving effect to the incurrence thereof, any
Default (including under Section 7.2.4) shall have occurred and be continuing or
would result therefrom, and provided, further, however, no Indebtedness owing by
HVA to CTCC shall be repaid if (x) a Default has occurred and is continuing or
would occur after giving effect to such payment, (y) the Leverage Ratio is
greater than 4.75:1.00 for each of the two Fiscal Quarters ending immediately
prior to the date of determination for which Compliance Certificates were
delivered and after giving effect to such payment or (z) after giving effect to
such repayment, the Adelphia Aggregate Capital Contribution amount is not
greater than $1.00.
LiensLiens. The Borrowers will not, and will not permit any of their
Subsidiaries to, create, incur, assume or suffer to exist any Lien upon any of
its property, revenues or assets, whether now owned or hereafter acquired,
except:
Liens securing payment of the Obligations, granted pursuant to any Loan
Document;
Liens securing payment of Indebtedness of the type permitted and described in
clause (b) of Section 7.2.2;
Liens granted prior to the Effective Date to secure payment of Indebtedness of
the type permitted and described in clause (c) of Section 7.2.2;
Liens granted to secure payment of Indebtedness of the type permitted and
described in clause (e) of Section 7.2.2 and covering only those assets acquired
with the proceeds of such Indebtedness;
Liens for taxes, assessments or other governmental charges or levies not at
the time delinquent or thereafter payable without penalty or being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books;
Liens of carriers, warehousemen, mechanics, materialmen and landlords incurred
in the ordinary course of business for sums not overdue or being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on its books;
Liens incurred in the ordinary course of business in connection with workmen's
compensation, unemployment insurance, other forms of governmental insurance or
benefits, or to secure performance of tenders, statutory obligations, leases and
contracts (other than for borrowed money) entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds;
judgment Liens in existence less than 15 days after the entry thereof or with
respect to which execution has been stayed or the payment of which is covered in
full (subject to a customary deductible) by insurance maintained with
responsible insurance companies; and
Liens of utilities incurred in the ordinary course of business on cables and
other property affixed to transmission poles pursuant to Pole Agreements.
Financial ConditionFinancial Condition. The Borrowers agree as follows:
Leverage Ratio. The Borrowers will not permit the Leverage 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:
Prior to the Global Acquisition or,
if applicable, the Alternative
Acquisition, or if the Global
Acquisition or the
Alternative Acquisition is not Completed on or prior to September
30, 1996:
--------------------------------------------
Period Ratio
- ------ -----
Effective Date through (and including) 03/31/97 6.25:1
04/01/97 through (and including) 09/30/97 6.00:1
10/01/97 through (and including) 03/31/98 5.75:1
04/01/98 through (and including 09/30/98 5.50:1
10/01/98 through (and including) 03/31/99 5.25:1
04/01/99 through (and including) 09/30/99 5.00:1
10/01/99 through (and including) 03/31/00 4.75:1
04/01/00 through (and including) 09/30/00 4.50:1
Each Fiscal Quarter thereafter 4.00:1
If the Global Acquisition
or the Alternative Acquisition
is Completed:
Fiscal Quarters(Q) Ratio
following
Global Acquisition
or the Alternative
Acquisition
Acquisition Date-Q2 6.50:1
Q3-Q4 6.25:1
Q5-Q6 6.00:1
Q7-Q8 5.75:1
Q9-Q10 5.50:1
Q11-Q12 5.25:1
Q13-Q14 5.00:1
Q15-Q16 4.75:1
Q17-Q18 4.50:1
thereafter 4.00:1
Interest Coverage. The Borrowers will not permit the ratio of the Operating
Cash Flow to the Interest Expense for any Fiscal Quarter (tested as of the end
of such Fiscal Quarter) to be less than 1.75:1.00 during the period commencing
on the Effective Date through (and including) September 30, 1996 or less than
2:00:1 any time thereafter.
Debt Service Coverage. The Borrowers will not permit the ratio of the
Annualized Operating Cash Flow to the Pro-Forma Debt Service as of the end of
any Fiscal Quarter (tested as of the end of each Fiscal Quarter) to be less than
1.05:1.00; provided, however, that so long as the Leverage Ratio is less than
3.00:1.0, such ratio shall be calculated by adding 50% of the Excess Cash
Balance on the last day of such Fiscal Quarter to Annualized Operating Cash Flow
and such ratio will increase to 1.15:1.0.
Fixed Charges Coverage. The Borrowers will not permit the ratio of the
Annualized Operating Cash Flow to the Total Fixed Charges for any Fiscal Quarter
(tested as of the end of such Fiscal Quarter) to be less than 1.00:1.00.
InvestmentsInvestments. The Borrowers will not, and will not permit any of
their Subsidiaries to, make, incur, assume or suffer to exist any Investment in
any other Person, except:
Investments existing on the Amendment Effective Date and identified in Item
7.2.5(a) ("Ongoing Investments") of the Disclosure Schedule;
Cash Equivalent Investments;
without duplication, Investments permitted as Indebtedness pursuant to
Section 7.2.2;
without duplication, Permitted Business Acquisitions made by the Borrowers or
any of their Restricted Subsidiaries in an aggregate annual amount not to exceed
at any time $1,000,000 during any Fiscal Year;
without duplication, and subject to the satisfaction of the conditions
precedent set forth in Section 5.2 and Section 5.3, the Global Acquisition or,
in lieu thereof, the Alternative Acquisition, as applicable; provided, however,
that in no event shall the aggregate amount of consideration paid in connection
with either the Global Acquisition or, in lieu of the Global Acquisition, the
Alternative Acquisition, exceed $84,000,000; and
Investments made by the Borrowers with the proceeds of Capital Contributions
in Unrestricted Subsidiaries in an aggregate amount at any time not to exceed
$25,000,000 over the term of this Agreement; provided, that such Investments
shall only be permitted if (x) the Leverage Ratio was less than 4.75:1.00 for
the Fiscal Quarter immediately preceding the date of the making of such
Investment, and such Leverage Ratio shall continue to be, on a pro forma basis
immediately after giving effect to such Investment, less than 4.75:1.00 or (y)
after giving effect to the making of such Investment, the Adelphia Aggregate
Capital Contribution Amount is greater than $1.00;
provided, however, that
any Investment which when made complies with the requirements of the
definition of the term "Cash Equivalent Investment" may continue to be held (but
not renewed) notwithstanding that such Investment if made thereafter would not
comply with such requirements; and
no Investment otherwise permitted by clauses (d) through (f) shall be
permitted to be made if, immediately before or after giving effect thereto, any
Default (including under Section 7.2.4) shall have occurred and be continuing or
would result therefrom.
Restricted Payments, etc.Restricted Payments, etc. On and at all times after
the Effective Date:
subject to the proviso set forth below, the Borrowers will not and will not
permit any Subsidiary of any Borrower to declare, pay or make any dividend or
distribution (in cash, property or obligations) on any general or limited
partnership interests or shares of capital stock (now or hereafter outstanding)
in any Borrower or a Subsidiary of any Borrower, or apply, or permit any of
their Subsidiaries to apply, any of its funds, property or assets to the
purchase, redemption, sinking fund or other acquisition or retirement of any
capital stock or any general or limited partnership or similar interests or
shares of capital stock in any Borrower or a Subsidiary of any Borrower, as the
case may be; and
the Borrowers will not, and will not permit any of their Subsidiaries to, make
any deposit for any of the foregoing purposes;
provided, however, that the Borrowers or any of their Subsidiaries may declare
and make restricted payments of the type described in clause (a) above to
Adelphia, any partner of any Borrower or any Affiliate of Adelphia if (x) (i) no
Default exists immediately before and after giving effect to the making of such
restricted payment and (ii) the Leverage Ratio has been less than 4.75:1.00 for
the Fiscal Quarter immediately preceding the date of such restricted payment,
and shall continue to be less than 4.75:1.00 on a pro forma basis after giving
effect thereto, (y) (i) no Default exists immediately before and after giving
effect to the making of such restricted payment and (ii) after giving effect
thereto, the Adelphia Aggregate Capital Contribution Amount is greater than
$1.00 or (z) such payment does not exceed $40,000,000 and is distributed by TALP
in accordance with the Olympus Refinancing. On or prior to the date of making of
any restricted payment pursuant to the preceding proviso, the Borrowers shall
identify to the Administrative Agent the amount of each such restricted payment
and whether each such restricted payment is made pursuant to this Section.
Consolidation, Merger, etc.Consolidation, Merger, etc. The Borrowers will not,
and will not permit any of their Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any Person, or purchase or otherwise
acquire all or substantially all of the assets of any Person (or of any division
thereof) except
any Restricted Subsidiary of a Borrower may liquidate or dissolve voluntarily
into, and may merge with and into, such Borrower or any other Restricted
Subsidiary (other than CTCC) of such Borrower, and the assets or stock of any
Restricted Subsidiary of a Borrower may be purchased or otherwise acquired by
such Borrower or any other Restricted Subsidiary (other than CTCC) of such
Borrower; provided, however, no Restricted Subsidiary of any Borrower (the
"subject Subsidiary") may enter into any of the foregoing transactions with any
other Restricted Subsidiary of such Borrower (the "other Subsidiary") unless the
capital stock or general or limited partnership interests (as the case may be)
of the other Subsidiary that is owned, either directly or indirectly, by such
Borrower is at least as great as the capital stock or general or limited
partnership interests (as the case may be) of the subject Subsidiary that is
owned, either directly or indirectly, by such Borrower immediately prior to the
consummation of any such transaction; and
Permitted Business Acquisitions, as permitted (without duplication) by clauses
(d) or (e) of Section 7.2.5.
Asset Dispositions, etc.Asset Dispositions, etc. The Borrowers will not, and
will not permit any of their Subsidiaries to, sell, transfer, lease, contribute,
convey or otherwise dispose of, or grant options, warrants or other rights with
respect to (collectively referred to as an "Asset Sale"), all or any part of
their respective assets (including accounts receivable and capital stock of its
Restricted Subsidiaries, FCC Licenses or Franchises) to any Person, unless such
Asset Sale is a Permitted Disposition or is permitted by Section 7.2.7;
provided, that notwithstanding the foregoing, in no event shall any Borrower or
any Restricted Subsidiary sell, transfer, lease, contribute, convey or otherwise
dispose of any Franchise or FCC License to an Unrestricted Subsidiary.
Modification of Certain AgreementsModification of Certain Agreements. The
Borrowers will not consent, and will not permit any of their Subsidiaries to
consent, to any amendment, supplement or other modification of any of the terms
or provisions contained in, or applicable to,
(a) any Management Agreement, any Organic Documents of
such Borrower or of any Restricted Subsidiary of such
Borrower, any Subordination Agreements or any Rate Protection Agreement if the
effect of such consent, supplement or modification is to impair or is in any
manner adverse to, the rights or interests of any Lender under this Agreement or
any Loan Document, without the prior written consent of the Administrative Agent
and the Required Lenders; or
(b) the Purchase Agreement or any agreement or instrument
delivered in connection therewith unless consented to
by the Administrative Agent.
Transactions with AffiliatesTransactions with Affiliates. Except for the
Subordinated Debt payable in accordance with the terms of the Subordination
Agreements, the Borrowers will not, and will not permit any of their
Subsidiaries to, enter into, or cause, suffer or permit to exist any arrangement
or contract with any of their other Affiliates unless such arrangement or
contract is fair and equitable to such Borrower or such Subsidiary and is an
arrangement or contract of the kind which would be entered into by a prudent
Person in the position of such Borrower or such Subsidiary with a Person which
is not one of its Affiliates; provided, however, the Management Agreements and
Management Fees accrued or paid in accordance with Section 7.2.12 or Section
7.2.13 shall not violate this Section.
Negative Pledges, Restrictive Agreements, etc.Negative Pledges, Restrictive
Agreements, etc. The Borrowers will not, and will not permit any of their
Subsidiaries to, enter into any agreement (excluding this Agreement, any other
Loan Document and any agreement governing any Indebtedness permitted either by
clause (b) of Section 7.2.2 as in effect on the Effective Date or by clause
(e)(ii) of Section 7.2.2 as to the assets financed with the proceeds of such
Indebtedness) prohibiting
the creation or assumption of any Lien upon its properties, revenues or
assets, whether now owned or hereafter acquired, or the ability of any Borrower
or any other Obligor to amend or otherwise modify this Agreement or any other
Loan Document; 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 such Restricted Subsidiary to
make any payment, directly or indirectly, to any Borrower.
Management FeesManagement Fees. The Borrowers will not permit the Management
Fees (including any interest thereon) payable by the Borrowers or any of their
Restricted Subsidiaries to accrue at a rate such that, during any Fiscal Quarter
of the Borrowers, the total amount of such accrued fees exceeds 5.0% of the
gross revenues of the Borrowers and their Restricted Subsidiaries for the
immediately preceding Fiscal Quarter.
Payment of Management Fees.Payment of Management Fees. The Borrowers will not,
and will not permit their Restricted Subsidiaries to, pay any Management Fees in
excess of 5% of the gross revenues of the Borrowers and their Restricted
Subsidiaries for the immediately preceding Fiscal Quarter. In addition, and
without limiting the foregoing, the Borrowers will not, and will not permit any
of their Restricted Subsidiaries to, make any payments of
the Management Fees of the Borrowers or any of their Subsidiaries that have
accrued prior to or during the Fiscal Quarter immediately last ended for which a
Compliance Certificate was delivered, except to the extent that
the Leverage Ratio is less than 4.75:1.00 for the Fiscal Quarter ending
immediately prior to the date of determination and for which a Compliance
Certificate was delivered and after giving effect thereto; or
after giving effect thereto, the Adelphia Aggregate Capital Contribution
Amount is greater than $1.00; and
the Management Fees of the Borrowers or any of their Subsidiaries that have
accrued since the date of the last payment of such Management Fees if a Default
shall have occurred and is continuing, except to the extent that, after giving
effect to the payment of such Management Fees, the Adelphia Aggregate Capital
Contribution Amount is greater than $1.00.
Notwithstanding anything to the contrary set forth above, the payment of any
Management Fees of the Borrowers or any of their Subsidiaries otherwise
permitted under clause (a) above shall not be made unless
the Borrowers are in compliance with the provisions of clauses (a) and (c) of
Section 7.1.1;
the Administrative Agent shall have received a Compliance Certificate
demonstrating compliance with all of the financial covenants set forth in
Section 7.2.4 for the most recently ended Fiscal Quarter for which a Compliance
Certificate was delivered and pro forma compliance with the ratio of the
Operating Cash Flow to the Total Fixed Charges described in clauses (a) and (b)
above; and
no Default exists and is continuing immediately before and after giving effect
thereto.
Payment of Intercompany Subordinated LoansPayment of Intercompany Subordinated
Loans. The Borrowers will not permit interest to accrue on any Intercompany
Subordinated Loan at a rate per annum in excess of 10.5%. In addition, the
Borrowers will not make any payment of principal of or accrued interest on any
Intercompany Subordinated Loan unless
(a) in the case of payments of interest, (i) no Default
exists immediately before and after giving effect
thereto and (ii) the Leverage Ratio has been less than 4.75:1.00 for the Fiscal
Quarter immediately preceding the date that such payment of accrued interest on
such Intercompany Subordinated Loan is made, and the Leverage Ratio shall
continue to be less than 4.75:1.00 on a pro forma basis after giving effect to
such payment; or
(b) in the case of payments of both principal and interest,
(i) no Default exists immediately before or after
giving effect to such payment of principal of or accrued interest on such
Intercompany Subordinated Loan, and (ii) after giving effect to such payment,
the Adelphia Aggregate Capital Contribution Amount is greater than $1.00.
Stock, etc. of SubsidiariesStock, etc. of Subsidiaries. No Borrower will
permit any of its Restricted Subsidiaries to issue any capital stock or sell or
issue any general or limited partnership interests (whether for value or
otherwise) after the Effective Date to any Person other than such Borrower or
another wholly-owned Restricted Subsidiary of such Borrower.
EVENTS OF DEFAULT
Listing of Events of DefaultListing of Events of Default. Each of the
following events or occurrences described in this Section 8.1 shall constitute
an "Event of Default".
Non-Payment of ObligationsNon-Payment of Obligations. Any Borrower shall
default
<PAGE>
- --------------------------------------------------------------------------------
in the payment or prepayment when due of any principal on any Loan;
- --------------------------------------------------------------------------------
in the payment when due of any fees (including commitment fees) and interest
and such default shall continue unremedied for a period of three days; and
in the payment when due of any other Obligation and such default shall
continue unremedied for a period of five days.
Breach of WarrantyBreach of Warranty. Any representation or warranty of any
Borrower or any other Obligor made or deemed to be made hereunder or any other
Loan Document executed by it or any other writing or certificate furnished by or
on behalf of such Borrower or any other Obligor, the Partners or any Manager to
the Administrative Agent, the Issuer or any Lender for the purposes of or in
connection with this Agreement or any such other Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when made
in any material respect.
Non-Performance of Certain Covenants and ObligationsNon-Performance of Certain
Covenants and Obligations. Any Borrower shall default in the due performance and
observance of any of its obligations under Sections 7.1.1, 7.1.7, 7.1.9 or
Section 7.2.
Non-Performance of Other Covenants and ObligationsNon-Performance of Other
Covenants and Obligations. Any Obligor shall default in the due performance and
observance of any other agreement contained herein or in any other Loan Document
executed by it, and such default shall continue unremedied for a period of 30
days after notice thereof shall have been given to any Borrower by the
Administrative Agent or any Lender.
Default on Other IndebtednessDefault on Other Indebtedness. A default shall
occur in the payment when due (subject to any applicable grace period), whether
by acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of any Borrower or any of their Subsidiaries or any
other Obligor having a principal amount, individually or in the aggregate, in
excess of $7,500,000, or a default shall occur in the performance or observance
of any obligation or condition with respect to such Indebtedness if the effect
of such default is to accelerate the maturity of any such Indebtedness or such
default shall continue unremedied for any applicable period of time sufficient
to permit the holder or holders of such Indebtedness, or any trustee or agent
for such holders, to cause such Indebtedness to become due and payable prior to
its expressed maturity; provided, however, if such other default shall be cured
such that the holder or holders of such Indebtedness, or trustee or agent for
such holders shall no longer have the right to accelerate such Indebtedness, no
Event of Default of the type described in this Section shall exist hereunder.
JudgmentsJudgments. Any judgment or order for the payment of money in excess
of $1,000,000 shall be rendered against any Borrower or any of their
Subsidiaries or any other Obligor and either
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order; or
there shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
Pension PlansPension Plans. Any of the following events shall occur with
respect to any Pension Plan
the institution of any steps by any Borrower, any member of its Controlled
Group or any other Person to terminate a Pension Plan if, as a result of such
termination, any Borrower or any such member could be required to make a
contribution to such Pension Plan, or could reasonably expect to incur a
liability or obligation to such Pension Plan, in excess of $500,000; or
a contribution failure occurs with respect to any Pension Plan sufficient to
give rise to a Lien under section 302(f) of ERISA.
Change in ControlChange in Control. Any Change in Control shall occur.
Bankruptcy, Insolvency, etc.Bankruptcy, Insolvency, etc. Any Partner, any
Manager, any Borrower or any of their respective
Subsidiaries or any other Obligor shall
become insolvent or generally fail to pay, or admit in writing its inability
or unwillingness to pay, debts as they become due;
apply for, consent to, or acquiesce in, the appointment of a trustee,
receiver, sequestrator or other custodian for such Partner, such Manager, such
Borrower or any of their respective Subsidiaries or any other Obligor or any
property of any thereof, or make a general assignment for the benefit of
creditors;
in the absence of such application, consent or acquiescence, permit or suffer
to exist the appointment of a trustee, receiver, sequestrator or other custodian
for such Partner, such Manager, such Borrower or any of their respective
Subsidiaries or any other Obligor or for a substantial part of the property of
any thereof, and such trustee, receiver, sequestrator or other custodian shall
not be discharged within 60 days; provided, however, that each Partner, each
Manager, each Borrower and each of their respective Subsidiaries and each other
Obligor hereby expressly authorize the Administrative Agent and each Lender to
appear in any court conducting any relevant proceeding during such 60-day period
to preserve, protect and defend their rights under this Agreement and each other
Loan Document;
permit or suffer to exist the commencement of any bankruptcy, reorganization,
debt arrangement or other case or proceeding under any bankruptcy or insolvency
law, or any dissolution, winding up or liquidation proceeding, in respect of
such Partner, such Manager, such Borrower or any of their respective
Subsidiaries or any other Obligor, and, if any such case or proceeding is not
commenced by any such Partner, such Manager, such Borrower or any such
Subsidiary or such other Obligor, such case or proceeding shall be consented to
or acquiesced in by any such Partner, such Manager, such Borrower or any such
Subsidiary or such other Obligor or shall result in the entry of an order for
relief or shall remain for 60 days undismissed; provided, however, that each
Partner, each Manager, each Borrower and their respective Subsidiaries and each
other Obligor hereby expressly authorize the Administrative Agent and each
Lender to appear in any court conducting any such case or proceeding during such
60-day period to preserve, protect and defend their rights under this Agreement
and each other Loan Document; or be subject to an entry for an order of relief
in any bankruptcy or insolvency proceeding in respect of such Partner, such
Manager, such Borrower or any of their respective Subsidiaries or any other
Obligor; or
take any action authorizing, or in furtherance of, any of the foregoing.
Impairment of Security, etc.Impairment of Security, etc. Any Loan Document, or
any Lien granted thereunder, shall (except in accordance with its terms), in
whole or in part, terminate, cease to be effective or enforceable or cease to be
the legally valid, binding and enforceable obligation of any Obligor party
thereto; any Borrower, any other Obligor or any other party shall, directly or
indirectly, contest in any manner such effectiveness, validity, binding nature
or enforceability; or any Lien securing any Obligation shall, in whole or in
part, cease to be a perfected first priority Lien; any Lien securing any
Obligation shall, in whole or in part, cease to be a perfected first priority
Lien; or the payment or repayment of the Subordinated Debt (or any other
obligation or liability under either Subordination Agreement) shall fail to be
subject to the terms and conditions of the Subordination Agreements or fail to
constitute "Subordinated Debt" under the Subordination Agreements, or either
Subordination Agreement shall cease to be in full force and effect.
Default Under Any Partnership AgreementDefault Under Any Partnership
Agreement. A default under any partnership agreement of any Obligor shall occur.
Termination of Any Management AgreementTermination of Any Management
Agreement. Any Management Agreement shall terminate in whole or in part or
otherwise be of no further force or effect or there shall have occurred a
modification, amendment to, or waiver of, any Management Agreement which the
Administrative Agent determines to be material (except for such modifications,
amendments or waivers consented to by the Required Lenders).
Failure to Obtain or Cessation of Authorization, etc.Failure to Obtain or
Cessation of Authorization, etc. Any authorization, consent, approval, license,
exemption, registration, qualification, designation, declaration, filing or
other action or undertaking now or hereafter made by or with any Official Body
in connection with this Agreement (other than matters referred to in Section
8.1.14 hereof), the Notes or the other Loan Documents or any such action or
undertaking now or hereafter necessary or advisable to make this Agreement, the
Notes or the other Loan Documents legal, valid and enforceable in accordance
with their respective terms is not obtained or shall have ceased to be in full
force and effect or shall have been modified or amended or shall have been held
to be illegal or invalid.
Cancellation of Any Franchise AgreementCancellation of Any Franchise
Agreement. Any Franchise, Franchise Agreement or any other license, permit,
lease, easement, conduit occupancy right, pole attachment, use, access or rental
agreement, certificate, consent, approval, authorization or agreement
(collectively, for purposes of this Section 8.1.14, the "Approvals") granted by
the FCC or by any other Official Body with jurisdiction over any Cable System or
by any public utility or third party lessors, whether presently existing or
hereafter granted to or obtained by any Borrower, any Partner, any Manager or
any of their respective Subsidiaries, the cancellation or termination of which
could reasonably be expected to have a material adverse effect on the financial
condition, assets, properties or business of any Borrower and its Subsidiaries,
taken as a whole, or the continued operation of any of their respective Cable
Systems, shall expire without renewal or shall be suspended or revoked, and
shall not be replaced, or any Borrower, any Partner, any Manager or any of their
respective Subsidiaries shall become subject to any injunction or other order
with respect to its respective Franchise or Franchise Agreement or the Approvals
which could reasonably be expected to have a material adverse effect (in the
sole judgment of the Required Lenders) on the financial condition, assets,
properties, business of any Borrower and its Subsidiaries, taken as a whole.
Action if BankruptcyAction if Bankruptcy. If any Event of Default described in
clauses (a) through (e) of Section 8.1.9 shall occur with respect to any
Borrower or any of its Subsidiaries, any Partner, any Manager or any other
Obligor, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations shall automatically be and become immediately due and payable,
without notice or demand.
Action if Other Event of DefaultAction if Other Event of Default. If any Event
of Default (other than any Event of Default described in clauses (a) through (e)
of Section 8.1.9 with respect to any Borrower or any of its Subsidiaries, any
Partner, any Manager or any other Obligor) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of the Required Lenders, shall by notice to the Borrowers declare all
or any portion of the outstanding principal amount of the Loans and other
Obligations to be due and payable and/or the Commitments (if not theretofore
terminated) to be terminated, whereupon the full unpaid amount of such Loans and
other Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, the Commitments shall terminate.
THE AGENTS
ActionsActions. Each Lender and Issuer hereby appoints Scotiabank as its agent
under and for purposes of this Agreement, the Notes each other Loan Document.
Each Lender and Issuer authorizes the Administrative Agent to act on behalf of
such Person under this Agreement, the Notes and each other Loan Document and, in
the absence of other written instructions from the Required Lenders received
from time to time by the Administrative Agent (with respect to which the
Administrative Agent agrees that it will comply, except as otherwise provided in
this Section or as otherwise advised by counsel), to exercise such powers
hereunder and thereunder as are specifically delegated to or required of the
Administrative Agent by the terms hereof and thereof, together with such powers
as may be reasonably incidental thereto. Each Lender and Issuer hereby
indemnifies (which indemnity shall survive any termination of this Agreement and
shall not limit any Borrower's or any other Obligor's obligations under Section
10.4) the Administrative Agent, pro rata according to such Lender's Percentage,
from and against any and all liabilities, obligations, losses, damages, claims,
costs or expenses of any kind or nature whatsoever which may at any time be
imposed on, incurred by, or asserted against, the Administrative Agent in any
way relating to or arising out of this Agreement, the Notes or any other Loan
Document, including reasonable attorneys' fees, and as to which the
Administrative Agent is not reimbursed by the Borrowers or an Obligor; provided,
however, that no Lender or Issuer shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, claims, costs or expenses
which are determined by a court of competent jurisdiction in a final proceeding
to have resulted solely from the Administrative Agent's gross negligence or
wilful misconduct. The Administrative Agent shall not be required to take any
action hereunder, under the Notes or under any other Loan Document or to
prosecute or defend any suit in respect of this Agreement, the Notes or any
other Loan Document, unless it is indemnified hereunder to its satisfaction. If
any indemnity in favor of the Administrative Agent shall be or become, in the
Administrative Agent's determination, inadequate, the Administrative Agent may
call for additional indemnification from the Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is given.
Funding Reliance, etc.Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York City time, on the day prior to a Borrowing that such Lender
will not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent and,
in reliance upon such assumption, make available to the applicable Borrower a
corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Administrative Agent, such Lender and each Borrower
severally agree to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to any Borrower to the date
such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing.
ExculpationExculpation. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by it under this Agreement or any other Loan
Document, or in connection herewith or therewith, except for its own wilful
misconduct or gross negligence, nor responsible for any recitals or warranties
herein or therein, nor for the effectiveness, enforceability, validity or due
execution of this Agreement or any other Loan Document, nor for the creation,
perfection or priority of any Liens purported to be created by any of the Loan
Documents, or the validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, nor to make any inquiry respecting the
performance by any Borrower of its obligations hereunder or under any other Loan
Document. Any such inquiry which may be made by the Administrative Agent shall
not obligate it to make any further inquiry or to take any action. The
Administrative Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement or writing
which the Administrative Agent believes to be genuine and to have been presented
by a proper Person.
ResignationsResignations. The Syndication Agent and the Documentation Agent
may resign at any time upon notice to the Administrative Agent. The
Administrative Agent may resign as such at any time upon at least 30 days' prior
notice to the Borrowers and all Lenders. If the Administrative Agent at any time
shall resign, the Required Lenders may appoint another Lender as a successor
Administrative Agent which, if consented to by the Borrowers (such consent not
to be unreasonably withheld), shall thereupon become the Administrative Agent
hereunder (provided, that the failure of the Borrowers to approve a successor
Administrative Agent shall not preclude or otherwise prohibit the Administrative
Agent from resigning in accordance with the preceding sentence). If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which shall be one of the Lenders or a commercial banking
institution organized under the laws of the U.S. (or any State thereof) or a
U.S. branch or agency of a commercial banking institution, and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall be entitled to receive from the
retiring Administrative Agent such documents of transfer and assignment as such
successor Administrative Agent may reasonably request, and shall thereupon
succeed to and become vested with all rights, powers, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement. After any
retiring Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of
this Article IX shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Administrative Agent under this Agreement;
and
Section 10.3 and Section 10.4 shall continue to inure to its benefit.
Loans by Managing AgentsLoans by Managing Agents. Each Managing Agent shall
have the same rights and powers with respect to (x) the Loans made by it or any
of its Affiliates, and (y) the Notes held by it or any of its Affiliates as any
other Lender and may exercise the same as if it were not the Administrative
Agent, the Syndication Agent or the Documentation Agent hereunder, as the case
may be. Each Managing Agent and its respective Affiliates may accept deposits
from, lend money to, and generally engage in any kind of business with any
Borrower or any Subsidiary or Affiliate of any Borrower as if such Person were
not the Administrative Agent, the Syndication Agent or the Documentation Agent
hereunder, as the case may be.
Credit DecisionsCredit Decisions. Each Lender acknowledges that it has,
independently of each Managing Agent and each other Lender, and based on such
Lender's review of the financial information of the Borrowers, this Agreement
and the other Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitment. Each Lender also acknowledges that it will,
independently of each Managing Agent and each other Lender, and based on such
other documents, information and investigations as it shall deem appropriate at
any time, continue to make its own credit decisions as to exercising or not
exercising from time to time any rights and privileges available to it under
this Agreement or any other Loan Document.
Copies, etc.Copies, etc. The Administrative Agent shall give prompt notice to
each Lender of each notice or request required or permitted to be given to the
Administrative Agent by the Borrowers pursuant to the terms of this Agreement
(unless concurrently delivered to the Lenders by a Borrower). The Administrative
Agent will distribute to each Lender each document or instrument received for
its account and copies of all other communications received by the
Administrative Agent from the Borrowers for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
SECTION 9.8. Limitation on DutiesLimitation on Duties.
Notwithstanding anything else to the contrary contained in this Agreement or any
other Loan Document, neither the Syndication Agent nor the Documentation Agent,
in such capacity, shall have any obligations hereunder or under any other Loan
Document, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against either the Syndication
Agent or the Documentation Agent.
MISCELLANEOUS PROVISIONS
Waivers, Amendments, etc.Waivers, Amendments, etc. The provisions of this
Agreement and each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrowers and the Required Lenders; provided, however, that
no such amendment, modification or waiver which would:
modify this Section 10.1, waive any default in the payment of principal of or
interest on the Loans or fees payable hereunder, modify any requirement
hereunder that any particular action be taken by all the Lenders or by the
Required Lenders or change the definition of "Required Lenders" or "Subordinated
Debt", unless such amendment, modification or waiver shall be consented to by
each Lender;
increase the Commitment Amount or the Percentage of any Lender, extend the
date for or reduce the amount of any reduction in the Commitment Amount from
that required pursuant to clause (a) of Section 2.2.2, reduce any fees described
in Article III, release any collateral security or any Obligor in its capacity
as a guarantor under Section 3.4 or under a Loan Document (including the
Subsidiary Guaranty), except as otherwise specifically provided in the
applicable Loan Document, or extend the Commitment Termination Date, unless such
amendment, modification or waiver shall be consented to by each Lender;
extend the due date for, or reduce the amount of, any scheduled repayment or
prepayment of principal of or interest on any Loan, or fees payable hereunder
(or reduce the principal amount of or rate of interest on any Loan or the amount
of fees otherwise payable hereunder unless consented to by each Lender;
increase the Stated Amount of any Letter of Credit unless consented to by the
Issuer; or
X.63.(jjjjjjj) affect adversely the interests, rights or
obligations of the Administrative Agent qua the
Administrative Agent or the Issuer unless consented to by the Administrative
Agent or the Issuer, as the case may be.
No failure or delay on the part of the Administrative Agent, the Issuer or any
Lender in exercising any power or right under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
the Borrowers in any case shall entitle it to any notice or demand in similar or
other circumstances. No waiver or approval by the Administrative Agent, the
Issuer or any Lender under this Agreement or any other Loan Document shall,
except as may be otherwise stated in such waiver or approval, be applicable to
subsequent transactions. No waiver or approval hereunder shall require any
similar or dissimilar waiver or approval thereafter to be granted hereunder.
NoticesNotices. All notices and other communications provided to any party
hereto under this Agreement or any other Loan Document shall be in writing and
mailed, delivered or transmitted to it, at the address or facsimile number set
forth below its signature hereto or set forth in the Lender Assignment Notice or
at such other address or facsimile number as may be designated by such party in
a notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid or if properly addressed and sent by prepaid courier service,
shall be deemed given when received; any notice, if transmitted by facsimile,
shall be deemed given when transmitted upon receipt of electronic confirmation
of transmission.
Payment of Costs and ExpensesPayment of Costs and Expenses. The Borrowers
agree to pay, in a timely manner, all reasonable out-of-pocket expenses of the
Administrative Agent (including the reasonable fees and out-of-pocket expenses
of counsel to the Administrative Agent and of local counsel, if any, who may be
retained by counsel to the Administrative Agent) in connection with
the negotiation, preparation, execution and delivery of this Agreement and
each other Loan Document including schedules and exhibits, and any amendments or
waivers, consents, supplements or other modifications to this Agreement or any
other Loan Document as may from time to time hereafter be required, whether or
not the transactions contemplated hereby are consummated,
the filing, recording, refiling or rerecording of the Pledge Agreements and
the Security Agreements and/or any Uniform Commercial Code financing statements
relating thereto and all amendments, supplements and modifications to any
thereof and any and all other documents or instruments of further assurance
required to be filed or recorded or refiled or rerecorded by the terms hereof,
of the Pledge Agreements or the Security Agreements, and
the preparation and review of the form of any document or instrument relevant
to this Agreement or any other Loan Document.
The Borrowers further agree to pay and hold harmless the Administrative Agent,
the Issuer and the Lenders from all liabilities for any stamp or other taxes
which may be payable in connection with the execution or delivery of this
Agreement, the Credit Extensions hereunder, or the issuance of the Notes,
Letters of Credit or any other Loan Documents. The Borrowers also agree to
reimburse the Administrative Agent, the Issuer and each Lender, in a timely
manner, for all reasonable out-of-pocket expenses (including attorneys' fees and
legal expenses) incurred by the Administrative Agent, the Issuer or such Lender
in connection with (x) the negotiation with the Borrowers of any restructuring
or "work-out", whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
IndemnificationIndemnification. In consideration of the execution and delivery
of this Agreement by each Lender and the extension of the Commitments, the
Borrowers hereby indemnify, exonerate and hold the Administrative Agent, the
Issuer and each Lender and each of their respective officers, directors,
employees, agents and Affiliates (collectively, the "Indemnified Parties") free
and harmless from and against any and all actions, causes of action, suits,
losses, costs, liabilities and damages, and expenses incurred in connection
therewith (irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought), including reasonable
attorneys' fees and disbursements (collectively, the "Indemnified Liabilities"),
incurred by the Indemnified Parties or any of them as a result of, or arising
out of, or relating to
any transaction financed or to be financed in whole or in part, directly or
indirectly, with the proceeds of any Credit Extension;
the entering into and performance of this Agreement or any other Loan Document
by any of the Indemnified Parties (including any action brought by or on behalf
of any Borrower as the result of any determination by the Required Lenders
pursuant to Article V not to fund any Credit Extension);
any investigation, litigation or proceeding related to any acquisition or
proposed acquisition by any Borrower or any of its Subsidiaries of all or any
portion of the stock or assets of any Person, whether or not the Administrative
Agent, the Issuer or such Lender is party thereto;
any investigation, litigation or proceeding related to any environmental
cleanup, audit, compliance or other matter relating to the protection of the
environment or the Release by any Borrower or any of its Subsidiaries of any
Hazardous Material;
the presence on or under, or the escape, seepage, leakage, spillage,
discharge, emission, discharging or releases from, any real property owned or
operated by any Borrower or any of its Subsidiaries of any Hazardous Material
(including any losses, liabilities, damages, injuries, costs, expenses or claims
asserted or arising under any Environmental Law), regardless of whether caused
by, or within the control of, such Borrower or such Subsidiary; or
any breach of representations and warranties (including the environmental
representations and warranties) set forth in Article VI without regard to such
Borrower's knowledge,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrowers hereby agree to
make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law.
SurvivalSurvival. The obligations of each Borrower under Sections 4.3, 4.4,
4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under Section 9.1,
shall in each case survive any termination of this Agreement, the payment in
full of all Obligations and the termination of all Commitments. The
representations and warranties made by each Borrower, each Obligor and each
General Partner in this Agreement and in each other Loan Document, as the case
may be, shall survive the execution and delivery of this Agreement and each such
other Loan Document.
SeverabilitySeverability. Any provision of this Agreement or any other Loan
Document which is prohibited or unenforceable in any jurisdiction shall, as to
such provision and such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions of
this Agreement or such Loan Document or affecting the validity or enforceability
of such provision in any other jurisdiction.
HeadingsHeadings. The various headings of this Agreement and each other Loan
Document are inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or such other Loan Document or any provisions
hereof or thereof.
Execution in Counterparts, Effectiveness, etc.Execution in Counterparts,
Effectiveness, etc. This Agreement may be executed by the parties hereto in
several counterparts, each of which shall be an original and all of which shall
constitute together but one and the same agreement. This Agreement shall become
effective when counterparts hereof have been executed by the parties hereto and
thereto and copies thereof have been received by the Administrative Agent.
Governing Law; Entire AgreementGoverning Law; Entire Agreement. THIS
AGREEMENT, THE NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
This Agreement, the Notes and each other Loan Document constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersede any prior agreements, written or oral, with respect thereto.
Successors and AssignsSuccessors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
no Borrower may assign or transfer its rights or obligations hereunder without
the prior written consent of the Administrative
Agent and all Lenders; and
the rights of sale, assignment and transfer of the Lenders are subject to
Section 10.11.
Sale and Transfer of Loans and Note; Participations in Loans and NoteSale and
Transfer of Loans and Note; Participations in Loans and Note. Each Lender may
assign, or sell participations in, its Loans, Letters of Credit participations
and Commitment to one or more other Persons in accordance with this Section
10.11.
AssignmentsAssignments. Any Lender, may, after giving notice to the Borrowers,
assign and delegate to one or more commercial banks or other financial
institutions (each such Person to whom such assignment and delegation is to be
made, being hereinafter referred to as an "Assignee Lender"), all or any
fraction of such Lender's total Loans, Letters of Credit Outstandings and
Commitments (which assignment and delegation shall be of a constant, and not a
varying, percentage of all the assigning Lender's Loans, Loan Commitment, Letter
of Credit Commitment and participation in the Letters of Credit issued
hereunder) in a minimum aggregate amount of $5,000,000 (or the then remaining
amount of such Lender's Loans, Letter of Credit Outstandings and Commitments);
provided, however, (i) that in the case of partial assignments of a Lender's
Loans and Commitments after giving effect to any such assignment such Lender
shall have Commitments in an aggregate principal amount of at least $5,000,000,
(ii) any assignment by a Lender to any of its Affiliates shall not be subject to
the terms of this Section 10.11.1 and may be made free and clear of any
restriction, (iii) any such Assignee Lender will comply, if applicable, with the
provisions contained in Section 4.6 and (iv) the Borrowers, each other Obligor
and the Administrative Agent shall be entitled to continue to deal solely and
directly with such Lender in connection with the interests so assigned and
delegated to an Assignee Lender until
written notice of such assignment and delegation, together with payment
instructions, addresses and related information with respect to such Assignee
Lender, shall have been given to the Borrowers and the Administrative Agent by
such Lender and such Assignee Lender;
such Assignee Lender shall have executed and delivered to the Borrowers and
the Administrative Agent a Lender Assignment Notice, accepted by the
Administrative Agent; and
the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Notice, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Notice, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Notice, shall be released from its obligations hereunder and under the other
Loan Documents. Within five Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Notice, the
Borrowers shall execute and deliver to the Administrative Agent (for delivery to
the relevant Assignee Lender) a new Note evidencing such Assignee Lender's
assigned Loans and Commitment and, if the assignor Lender has retained Loans and
a Commitment hereunder, a replacement Note in the principal amount of the Loans
and Commitment retained by the assignor Lender hereunder (such Note to be in
exchange for, but not in payment of, that Note then held by such assignor
Lender). Each such Note shall be dated the date of the predecessor Note. The
assignor Lender shall mark the predecessor Note "exchanged" and deliver it to
HVA. Accrued interest on that part of the predecessor Note evidenced by the new
Note, and accrued fees, shall be paid as provided in the Lender Assignment
Notice. Accrued interest on that part of the predecessor Note evidenced by the
replacement Note shall be paid to the assignor Lender. Accrued interest and
accrued fees shall be paid at the same time or times provided in the predecessor
Note and in this Agreement. Such assignor Lender or such Assignee Lender must
also pay a processing fee to the Administrative Agent upon delivery of any
Lender Assignment Notice in the amount of $3,500. Any attempted assignment and
delegation not made in accordance with this Section 10.11.1 shall be null and
void.
In the event that S&P, Moody's or Thompson's BankWatch (or InsuranceWatch
Ratings Service, in the case of Lenders that are insurance companies (or Best's
Insurance Reports, if such insurance company is not rated by InsuranceWatch
Ratings Service)) shall, after the date that any Person becomes a Lender,
downgrade the long-term certificate of deposit ratings of such Lender, and the
resulting ratings shall be below BBB-, Baa3 and B, respectively (or BB, in the
case of Lender that is an insurance company (or B, in the case of an insurance
company not rated by InsuranceWatch Ratings Service)), then the Issuer shall
have the right, but not the obligation, upon notice to such Lender and the
Administrative Agent, to replace (or to request the Borrowers to use their
reasonable efforts to replace) such Lender with an Assignee Lender in accordance
with and subject to the restrictions contained in this Section, and such Lender
hereby agrees to transfer and assign without recourse (in accordance with and
subject to the restrictions contained in this Section) all its interests, rights
and obligations in respect of its Loans and Commitments under this Agreement to
such Assignee Lender; provided, however, that (i) no such assignment shall
conflict with any law, rule and regulation or order of any governmental
authority and (ii) such Assignee Lender shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest and
fees (if any) accrued to the date of payment on the Loans made by such Lender
hereunder and all other amounts accrued for such Lender's account or owed to it
hereunder.
ParticipationsParticipations. Any Lender may at any time sell to one or more
commercial banks or other Persons (each of such commercial banks and other
Persons being herein called a "Participant") participating interests in any of
the Loans, Loan Commitment, Letter of Credit Commitment and Letter of Credit
Outstandings participated in by it, or other interests of such Lender hereunder;
provided, however, that
no participation contemplated in this Section 10.11 shall relieve such Lender
from its Commitment or its other obligations hereunder or under any other Loan
Document;
such Lender shall remain solely responsible for the performance of its
Commitment and such other obligations;
the Borrowers, each other Obligor 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 each other Loan Document;
no Participant, unless such Participant is an Affiliate of such Lender, or is
itself a Lender, shall be entitled to require such Lender to take or refrain
from taking any action hereunder or under any other Loan Document, except that
such Lender may agree with any Participant that such Lender will not, without
such Participant's consent, take any actions of the type described in clause (b)
or (c) of Section 10.1; and
the Borrowers shall not be required to pay any amount under Section 4.6 that
is greater than the amount which it would have been required to pay had no
participating interest been sold.
The Borrowers acknowledge and agree that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 10.3 and 10.4, shall be considered a
Lender.
<PAGE>
- -------------------------------------------------------------------------------
Other TransactionsOther Transactions. Nothing contained herein shall preclude
the Administrative Agent, the Issuer or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with any Borrower or any of its Affiliates in which such Borrower
or such Affiliate is not restricted hereby from engaging with any other Person.
- -------------------------------------------------------------------------------
Limited RecourseLimited Recourse. Notwithstanding any contrary provision of
this Agreement or any other Loan Document, no recourse shall be had for the
payment of the principal of or interest or premium, if any, on the Notes or for
any claim based thereon against (i) any Partner or any of their respective legal
representatives, heirs, estates, permitted successors or assigns or (ii) any
corporation, partnership (or any general or limited partner thereof) or
individual to which the collateral securing the payment of the Obligations shall
have been transferred with the prior written consent of each Lender, except to
the extent such consent is not required pursuant to this Agreement or any other
Loan Document. It is understood that the Notes and all Obligations may not be
enforced against any of the Persons described in clause (i) or (ii); provided,
however, that this Section 10.13 shall not (A) prevent or restrict recourse to
the collateral securing the payment of the Obligations or constitute a waiver,
release or discharge of any Indebtedness or Obligations, but such Indebtedness
shall remain outstanding until paid or discharged; (B) limit any rights, claims
for damages or recourse of the Lenders, the Administrative Agent, the Issuer or
their respective transferees or assigns as a result of (x) any knowing or wilful
breach by such Person of any representation or warranty of such Person made
under or pursuant to this Agreement or any other Loan Document or (y) any
knowing or wilful breach of covenant or other obligation by such Person under
this Agreement, or any other Loan Document; or (C) limit the right of any Person
to name any Borrower, any Obligor or any transferee of any interest in the
collateral securing the payment of the Obligations as a party defendant in any
action or suit for a judicial sale or in the exercise of any other remedy under
the Notes, this Agreement or any other Loan Document, so long as no judgment in
the nature of a deficiency judgment shall be asked for, taken or enforced
against any Person referred to in clauses (i) and (ii). Notwithstanding the
foregoing, nothing herein shall be construed to constitute a waiver by the
Administrative Agent, the Issuer or the Lenders of any rights to damages, other
monetary relief, injunctive relief or any other remedy at law or equity against
any Borrower, any Obligor or any Partner by reason of fraud, knowing or wilful
breach of representations and warranties, wilful tortious acts or omissions,
gross negligence or criminal acts. This Section 10.13 is not intended to and
shall not impair or limit the Administrative Agent's, the Issuer's or any
Lender's ability to realize on the collateral securing the payment of the
Obligations or on any other assets of any Borrower or any Obligor.
Global Not a Borrower Until Consummation of Global Acquisition.Global Not a
Borrower Until Consummation of Global Acquisition. Notwithstanding anything to
the contrary set forth in this Agreement or any Loan Document, Global is
executing and delivering this Agreement on the Amendment Effective Date in
anticipation of becoming a Borrower on the date of the consummation of the
Global Acquisition. In furtherance of the foregoing, the provisions of this
Agreement and the Loan Documents will not be binding on or relate to Global as a
Borrower until the date of the consummation of the Global Acquisition and the
making of the initial Loans to Global pursuant to Sections 5.2.2 and 5.3.
Forum Selection and Consent to JurisdictionForum Selection and Consent to
Jurisdiction. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE ADMINISTRATIVE AGENT, THE ISSUER, THE LENDERS, THE BORROWERS, OR ANY PARTNER
OR ANY OTHER OBLIGOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT
AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE
AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. THE BORROWERS AND THE PARTNERS HEREBY EXPRESSLY AND
IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREE
TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION
SUBJECT TO ANY RIGHTS OF APPEAL OF ANY JUDGMENT RENDERED BY THE HIGHEST COURT IN
THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AS THE CASE MAY BE. THE BORROWERS AND THE PARTNERS FURTHER
IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE
BORROWERS AND THE PARTNERS HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH THEY MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT ANY BORROWER OR ANY PARTNER HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, SUCH BORROWER AND EACH PARTNER HEREBY IRREVOCABLY WAIVE SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Waiver of Jury TrialWaiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE
ISSUER, THE LENDERS, THE BORROWERS AND THE PARTNERS HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE ADMINISTRATIVE AGENT, THE ISSUER, THE LENDERS OR THE BORROWERS OR ANY
PARTNER. THE BORROWERS AND THE PARTNERS ACKNOWLEDGE AND AGREE THAT THEY HAVE
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH THEY ARE A PARTY) AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, THE ISSUER AND
THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the day
and year first above written.
HIGHLAND VIDEO ASSOCIATES, L.P.,
By: Highland Holdings, its
General Partner
By: ,
a General Partner
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention: Michael Mulcahey
TELESAT ACQUISITION LIMITED
PARTNERSHIP
By: Olympus Communications, L.P.,
its General Partner
By: ACP Holdings, Inc., its
Managing General Partner
By: ,
Title:
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention: Michael Mulcahey
<PAGE>
GLOBAL ACQUISITION PARTNERS, L.P.
By: Dorellenic Cable Partners,
its General Partner
By: ,
a General Partner
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention: Michael Mulcahey
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
Title: Authorized Signatory
Address: One Liberty Plaza
New York, New York 10006
Telecopy No.: (212) 225-5090
Attention: Vincent J. Fitzgerald, Jr.
Media Communications
Group
<PAGE>
BANK OF MONTREAL, as Syndication
Agent
By:
Title:
Address: 430 Park Avenue
New York, New York 10022
Telecopy No.: (212) 605-1618
Telephone No.: (212) 605-1657
Attention: Terri Perez
CHEMICAL BANK, as Documentation
Agent
By:
Title:
Address: 270 Park Avenue
New York, New York 10012
Telecopy No.: (212) 270-2625
Telephone No.: (212) 270-1402
Attention: John J. Huber, III
<PAGE>
PERCENTAGE LENDERS
15.25000000% THE BANK OF NOVA SCOTIA
By:
Title: Authorized Signatory
Domestic
Office: One Liberty Plaza
New York, NY 10006
Telecopy No.: (212) 225-5090/5145
Telephone No.: (212) 225-5042
Attention: Vincent J. Fitzgerald, Jr.
LIBOR Office: One Liberty Plaza
New York, NY 10006
Telecopy No.: (212) 225-5090/5145
Telephone No.: (212) 225-5042
Attention: Vincent J. Fitzgerald, Jr.
<PAGE>
14.25000000% BANK OF MONTREAL, CHICAGO BRANCH
By:
Title: Director
Domestic
Office: 115 South LaSalle Street
Chicago, IL 60603
Telecopy No.: (212) 605-1618
Telephone No.: (212) 605-1657
Attention: Terri Perez
LIBOR
Office: 115 South LaSalle Street
Chicago, IL 60603
Telecopy No.: (212) 605-1618
Telephone No.: (212) 605-1657
Attention: Terri Perez
<PAGE>
14.25000000 CORESTATES BANK, N.A.
By:
Title:
Domestic
Office: 1339 Chestnut Street
P.O. Box 7618
Philadelphia, PA 19101-7618
Telecopy No.: (215) 786-7721
Telephone No.: (215) 786-4353
Attention: Anthony D. Braxton
LIBOR
Office: 1339 Chestnut Street
P.O. Box 7618
Philadelphia, PA 19101-7618
Telecopy No.: (215) 786-7721
Telephone No.: (215) 786-4353
Attention: Anthony D. Braxton
<PAGE>
12.50000000% CHEMICAL BANK
By:
Title: Managing Director
Domestic
Office: 270 Park Avenue
New York, NY 10012
Telecopy No.: (212) 270-2625
Telephone No.: (212) 270-1402
Attention: John J. Huber, III
LIBOR Office: 270 Park Avenue
New York, NY 10012
Telecopy No.: (212) 270-2625
Telephone No.: (212) 270-1402
Attention: John J. Huber, III
<PAGE>
12.50000000% CIBC INC.
By:
Title:
Domestic
Office: 2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Telecopy No.: (770) 319-4950
Telephone No.: (770) 319-4838
Attention: Donna J. Corcoran
LIBOR Office: 2727 Paces Ferry Road
Suite 1200
Atlanta, GA 30339
Telecopy No.: (770) 319-4950
Telephone No.: (770) 319-4838
Attention: Donna J. Corcoran
<PAGE>
10.00000000% THE SUMITOMO BANK, LIMITED
By:
Title:
By:
Title:
Domestic
Office: U.S. Commercial Banking
Department
233 South Wacker Drive
54th Floor
Chicago, IL 60606
Telecopy No.: (312) 876-1995
Telephone No.: (312) 993-6214
Attention: Loans Operations
LIBOR Office: U.S. Commercial
Banking Department
233 South Wacker Drive
54th Floor
Chicago, IL 60606
Telecopy No.: (312) 876-1995
Telephone No.: (312) 993-6214
Attention: Loans Operations
With copies to: The Sumitomo Bank, Limited
625 Liberty Avenue, Suite 2450
Pittsburgh, PA 15222
Attention: George J. Cerminara
Telecopy No.: (412) 288-1819
Telephone No.: (412) 288-1853
<PAGE>
8.75000000% NATIONSBANK OF TEXAS, N.A.
By:
Title: Vice President
Domestic
Office: 901 Main Street
64th Floor
Dallas, Texas 75202
Telecopy No.: (214) 508-9390
Telephone No.: (214) 508-0860
Attention: Greg Meador
LIBOR Office: 901 Main Street
64th Floor
Dallas, Texas 75202
Telecopy No.: (214) 508-9390
Telephone No.: (214) 508-0860
Attention: Greg Meador
<PAGE>
7.50000000% TORONTO DOMINION (TEXAS), INC.
By:
Title:
Domestic
Office: 909 Fannin Street
17th Floor
Houston, Texas 77010
Telecopy No.: (713) 951-9921
Telephone No.: (713) 653-8245
Attention: Debbie A. Greene
Manager Credit
Administration
LIBOR Office: 909 Fannin Street
17th Floor
Houston, Texas 77010
Telecopy No.: (713) 951-9921
Telephone No.: (713) 653-8245
Attention: Debbie A. Greene
Manager Credit
Administration
<PAGE>
5.00000000% FLEET NATIONAL BANK
By:
Title: Vice President
Domestic
Office: 111 Westminster Street
Providence, RI 02903
Telecopy No.: (401) 278-3929
Telephone No.: (401) 278-3329
Attention: Denise Berard
LIBOR Office: 111 Westminster Street
Providence, RI 02903
Telecopy No.: (401) 278-3431
Telephone No.: (401) 278-5535
Attention: Denise Berard
100%
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SCHEDULE I
DISCLOSURE SCHEDULE
<PAGE>
- -------------------------------------------------------------------------------
SCHEDULE II
- -------------------------------------------------------------------------------
All of the assets of CTVF of every kind and character, real,
personal, tangible, intangible or mixed, used by, or useful to, CTVF in
connection with the operation of the cable television ("CATV") systems serving
the Village of Barker, Town of Clarence, Town of Elma, Town of Lancaster,
Village of Lancaster, City and Town of Lockport, Town of Newfane, Town and
Village of Orchard Park, and Town of Somerset, all in the State of New York (the
"Acquired Systems") in existence on the date (referred to as the "Closing Date")
of the consummation of the Global Acquisition (the "Assets to be Acquired"),
which shall include, but not be limited to, the following:
(a) All items of tangible personal property owned or
leased and used by CTVF in connection with the operation of the Acquired
Systems, including all equipment associated with receiving and distributing
signals at the head-end sites, and all other antennas and down leads and all
electronic equipment, head-end amplifiers and associated equipment, line
amplifiers, aerial and underground trunk and feeder line cable, distribution
plant, programming signal decoders for each satellite service which scrambles
its signal, converters, housedrops, including disconnected housedrops, installed
subscriber devices, utility poles, local origination equipment (wherever
located), test equipment, machinery, spare equipment and parts inventory,
housedrop equipment inventory, system design and engineering maps and drawings,
supplies, vehicles and trailers (to be transferred under fee title and not under
lease), furnishings and other personal property of any nature, and all leasehold
and rights-of-way in real property, buildings and improvements and
construction-in-progress, towers, fixtures, poles, vaults and pedestals.
(b) All of the rights of CTVF to, in and under any and all
subscription contracts with subscribers for CATV service; except as to the
Excluded Assets (as defined below), all instruments and agreements for the
purchase, sale or other receipt or distribution of programming, news, data and
microwave relay signals which Global expressly agrees to include among the
Assets to be Acquired; and all of the governmental authorizations for
maintenance and operation of the Acquired Systems as listed on Schedule 3.06 of
the Purchase Agreement ("Franchises") and any franchise applications; all of the
pole attachment authorizations and agreements ("Pole Attachment Agreements")
held by CTVF as listed on Schedule 3.07 of the Purchase Agreement and all
retransmission consent agreements which Global expressly agrees to include among
the Assets to be Acquired; all variances, easements, right-of-way agreements,
licenses, registrations, copyright notices, signal registration and other
statements, constructions and other permits, leases, including leases of all
head-end sites, and all other contracts or agreements relating to the Acquired
Systems.
(c) All options, claims, contract rights and trade
secrets; all goodwill; all subscriber accounts receivable for all periods prior
and subsequent to the Closing Date; subscriber lists and subscription contracts
of the Acquired Systems; and all books and records which relate to the operation
of the Acquired Systems (including, without limitation, subscriber records,
vendor records, accounting records, accounts payable records, accounts
receivable records, general ledgers and any other documents necessary to support
a regulatory filing).
For the purposes of this Schedule, Excluded Assets means:
<PAGE>
- -------------------------------------------------------------------------------
cash and cash equivalents on hand or in the bank accounts of CTVF;
- -------------------------------------------------------------------------------
the satellite programming agreements and agreements which CTVF maintains with
any of its respective suppliers of programming;
any retransmission consents, must carry or will carry agreements which CTVF
maintains (collectively, the "Broadcast Signal Agreements"), except as otherwise
agreed by Global pursuant to written notice to the CTVF given no later than ten
(10) days prior to the Closing Date to the effect that the agreements named in
such notice are to be included among the Assets to be Acquired at Closing with
no increase in the Eighty-Four Million Dollars ($84,000,000) purchase price
(subject to the adjustment pursuant to the provisions of Section 2.05 of the
Purchase Agreement, the "Purchase Price") therefor (the "Acquired Broadcast
Signal Agreements"); provided, however, that Global may not designate as
Acquired Broadcast Signal Agreements any Broadcast Signal Agreements that relate
to broadcast signals which are carried on other Jones cable systems; and
provided further than CTVF shall not be required to obtain the consents to the
assignment of the Acquired Broadcast Signal Agreements to the Global unless
Global notifies CTVF that they shall be included in the Assets to be Acquired
within 30 days after the date hereof;
all documents relating to the legal existence of the CTVF;
insurance policies, intercompany receivables, letters of credit and surety
bonds;
all claims, rights and interest in and to any refunds for federal, state or
local income or other taxes or fees of any nature whatsoever for periods prior
to the Closing Date, including, without limitation, fees paid to the United
States Copyright Office;
any books and records that CTVF is required by law to retain, subject to the
right of Global to have access to and to copy for a reasonable period, not to
exceed five years from the Closing Date, and other books and records related to
internal corporate matters and financial relationships with CTVF's lenders,
provided that nothing herein shall limit Global's right to receive on the
Closing Date, copies of all documents, books and records necessary in connection
with the operation of its business;
the trademarks, trade names, service marks and all other information and
similar intangible assets relating to CTVF or the Acquired Systems;
contracts and agreements relating to CTVF's subscriber billing system and all
equipment related thereto;
that certain office building located at 37 Central in Lancaster, New York; and
the rights, assets and properties described on Schedule 1.03 of the Purchase
Agreement.
<PAGE>
- --------------------------------------------------------------------------------
SECTION
- --------------------------------------------------------------------------------
- xvi -
- i -
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms 2
1.2. Use of Defined Terms 36
1.3. Cross-References 36
1.4. Accounting and Financial Determinations; No Duplication; Combined Basis
and Consolidation 36
ARTICLE II
COMMITMENTS, LOANS, BORROWING AND
ISSUANCE PROCEDURES AND NOTES AND LETTERS OF CREDIT
2.1. Commitments 37
2.1.1. Loan Commitment of Each Lender 37
2.1.2. Letter of Credit Commitment 37
2.1.3. Lenders Not Permitted or Required to Make Loans 38
2.1.4. Issuer Not Permitted or Required to Issue Letters of Credit 38
2.1.5. Existing Credit Extensions 39
2.2. Reduction of Commitment Amount 39
2.2.1. Optional Reduction of Commitment Amount 39
2.2.2. Mandatory Reduction of Commitment Amount 39
2.3. Borrowing Procedure 41
2.4. Continuation and Conversion Elections 41
2.5. Funding 42
2.6. Issuance Procedures 42
2.6.1. Other Lenders' Participation 42
2.6.2. Disbursements 43
2.6.3. Reimbursement 43
2.6.4. Deemed Disbursements 44
2.6.5. Nature of Reimbursement Obligations 44
2.7. Notes 45
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments 46
3.1.1. Final Maturity 46
3.1.2. Voluntary Prepayments 46
3.1.3. Mandatory Prepayments 46
3.1.4. Net Disposition Proceeds 46
3.1.5. Acceleration of Stated Maturity Date 47
3.2. Interest Provisions 47
3.2.1. Rates 47
3.2.2. Post-Maturity Rates 49
3.2.3. Payment Dates 50
3.2.4. Change in Applicable Margin 50
3.3. Fees 51
3.3.1. Commitment Fees. 51
3.3.2. Letter of Credit Fee 51
3.3.3. Other Fees 51
3.4. Guaranty Provisions 51
3.4.1. Guaranty 52
3.4.2. Acceleration of Guaranty 52
3.4.3. Guaranty absolute, etc 53
3.4.4. Reinstatement, etc 54
3.4.5. Waiver, etc 54
3.4.6. Postponement of Subrogation, etc 54
3.5. Guaranty Provisions 55
ARTICLE IV
CERTAIN CD RATE, LIBO RATE AND OTHER PROVISIONS
4.1. Fixed Rate Lending Unlawful 55
4.2. Deposits Unavailable 56
4.3. Increased Fixed Rate Loan Costs, etc. 56
4.4. Funding Losses 56
4.5. Increased Capital Costs 57
4.6. Taxes 57
4.7. Payments, Computations, etc. 59
4.8. Sharing of Payments 59
4.9. Setoff 60
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extension 61
5.1.1. Corporate and Partnership Documents, etc. 61
5.1.2. Delivery of Notes 63
5.1.3. Payment of Outstanding Indebtedness, etc. 63
5.1.4. Due Diligence 63
5.1.5. Guaranty. 63
5.1.6. Obligor Pledge Agreement and HVA Pledge Agreement Amendments 63
5.1.7. Security Agreements 63
5.1.8. Subordination Agreements 64
5.1.9. Insurance 65
5.1.10. Closing Fees, Expenses, etc. 65
5.1.11. Approvals 65
5.1.12. Management Agreements 65
5.1.13. Opinions of Counsel 65
5.1.14. Delivery of Franchise Agreements and FCC Licenses 66
5.1.15. Solvency, etc. 66
5.1.16. Affirmation and Consent 66
5.2. Additional Conditions Precedent to the Making of Acquisition Loans 66
5.2.1. Alternative Acquisition 66
5.2.2. Global Acquisition 67
5.3. Credit Extensions to Global 68
5.4. All Credit Extensions 68
5.4.1. Compliance with Warranties, No Default, etc. 68
5.4.2. Credit Extension Request 69
5.4.3. Satisfactory Legal Form 69
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc. 70
6.2. Due Authorization, Non-Contravention, etc. 71
6.3. Government Approval, Regulation, etc. 71
6.4. Validity, etc. 71
6.5. Financial Information 72
6.6. No Material Adverse Change 72
6.7. Litigation, Labor Controversies, etc. 72
6.8. Subsidiaries 73
6.9. Ownership of Properties 73
6.10. Taxes 73
6.11. Pension and Welfare Plans 73
6.12. Environmental Warranties 74
6.13. Regulations G, U and X 74
6.14. The Franchises 74
6.15. Patents, Copyrights, FCC Licenses, etc. 75
6.16. Partnership Agreements; Management Agreements 75
6.17. Subordination 75
6.18. Accuracy of Information 75
6.19. Compliance with Leverage Ratio 76
6.20. Solvency 76
6.21. Compliance with Laws 77
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants 77
7.1.1. Financial Information, Reports, Notices, etc. 77
7.1.2. Compliance with Laws, etc. 81
7.1.3. Maintenance of Properties 81
7.1.4. Insurance 81
7.1.5. Books and Records 82
7.1.6. Environmental Covenant 82
7.1.7. Rate Protection 82
7.1.8. Subordination 83
7.1.9. Use of Proceeds 83
7.1.10. Future Subsidiaries 84
7.1.11. Acquisition Collateral 86
7.2. Negative Covenants 86
7.2.1. Business Activities 86
7.2.2. Indebtedness 86
7.2.3. Liens 88
7.2.4. Financial Condition 89
7.2.5. Investments 91
7.2.6. Restricted Payments, etc. 92
7.2.7. Consolidation, Merger, etc. 93
7.2.8. Asset Dispositions, etc. 93
7.2.9. Modification of Certain Agreements 93
7.2.10. Transactions with Affiliates 94
7.2.11. Negative Pledges, Restrictive Agreements, etc. 94
7.2.12. Management Fees 95
7.2.13. Payment of Management Fees. 95
7.2.14. Payment of Intercompany Subordinated Loans 96
7.2.15. Stock, etc. of Subsidiaries 96
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default 97
8.1.1. Non-Payment of Obligations 97
8.1.2. Breach of Warranty 97
8.1.3. Non-Performance of Certain Covenants and Obligations 97
8.1.4. Non-Performance of Other Covenants and Obligations 97
8.1.5. Default on Other Indebtedness 97
8.1.6. Judgments 98
8.1.7. Pension Plans 98
8.1.8. Change in Control 98
8.1.9. Bankruptcy, Insolvency, etc. 98
8.1.10. Impairment of Security, etc. 100
8.1.11. Default Under Any Partnership Agreement 100
8.1.12. Termination of Any Management Agreement 100
8.1.13. Failure to Obtain or Cessation of Authorization, etc. 100
8.1.14. Cancellation of Any Franchise Agreement 100
8.2. Action if Bankruptcy 101
8.3. Action if Other Event of Default 101
ARTICLE IX
THE AGENTS
9.1. Actions 102
9.2. Funding Reliance, etc. 102
9.3. Exculpation 103
9.4. Resignations 103
9.5. Loans by Managing Agents 104
9.6. Credit Decisions 104
9.7. Copies, etc. 105
9.8. Limitation on Duties 105
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc. 105
10.2. Notices 106
10.3. Payment of Costs and Expenses 106
10.4. Indemnification 107
10.5. Survival 109
10.6. Severability 109
10.7. Headings 109
10.8. Execution in Counterparts, Effectiveness, etc. 109
10.9. Governing Law; Entire Agreement 109
10.10. Successors and Assigns 109
10.11. Sale and Transfer of Loans and Note; Participations in Loans and Note 110
10.11.1. Assignments 110
10.11.2. Participations 112
10.12. Other Transactions 113
10.13. Limited Recourse 113
10.14. Global Not a Borrower Until Consummation of Global Acquisition. 114
10.15. Forum Selection and Consent to Jurisdiction 114
10.16. Waiver of Jury Trial 115
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Assets to be Acquired
EXHIBIT A - Form of Note
EXHIBIT B-1 - Form of Borrowing Request EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice EXHIBIT D - Form of Lender
Assignment Notice EXHIBIT E - Form of Compliance Certificate EXHIBIT F - Form of
Closing Date Certificate EXHIBIT G-1 - Conformed Copy of Intercompany
Subordination Agreement EXHIBIT G-2 - Conformed Copy of Manager Subordination
Agreement EXHIBIT H - Conformed Copy of Subsidiary Guaranty EXHIBIT I-1
Conformed Copy of HVA Pledge Agreement EXHIBIT I-2 - Conformed Copy of Obligor
Pledge Agreement EXHIBIT I-3 - Form of TALP Pledge Agreement EXHIBIT I-4 - Form
of Global Pledge Agreement EXHIBIT J-1 - Conformed Copy of HVA Partners Security
Agreement EXHIBIT J-2 - Conformed Copy of Partnership Security Agreement EXHIBIT
J-3 - Form of TALP Partners Security Agreement EXHIBIT J-4 - Form of Global
Partners Security Agreement
<PAGE>
SCHEDULE I
DISCLOSURE SCHEDULE
ITEM 2.1.5 - EXISTING CREDIT EXTENSIONS
$76,500,000 in principal amount of outstanding Loans, as of the
Amendment Effective Date.
<PAGE>
ITEM 6.7 - LITIGATION
NONE
<PAGE>
ITEM 6.8 - EXISTING SUBSIDIARIES
1. Subsidiaries of Highland Video Associates, L.P.
a. Henderson Community Antenna Television, Inc.
- - Borrower owns 100% of the issued and outstanding stock
b. Bucktail Broadcasting Corporation
- - Borrower owns 100% of the issued Class B common stock
c. Adelphia Cablevision Associates of Radnor, L.P.
- - Borrower is a general partner
d. Montgomery Cablevision Associates, L.P.
- - Borrower is a general partner
2. Subsidiaries of Bucktail Broadcasting Corporation
a. Montgomery Cablevision, Inc.
- - Bucktail Broadcasting Corporation owns 100% of the issued and outstanding
stock
<PAGE>
ITEM 6.11 - EMPLOYEE BENEFIT PLANS
Adelphia Communications Corporation maintains the Adelphia Communications
Corporation Savings and Retirement Plan. This Plan is a tax-qualified, defined
contribution plan with a pre-tax "ss. 401(K)" savings feature and an annual
maximum employer "matching" contribution of $750 per participant.
<PAGE>
ITEM 6.14 - FRANCHISES
A. Highland Video Associates, L.P.
1. Franchise Agreement dated September 17, 1990, with the Township of Blacklick,
Indiana County, Pennsylvania, expiring on September 17, 2005.
2. Franchise Agreement dated August 18, 1992, with the Boro of Blairsville,
Indiana County, Pennsylvania, expiring on August 18, 2007.
3. License Agreement dated February 12, 1982, with the Borough of Bolivar,
Westmoreland County, Pennsylvania, expiring on February 12, 1997.
4. Franchise Agreement dated May 22, 1989, with the Township of Burrell, Indiana
County, Pennsylvania, expiring on May 22, 2004.
5. Agreement dated December 1, 1987, with the Township of Center, Indiana
County, Pennsylvania expiring on December 1, 2002.
6. Franchise Agreement effective January 1, 1986, with the Borough of Derry,
Westmoreland County, Pennsylvania, expiring on January 1, 2001.
7. License Agreement dated December 30, 1976, with the Township of Derry,
Westmoreland County, Pennsylvania, expiring on December 30, 2001.
8. License Agreement dated May 5, 1981, with Fairfield Township, Westmoreland
County, Pennsylvania, expiring on May 5, 2001.
9. Agreement dated March 6, 1984, with the Borough of Homer City, Indiana
County, Pennsylvania, expiring on September 1, 2001.
10. Agreement effective January 1, 1986, with the Borough of Latrobe,
Westmoreland County, Pennsylvania, expiring on January 1, 2001.
11. License Agreement dated October 4, 1990, with the Borough of Ligonier,
Westmoreland County, Pennsylvania, expiring on October 4, 2005.
12. License Agreement dated December 14, 1976, with the Township of Ligonier,
Westmoreland County, Pennsylvania, expiring on December 14, 2001.
13. License Agreement dated January 13, 1977, with the Township of Unity,
Westmoreland County, Pennsylvania, expiring on January 13, 1997.
14. License Agreement dated May 2, 1981, with West Wheatfield Township,
Westmoreland County, Pennsylvania, expiring on May 2, 2001.
15. License Agreement dated January 3, 1977, with the Borough of Youngstown,
Westmoreland County, Pennsylvania, expiring on January 3, 1997.
B. Bucktail Broadcasting Corporation
1. Franchise Agreement dated January 1, 1995, with the Borough of Emporium,
Cameron County, Pennsylvania, expiring on January 1, 2010.
C. Adelphia Cablevision Associates of Radnor, L.P.
1. Franchise Agreement dated April 26, 1993, with the Township of Radnor,
Delaware County, Pennsylvania, expiring on February 1, 1998.
D. Montgomery Cablevision Associates, L.P.
1. Agreement dated March 10, 1994, granted by the Borough of Ambler, Montgomery
County, Pennsylvania, expiring on March 10, 2006.
2. Contract dated _________, 1985 (day and month left blank) with the Township
of Lower Gwynedd, Montgomery County, Pennsylvania, pursuant to Ordinance No. 212
dated January 22, 1985, expiring on March 19, 2000.
3. Cable Television Agreement effective September 9, 1992, with the
Township of Plymouth, Montgomery County, Pennsylvania, expiring on September 9,
2007.
4. Agreement dated March 14, 1990, with the Township of Springfield, Montgomery
County, Pennsylvania, expiring on August 9, 2005.
E. Henderson Community Antenna Television, Inc.
1. Franchise Agreement dated November 15, 1995, with the City of Henderson,
Vance County, North Carolina, expiring on November 15, 2005.
2. Contract and Permit dated July 6, 1987, with the Town of Kittrell, Vance
County, North Carolina, expiring on July 6, 2007.
3. Franchise Agreement dated December 2, 1980, with the Town of Norlina, Warren
County, North Carolina, expiring on December
2, 1995 (Renewal Pending).
4. Franchise Agreement dated January 2, 1996, with the County of Vance, North
Carolina, expiring on November 15, 2005.
5. Cable Television Franchise Agreement effective September 18, 1987, with the
County of Warren, North Carolina, expiring
September 18, 1997.
6. Franchise Agreement dated November 14, 1980, with the Town of Warrenton,
Warren County, North Carolina, expiring November
14, 1995 (Renewal Pending).
F. Coudersport Television Cable Company
1. Agreement dated November 16, 1992, with the Borough of Austin, Potter County,
Pennsylvania, expiring on November 16, 2007.
2. Agreement dated November 13, 1991, with the Borough of Coudersport, Potter
County, Pennsylvania, expiring on November 13, 2006.
3. Agreement dated July 15, 1994, with the Borough of Port Allegany, McKean
County, Pennsylvania, expiring on July 15, 2009.
4. Agreement dated December 23, 1992, with the Township of Roulette, Potter
County, Pennsylvania, expiring on December 23, 2007.
G. Montgomery Cablevision, Inc.
None.
H. Telesat Acquisition Limited Partnership
License Agreement dated July 7, 1987, with Citrus County, Florida, expiring July
7, 2002.* Franchise Agreement dated May 22, 1988, with Hillsborough County,
Florida, expiring May 22, 2003.* License Agreement dated March 8, 1988, with the
City of Inverness, Citrus County, Florida, expiring March 8, 2003. Ordinance No.
87-41 dated December 14, 1987, granted by the City of Leesburg, Lake County,
Florida, expiring December 14, 2002. Non-Exclusive Cable Television Franchise
Agreement dated June 23, 1986, with Orange County, Florida, expiring June 23,
2001. Ordinance No. 85-4 accepted October 20, 1986, granted by Osceola County,
Florida, expiring October 20, 2001. * Transfer to Telesat Acquisition Limited
Partnership Pending I. Global Acquisition Partners, L.P.1 1 The following
Franchises will be transferred to Global Acquisition Partners, L.P. effective as
of the consummation of the Global Acquisition.
CATV Franchise dated March 30, 1988, with the Village of Barker, New York,
expiring March 30, 1998.
Franchise Agreement dated April 25, 1995, with the Town of Clarence, New York,
expiring June 10, 2005.
Franchise Agreement dated August 1, 1984, with the Town of Elma, New York,
expiring August 1, 1999.
CATV Franchise dated October 16, 1981, with the Town of Lancaster, New York,
expiring October 16, 1996.
Franchise Agreement dated May 23, 1978, with the Village of Lancaster, New
York, expiring May 1, 1996.
Franchise Agreement executed June 29, 1992, with the City of Lockport, New
York, expiring September 2, 2002.
Franchise Agreement dated August25, 1993, with the Town of Newfane, New York,
expiring August 25, 2003.
Franchise Agreement dated May 28, 1995, with the Town of Orchard Park and the
Village of Orchard Park, New York, expiring May 27, 2005.
CATV Franchise dated March 24, 1988, with the Town of Somerset, New York,
expiring March 24, 1998.
<PAGE>
ITEM 6.15 - PATENTS, COPYRIGHTS, FCC LICENSES, ETC.
A. Pole Agreements
I. Highland Video Associates, L.P.
1. Attachment Agreement dated November 1, 1983, with West Penn Power Company.
2. Agreement dated September 17, 1976, with Pennsylvania Electric Company.
3. Agreement dated November 13, 1975, with The Bell Telephone Company of
Pennsylvania.
4. Agreement dated November 13, 1975, with The Bell Telephone Company of
Pennsylvania.
II. Bucktail Broadcasting Corporation
1. Agreement dated June 15, 1991 with Mid-Penn Telephone Corporation.
2. Attachment Agreement dated November 1, 1983 with West Penn Power Company.
III. Adelphia Cablevision Associates of Radnor, L.P.
1. Agreement dated March 7, 1991 with The Bell Telephone Company of
Pennsylvania.
2. License Agreement dated February 26, 1992 with the Southeast Pennsylvania
Transportation Authority.
IV. Montgomery Cablevision Associates, L.P.
1. Agreement dated November 30, 1978 with The Bell Telephone Company of
Pennsylvania.
2. Agreement dated July 5, 1978 with The Bell Telephone Company of Pennsylvania.
3. Agreement dated March 2, 1978 with The Bell Telephone Company of
Pennsylvania.
4. Agreement dated March 27, 1978 with Consolidated Rail Corporation.
5. Agreement dated January 20, 1983 with the Philadelphia Electric Company.
6. Agreement dated March 23, 1983 with the Philadelphia Electric Company.
7. Agreement dated March 18, 1982 with the Philadelphia Electric Company.
V. Henderson Community Antenna Television, Inc.
1. Agreement dated January 30, 1981 with Carolina Telephone.
2. Agreement dated January 30, 1981 with Carolina Telephone.
3. Agreement dated December 1, 1977 with Carolina Telephone.
VI. Coudersport Television Cable Company
1. Agreement dated May 28, 1991 with Tri-County Rural Electric.
2. Agreement dated November 26, 1990 with West Penn Power Company.
VII. Montgomery Cablevision, Inc.
None.
VIII. Telesat Acquisition Limited Partnership
Agreement dated October 18, 1990 with Florida Power Corporation. Agreement dated
August 17, 1988 with Kissimmee Utility Authority. Agreement dated December 7,
1987 with Orlando Utilities Commission. Agreement dated June 19, 1986 with
Southern Bell Telephone Company. Agreement dated September 15, 1993 with United
Telephone Company of Florida. Agreement dated August 2, 1988 with Tampa Electric
Company. Agreement dated February 16, 1988 with GTE Florida, Inc. Agreement
dated June 7, 1991 with Sumter Electric Cooperative.
IX. Global Acquisition Partners, L.P.2
2 The following Pole Agreements will be transferred to Global Acquisition
Partners, L.P. effective as of the consummation of the Global Acquisition.
Agreement dated March 23, 1984 with New York State Electric & Gas Corporation.
Agreement dated December 1, 1986 with New York Telephone Company. Agreement
dated June 22, 1995 with Niagara Mohawk Power Corporation.
B. Fictitious Names
1. "Adelphia Cable Communications" is used by Highland Video
Associates, L.P., Telesat Acquisition Partners, L.P., Global Acquisition
Partners, L.P., Henderson Community Antenna Television, Inc., Montgomery
Cablevision Associates, L.P., Adelphia Cablevision Associates of Radnor, L.P.,
Bucktail Broadcasting Corporation and Coudersport Television Cable Company.
2. "Adelphia Home Satellite Service" is used by Montgomery
Cablevision, Inc.
<PAGE>
C. FCC Licenses
I. Highland Video Associates, L.P.
1. Business Radio License KUH361, Fairchild Township, Pennsylvania.
2. TVRO Earth Station License E920253, Blairsville, Pennsylvania.
II. Bucktail Broadcasting Corporation
1. TVRO Earth Station License WM70, Emporium, Pennsylvania.
III. Adelphia Cablevision Associates of Radnor, L.P.
1. TVRO Earth Station License E3820, Radnor, Pennsylvania.
IV. Montgomery Cablevision Associates, L.P.
1. Business Radio License WNQP268, Plymouth Meeting, Pennsylvania.
2. Business Radio License WNSE631, Plymouth Meeting, Pennsylvania.
3. TVRO Earth Station License E860957, Flourtown, Pennsylvania.
4. TVRO Earth Station License E940343, Plymouth Township, Pennsylvania.
V. Henderson Community Antenna Television, Inc.
1. Business Radio License WPFV417, Henderson, North Carolina.
2. TVRO Earth Station License E7769, Warrenton, North Carolina.
3. TVRO Earth Station License E7770, Henderson, North Carolina.
(License is still in name of prior owner. FCC has been notified to
record transfer)
VI. Coudersport Television Cable Company
1. Business Radio License WNQU780, Coudersport, Pennsylvania.
2. Business Radio License WNSC228, Coudersport, Pennsylvania.
3. TVRO Earth Station License E900151, Coudersport, Pennsylvania.
<PAGE>
VII. Montgomery Cablevision, Inc.
None.
VIII. Telesat Acquisition Limited Partnership
CARS Microwave License WLY-347, Tampa, Florida (Transmitter Site) and East Hills
Borough, Florida (Receiver Site) (Licensed to Olympus Communications, L.P.*)
CARS License WLY-491, Inverness, Florida (Transmitter Site) and Beverly Hills,
Florida (Receiver Site) (Licensed to Olympus Communications, L.P.*)
*Transfer to Telesat Acquisition Limited Partnership Pending.
IX. Global Acquisition Partners, L.P.3
3 The following FCC Licenses will be transferred to Global Acquisition
Partners, L.P. effective as of the consummation of the Global Acquisition.
Business Radio License WNVJ292, Lancaster, New York
Business Radio License WNWY544, Lancaster, New York
TVRO Earth Station License E930438, Lancaster, New York
TVRO Earth Station License WZ32, Lockport, New York
<PAGE>
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
-29-
ITEM 7.2.2.(b) - INDEBTEDNESS TO BE PAID
1. Indebtedness in the principal amount of $39,500,000, together with accrued
interest thereon payable by TALP to Olympus which shall be repaid on the
Amendment Effective Debt.
<PAGE>
ITEM 7.2.2.(c) - ONGOING INDEBTEDNESS
1. Indebtedness in the principal amount of $4,000,000, together with
accrued interest thereon payable to Adelphia Communications Corporation.
2. Indebtedness in the principal amount of $84,000,000, together with
accrued interest and fees thereon pursuant to the Global Letter of Credit.
<PAGE>
ITEM 7.2.5.(a) - ONGOING INVESTMENTS
Investments of the Borrowers in their Subsidiaries and Investments of the
Borrowers' Subsidiaries in their respective Subsidiaries.
<PAGE>
EXHIBIT A
NOTE
$ _____________, 1996
-----------
FOR VALUE RECEIVED, each of the undersigned, HIGHLAND VIDEO
ASSOCIATES, L.P., a Pennsylvania limited partnership ("HVA"), TELESAT
ACQUISITION LIMITED PARTNERSHIP, a Delaware limited partnership ("TALP"), and
GLOBAL ACQUISITION PARTNERS, L.P., a Delaware limited partnership ("Global";
Global, HVA and TALP are individually referred to as a "Borrower" and
collectively referred to as the "Borrowers"), jointly and severally promise to
pay to the order of (the "Lender") on or before the Stated Maturity Date the
principal sum of __________ DOLLARS ($ ) or, if less, the aggregate unpaid
principal amount of all Loans shown on the schedule attached hereto (and any
continuation thereof) made by the Lender pursuant to that certain Amended and
Restated Credit Agreement, dated as of March 29, 1996, amending and restating
the Credit Agreement, dated as of February 28, 1996 (as further amended,
supplemented, amended and restated or otherwise modified from time to time, the
"Credit Agreement"), among the Borrowers, the various financial institutions
(including the Lender) as are or may become parties thereto (collectively, the
"Lenders"), Bank of Montreal, as Syndication Agent, Chemical Bank, as
Documentation Agent and The Bank of Nova Scotia as Administrative Agent for the
Lenders. Unless otherwise defined, all capitalized terms used herein have the
meanings ascribed thereto in the Credit Agreement.
The Borrowers also jointly and severally promise to pay interest on
the unpaid principal amount hereof from time to time outstanding from the date
hereof until maturity (whether by acceleration or otherwise) and, after
maturity, until paid, at the rates per annum and on the dates specified in the
Credit Agreement.
Payments of both principal and interest are to be made in lawful
money of the United States of America in same day or immediately available funds
to the account designated by the Administrative Agent pursuant to the Credit
Agreement.
This Note is a Note referred to in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a
description of the security for this Note and for a statement of the terms and
conditions on which the Borrowers are permitted and required to make prepayments
and repayments of principal of the Indebtedness evidenced by this Note and on
which such Indebtedness may be declared to be immediately due and payable.
This Note is issued in substitution and exchange for, and not in
satisfaction or payment of, and shall represent an amendment and restatement of,
the Note, dated February 28, 1996, payable to the order of ______________ in the
original principal amount of $___________ and issued under the Credit Agreement
(herein, the "Existing Note"), and the Indebtedness originally evidenced by such
Existing Note which is now evidenced by this new amended and restated Note shall
be a continuing Indebtedness, and nothing herein contained shall be construed to
deem such Existing Note paid, or to release or terminate any Lien or security
interest given to secure such Existing Note, which Liens and security interests
shall continue to secure such Indebtedness as evidenced by this Note.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of dishonor.
<PAGE>
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE
DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK.
HIGHLAND VIDEO ASSOCIATES, L.P.
By: Highland Holdings, its
General Partner
By: ,
a General Partner
TELESAT ACQUISITION LIMITED
PARTNERSHIP
By: Olympus Communications, L.P.,
its General Partner
By: ACP Holdings, Inc., its
Managing General Partner
By: ,
Title:
GLOBAL ACQUISITION PARTNERS, L.P.
By: Dorellenic Cable Partnres,
its General Partner
By: ,
a General Partner
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
-32-
<TABLE>
<CAPTION>
LOANS AND PRINCIPAL PAYMENTS
===== ============================ ----------------- ============================== ========================== = ------- =========
Date Amount of Loan Made Interest Period Amount of Principal Repaid Unpaid Principal Balance Total Nota-tion
(if applicable) Made By
========= ======== ========= ========== ======== ========== ========== ======== =========
Base Rate CD Rate LIBO Rate Base Rate CD Rate LIBO Rate Base Rate CD Rate LIBO Rate
===== ========= ======== ========= ================= ========== ======== ========== ========== ======== ========= ======= =========
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
===== --------- ------- --------- ----------------- --------- -------- ---------- ---------- -------- --------- ------- =========
===== --------- ------- --------- ----------------- --------- -------- ---------- ---------- -------- --------- ------- =========
===== --------- ------- --------- ----------------- --------- -------- ---------- ---------- -------- --------- ------- =========
</TABLE>
<PAGE>
[EXECUTION COPY]
BORROWING REQUEST
March ___, 1995
The Bank of Nova Scotia,
as Administrative Agent
One Liberty Plaza
New York, New York 10006
Attention: Vincent Fitzgerald
Telesat Acquisition Limited Partnership
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section 2.3 of
the Amended and Restated Credit Agreement, dated as of March 29, 1996, amending
and restating the Credit Agreement, dated as of February 28, 1996 (as further
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Credit Agreement"), among Highland Video Associates, L.P., a
Pennsylvania limited partnership ("HVA"), Telesat Acquisition Limited
Partnership, a Delaware limited partnership ("TALP"), Global Acquisition
Partners, L.P., a Delaware limited partnership ("Global"), the various financial
institutions as are or may become parties thereto (collectively, the "Lenders"),
Bank of Montreal, as Syndication Agent, Chemical Bank, as Documentation Agent
and The Bank of Nova Scotia, as administrative agent (the "Administrative
Agent") for the Lenders. Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided in the Credit
Agreement.
The undersigned (hereinafter referred to as the "Borrower") hereby
requests that Loans be made in the aggregate principal amount of $39,500,000 on
March 29, 1996 and that the proceeds thereof be deposited to Account Number
_____________ at ____________________________. The Borrower hereby also requests
that such Loans be made as Base Rate Loans.
The Borrower hereby acknowledges that, pursuant to Section 5.3.2 of
the Credit Agreement, each of the delivery of this Borrowing Request and the
acceptance by the Borrower of the proceeds of the Loans requested hereby,
constitute a representation and warranty by the Borrower that, on the date of
such Loans, and before and after giving effect thereto and to the application of
the proceeds therefrom, all statements set forth in Section 5.3.1 of the Credit
Agreement are true and correct.
The Borrower further certifies that as of the date hereof:
<PAGE>
================================================================================
================================================================================
-43-
on the date of the Loans and after giving effect to the Loans requested to be
made on such date, the Leverage Ratio on such date shall not be greater than the
Leverage Ratio applicable pursuant to clause (a) of Section 7.2.4 to the most
recently ended Fiscal Quarter for which the financial statements and Compliance
Certificate required by clauses (a), (c) and (d) of Section 7.1.1 have been
delivered;
the Borrower has delivered such information, documents and certificates as the
Required Lenders have requested, including a certificate attached to this
Borrowing Request as Annex I demonstrating compliance with all financial
covenants on a historical and pro forma basis (as necessary) on the date the
Alternative Acquisition is to be consummated and giving effect to the
Alternative Acquisition and the Loans to be made in connection therewith; and
the conditions described in clause (e) of Section 5.2.2 of the Credit
Agreement have been satisfied.
The Borrower agrees that if, prior to the time of the Borrowing
requested hereby, any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify the
Administrative Agent. Except to the extent, if any, that prior to the time of
the Borrowing requested hereby the Administrative Agent shall receive written
notice to the contrary from the Borrower, each matter certified to herein shall
be deemed once again to be certified as true and correct at the date of such
Borrowing as if then made.
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this Borrowing Request to
be executed and delivered by its duly Authorized Officer this _____ day of
March, 1996.
TELESAT ACQUISITION LIMITED
PARTNERSHIP
By: Olympus Communications, L.P.,
its General Partner
By: ACP Holdings, Inc., its
Managing General Partner
By:
Title:
<PAGE>
EXHIBIT B-2
ISSUANCE REQUEST
------------, ----
The Bank of Nova Scotia,
as Administrative Agent
One Liberty Plaza
New York, New York 10006
Attention: Vincent Fitzgerald
[Highland Video Associates, L.P.]
[Telesat Acquisition Limited Partnership]
[Global Acquisition Partners, L.P.]
Gentlemen and Ladies:
This Issuance Request is delivered to you pursuant to Section 2.6 of
the Amended and Restated Credit Agreement, dated as of March 29, 1996, amending
and restating the Credit Agreement, dated as of February 28, 1996 (as further
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Credit Agreement"), among Highland Video Associates, L.P., a
Pennsylvania limited partnership ("HVA"), Telesat Acquisition Limited
Partnership, a Delaware limited partnership ("TALP"), Global Acquisition
Partners, L.P., a Delaware limited partnership ("Global"), the financial
institutions as are, or may from time to time become, parties thereto (the
"Lenders"), Bank of Montreal, as Syndication Agent, Chemical Bank, as
Documentation Agent, and The Bank of Nova Scotia, as administrative agent (the
"Administrative Agent") for the Lenders. Unless otherwise defined herein or the
context otherwise requires, terms used herein have the meanings provided in the
Credit Agreement.
4/The undersigned hereby requests that The Bank of Nova Scotia, as
Issuer, [extend the Stated Expiry Date of Letter of Credit No. ______, issued on
___________ to _____________] [issue a standby Letter of Credit on
______________ in the aggregate Stated Amount of
$---------].
4/ To be delivered not less than five nor more than ten Business Days prior to
the date of issuance of the Letter of Credit or the Stated Expiry Date for
extensions.
The beneficiary of [the requested] [such] Letter of Credit [will be]
[is] 5/______________________ , and such Letter of Credit [will have] [has] a
Stated Expiry Date (as defined therein) of the earlier of 6/___________ and the
Commitment Termination Date.
5/ Insert name and address of beneficiary.
6/ Insert a date not to exceed one year from the date of initial
issuance or of extension, as appropriate.
The undersigned hereby acknowledges that, pursuant to Section 5.3.2
of the Credit Agreement, each of the delivery of this Issuance Request and the
acceptance of any proceeds of or benefits by the undersigned of the Letter of
Credit issued in accordance herewith, constitute a representation and warranty
by the undersigned that, on the date of delivery of this Issuance Request, and
before and after giving effect to the application of any proceeds or benefits of
the Letter of Credit requested hereby, all statements set forth in Section 5.3.1
of the Credit Agreement are true and correct in all material respects.
The undersigned agrees that if, prior to the time of the issuance of
the Letter of Credit requested hereby, any matter certified to herein by it will
not be true and correct in all material respects at such time as if then made,
it will immediately so notify the Administrative Agent.
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this request to be
executed and delivered by its duly Authorized Officer this day of .
[HIGHLAND VIDEO ASSOCIATES, L.P.
By: Highland Holdings, its
General Partner
By: ,
a General Partner]
[TELESAT ACQUISITION LIMITED PARTNERSHIP
By: Olympus Communications, L.P.,
its General Partner
By: ACP Holdings, Inc., its
Managing General Partner
By: ,
Title:
[GLOBAL ACQUISITION PARTNERS, L.P.
By: Global Cablevision, Inc.,
its General Partner
By: ,
a General Partner]
<PAGE>
EXHIBIT C
CONTINUATION/CONVERSION NOTICE
The Bank of Nova Scotia,
as Administrative Agent
One Liberty Plaza
New York, New York 10006
Attention: Vincent Fitzgerald
[Highland Video Associates, L.P.]
[Telesat Acquisition Limited Partnership]
[Global Acquisition Partners, L.P.]
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you in connection
with Section 2.4 of the Amended and Restated Credit Agreement, dated as of March
29, 1996, amending and restating the Credit Agreement, dated as of February 28,
1996 (as further amended, supplemented, amended and restated or otherwise
modified from time to time, the "Credit Agreement"), among Highland Video
Associates, L.P., a Pennsylvania limited partnership (the "HVA"), Telesat
Acquisition Limited Partnership, a Delaware limited partnership ("TALP"), Global
Acquisition Partners, L.P., a Delaware limited partnership ("Global"; Global,
HVA and TALP are individually referred to as a "Borrower" and collectively
referred to as the "Borrowers"), the various financial institutions as are or
may become parties thereto (collectively, the "Lenders"), Bank of Montreal, as
Syndication Agent, Chemical Bank, as Documentation Agent and The Bank of Nova
Scotia, as administrative agent (the "Administrative Agent") for the Lenders.
Unless otherwise defined, all capitalized terms used herein have the meanings
ascribed thereto in the Credit Agreement.
The undersigned (hereinafter referred to as the "Borrower") hereby
requests that on ______, [199__][200__], Loans in an outstanding principal
amount of $__________ which are presently being maintained as [Base Rate Loans]
[LIBO Rate Loans][CD Rate Loans] be converted into [Base Rate Loans] [LIBO Rate
Loans having an Interest Period of _____ months][CD Rate Loans having an
Interest Period of __ days].
The Borrower hereby:
(a) certifies and warrants that no Default has
occurred and is continuing or will (after giving effect to the
continuation or conversion requested hereby) occur and be continuing; and
(b) agrees that if prior to the time of such
continuation or conversion any matter certified to herein by it will not be true
and correct at such time as if then made, it will immediately so notify the
Administrative Agent.
Except to the extent that prior to the time of the continuation or conversion
requested hereby the Administrative Agent shall have received written notice to
the contrary from the Borrower, each matter certified to herein shall be deemed
to be certified on the date of such continuation or conversion as if then made.
<PAGE>
IN WITNESS WHEREOF, the Borrower has caused this notice to be
executed and delivered by its Authorized Officer this ____ day of
- ------------, ----.
[HIGHLAND VIDEO ASSOCIATES, L.P.
By: Highland Holdings, its
General Partner
By:
a General Partner]
[TELESAT ACQUISITION LIMITED
PARTNERSHIP
By: Olympus Communications, L.P.,
its General Partner
By: ACP Holdings, Inc., its
Managing General Partner
By:
Title:]
[GLOBAL ACQUISITION PARTNERS, L.P.
By: Global Cablevision, Inc., its
General Partner
By:
Title:]
<PAGE>
EXHIBIT D
LENDER ASSIGNMENT NOTICE
To: Highland Video Associates, L.P.
Telesat Acquisition Limited Partnership
Global Acquisition Partners, L.P.
5 West Third Street
Coudersport, Pennsylvania 16915
To: The Bank of Nova Scotia,
as Administrative Agent
One Liberty Plaza
New York, New York 10006
Gentlemen and Ladies:
We refer to Section 10.11.1 of the Amended and Restated Credit
Agreement, dated as of March 29, 1996, amending and restating the Credit
Agreement, dated as of February 28, 1996 (as further amended, supplemented,
amended and restated or otherwise modified from time to time, the "Credit
Agreement"), among Highland Video Associates, L.P., a Pennsylvania limited
partnership (the "HVA"), Telesat Acquisition Limited Partnership, a Delaware
limited partnership ("TALP"), Global Acquisition Partners, L.P., a Delaware
limited partnership ("Global"; Global, HVA and TALP are individually referred to
as a "Borrower" and collectively as the "Borrowers"), the various financial
institutions as are or may become parties thereto (collectively, the "Lenders"),
Bank of Montreal, as Syndication Agent, Chemical Bank, as Documentation Agent
and The Bank of Nova Scotia, as administrative agent (the "Administrative
Agent") for the Lenders. Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings ascribed thereto in the
Credit Agreement.
This notice is delivered to you pursuant to clause (b) of Section
10.11.1 of the Credit Agreement and constitutes notice to each of you, pursuant
to Section 10.11.1 of the Credit Agreement, of the assignment and delegation to
_______________ (the "Assignee") of ___% of the Commitment (including a pro rata
assignment of the Assignor's obligation to participate in Letters of Credit
pursuant to the terms of the Credit Agreement) of _____________ (the "Assignor")
and $________ of the Credit Extensions of the Assignor, outstanding under the
Credit Agreement on the date hereof. After giving effect to the foregoing
assignment and delegation, the Percentages of the Assignor and the Assignee for
purposes of the Credit Agreement shall be as set forth on the signature pages
hereof.
<PAGE>
================================================================================
The Assignee hereby acknowledges and confirms that (i) it has
received a copy of the Credit Agreement and the exhibits related thereto,
together with copies of the documents which were required to be delivered under
the Credit Agreement as a condition to the making of the Credit Extensions
thereunder and (ii) it has made, independently and without
reliance upon the Assignor, the Administrative Agent, the Managing Agents or
any Lender, and based upon such financial statements and other documents and
information as it has deemed appropriate, its own credit analysis and decision
to become a Lender. The Assignee further confirms and agrees that in becoming a
Lender and in making its Commitment and Credit Extensions under the Credit
Agreement, such actions have and will be made without recourse to, or
representation or warranty by the Administrative Agent, the Managing Agents or
any other Lender.
Except as otherwise provided in the Credit Agreement, effective upon
the date the Administrative Agent and each Borrower accepts this Lender
Assignment Notice (the "Assignment Effective Date"),
the Assignee
shall be deemed automatically to have become a party to the Credit
Agreement and to have all the rights and obligations of a "Lender" under the
Credit Agreement and the other Loan Documents as if it were an original
signatory thereto or beneficiary thereof to the extent specified in the second
paragraph hereof; and
agrees to be bound by the terms and conditions set forth in the
Credit Agreement and the other Loan Documents as if it were an original
signatory thereto;
the Assignor shall be released from its obligations under the Credit
Agreement and the other Loan Documents to the extent specified in the second
paragraph hereof; and
the Administrative Agent shall make all payments in respect of the
interests assigned hereby (including, without limitation, all payments of
principal, interest and commitment fees with respect thereto) to the Assignee.
The Assignee and the Assignor will make all appropriate adjustments
with respect to the payment of all accrued and unpaid interest and fees on the
Credit Extensions outstanding prior to the Assignment Effective Date pursuant to
the terms of a separate assignment agreement between the Assignor and the
Assignee.
The Assignor and the Assignee hereby agree that the [Assignor]
[Assignee] will pay to the Administrative Agent the processing fee referred to
in Section 10.11.1 of the Credit Agreement upon the delivery hereof.
<PAGE>
-53-
The Assignee hereby advises each of you of the following
administrative details with respect to the assigned Credit Extensions and
Commitment:
(A) Address for Notices:
Institution Name:
Domestic Office:
Telephone:
Facsimile:
Attention:
LIBOR Office:
Telephone:
Facsimile:
Attention:
Address for Notices:
Telephone:
Facsimile:
Attention:
(B) Payment Instructions:
The Assignee agrees to furnish the tax forms required by Section 4.6
(if so required) of the Credit Agreement no later than the date of acceptance
hereof by the Administrative Agent.
<PAGE>
This notice may be executed by the parties hereto [Assignor and
Assignee] in separate counterparts, each of which when so executed and delivered
shall be deemed to be an original and all of which taken together shall
constitute one and the same notice.
Adjusted Percentage and [ASSIGNOR]
Amount of Credit Extensions
By:
Title:
Commitment: ___%
and
Credit Extensions: $___
Percentage and [ASSIGNEE]
Amount of Loans
By:
Title:
Commitment: ___%
and
Credit Extensions: $___
Accepted:
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
Title:
EXHIBIT E
COMPLIANCE CERTIFICATE
Highland Video Associates, L.P.
Telesat Acquisition Limited Partnership
Global Acquisition Partners, L.P.
This Compliance Certificate is delivered pursuant to clause (d) of
Section 7.1.1 and of the Amended and Restated Credit Agreement, dated as of
March 29, 1996, amending and restating the Credit Agreement, dated as of
February 28, 1996 (as further amended, supplemented, amended and restated or
otherwise modified from time to time, the "Credit Agreement"), among Highland
Video Associates, L.P., a Pennsylvania limited partnership (the "HVA"), Telesat
Acquisition Limited Partnership, a Delaware limited partnership ("TALP"), Global
Acquisition Partners, L.P., a Delaware limited partnership ("Global"; Global,
HVA and TALP are individually referred to as a "Borrower" and collectively
referred to as the "Borrowers"), the various financial institutions as are or
may become parties thereto (the "Lenders"), Bank of Montreal, as Syndication
Agent, Chemical Bank, as Documentation Agent, and The Bank of Nova Scotia, as
Administrative Agent. Unless otherwise defined herein or the context otherwise
requires, terms used herein or in any of the attachments hereto have the
meanings provided in the Credit Agreement.
The Borrowers hereby certify and warrant that for the period
commencing on [ , [199 ] [200 ] and ending on
, [199__] [200 ] (such latter date being the "Computation Date") no Default
or Event of Default had occurred and was continuing. The Borrowers hereby
further certify and warrant that as of the Computation Date:
(i) The Leverage Ratio was ____:1.00, as computed on Attachment 1 hereto. The
maximum Leverage Ratio permitted pursuant to clause (a) of Section 7.2.4 of the
Credit Agreement on the Computation Date was ____:1.00.
(ii) As a result of the Leverage Ratio being as set forth
in clause (a)(i) above, the Applicable Margin for the period immediately
following the Computation Date shall (pursuant to Section 3.2.4 the Credit
Agreement) be as follows:
<PAGE>
Applicable Margin
Leverage Ratio Base Rate LIBO Rate CD Rate Loans
Loans Loans
% % % %
The ratio of the Operating Cash Flow to the Interest Expense was
:1.00, as computed on Attachment 2 hereto. The minimum ratio of the Operating
Cash Flow to the Interest Expense required pursuant to clause (b) of Section
7.2.4 of the Credit Agreement on the Computation Date was
*[1.75:1.00][2.00:1.00].
* Use first alternative if the Computation Date is on or before September 3,
1996.
The ratio of the Annualized Operating Cash Flow to the Pro-Forma Debt
Service was :1.00 as computed on Attachment 3 hereto. The minimum ratio of the
Annualized Operating Cash Flow to the Pro-Forma Debt Service required pursuant
to clause (c) of Section 7.2.4 of the Credit Agreement on the Computation Date
was **[1.05:1.00] [1.15:1.00].
** Use first alternative if the Leverage Ratio is greater than, or equal to,
3.00:1.00.
The ratio of the Annualized Operating Cash Flow to the Total Fixed
Charges was :1.00 as computed on Attachment 4 hereto. The minimum ratio of the
Operating Cash Flow to the Total Fixed Charges required pursuant to clause (d)
of Section 7.2.4 of the Credit Agreement was 1.00:1.00.
The aggregate amount of all Indebtedness, of the types described in
clauses (d) through (h) of Section 7.2.2 of the Credit Agreement, incurred by
the Borrowers and their Restricted Subsidiaries:
(i) during the last Fiscal Quarter was $________,
all of which was permitted to be incurred pursuant to clauses
(d) through (h) of Section 7.2.2 of the Credit Agreement; and
(ii) since the Effective Date was $________, all
of which was permitted to be incurred pursuant to clauses (d) through (h) of
Section 7.2.2 the Credit Agreement.
The aggregate amount of all Investments, of the types described in
clauses (d) through (f) of Section 7.2.5 of the Credit Agreement, made by the
Borrowers and their Restricted Subsidiaries:
(i) during the last Fiscal Quarter was
$________, all of which were permitted to be made pursuant to clauses
(d) through (f) of Section 7.2.5 of the Credit Agreement; and
(ii) Since the Effective Date was $________,
all of which were permitted to be made pursuant to clauses (d) through (f) of
Section 7.2.5 of the Credit Agreement.
During the last Fiscal Quarter, the Borrowers made the following
payments, dividends or distributions in respect of partnership interests, all of
which were permitted to be made pursuant to Section 7.2.6 of the Credit
Agreement:
[State the amount of each payment of dividends or
distributions made and whether made pursuant to clause (a) of
Section 7.2.6 or the proviso contained in Section 7.2.6.]
During the last Fiscal Quarter,
(i) the following liquidations, dissolutions or
mergers by or among the Borrowers or any of their Restricted
Subsidiaries have occurred:
[State the identity of the relevant persons(s)
and describe what took place.]
All of such liquidations, dissolutions or mergers were
permitted pursuant to Section 7.2.7 of the Credit Agreement.
(ii) The following Permitted Business
Acquisitions or Permitted Dispositions, each of which was permitted to be made
pursuant to clauses (d) through (f) of Section 7.2.5 and Section 7.2.7 of the
Credit Agreement, have occurred:
[State the identity of the relevant Person, the
aggregate purchase price and a description of the relevant
assets and/or business.]
(iii) the following capital contributions were
made by the Rigas Family, Adelphia and their Affiliates in favor
of the Borrowers:
[State the aggregate amount of such capital
contributions.]
(iv) the following general and limited
partnership interests in the Borrowers were sold or distributed in accordance
with clause (a) of the definition of "Change in Control":
[State the identity of the relevant Person
purchasing or acquiring the limited partnership interest, the percentage of
limited partnership interest and related economic interest sold or acquired by
such Person and the limited partnership interests and related economic interests
in the Borrowers retained by the Rigas Family and/or Adelphia.]
<PAGE>
IN WITNESS WHEREOF, the undersigned has caused this Compliance
Certificate to be executed and delivered by its duly Authorized Officer this day
of ________, ______.
HIGHLAND VIDEO ASSOCIATES, L.P.
By: Highland Holdings, its
General Partner
By:
a General Partner
TELESAT ACQUISITION LIMITED
PARTNERSHIP
By: Olympus Communications, L.P.,
its General Partner
By: ACP Holdings, Inc., its
Managing General Partner
By:
Title
GLOBAL ACQUISITION PARTNERS, L.P.
By: Global Cablevision, Inc., its
General Partner
By:
Title:
<PAGE>
Attachment 1
<PAGE>
(to __/__/__ Compliance
Certificate)
LEVERAGE RATIO
on _______, 19__
(the "Computation Date")
<TABLE>
<CAPTION>
- ------------ --------------------------------------------------------------------------------------------- ----------------------
1. SENIOR FUNDED DEBT:
<S> <C>
(i) The sum of all Indebtedness of the type described in clauses (a), (b) and (c) of $
----------- --- ---
the definition of Indebtedness of the Borrowers and their Restricted Subsidiaries
which (i) is secured by a perfected Lien and (ii) is not by its terms
subordinated to any other Indebtedness of the Borrowers or their Restricted
Subsidiaries:
- ------------ --------- ----------------------------------------------------------------------------------- ----------------------
(j) Excess Cash Balance: the sum of all cash and Cash Equivalent Investments held in $
the name of any Borrower or their Restricted Subsidiaries:
- ------------ --------- ----------------------------------------------------------------------------------- ----------------------
(k) Senior Funded Debt: Item 1(a) less Item 1(b): $
------------------ --------- ---- ---------
- ------------ --------------------------------------------------------------------------------------------- ----------------------
2. ANNUALIZED OPERATING CASH FLOW:
- ------------ --------- ----------------------------------------------------------------------------------- ----------------------
(a) Net Income of the Borrowers and their Restricted Subsidiaries: $
- ------------ --------- ----------------------------------------------------------------------------------- ----------------------
(b) Management Fees included in the determination of Net
Income of the Borrowers and $ their Restricted
Subsidiaries during such period, not included in Item
2(a):
- ------------ --------- ----------------------------------------------------------------------------------- ----------------------
(c) Interest expense (including the portion of any rent paid
in respect of $ Capitalized Lease Liabilities which is
allocable to interest expense), depreciation,
amortization and income taxes, determined in accordance
with GAAP, included in the determination of Net Income of
the Borrowers and their Restricted Subsidiaries during
such period, not included in Item 2(a) and Item 2(b):
- ------------ --------- ----------------------------------------------------------------------------------- ----------------------
(d) Other non-cash expenses of the Borrowers and their
Restricted Subsidiaries during $ such period, not
included in Item 2(a) through Item 2(c):
- ------------ --------- ----------------------------------------------------------------------------------- ----------------------
(e) *Operating Cash Flow: the sum of Item 2(a) through Item 2(d): $
--------- ---------
* Note: In calculating Operating Cash Flow, (i) (A) there shall be
excluded from such calculation all non-cash income and non-cash gains and
---- all fees, interest income, dividends and distributions received from
Affiliates to the extent such fees, interest income, dividends and distributions
(x) were not paid in cash or (y) if paid in cash, exceed 10% of Operating Cash
Flow for such period (before giving effect to such payment), (B) no more than
10% of Net Income from Investments made pursuant to clause (d) of Section 7.2.5
shall be included in such calculation and (C) the Adjusted Global EBITDA shall
be used with ---------- ------------- respect to the Assets to be Acquired on
the date of the consummation of the Global Acquisition and for the first
Compliance Certificate delivered following the consummation of the Global
Acquisition; (ii) if any Borrower or any of their Restricted Subsidiaries shall
have made one or more Acquisitions during such period, Operating Cash Flow for
such period shall be adjusted on a pro forma basis to give effect to all such
Acquisitions as if they had occurred at the --- ----- beginning of such period;
and (iii) if any Borrower or any of their Restricted Subsidiaries shall have
effected one or more Asset Sales during such period, Operating Cash Flow for
such period shall be adjusted on a pro forma basis to give --- ----- effect to
all such Permitted Dispositions of the type described in clause (c) or (d) of
the definition of "Permitted ---------- --- Dispositions" as if they had
occurred at the beginning of such period.
- ------------ --------- ----------------------------------------------------------------------------------- ----------------------
(f) Annualized Operating Cash Flow: Item 2(e) multiplied by four: $
------------------------------ --------- -------------
- ------------ --------------------------------------------------------------------------------------------- ----------------------
3. Leverage Ratio: ratio of Item 1 to Item 2(d): :1.00
-------------- ------ --------- ----
- ------------ --------------------------------------------------------------------------------------------- ----------------------
</TABLE>
<PAGE>
2-1
<TABLE>
<CAPTION>
Attachment 2
(to __/__/__ Compliance
Certificate)
RATIO OF OPERATING CASH FLOW TO
INTEREST EXPENSE
on ________, 19__
(the "Computation Date")
- --------------- --------------------------------------------------------------------------------------------- ------------------
1. Operating Cash Flow: See Item 2(e) of Attachment 1: $
------------------- --------- ------------
- --------------- --------------------------------------------------------------------------------------------- ------------------
2. INTEREST EXPENSE:
<S> <C>
- --------------- ------------ -------------------------------------------------------------------------------- ------------------
(a) The consolidated interest expense on Senior Funded Debt of the Borrowers and $
their Restricted Subsidiaries, as determined in accordance with GAAP:
- --------------- ------------ -------------------------------------------------------------------------------- ------------------
(b) The amount of commitment fees paid or owed with respect to the unused portion $
of the Commitment Amount, not included in Item 2(a):
---------
- --------------- ------------ -------------------------------------------------------------------------------- ------------------
(c) The amount of all other fees paid or owed with respect to the issuance or $
maintenance of Contingent Liabilities (including the Letters of Credit and any
other letters of credit), which, in accordance with
GAAP, would be included as interest expense, not
included in Item 2(a):
- --------------- ------------ -------------------------------------------------------------------------------- ------------------
(d) The amount of net costs or benefits under Hedging Obligations, not included in $
Item 2(a):
---------
- --------------- ------------ -------------------------------------------------------------------------------- ------------------
(e) The sum of those portions of any payments made in respect of Capitalized Lease $
Liabilities of the Borrowers and their Restricted
Subsidiaries allocable to interest expense and not
included in Item 2(a):
- --------------- ------------ -------------------------------------------------------------------------------- ------------------
(f) The sum of Item 2(a) through Item 2(e): $
--------- ---------
- --------------- --------------------------------------------------------------------------------------------- ------------------
3. The sum of any amortization of costs and expenses incurred in connection with, and relating $
to, the Credit Agreement or other financings permitted thereby
(to the extent included in Item 2(f)):
- --------------- --------------------------------------------------------------------------------------------- ------------------
4. Interest Expense: Item 2(f) minus Item 3: $
---------------- --------- ----- ------
- --------------- --------------------------------------------------------------------------------------------- ------------------
5. Ratio of the Operating Cash Flow to the Interest Expense: ratio of Item 1 to Item 4: :1.00
------ ------ ----
- --------------- --------------------------------------------------------------------------------------------- ------------------
</TABLE>
<PAGE>
3-2
Attachment 3
(to __/__/__ Compliance
Certificate)
<TABLE>
<CAPTION>
RATIO OF ANNUALIZED OPERATING CASH FLOW
TO PRO-FORMA DEBT SERVICE
on ________, 19__
(the "Computation Date")
<S> <C>
- ----------------- ----------------------------------------------------------------------------------------- ----------------------
1. Annualized Operating Cash Flow: See Item 2(f) of Attachment 1: $
------------------------------ --------- ------------
- ----------------- ----------------------------------------------------------------------------------------- ----------------------
2. PRO FORMA DEBT SERVICE:
- ----------------- ---------- ------------------------------------------------------------------------------ ----------------------
(a) Pro-Forma Interest Expense: Interest Expense for the Borrowers and their $
Restricted Subsidiaries for the four Fiscal Quarters immediately succeeding
the Computation Date (calculated using interest rates in effect for the most
recent ended Fiscal Quarter of HVA and as provided
in Item 4 of Attachment 2):
- ----------------- ---------- ------------------------------------------------------------------------------ ----------------------
(b) The sum of all commitment fees for the Borrowers and their Restricted $
Subsidiaries for the four quarters immediately succeeding the Computation
Date, not included in Item 2(a):
- ----------------- ---------- ------------------------------------------------------------------------------ ----------------------
(c) The sum of all scheduled principal payments,
including the current $ maturities thereof, due on
any Senior Funded Debt of the Borrowers and their
Restricted Subsidiaries for the four Fiscal
Quarters immediately succeeding the Computation
Date, not included in Item 2(a) and Item 2(b):
- ----------------- ---------- ------------------------------------------------------------------------------ ----------------------
(d) Pro-Forma Debt Service: the sum of Item 2(a) through Item 2(c): $
---------------------- --------- ---------
<PAGE>
- ----------------- ----------------------------------------------------------------------------------------- ----------------------
3. Ratio of the Annualized Operating Cash Flow to the Pro-Forma Debt Service ratio of Item :1.00
----- ----
1 to Item 2(d):
- ---------
- ----------------- ----------------------------------------------------------------------------------------- ----------------------
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
4-1
Attachment 4
(to__/__/__ Compliance
Certificate)
RATIO OF ANNUALIZED OPERATING CASH FLOW
TO TOTAL FIXED CHARGES
on ____________, 19__
(the "Computation Date")
<PAGE>
-5-
<S> <C>
- ----------------- --------------------------------------------------------------------------------------------- -----------------
1. Annualized Operating Cash Flow: See Item 2(f) of Attachment 1: $
------------------------------ --------- ------------
- ----------------- --------------------------------------------------------------------------------------------- -----------------
2. TOTAL FIXED CHARGES:
- ----------------- ---------- ---------------------------------------------------------------------------------- -----------------
(a) The sum of all Interest Expense of the Borrowers and their Restricted $
Subsidiaries for the most recent four Fiscal Quarters:
- ----------------- ---------- ---------------------------------------------------------------------------------- -----------------
(b) The sum of all outstanding Loans of the Borrowers
and their Restricted $ Subsidiaries at the
beginning of the period consisting of the most
recent four Fiscal Quarters less the Maximum
Availability at the end of such period (which shall
never be deemed to be less than zero), not included
in Item 2(a):
- ----------------- ---------- ---------------------------------------------------------------------------------- -----------------
(c) The sum of all fees owed pursuant to Section 3.3.1 of the Credit Agreement $
during the most recent four Fiscal Quarters, not
included in Item 2(a) and Item 2(b):
- ----------------- ---------- ---------------------------------------------------------------------------------- -----------------
(d) The sum of all Capital Expenditures (other than those funded by Capital $
Contributions) made by the Borrowers and their Restricted Subsidiaries during
the most recent Four Quarters, not included in Item
2(a), Item 2(b) and Item 2(c):
- ----------------- ---------- ---------------------------------------------------------------------------------- -----------------
(e) The sum of all Management Fees paid in cash (other
than those funded by Capital $ Contributions
pursuant to Section 7.2.13 of the Credit Agreement)
by the Borrowers and their Restricted Subsidiaries
during the most recent four Fiscal Quarters and
calculated in the manner specified in Section
7.2.12 of the Credit Agreement, not included in
Item 2(a), Item 2(b), Item 2(c) and Item 2(d):
- ----------------- ---------- ---------------------------------------------------------------------------------- -----------------
(f) Total Fixed Charges: The sum of Item 2(a) through Item 2(e): $
------------------- --------- ---------
- ----------------- --------------------------------------------------------------------------------------------- -----------------
3. Ratio of the Operating Cash Flow to the Total Fixed Charges: ratio of Item 1 to Item 2(f): :1.00
------ --------- ----
- ----------------- --------------------------------------------------------------------------------------------- -----------------
</TABLE>
<PAGE>
EXHIBIT F
CLOSING DATE CERTIFICATE
Telesat Acquisition Limited Partnership
THIS CERTIFICATE is delivered pursuant to clause (a) of Section 5.1.1
of the Amended and Restated Credit Agreement, dated as of March 29, 1996,
amending and restating the Credit Agreement, dated as of February 28, 1996 (the
"Credit Agreement"), among Highland Video Associates, L.P., a Pennsylvania
limited partnership ("HVA"), Telesat Acquisition Limited Partnership, a Delaware
limited partnership ("TALP"), Global Acquisition Partners, L.P. ("Global";
Global, HVA and TALP are individually referred to as a "Borrower", and
collectively referred to as the "Borrowers"), the various financial institutions
as are or may become parties thereto (collectively, the "Lenders"), Bank of
Montreal, as syndication agent (in such capacity, the "Syndication Agent"),
Chemical Bank, as documentation agent (in such capacity, the "Documentation
Agent") and The Bank of Nova Scotia, as administrative agent (in such capacity,
the "Administrative Agent") for the Lenders. Unless otherwise defined herein or
the context otherwise requires, terms used herein have the meanings ascribed
thereto in the Credit Agreement.
The undersigned hereby certifies, represents and warrants, as of the
Amendment Effective Date as follows:
Attached hereto as Annex I is a true and complete copy of TALP's
Organic Documents, certified by the Secretary of State of the State of Delaware
and dated a date reasonably near the Amendment Effective Date, and there have
been no amendments since the date of certification.
Attached hereto as Annex II is a true and complete copy of the TALP
Partnership Agreement (as amended), as in effect on the Amendment Effective
Date.
Attached hereto as Annex III is a true and complete copy of all
partnership action by or on behalf of TALP authorizing the execution, delivery
and performance of the Credit Agreement, the Notes and each other Loan Document
to which TALP is a party, and such authorization has not been modified,
rescinded or amended and is in full force and effect on the Amendment Effective
Date.
Attached hereto as Annex IV is a true and complete copy of TALP's
Franchise Agreements as in effect on the Amendment Effective Date, together with
all amendments, waivers and other modifications made thereto and a part thereof
and that each such Franchise Agreement is in full force and effect.
Attached hereto as Annex V is a true and complete copy of all FCC
Licenses, material permits and other rights, including all Franchises, owned,
possessed or used by TALP which are necessary to own and operate its properties
and Cable Systems and to carry on its businesses as conducted on the date
hereof.
TALP possesses all governmental authorizations, consents and
approvals necessary, if any, for the execution, delivery and performance of the
Credit Agreement and each other Loan Document to be executed by it, and for the
continued operation of its businesses. Copies of such authorizations, consents
and approvals are attached hereto as Annex VI.
A true and complete copy of the Management Agreement to which TALP is
a party is attached hereto as Annex VII.
Each of the individuals set forth on Schedule I hereto is an
Authorized Officer of TALP, and has all requisite power and authority to act on
behalf of TALP, and the genuine signature of each such individual set forth
opposite his name is his true and correct signature.
All conditions to the initial Credit Extension to TALP set forth in
Article V of the Credit Agreement have been met or satisfied, except as waived
or modified in writing by the Required Lenders.
<PAGE>
-43-
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed and delivered, and the certification, representations and warranties
contained herein to be made, by its duly Authorized Officer this 29th day of
March, 1996.
TELESAT ACQUISITION LIMITED
PARTNERSHIP
By: Olympus Communications, L.P.,
its General Partner
By: ACP Holdings, Inc., its
Managing General Partner
By:
Title:
<PAGE>
SCHEDULE I
AUTHORIZED OFFICERS
Name Office Signature
---------------- -------------
---------------- -------------
---------------- -------------
---------------- -------------
---------------- -------------
<PAGE>
ANNEX I
TALP's ORGANIC DOCUMENTS
<PAGE>
ANNEX II
TALP PARTNERSHIP AGREEMENT
<PAGE>
ANNEX III
AUTHORIZING ACTIONS
<PAGE>
ANNEX IV
FRANCHISE AGREEMENTS
<PAGE>
ANNEX V
FCC LICENSES
<PAGE>
ANNEX VI
APPROVALS
NONE.
<PAGE>
ANNEX VII
MANAGEMENT AGREEMENT
<PAGE>
[EXECUTION COPY]
INTERCOMPANY SUBORDINATION AGREEMENT
This INTERCOMPANY SUBORDINATION AGREEMENT (this "Subordination
Agreement"), dated as of February 28, 1996, is made by each of the parties
identified on the signature pages hereto (each a "Subordinated Creditor" and
collectively the "Subordinated Creditors"), and HIGHLAND VIDEO ASSOCIATES, L.P.,
a Pennsylvania limited partnership (the "Borrower"), and delivered by the
Borrower and the Subordinated Creditors to and in favor of THE BANK OF NOVA
SCOTIA, as administrative agent (together with any successor(s) thereto in such
capacity, the "Administrative Agent") for the Lender Parties (as defined below).
Unless otherwise defined, all terms used in this Subordination Agreement shall
have the meanings ascribed thereto in the Credit Agreement referred below.
W I T N E S S E T H
WHEREAS, pursuant to the Credit Agreement, dated as of February 28,
1996 (as amended or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the financial institutions from time to time
parties thereto (the "Lenders"), Bank of Montreal, as Syndication Agent,
Chemical Bank, as Documentation Agent and the Administrative Agent, the Lenders
agreed to make Credit Extensions to the Borrower;
WHEREAS, as a condition precedent to the making of Credit Extensions
(including the initial Credit Extension) under the Credit Agreement, the parties
hereto are required to execute and deliver this Subordination Agreement;
WHEREAS, pursuant to the Credit Agreement Swap Parties may enter into
Rate Protection Agreements with the Borrower from time to time (the
Administrative Agent, the Lenders and the Swap Parties, together with their
respective successors, transferees and assigns being collectively referred to as
the "Lender Parties" and individually a "Lender Party");
WHEREAS, each Subordinated Creditor is entitled to receive from the
Borrower payments on Intercompany Subordinated Loans made by such Subordinated
Creditor to the Borrower;
WHEREAS, all Indebtedness, obligations, liabilities, claims and other
amounts of any nature or type now or hereafter owing to any Subordinated
Creditor by the Borrower in respect of all Intercompany Subordinated Loans,
interest thereon and fees in respect thereof, payable from time to time
hereafter and any extensions, renewals, refinancings or refundings thereof in
whole or in part, is hereinafter collectively referred to as the "Subordinated
Debt"; and
WHEREAS, the Borrower and each Subordinated Creditor have agreed that
the Subordinated Debt shall be subordinated in right of payment to payment in
full in cash of all Obligations (such Obligations, together with the aggregate
amount of all Letter of Credit Outstandings, are referred to herein as "Senior
Debt"; it being expressly understood and agreed that the term "Senior Debt", as
used herein, shall include, without limitation, (i) any and all interest
accruing as part of the Obligations (whether or not permitted as a claim under
applicable law) after the commencement of any bankruptcy, insolvency or other
proceedings referred to in Section 1.4 hereof, notwithstanding any provision or
rule of law which might restrict the rights of any Lender Party, as against the
Borrower or any other Person, to collect such interest in the manner and to the
extent set forth in this Subordination Agreement, (ii) all renewals, extensions,
increases, refinancings or refundings of such Obligations and (iii) all costs of
enforcement and collection of such Obligations);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lenders
to make Credit Extensions to, and the Issuer to issue (and the Lenders to
participate in) Letters of Credit for the account of, the Borrower under the
Credit Agreement and the Swap Parties to enter into Rate Protection Agreements,
each Subordinated Creditor and the Borrower hereby agree, for the benefit of
each Lender Party, as set forth above and as follows:
TERMS OF SUBORDINATION
Agreement to Subordinate.
Each Subordinated Creditor and the Borrower agree that all
Subordinated Debt is and shall be subordinate, to the extent and in the manner
hereinafter set forth, and junior in right of payment to the prior payment in
full in cash of the Senior Debt, whether for principal, interest (including,
without limitation, interest described in the sixth recital hereof, (whether or
not permitted as a claim under applicable law) accruing after the filing of a
petition initiating any proceeding referred to in Section 1.4), fees, expenses
or otherwise. Except as provided in clause (b), no payment or other item of
value on account of the principal of, the interest on, or any other component
of, any Subordinated Debt shall be made by the Borrower or received or accepted
by any Subordinated Creditor until the indefeasible payment in full in cash of
all Senior Debt has been made and received, all Letters of Credit have expired
or been terminated and all Commitments have been terminated.
The Borrower agrees not to make, and each Subordinated Creditor
agrees not to ask, demand, make any claim for, sue for, take or receive from the
Borrower, directly or indirectly, in cash or other property or by set-off or in
any other manner (including, without limitation, from or by way of collateral),
payment of all or any of the Subordinated Debt unless and until the Senior Debt
shall have been paid in full in cash, all Letters of Credit have expired or been
terminated and all Commitments under the Credit Agreement have been terminated;
provided, however, that the Borrower may repay outstanding principal of
Subordinated Debt and accrued interest thereon if and only to the extent
permitted by Section 7.2.14 of the Credit Agreement; provided, further, however,
that the rate of interest on such Intercompany Subordinated Loan shall not
exceed 10.5% per annum.
For purposes of this Subordination Agreement, the Senior Debt shall not be
deemed to have been indefeasibly paid in full until (i) all Rate Protection
Agreements with Swap Parties have terminated and there are no obligations owing
to any Swap Party thereunder and (ii) the Lenders have received full payment in
cash of the Senior Debt, which payment shall have been retained by the Lenders
for a period of time in excess of all applicable preference or other similar
periods under applicable bankruptcy, insolvency or creditors' rights laws;
provided, however, if (i) all Rate Protection Agreements with Swap Parties have
terminated and all obligations thereunder have been satisfied and (ii) all
principal, interest and fees due under the Credit Agreement are repaid in full
in cash from the proceeds of a refinancing by another financial institution or
financial institutions, all Letters of Credit have expired or been terminated
and all Commitments are terminated, the Senior Debt shall, for purposes of this
Subordination Agreement, be deemed to have been indefeasibly paid in full at the
time of receipt by the Lenders of such proceeds.
No Security. Without the prior written consent of each Lender, the Borrower
will not give, and no Subordinated Creditor will receive or accept from the
Borrower, any security interest in or Lien on any assets or properties of the
Borrower or any of its Subsidiaries, whether consensual or non-consensual, of
any nature whatsoever to secure any obligations arising in connection with
Subordinated Debt.
Trust; Security Agreement. Except with respect to payments of Subordinated
Debt permitted by clause (b) of Section 1.1 hereof and the security, if any,
received by any Subordinated Creditor with the prior written consent of the
Lenders pursuant to Section 1.2 hereof, each Subordinated Creditor will hold in
trust for, and will promptly pay over to the Administrative Agent (for the pro
rata benefit of the holders of the Senior Debt), all amounts which such
Subordinated Creditor receives on account of such Subordinated Debt and will
assign and deliver to the Administrative Agent any security which such
Subordinated Creditor receives as collateral therefor. All amounts so paid and
all realizations on account of security so assigned and delivered, and all
payments and distributions on account of any Subordinated Debt received by the
Administrative Agent pursuant to Section 1.4 hereof, shall be applied to the
payment of the Senior Debt or, if in a form other than cash, shall be held by
the Administrative Agent for the ratable benefit of the holders of the Senior
Debt as security for the Senior Debt and disposed of in any lawful manner as
such security. Upon the indefeasible payment in full in cash of the Senior Debt,
the expiration or termination of all Letters of Credit and the termination of
all Commitments, any balance of such amounts or any security remaining in the
hands of the Administrative Agent shall be paid over to, reassigned and
redelivered to, the Subordinated Creditors, at their cost and expense.
Dissolution or Insolvency. Upon any payment or distribution of assets of the
Borrower or any Subordinated Creditor of any kind or character, whether in cash,
property or securities, to creditors upon any dissolution or winding up or total
or partial liquidation or reorganization of the Borrower or any Subordinator
Creditor, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership, arrangement or other proceedings, all outstanding amounts in
respect of the Senior Debt shall first be paid in full before any payment is
made on account of the principal of, or interest on, or any other component of,
any Subordinated Debt. Upon any such dissolution or winding up or liquidation or
reorganization, any payment or distribution of assets of the Borrower of any
kind or character, whether in cash, property or securities, to which any
Subordinated Creditor would be entitled except for the provisions hereof, shall
be paid by the Borrower, or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by such
Subordinated Creditor if received by such Subordinated Creditor, directly to the
Administrative Agent (for the benefit of the holders of the Senior Debt) to the
extent necessary to pay the Senior Debt in cash in full, after giving effect to
any concurrent payment or distribution made on account of the Senior Debt,
before any payment or distribution is made to such Subordinated Creditor on
account of any Subordinated Debt. For such purpose, each Subordinated Creditor
hereby assigns to the Administrative Agent all right, title, claims and interest
in and to any and all such payments and distributions on account of all
Subordinated Debt. Each Subordinated Creditor shall execute and deliver to the
Administrative Agent any instruments of assignment or further assurance of such
right, claim, title or interest as the Administrative Agent may hereafter
request. The Administrative Agent is hereby irrevocably authorized and
empowered, at its election and in its own name or in the name of any
Subordinated Creditor, to execute and file any proof of claim or other document
and to take any and all action with respect to any Subordinated Debt necessary
or appropriate to ensure payment to the Administrative Agent of all such
payments and distributions made on account of such Subordinated Debt, and for
such purpose each Subordinated Creditor will, upon the request of the
Administrative Agent, assign or endorse and deliver to the Administrative Agent
any instrument or instruments hereafter held by such Subordinated Creditor
evidencing Subordinated Debt, and will execute and deliver or will cause to be
executed and delivered any and all affidavits, powers of attorney and other
instruments and documents as may be requested by the Administrative Agent for
such purpose.
Inspection of Records. From time to time upon the request of the
Administrative Agent, the Borrower will permit the Administrative Agent to
inspect and to make extracts from its books and records pertaining to any
Subordinated Debt, and each Subordinated Creditor will permit the Administrative
Agent at all reasonable times to examine the accounts of such Subordinated
Creditor evidencing Subordinated Debt and any other instrument or instruments
hereafter held by such Subordinated Creditor evidencing Subordinated Debt.
Obligations Absolute, etc. This Subordination Agreement and all rights of the
Lender Parties and all obligations and duties of the Borrower and each
Subordinated Creditor hereunder shall continue in full force and effect
notwithstanding any action which any Lender Party or the Borrower, without
notice to or consent of any Subordinated Creditor, may take or refrain from
taking with respect to the Senior Debt, including (i) any amendment,
modification, waiver, extension, increase or renewal of the Senior Debt or any
part thereof or of any instrument or instruments now or hereafter evidencing the
Senior Debt or any part thereof or of any agreement or agreements (including any
Loan Document) now or hereafter entered into by the Lender Parties and the
Borrower pursuant to which the Senior Debt or any part thereof is issued or
governed, (ii) any change in the amount, manner or place of payment of, rate of
interest on, or in any other term of, the Senior Debt or any part thereof or any
release, compliance or settlement with respect thereto, (iii) any forbearance or
agreement of forbearance with respect to the Senior Debt, (iv) any substitution,
release, non-perfection, exchange, indulgence, forbearance or other action or
dealing with respect to any collateral security for the Senior Debt, whether
such collateral is now or hereafter existing, (v) any extension of additional
credit to the Borrower by the Lender Parties, it being understood that all such
additional credit will become Senior Debt for purposes of this Subordination
Agreement, (vi) any lack of validity or enforceability of the Credit Agreement,
the Notes, any other Loan Document or any other agreement or instrument relating
thereto or (vii) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower or any Subordinated
Creditor.
Application of Payments. All payments and distributions received by the
Administrative Agent in respect of any Subordinated Debt, to the extent received
in or converted into cash, may be applied by the Administrative Agent, first to
the payment of any and all expenses (including attorneys' fees and legal
expenses) paid or incurred by the Lender Parties in enforcing or collecting the
Senior Debt, in enforcing this Subordination Agreement, or in endeavoring to
collect or realize upon any of the Subordinated Debt, and any balance thereof
shall, solely as between each Subordinated Creditor and the Administrative
Agent, be applied by the Administrative Agent in such order of application as
the Administrative Agent may from time to time select, toward the payment of the
Senior Debt remaining unpaid; but, as between the Borrower and its creditors
(other than the Administrative Agent and the Lenders), no such payments or
distributions of any kind or character shall be deemed to be payments or
distributions in respect of the Senior Debt.
Subrogation. Each Subordinated Creditor agrees that no payment or distribution
to the Administrative Agent shall entitle such Subordinated Creditor to exercise
any rights of subrogation in respect thereof until the Senior Debt shall have
been indefeasibly paid in full in cash, all Letters of Credit shall have expired
or been terminated and all Commitments shall have been terminated. Each
Subordinated Creditor agrees that the subordination provisions contained herein
shall not be affected by any action, or failure to act by any Lender Party which
results, or may result, in affecting, impairing or extinguishing any right of
reimbursement or subrogation or other right or remedy of such Subordinated
Creditor.
Waivers by Subordinated Creditors. Each Subordinated Creditor hereby waives:
(i) notice of acceptance of this Subordination Agreement by any Lender Party or
any other holder of Senior Debt; (ii) notice of the existence, or creation or
non-payment of all or any portion of, the Senior Debt and (iii) all diligence in
collection or protection of, or realization upon, the Senior Debt, or any part
thereof, or any security therefor.
No Commencement of any Proceeding. Each Subordinated Creditor agrees that, so
long as any of the Senior Debt shall remain unpaid, it will not commence, or
join with any creditor other than the Administrative Agent (if the
Administrative Agent specifically approves in writing) in commencing, any
proceeding (or otherwise making any claim) referred to in Section 1.4.
Subordination Legend; Further Assurances. Each Subordinated Creditor and the
Borrower will cause each instrument evidencing Subordinated Debt to be endorsed
with the following legend:
"The indebtedness evidenced by this instrument is
subordinated to the prior payment in full in cash of the Senior Debt, as defined
in, and to the extent provided in, the Subordination Agreement, dated as of
February 28, 1996, by the maker hereof and the parties identified on the
signature pages thereof, including the payee named herein, in favor of The Bank
of Nova Scotia, as administrative agent (the "Administrative Agent") for the
financial institutions (the "Lenders") parties to the Credit Agreement, dated as
of February 28, 1996, among Highland Video Associates, L.P., the Lenders, Bank
of Montreal, as Syndication Agent, Chemical Bank, as Documentation Agent and the
Administrative Agent as each such agreement may be amended or otherwise modified
from time to time."
Each Subordinated Creditor and the Borrower will further mark their respective
books of account in such a manner as shall be effective to give proper notice of
the effect of this Subordination Agreement and will, in the case of any
Subordinated Debt which is not evidenced by any instrument, upon the
Administrative Agent's request, cause such Subordinated Debt to be evidenced by
an appropriate instrument or instruments endorsed with the above legend. Each
Subordinated Creditor and the Borrower will, at its 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 may be reasonably necessary or
desirable, or that the Administrative Agent may request, in order to protect any
right or interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder.
No Change in or Disposition of any Subordinated Debt. No Subordinated
Creditor will:
cancel or otherwise discharge all or any portion of any Subordinated
Debt (except upon payment in full in cash thereof paid in accordance with the
terms of this Subordination Agreement) unless such cancellation or discharge is
in connection with the conversion of such Subordinated Debt into equity;
sell, assign, pledge, encumber or otherwise dispose of any or any
part of any Subordinated Debt to any Person or entity other than the
Administrative Agent pursuant to a Loan Document or the Borrower or any of its
Subsidiaries;
take or permit to be taken, any action to assert, collect or enforce
any Subordinated Debt or any part thereof, except in accordance with this
Subordination Agreement and only as to that portion of such Subordinated Debt,
if any, to which such Subordinated Creditor is entitled; or
permit the terms of any of the Subordinated Debt to be changed in
such a manner as to have an adverse effect upon the rights or interests of any
Lender Party hereunder.
Representations and Warranties. Each Subordinated Creditor and the Borrower
hereby represent and warrant as follows:
No default exists in respect of any Subordinated Debt.
This Subordination Agreement has been duly executed and delivered by
it and constitutes the legal, valid and binding obligations of the Borrower and
such Subordinated Creditor, enforceable against the Borrower and such
Subordinated Creditor in accordance with its terms.
Such Subordinated Creditor owns its Subordinated Debt now outstanding
free and clear of any Lien.
Limited Recourse. Notwithstanding any contrary provision of this Subordination
Agreement or any other document or instrument governing any Subordinated Debt,
no recourse shall be had for the payment of the principal of or interest or
premium, if any, on any Subordinated Debt or for any claim based thereon against
any Partner or any limited partner or general partner of any General Partner, or
any legal representative, heir, estate, permitted successor or assign of any
thereof. It is understood that all obligations owing in respect of the
Subordinated Debt may not be enforced against any Person described above;
provided, however, that this Section 1.14 shall not (i) constitute a waiver,
release or discharge of any Subordinated Debt, but such Subordinated Debt shall
remain outstanding until paid or discharged, (ii) limit any rights, claims or
damages or recourse of any Subordinated Creditor or its transferees or assigns
as a result of (x) any knowing or wilful breach by such Person of any
representation or warranty made by such Person under or pursuant to any document
or instrument governing any Subordinated Debt or (y) any knowing or wilful
breach of covenant or other obligation by such Person under any document or
instrument governing any Subordinated Debt or (iii) limit the right of any such
Person to name the Borrower as a party defendant in any action or suit for a
judicial sale or in the exercise of any other remedy under this Subordination
Agreement, so long as no judgment in the nature of a deficiency judgment shall
be asked for, taken or enforced against any such Person. Notwithstanding the
foregoing, nothing herein shall be construed to constitute a waiver by any
Subordinated Creditor of any rights to damages, other monetary relief,
injunctive relief or any other remedy at law or equity against the Borrower or
any general partner or the limited partner of the Borrower by reason of fraud,
breach of representations and warranties, wilful tortious acts or omissions,
gross negligence or criminal acts.
MISCELLANEOUS PROVISIONS
Construction, etc. This Subordination Agreement is executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof.
Binding on Successors, Transferees and Assigns; Assignment. This Subordination
Agreement shall be binding upon the Borrower, each Subordinated Creditor and
their respective permitted successors, transferees and assigns and shall inure
to the benefit of and be enforceable by each Lender Party and their respective
successors, transferees and assigns; provided, however, that neither the
Borrower nor any Subordinated Creditor may assign any of its obligations
hereunder without the prior written consent of all Lenders.
Amendments, etc. No amendment to or waiver of any provision of this
Subordination Agreement, nor consent to any departure by the Borrower or any
Subordinated Creditor herefrom, shall in any event be effective unless the same
shall be in writing and signed by the Administrative Agent, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
Addresses for Notices. All notices and other communications provided to the
Borrower, any Subordinated Creditor or the Administrative Agent under this
Subordination Agreement or any other Loan Document shall be in writing and
mailed, delivered or transmitted to the Borrower, such Subordinated Creditor or
the Administrative Agent at its address or facsimile number set forth below its
signature hereto or at such other address or facsimile number as may be
designated by the Borrower, such Subordinated Creditor or the Administrative
Agent in a notice to the other parties. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by prepaid
courier service, shall be deemed given when received; any notice, if transmitted
by facsimile, shall be deemed given when transmitted upon receipt of electronic
confirmation of transmission.
No Waiver; Remedies. No failure on the part of any Lender Party to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Captions. Section captions used in this Subordination Agreement are for
convenience of reference only, and shall not affect the construction
of this Subordination Agreement.
Severability. Wherever possible each provision of this Subordination Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Subordination Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Subordination Agreement.
Expenses. Each Subordinated Creditor and the Borrower jointly and severally
agree to pay, upon demand, to the Administrative Agent any and all costs and
expenses, including, without limitation, reasonable attorney's fees and
disbursements, which any Lender Party may incur in connection with the exercise
or enforcement of any of the rights or interest of any Lender Party hereunder.
Governing Law, Entire Agreement, etc. THIS SUBORDINATION AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
PENNSYLVANIA. THIS SUBORDINATION AGREEMENT AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH
RESPECT THERETO.
Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS SUBORDINATION AGREEMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF ANY LENDER PARTY, THE BORROWER OR ANY SUBORDINATED CREDITOR SHALL
BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH PROPERTY MAY BE FOUND. THE BORROWER AND EACH SUBORDINATED CREDITOR
HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ALL
FEDERAL AND STATE COURTS OF THE STATE OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION SUBJECT TO ANY RIGHTS OF
APPEAL OF ANY JUDGMENT RENDERED BY THE HIGHEST COURT IN THE STATE OF NEW YORK OR
THE UNITED STATES DISTRICT COURT FOR THE STATE OF NEW YORK, AS THE CASE MAY BE.
THE BORROWER AND EACH SUBORDINATED CREDITOR FURTHER IRREVOCABLY CONSENT TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. THE BORROWER AND EACH SUBORDINATED
CREDITOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH THEY MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY
CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE
EXTENT THAT THE BORROWER OR ANY SUBORDINATED CREDITOR HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, IT HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
SUBORDINATION AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Waiver of Jury Trial. THE BORROWER AND EACH SUBORDINATED CREDITOR HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS SUBORDINATION AGREEMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
ANY LENDER PARTY, THE BORROWER OR ANY SUBORDINATED CREDITOR. THE BORROWER AND
EACH SUBORDINATED CREDITOR ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL
AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE LENDER PARTIES ENTERING INTO THE CREDIT AGREEMENT
AND THE OTHER LOAN DOCUMENTS AND THE SWAP PARTIES ENTERING INTO THE RATE
PROTECTION AGREEMENTS.
<PAGE>
IN WITNESS WHEREOF, the Borrower and each Subordinated Creditor have
caused this Subordination Agreement to be duly executed and delivered by its
Authorized Officer as of the date first written above.
HIGHLAND VIDEO ASSOCIATES, L.P.
By: Highland Holdings, its
General Partner
By: ,
a General Partner
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
ADELPHIA COMMUNICATIONS CORPORATION
By:
Title: President
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
ACKNOWLEDGED AND ACCEPTED:
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
Title: Authorized Signatory
Address: One Liberty Plaza
New York, New York 10006
Facsimile No.: (212) 225-5090
Attention: Mr. Vincent Fitzgerald
Media Communications Group
<PAGE>
[EXECUTION COPY]
MANAGER SUBORDINATION AGREEMENT
This MANAGER SUBORDINATION AGREEMENT (this "Subordination
Agreement"), dated as of February 28, 1996, is made by ADELPHIA CABLEVISION,
INC., a Pennsylvania corporation (the "Subordinated Creditor"), HIGHLAND VIDEO
ASSOCIATES, L.P., a Pennsylvania limited partnership (the "Borrower"), BUCKTAIL
BROADCASTING CORPORATION, a Pennsylvania corporation ("Bucktail"), COUDERSPORT
TELEVISION CABLE COMPANY, a Pennsylvania corporation ("CTCC"), ADELPHIA
CABLEVISION ASSOCIATES OF RADNOR, L.P., a Pennsylvania limited partnership
("Radnor"), MONTGOMERY CABLEVISION ASSOCIATES, L.P., a Pennsylvania limited
partnership ("Montgomery"), HENDERSON COMMUNITY ANTENNA TELEVISION, INC., a
North Carolina corporation ("Henderson") and each other Person (as defined in
the Credit Agreement referred to below) as may become a party to this
Subordination Agreement pursuant to clause (d) of Section 7.1.10 of the Credit
Agreement (the Borrower, Bucktail, CTCC, Radnor, Montgomery, Henderson and each
other Person that becomes a party to this Subordination Agreement herein
individually referred to as a "Subordinated Debtor" and collectively as the
"Subordinated Debtors"), and delivered by each Subordinated Debtor and the
Subordinated Creditor to and in favor of THE BANK OF NOVA SCOTIA, as
administrative agent (together with any successor(s) thereto in such capacity,
the "Administrative Agent") for the Lender Parties (as defined below). Unless
otherwise defined, all capitalized terms used herein shall have the meanings
ascribed thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of February 28,
1996 (as amended or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the financial institutions from time to time
parties thereto (the "Lenders"), Bank of Montreal, as Syndication Agent,
Chemical Bank, as Documentation Agent and the Administrative Agent, the Lenders
agreed to make Credit Extensions to the Borrower;
WHEREAS, as a condition precedent to the making of Credit Extensions
(including the initial Credit Extension) under the Credit Agreement, the parties
hereto are required to execute and deliver this Subordination Agreement;
WHEREAS, pursuant to the Credit Agreement Swap Parties may enter into
Rate Protection Agreements with the Borrower from time to time (the
Administrative Agent, the Lenders and the Swap Parties, together with their
respective successors, transferees and assigns being collectively referred to as
the "Lender Parties" and individually a "Lender Party");
WHEREAS, pursuant to each Management Agreement, the Subordinated
Creditor is the Manager thereunder and is entitled to receive the Management
Fees payable thereunder;
WHEREAS, all Indebtedness, obligations, liabilities, claims and other
amounts of any nature or type now or hereafter owing to any Subordinated
Creditor by the Subordinated Debtor in respect of all Management Fees (other
than Reimbursable Expenses ( as defined in each Management Agreement)), interest
thereon and fees in respect thereof, payable from time to time hereafter and any
extensions, renewals, refinancings or refundings thereof in whole or in part,
are hereinafter collectively referred to as the "Subordinated Debt"; and
WHEREAS, each Subordinated Debtor and the Subordinated Creditor have
agreed that the Subordinated Debt shall be subordinated in right of payment to
payment in full in cash of all Obligations (such Obligations, together with the
aggregate amount of all Letter of Credit Outstandings, are referred to herein as
"Senior Debt"; it being expressly understood and agreed that the term "Senior
Debt", as used herein, shall include, without limitation, (i) any and all
interest accruing as part of the Obligations (whether or not permitted as a
claim under applicable law) after the commencement of any bankruptcy, insolvency
or other proceedings referred to in Section 1.4 hereof, notwithstanding any
provision or rule of law which might restrict the rights of any Lender Party, as
against the Borrower or any other Person, to collect such interest in the manner
and to the extent set forth in this Subordination Agreement, (ii) all renewals,
extensions, increases, refinancings or refundings of such Obligations and (iii)
all costs of enforcement and collection of such Obligations);
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the Lenders
to make Credit Extensions to, and the Issuer to issue (and the Lenders to
participate in) Letters of Credit for the account of, the Borrower under the
Credit Agreement and the Swap Parties to enter into Rate Protection Agreements,
the Subordinated Creditor and each Subordinated Debtor hereby agree, for the
benefit of each Lender Party, as set forth above and as follows:
TERMS OF SUBORDINATION
Agreement to Subordinate.
The Subordinated Creditor and each Subordinated Debtor agrees that
the Subordinated Debt is and shall be subordinate, to the extent and in the
manner hereinafter set forth, and junior in right of payment to the prior
payment in full in cash of the Senior Debt, whether for principal, interest
(including, without limitation, interest described in the sixth recital hereof
(whether or not permitted as a claim under applicable law), accruing after the
filing of a petition initiating any proceeding referred to in Section 1.4),
fees, expenses or otherwise. Except as provided in clause (b), no payment or
other item of value on account of the principal of, the interest on, or any
other component of, any Subordinated Debt shall be made by any Subordinated
Debtor or received or accepted by the Subordinated Creditor until the
indefeasible payment in full in cash of all Senior Debt has been made and
received, all Letters of Credit have expired or been terminated and all
Commitments have been terminated.
Each Subordinated Debtor and the Subordinated Creditor agree that,
unless and until the Senior Debt shall have been paid in full in cash, all
Letters of Credit have expired or been terminated and all Commitments under the
Credit Agreement have been terminated, each Subordinated Debtor will not make,
and the Subordinated Creditor will not ask, demand, make any claim for, sue for,
take or receive from any Subordinated Debtor, directly or indirectly, in cash or
other property or by set-off or in any other manner (including, without
limitation, from or by way of collateral), payment of Subordinated Debt accrued
prior to the Fiscal Quarter immediately last ended for which a Compliance
Certificate was delivered, except to the extent permitted pursuant to Section
7.2.13 of the Credit Agreement. The Subordinated Creditor hereby agrees that the
Management Fees and any interest thereon under any Management Agreement may not
accrue at a rate such that, during any Fiscal Quarter of a Subordinated Debtor,
the total accrued Management Fees for such Subordinated Debtor exceeds 5% of
gross revenues of such Subordinated Debtor and its Subsidiaries for such Fiscal
Quarter.
For purposes of this Subordination Agreement, the Senior Debt shall not be
deemed to have been indefeasibly paid in full until (i) all Rate Protection
Agreements with Swap Parties have terminated and there are no obligations owing
to any Swap Party thereunder and (ii) the Lenders have received full payment in
cash of the Senior Debt, which payment shall have been retained by the Lenders
for a period of time in excess of all applicable preference or other similar
periods under applicable bankruptcy, insolvency or creditors' rights laws;
provided, however, if (i) all Rate Protection Agreements with Swap Parties have
terminated and all obligations thereunder have been satisfied and (ii) all
principal, interest and fees due under the Credit Agreement are repaid in full
in cash from the proceeds of a refinancing by another financial institution or
financial institutions, all Letters of Credit have expired or been terminated
and all Commitments are terminated, the Senior Debt shall, for purposes of this
Subordination Agreement, be deemed to have been indefeasibly paid in full at the
time of receipt by the Lenders of such proceeds.
No Security. Without the prior written consent of each Lender, no Subordinated
Debtor will give, and the Subordinated Creditor will not receive or accept from
the any Subordinated Debtor, any security interest in or Lien on any assets or
properties of any Subordinated Debtor, whether consensual or non-consensual, of
any nature whatsoever to secure any obligations arising in connection with
Subordinated Debt.
Trust; Security Agreement. Except with respect to payments of Subordinated
Debt permitted by clause (b) of Section 1.1 hereof and the security, if any,
received by the Subordinated Creditor with the prior written consent of the
Lenders pursuant to Section 1.2 hereof, the Subordinated Creditor will hold in
trust for, and will promptly pay over to the Administrative Agent (for the pro
rata benefit of the holders of the Senior Debt), all amounts which the
Subordinated Creditor receives on account of the Subordinated Debt and will
assign and deliver to the Administrative Agent any security which the
Subordinated Creditor receives as collateral therefor. All amounts so paid and
all realizations on account of security so assigned and delivered, and all
payments and distributions on account of the Subordinated Debt received by the
Administrative Agent pursuant to Section 1.4 hereof, shall be applied to the
payment of the Senior Debt or, if in a form other than cash, shall be held by
the Administrative Agent for the ratable benefit of the holders of the Senior
Debt as security for the Senior Debt and disposed of in any lawful manner as
such security. Upon the indefeasible payment in full in cash of the Senior Debt,
the expiration or termination of all Letters of Credit and the termination of
all Commitments, any balance of such amounts or any security remaining in the
hands of the Administrative Agent shall be paid over to, reassigned and
redelivered to the Subordinated Creditor, at its cost and expense.
Dissolution or Insolvency. Upon any payment or distribution of assets of any
Subordinated Debtor of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding up or total or partial
liquidation or reorganization of any Subordinated Debtor, whether voluntary or
involuntary or in bankruptcy, insolvency, receivership, arrangement or other
proceedings, all outstanding amounts in respect of the Senior Debt shall first
be paid in full before any payment is made on account of the principal of, or
interest on, or any other component of, the Subordinated Debt. Upon any such
dissolution or winding up or liquidation or reorganization, any payment or
distribution of assets of any Subordinated Debtor of any kind or character,
whether in cash, property or securities, to which the Subordinated Creditor
would be entitled except for the provisions hereof, shall be paid by such
Subordinated Debtor or by any receiver, trustee in bankruptcy, liquidating
trustee, agent or other Person making such payment or distribution, or by the
Subordinated Creditor if received by the Subordinated Creditor, directly to the
Administrative Agent (for the benefit of the holders of the Senior Debt) to the
extent necessary to pay the Senior Debt in cash in full, after giving effect to
any concurrent payment or distribution made on account of the Senior Debt,
before any payment or distribution is made to the Subordinated Creditor on
account of the Subordinated Debt. For such purpose, the Subordinated Creditor
hereby assigns to the Administrative Agent all right, title, claims and interest
in and to any and all such payments and distributions on account of the
Subordinated Debt. The Subordinated Creditor shall execute and deliver to the
Administrative Agent any instruments of assignment or further assurance of such
right, claim, title or interest as the Administrative Agent may hereafter
request. The Administrative Agent is hereby irrevocably authorized and
empowered, at its election and in its own name or in the name of the
Subordinated Creditor, to execute and file any proof of claim or other document
and to take any and all action with respect to the Subordinated Debt necessary
or appropriate to ensure payment to the Administrative Agent of all such
payments and distributions made on account of the Subordinated Debt, and for
such purpose the Subordinated Creditor will upon the request of the
Administrative Agent assign or endorse and deliver to the Administrative Agent
any instrument or instruments hereafter held by the Subordinated Creditor
evidencing Subordinated Debt, and will execute and deliver or will cause to be
executed and delivered any and all affidavits, powers of attorney and other
instruments and documents as may be requested by the Administrative Agent for
such purpose.
Inspection of Records. From time to time upon the request of the
Administrative Agent, each Subordinated Debtor will permit the Administrative
Agent to inspect and to make extracts from its books and records pertaining to
any Subordinated Debt, and the Subordinated Creditor will permit the
Administrative Agent at all reasonable times to examine the accounts of the
Subordinated Creditor evidencing Subordinated Debt and any other instrument or
instruments hereafter held by the Subordinated Creditor evidencing Subordinated
Debt.
Obligations Absolute, etc. This Subordination Agreement and all rights of the
Lender Parties and all obligations and duties of each Subordinated Debtor and
the Subordinated Creditor hereunder shall continue in full force and effect
notwithstanding any action which any Lender Party or the Borrower, without
notice to or consent of the Subordinated Creditor, may take or refrain from
taking with respect to the Senior Debt, including (i) any amendment,
modification, waiver, extension, increase or renewal of the Senior Debt or any
part thereof or of any instrument or instruments now or hereafter evidencing the
Senior Debt or any part thereof or of any agreement or agreements (including any
Loan Document) now or hereafter entered into by the Lender Parties and the
Borrower pursuant to which the Senior Debt or any part thereof is issued or
governed, (ii) any change in the amount, manner or place of payment of, rate of
interest on, or in any other term of, the Senior Debt or any part thereof or any
release, compliance or settlement with respect thereto, (iii) any forbearance or
agreement of forbearance with respect to the Senior Debt, (iv) any substitution,
release, non-perfection, exchange, indulgence, forbearance or other action or
dealing with respect to any collateral security for the Senior Debt, whether
such collateral is now or hereafter existing, (v) any extension of additional
credit to the Borrower by the Lender Parties, it being understood that all such
additional credit will become Senior Debt for purposes of this Subordination
Agreement, (vi) any lack of validity or enforceability of the Credit Agreement,
the Notes, any other Loan Document or any other agreement or instrument relating
thereto or (vii) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Borrower or the Subordinated
Creditor.
Application of Payments. All payments and distributions received by the
Administrative Agent in respect of the Subordinated Debt, to the extent received
in or converted into cash, may be applied by the Administrative Agent, first to
the payment of any and all expenses (including attorneys' fees and legal
expenses) paid or incurred by the Lender Parties in enforcing or collecting the
Senior Debt, in enforcing this Subordination Agreement, or in endeavoring to
collect or realize upon any of the Subordinated Debt, and any balance thereof
shall, solely as between the Subordinated Creditor and the Administrative Agent,
be applied by the Administrative Agent in such order of application as the
Administrative Agent may from time to time select, toward the payment of the
Senior Debt remaining unpaid; but, as between the Borrower and its creditors
(other than the Administrative Agent and the Lenders), no such payments or
distributions of any kind or character shall be deemed to be payments or
distributions in respect of the Senior Debt.
Subrogation. The Subordinated Creditor agrees that no payment or distribution
to the Administrative Agent shall entitle the Subordinated Creditor to exercise
any rights of subrogation in respect thereof until the Senior Debt shall have
been indefeasibly paid in full in cash, all Letters of Credit shall have expired
or been terminated and all Commitments shall have been terminated. The
Subordinated Creditor agrees that the subordination provisions contained herein
shall not be affected by any action, or failure to act by any Lender Party which
results, or may result, in affecting, impairing or extinguishing any right of
reimbursement or subrogation or other right or remedy of the Subordinated
Creditor.
Waivers by the Subordinated Creditor. The Subordinated Creditor hereby waives:
(i) notice of acceptance of this Subordination Agreement by any Lender Party or
any other holder of Senior Debt; (ii) notice of the existence, or creation or
non-payment of all or any portion of, the Senior Debt and (iii) all diligence in
collection or protection of, or realization upon, the Senior Debt, or any part
thereof, or any security therefor.
No Commencement of Any Proceeding. The Subordinated Creditor agrees that, so
long as any of the Senior Debt shall remain unpaid, it will not commence, or
join with any creditor other than the Administrative Agent (if the
Administrative Agent specifically approves in writing) in commencing, any
proceeding (or otherwise making any claim) referred to in Section 1.4.
Subordination Legend; Further Assurances. The Subordinated Creditor and each
Subordinated Debtor will cause each instrument evidencing Subordinated Debt to
be endorsed with the following legend:
"The indebtedness evidenced by this instrument is
subordinated to the prior payment in full in cash of the Senior Debt, as defined
in, and to the extent provided in, the Subordination Agreement, dated as of
February 28, 1996, by the maker hereof and payee named herein in favor of The
Bank of Nova Scotia, as administrative agent (the "Administrative Agent") for
the financial institutions (the "Lenders") parties to the Credit Agreement,
dated as of February 28, 1996, among Highland Video Associates, L.P., the
Lenders, Bank of Montreal, as Syndication Agent, Chemical Bank, as Documentation
Agent and the Administrative Agent, as each such agreement may be amended or
otherwise modified from time to time."
The Subordinated Creditor and each Subordinated Debtor each will further mark
its books of account in such a manner as shall be effective to give proper
notice of the effect of this Subordination Agreement and will, in the case of
any Subordinated Debt which is not evidenced by any instrument, upon the
Administrative Agent's request, cause such Subordinated Debt to be evidenced by
an appropriate instrument or instruments endorsed with the above legend. The
Subordinated Creditor and each Subordinated Debtor each will, at its 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 may be reasonably
necessary or desirable, or that the Administrative Agent may request, in order
to protect any right or interest granted or purported to be granted hereby or to
enable the Administrative Agent to exercise and enforce its rights and remedies
hereunder.
No Change in or Disposition of Subordinated Debt. The Subordinated Creditor
will not:
cancel or otherwise discharge all or any portion of any Subordinated
Debt (except upon payment in full in cash thereof paid in accordance with the
terms of this Subordination Agreement) unless such cancellation or discharge is
in connection with the conversion of such Subordinated Debt into equity;
sell, assign, pledge, encumber or otherwise dispose of any or any
part of any Subordinated Debt to any Person or entity other than the
Subordinated Debtors or any of their respective Subsidiaries;
take or permit to be taken, any action to assert, collect or enforce
any Subordinated Debt or any part thereof, except in accordance with this
Subordination Agreement and only as to that portion of the Subordinated Debt, if
any, to which the Subordinated Creditors are entitled; or
permit the terms of any of the Subordinated Debt to be changed in
such a manner as to have an adverse effect upon the rights or interests of any
Lender Party hereunder.
Representations and Warranties. The Subordinated Creditor and each
Subordinated Debtor hereby represent and warrant as follows:
No default exists in respect of any Subordinated Debt.
This Subordination Agreement has been duly executed and delivered by
it and constitutes the legal, valid and binding obligations of each Subordinated
Debtor and the Subordinated Creditor, enforceable against each Subordinated
Debtor and the Subordinated Creditor in accordance with its terms.
The Subordinated Creditor owns the Subordinated Debt now outstanding
free and clear of any Lien.
Limited Recourse. Notwithstanding any contrary provision of this Subordination
Agreement or any other document or instrument governing any Subordinated Debt,
no recourse shall be had for the payment of the principal of or interest or
premium, if any, on any Subordinated Debt or for any claim based thereon against
any Partner or any limited partner or general partner of any General Partner, or
any legal representative, heir, estate, permitted successor or assign of any
thereof. It is understood that all obligations owing in respect of any
Subordinated Debt may not be enforced against any Person described above;
provided, however, that this Section 1.14 shall not (i) constitute a waiver,
release or discharge of any Subordinated Debt, but such Subordinated Debt shall
remain outstanding until paid or discharged, (ii) limit any rights, claims for
damages or recourse of the Subordinated Creditor or its transferees or assigns
as a result of (x) any knowing or wilful breach by such Person of any
representation or warranty made by such Person under or pursuant to any document
or instrument governing any Subordinated Debt or (y) any knowing or wilful
breach of any covenant or other obligation by such Person under any document or
instrument governing the Subordinated Debt or (iii) limit the right of any such
Person to name any Subordinated Debtor as a party defendant in any action or
suit for a judicial sale or in the exercise of any other remedy under this
Subordination Agreement, so long as no judgment in the nature of a deficiency
judgment shall be asked for, taken or enforced against any such Person.
Notwithstanding the foregoing, nothing herein shall be construed to constitute a
waiver by the Subordinated Creditor of any rights to damages, other monetary
relief, injunctive relief or any other remedy at law or equity against any
Subordinated Debtor or any general partner or limited partner of such Person by
reason of fraud, breach of representations and warranties, wilful tortious acts
or omissions, gross negligence or criminal acts.
MISCELLANEOUS PROVISIONS
Construction, etc. This Subordination Agreement is executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof.
Binding on Successors, Transferees and Assigns; Assignment. This Subordination
Agreement shall be binding upon each Subordinated Debtor and the Subordinated
Creditor and their respective permitted successors, transferees and assigns and
shall inure to the benefit of and be enforceable by each Lender Party and their
respective successors, transferees and assigns; provided, however, that no
Subordinated Debtor or Subordinated Creditor may assign any of its obligations
hereunder without the prior written consent of all Lenders. Without limitation
to the foregoing, if any Subsidiary of the Subordinated Creditor becomes the
Manager, such Subsidiary shall become a party to this Subordination Agreement by
executing a counterpart hereof on terms satisfactory to the Administrative
Agent.
Amendments, etc. No amendment to or waiver of any provision of this
Subordination Agreement, nor consent to any departure by any Subordinated Debtor
or the Subordinated Creditor herefrom, shall in any event be effective unless
the same shall be in writing and signed by the Administrative Agent, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
Addresses for Notices. All notices and other communications provided to any
Subordinated Debtor, the Subordinated Creditor or the Administrative Agent under
this Subordination Agreement or any other Loan Document shall be in writing and
mailed, delivered or transmitted to such Subordinated Debtor, the Subordinated
Creditor or the Administrative Agent at its address or facsimile number set
forth below its signature hereto or at such other address or facsimile number as
may be designated by such Subordinated Debtor, the Borrower, the Subordinated
Creditor or the Administrative Agent in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or, if properly
addressed and sent by prepaid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed given when
transmitted (upon receipt of electronic confirmation of transmission).
No Waiver; Remedies. No failure on the part of any Lender Party to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section Captions. Section captions used in this Subordination Agreement are
for convenience of reference only, and shall not affect the
construction of this Subordination Agreement.
Severability. Wherever possible each provision of this Subordination Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Subordination Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Subordination Agreement.
Expenses. The Subordinated Creditor and each Subordinated Debtor jointly and
severally agree to pay, upon demand, to the Administrative Agent any and all
costs and expenses, including, without limitation, reasonable attorney's fees
and disbursements, which any Lender Party may incur in connection with the
exercise or enforcement of any of the rights or interest of any Lender Party
hereunder.
Governing Law, Entire Agreement, etc. THIS SUBORDINATION AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
PENNSYLVANIA. THIS SUBORDINATION AGREEMENT AND THE OTHER LOAN DOCUMENTS
CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE
SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH
RESPECT THERETO.
Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS SUBORDINATION AGREEMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF ANY LENDER PARTY, ANY SUBORDINATED DEBTOR OR THE SUBORDINATED
CREDITOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE
OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF
ANY JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. EACH SUBORDINATED DEBTOR AND
THE SUBORDINATED CREDITOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ALL FEDERAL AND STATE COURTS OF THE STATE OF NEW
YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION SUBJECT TO ANY RIGHTS OF APPEAL OF ANY JUDGMENT RENDERED BY THE
HIGHEST COURT IN THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR
THE STATE OF NEW YORK, AS THE CASE MAY BE. EACH SUBORDINATED DEBTOR AND THE
SUBORDINATED CREDITOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE
STATE OF NEW YORK. EACH SUBORDINATED DEBTOR AND THE SUBORDINATED CREDITOR HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT ANY SUBORDINATED DEBTOR OR THE SUBORDINATED CREDITOR HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, IT HEREBY
IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
SUBORDINATION AGREEMENT AND THE OTHER LOAN DOCUMENTS.
Waiver of Jury Trial. EACH SUBORDINATED DEBTOR AND THE SUBORDINATED CREDITOR
EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH, THIS SUBORDINATION AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF ANY LENDER PARTY, ANY SUBORDINATED DEBTOR OR THE SUBORDINATED
CREDITOR. EACH SUBORDINATED DEBTOR AND THE SUBORDINATED CREDITOR EACH
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT THE LENDER
PARTIES ENTERING INTO THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS AND THE
SWAP PARTIES ENTERING INTO THE RATE PROTECTION AGREEMENTS.
<PAGE>
-61-
IN WITNESS WHEREOF, each Subordinated Debtor and the Subordinated
Creditor has caused this Subordination Agreement to be duly executed and
delivered by its respective Authorized Officer as of the date first written
above.
ADELPHIA CABLEVISION, INC.
By:
Title:
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
HIGHLAND VIDEO ASSOCIATES, L.P.
By: Highland Holdings, its
General Partner
By: ,
a General Partner
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
COUDERSPORT TELEVISION CABLE
COMPANY
By:
Title:
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
<PAGE>
ADELPHIA CABLEVISION ASSOCIATES
OF RADNOR, L.P.
By: Highland Video Associates,
L.P., its General Partner
By: Highland Holdings, its
General Partner
By: ,
a General Partner
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
MONTGOMERY CABLEVISION
ASSOCIATES, L.P.
By: Highland Video Associates,
L.P., its General Partner
By: Highland Holdings, its
General Partner
By: ,
a General Partner
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
HENDERSON COMMUNITY ANTENNA
TELEVISION, INC.
By:
Title:
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
BUCKTAIL BROADCASTING CORPORATION
By:
Title:
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
ACKNOWLEDGED AND ACCEPTED:
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
Title: Authorized Signatory
Address: One Liberty Plaza
New York, New York 10006
Facsimile No.: (212) 225-5090
Attention: Mr. Vincent Fitzgerald
Media Communications Group
<PAGE>
[EXECUTION COPY]
<PAGE>
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- --------------------------------------------------------------------------------
SUBSIDIARY GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of February 28, 1996, made
by each Subsidiary of Highland Video Associates, L.P., a Pennsylvania limited
partnership (the "Borrower") on the Effective Date, and each other Person (as
defined in the Credit Agreement referred to below) as may become a party to this
Guaranty pursuant to Section 5.9 hereof (each individually a "Guarantor" and
collectively the "Guarantors"), in favor of each of the Lender Parties (as
defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of February 28,
1996 (the "Credit Agreement"), among the Borrower, the financial institutions
from time to time parties thereto (the "Lenders"), Bank of Montreal, as
Syndication Agent, Chemical Bank, as Documentation Agent and The Bank of Nova
Scotia, as administrative agent (the "Administrative Agent") for such Lenders,
such Lenders have agreed to make Loans to, and the Issuer has agreed to issue
(and the Lenders have agreed to participate in) Letters of Credit for the
account of, the Borrower;
WHEREAS, as a condition precedent to the making of Credit Extensions
(including the initial Credit Extensions) under the Credit Agreement, each
Guarantor is required to execute and deliver this Guaranty;
WHEREAS, each Guarantor has duly authorized the execution, delivery
and performance of this Guaranty;
WHEREAS, it is in the best interests of each Guarantor to execute
this Guaranty inasmuch as such Guarantor will derive substantial direct and
indirect benefits from the Credit Extensions made from time to time to the
Borrower by the Lender Parties pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Lender Parties to make
Credit Extensions to the Borrower pursuant to the Credit Agreement, each
Guarantor agrees, for the benefit of each Lender Party, as follows:
DEFINITIONS
Certain Terms. The following terms (whether or not underscored) when used in
this Guaranty, including its preamble and recitals, shall have the following
meanings (such definitions to be equally applicable to the singular and plural
forms thereof):
"Administrative Agent" is defined in the first recital.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Guaranteed Obligations" is defined in clause (a) of Section 2.1.
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender Party" means, as the context may require, each Lender, the
Issuer, any Swap Party, the Syndication Agent, the Documentation Agent, and the
Administrative Agent and each of their respective successors, transferees and
assigns.
"Lenders" is defined in the first recital.
Credit Agreement Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Guaranty, including its preamble and
recitals, have the meanings provided in the Credit Agreement.
GUARANTY PROVISIONS
Guaranty. Each Guarantor hereby jointly and severally absolutely,
unconditionally and irrevocably
guarantees the full and punctual payment when due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise, of all
Obligations of the Borrower (the "Guaranteed Obligations"), whether for
principal, interest, fees, expenses or otherwise (including all such amounts
which would become due and interest, fees, and charges that would accrue after
the commencement of a bankruptcy proceeding, 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
indemnifies and holds harmless each Lender Party for any and all costs and
expenses (including reasonable attorney's fees and expenses) incurred by such
Lender Party in enforcing any rights under this Guaranty;
provided, however, that each Guarantor shall only be liable under this Guaranty
for the maximum amount of such liability that can be hereby incurred without
rendering this Guaranty, as it relates to such Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount. This Guaranty constitutes a guaranty of payment when due
and not of collection, and each Guarantor specifically agrees that all
obligations arising under this Guaranty shall be the joint and several
obligations of the Guarantors, and 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 the Borrower or any other Obligor (or any other
Person) before or as a condition to the obligations of such Guarantor hereunder.
Acceleration of Guaranty. Each Guarantor agrees that, in the event of the
dissolution or insolvency of the Borrower, or the occurrence of a Default of the
type described in Section 8.1.9 of the Credit Agreement or any Event of Default,
and if such Default or Event of Default shall occur at a time when any of the
Obligations of the Borrower or any other Obligor may not then be due and
payable, such Guarantor will pay to the Lender Parties forthwith the full amount
which would be payable hereunder by such Guarantor if all such Guaranteed
Obligations were then due and payable.
Guaranty Absolute, etc. This Guaranty shall in all respects be a continuing,
absolute, unconditional and irrevocable guaranty of payment, and shall remain in
full force and effect until all Guaranteed Obligations have been paid in full in
cash, all obligations of each Guarantor hereunder shall have been paid in full
in cash, all Letters of Credit have expired or terminated and all Commitments
shall have terminated. Each Guarantor guarantees that the Guaranteed Obligations
will be paid strictly in accordance with the terms of the Credit 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. The liability of each Guarantor
under this Guaranty shall be absolute, unconditional and irrevocable
irrespective of:
any lack of validity, legality or enforceability of the Credit Agreement,
any Note or any other Loan Document;
the failure of any Lender Party
to assert any claim or demand or to enforce any right or remedy against the
Borrower, any other Obligor or any other Person (including any other guarantor)
under the provisions of the Credit Agreement, any Note, any other Loan Document
or otherwise, or
to exercise any right or remedy against any other guarantor of, or collateral
securing, any Guaranteed Obligations;
any change in the time, manner or place of payment of, or in any other term
of, all or any of the Guaranteed Obligations or any other extension, compromise
or renewal of any Guaranteed Obligation;
any reduction, limitation, impairment or termination of the Guaranteed
Obligations for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and each Guarantor 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 Guaranteed Obligations or otherwise;
any amendment to, rescission, waiver, or other modification of, or any consent
to departure from, any of the terms of the Credit Agreement, any Note or any
other Loan Document;
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 securing any of
the Guaranteed Obligations; or
any other circumstance which might otherwise constitute a defense available
to, or a legal or equitable discharge of, the Borrower, any other Obligor, any
surety or any guarantor.
Reinstatement, etc. Each Guarantor agrees that this Guaranty 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 Guaranteed Obligations is rescinded or must
otherwise be restored by any Lender Party, upon the insolvency, bankruptcy or
reorganization of the Borrower, any other Obligor or otherwise, all as though
such payment had not been made.
Waiver, etc. Each Guarantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty and any requirement that the Administrative Agent
or any other 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 the Borrower, any other Obligor or any other Person
(including any other guarantor) or entity or any collateral securing the
Obligations of the Borrower or any other Obligor, as the case may be.
Postponement of Subrogation. Each Guarantor agrees that it will not exercise
any rights which it may acquire by way of subrogation under this Guaranty, by
any payment made hereunder or otherwise, until the prior payment, in full and in
cash, of all Obligations of the Borrower and each other Obligor, the termination
or expiration of all Letters of Credit and the termination of all Commitments.
Any amount paid to such Guarantor on account of any such subrogation rights
prior to the payment in full of all Obligations of the Borrower and each other
Obligor, the termination or expiration of all Letters of Credit and the
termination of all Commitments shall be held in trust for the benefit of the
Lender Parties and shall immediately be paid to the Lender Parties and credited
and applied against the Obligations of the Borrower and each other Obligor,
whether matured or unmatured, in accordance with the terms of the Credit
Agreement; provided, however, that if
(a) such Guarantor has made payment to the Lender Parties
of all or any part of the Obligations of the Borrower or any
other Obligor, and
(b) all Obligations of the Borrower and each other Obligor
have been paid in full, all Letters of Credit have expired or been terminated
and all Commitments have been terminated,
each Lender Party agrees that, at such Guarantor's request, the Lender Parties
will execute and deliver to such Guarantor appropriate documents (without
recourse and without representation or warranty) necessary to evidence the
transfer by subrogation to such Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by such Guarantor. In furtherance of the
foregoing, for so long as any Guaranteed Obligations, Letters of Credit or
Commitments remain outstanding, each Guarantor shall refrain from taking any
action or commencing any proceeding against the Borrower or any other Obligor
(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 this Guaranty to any Lender Party.
Successors, Transferees and Assigns; Transfers of Notes, etc. This Guaranty
shall:
be binding upon each Guarantor, and its successors, transferees and assigns;
and
inure to the benefit of and be enforceable by the Administrative Agent and
each other Lender Party.
Without limiting the generality of clause (b), any Lender may assign or
otherwise transfer (in whole or in part) any Note or Loan held by it to any
other Person or entity, and such other Person or entity shall thereupon become
vested with all rights and benefits in respect thereof granted to such Lender
under any Loan Document (including this Guaranty) or otherwise, subject,
however, to the provisions of Section 10.11 and Article IX of the Credit
Agreement.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. Each Guarantor hereby represents and warrants
to each Lender Party that the representations and warranties contained in
Article VI of the Credit Agreement, insofar as the representations and
warranties contained therein are applicable to such Guarantor and its properties
(it being acknowledged and agreed that for all purposes of such representations
CTCC shall be deemed to be a Subsidiary of the Borrower), are true and correct
in all respects, each such representation and warranty set forth in such Article
(insofar as applicable as aforesaid) and all other terms of the Credit Agreement
to which reference is made therein, together with all related definitions and
ancillary provisions, being hereby incorporated into this Guaranty by reference
as though specifically set forth in this Section.
<PAGE>
COVENANTS, ETC.
Covenants. Each Guarantor agrees with each Lender Party that, until all
Letters of Credit have been terminated or expired, all Commitments have
terminated and all Guaranteed Obligations have been paid in full in cash, such
Guarantor will perform, comply with and be bound by all of the agreements,
covenants and obligations contained in Article VII of the Credit Agreement and
in any other Loan Document applicable to such Guarantor or its properties (it
being acknowledged and agreed that for all purposes of such agreements,
covenants and obligations CTCC shall be deemed to be a Subsidiary of the
Borrower). Each such agreement, covenant and obligation contained in such
Sections and in any other Loan Document and all other terms of the Credit
Agreement and the Loan Documents to which reference is made therein, together
with all related definitions and ancillary provisions, are hereby incorporated
into this Guaranty by reference as though specifically set forth in this
Section, and each such agreement, covenant and obligation shall, for purposes
hereof, survive the termination of the Credit Agreement and the Loan Documents
until this Guaranty has terminated in full in accordance with Section 2.3
hereof.
MISCELLANEOUS PROVISIONS
Loan Document. This Guaranty is a Loan Document executed pursuant to the
Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof, including, without limitation, Article X thereof.
Binding on Successors, Transferees and Assigns; Assignment. In addition to,
and not in limitation of, Section 2.7, this Guaranty shall be binding upon each
Guarantor and its successors, transferees and assigns and shall inure to the
benefit of and be enforceable by each Lender Party and its successors,
transferees and assigns (to the full extent provided pursuant to Section 2.7);
provided, however, that no Guarantor may assign any of its obligations hereunder
without the prior written consent of all Lenders.
Amendments, etc. No amendment to or waiver of any provision of this Guaranty,
nor consent to any departure by any Guarantor herefrom, shall in any event be
effective unless the same shall be in writing and signed by the Administrative
Agent, and then such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
Addresses for Notices. All notices and other communications provided to any
party hereto shall be in writing and mailed, delivered or transmitted to such
party at the address or facsimile number set forth below its signature hereto
and, if to the Administrative Agent, mailed, delivered or transmitted to it at
the address or facsimile number of the Administrative Agent specified in the
Credit Agreement, or, as to any party, at such other address or facsimile number
as shall be designated by such party in a written notice to each other party
complying as to delivery with the terms of this Section. Any notice, if mailed
and properly addressed with postage prepaid or if properly addressed and sent by
prepaid courier service, shall be deemed given when received; any notice, if
transmitted by facsimile, shall be deemed given when transmitted (upon receipt
of electronic confirmation of transmission).
No Waiver; Remedies. In addition to, and not in limitation of, Section 2.3 and
Section 2.5, no failure on the part of any Lender Party to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
Captions. Section captions used in this Guaranty are for convenience of
reference only, and shall not affect the construction of this
Guaranty.
Setoff. In addition to, and not in limitation of, any rights of any Lender
Party under applicable law, each Lender Party shall, upon the occurrence of any
Default described in any of clauses (a) through (d) of Section 8.1.9 of the
Credit Agreement or any Event of Default, have the right to appropriate and
apply to the payment of the obligations of any Guarantor owing to it hereunder,
whether or not then due, any and all balances, credits, deposits, accounts or
moneys of such Guarantor then or thereafter maintained with such Lender Party;
provided, however, that any such appropriation and application shall be subject
to the provisions of Section 4.8 of the Credit Agreement.
Severability. Wherever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
Future Guarantors. Any Person required to become a party to this Guaranty from
and after the Effective Date pursuant to Section 7.1.10 of the Credit Agreement
may do so by executing a signed counterpart of this Guaranty on terms
satisfactory to the Administrative Agent.
Governing Law. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. FOR PURPOSES OF ANY ACTION OR
PROCEEDING INVOLVING THIS GUARANTY, EACH GUARANTOR HEREBY EXPRESSLY SUBMITS TO
THE JURISDICTION OF ALL FEDERAL AND STATE COURTS LOCATED IN THE STATE OF NEW
YORK.
Waiver of Jury Trial. EACH GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY. EACH GUARANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE LENDER PARTIES ENTERING INTO THE CREDIT AGREEMENT.
Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY OR ANY
OTHER LOAN DOCUMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY LENDER PARTY OR ANY GUARANTOR SHALL
BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;
PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH PROPERTY MAY BE FOUND. EACH GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR
THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO
BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION
SUBJECT TO ANY RIGHTS OF APPEAL OF ANY JUDGMENT RENDERED BY THE HIGHEST COURT IN
THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE STATE OF NEW
YORK, AS THE CASE MAY BE. EACH GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE
SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PAID, OR BY PERSONAL SERVICE
WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT SUCH
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, SUCH GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY.
<PAGE>
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
ADELPHIA CABLEVISION ASSOCIATES OF
RADNOR, L.P.
By: Highland Video Associates,
L.P., its General Partner
By: Highland Holdings, its
General Partner
By: ,
a General Partner
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
MONTGOMERY CABLEVISION
ASSOCIATES, L.P.
By: Highland Video Associates,
L.P., its General Partner
By: Highland Holdings, its
General Partner
By: ,
a General Partner
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
<PAGE>
- -70-
BUCKTAIL BROADCASTING CORPORATION
By:
Title:
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
HENDERSON COMMUNITY ANTENNA
TELEVISION, INC.
By:
Title:
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
MONTGOMERY CABLEVISION, INC.
By:
Title:
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
COUDERSPORT TELEVISION CABLE
COMPANY
By:
Title:
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
<PAGE>
[EXECUTION COPY]
<PAGE>
BORROWER PLEDGE AGREEMENT
THIS BORROWER PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of
February 28, 1996, made by HIGHLAND VIDEO ASSOCIATES, L.P., a Pennsylvania
limited partnership (the "Pledgor"), in favor of THE BANK OF NOVA SCOTIA, as
administrative agent (together with any successor(s) thereto in such capacity,
the "Administrative Agent") for each of the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of February 28,
1996 (the "Credit Agreement"), among the Pledgor, the financial institutions
from time to time parties thereto (the "Lenders"), Bank of Montreal, as
Syndication Agent, Chemical Bank, as Documentation Agent, and the Administrative
Agent, the Lenders have agreed to make Loans to, and the Issuer has agreed to
issue (and the Lenders have agreed to participate in) Letters of Credit for the
account of, the Pledgor;
WHEREAS, as a condition precedent to the making of Credit Extensions
(including the initial Credit Extensions) under the Credit Agreement, the
Pledgor is required to execute and deliver this Pledge Agreement; and
WHEREAS, the Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Lender Parties to make
Credit Extensions to the Pledgor pursuant to the Credit Agreement, the Pledgor
agrees, for the benefit of each Lender Party, as follows:
DEFINITIONS
Certain Terms. The following terms (whether or not underscored) when used in
this Pledge Agreement, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to the singular
and plural forms thereof):
<PAGE>
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"Administrative Agent" is defined in the preamble.
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"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect
to any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Federal Securities Laws" is defined in Section 6.2.
"Lender Party" means, as the context may require, each Lender, the
Issuer, any Swap Party, the Syndication Agent, the Documentation Agent and the
Administrative Agent and each of their respective successors, transferees and
assigns.
"Lenders" is defined in the first recital.
"Pledge Agreement" is defined in the preamble.
"Pledged Property" means all Pledged Shares, and all other pledged
shares of capital stock, all other securities, all assignments of any amounts
due or to become due, all other instruments which are now being delivered by the
Pledgor to the Administrative Agent or may from time to time hereafter be
delivered by the Pledgor to the Administrative Agent for the purpose of pledge
under this Pledge Agreement or any other Loan Document, and all proceeds of any
of the foregoing.
"Pledged Share Issuer" means each Person identified in Item A of
Attachment 1 hereto as the issuer of the Pledged Shares identified opposite the
name of such Person.
"Pledged Shares" means all shares of capital stock of any Pledged
Share Issuer which are delivered by the Pledgor to the Administrative Agent as
Pledged Property hereunder.
"Pledgor" is defined in the preamble.
"Secured Obligations" is defined in Section 2.2.
"Securities Act" is defined in Section 6.2.
"U.C.C." means the Uniform Commercial Code as in effect in the State
of New York.
Credit Agreement Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Pledge Agreement, including its preamble
and recitals, have the meanings provided in the Credit Agreement.
U.C.C. Definitions. Unless otherwise defined herein or the context otherwise
requires, terms for which meanings are provided in the U.C.C.
are used in this Pledge Agreement, including its preamble and recitals, with
such meanings.
PLEDGE
Grant of Security Interest. The Pledgor hereby grants, pledges, hypothecates,
assigns, charges, mortgages, delivers, and transfers to the Administrative
Agent, for its benefit and the ratable benefit of each of the Lender Parties, a
continuing security interest in, all of the following property (the
"Collateral"):
all issued and outstanding shares of capital stock of each Pledged Share
Issuer identified in Item A of Attachment 1 hereto;
all other Pledged Shares issued from time to time;
all other Pledged Property, whether now or hereafter delivered to the
Administrative Agent in connection with this Pledge Agreement;
all Dividends, Distributions, and other payments and rights with respect to
any Pledged Property; and
all proceeds of any of the foregoing.
Security for Obligations. This Pledge Agreement secures the payment in full of
all Obligations now or hereafter existing under the Credit Agreement and each
other Loan Document to which the Pledgor is or may become a party, whether for
principal, interest, costs, fees, expenses, or otherwise (all such Obligations
being the "Secured Obligations").
Delivery of Pledged Property. All certificates or instruments representing or
evidencing any Collateral, including all Pledged Shares, shall be delivered to
and held by or on behalf of the Administrative Agent pursuant hereto, shall be
in suitable form for transfer by delivery, and shall be accompanied by all
necessary instruments of transfer or assignment, duly executed in blank.
Dividends on Pledged Shares. In the event that any Dividend is to be paid on
any Pledged Share as permitted in accordance with clause (g) of Section 7.2.2 or
Section 7.2.6 of the Credit Agreement, such Dividend may be paid directly to the
Pledgor. If not otherwise permitted to be paid under the Credit Agreement, then
any such Dividend shall be paid directly to the Administrative Agent.
Continuing Security Interest; Transfer of Note. This Pledge Agreement shall
create a continuing security interest in the Collateral and shall
remain in full force and effect as hereinafter provided in this Section 2.5
until payment in full in cash of all Secured Obligations, the termination or
expiration of all Letters of Credit and the termination of all Commitments,
be binding upon the Pledgor and its successors, transferees and assigns, and
inure, together with the rights and remedies of the Administrative Agent
hereunder, to the benefit of the Administrative Agent and each other Lender
Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the provisions
of Section 10.11 and Article IX of the Credit Agreement. Notwithstanding
anything to the contrary contained herein, upon the payment in full in cash of
all principal, interest and fees due under the Credit Agreement, the termination
or expiration of all Letters of Credit, the termination of all Commitments, the
termination of all Rate Protection Agreements with Swap Parties and the
satisfaction of all obligations owing to any Lender thereunder, the obligations
of the Pledgor hereunder (except under Section 6.5, which shall survive the
termination of this Pledge Agreement) and the security interests granted herein
shall terminate and all rights to the Collateral shall revert to the Pledgor.
Upon any such termination, the Administrative Agent will, at the Pledgor's sole
expense, deliver to the Pledgor, without any representations, warranties or
recourse of any kind whatsoever, all certificates and instruments representing
or evidencing all Pledged Shares, together with all other Collateral held by the
Administrative Agent hereunder, and execute and deliver to the Pledgor such
documents as the Pledgor shall reasonably request to evidence such termination.
<PAGE>
REPRESENTATIONS AND WARRANTIES
Warranties, etc. The Pledgor represents and warrants unto each Lender Party,
as at the date of each pledge and delivery hereunder (including each pledge and
delivery of Pledged Shares) by the Pledgor to the Administrative Agent of any
Collateral, as set forth in this Article.
SECTION 3.1.1. Ownership, No Liens, etc. The Pledgor is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) such Collateral, free and clear of all
Liens, security interests, options, or other charges or encumbrances, except any
Lien or security interest granted pursuant hereto in favor of the Administrative
Agent.
SECTION 3.1.2. Valid Security Interest. The delivery by the Pledgor
of such Collateral to the Administrative Agent is effective to
create a valid, perfected, first priority security interest in such Collateral
and all proceeds thereof, securing the Secured Obligations. No
filing or other action will be necessary to perfect or protect such security
interest.
SECTION 3.1.3. As to Pledged Shares. In the case of any Pledged
Shares constituting such Collateral, all of such Pledged Shares are duly
authorized and validly issued, fully paid, and non-assessable, and constitute
that percentage of all of the issued and outstanding shares of capital stock of
each Pledged Share Issuer as set forth in Attachment 1 hereto. The Pledgor has
no Subsidiaries that are corporations other than the Pledged Share Issuers of
the Pledgor.
<PAGE>
-112-
SECTION 3.1.4. Authorization, Approval, etc. No authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority, regulatory body or any other Person is required either
for the pledge by the Pledgor of any Collateral pursuant to this Pledge
Agreement or for the execution, delivery, and performance of this Pledge
Agreement by the Pledgor, or
for the exercise by the Administrative Agent of the voting or other rights
provided for in this Pledge Agreement, or, except with respect to any Pledged
Shares, as may be required in connection with a disposition of such Pledged
Shares by laws affecting the offering and sale of securities generally, the
remedies in respect of the Collateral pursuant to this Pledge Agreement.
SECTION 3.1.5. Compliance with Laws. The Pledgor is in compliance
with the requirements of all applicable laws (including, without limitation, the
provisions of the Fair Labor Standards Act), rules, regulations and orders of
every governmental authority, the non-compliance with which might materially
adversely affect the business, properties, assets, operations, condition
(financial or otherwise) or prospects of the Pledgor or the value of the
Collateral or the worth of the Collateral as collateral security.
COVENANTS
Protect Collateral; Further Assurances, etc. Except as expressly permitted by
the Credit Agreement, the Pledgor will not sell, assign, transfer, pledge, or
encumber in any other manner the Collateral (except in favor of the
Administrative Agent hereunder). The Pledgor will warrant and defend the right
and title herein granted unto the Administrative Agent in and to the Collateral
(and all right, title, and interest represented by the Collateral) against the
claims and demands of all Persons whomsoever. The Pledgor agrees that at any
time, and from time to time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver all further instruments, and take all further
action, that may be reasonably necessary or desirable, or that the
Administrative Agent may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with respect to any Collateral.
Stock Powers, etc. The Pledgor agrees that all Pledged Shares (and all other
shares of capital stock constituting Collateral) delivered by the Pledgor
pursuant to this Pledge Agreement will be accompanied by duly executed undated
blank stock powers, or other equivalent instruments of transfer acceptable to
the Administrative Agent. The Pledgor will, from time to time upon the request
of the Administrative Agent, promptly deliver to the Administrative Agent such
stock powers, instruments, and similar documents, satisfactory in form and
substance to the Administrative Agent, with respect to the Collateral as the
Administrative Agent may reasonably request and will, from time to time upon the
request of the Administrative Agent after the occurrence of any Event of
Default, promptly transfer any Pledged Shares or other shares of common stock
constituting Collateral into the name of any nominee designated by the
Administrative Agent.
Continuous Pledge. Subject to Section 2.4, the Pledgor will, at all times,
keep pledged to the Administrative Agent pursuant hereto all Pledged Shares and
all other shares of capital stock constituting Collateral, all Dividends and
Distributions with respect thereto, and all other Collateral and other
securities, instruments, proceeds, and rights from time to time received by or
distributable to the Pledgor in respect of any Collateral.
Voting Rights; Dividends, etc. The Pledgor agrees:
after any Default of the type described in Section 8.1.9 of the Credit
Agreement or an Event of Default shall have occurred and be continuing, promptly
upon receipt thereof by the Pledgor and without any request therefor by the
Administrative Agent, to deliver (properly endorsed where required hereby or
requested by the Administrative Agent) to the Administrative Agent all
Dividends, Distributions, all other cash payments and all proceeds of the
Collateral, all of which shall be held by the Administrative Agent as additional
Collateral for use in accordance with Section 6.3; and
after any Event of Default shall have occurred and be continuing and the
Administrative Agent has notified the Pledgor of the Administrative Agent's
intention to exercise its voting power under this clause (b),
the Administrative Agent may exercise (to the exclusion of the Pledgor) the
voting power and all other incidental rights of ownership with respect to any
Pledged Shares or other shares of capital stock constituting Collateral and the
Pledgor hereby grants the Administrative Agent an irrevocable proxy, exercisable
under such circumstances, to vote the Pledged Shares and such other Collateral;
and
promptly to deliver to the Administrative Agent such additional proxies and
other documents as may be necessary to allow the Administrative Agent to
exercise such voting power.
All Dividends, Distributions, cash payments and proceeds which may at any time
and from time to time be held by the Pledgor but which the Pledgor is then
obligated to deliver to the Administrative Agent, shall, until delivery to the
Administrative Agent, be held by the Pledgor separate and apart from its other
property in trust for the Administrative Agent. The Administrative Agent agrees
that unless an Event of Default shall have occurred and be continuing and the
Administrative Agent shall have given the notice referred to in clause (b) of
this Section 4.4, the Pledgor shall have the exclusive voting power with respect
to any shares of capital stock (including any of the Pledged Shares)
constituting Collateral and the Administrative Agent shall, upon the written
request of the Pledgor, promptly deliver such proxies and other documents, if
any, as shall be reasonably requested by the Pledgor which are necessary to
allow the Pledgor to exercise voting power with respect to any such share of
capital stock (including any of the Pledged Shares) constituting Collateral;
provided, however, that no vote shall be cast, or consent, waiver, or
ratification given, or action taken by the Pledgor that would impair any
Collateral or be inconsistent with or violate any provision of the Credit
Agreement or any other Loan Document (including this Pledge Agreement).
THE ADMINISTRATIVE AGENT
Administrative Agent Appointed Attorney-in-Fact. The Pledgor hereby
irrevocably appoints the Administrative Agent the Pledgor's attorney-in-fact,
with full authority in the place and stead of the Pledgor and in the name of the
Pledgor or otherwise, from time to time in the Administrative Agent's
discretion, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Pledge Agreement, including without limitation:
after the occurrence and continuance of an Event of Default, to ask, demand,
collect, sue for, recover, compromise, receive and give acquittance and receipts
for moneys due and to become due under or in respect of any of the Collateral;
to receive, endorse, and collect any drafts or other instruments, documents
and chattel paper, in connection with clause (a) above; and
to file any claims or take any action or institute any proceedings which the
Administrative Agent may deem necessary or desirable for the collection of any
of the Collateral or otherwise to enforce the rights of the Administrative Agent
with respect to any of the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
Administrative Agent May Perform. If the Pledgor fails to perform any
agreement contained herein, the Administrative Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Administrative
Agent incurred in connection therewith shall be payable by the Pledgor pursuant
to Section 6.4.
Administrative Agent Has No Duty. The powers conferred on the Administrative
Agent hereunder are solely to protect its interest (on behalf of the Lender
Parties) in the Collateral and shall not impose any duty on it to exercise any
such powers. Except for reasonable care of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or responsibility for
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Property, whether
or not the Administrative Agent has or is deemed to have knowledge of such
matters, or
taking any necessary steps to preserve rights against prior parties or any
other rights pertaining to any Collateral.
Reasonable Care. The Administrative Agent is required to exercise reasonable
care in the custody and preservation of any of the Collateral in its possession;
provided, however, the Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral, if it
takes such action for that purpose as the Pledgor reasonably requests in writing
at times other than upon the occurrence and during the continuance of any Event
of Default, but failure of the Administrative Agent to comply with any such
request at any time shall not in itself be deemed a failure to exercise
reasonable care.
REMEDIES
Certain Remedies. If any Event of Default shall have occurred and be continuing:
The Administrative Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected Collateral) and also
may, without notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any of the
Administrative Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Administrative Agent may deem
commercially reasonable. The Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten days' prior notice to the Pledgor of the
time and place of any public sale or private sale is to be made shall constitute
reasonable notification. The Administrative Agent shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
The Administrative Agent may
transfer all or any part of the Collateral into the name of the Administrative
Agent or its nominee, with or without disclosing that such Collateral is subject
to the lien and security interest hereunder,
notify the parties obligated on any of the Collateral to make payment to the
Administrative Agent of any amount due or to become due
thereunder,
enforce collection of any of the Collateral by suit or otherwise, and
surrender, release or exchange all or any part thereof, or compromise or extend
or renew for any period (whether or not longer than the original period) any
obligations of any nature of any party with respect thereto,
endorse any checks, drafts, or other writings in the name of the Pledgor to
allow collection of the Collateral,
take control of any proceeds of the Collateral, and
execute (in the name, place and stead of the Pledgor) endorsements,
assignments, stock powers and other instruments of conveyance or transfer with
respect to all or any of the Collateral.
Securities Laws.
If the Administrative Agent shall determine to exercise its right to sell all
or any of the Collateral pursuant to Section 6.1, the Pledgor agrees that, upon
request of the Administrative Agent, the Pledgor will, at its own expense:
execute and deliver, and cause each issuer of the Collateral contemplated to
be sold and the directors and officers thereof to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts and
things, as may be necessary or, in the opinion of the Administrative Agent,
advisable to register such Collateral under the provisions of the Securities Act
of 1933, as from time to time amended (the "Securities Act") or any similar
statute hereafter enacted analogous in purpose or effect (the Securities Act any
such similar statute as in effect from time to time being called the "Federal
Securities Laws"), and to cause the registration statement relating thereto to
become effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and supplements
thereto and 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;
use its best efforts to qualify the Collateral under the state securities or
"Blue Sky" laws and to obtain all necessary governmental approvals for the sale
of the Collateral, as requested by the Administrative Agent;
cause each such issuer to make available to its security holders, as soon as
practicable, an earnings statement that will satisfy the provisions of Section
11(a) of the Securities Act; and
do or cause to be done all such other acts and things as may be necessary to
make such sale of the Collateral or any part thereof valid and binding and in
compliance with applicable law.
(b) In view of the position of the Pledgor in
relation to the Pledged Shares, or because of other present or future
circumstances, a question may arise under the Federal Securities Laws with
respect to any disposition of the Pledged Shares permitted hereunder. The
Pledgor understands that compliance with the Federal Securities Laws might
materially limit the course of conduct of the Administrative Agent if the
Administrative Agent were to attempt to dispose of all or any part of the
Pledged Shares in a public offering, and might also materially limit the extent
to which or the manner in which any subsequent transferee of any Pledged Shares
could dispose of the same. Similarly, there may be other legal restrictions or
limitations affecting the Administrative Agent in any attempt to dispose of all
or part of the Pledged Shares in a public offering under applicable Blue Sky or
other state securities laws or similar laws analogous in purpose or effect. The
Pledgor understands and agrees that the Administrative Agent is not to have any
duty or obligation to the Pledgor to attempt to dispose of the Pledged Shares
pursuant to a public offering thereof, and the Pledgor will not attempt to hold
the Administrative Agent responsible for selling all or any part of the Pledged
Shares at an inadequate price even if the disposition of the Pledged Shares
pursuant to a public offering might have resulted in a higher price being paid
for the Pledged Shares. Without limiting the generality of the foregoing, the
provisions of this Section would apply if, for example, the Administrative Agent
were to place all or any part of the Pledged Shares for private placement by an
investment banking firm, or if such investment banking firm purchased all or any
part of the Pledged Shares for its own account, or if the Administrative Agent
placed all or any part of the Pledged Shares privately with a purchaser or
purchasers. The provisions of this Section 6.2 will apply notwithstanding the
existence of a public or private market upon which the quotations or sales
prices for the Pledged Shares may substantially exceed the price at which the
Administrative Agent sells them.
Compliance with Restrictions. The Pledgor agrees that in any sale of any of
the Collateral whenever an Event of Default shall have occurred and be
continuing, the Administrative Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and the Pledgor further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Administrative Agent be liable nor accountable
to the Pledgor for any discount allowed by the reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.
Application of Proceeds. All cash proceeds received by the Administrative
Agent in respect of any sale of, collection from, or other realization upon, all
or any part of the Collateral may, in the discretion of the Administrative
Agent, be held by the Administrative Agent as additional collateral security
for, or then or at any time thereafter be applied (after payment of any amounts
payable to the Administrative Agent pursuant to Section 6.5) in whole or in part
by the Administrative Agent against, all or any part of the Obligations in such
order as the Administrative Agent shall elect.
Any surplus of such cash or cash proceeds held by the Administrative
Agent and remaining after payment in full of all the Obligations, the
termination or expiration of all Letters of Credit and the termination of all
Commitments, shall be paid over to the Pledgor or to whomsoever may be lawfully
entitled to receive such surplus.
Indemnity and Expenses. The Pledgor hereby indemnifies and holds harmless the
Administrative Agent from and against any and all claims, losses, and
liabilities arising out of or resulting from this Pledge Agreement (including
enforcement of this Pledge Agreement), except claims, losses, or liabilities
resulting from the Administrative Agent's gross negligence or wilful misconduct.
Upon demand, the Pledgor will pay to the Administrative Agent the amount of any
and all reasonable expenses, including the reasonable fees and disbursements of
its counsel and of any experts and agents, which the Administrative Agent may
incur in connection with:
(a) the administration of this Pledge Agreement, the
Credit Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of, or
the sale of, collection from, or other realization upon, any of
the Collateral;
(c) the exercise or enforcement of any of the rights of
the Administrative Agent hereunder; or
(d) the failure by the Pledgor to perform or observe any
of the provisions hereof.
MISCELLANEOUS PROVISIONS
Loan Document. This Pledge Agreement is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof.
Amendments, etc. No amendment to or waiver of any provision of this Pledge
Agreement nor consent to any departure by the Pledgor herefrom shall in any
event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it is given.
Protection of Collateral. The Administrative Agent may from time to time, at
its option, perform any act which the Pledgor agrees hereunder to perform and
which the Pledgor shall fail to perform after being requested in writing so to
perform (it being understood that no such request need be given after the
occurrence and during the continuance of an Event of Default) and the
Administrative Agent may from time to time take any other action which the
Administrative Agent reasonably deems necessary for the maintenance,
preservation or protection of any of the Collateral or of its security interest
therein.
Approvals. Notwithstanding anything to the contrary contained herein or in any
other Loan Document, the Administrative Agent will not take any action
(including the exercise of voting rights by the Administrative Agent with
respect to the Pledged Shares) pursuant to this Pledge 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 the
Borrower or any Subsidiary of the Borrower without first obtaining the prior
approval of the FCC, any other federal, state or local governmental authority or
other person, 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,
other federal, state or local governmental authority or other person. Prior to
the exercise by the Administrative Agent of any power, right, privilege or
remedy pursuant to this Pledge Agreement which requires any consent, approval,
recording, qualification or authorization of any federal, state or local
governmental authority or instrumentality, or other person, 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 consent, approval,
recording, qualification or authorization and, following the occurrence and
continuance of an Event of Default, upon the reasonable request of the
Administrative Agent, the Pledgor will use its best efforts to assist the
Administrative Agent in obtaining such approvals and consents.
Addresses for Notices. All notices and other communications provided to any
party hereto shall be in writing and mailed, delivered or transmitted to it at
the address set forth below its signature in the Credit Agreement or at such
other address as shall be designated by such party in a written notice to each
other party complying as to delivery with the terms of this Section. Any notice,
if mailed and properly addressed with postage prepaid or, if properly addressed
and sent by prepaid courier service, shall be deemed given when received; any
notice if transmitted by facsimile, shall be deemed given when transmitted (upon
receipt of electronic confirmation of transmission).
Captions. Section captions used in this Pledge Agreement are for convenience
of reference only, and shall not affect the construction of this
Pledge Agreement.
Severability. Wherever possible each provision of this Pledge Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Pledge Agreement shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Pledge Agreement.
Governing Law, Entire Agreement, etc. THIS PLEDGE AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. THIS
PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
HIGHLAND VIDEO ASSOCIATES, L.P.
By: Highland Holdings, its
General Partner
By: ,
a General Partner
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
Title:
<PAGE>
ATTACHMENT 1
to
Borrower Pledge Agreement
<TABLE>
<CAPTION>
Item A. Pledged Shares
Pledged Share Issuer Common Stock
Authorized Outstanding % of Outstanding
Shares Shares Shares Pledged
<S> <C> <C> <C>
Bucktail Broadcasting Corporation 500 443 100%
(Class B Common)
Henderson Community Antenna Television, Inc. 1,000 1,000 100%
(Common)
</TABLE>
<PAGE>
[EXECUTION COPY]
<PAGE>
OBLIGOR PLEDGE AGREEMENT
THIS OBLIGOR PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of
February 28, 1996 made by each of the Persons (as defined in the Credit
Agreement referred to below) identified on Schedule I attached hereto, and each
other Person as may become a party to this Pledge Agreement pursuant to Section
7.1.10 of the Credit Agreement referred to below (herein individually referred
to as a "Pledgor" and collectively as the "Pledgors"), in favor of THE BANK OF
NOVA SCOTIA, as administrative agent (together with any successor(s) thereto in
such capacity, the "Administrative Agent") for each of the Lender Parties (as
defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of February 28,
1996 (the "Credit Agreement"), among Highland Video Associates, L.P., a
Pennsylvania limited partnership (the "Borrower"), the financial institutions
from time to time parties thereto (the "Lenders"), Bank of Montreal, as
Syndication Agent, Chemical Bank, as Documentation Agent, and the Administrative
Agent, the Lenders have agreed to make Loans to, and the Issuer has agreed to
issue (and the Lenders have agreed to participate in) Letters of Credit for the
account of, the Borrower;
WHEREAS, as a condition precedent to the making of Credit Extensions
(including the initial Credit Extensions) under the Credit Agreement, each
Pledgor is required to execute and deliver this Pledge Agreement;
WHEREAS, each Pledgor has duly authorized the execution, delivery
and performance of this Pledge Agreement; and
WHEREAS, it is in the best interests of each Pledgor to execute this
Pledge Agreement inasmuch as each such Pledgor will derive substantial direct
and indirect benefits from the Credit Extensions made from time to time to the
Borrower by the Lender Parties pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Lender Parties to make
Credit Extensions to the Borrower pursuant to the Credit Agreement, each Pledgor
agrees, for the benefit of each Lender Party, as follows:
DEFINITIONS
Certain Terms. The following terms (whether or not underscored) when used in
this Pledge Agreement, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to the singular
and plural forms thereof):
<PAGE>
- -------------------------------------------------------------------------------
"Administrative Agent" is defined in the preamble.
- -------------------------------------------------------------------------------
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect
to any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Federal Securities Laws" is defined in Section 6.2.
"Lender Party" means, as the context may require, each Lender, the
Issuer, any Swap Party, the Syndication Agent, the Documentation Agent and the
Administrative Agent and each of their respective successors, transferees and
assigns.
"Lenders" is defined in the first recital.
"Pledge Agreement" is defined in the preamble.
"Pledged Property" means all Pledged Shares, and all other pledged
shares of capital stock, all other securities, all assignments of any amounts
due or to become due, all other instruments which are now being delivered by any
Pledgor to the Administrative Agent or may from time to time hereafter be
delivered by such Pledgor to the Administrative Agent for the purpose of pledge
under this Pledge Agreement or any other Loan Document, and all proceeds of any
of the foregoing.
"Pledged Share Issuer" means each Person identified in Item A of
Attachment 1 hereto as the issuer of the Pledged Shares identified opposite the
name of such Person.
"Pledged Shares" means all shares of capital stock of any Pledged
Share Issuer which are delivered by any Pledgor to the Administrative Agent as
Pledged Property hereunder.
"Pledgor" and "Pledgors" are defined in the preamble.
"Secured Obligations" is defined in Section 2.2.
"Securities Act" is defined in Section 6.2.
"U.C.C." means the Uniform Commercial Code as in effect in the State
of New York.
Credit Agreement Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Pledge Agreement, including its preamble
and recitals, have the meanings provided in the Credit Agreement.
U.C.C. Definitions. Unless otherwise defined herein or the context otherwise
requires, terms for which meanings are provided in the U.C.C.
are used in this Pledge Agreement, including its preamble and recitals, with
such meanings.
PLEDGE
Grant of Security Interest. Each Pledgor hereby grants, pledges, hypothecates,
assigns, charges, mortgages, delivers, and transfers to the Administrative
Agent, for its benefit and the ratable benefit of each of the Lender Parties, a
continuing security interest in, all of the following property (the
"Collateral"):
all issued and outstanding shares of capital stock of each Pledged Share
Issuer identified in Item A of Attachment 1 hereto;
all other Pledged Shares issued from time to time;
all other Pledged Property, whether now or hereafter delivered to the
Administrative Agent in connection with this Pledge Agreement;
all Dividends, Distributions, and other payments and rights with respect to
any Pledged Property; and
all proceeds of any of the foregoing.
Security for Obligations. This Pledge Agreement secures the payment in full of
all Obligations now or hereafter existing under the Credit Agreement and each
other Loan Document to which the Borrower or any Pledgor is or may become a
party (including this Pledge Agreement), whether for principal, interest, costs,
fees, expenses, or otherwise (all such Obligations of the Borrower and each
Pledgor being the "Secured Obligations").
Delivery of Pledged Property. All certificates or instruments representing or
evidencing any Collateral, including all Pledged Shares, shall be delivered to
and held by or on behalf of the Administrative Agent pursuant hereto, shall be
in suitable form for transfer by delivery, and shall be accompanied by all
necessary instruments of transfer or assignment, duly executed in blank.
Dividends on Pledged Shares. In the event that any Dividend is to be paid on
any Pledged Share as permitted in accordance with clause (g) of Section 7.2.2 or
Section 7.2.6 of the Credit Agreement, such Dividend may be paid directly to
each Pledgor thereof. If not otherwise permitted to be paid under the Credit
Agreement, then any such Dividend shall be paid directly to the Administrative
Agent.
Continuing Security Interest; Transfer of Note. This Pledge Agreement shall
create a continuing security interest in the Collateral and shall
remain in full force and effect as hereinafter provided in this Section 2.5
until payment in full in cash of all Secured Obligations, the termination or
expiration of all Letters of Credit and the termination of all Commitments,
be binding upon each Pledgor and its successors, transferees and assigns, and
inure, together with the rights and remedies of the Administrative Agent
hereunder, to the benefit of the Administrative Agent and each other Lender
Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the provisions
of Section 10.11 and Article IX of the Credit Agreement. Notwithstanding
anything to the contrary contained herein, upon the payment in full in cash of
all principal, interest and fees due under the Credit Agreement, the termination
or expiration of all Letters of Credit, the termination of all Commitments, the
termination of all Rate Protection Agreements with Swap Parties and the
satisfaction of all obligations owing to any Lender thereunder, the obligations
of each Pledgor hereunder (except under Section 6.5, which shall survive the
termination of this Pledge Agreement) and the security interests granted herein
shall terminate and all rights to the Collateral shall revert to each Pledgor.
Upon any such termination, the Administrative Agent will, at each Pledgor's sole
expense, deliver to such Pledgor, without any representations, warranties or
recourse of any kind whatsoever, all certificates and instruments representing
or evidencing all Pledged Shares, together with all other Collateral held by the
Administrative Agent hereunder, and execute and deliver to such Pledgor such
documents as such Pledgor shall reasonably request to evidence such termination.
<PAGE>
Security Interest Absolute. All rights of the Administrative Agent and the
security interests granted to the Administrative Agent hereunder,
and all obligations of each Pledgor hereunder, shall be absolute and
unconditional, irrespective of
any lack of validity or enforceability of the Credit Agreement, any Note or
any other Loan Document,
the failure of any Lender Party
to assert any claim or demand or to enforce any right or remedy against the
Borrower, any other Obligor or any other Person under the provisions of the
Credit Agreement, any Note, any other Loan Document or otherwise, or
to exercise any right or remedy against any other guarantor of, or collateral
securing, any Secured Obligations,
any change in the time, manner or place of payment of, or in any other term
of, all or any of the Obligations or any other extension, compromise or renewal
of any Secured Obligation,
any reduction, limitation, impairment or termination of any Secured
Obligations for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and each Pledgor 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, any Secured Obligations or otherwise,
any amendment to, rescission, waiver, or other modification of, or any consent
to departure from, any of the terms of the Credit Agreement, any Note or any
other Loan Document,
any addition, exchange, release, surrender or non-perfection of any collateral
(including the Collateral), or any amendment to or waiver or release of or
addition to or consent to departure from any guaranty, for any of the Secured
Obligations, or
any other circumstances which might otherwise constitute a defense available
to, or a legal or equitable discharge of, the Borrower, any other Obligor, any
surety or any guarantor.
Postponement of Subrogation. Each Pledgor agrees that it will not exercise any
rights which it may acquire by way of subrogation under this Pledge Agreement,
by any payment made hereunder or otherwise, until the prior payment, in full and
in cash, of all Obligations of the Borrower and each other Obligor, the
termination or expiration of all Letters of Credit and the termination of all
Commitments. Any amount paid to such Pledgor on account of any such subrogation
rights prior to the payment in full of all Obligations of the Borrower and each
other Obligor, the termination or expiration of all Letters of Credit and the
termination of all Commitments 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 Borrower and each other
Obligor, whether matured or unmatured, in accordance with the terms of the
Credit Agreement; provided, however, that if
(a) such Pledgor has made payment to the Lender Parties of
all or any part of the Obligations of the Borrower or any
other Obligor, and
(b) all Obligations of the Borrower and each other Obligor
have been paid in full, all Letters of Credit have expired or
been terminated and all Commitments have been terminated,
each Lender Party agrees that, at such Pledgor's request, the Lender Parties
will execute and deliver to such Pledgor appropriate documents (without recourse
and without representation or warranty) necessary to evidence the transfer by
subrogation to such Pledgor of an interest in the Secured Obligations resulting
from such payment by such Pledgor. In furtherance of the foregoing, for so long
as any Secured Obligations, Letters of Credit or Commitments remain outstanding,
each Pledgor shall refrain from taking any action or commencing any proceeding
against the Borrower or any other Obligor (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 this Pledge Agreement to any Lender Party.
REPRESENTATIONS AND WARRANTIES
Warranties, etc. Each Pledgor represents and warrants unto each Lender Party,
as at the date of each pledge and delivery hereunder (including each pledge and
delivery of Pledged Shares) by such Pledgor to the Administrative Agent of any
Collateral, as set forth in this Article.
SECTION 3.1.1. Ownership, No Liens, etc. Such Pledgor is the legal
and beneficial owner of, and has good and marketable title to (and has full
right and authority to pledge and assign) such Collateral, free and clear of all
Liens, security interests, options, or other charges or encumbrances, except any
Lien or security interest granted pursuant hereto in favor of the Administrative
Agent.
SECTION 3.1.2. Valid Security Interest. The delivery by such Pledgor
of such Collateral to the Administrative Agent is effective to create a valid,
perfected, first priority security interest in such Collateral and all proceeds
thereof, securing the Secured Obligations. No filing or other action will be
necessary to perfect or protect such security interest.
SECTION 3.1.3. As to Pledged Shares. In the case of any Pledged
Shares of such Pledgor constituting such Collateral, all of such Pledged Shares
are duly authorized and validly issued, fully paid, and non-assessable, and
constitute that percentage of all of the issued and outstanding shares of
capital stock of each Pledged Share Issuer as set forth in Attachment 1 hereto.
Such Pledgor has no Subsidiaries that are corporations other than the Pledged
Share Issuers of such Pledgor.
<PAGE>
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SECTION 3.1.4. Authorization, Approval, etc. No authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority, regulatory body or any other Person is required either
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for the pledge by such Pledgor of any Collateral pursuant to this Pledge
Agreement or for the execution, delivery, and performance of this Pledge
Agreement by such Pledgor, or
for the exercise by the Administrative Agent of the voting or other rights
provided for in this Pledge Agreement, or, except with respect to any Pledged
Shares, as may be required in connection with a disposition of such Pledged
Shares by laws affecting the offering and sale of securities generally, the
remedies in respect of the Collateral pursuant to this Pledge Agreement.
SECTION 3.1.5. Compliance with Laws. Such Pledgor is in compliance
with the requirements of all applicable laws (including, without limitation, the
provisions of the Fair Labor Standards Act), rules, regulations and orders of
every governmental authority, the non-compliance with which might materially
adversely affect the business, properties, assets, operations, condition
(financial or otherwise) or prospects of such Pledgor or the value of the
Collateral or the worth of the Collateral as collateral security.
COVENANTS
Protect Collateral; Further Assurances, etc. Except as expressly permitted by
the Credit Agreement, each Pledgor will not sell, assign, transfer, pledge, or
encumber in any other manner the Collateral (except in favor of the
Administrative Agent hereunder). Each Pledgor will warrant and defend the right
and title herein granted unto the Administrative Agent in and to the Collateral
(and all right, title, and interest represented by the Collateral) against the
claims and demands of all Persons whomsoever. Each Pledgor agrees that at any
time, and from time to time, at the expense of such Pledgor, such Pledgor will
promptly execute and deliver all further instruments, and take all further
action, that may be reasonably necessary or desirable, or that the
Administrative Agent may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with respect to any Collateral.
Stock Powers, etc. Each Pledgor agrees that all Pledged Shares (and all other
shares of capital stock constituting Collateral) delivered by such Pledgor
pursuant to this Pledge Agreement will be accompanied by duly executed undated
blank stock powers, or other equivalent instruments of transfer acceptable to
the Administrative Agent. Each Pledgor will, from time to time upon the request
of the Administrative Agent, promptly deliver to the Administrative Agent such
stock powers, instruments, and similar documents, satisfactory in form and
substance to the Administrative Agent, with respect to the Collateral as the
Administrative Agent may reasonably request and will, from time to time upon the
request of the Administrative Agent after the occurrence of any Event of
Default, promptly transfer any Pledged Shares or other shares of common stock
constituting Collateral into the name of any nominee designated by the
Administrative Agent.
Continuous Pledge. Subject to Section 2.4, each Pledgor will, at all times,
keep pledged to the Administrative Agent pursuant hereto all Pledged Shares and
all other shares of capital stock constituting Collateral, all Dividends and
Distributions with respect thereto, and all other Collateral and other
securities, instruments, proceeds, and rights from time to time received by or
distributable to such Pledgor in respect of any Collateral.
Voting Rights; Dividends, etc. Each Pledgor agrees:
after any Default of the type described in Section 8.1.9 of the Credit
Agreement or an Event of Default shall have occurred and be continuing, promptly
upon receipt thereof by such Pledgor and without any request therefor by the
Administrative Agent, to deliver (properly endorsed where required hereby or
requested by the Administrative Agent) to the Administrative Agent all
Dividends, Distributions, all other cash payments and all proceeds of the
Collateral, all of which shall be held by the Administrative Agent as additional
Collateral for use in accordance with Section 6.3; and
after any Event of Default shall have occurred and be continuing and the
Administrative Agent has notified such Pledgor of the Administrative Agent's
intention to exercise its voting power under this clause (b),
the Administrative Agent may exercise (to the exclusion of such Pledgor) the
voting power and all other incidental rights of ownership with respect to any
Pledged Shares or other shares of capital stock constituting Collateral and such
Pledgor hereby grants the Administrative Agent an irrevocable proxy, exercisable
under such circumstances, to vote the Pledged Shares and such other Collateral;
and
promptly to deliver to the Administrative Agent such additional proxies and
other documents as may be necessary to allow the Administrative Agent to
exercise such voting power.
All Dividends, Distributions, cash payments and proceeds which may at any time
and from time to time be held by any Pledgor but which such Pledgor is then
obligated to deliver to the Administrative Agent, shall, until delivery to the
Administrative Agent, be held by such Pledgor separate and apart from its other
property in trust for the Administrative Agent. The Administrative Agent agrees
that unless an Event of Default shall have occurred and be continuing and the
Administrative Agent shall have given the notice referred to in clause (b) of
this Section 4.4, each Pledgor shall have the exclusive voting power with
respect to any shares of capital stock (including any of the Pledged Shares)
constituting Collateral and the Administrative Agent shall, upon the written
request of each Pledgor, promptly deliver such proxies and other documents, if
any, as shall be reasonably requested by such Pledgor which are necessary to
allow such Pledgor to exercise voting power with respect to any such share of
capital stock (including any of the Pledged Shares) constituting Collateral;
provided, however, that no vote shall be cast, or consent, waiver, or
ratification given, or action taken by any Pledgor that would impair any
Collateral or be inconsistent with or violate any provision of the Credit
Agreement or any other Loan Document (including this Pledge Agreement).
THE ADMINISTRATIVE AGENT
Administrative Agent Appointed Attorney-in-Fact. Each Pledgor hereby
irrevocably appoints the Administrative Agent such Pledgor's attorney-in-fact,
with full authority in the place and stead of such Pledgor and in the name of
such Pledgor or otherwise, from time to time in the Administrative Agent's
discretion, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Pledge Agreement, including without limitation:
after the occurrence and continuance of an Event of Default, to ask, demand,
collect, sue for, recover, compromise, receive and give acquittance and receipts
for moneys due and to become due under or in respect of any of the Collateral;
to receive, endorse, and collect any drafts or other instruments, documents
and chattel paper, in connection with clause (a) above; and
to file any claims or take any action or institute any proceedings which the
Administrative Agent may deem necessary or desirable for the collection of any
of the Collateral or otherwise to enforce the rights of the Administrative Agent
with respect to any of the Collateral.
Each Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
Administrative Agent May Perform. If any Pledgor fails to perform any
agreement contained herein, the Administrative Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Administrative
Agent incurred in connection therewith shall be payable by such Pledgor pursuant
to Section 6.4.
Administrative Agent Has No Duty. The powers conferred on the Administrative
Agent hereunder are solely to protect its interest (on behalf of the Lender
Parties) in the Collateral and shall not impose any duty on it to exercise any
such powers. Except for reasonable care of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or responsibility for
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Property, whether
or not the Administrative Agent has or is deemed to have knowledge of such
matters, or
taking any necessary steps to preserve rights against prior parties or any
other rights pertaining to any Collateral.
Reasonable Care. The Administrative Agent is required to exercise reasonable
care in the custody and preservation of any of the Collateral in its possession;
provided, however, the Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral, if it
takes such action for that purpose as each Pledgor reasonably requests in
writing at times other than upon the occurrence and during the continuance of
any Event of Default, but failure of the Administrative Agent to comply with any
such request at any time shall not in itself be deemed a failure to exercise
reasonable care.
REMEDIES
Certain Remedies. If any Event of Default shall have occurred and be
continuing:
The Administrative Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected Collateral) and also
may, without notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any of the
Administrative Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Administrative Agent may deem
commercially reasonable. Each Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten days' prior notice to such Pledgor of the
time and place of any public sale or private sale is to be made shall constitute
reasonable notification. The Administrative Agent shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
The Administrative Agent may
transfer all or any part of the Collateral into the name of the Administrative
Agent or its nominee, with or without disclosing that such Collateral is subject
to the lien and security interest hereunder,
notify the parties obligated on any of the Collateral to make payment to the
Administrative Agent of any amount due or to become due
thereunder,
enforce collection of any of the Collateral by suit or otherwise, and
surrender, release or exchange all or any part thereof, or compromise or extend
or renew for any period (whether or not longer than the original period) any
obligations of any nature of any party with respect thereto,
endorse any checks, drafts, or other writings in the name of the Pledgor
thereof to allow collection of the Collateral,
take control of any proceeds of the Collateral, and
execute (in the name, place and stead of each Pledgor) endorsements,
assignments, stock powers and other instruments of conveyance or transfer with
respect to all or any of the Collateral.
Securities Laws.
If the Administrative Agent shall determine to exercise its right to sell all
or any of the Collateral pursuant to Section 6.1, each Pledgor agrees that, upon
request of the Administrative Agent, such Pledgor will, at its own expense:
execute and deliver, and cause each issuer of the Collateral contemplated to
be sold and the directors and officers thereof to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts and
things, as may be necessary or, in the opinion of the Administrative Agent,
advisable to register such Collateral under the provisions of the Securities Act
of 1933, as from time to time amended (the "Securities Act") or any similar
statute hereafter enacted analogous in purpose or effect (the Securities Act any
such similar statute as in effect from time to time being called the "Federal
Securities Laws"), and to cause the registration statement relating thereto to
become effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and supplements
thereto and 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;
use its best efforts to qualify the Collateral under the state securities or
"Blue Sky" laws and to obtain all necessary governmental approvals for the sale
of the Collateral, as requested by the Administrative Agent;
cause each such issuer to make available to its security holders, as soon as
practicable, an earnings statement that will satisfy the provisions of Section
11(a) of the Securities Act; and
do or cause to be done all such other acts and things as may be necessary to
make such sale of the Collateral or any part thereof valid and binding and in
compliance with applicable law.
(b) In view of the position of each Pledgor in
relation to the Pledged Shares, or because of other present or future
circumstances, a question may arise under the Federal Securities Laws with
respect to any disposition of the Pledged Shares permitted hereunder. Each
Pledgor understands that compliance with the Federal Securities Laws might
materially limit the course of conduct of the Administrative Agent if the
Administrative Agent were to attempt to dispose of all or any part of the
Pledged Shares in a public offering, and might also materially limit the extent
to which or the manner in which any subsequent transferee of any Pledged Shares
could dispose of the same. Similarly, there may be other legal restrictions or
limitations affecting the Administrative Agent in any attempt to dispose of all
or part of the Pledged Shares in a public offering under applicable Blue Sky or
other state securities laws or similar laws analogous in purpose or effect. Each
Pledgor understands and agrees that the Administrative Agent is not to have any
duty or obligation to such Pledgor to attempt to dispose of the Pledged Shares
pursuant to a public offering thereof, and such Pledgor will not attempt to hold
the Administrative Agent responsible for selling all or any part of the Pledged
Shares at an inadequate price even if the disposition of the Pledged Shares
pursuant to a public offering might have resulted in a higher price being paid
for the Pledged Shares. Without limiting the generality of the foregoing, the
provisions of this Section would apply if, for example, the Administrative Agent
were to place all or any part of the Pledged Shares for private placement by an
investment banking firm, or if such investment banking firm purchased all or any
part of the Pledged Shares for its own account, or if the Administrative Agent
placed all or any part of the Pledged Shares privately with a purchaser or
purchasers. The provisions of this Section 6.2 will apply notwithstanding the
existence of a public or private market upon which the quotations or sales
prices for the Pledged Shares may substantially exceed the price at which the
Administrative Agent sells them.
Compliance with Restrictions. Each Pledgor agrees that in any sale of any of
the Collateral whenever an Event of Default shall have occurred and be
continuing, the Administrative Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and each Pledgor further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Administrative Agent be liable nor accountable
to such Pledgor for any discount allowed by the reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.
Application of Proceeds. All cash proceeds received by the Administrative
Agent in respect of any sale of, collection from, or other realization upon, all
or any part of the Collateral may, in the discretion of the Administrative
Agent, be held by the Administrative Agent as additional collateral security
for, or then or at any time thereafter be applied (after payment of any amounts
payable to the Administrative Agent pursuant to Section 6.5) in whole or in part
by the Administrative Agent against, all or any part of the Obligations in such
order as the Administrative Agent shall elect.
Any surplus of such cash or cash proceeds held by the Administrative
Agent and remaining after payment in full of all the Obligations, the
termination or expiration of all Letters of Credit and the termination of all
Commitments, shall be paid over to the relevant Pledgor or to whomsoever may be
lawfully entitled to receive such surplus.
Indemnity and Expenses. Each Pledgor hereby indemnifies and holds harmless the
Administrative Agent from and against any and all claims, losses, and
liabilities arising out of or resulting from this Pledge Agreement (including
enforcement of this Pledge Agreement), except claims, losses, or liabilities
resulting from the Administrative Agent's gross negligence or wilful misconduct.
Upon demand, each Pledgor will pay to the Administrative Agent the amount of any
and all reasonable expenses, including the reasonable fees and disbursements of
its counsel and of any experts and agents, which the Administrative Agent may
incur in connection with:
(a) the administration of this Pledge Agreement, the
Credit Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of, or
the sale of, collection from, or other realization upon, any of
the Collateral;
(c) the exercise or enforcement of any of the rights of
the Administrative Agent hereunder; or
(d) the failure by any Pledgor to perform or observe any
of the provisions hereof.
MISCELLANEOUS PROVISIONS
Loan Document. This Pledge Agreement is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof.
Amendments, etc. No amendment to or waiver of any provision of this Pledge
Agreement nor consent to any departure by any Pledgor herefrom shall in any
event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it is given.
Protection of Collateral. The Administrative Agent may from time to time, at
its option, perform any act which any Pledgor agrees hereunder to perform and
which such Pledgor shall fail to perform after being requested in writing so to
perform (it being understood that no such request need be given after the
occurrence and during the continuance of an Event of Default) and the
Administrative Agent may from time to time take any other action which the
Administrative Agent reasonably deems necessary for the maintenance,
preservation or protection of any of the Collateral or of its security interest
therein.
Approvals. Notwithstanding anything to the contrary contained herein or in any
other Loan Document, the Administrative Agent will not take any action
(including the exercise of voting rights by the Administrative Agent with
respect to the Pledged Shares) pursuant to this Pledge 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 the
Borrower or any Subsidiary of the Borrower without first obtaining the prior
approval of the FCC, any other federal, state or local governmental authority or
other person, 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,
other federal, state or local governmental authority or other person. Prior to
the exercise by the Administrative Agent of any power, right, privilege or
remedy pursuant to this Pledge Agreement which requires any consent, approval,
recording, qualification or authorization of any federal, state or local
governmental authority or instrumentality, or other person, each applicable
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 consent, approval,
recording, qualification or authorization and, following the occurrence and
continuance of an Event of Default, upon the reasonable request of the
Administrative Agent, such applicable Pledgor will use its best efforts to
assist the Administrative Agent in obtaining such approvals and consents.
Addresses for Notices. All notices and other communications provided to any
party hereto shall be in writing and mailed, delivered or transmitted to it at
the address set forth below its signature hereto or at such other address as
shall be designated by such party in a written notice to each other party
complying as to delivery with the terms of this Section. Any notice, if mailed
and properly addressed with postage prepaid or, if properly addressed and sent
by prepaid courier service, shall be deemed given when received; any notice if
transmitted by facsimile, shall be deemed given when transmitted (upon receipt
of electronic confirmation of transmission).
Captions. Section captions used in this Pledge Agreement are for convenience
of reference only, and shall not affect the construction of this
Pledge Agreement.
Severability. Wherever possible each provision of this Pledge Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Pledge Agreement shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Pledge Agreement.
Governing Law, Entire Agreement, etc. THIS PLEDGE AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. THIS
PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS PLEDGE AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE LENDER PARTIES OR ANY PLEDGOR SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH PLEDGOR HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION SUBJECT TO ANY RIGHTS OF APPEAL OF ANY JUDGMENT RENDERED BY
THE HIGHEST COURT IN THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT
FOR THE STATE OF NEW YORK, AS THE CASE MAY BE. EACH PLEDGOR FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH PLEDGOR HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT ANY PLEDGOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, SUCH PLEDGOR HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS PLEDGE AGREEMENT.
Waiver of Jury Trial. THE LENDER PARTIES AND EACH PLEDGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS PLEDGE AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE LENDER PARTIES
OR ANY PLEDGOR. EACH PLEDGOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL
AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF
EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE LENDER PARTIES ENTERING INTO THE CREDIT AGREEMENT
AND EACH SUCH OTHER LOAN DOCUMENT.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
BUCKTAIL BROADCASTING CORPORATION
By:
Title:
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
John J. Rigas
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
Timothy J. Rigas
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
<PAGE>
Michael J. Rigas
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
Title: Authorized Signatory
Address: One Liberty Plaza
New York, New York 10006
Telecopy No.: (212) 225-5090
Attention: Vincent Fitzgerald
Media Communication
Group
<PAGE>
Doris N. Rigas
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
<PAGE>
-1-
SCHEDULE I
to
Pledge Agreement
SUBSIDIARY PLEDGORS
Name Jurisdiction of
Incorporation/
Formation
Montgomery Cablevision, Inc.
Adelphia Cablevision Associates
of Radnor, L.P. Pennsylvania
Montgomery Cablevision Associates, L.P. Pennsylvania
Bucktail Broadcasting Corporation Pennsylvania
Henderson Community Antenna
Television, Inc. North Carolina
Coudersport Television Cable Company Pennsylvania
Timothy J. Rigas
Michael J. Rigas
John J. Rigas
<PAGE>
-12-
ATTACHMENT 1
to
Obligor Pledge Agreement
PLEDGOR:
Bucktail Broadcasting Corporation
Item A. Pledged Shares
Pledged Share Issuer Common Stock
% of Outstanding Shares
Pledged
Authorized Outstanding
Shares Shares
Montgomery 100 100%
Cablevision, Inc. (Common)
<PAGE>
ATTACHMENT 1
to
Obligor Pledge Agreement
PLEDGOR:
John J. Rigas
Item A. Pledged Shares
Pledged Share Issuer Common Stock
% of Outstanding Shares
Pledged
Authorized Outstanding
Shares Shares
Bucktail 1,063 80%
Broadcasting (Class A Common)
Corporation
Coudersport 50 100%
Television Cable Common
Company
<PAGE>
ATTACHMENT 1
to
Obligor Pledge Agreement
PLEDGOR:
Michael J. Rigas
Item A. Pledged Shares
Pledged Share Issuer Common Stock
% of Outstanding Shares
Pledged
Authorized Outstanding
Shares Shares
Bucktail 133 10%
Broadcasting (Class A Common)
Corporation
<PAGE>
ATTACHMENT 1
to
Obligor Pledge Agreement
PLEDGOR:
Timothy J. Rigas
Item A. Pledged Shares
Pledged Share Issuer Common Stock
% of Outstanding Shares
Pledged
Authorized Outstanding
Shares Shares
Bucktail 133 10%
Broadcasting (Class A Common)
Corporation
<PAGE>
EXHIBIT I-3
<PAGE>
TALP PLEDGE AGREEMENT
THIS TALP PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of
___________ ___, ____, made by TELESAT ACQUISITION LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Pledgor"), in favor of THE BANK OF NOVA
SCOTIA, as administrative agent (together with any successor(s) thereto in such
capacity, the "Administrative Agent") for each of the Lender Parties (as defined
below).
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated
as of March 29, 1996, amending and restating the Credit Agreement, dated as of
February 28, 1996 (as further amended, supplemented, amended and restated or
otherwise modified, the "Credit Agreement"), among the Pledgor, Highland Video
Associates, L.P., a Delaware limited partnership ("HVA"), Global Acquisition
Partners, L.P., a Delaware limited partnership ("Global"; Global, HVA and the
Pledgor are individually referred to as a "Borrower" and collectively referred
to as the "Borrowers"), the financial institutions from time to time parties
thereto (the "Lenders"), Bank of Montreal, as Syndication Agent, Chemical Bank,
as Documentation Agent and the Administrative Agent, the Lenders have agreed to
make Loans to, and the Issuer has agreed to issue (and the Lenders have agreed
to participate in) Letters of Credit for the account of, the Borrowers;
WHEREAS, pursuant to Section 7.1.10 of the Credit Agreement, the
Pledgor is required to execute and deliver this Pledge Agreement; and
WHEREAS, the Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Lender Parties to make
Credit Extensions to the Borrowers pursuant to the Credit Agreement, the Pledgor
agrees, for the benefit of each Lender Party, as follows:
DEFINITIONS
Certain Terms. The following terms (whether or not underscored) when used in
this Pledge Agreement, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to the singular
and plural forms thereof):
<PAGE>
"Administrative Agent" is defined in the preamble.
"Borrower" and "Borrowers" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect
to any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Federal Securities Laws" is defined in Section 6.2.
"Global" is defined in the first recital.
"HVA" is defined in the first recital.
"Lender Party" means, as the context may require, each Lender, the
Issuer, any Swap Party, the Syndication Agent, the Documentation Agent and the
Administrative Agent and each of their respective successors, transferees and
assigns.
"Lenders" is defined in the first recital.
"Pledge Agreement" is defined in the preamble.
"Pledged Property" means all Pledged Shares, and all other pledged
shares of capital stock, all other securities, all assignments of any amounts
due or to become due, all other instruments which may from time to time
hereafter be delivered by the Pledgor to the Administrative Agent for the
purpose of pledge under this Pledge Agreement or any other Loan Document, and
all proceeds of any of the foregoing.
"Pledged Share Issuer" means each Person identified in Item A of
Attachment 1 hereto as the issuer of the Pledged Shares identified opposite the
name of such Person.
"Pledged Shares" means all shares of capital stock of any Pledged
Share Issuer which are delivered by the Pledgor to the Administrative Agent as
Pledged Property hereunder.
"Pledgor" is defined in the preamble.
"Secured Obligations" is defined in Section 2.2.
"Securities Act" is defined in Section 6.2.
"U.C.C." means the Uniform Commercial Code as in effect in the State
of New York.
Credit Agreement Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Pledge Agreement, including its preamble
and recitals, have the meanings provided in the Credit Agreement.
U.C.C. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms for which meanings are provided in the U.C.C. are used
in this Pledge Agreement, including its preamble and recitals, with such
meanings.
PLEDGE
Grant of Security Interest. The Pledgor hereby grants, pledges, hypothecates,
assigns, charges, mortgages, delivers, and transfers to the Administrative
Agent, for its benefit and the ratable benefit of each of the Lender Parties, a
continuing security interest in, all of the following property (the
"Collateral"):
all issued and outstanding shares of capital stock of each Pledged Share
Issuer identified in Item A of Attachment 1 hereto;
all other Pledged Shares issued from time to time;
all other Pledged Property, whether now or hereafter delivered to the
Administrative Agent in connection with this Pledge Agreement;
all Dividends, Distributions, and other payments and rights with respect to
any Pledged Property; and
all proceeds of any of the foregoing.
Security for Obligations. This Pledge Agreement secures the payment in full of
all Obligations now or hereafter existing under the Credit Agreement and each
other Loan Document to which the Pledgor is or may become a party, whether for
principal, interest, costs, fees, expenses, or otherwise (all such Obligations
being the "Secured Obligations").
Delivery of Pledged Property. All certificates or instruments representing or
evidencing any Collateral, including all Pledged Shares, shall be delivered to
and held by or on behalf of the Administrative Agent pursuant hereto, shall be
in suitable form for transfer by delivery, and shall be accompanied by all
necessary instruments of transfer or assignment, duly executed in blank.
Dividends on Pledged Shares. In the event that any Dividend is to be paid on
any Pledged Share as permitted in accordance with clause (g) of Section 7.2.2 or
Section 7.2.6 of the Credit Agreement, such Dividend may be paid directly to the
Pledgor. If not otherwise permitted to be paid under the Credit Agreement, then
any such Dividend shall be paid directly to the Administrative Agent.
Continuing Security Interest; Transfer of Note. This Pledge Agreement shall
create a continuing security interest in the Collateral and shall
remain in full force and effect as hereinafter provided in this Section 2.5
until payment in full in cash of all Secured Obligations, the termination or
expiration of all Letters of Credit and the termination of all Commitments,
be binding upon the Pledgor and its successors, transferees and assigns, and
inure, together with the rights and remedies of the Administrative Agent
hereunder, to the benefit of the Administrative Agent and each other Lender
Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the provisions
of Section 10.11 and Article IX of the Credit Agreement. Notwithstanding
anything to the contrary contained herein, upon the payment in full in cash of
all principal, interest and fees due under the Credit Agreement, the termination
or expiration of all Letters of Credit, the termination of all Commitments, the
termination of all Rate Protection Agreements with Swap Parties and the
satisfaction of all obligations owing to any Lender thereunder, the obligations
of the Pledgor hereunder (except under Section 6.5, which shall survive the
termination of this Pledge Agreement) and the security interests granted herein
shall terminate and all rights to the Collateral shall revert to the Pledgor.
Upon any such termination, the Administrative Agent will, at the Pledgor's sole
expense, deliver to the Pledgor, without any representations, warranties or
recourse of any kind whatsoever, all certificates and instruments representing
or evidencing all Pledged Shares, together with all other Collateral held by the
Administrative Agent hereunder, and execute and deliver to the Pledgor such
documents as the Pledgor shall reasonably request to evidence such termination.
<PAGE>
REPRESENTATIONS AND WARRANTIES
Warranties, etc. The Pledgor represents and warrants unto each Lender Party,
as at the date of each pledge and delivery hereunder (including each pledge and
delivery of Pledged Shares) by the Pledgor to the Administrative Agent of any
Collateral, as set forth in this Article.
SECTION 3.1.1. Ownership, No Liens, etc. The Pledgor is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) such Collateral, free and clear of all
Liens, security interests, options, or other charges or encumbrances, except any
Lien or security interest granted pursuant hereto in favor of the Administrative
Agent.
SECTION 3.1.2. Valid Security Interest. The delivery by the Pledgor of
such Collateral to the Administrative Agent is effective to create a valid,
perfected, first priority security interest in such Collateral and all proceeds
thereof, securing the Secured Obligations. No filing or other action will be
necessary to perfect or protect such security interest.
SECTION 3.1.3. As to Pledged Shares. In the case of any Pledged
Shares constituting such Collateral, all of such Pledged Shares are duly
authorized and validly issued, fully paid, and non-assessable, and constitute
that percentage of all of the issued and outstanding shares of capital stock of
each Pledged Share Issuer as set forth in Attachment 1 hereto. The Pledgor has
no Subsidiaries that are corporations other than the Pledged Share Issuers of
the Pledgor.
<PAGE>
-34-
SECTION 3.1.4. Authorization, Approval, etc. No authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority, regulatory body or any other Person is required either
for the pledge by the Pledgor of any Collateral pursuant to this Pledge
Agreement or for the execution, delivery, and performance of this Pledge
Agreement by the Pledgor, or
for the exercise by the Administrative Agent of the voting or other rights
provided for in this Pledge Agreement, or, except with respect to any Pledged
Shares, as may be required in connection with a disposition of such Pledged
Shares by laws affecting the offering and sale of securities generally, the
remedies in respect of the Collateral pursuant to this Pledge Agreement.
SECTION 3.1.5. Compliance with Laws. The Pledgor is in compliance
with the requirements of all applicable laws (including, without limitation, the
provisions of the Fair Labor Standards Act), rules, regulations and orders of
every governmental authority, the non-compliance with which might materially
adversely affect the business, properties, assets, operations, condition
(financial or otherwise) or prospects of the Pledgor or the value of the
Collateral or the worth of the Collateral as collateral security.
COVENANTS
Protect Collateral; Further Assurances, etc. Except as expressly permitted by
the Credit Agreement, the Pledgor will not sell, assign, transfer, pledge, or
encumber in any other manner the Collateral (except in favor of the
Administrative Agent hereunder). The Pledgor will warrant and defend the right
and title herein granted unto the Administrative Agent in and to the Collateral
(and all right, title, and interest represented by the Collateral) against the
claims and demands of all Persons whomsoever. The Pledgor agrees that at any
time, and from time to time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver all further instruments, and take all further
action, that may be reasonably necessary or desirable, or that the
Administrative Agent may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with respect to any Collateral.
Stock Powers, etc. The Pledgor agrees that all Pledged Shares (and all other
shares of capital stock constituting Collateral) delivered by the Pledgor
pursuant to this Pledge Agreement will be accompanied by duly executed undated
blank stock powers, or other equivalent instruments of transfer acceptable to
the Administrative Agent. The Pledgor will, from time to time upon the request
of the Administrative Agent, promptly deliver to the Administrative Agent such
stock powers, instruments, and similar documents, satisfactory in form and
substance to the Administrative Agent, with respect to the Collateral as the
Administrative Agent may reasonably request and will, from time to time upon the
request of the Administrative Agent after the occurrence of any Event of
Default, promptly transfer any Pledged Shares or other shares of common stock
constituting Collateral into the name of any nominee designated by the
Administrative Agent.
Continuous Pledge. Subject to Section 2.4, the Pledgor will, at all times,
keep pledged to the Administrative Agent pursuant hereto all Pledged Shares and
all other shares of capital stock constituting Collateral, all Dividends and
Distributions with respect thereto, and all other Collateral and other
securities, instruments, proceeds, and rights from time to time received by or
distributable to the Pledgor in respect of any Collateral.
Voting Rights; Dividends, etc. The Pledgor agrees:
after any Default of the type described in Section 8.1.9 of the Credit
Agreement or an Event of Default shall have occurred and be continuing, promptly
upon receipt thereof by the Pledgor and without any request therefor by the
Administrative Agent, to deliver (properly endorsed where required hereby or
requested by the Administrative Agent) to the Administrative Agent all
Dividends, Distributions, all other cash payments and all proceeds of the
Collateral, all of which shall be held by the Administrative Agent as additional
Collateral for use in accordance with Section 6.3; and
after any Event of Default shall have occurred and be continuing and the
Administrative Agent has notified the Pledgor of the Administrative Agent's
intention to exercise its voting power under this clause (b),
the Administrative Agent may exercise (to the exclusion of the Pledgor) the
voting power and all other incidental rights of ownership with respect to any
Pledged Shares or other shares of capital stock constituting Collateral and the
Pledgor hereby grants the Administrative Agent an irrevocable proxy, exercisable
under such circumstances, to vote the Pledged Shares and such other Collateral;
and
promptly to deliver to the Administrative Agent such additional proxies and
other documents as may be necessary to allow the Administrative Agent to
exercise such voting power.
All Dividends, Distributions, cash payments and proceeds which may at any time
and from time to time be held by the Pledgor but which the Pledgor is then
obligated to deliver to the Administrative Agent, shall, until delivery to the
Administrative Agent, be held by the Pledgor separate and apart from its other
property in trust for the Administrative Agent. The Administrative Agent agrees
that unless an Event of Default shall have occurred and be continuing and the
Administrative Agent shall have given the notice referred to in clause (b) of
this Section 4.4, the Pledgor shall have the exclusive voting power with respect
to any shares of capital stock (including any of the Pledged Shares)
constituting Collateral and the Administrative Agent shall, upon the written
request of the Pledgor, promptly deliver such proxies and other documents, if
any, as shall be reasonably requested by the Pledgor which are necessary to
allow the Pledgor to exercise voting power with respect to any such share of
capital stock (including any of the Pledged Shares) constituting Collateral;
provided, however, that no vote shall be cast, or consent, waiver, or
ratification given, or action taken by the Pledgor that would impair any
Collateral or be inconsistent with or violate any provision of the Credit
Agreement or any other Loan Document (including this Pledge Agreement).
THE ADMINISTRATIVE AGENT
Administrative Agent Appointed Attorney-in-Fact. The Pledgor hereby
irrevocably appoints the Administrative Agent the Pledgor's attorney-in-fact,
with full authority in the place and stead of the Pledgor and in the name of the
Pledgor or otherwise, from time to time in the Administrative Agent's
discretion, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Pledge Agreement, including without limitation:
after the occurrence and continuance of an Event of Default, to ask, demand,
collect, sue for, recover, compromise, receive and give acquittance and receipts
for moneys due and to become due under or in respect of any of the Collateral;
to receive, endorse, and collect any drafts or other instruments, documents
and chattel paper, in connection with clause (a) above; and
to file any claims or take any action or institute any proceedings which the
Administrative Agent may deem necessary or desirable for the collection of any
of the Collateral or otherwise to enforce the rights of the Administrative Agent
with respect to any of the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
Administrative Agent May Perform. If the Pledgor fails to perform any
agreement contained herein, the Administrative Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Administrative
Agent incurred in connection therewith shall be payable by the Pledgor pursuant
to Section 6.4.
Administrative Agent Has No Duty. The powers conferred on the Administrative
Agent hereunder are solely to protect its interest (on behalf of the Lender
Parties) in the Collateral and shall not impose any duty on it to exercise any
such powers. Except for reasonable care of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or responsibility for
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Property, whether
or not the Administrative Agent has or is deemed to have knowledge of such
matters, or
taking any necessary steps to preserve rights against prior parties or any
other rights pertaining to any Collateral.
Reasonable Care. The Administrative Agent is required to exercise reasonable
care in the custody and preservation of any of the Collateral in its possession;
provided, however, the Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral, if it
takes such action for that purpose as the Pledgor reasonably requests in writing
at times other than upon the occurrence and during the continuance of any Event
of Default, but failure of the Administrative Agent to comply with any such
request at any time shall not in itself be deemed a failure to exercise
reasonable care.
REMEDIES
Certain Remedies. If any Event of Default shall have occurred and be
continuing:
The Administrative Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected Collateral) and also
may, without notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any of the
Administrative Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Administrative Agent may deem
commercially reasonable. The Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten days' prior notice to the Pledgor of the
time and place of any public sale or private sale is to be made shall constitute
reasonable notification. The Administrative Agent shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
The Administrative Agent may
transfer all or any part of the Collateral into the name of the Administrative
Agent or its nominee, with or without disclosing that such Collateral is subject
to the lien and security interest hereunder,
notify the parties obligated on any of the Collateral to make payment to the
Administrative Agent of any amount due or to become due thereunder,
enforce collection of any of the Collateral by suit or otherwise, and
surrender, release or exchange all or any part thereof, or compromise or extend
or renew for any period (whether or not longer than the original period) any
obligations of any nature of any party with respect thereto,
endorse any checks, drafts, or other writings in the name of the Pledgor to
allow collection of the Collateral,
take control of any proceeds of the Collateral, and
execute (in the name, place and stead of the Pledgor) endorsements,
assignments, stock powers and other instruments of conveyance or transfer with
respect to all or any of the Collateral.
Securities Laws.
If the Administrative Agent shall determine to exercise its right to sell all
or any of the Collateral pursuant to Section 6.1, the Pledgor agrees that, upon
request of the Administrative Agent, the Pledgor will, at its own expense:
execute and deliver, and cause each issuer of the Collateral contemplated to
be sold and the directors and officers thereof to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts and
things, as may be necessary or, in the opinion of the Administrative Agent,
advisable to register such Collateral under the provisions of the Securities Act
of 1933, as from time to time amended (the "Securities Act") or any similar
statute hereafter enacted analogous in purpose or effect (the Securities Act any
such similar statute as in effect from time to time being called the "Federal
Securities Laws"), and to cause the registration statement relating thereto to
become effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and supplements
thereto and 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;
use its best efforts to qualify the Collateral under the state securities or
"Blue Sky" laws and to obtain all necessary governmental approvals for the sale
of the Collateral, as requested by the Administrative Agent;
cause each such issuer to make available to its security holders, as soon as
practicable, an earnings statement that will satisfy the provisions of Section
11(a) of the Securities Act; and
do or cause to be done all such other acts and things as may be necessary to
make such sale of the Collateral or any part thereof valid and binding and in
compliance with applicable law.
(b) In view of the position of the Pledgor in
relation to the Pledged Shares, or because of other present or future
circumstances, a question may arise under the Federal Securities Laws with
respect to any disposition of the Pledged Shares permitted hereunder. The
Pledgor understands that compliance with the Federal Securities Laws might
materially limit the course of conduct of the Administrative Agent if the
Administrative Agent were to attempt to dispose of all or any part of the
Pledged Shares in a public offering, and might also materially limit the extent
to which or the manner in which any subsequent transferee of any Pledged Shares
could dispose of the same. Similarly, there may be other legal restrictions or
limitations affecting the Administrative Agent in any attempt to dispose of all
or part of the Pledged Shares in a public offering under applicable Blue Sky or
other state securities laws or similar laws analogous in purpose or effect. The
Pledgor understands and agrees that the Administrative Agent is not to have any
duty or obligation to the Pledgor to attempt to dispose of the Pledged Shares
pursuant to a public offering thereof, and the Pledgor will not attempt to hold
the Administrative Agent responsible for selling all or any part of the Pledged
Shares at an inadequate price even if the disposition of the Pledged Shares
pursuant to a public offering might have resulted in a higher price being paid
for the Pledged Shares. Without limiting the generality of the foregoing, the
provisions of this Section would apply if, for example, the Administrative Agent
were to place all or any part of the Pledged Shares for private placement by an
investment banking firm, or if such investment banking firm purchased all or any
part of the Pledged Shares for its own account, or if the Administrative Agent
placed all or any part of the Pledged Shares privately with a purchaser or
purchasers. The provisions of this Section 6.2 will apply notwithstanding the
existence of a public or private market upon which the quotations or sales
prices for the Pledged Shares may substantially exceed the price at which the
Administrative Agent sells them.
Compliance with Restrictions. The Pledgor agrees that in any sale of any of
the Collateral whenever an Event of Default shall have occurred and be
continuing, the Administrative Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and the Pledgor further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Administrative Agent be liable nor accountable
to the Pledgor for any discount allowed by the reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.
Application of Proceeds. All cash proceeds received by the Administrative
Agent in respect of any sale of, collection from, or other realization upon, all
or any part of the Collateral may, in the discretion of the Administrative
Agent, be held by the Administrative Agent as additional collateral security
for, or then or at any time thereafter be applied (after payment of any amounts
payable to the Administrative Agent pursuant to Section 6.5) in whole or in part
by the Administrative Agent against, all or any part of the Obligations in such
order as the Administrative Agent shall elect.
Any surplus of such cash or cash proceeds held by the Administrative
Agent and remaining after payment in full of all the Obligations, the
termination or expiration of all Letters of Credit and the termination of all
Commitments, shall be paid over to the Pledgor or to whomsoever may be lawfully
entitled to receive such surplus.
Indemnity and Expenses. The Pledgor hereby indemnifies and holds harmless the
Administrative Agent from and against any and all claims, losses, and
liabilities arising out of or resulting from this Pledge Agreement (including
enforcement of this Pledge Agreement), except claims, losses, or liabilities
resulting from the Administrative Agent's gross negligence or wilful misconduct.
Upon demand, the Pledgor will pay to the Administrative Agent the amount of any
and all reasonable expenses, including the reasonable fees and disbursements of
its counsel and of any experts and agents, which the Administrative Agent may
incur in connection with:
(a) the administration of this Pledge Agreement, the
Credit Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of, or
the sale of, collection from, or other realization upon, any of the Collateral;
(c) the exercise or enforcement of any of the rights of
the Administrative Agent hereunder; or
(d) the failure by the Pledgor to perform or observe any
of the provisions hereof.
MISCELLANEOUS PROVISIONS
Loan Document. This Pledge Agreement is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof.
Amendments, etc. No amendment to or waiver of any provision of this Pledge
Agreement nor consent to any departure by the Pledgor herefrom shall in any
event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it is given.
Protection of Collateral. The Administrative Agent may from time to time, at
its option, perform any act which the Pledgor agrees hereunder to perform and
which the Pledgor shall fail to perform after being requested in writing so to
perform (it being understood that no such request need be given after the
occurrence and during the continuance of an Event of Default) and the
Administrative Agent may from time to time take any other action which the
Administrative Agent reasonably deems necessary for the maintenance,
preservation or protection of any of the Collateral or of its security interest
therein.
Approvals. Notwithstanding anything to the contrary contained herein or in any
other Loan Document, the Administrative Agent will not take any action
(including the exercise of voting rights by the Administrative Agent with
respect to the Pledged Shares) pursuant to this Pledge 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 the
Borrower or any Subsidiary of the Borrower without first obtaining the prior
approval of the FCC, any other federal, state or local governmental authority or
other person, 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,
other federal, state or local governmental authority or other person. Prior to
the exercise by the Administrative Agent of any power, right, privilege or
remedy pursuant to this Pledge Agreement which requires any consent, approval,
recording, qualification or authorization of any federal, state or local
governmental authority or instrumentality, or other person, 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 consent, approval,
recording, qualification or authorization and, following the occurrence and
continuance of an Event of Default, upon the reasonable request of the
Administrative Agent, the Pledgor will use its best efforts to assist the
Administrative Agent in obtaining such approvals and consents.
Addresses for Notices. All notices and other communications provided to any
party hereto shall be in writing and mailed, delivered or transmitted to it at
the address set forth below its signature in the Credit Agreement or at such
other address as shall be designated by such party in a written notice to each
other party complying as to delivery with the terms of this Section. Any notice,
if mailed and properly addressed with postage prepaid or, if properly addressed
and sent by prepaid courier service, shall be deemed given when received; any
notice if transmitted by facsimile, shall be deemed given when transmitted (upon
receipt of electronic confirmation of transmission).
Captions. Section captions used in this Pledge Agreement are for convenience
of reference only, and shall not affect the construction of this
Pledge Agreement.
Severability. Wherever possible each provision of this Pledge Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Pledge Agreement shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Pledge Agreement.
Governing Law, Entire Agreement, etc. THIS PLEDGE AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. THIS
PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
TELESAT ACQUISITION LIMITED PARTNERSHIP
By: Olympus Communications, L.P.,
its General Partner
By: ACP HOLDINGS, INC., its
Managing General Partner
By:
Title:
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
Title:
<PAGE>
Attachment 1
to
TALP Pledge Agreement
Item A. Pledged Shares
Pledged Share Issuer Common Stock
Authorized Outstanding % of Outstanding
Shares Shares Shares Pledged
<PAGE>
EXHIBIT I-4
<PAGE>
GLOBAL PLEDGE AGREEMENT
THIS GLOBAL PLEDGE AGREEMENT (this "Pledge Agreement"), dated as of
___________ ___, ____, made by GLOBAL ACQUISITION PARTNERS, L.P., a Delaware
limited partnership (the "Pledgor"), in favor of THE BANK OF NOVA SCOTIA, as
administrative agent (together with any successor(s) thereto in such capacity,
the "Administrative Agent") for each of the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated
as of March 29, 1996, amending and restating the Credit Agreement, dated as of
February 28, 1996 (as further amended, supplemented, amended and restated or
otherwise modified, the "Credit Agreement"), among the Pledgor, Highland Video
Associates, L.P., a Delaware limited partnership ("HVA"), Telesat Acquisition
Limited Partnership, a Delaware limited partnership ("TALP"; TALP, HVA and the
Pledgor are individually referred to as a "Borrower", and collectively referred
to as the "Borrowers"), the financial institutions from time to time parties
thereto (the "Lenders"), Bank of Montreal, as Syndication Agent, Chemical Bank,
as Documentation Agent, and the Administrative Agent, the Lenders have agreed to
make Loans to, and the Issuer has agreed to issue (and the Lenders have agreed
to participate in) Letters of Credit for the account of, the Borrowers;
WHEREAS, pursuant to Section 7.1.10 of the Credit Agreement, the
Pledgor is required to execute and deliver this Pledge Agreement; and
WHEREAS, the Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Lender Parties to make
Credit Extensions to the Borrowers pursuant to the Credit Agreement, the Pledgor
agrees, for the benefit of each Lender Party, as follows:
DEFINITIONS
Certain Terms. The following terms (whether or not underscored) when used in
this Pledge Agreement, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to the singular
and plural forms thereof):
<PAGE>
- -------------------------------------------------------------------------------
"Administrative Agent" is defined in the preamble.
- -------------------------------------------------------------------------------
"Borrower" and "Borrowers" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect
to any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Federal Securities Laws" is defined in Section 6.2.
"HVA" is defined in the first recital.
"Lender Party" means, as the context may require, each Lender, the
Issuer, any Swap Party, the Syndication Agent, the Documentation Agent and the
Administrative Agent and each of their respective successors, transferees and
assigns.
"Lenders" is defined in the first recital.
"Pledge Agreement" is defined in the preamble.
"Pledged Property" means all Pledged Shares, and all other pledged
shares of capital stock, all other securities, all assignments of any amounts
due or to become due, all other instruments which may from time to time
hereafter be delivered by the Pledgor to the Administrative Agent for the
purpose of pledge under this Pledge Agreement or any other Loan Document, and
all proceeds of any of the foregoing.
"Pledged Share Issuer" means each Person identified in Item A of
Attachment 1 hereto as the issuer of the Pledged Shares identified opposite the
name of such Person.
"Pledged Shares" means all shares of capital stock of any Pledged
Share Issuer which are delivered by the Pledgor to the Administrative Agent as
Pledged Property hereunder.
"Pledgor" is defined in the preamble.
"Secured Obligations" is defined in Section 2.2.
"Securities Act" is defined in Section 6.2.
"TALP" is defined in the first recital.
"U.C.C." means the Uniform Commercial Code as in effect in the State
of New York.
Credit Agreement Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Pledge Agreement, including its preamble
and recitals, have the meanings provided in the Credit Agreement.
U.C.C. Definitions. Unless otherwise defined herein or the context otherwise
requires, terms for which meanings are provided in the U.C.C. are used in this
Pledge Agreement, including its preamble and recitals, with such meanings.
PLEDGE
Grant of Security Interest. The Pledgor hereby grants, pledges, hypothecates,
assigns, charges, mortgages, delivers, and transfers to the Administrative
Agent, for its benefit and the ratable benefit of each of the Lender Parties, a
continuing security interest in, all of the following property (the
"Collateral"):
all issued and outstanding shares of capital stock of each Pledged Share
Issuer identified in Item A of Attachment 1 hereto;
all other Pledged Shares issued from time to time;
all other Pledged Property, whether now or hereafter delivered to the
Administrative Agent in connection with this Pledge Agreement;
all Dividends, Distributions, and other payments and rights with respect to
any Pledged Property; and
all proceeds of any of the foregoing.
Security for Obligations. This Pledge Agreement secures the payment in full of
all Obligations now or hereafter existing under the Credit Agreement and each
other Loan Document to which the Pledgor is or may become a party, whether for
principal, interest, costs, fees, expenses, or otherwise (all such Obligations
being the "Secured Obligations").
Delivery of Pledged Property. All certificates or instruments representing or
evidencing any Collateral, including all Pledged Shares, shall be delivered to
and held by or on behalf of the Administrative Agent pursuant hereto, shall be
in suitable form for transfer by delivery, and shall be accompanied by all
necessary instruments of transfer or assignment, duly executed in blank.
Dividends on Pledged Shares. In the event that any Dividend is to be paid on
any Pledged Share as permitted in accordance with clause (g) of Section 7.2.2 or
Section 7.2.6 of the Credit Agreement, such Dividend may be paid directly to the
Pledgor. If not otherwise permitted to be paid under the Credit Agreement, then
any such Dividend shall be paid directly to the Administrative Agent.
Continuing Security Interest; Transfer of Note. This Pledge Agreement shall
create a continuing security interest in the Collateral and shall
remain in full force and effect as hereinafter provided in this Section 2.5
until payment in full in cash of all Secured Obligations, the termination or
expiration of all Letters of Credit and the termination of all Commitments,
be binding upon the Pledgor and its successors, transferees and assigns, and
inure, together with the rights and remedies of the Administrative Agent
hereunder, to the benefit of the Administrative Agent and each other Lender
Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the provisions
of Section 10.11 and Article IX of the Credit Agreement. Notwithstanding
anything to the contrary contained herein, upon the payment in full in cash of
all principal, interest and fees due under the Credit Agreement, the termination
or expiration of all Letters of Credit, the termination of all Commitments, the
termination of all Rate Protection Agreements with Swap Parties and the
satisfaction of all obligations owing to any Lender thereunder, the obligations
of the Pledgor hereunder (except under Section 6.5, which shall survive the
termination of this Pledge Agreement) and the security interests granted herein
shall terminate and all rights to the Collateral shall revert to the Pledgor.
Upon any such termination, the Administrative Agent will, at the Pledgor's sole
expense, deliver to the Pledgor, without any representations, warranties or
recourse of any kind whatsoever, all certificates and instruments representing
or evidencing all Pledged Shares, together with all other Collateral held by the
Administrative Agent hereunder, and execute and deliver to the Pledgor such
documents as the Pledgor shall reasonably request to evidence such termination.
<PAGE>
REPRESENTATIONS AND WARRANTIES
Warranties, etc. The Pledgor represents and warrants unto each Lender Party,
as at the date of each pledge and delivery hereunder (including each pledge and
delivery of Pledged Shares) by the Pledgor to the Administrative Agent of any
Collateral, as set forth in this Article.
SECTION 3.1.1. Ownership, No Liens, etc. The Pledgor is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) such Collateral, free and clear of all
Liens, security interests, options, or other charges or encumbrances, except any
Lien or security interest granted pursuant hereto in favor of the Administrative
Agent.
SECTION 3.1.2. Valid Security Interest. The delivery by the Pledgor
of such Collateral to the Administrative Agent is effective to create a valid,
perfected, first priority security interest in such Collateral and all proceeds
thereof, securing the Secured Obligations. No filing or other action will be
necessary to perfect or protect such security interest.
SECTION 3.1.3. As to Pledged Shares. In the case of any Pledged
Shares constituting such Collateral, all of such Pledged Shares are duly
authorized and validly issued, fully paid, and non-assessable, and constitute
that percentage of all of the issued and outstanding shares of capital stock of
each Pledged Share Issuer as set forth in Attachment 1 hereto. The Pledgor has
no Subsidiaries that are corporations other than the Pledged Share Issuers of
the Pledgor.
<PAGE>
-54-
SECTION 3.1.4. Authorization, Approval, etc. No authorization,
approval, or other action by, and no notice to or filing with, any
governmental authority, regulatory body or any other Person is required either
for the pledge by the Pledgor of any Collateral pursuant to this Pledge
Agreement or for the execution, delivery, and performance of this Pledge
Agreement by the Pledgor, or
for the exercise by the Administrative Agent of the voting or other rights
provided for in this Pledge Agreement, or, except with respect to any Pledged
Shares, as may be required in connection with a disposition of such Pledged
Shares by laws affecting the offering and sale of securities generally, the
remedies in respect of the Collateral pursuant to this Pledge Agreement.
SECTION 3.1.5. Compliance with Laws. The Pledgor is in compliance
with the requirements of all applicable laws (including, without limitation, the
provisions of the Fair Labor Standards Act), rules, regulations and orders of
every governmental authority, the non-compliance with which might materially
adversely affect the business, properties, assets, operations, condition
(financial or otherwise) or prospects of the Pledgor or the value of the
Collateral or the worth of the Collateral as collateral security.
COVENANTS
Protect Collateral; Further Assurances, etc. Except as expressly permitted by
the Credit Agreement, the Pledgor will not sell, assign, transfer, pledge, or
encumber in any other manner the Collateral (except in favor of the
Administrative Agent hereunder). The Pledgor will warrant and defend the right
and title herein granted unto the Administrative Agent in and to the Collateral
(and all right, title, and interest represented by the Collateral) against the
claims and demands of all Persons whomsoever. The Pledgor agrees that at any
time, and from time to time, at the expense of the Pledgor, the Pledgor will
promptly execute and deliver all further instruments, and take all further
action, that may be reasonably necessary or desirable, or that the
Administrative Agent may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Administrative Agent to exercise and enforce its rights and remedies hereunder
with respect to any Collateral.
Stock Powers, etc. The Pledgor agrees that all Pledged Shares (and all other
shares of capital stock constituting Collateral) delivered by the Pledgor
pursuant to this Pledge Agreement will be accompanied by duly executed undated
blank stock powers, or other equivalent instruments of transfer acceptable to
the Administrative Agent. The Pledgor will, from time to time upon the request
of the Administrative Agent, promptly deliver to the Administrative Agent such
stock powers, instruments, and similar documents, satisfactory in form and
substance to the Administrative Agent, with respect to the Collateral as the
Administrative Agent may reasonably request and will, from time to time upon the
request of the Administrative Agent after the occurrence of any Event of
Default, promptly transfer any Pledged Shares or other shares of common stock
constituting Collateral into the name of any nominee designated by the
Administrative Agent.
Continuous Pledge. Subject to Section 2.4, the Pledgor will, at all times,
keep pledged to the Administrative Agent pursuant hereto all Pledged Shares and
all other shares of capital stock constituting Collateral, all Dividends and
Distributions with respect thereto, and all other Collateral and other
securities, instruments, proceeds, and rights from time to time received by or
distributable to the Pledgor in respect of any Collateral.
Voting Rights; Dividends, etc. The Pledgor agrees:
after any Default of the type described in Section 8.1.9 of the Credit
Agreement or an Event of Default shall have occurred and be continuing, promptly
upon receipt thereof by the Pledgor and without any request therefor by the
Administrative Agent, to deliver (properly endorsed where required hereby or
requested by the Administrative Agent) to the Administrative Agent all
Dividends, Distributions, all other cash payments and all proceeds of the
Collateral, all of which shall be held by the Administrative Agent as additional
Collateral for use in accordance with Section 6.3; and
after any Event of Default shall have occurred and be continuing and the
Administrative Agent has notified the Pledgor of the Administrative Agent's
intention to exercise its voting power under this clause (b),
the Administrative Agent may exercise (to the exclusion of the Pledgor) the
voting power and all other incidental rights of ownership with respect to any
Pledged Shares or other shares of capital stock constituting Collateral and the
Pledgor hereby grants the Administrative Agent an irrevocable proxy, exercisable
under such circumstances, to vote the Pledged Shares and such other Collateral;
and
promptly to deliver to the Administrative Agent such additional proxies and
other documents as may be necessary to allow the Administrative Agent to
exercise such voting power.
All Dividends, Distributions, cash payments and proceeds which may at any time
and from time to time be held by the Pledgor but which the Pledgor is then
obligated to deliver to the Administrative Agent, shall, until delivery to the
Administrative Agent, be held by the Pledgor separate and apart from its other
property in trust for the Administrative Agent. The Administrative Agent agrees
that unless an Event of Default shall have occurred and be continuing and the
Administrative Agent shall have given the notice referred to in clause (b) of
this Section 4.4, the Pledgor shall have the exclusive voting power with respect
to any shares of capital stock (including any of the Pledged Shares)
constituting Collateral and the Administrative Agent shall, upon the written
request of the Pledgor, promptly deliver such proxies and other documents, if
any, as shall be reasonably requested by the Pledgor which are necessary to
allow the Pledgor to exercise voting power with respect to any such share of
capital stock (including any of the Pledged Shares) constituting Collateral;
provided, however, that no vote shall be cast, or consent, waiver, or
ratification given, or action taken by the Pledgor that would impair any
Collateral or be inconsistent with or violate any provision of the Credit
Agreement or any other Loan Document (including this Pledge Agreement).
THE ADMINISTRATIVE AGENT
Administrative Agent Appointed Attorney-in-Fact. The Pledgor hereby
irrevocably appoints the Administrative Agent the Pledgor's attorney-in-fact,
with full authority in the place and stead of the Pledgor and in the name of the
Pledgor or otherwise, from time to time in the Administrative Agent's
discretion, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Pledge Agreement, including without limitation:
after the occurrence and continuance of an Event of Default, to ask, demand,
collect, sue for, recover, compromise, receive and give acquittance and receipts
for moneys due and to become due under or in respect of any of the Collateral;
to receive, endorse, and collect any drafts or other instruments, documents
and chattel paper, in connection with clause (a) above; and
to file any claims or take any action or institute any proceedings which the
Administrative Agent may deem necessary or desirable for the collection of any
of the Collateral or otherwise to enforce the rights of the Administrative Agent
with respect to any of the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
Administrative Agent May Perform. If the Pledgor fails to perform any
agreement contained herein, the Administrative Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Administrative
Agent incurred in connection therewith shall be payable by the Pledgor pursuant
to Section 6.4.
Administrative Agent Has No Duty. The powers conferred on the Administrative
Agent hereunder are solely to protect its interest (on behalf of the Lender
Parties) in the Collateral and shall not impose any duty on it to exercise any
such powers. Except for reasonable care of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or responsibility for
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Property, whether
or not the Administrative Agent has or is deemed to have knowledge of such
matters, or
taking any necessary steps to preserve rights against prior parties or any
other rights pertaining to any Collateral.
Reasonable Care. The Administrative Agent is required to exercise reasonable
care in the custody and preservation of any of the Collateral in its possession;
provided, however, the Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral, if it
takes such action for that purpose as the Pledgor reasonably requests in writing
at times other than upon the occurrence and during the continuance of any Event
of Default, but failure of the Administrative Agent to comply with any such
request at any time shall not in itself be deemed a failure to exercise
reasonable care.
REMEDIES
Certain Remedies. If any Event of Default shall have occurred and be continuing:
The Administrative Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all the rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected Collateral) and also
may, without notice except as specified below, sell the Collateral or any part
thereof in one or more parcels at public or private sale, at any of the
Administrative Agent's offices or elsewhere, for cash, on credit or for future
delivery, and upon such other terms as the Administrative Agent may deem
commercially reasonable. The Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten days' prior notice to the Pledgor of the
time and place of any public sale or private sale is to be made shall constitute
reasonable notification. The Administrative Agent shall not be obligated to make
any sale of Collateral regardless of notice of sale having been given. The
Administrative Agent may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
The Administrative Agent may
transfer all or any part of the Collateral into the name of the Administrative
Agent or its nominee, with or without disclosing that such Collateral is subject
to the lien and security interest hereunder,
notify the parties obligated on any of the Collateral to make payment to the
Administrative Agent of any amount due or to become due
thereunder,
enforce collection of any of the Collateral by suit or otherwise, and
surrender, release or exchange all or any part thereof, or compromise or extend
or renew for any period (whether or not longer than the original period) any
obligations of any nature of any party with respect thereto,
endorse any checks, drafts, or other writings in the name of the Pledgor to
allow collection of the Collateral,
take control of any proceeds of the Collateral, and
execute (in the name, place and stead of the Pledgor) endorsements,
assignments, stock powers and other instruments of conveyance or transfer with
respect to all or any of the Collateral.
Securities Laws.
If the Administrative Agent shall determine to exercise its right to sell all
or any of the Collateral pursuant to Section 6.1, the Pledgor agrees that, upon
request of the Administrative Agent, the Pledgor will, at its own expense:
execute and deliver, and cause each issuer of the Collateral contemplated to
be sold and the directors and officers thereof to execute and deliver, all such
instruments and documents, and do or cause to be done all such other acts and
things, as may be necessary or, in the opinion of the Administrative Agent,
advisable to register such Collateral under the provisions of the Securities Act
of 1933, as from time to time amended (the "Securities Act") or any similar
statute hereafter enacted analogous in purpose or effect (the Securities Act any
such similar statute as in effect from time to time being called the "Federal
Securities Laws"), and to cause the registration statement relating thereto to
become effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and supplements
thereto and 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;
use its best efforts to qualify the Collateral under the state securities or
"Blue Sky" laws and to obtain all necessary governmental approvals for the sale
of the Collateral, as requested by the Administrative Agent;
cause each such issuer to make available to its security holders, as soon as
practicable, an earnings statement that will satisfy the provisions of Section
11(a) of the Securities Act; and
do or cause to be done all such other acts and things as may be necessary to
make such sale of the Collateral or any part thereof valid and binding and in
compliance with applicable law.
(b) In view of the position of the Pledgor in
relation to the Pledged Shares, or because of other present or future
circumstances, a question may arise under the Federal Securities Laws with
respect to any disposition of the Pledged Shares permitted hereunder. The
Pledgor understands that compliance with the Federal Securities Laws might
materially limit the course of conduct of the Administrative Agent if the
Administrative Agent were to attempt to dispose of all or any part of the
Pledged Shares in a public offering, and might also materially limit the extent
to which or the manner in which any subsequent transferee of any Pledged Shares
could dispose of the same. Similarly, there may be other legal restrictions or
limitations affecting the Administrative Agent in any attempt to dispose of all
or part of the Pledged Shares in a public offering under applicable Blue Sky or
other state securities laws or similar laws analogous in purpose or effect. The
Pledgor understands and agrees that the Administrative Agent is not to have any
duty or obligation to the Pledgor to attempt to dispose of the Pledged Shares
pursuant to a public offering thereof, and the Pledgor will not attempt to hold
the Administrative Agent responsible for selling all or any part of the Pledged
Shares at an inadequate price even if the disposition of the Pledged Shares
pursuant to a public offering might have resulted in a higher price being paid
for the Pledged Shares. Without limiting the generality of the foregoing, the
provisions of this Section would apply if, for example, the Administrative Agent
were to place all or any part of the Pledged Shares for private placement by an
investment banking firm, or if such investment banking firm purchased all or any
part of the Pledged Shares for its own account, or if the Administrative Agent
placed all or any part of the Pledged Shares privately with a purchaser or
purchasers. The provisions of this Section 6.2 will apply notwithstanding the
existence of a public or private market upon which the quotations or sales
prices for the Pledged Shares may substantially exceed the price at which the
Administrative Agent sells them.
Compliance with Restrictions. The Pledgor agrees that in any sale of any of
the Collateral whenever an Event of Default shall have occurred and be
continuing, the Administrative Agent is hereby authorized to comply with any
limitation or restriction in connection with such sale as it may be advised by
counsel is necessary in order to avoid any violation of applicable law
(including compliance with such procedures as may restrict the number of
prospective bidders and purchasers, require that such prospective bidders and
purchasers have certain qualifications, and restrict such prospective bidders
and purchasers to persons who will represent and agree that they are purchasing
for their own account for investment and not with a view to the distribution or
resale of such Collateral), or in order to obtain any required approval of the
sale or of the purchaser by any governmental regulatory authority or official,
and the Pledgor further agrees that such compliance shall not result in such
sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall the Administrative Agent be liable nor accountable
to the Pledgor for any discount allowed by the reason of the fact that such
Collateral is sold in compliance with any such limitation or restriction.
Application of Proceeds. All cash proceeds received by the Administrative
Agent in respect of any sale of, collection from, or other realization upon, all
or any part of the Collateral may, in the discretion of the Administrative
Agent, be held by the Administrative Agent as additional collateral security
for, or then or at any time thereafter be applied (after payment of any amounts
payable to the Administrative Agent pursuant to Section 6.5) in whole or in part
by the Administrative Agent against, all or any part of the Obligations in such
order as the Administrative Agent shall elect.
Any surplus of such cash or cash proceeds held by the Administrative
Agent and remaining after payment in full of all the Obligations, the
termination or expiration of all Letters of Credit and the termination of all
Commitments, shall be paid over to the Pledgor or to whomsoever may be lawfully
entitled to receive such surplus.
Indemnity and Expenses. The Pledgor hereby indemnifies and holds harmless the
Administrative Agent from and against any and all claims, losses, and
liabilities arising out of or resulting from this Pledge Agreement (including
enforcement of this Pledge Agreement), except claims, losses, or liabilities
resulting from the Administrative Agent's gross negligence or wilful misconduct.
Upon demand, the Pledgor will pay to the Administrative Agent the amount of any
and all reasonable expenses, including the reasonable fees and disbursements of
its counsel and of any experts and agents, which the Administrative Agent may
incur in connection with:
(a) the administration of this Pledge Agreement, the
Credit Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of, or
the sale of, collection from, or other realization upon, any of
the Collateral;
(c) the exercise or enforcement of any of the rights of
the Administrative Agent hereunder; or
(d) the failure by the Pledgor to perform or observe any
of the provisions hereof.
MISCELLANEOUS PROVISIONS
Loan Document. This Pledge Agreement is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof.
Amendments, etc. No amendment to or waiver of any provision of this Pledge
Agreement nor consent to any departure by the Pledgor herefrom shall in any
event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it is given.
Protection of Collateral. The Administrative Agent may from time to time, at
its option, perform any act which the Pledgor agrees hereunder to perform and
which the Pledgor shall fail to perform after being requested in writing so to
perform (it being understood that no such request need be given after the
occurrence and during the continuance of an Event of Default) and the
Administrative Agent may from time to time take any other action which the
Administrative Agent reasonably deems necessary for the maintenance,
preservation or protection of any of the Collateral or of its security interest
therein.
Approvals. Notwithstanding anything to the contrary contained herein or in any
other Loan Document, the Administrative Agent will not take any action
(including the exercise of voting rights by the Administrative Agent with
respect to the Pledged Shares) pursuant to this Pledge 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 the
Borrower or any Subsidiary of the Borrower without first obtaining the prior
approval of the FCC, any other federal, state or local governmental authority or
other person, 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,
other federal, state or local governmental authority or other person. Prior to
the exercise by the Administrative Agent of any power, right, privilege or
remedy pursuant to this Pledge Agreement which requires any consent, approval,
recording, qualification or authorization of any federal, state or local
governmental authority or instrumentality, or other person, 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 consent, approval,
recording, qualification or authorization and, following the occurrence and
continuance of an Event of Default, upon the reasonable request of the
Administrative Agent, the Pledgor will use its best efforts to assist the
Administrative Agent in obtaining such approvals and consents.
Addresses for Notices. All notices and other communications provided to any
party hereto shall be in writing and mailed, delivered or transmitted to it at
the address set forth below its signature in the Credit Agreement or at such
other address as shall be designated by such party in a written notice to each
other party complying as to delivery with the terms of this Section. Any notice,
if mailed and properly addressed with postage prepaid or, if properly addressed
and sent by prepaid courier service, shall be deemed given when received; any
notice if transmitted by facsimile, shall be deemed given when transmitted (upon
receipt of electronic confirmation of transmission).
Captions. Section captions used in this Pledge Agreement are for convenience
of reference only, and shall not affect the construction of this
Pledge Agreement.
Severability. Wherever possible each provision of this Pledge Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Pledge Agreement shall be prohibited by or invalid
under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Pledge Agreement.
Governing Law, Entire Agreement, etc. THIS PLEDGE AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. THIS
PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
GLOBAL ACQUISITION PARTNERS, L.P.
By: GLOBAL CABLEVISION, INC.,
its General Partner
By:
Title:
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
Title:
<PAGE>
Attachment 1
to
Global Pledge Agreement
Item A. Pledged Shares
Pledged Share Issuer Common Stock
Authorized Outstanding % of Outstanding
Shares Shares Shares Pledged
<PAGE>
[EXECUTION COPY]
BORROWER PARTNERS SECURITY AGREEMENT
THIS BORROWER PARTNERS SECURITY AGREEMENT (this "Security
Agreement"), dated as of February 28, 1996, made by each of the parties
identified on the signature pages hereto (each a "Grantor" and collectively the
"Grantors") in favor of THE BANK OF NOVA SCOTIA, as administrative agent
(together with any successor(s) thereto in such capacity, the "Administrative
Agent") for each of the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of February 28,
1996 (the "Credit Agreement"), among Highland Video Associates, L.P., a
Pennsylvania limited partnership (the "Borrower"), the financial institutions
from time to time parties thereto (the "Lenders"), Bank of Montreal, as
Syndication Agent, Chemical Bank, as Documentation Agent, and the Administrative
Agent, the Lenders have agreed to make Loans to, and the Issuer has agreed to
issue (and the Lenders have agreed to participate in) Letters of Credit for the
account of, the Borrower;
WHEREAS, as a condition precedent to the making of Credit Extensions
(including the initial Credit Extension) under the Credit Agreement, each
Grantor is required to execute and deliver this Security Agreement;
WHEREAS, each Grantor has duly authorized the execution, delivery and
performance of this Security Agreement; and
WHEREAS, it is in the best interests of each Grantor to execute this
Security Agreement inasmuch as such Grantor will derive substantial direct and
indirect benefits from the Credit Extensions made from time to time to the
Borrower by the Secured Parties pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Secured Parties to make
Credit Extensions to the Borrower pursuant to the Credit Agreement, each Grantor
agrees, for the benefit of each Secured Party, as follows:
DEFINITIONS
Certain Terms. The following terms (whether or not underscored) when used in
this Security Agreement, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to the singular
and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Grantor" is defined in the preamble.
"Lenders" is defined in the first recital.
"Secured Obligations" is defined in Section 2.2.
"Secured Party" means, as the context may require, each Lender, the
Issuer, each Swap Party, the Syndication Agent, the Documentation Agent and the
Administrative Agent and each of their respective successors, transferees and
assigns.
"Security Agreement" is defined in the preamble.
"U.C.C." means the Uniform Commercial Code, as in effect in the State
of New York.
Credit Agreement Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Security Agreement, including its
preamble and recitals, have the meanings provided in the Credit Agreement.
U.C.C. Definitions. Unless otherwise defined herein or the context otherwise
requires, terms for which meanings are provided in the U.C.C. are used in
this Security Agreement, including its preamble and recitals, with such
meanings.
SECURITY INTEREST
Grant of Security. Each Grantor hereby grants, assigns and pledges to the
Administrative Agent for its benefit and the ratable benefit of each of the
Secured Parties a security interest in all of the following, whether now owned
or hereafter existing or acquired (the "Collateral"):
all right, title and interest of such Grantor, whether now existing or
hereafter arising or acquired, in, to and under the Borrower Partnership
Agreement, including such Grantor's rights, now existing or hereafter arising or
acquired, to receive from time to time its share of profits, income, surplus,
compensation, return of capital, distributions and other reimbursements and
payments from the Borrower (including specific properties of the Borrower upon
dissolution and otherwise);
all general or limited partnership interests now owned or hereafter acquired
by such Grantor in the Borrower as a result of exchange offers, direct
investments or contributions or otherwise;
such Grantor's accounts, general intangibles and other rights to payment or
reimbursement, now existing or hereafter arising or acquired, from the Borrower,
existing or arising from loans, advances or other extensions of credit by such
Grantor from time to time to or for the account of the Borrower, or from
services rendered by such Grantor from time to time to or for the account of the
Borrower; and
all products, offspring, rents, issues, profits, returns, income and proceeds
of and from any and all of the foregoing Collateral (including proceeds which
constitute property of the types described in clauses (a), (b) and (c), and, to
the extent not otherwise included, all payments under insurance (whether or not
the Administrative Agent is the loss payee thereof), or any indemnity, warranty
or guaranty, payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Collateral).
Security for Obligations. This Security Agreement secures the payment of all
Obligations of the Borrower now or hereafter existing under the Credit Agreement
and each other Loan Document to which the Borrower is or may become a party,
whether for principal, interest, costs, fees, expenses or otherwise, and all
other obligations of each such Grantor now or hereafter existing under this
Security Agreement and each other Loan Document to which it is or may become a
party (all such Obligations of the Borrower and such Grantor being the "Secured
Obligations").
Continuing Security Interest; Transfer of Notes. This Security Agreement shall
create a continuing security interest in the Collateral and shall remain in full
force and effect as hereinafter provided in this Section 2.3 until payment in
full in cash of all Secured Obligations, the termination or expiration of all
Letters of Credit and the termination of all Commitments,
be binding upon each Grantor, and each Grantor's successors, transferees and
assigns, and
inure, together with the rights and remedies of the Administrative Agent
hereunder, to the benefit of the Administrative Agent and each other Secured
Party.
Without limiting the generality of the foregoing clause (c), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Loan held by it
to any other Person or entity, and such other Person or entity shall thereupon
become vested with all the rights and benefits in respect thereof granted to
such Lender under any Loan Document (including this Security Agreement) or
otherwise, subject, however, to any contrary provisions in such assignment or
transfer, and to the provisions of Section 10.11 and Article IX of the Credit
Agreement. Notwithstanding anything to the contrary contained herein, upon the
payment in full in cash of all principal, fees and interest due under the Credit
Agreement, the termination or expiration of all Letters of Credit, the
termination of all Commitments, the termination of all Rate Protection
Agreements with Swap Parties and the satisfaction of all obligations owing to
any Lender thereunder, the obligations of each Grantor hereunder (except under
Section 6.2, which shall survive the termination of this Security Agreement) and
the security interests granted herein shall terminate and all rights to the
Collateral shall revert to the Grantors. Upon any such termination, the
Administrative Agent will, at the sole expense of the Grantors, execute and
deliver to the Grantors such documents as the Grantors shall reasonably request
to evidence such termination.
Grantors Remain Liable. Anything herein to the contrary notwithstanding
each Grantor shall remain liable under the Borrower Partnership Agreement and
the contracts and agreements included in the Collateral to the extent set forth
therein, and shall perform all of its duties and obligations under the Borrower
Partnership Agreement and such contracts and agreements to the same extent as if
this Security Agreement had not been executed,
the exercise by the Administrative Agent of any of its rights hereunder shall
not release any Grantor from any of its duties or obligations under the Borrower
Partnership Agreement and any such contracts or agreements included in the
Collateral, and
neither the Administrative Agent nor any other Secured Party shall have any
obligation or liability under the Borrower Partnership Agreement and any such
contracts or agreements included in the Collateral by reason of this Security
Agreement, nor shall the Administrative Agent or any other Secured Party be
obligated to perform any of the obligations or duties of any Grantor thereunder
or to take any action to collect or enforce any claim for payment assigned
hereunder.
Security Interest Absolute. All rights of the Secured Parties and the
security interests granted to the Secured Parties hereunder, and all obligations
of the Grantors hereunder, shall be absolute and unconditional, irrespective of
any lack of validity or enforceability of the Credit Agreement, any Note or any
other Loan Document; the failure of any Secured Party
to assert any claim or demand or to enforce any right or remedy against the
Borrower, any other Obligor or any other Person under the provisions of the
Credit Agreement, any Note, any other Loan Document or otherwise, or
to exercise any right or remedy against any other guarantor of, or collateral
securing, any Secured Obligations;
any change in the time, manner or place of payment of, or in any other term
of, all or any of the Secured Obligations or any other extension, compromise or
renewal of any Secured Obligation;
any reduction, limitation, impairment or termination of any Secured
Obligations for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and each Grantor 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, any Secured Obligations;
any amendment to, rescission, waiver, or other modification of, or any consent
to departure from, any of the terms of the Credit Agreement, any Note or any
other Loan Document;
any addition, exchange, release, surrender or non-perfection of any collateral
(including the Collateral), or any amendment to or waiver or release of or
addition to or consent to departure from any guaranty, for any of the Secured
Obligations; or
any other circumstances which might otherwise constitute a defense available
to, or a legal or equitable discharge of, the Borrower, any other Obligor, any
surety or any guarantor.
Postponement of Subrogation. Each Grantor agrees that it will not exercise any
rights which it may acquire by way of subrogation under this Security Agreement,
by any payment made hereunder or otherwise, until the prior payment, in full and
in cash, of all Obligations of the Borrower and each other Obligor, the
termination or expiration of all Letters of Credit and the termination of all
Commitments. Any amount paid to such Grantor on account of any such subrogation
rights prior to the payment in full of all Obligations of the Borrower and each
other Obligor, the termination or expiration of all Letters of Credit and the
termination of all Commitments shall be held in trust for the benefit of the
Secured Parties and shall immediately be paid to the Administrative Agent and
credited and applied against the Obligations of the Borrower and each other
Obligor, whether matured or unmatured, in accordance with the terms of the
Credit Agreement; provided, however, that if
(a) such Grantor has made payment to the Secured Parties
of all or any part of the Obligations of the Borrower or any other Obligor, and
(b) all Obligations of the Borrower and each other Obligor
have been paid in full, all Letters of Credit have expired or been terminated
and all Commitments have been terminated,
each Secured Party agrees that, at such Grantor's request, the Secured Parties
will execute and deliver to such Grantor appropriate documents (without recourse
and without representation or warranty) necessary to evidence the transfer by
subrogation to such Grantor of an interest in the Secured Obligations resulting
from such payment by such Grantor. In furtherance of the foregoing, for so long
as any Secured Obligations, Letters of Credit or Commitments remain outstanding,
each Grantor shall refrain from taking any action or commencing any proceeding
against the Borrower or any other Obligor (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 this Security Agreement to any Secured
Party.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. Each Grantor represents and warrants to each
Secured Party as set forth in this Article.
Organization, etc. Highland Holdings is a general partnership validly
organized and existing and in good standing under the laws of the State of
Pennsylvania and is duly qualified to do business and is in good standing in
each jurisdiction where the nature of its business requires such qualification.
Authority and Licenses to Conduct Business. Highland Holdings has full
partnership power and authority and holds all requisite governmental licenses,
permits and other approvals to own and hold under lease its property and to
conduct its business substantially as currently conducted by it (except where
the failure to do so could not reasonably be expected to have a material adverse
effect on the business, assets, operations, financial condition or prospects of
Highland Holdings and its Subsidiaries).
Power and Authority. Highland Holdings has full power and authority to enter
into and perform its obligations under this Security Agreement and each other
Loan Document executed or to be executed by it. Michael J. Rigas, John J. Rigas
and Timothy J. Rigas have full power and legal capacity to enter into and
perform their respective obligations under this Security Agreement and each
other Loan Document executed or to be executed by them.
Non-Contravention, etc. The execution, delivery and performance by such
Grantor of this Security Agreement and each other Loan Document executed or to
be executed by such Grantor do not contravene any contractual restriction, law
or court decree or order binding on or affecting such Grantor; result in, or
require the creation or imposition of, any Lien on any of such Grantor's
properties, other than the Lien created pursuant to this Security Agreement; or
in the case of Highland Holdings only, contravene its Organic Documents.
Ownership, No Liens, etc. Such Grantor owns the Collateral free and clear of
any Lien, security interest, charge or encumbrance except for the security
interests created by this Security Agreement. Subject to the preceding sentence,
no effective financing statement or other instrument similar in effect covering
all or any part of the Collateral is on file in any recording office, except
such as may have been filed in favor of the Administrative Agent relating to
this Security Agreement and those filed pursuant to the terms of the Existing
Credit Agreement.
Validity, etc. Subject to Section 3.1.5, this Security Agreement creates a
valid first priority security interest in the Collateral, securing the payment
of the Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly taken.
The Grantors have furnished to the Administrative Agent a true and correct copy
of the Borrower Partnership Agreement and all amendments thereto, which Borrower
Partnership Agreement, as so amended, constitutes the valid, binding and
enforceable obligations of the Grantors, sets forth the entire agreement of the
parties thereto with respect to the subject matter thereof, has not been further
amended or modified and remains in full force and effect.
Partnership Interests, Profits. The character (general and/or limited partner)
of each Grantor's interest in the Borrower, and each Grantor's percentage
interest in the Borrower's profits (with profit interests as a general and as a
limited partner separately stated) are as set forth in Schedule I hereto, as
amended, supplemented or otherwise modified from time to time pursuant to
Section 4.1.7 and otherwise with the prior written consent of the Administrative
Agent.
Certificate. No interest of any Grantor in the Borrower is represented by a
certificate of interest or similar instrument, except such certificates or
instruments, if any, as have been delivered to the Administrative Agent and are
held in its possession (and each Grantor covenants and agrees that any such
certificates or instruments hereafter received by such Grantor with respect to
any of the Collateral will be promptly delivered to the Administrative Agent).
<PAGE>
Borrower Partnership Agreement. Such Grantor had and has the partnership power
and authority on its own behalf, or as a partner of the Borrower, as the case
may be, to execute and carry out the provisions of the Borrower Partnership
Agreement and the Credit Agreement. Such Grantor has substantially performed all
of its respective obligations to date under the Borrower Partnership Agreement
and has not received notice of the failure of any other party thereto to perform
substantially its obligations thereunder.
Location, Records, etc. The place(s) of business and chief executive office of
each Grantor and the office(s) where such Grantor keeps its records concerning
the Collateral are located in, and in the case of each individual Grantor, the
residence (as defined in the Uniform Commercial Code as in effect in the state
of Pennsylvania) is, Potter County, Pennsylvania. Highland Holdings does not
have any trade name other than Adelphia Cable Communications. No Grantor has
been known by any legal name different from the one set forth on the signature
page hereto. Highland Holdings has not been the subject of any merger or other
reorganization.
Litigation, etc. There is no pending or, to the knowledge of any Grantor,
threatened litigation, action, proceeding, or labor controversy affecting the
Borrower or any of its Subsidiaries or CTCC, or any of their respective
properties, businesses, assets or revenues, which may materially adversely
affect the financial condition, operations, assets, business, properties or
prospects of the Borrower and its Subsidiaries, taken as a whole, or which
purports to affect the legality, validity or enforceability of this Security
Agreement, any other Loan Document, the Management Agreements, the Organic
Documents of any Guarantor or any Franchise Agreement to which a Guarantor is a
party, except as disclosed in Item 6.7 ("Litigation") of the Disclosure
Schedule.
Authorization, Approval, etc. No authorization, approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required either for the grant by such Grantor of the security interests
granted hereby or for the execution, delivery and performance of this Security
Agreement by such Grantor, or for the perfection of or the exercise by the
Administrative Agent of its rights and remedies hereunder, except filings that
may be required to perfect Liens under the U.C.C.,
<PAGE>
other than those authorizations, approvals or notices required by the terms and
conditions of certain agreements, where the failure to obtain such
authorizations, approvals or notices could not reasonably be expected to have a
material adverse effect on the assets, properties, business, financial condition
or prospects of such Grantor and its Subsidiaries and would not, in any way,
impair the rights of the Administrative Agent or the Secured Parties under this
Security Agreement.
Compliance with Laws. Such Grantor is in compliance with the requirements of
all applicable laws (including, without limitation, the provisions of the Fair
Labor Standards Act), rules, regulations and orders of every governmental
authority, the non-compliance with which might materially adversely affect the
business, properties, assets, operations, condition (financial or otherwise) or
prospects of such Grantor or the value of the Collateral or the worth of the
Collateral as collateral security.
Representations and Warranties. Each Grantor hereby represents and warrants to
each Lender Party that the representations and warranties contained in Article
VI of the Credit Agreement, insofar as the representations and warranties
contained therein are applicable to such Grantor and its (or his) properties,
are true and correct in all respects, each such representation and warranty set
forth in such Article (insofar as applicable as aforesaid) and all other terms
of the Credit Agreement to which reference is made therein, together with all
related definitions and ancillary provisions, being hereby incorporated into
this Guaranty by reference as though specifically set forth in this Section.
COVENANTS
Certain Covenants. Each Grantor covenants and agrees that, until the
termination of this Security Agreement as provided in Section 2.3, such Grantor
will, unless the Required Lenders shall otherwise consent in writing, perform
the obligations set forth in this Section.
Maintenance of Records. Such Grantor will keep all of its records concerning
the Collateral in Potter County, Pennsylvania, which records will be of such
character as will enable the Administrative Agent or its designees to determine
at any time the status thereof, or, upon 30 days' prior written notice to the
Administrative Agent, at such other locations in a jurisdiction where all
actions necessary to (i) perfect, preserve and protect any security interest
granted or purported to be granted hereby and (ii) enable the Administrative
Agent to exercise and enforce its rights and remedies hereunder, shall have been
taken. Such Grantor shall not change its name except upon 30 days' prior written
notice to the Administrative Agent and shall hold and preserve such records
concerning the Collateral and permit representatives of the Administrative Agent
at any time during normal business hours to inspect and make abstracts from such
records.
Amendment of Borrower Partnership Agreement. Such Grantor will not amend,
supplement or otherwise modify, or permit, consent or suffer to occur any
amendment, supplement or modification of any terms or provisions contained in,
or applicable to, the Borrower Partnership Agreement if the effect thereof is to
impair, or is in any manner adverse to, the rights or interests of any Secured
Party under the Credit Agreement or any other Loan Document, without the prior
written consent of the Administrative Agent and the Required Lenders.
Notice of Litigation. Each Grantor will notify the Administrative Agent of the
institution of any litigation or governmental proceeding against or affecting
any of the Collateral, to the extent and as soon as practicable after such
Grantor shall have knowledge thereof.
Withdraw from Partnership. Except as provided in Section 4.1.7 hereof, no
Grantor will, without the express written consent of the Administrative Agent
and the Lenders, actively cause itself to withdraw as a general partner or
limited partner, as the case may be, of the Borrower.
Transfers and Other Liens. Such Grantor shall not:
sell, assign (by operation of law or otherwise) or otherwise dispose of any of
the Collateral; provided, however, that the Grantors may sell or assign limited
or general partnership interests in the Borrower if, after giving effect
thereto, the Grantors own, directly or indirectly and free and clear of all
Liens and other encumbrances (other than in favor of the Administrative Agent),
sufficient general and limited partnership interests in the Borrower such that a
"Change in Control" will not occur; or
create or suffer to exist any Lien or other charge or encumbrance upon or with
respect to any of the Collateral to secure Indebtedness of any Person or entity,
except for the security interests created by this Security Agreement and except
as permitted by the Credit Agreement.
Further Assurances, etc. Each Grantor agrees that, from time to time at its
own expense, such Grantor will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that the Administrative Agent may request, in order to perfect,
preserve and protect any security interest granted or purported to be granted
hereby or to enable the Administrative Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, each Grantor will
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices (including, without limitation,
any assignment of claim form under or pursuant to the federal assignment of
claims statute, 31 U.S.C. ss. 3726, any successor or amended version thereof or
any regulation promulgated under or pursuant to any version thereof), as may be
necessary or desirable, or as the Administrative Agent may request, in order to
perfect and preserve the security interests and other rights granted or
purported to be granted to the Administrative Agent hereby; and
furnish to the Administrative Agent, from time to time at the Administrative
Agent's request, statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Administrative Agent may reasonably request, all in reasonable detail.
With respect to the foregoing and the grant of the security interests hereunder,
such Grantor hereby authorizes the Administrative Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral without the signature of such Grantor where permitted
by law, and the Administrative Agent hereby agrees to furnish the Grantor with
copies of any such filings. A carbon, photographic or other reproduction of this
Security Agreement or any financing statement covering the Collateral or any
part thereof shall be sufficient as a financing statement where permitted by
law.
Credit Agreement Compliance. Such Grantor agrees to be bound by the terms of
clauses (c) and (d) of Section 8.1.9 of the Credit Agreement as if it were a
party to the Credit Agreement. Such Grantor will take all actions necessary to
cause the Borrower to comply with the terms and conditions of the Credit
Agreement and all Loan Documents to which the Borrower is a party, and such
Grantor will not take any action which would, in any way, prohibit the Borrower
from complying with, or interfere with the Borrower's compliance with, or cause
the Borrower to fail to comply with, the terms and conditions of the Credit
Agreement or any Loan Documents to which the Borrower is a party.
THE ADMINISTRATIVE AGENT
Administrative Agent Appointed Attorney-in-Fact. Each Grantor hereby
irrevocably appoints the Administrative Agent such Grantor's attorney-in-fact,
with full authority in the place and stead of such Grantor and in the name of
such Grantor or otherwise, from time to time in the Administrative Agent's
discretion, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Security Agreement, including, without limitation:
to ask, demand, collect, sue for, recover, compromise, receive and give
acquittance and receipts for moneys due and to become due under or in respect of
any of the Collateral;
to receive, endorse, and collect any drafts or other instruments, documents
and chattel paper, in connection with clause (a) above;
to file any claims or take any action or institute any proceedings which the
Administrative Agent may deem necessary or desirable for the collection of any
of the Collateral or otherwise to enforce the rights of the Administrative Agent
with respect to any of the Collateral; and
to perform the affirmative obligations of such Grantor hereunder (including
all obligations of such Grantor pursuant to Section 4.1.6).
Each Grantor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
Administrative Agent May Perform. If any Grantor fails to perform any
agreement contained herein, the Administrative Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Administrative
Agent incurred in connection therewith shall be payable by such Grantor pursuant
to Section 6.2.
Administrative Agent Has No Duty. In addition to, and not in limitation of,
Section 2.4, the powers conferred on the Administrative Agent hereunder are
solely to protect its interest (on behalf of the Secured Parties) in the
Collateral and shall not impose any duty on it to exercise any such powers.
Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
Reasonable Care. The Administrative Agent is required to exercise reasonable
care in the custody and preservation of any of the Collateral in its possession;
provided, however, the Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral, if it
takes such action for that purpose as such Grantor reasonably requests in
writing at times other than upon the occurrence and during the continuance of
any Event of Default, but failure of the Administrative Agent to comply with any
such request at any time shall not in itself be deemed a failure to exercise
reasonable care.
REMEDIES
Certain Remedies. If any Event of Default shall have occurred and be
continuing
The Administrative Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all of the rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected Collateral) and also
may require the Grantors to, and each Grantor hereby agrees that it will, at its
expense and upon request of the Administrative Agent forthwith, assemble all or
part of the Collateral as directed by the Administrative Agent and make it
available to the Administrative Agent at a place to be designated by the
Administrative Agent which is reasonably convenient to all parties.
All cash proceeds received by the Administrative Agent in respect of any sale
of, collection from, or other realization upon all or any part of the Collateral
may, in the discretion of the Administrative Agent, be held by the
Administrative Agent as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Administrative Agent
pursuant to Section 6.2) in whole or in part by the Administrative Agent for the
ratable benefit of the Secured Parties against, all or any part of the Secured
Obligations in such order as the Administrative Agent shall elect. Any surplus
of such cash or cash proceeds held by the Administrative Agent and remaining
after payment in full of all the Secured Obligations shall be paid over to the
Grantors or to whomsoever may be lawfully entitled to receive such surplus.
Indemnity and Expenses.
Each Grantor agrees to indemnify the Administrative Agent and each other
Secured Party from and against any and all claims, losses and liabilities
arising out of or resulting from this Security Agreement (including, without
limitation, enforcement of this Security Agreement), except claims, losses or
liabilities resulting from any such Secured Party's gross negligence or wilful
misconduct.
Each Grantor will upon demand pay to the Administrative Agent the amount of
any and all reasonable expenses, including the reasonable fees and disbursements
of its counsel and of any experts and agents, which the Administrative Agent may
incur in connection with (i) the administration of this Security Agreement, (ii)
the custody, preservation, use or operation of, or the sale of, collection from,
or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Administrative Agent or the Secured
Parties hereunder, or (iv) the failure by any Grantor to perform or observe any
of the provisions hereof.
MISCELLANEOUS PROVISIONS
Loan Document. This Security Agreement is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof.
Approvals. Notwithstanding anything to the contrary contained herein or in any
other Loan Document, the Administrative Agent will not take any action
(including the exercise of voting rights by the Administrative Agent with
respect to the Collateral consisting of general and limited partnership
interests) pursuant to this Security 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 the Borrower or any Subsidiary
of the Borrower without first obtaining the prior approval of the FCC, any other
federal, state or local governmental authority or other person, 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, other federal, state or
local governmental authority or other person. Prior to the exercise by the
Administrative Agent of any power, right, privilege or remedy pursuant to this
Security Agreement which requires any consent, approval, recording,
qualification or authorization of any federal, state or local governmental
authority or instrumentality, or other person, each applicable Grantor 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 consent, approval,
recording, qualification or authorization and, following the occurrence and
continuance of an Event of Default, upon the reasonable request of the
Administrative Agent, such applicable Grantor will use its best efforts to
assist the Administrative Agent in obtaining such approvals and consents.
Amendments; etc. No amendment to or waiver of any provision of this Security
Agreement nor consent to any departure by any Grantor herefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Addresses for Notices. All notices and other communications provided to any
party hereto shall be in writing and mailed, delivered or transmitted to such
party at its address or facsimile number set forth below its signature hereto
and, if to the Administrative Agent, mailed, delivered or transmitted to it at
the address of the Administrative Agent specified in the Credit Agreement, or as
to any party, at such other address or facsimile number as shall be designated
by such party in a written notice to each other party complying as to delivery
with the terms of this Section. Any notice, if mailed and properly addressed
with postage prepaid or, if properly addressed and sent by prepaid courier
service, shall be deemed given when received; any notice, if transmitted by
facsimile, shall be deemed given when transmitted (upon receipt of electronic
confirmation of transmission).
Section Captions. Section captions used in this Security Agreement are for
convenience of reference only, and shall not affect the
construction of this Security Agreement.
Severability. Wherever possible each provision of this Security Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Security Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Security Agreement.
Governing Law, Entire Agreement, etc. THIS SECURITY AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTERESTS HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK. THIS SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE
ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS SECURITY AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY SECURED PARTY OR ANY GRANTOR SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH GRANTOR HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION SUBJECT TO ANY RIGHTS OF APPEAL OF ANY JUDGMENT RENDERED BY THE
HIGHEST COURT IN THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT, FOR
THE STATE OF NEW YORK, AS THE CASE MAY BE. EACH GRANTOR FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH GRANTOR HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT ANY GRANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, SUCH GRANTOR HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS SECURITY AGREEMENT.
Waiver of Jury Trial. EACH GRANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
SECURITY AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY SECURED PARTY OR ANY GRANTOR. EACH
GRANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE SECURED PARTIES ENTERING INTO THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
<PAGE>
IN WITNESS WHEREOF, each Grantor has caused this Security Agreement
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
HIGHLAND HOLDINGS
By: ,
a General Partner
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
John J. Rigas
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
Timothy J. Rigas
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
<PAGE>
Michael J. Rigas
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
Title: Authorized Signatory
Address: One Liberty Plaza
New York, New York 10006
Telecopy No.: (212) 225-5090
Attention:Vincent Fitzgerald
Media Communication
Group
<PAGE>
<TABLE>
<CAPTION>
-1-
SCHEDULE I
to
Borrower Partners
Security Agreement
========================================== -------------------------------- ----------------------------- ========================
<S> <C> <C> <C>
Grantor's Name Character of Partnership Grantor's Grantor's Percentage
Interest Interest in Interest in
the Borrower Profits of
the Borrower
========================================== -------------------------------- ----------------------------- ========================
Highland Holdings general partner 64.48% 64.48%
========================================== -------------------------------- ----------------------------- ========================
Highland Holdings limited 1.00% 1.00%
partner
========================================== -------------------------------- ----------------------------- ========================
Michael J. Rigas general partner 12.535% 12.535%
========================================== -------------------------------- ----------------------------- ========================
Timothy J. Rigas general partner 12.535% 12.535%
========================================== ================================ ============================= ========================
John J. Rigas general partner 9.450% 9.450%
========================================== ================================ ============================= ========================
</TABLE>
<PAGE>
[EXECUTION COPY]
PARTNERSHIP SECURITY AGREEMENT
THIS PARTNERSHIP SECURITY AGREEMENT (this "Security Agreement"),
dated as of February 28, 1996, is made by each of the parties identified on the
signature pages hereto (each a "Grantor" and collectively the "Grantors") in
favor of THE BANK OF NOVA SCOTIA, as administrative agent (together with any
successor(s) thereto in such capacity, the "Administrative Agent") for each of
the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of February 28,
1996 (the "Credit Agreement"), among Highland Video Associates, L.P., a
Pennsylvania limited partnership (the "Borrower"), the financial institutions
from time to time parties thereto (the "Lenders"), Bank of Montreal, as
Syndication Agent, Chemical Bank, as Documentation Agent, and the Administrative
Agent, the Lenders have agreed to make Loans to, and the Issuer has agreed to
issue (and the Lenders have agreed to participate in) Letters of Credit for the
account of, the Borrower;
WHEREAS, as a condition precedent to the making of Credit Extensions
(including the initial Credit Extension) under the Credit Agreement, each
Grantor is required to execute and deliver this Security Agreement;
WHEREAS, each Grantor has duly authorized the execution, delivery and
performance of this Security Agreement; and
WHEREAS, it is in the best interests of each Grantor to execute this
Security Agreement inasmuch as such Grantor will derive substantial direct and
indirect benefits from the Credit Extensions made from time to time to the
Borrower by the Secured Parties pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Secured Parties to make
Credit Extensions to the Borrower pursuant to the Credit Agreement, each Grantor
agrees, for the benefit of each Secured Party, as follows:
<PAGE>
DEFINITIONS
Certain Terms. The following terms (whether or not underscored) when used in
this Security Agreement, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to the singular
and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Grantor" is defined in the preamble.
"Lenders" is defined in the first recital.
"Pledged Partnership" is defined in Section 2.1.
"Secured Obligations" is defined in Section 2.2.
"Secured Party" means, as the context may require, each Lender, the
Issuer, each Swap Party, the Syndication Agent, the Documentation Agent and the
Administrative Agent and each of their respective successors, transferees and
assigns.
"Security Agreement" is defined in the preamble.
"U.C.C." means the Uniform Commercial Code, as in effect in the State
of New York.
Credit Agreement Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Security Agreement, including its
preamble and recitals, have the meanings provided in the Credit Agreement.
U.C.C. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms for which meanings are provided in the U.C.C. are used
in this Security Agreement, including its preamble and recitals, with such
meanings.
SECURITY INTEREST
Grant of Security. Each Grantor hereby grants, assigns and pledges to the
Administrative Agent for its benefit and the ratable benefit of each of the
Secured Parties a security interest in all of the following, whether now owned
or hereafter existing or acquired (the "Collateral"):
all right, title and interest of such Grantor, whether now existing or
hereafter arising or acquired, in, to and under each partnership agreement of
each Person (each referred to as the "Pledged Partnership") set forth opposite
the name of such Grantor on Schedule I hereto, including such Grantor's rights,
now existing or hereafter arising or acquired, to receive from time to time its
share of profits, income, surplus, compensation, return of capital,
distributions and other reimbursements and payments from such Pledged
Partnership (including specific properties of such Pledged Partnership upon
dissolution and otherwise);
all general or limited partnership interests now owned or hereafter acquired
by such Grantor in such Pledged Partnership as a result of exchange offers,
direct investments or contributions or otherwise;
such Grantor's accounts, general intangibles and other rights to payment or
reimbursement, now existing or hereafter arising or acquired, from such Pledged
Partnership, existing or arising from loans, advances or other extensions of
credit by such Grantor from time to time to or for the account of such Pledged
Partnership, or from services rendered by such Grantor from time to time to or
for the account of such Pledged Partnership; and
all products, offspring, rents, issues, profits, returns, income and proceeds
of and from any and all of the foregoing Collateral (including proceeds which
constitute property of the types described in clauses (a), (b) and (c), and, to
the extent not otherwise included, all payments under insurance (whether or not
the Administrative Agent is the loss payee thereof), or any indemnity, warranty
or guaranty, payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Collateral).
Security for Obligations. This Security Agreement secures the payment of all
Obligations of the Borrower now or hereafter existing under the Credit Agreement
and each other Loan Document to which the Borrower is a party, whether for
principal, interest, costs, fees, expenses or otherwise, and all other
obligations of each Grantor now or hereinafter existing under this Security
Agreement and each other Loan Document to which he or it is or may become a
party (all such Obligations of the Borrower and each such Grantor being the
"Secured Obligations").
Continuing Security Interest; Transfer of Notes. This Security Agreement
shall create a continuing security interest in the Collateral and shall remain
in full force and effect as hereinafter provided in this Section 2.3 until
payment in full in cash of all Secured Obligations, the termination or
expiration of all Letters of Credit and the termination of the Commitments, be
binding upon each Grantor and its each Grantor's successors, transferees and
assigns, and inure, together with the rights and remedies of the Administrative
Agent hereunder, to the benefit of the Administrative Agent and each other
Secured Party.
Without limiting the generality of the foregoing clause (c), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Loan held by it
to any other Person or entity, and such other Person or entity shall thereupon
become vested with all the rights and benefits in respect thereof granted to
such Lender under any Loan Document (including this Security Agreement) or
otherwise, subject, however, to any contrary provisions in such assignment or
transfer, and to the provisions of Section 10.11 and Article IX of the Credit
Agreement. Notwithstanding anything to the contrary contained herein, upon the
payment in full in cash of all principal, fees and interest due under the Credit
Agreement, the termination or expiration of all Letters of Credit, the
termination of all Commitments, the termination of all Rate Protection
Agreements with Swap Parties and the satisfaction of all obligations owing to
any Secured Party thereunder, the obligations of each Grantor hereunder (except
under Section 6.2, which shall survive the termination of this Security
Agreement) and the security interest granted herein shall terminate and all
rights to the Collateral shall revert to the Grantors. Upon any such
termination, the Administrative Agent will, at the sole expense of the Grantors,
execute and deliver to the Grantors such documents as the Grantors shall
reasonably request to evidence such termination.
Grantors Remain Liable. Anything herein to the contrary notwithstanding
each Grantor shall remain liable under the partnership agreement of the
particular Pledged Partnership, as the case may be, and the contracts and
agreements included in the Collateral to the extent set forth therein, and shall
perform all of its duties and obligations under such partnership agreement, as
the case may be, and such contracts and agreements to the same extent as if this
Security Agreement had not been executed,
the exercise by the Administrative Agent of any of its rights hereunder shall
not release any Grantor from any of its duties or obligations under the
partnership agreement of the particular Pledged Partnership, as the case may be,
and any such contracts or agreements included in the Collateral, and
neither the Administrative Agent nor any other Secured Party shall have any
obligation or liability under any partnership agreement of a Pledged Partnership
and any such contracts or agreements included in the Collateral by reason of
this Security Agreement, nor shall the Administrative Agent or any other Secured
Party be obligated to perform any of the obligations or duties of any Grantor
thereunder or to take any action to collect or enforce any claim for payment
assigned hereunder.
Security Interest Absolute. All rights of the Secured Parties and the
security interests granted to the Secured Parties hereunder, and all obligations
of the Grantors hereunder, shall be absolute and unconditional, irrespective of
any lack of validity or enforceability of the Credit Agreement, any Note or any
other Loan Document; the failure of any Secured Party to assert any claim or
demand or to enforce any right or remedy against the Borrower, any other Obligor
or any other Person under the provisions of the Credit Agreement, any Note, any
other Loan Document or otherwise, or to exercise any right or remedy against any
other guarantor of, or collateral securing, any Secured Obligations; any change
in the time, manner or place of payment of, or in any other term of, all or any
of the Secured Obligations or any other extension, compromise or renewal of any
Secured Obligation;
any reduction, limitation, impairment or termination of any Secured
Obligations for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and each Grantor 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, any Secured Obligations;
any amendment to, rescission, waiver, or other modification of, or any consent
to departure from, any of the terms of the Credit Agreement, any Note or any
other Loan Document;
any addition, exchange, release, surrender or non-perfection of any collateral
(including the Collateral), or any amendment to or waiver or release of or
addition to or consent to departure from any guaranty, for any of the Secured
Obligations; or
any other circumstances which might otherwise constitute a defense available
to, or a legal or equitable discharge of, the Borrower, any other Obligor, any
surety or any guarantor.
SECTION 2.6. Postponement of Subrogation. Each Grantor agrees that it
will not exercise any rights which it may acquire by way of subrogation under
this Security Agreement, by any payment made hereunder or otherwise, until the
prior payment, in full and in cash, of all Obligations of the Borrower and each
other Obligor, the termination or expiration of all Letters of Credit and the
termination of all Commitments. Any amount paid to such Grantor on account of
any such subrogation rights prior to the payment in full of all Obligations of
the Borrower and each other Obligor, the termination or expiration of all
Letters of Credit and the termination of all Commitments shall be held in trust
for the benefit of the Secured Parties and shall immediately be paid to the
Administrative Agent and credited and applied against the Obligations of the
Borrower and each other Obligor, whether matured or unmatured, in accordance
with the terms of the Credit Agreement; provided, however, that if
(a) such Grantor has made payment to the Grantor Secured
Parties of all or any part of the Obligations of the Borrower or
any other Obligor, and
(b) all Obligations of the Borrower and each other Obligor
have been paid in full, all Letters of Credit have expired or been terminated
and all Commitments have been terminated,
each Secured Party agrees that, at such Grantor's request, the Secured Parties
will execute and deliver to such Grantor appropriate documents (without recourse
and without representation or warranty) necessary to evidence the transfer by
subrogation to such Grantor of an interest in the Secured Obligations resulting
from such payment by such Grantor. In furtherance of the foregoing, for so long
as any Secured Obligations, Letters of Credit or Commitments remain outstanding,
each Grantor shall refrain from taking any action or commencing any proceeding
against the Borrower or any other Obligor (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 this Security Agreement to any Secured
Party.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. Each Grantor represents and warrants to each
Secured Party as set forth in this Article.
Power, Authority and Legal Capacity. Such Grantor has full power, authority
and legal capacity, as the case may be, to enter into and perform his or its
obligations under this Security Agreement and each other Loan Document executed
or to be executed by him or it.
Non-Contravention, etc. The execution, delivery and performance by such
Grantor of this Security Agreement and each other Loan Document executed or to
be executed by such Grantor do not
contravene any contractual restriction, law or court decree or order binding
on or affecting such Grantor;
result in, or require the creation or imposition of, any Lien on any of such
Grantor's properties, other than the Lien created pursuant to this Security
Agreement; or
contravene its Organic Documents, if any.
Ownership, No Liens, etc. Such Grantor owns the Collateral free and clear of
any Lien, security interest, charge or encumbrance except for the security
interests created by this Security Agreement. Subject to the preceding sentence,
no effective financing statement or other instrument similar in effect covering
all or any part of the Collateral is on file in any recording office, except
such as may have been filed in favor of the Administrative Agent relating to
this Security Agreement and those filed pursuant to the terms of the Existing
Credit Agreement.
Validity, etc. Subject to Section 3.1.3, this Security Agreement creates a
valid first priority security interest in the Collateral, securing the payment
of the Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly taken.
The Grantors have furnished to the Administrative Agent a true and correct copy
of the partnership agreement of each Pledged Partnership and all amendments
thereto. The partnership agreement (and all amendments thereto) of each Pledged
Partnership constitutes the valid, binding and enforceable obligations of each
Grantor a party thereto, sets forth the entire agreement of the parties thereto
with respect to the subject matter thereof, has not been further amended or
modified and remains in full force and effect.
Partnership Interests, Profits. The character (general and/or
limited partner) of each Grantor's interest in each particular Pledged
Partnership and each Grantor's percentage interest in such Pledged Partnership's
profits (with profit interests as a general and a limited partner separately
stated) are as set forth in Schedule I hereto, as amended, supplemented or
otherwise modified from time to time with the prior written consent of the
Administrative Agent.
Certificate. No interest of such Grantor in a particular Pledged
Partnership is represented by a certificate of interest or similar instrument,
except such certificates or instruments, if any, as have been delivered to the
Administrative Agent and are held in its possession (and such Grantor covenants
and agrees that any such certificates or instruments hereafter received by such
Grantor with respect to any of the Collateral will be promptly delivered to the
Administrative Agent).
Interest in Partnership Agreements. Such Grantor had and has the
power and legal capacity to execute and carry out the provisions of the
partnership agreement of each Pledged Partnership, as the case may be. Such
Grantor has substantially performed all of its obligations to date under such
partnership agreements, as the case may be, and has not received notice of the
failure of any other party thereto to perform substantially its obligations
thereunder.
Location, Records, etc. The place(s) of business and the office(s) where such
Grantor keeps its records concerning the Collateral are located in Potter
County, Pennsylvania. No Grantor has been known by any legal name different from
the one set forth on the signature page hereto.
Litigation, etc. There is no pending or, to the knowledge of any Grantor,
threatened litigation, action, proceeding, or labor controversy affecting the
Borrower or any of its Subsidiaries or CTCC, or any of their respective
properties, businesses, assets or revenues, which may materially adversely
affect the financial condition, operations, assets, business, properties or
prospects of the Borrower and its Subsidiaries, taken as a whole, or which
purports to affect the legality, validity or enforceability of this Security
Agreement, any other Loan Document, the Management Agreements, the Organic
Documents of any Guarantor or any Franchise Agreement to which a Guarantor is a
party, except as disclosed in Item 6.7 ("Litigation") of the Disclosure
Schedule.
Authorization, Approval, etc. No authorization, approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body is required either
for the grant by such Grantor of the security interests granted hereby or for
the execution, delivery and performance of this Security Agreement by such
Grantor, or
for the perfection of or the exercise by the Administrative Agent of its
rights and remedies hereunder, except filings that may be required to perfect
Liens under the U.C.C.,
other than those authorizations, approvals or notices required by the terms and
conditions of certain agreements, where the failure to obtain such
authorizations, approvals or notices could not reasonably be expected to have a
material adverse effect on the assets, properties, business, financial condition
or prospects of such Grantor and would not, in any way, impair the rights of the
Administrative Agent or the Secured Parties under this Security Agreement.
Compliance with Laws. Such Grantor is in compliance with the requirements of
all applicable laws (including, without limitation, the provisions of the Fair
Labor Standards Act), rules, regulations and orders of every governmental
authority, the non-compliance with which might materially adversely affect the
business, properties, assets, operations, condition (financial or otherwise) or
prospects of such Grantor or the value of the Collateral or the worth of the
Collateral as collateral security.
COVENANTS
Certain Covenants. Each Grantor covenants and agrees that, until the
termination of this Security Agreement as provided in Section 2.3, such Grantor
will, unless the Required Lenders shall otherwise consent in writing, perform
the obligations set forth in this Section.
Covenants from Other Agreements. Such Grantor will take all actions necessary
to cause each Pledged Partnership in which he or it is a general or limited
partner, as the case may be, to perform, comply with and be bound by all of the
agreements, covenants and obligations contained in Article VII of the Credit
Agreement or in any other Loan Document applicable to such Pledged Partnership
and their respective properties. Each such agreement, covenant and obligation
contained in such Sections or in any other Loan Document and all other terms of
the Credit Agreement and the Loan Documents to which reference is made therein,
together with all related definitions and ancillary provisions, is hereby
incorporated into this Security Agreement by reference as though specifically
set forth in this Section, and each such agreement, covenant and obligation
shall, for purposes hereof, survive the termination of the Credit Agreement and
the Loan Documents.
Maintenance of Records. Such Grantor will keep all of its records concerning
the Collateral in Potter County, Pennsylvania, which records will be of such
character as will enable the Administrative Agent or its designees to determine
at any time the status thereof, or, upon 30 days' prior written notice to the
Administrative Agent, at such other locations in a jurisdiction where all
actions necessary to (i) perfect, preserve and protect any security interest
granted or purported to be granted hereby and (ii) enable the Administrative
Agent to exercise and enforce its rights and remedies hereunder, shall have been
taken. Such Grantor shall not change its name except upon 30 days' prior written
notice to the Administrative Agent and shall hold and preserve such records
concerning the Collateral and permit representatives of the Administrative Agent
at any time during normal business hours to inspect and make abstracts from such
records.
Withdraw from Partnership. No Grantor will, without the express written
consent of the Lenders, actively cause itself or himself to withdraw as a
general partner or limited partner of any Pledged Partnership, as the case may
be.
Further Assurances, etc. Such Grantor agrees that, from time to time at its
own expense, such Grantor will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that the Administrative Agent may request, in order to perfect,
preserve and protect any security interest granted or purported to be granted
hereby or to enable the Administrative Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, such Grantor will
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices (including, without limitation,
any assignment of claim form under or pursuant to the federal assignment of
claims statute, 31 U.S.C. ss. 3726, any successor or amended version thereof or
any regulation promulgated under or pursuant to any version thereof), as may be
necessary or desirable, or as the Administrative Agent may request, in order to
perfect and preserve the security interests and other rights granted or
purported to be granted to the Administrative Agent hereby; and
furnish to the Administrative Agent, from time to time at the Administrative
Agent's request, statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Administrative Agent may reasonably request, all in reasonable detail.
With respect to the foregoing and the grant of the security interests hereunder,
such Grantor hereby authorizes the Administrative Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral without the signature of such Grantor where permitted
by law and the Administrative Agent hereby agrees to furnish the Grantor with
copies of any such filings. A carbon, photographic or other reproduction of this
Security Agreement or any financing statement covering the Collateral or any
part thereof shall be sufficient as a financing statement where permitted by
law.
THE ADMINISTRATIVE AGENT
Administrative Agent Appointed Attorney-in-Fact. Each Grantor hereby
irrevocably appoints the Administrative Agent such Grantor's attorney-in-fact,
with full authority in the place and stead of such Grantor and in the name of
such Grantor or otherwise, from time to time in the Administrative Agent's
discretion, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Security Agreement, including:
to ask, demand, collect, sue for, recover, compromise, receive and give
acquittance and receipts for moneys due and to become due under or in respect of
any of the Collateral;
to receive, endorse, and collect any drafts or other instruments, documents
and chattel paper, in connection with clause (a) above; to file any claims or
take any action or institute any proceedings which the Administrative Agent may
deem necessary or desirable for the collection of any of the Collateral or
otherwise to enforce the rights of the Administrative Agent with respect to any
of the Collateral; and
to perform the affirmative obligations of such Grantor hereunder (including
all obligations of such Grantor pursuant to Section 4.1.4).
Each Grantor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
Administrative Agent May Perform. If any Grantor fails to perform any
agreement contained herein, the Administrative Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Administrative
Agent incurred in connection therewith shall be payable by such Grantor pursuant
to Section 6.2.
Administrative Agent Has No Duty. In addition to, and not in limitation of,
Section 2.4, the powers conferred on the Administrative Agent hereunder are
solely to protect its interest (on behalf of the Secured Parties) in the
Collateral and shall not impose any duty on it to exercise any such powers.
Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
Reasonable Care. The Administrative Agent is required to exercise reasonable
care in the custody and preservation of any of the Collateral in its possession;
provided, however, the Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral, if it
takes such action for that purpose as such Grantor reasonably requests in
writing at times other than upon the occurrence and during the continuance of
any Event of Default, but failure of the Administrative Agent to comply with any
such request at any time shall not in itself be deemed a failure to exercise
reasonable care.
REMEDIES
Certain Remedies. If any Event of Default shall have occurred and be
continuing
The Administrative Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all of the rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected Collateral) and also
may require the Grantors to, and each Grantor hereby agrees that it will, at its
expense and upon request of the Administrative Agent forthwith, assemble all or
part of the Collateral as directed by the Administrative Agent and make it
available to the Administrative Agent at a place to be designated by the
Administrative Agent which is reasonably convenient to all parties.
All cash proceeds received by the Administrative Agent in respect of any sale
of, collection from, or other realization upon all or any part of the Collateral
may, in the discretion of the Administrative Agent, be held by the
Administrative Agent as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Administrative Agent
pursuant to Section 6.2) in whole or in part by the Administrative Agent for the
ratable benefit of the Secured Parties against, all or any part of the Secured
Obligations in such order as the Administrative Agent shall elect. Any surplus
of such cash or cash proceeds held by the Administrative Agent and remaining
after payment in full of all the Secured Obligations shall be paid over to the
Grantors or to whomsoever may be lawfully entitled to receive such surplus.
Indemnity and Expenses.
Each Grantor agrees to indemnify the Administrative Agent and each other
Secured Party from and against any and all claims, losses and liabilities
arising out of or resulting from this Security Agreement (including, without
limitation, enforcement of this Security Agreement), except claims, losses or
liabilities resulting from any such Secured Party's gross negligence or wilful
misconduct.
Each Grantor will upon demand pay to the Administrative Agent the amount of
any and all reasonable expenses, including the reasonable fees and disbursements
of its counsel and of any experts and agents, which the Administrative Agent may
incur in connection with (i) the administration of this Security Agreement, (ii)
the custody, preservation, use or operation of, or the sale of, collection from,
or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Administrative Agent or the Secured
Parties hereunder, or (iv) the failure by any Grantor to perform or observe any
of the provisions hereof.
MISCELLANEOUS PROVISIONS
Loan Document. This Security Agreement is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof.
Approvals. Notwithstanding anything to the contrary contained herein or in any
other Loan Document, the Administrative Agent will not take any action
(including the exercise of voting rights by the Administrative Agent with
respect to the Collateral consisting of general and limited partnership
interests) pursuant to this Security 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 the Borrower or any Subsidiary
of the Borrower without first obtaining the prior approval of the FCC, any other
federal, state or local governmental authority or other person, 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, other federal, state or
local governmental authority or other person. Prior to the exercise by the
Administrative Agent of any power, right, privilege or remedy pursuant to this
Security Agreement which requires any consent, approval, recording,
qualification or authorization of any federal, state or local governmental
authority or instrumentality, or other person, each applicable Grantor 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 consent, approval,
recording, qualification or authorization and, following the occurrence and
continuance of an Event of Default, upon the reasonable request of the
Administrative Agent, such applicable Grantor will use its best efforts to
assist the Administrative Agent in obtaining such approvals and consents.
Amendments; etc. No amendment to or waiver of any provision of this Security
Agreement nor consent to any departure by any Grantor herefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Addresses for Notices. All notices and other communications provided to any
party hereto shall be in writing and mailed, delivered or transmitted to such
party at its address or facsimile number set forth below its signature hereto
and, if to the Administrative Agent, mailed, delivered or transmitted to it at
the address of the Administrative Agent specified in the Credit Agreement, or as
to any party, at such other address or facsimile number as shall be designated
by such party in a written notice to each other party complying as to delivery
with the terms of this Section. Any notice, if mailed and properly addressed
with postage prepaid or, if properly addressed and sent by prepaid courier
service, shall be deemed given when received; any notice, if transmitted by
facsimile, shall be deemed given when transmitted (upon receipt of electronic
confirmation of transmission).
Section Captions. Section captions used in this Security Agreement are for
convenience of reference only, and shall not affect the
construction of this Security Agreement.
Severability. Wherever possible each provision of this Security Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Security Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Security Agreement.
Governing Law, Entire Agreement, etc. THIS SECURITY AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE
SECURITY INTERESTS HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. THIS SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH
TO THE GRANTORS ARE A PARTY CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE
PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS SECURITY AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF ANY SECURED PARTY OR ANY GRANTOR SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH GRANTOR HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION SUBJECT TO ANY RIGHTS OF APPEAL OF ANY JUDGMENT RENDERED BY THE
HIGHEST COURT IN THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT, FOR
THE STATE OF NEW YORK, AS THE CASE MAY BE. EACH GRANTOR FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH GRANTOR HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT ANY GRANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, SUCH GRANTOR HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS SECURITY AGREEMENT.
Waiver of Jury Trial. EACH GRANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
SECURITY AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY SECURED PARTY OR ANY GRANTOR. EACH
GRANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE SECURED PARTIES ENTERING INTO THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
<PAGE>
IN WITNESS WHEREOF, each Grantor has caused this Security Agreement
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
HIGHLAND VIDEO ASSOCIATES, L.P.
By: Highland Holdings, its
General Partner
By: ,
a General Partner
Address: 5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
John J. Rigas
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
Timothy J. Rigas
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
<PAGE>
Michael J. Rigas
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: (814) 274-6586
Attention:Michael Mulcahey
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
Title: Authorized Signatory
Address: One Liberty Plaza
New York, New York 10006
Telecopy: (212) 225-5090
Attention:Vincent Fitzgerald
Media Communication Group
<PAGE>
-1-
<TABLE>
<CAPTION>
SCHEDULE I to
Partnership Security
Agreement
NAME AND JURISDICTION TYPE OF PERCENTAGE OF
OF ORGANIZATION OF PARTNERSHIP INTEREST
NAME OF GRANTOR PARTNERSHIP INTEREST PLEDGED PLEDGED
<S> <C> <C> <C>
Highland Video Associates, L.P. Adelphia Cablevision Associates of Radnor, general partner 99.00%
L.P. (Pennsylvania)
John J. Rigas Adelphia Cablevision Associates of Radnor, limited partner .33%
L.P. (Pennsylvania)
Timothy J. Rigas Adelphia Cablevision Associates of Radnor, limited partner .33%
L.P. (Pennsylvania)
Michael J. Rigas Adelphia Cablevision Associates of Radnor, limited partner .33%
L.P. (Pennsylvania)
Highland Video Associates, L.P. Montgomery Cablevision Associates, L.P. general partner 99.00%
(Pennsylvania)
John J. Rigas Montgomery Cablevision Associates, L.P. limited partner .33%
(Pennsylvania)
Timothy J. Rigas Montgomery Cablevision Associates, L.P. limited partner .33%
(Pennsylvania)
Michael J. Rigas Montgomery Cablevision Associates, L.P. limited partner .33%
(Pennsylvania)
</TABLE>
<PAGE>
[EXECUTION COPY]
TALP PARTNERS SECURITY AGREEMENT
THIS TALP PARTNERS SECURITY AGREEMENT (this "Security Agreement"),
dated as of March 29, 1996, made by each of the parties identified on the
signature pages hereto (each a "Grantor" and collectively the "Grantors") in
favor of THE BANK OF NOVA SCOTIA, as administrative agent (together with any
successor(s) thereto in such capacity, the "Administrative Agent") for each of
the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated
as of March 29, 1996, amending and restating the Credit Agreement, dated as of
February 28, 1996 (as further amended, supplemented, amended and restated or
otherwise modified, the "Credit Agreement"), among Highland Video Associates,
L.P., a Pennsylvania limited partnership ("HVA"), Telesat Acquisition Limited
Partnership, a Delaware limited partnership ("TALP"), Global Acquisition
Partners, L.P., a Delaware limited partnership ("Global"; Global, TALP and HVA
being individually referred to as a "Borrower" and collectively as the
"Borrowers"), the financial institutions from time to time parties thereto (the
"Lenders"), Bank of Montreal, as Syndication Agent, Chemical Bank, as
Documentation Agent, and the Administrative Agent, the Lenders have agreed to
make Loans to, and the Issuer has agreed to issue (and the Lenders have agreed
to participate in) Letters of Credit for the account of, the Borrowers;
WHEREAS, as a condition precedent to the making of Credit Extensions
under the Credit Agreement, each Grantor is required to execute and deliver this
Security Agreement;
WHEREAS, each Grantor has duly authorized the execution, delivery and
performance of this Security Agreement; and
WHEREAS, it is in the best interests of each Grantor to execute this
Security Agreement inasmuch as such Grantor will derive substantial direct and
indirect benefits from the Credit Extensions made from time to time to the
Borrowers by the Secured Parties pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Secured Parties to make
Credit Extensions to the Borrowers pursuant to the Credit Agreement, each
Grantor agrees, for the benefit of each Secured Party, as follows:
DEFINITIONS
Certain Terms. The following terms (whether or not underscored) when used in
this Security Agreement, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to the singular
and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" and "Borrowers" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Grantor" and "Grantors" is defined in the preamble.
"Global" is defined in the first recital.
"HVA" is defined in the first recital.
"Lenders" is defined in the first recital.
"Secured Obligations" is defined in Section 2.2.
"Secured Party" means, as the context may require, each Lender, the
Issuer, each Swap Party, the Syndication Agent, the Documentation Agent and the
Administrative Agent and each of their respective successors, transferees and
assigns.
"Security Agreement" is defined in the preamble.
"TALP" is defined in the first recital.
"U.C.C." means the Uniform Commercial Code, as in effect in the State
of New York.
Credit Agreement Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Security Agreement, including its
preamble and recitals, have the meanings provided in the Credit Agreement.
U.C.C. Definitions. Unless otherwise defined herein or the context otherwise
requires, terms for which meanings are provided in the U.C.C.
are used in this Security Agreement, including its preamble and recitals, with
such meanings.
SECURITY INTEREST
Grant of Security. Each Grantor hereby grants, assigns and pledges to the
Administrative Agent for its benefit and the ratable benefit of each of the
Secured Parties a security interest in all of the following, whether now owned
or hereafter existing or acquired (the "Collateral"):
all right, title and interest of such Grantor, whether now existing or
hereafter arising or acquired, in, to and under the TALP Partnership Agreement,
including such Grantor's rights, now existing or hereafter arising or acquired,
to receive from time to time its share of profits, income, surplus,
compensation, return of capital, distributions and other reimbursements and
payments from TALP (including specific properties of TALP upon dissolution and
otherwise);
all general or limited partnership interests now owned or hereafter acquired
by such Grantor in TALP as a result of exchange offers, direct investments or
contributions or otherwise;
such Grantor's accounts, general intangibles and other rights to payment or
reimbursement, now existing or hereafter arising or acquired, from TALP,
existing or arising from loans, advances or other extensions of credit by such
Grantor from time to time to or for the account of TALP, or from services
rendered by such Grantor from time to time to or for the account of TALP; and
all products, offspring, rents, issues, profits, returns, income and proceeds
of and from any and all of the foregoing Collateral (including proceeds which
constitute property of the types described in clauses (a), (b) and (c), and, to
the extent not otherwise included, all payments under insurance (whether or not
the Administrative Agent is the loss payee thereof), or any indemnity, warranty
or guaranty, payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Collateral).
Security for Obligations. This Security Agreement secures the payment of all
Obligations of each Borrower now or hereafter existing under the Credit
Agreement and each other Loan Document to which a Borrower is or may become a
party, whether for principal, interest, costs, fees, expenses or otherwise, and
all other obligations of each such Grantor now or hereafter existing under this
Security Agreement and each other Loan Document to which it is or may become a
party (all such Obligations of each Borrower and such Grantor being the "Secured
Obligations").
Continuing Security Interest; Transfer of Notes. This Security Agreement
shall create a continuing security interest in the Collateral and shall remain
in full force and effect as hereinafter provided in this Section 2.3 until
payment in full in cash of all Secured Obligations, the termination or
expiration of all Letters of Credit and the termination of all Commitments, be
binding upon each Grantor, and each Grantor's successors, transferees and
assigns, and inure, together with the rights and remedies of the Administrative
Agent hereunder, to the benefit of the Administrative Agent and each other
Secured Party.
Without limiting the generality of the foregoing clause (c), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Loan held by it
to any other Person or entity, and such other Person or entity shall thereupon
become vested with all the rights and benefits in respect thereof granted to
such Lender under any Loan Document (including this Security Agreement) or
otherwise, subject, however, to any contrary provisions in such assignment or
transfer, and to the provisions of Section 10.11 and Article IX of the Credit
Agreement. Notwithstanding anything to the contrary contained herein, upon the
payment in full in cash of all principal, fees and interest due under the Credit
Agreement, the termination or expiration of all Letters of Credit, the
termination of all Commitments, the termination of all Rate Protection
Agreements with Swap Parties and the satisfaction of all obligations owing to
any Lender thereunder, the obligations of each Grantor hereunder (except under
Section 6.2, which shall survive the termination of this Security Agreement) and
the security interests granted herein shall terminate and all rights to the
Collateral shall revert to the Grantors. Upon any such termination, the
Administrative Agent will, at the sole expense of the Grantors, execute and
deliver to the Grantors such documents as the Grantors shall reasonably request
to evidence such termination.
Grantors Remain Liable. Anything herein to the contrary notwithstanding
each Grantor shall remain liable under the TALP Partnership Agreement and the
contracts and agreements included in the Collateral to the extent set forth
therein, and shall perform all of its duties and obligations under the TALP
Partnership Agreement and such contracts and agreements to the same extent as if
this Security Agreement had not been executed,
the exercise by the Administrative Agent of any of its rights hereunder shall
not release any Grantor from any of its duties or obligations under the TALP
Partnership Agreement and any such contracts or agreements included in the
Collateral, and
neither the Administrative Agent nor any other Secured Party shall have any
obligation or liability under the TALP Partnership Agreement and any such
contracts or agreements included in the Collateral by reason of this Security
Agreement, nor shall the Administrative Agent or any other Secured Party be
obligated to perform any of the obligations or duties of any Grantor thereunder
or to take any action to collect or enforce any claim for payment assigned
hereunder.
Security Interest Absolute. All rights of the Secured Parties and the
security interests granted to the Secured Parties hereunder, and all obligations
of the Grantors hereunder, shall be absolute and unconditional, irrespective of
any lack of validity or enforceability of the Credit Agreement, any Note or
any other Loan Document; the failure of any Secured Party to assert any claim or
demand or to enforce any right or remedy against any Borrower, any other Obligor
or any other Person under the provisions of the Credit Agreement, any Note, any
other Loan Document or otherwise, or to exercise any right or remedy against any
other guarantor of, or collateral securing, any Secured Obligations; any change
in the time, manner or place of payment of, or in any other term of, all or any
of the Secured Obligations or any other extension, compromise or renewal of any
Secured Obligation;
any reduction, limitation, impairment or termination of any Secured
Obligations for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and each Grantor 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, any Secured Obligations;
any amendment to, rescission, waiver, or other modification of, or any consent
to departure from, any of the terms of the Credit Agreement, any Note or any
other Loan Document;
any addition, exchange, release, surrender or non-perfection of any collateral
(including the Collateral), or any amendment to or waiver or release of or
addition to or consent to departure from any guaranty, for any of the Secured
Obligations; or
any other circumstances which might otherwise constitute a defense available
to, or a legal or equitable discharge of, any Borrower, any other Obligor, any
surety or any guarantor.
Postponement of Subrogation. Each Grantor agrees that it will not exercise any
rights which it may acquire by way of subrogation under this Security Agreement,
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 Obligor, the
termination or expiration of all Letters of Credit and the termination of all
Commitments. Any amount paid to such Grantor on account of any such subrogation
rights prior to the payment in full of all Obligations of each Borrower and each
other Obligor, the termination or expiration of all Letters of Credit and the
termination of all Commitments shall be held in trust for the benefit of the
Secured Parties and shall immediately be paid to the Administrative Agent and
credited and applied against the Obligations of each Borrower and each other
Obligor, whether matured or unmatured, in accordance with the terms of the
Credit Agreement; provided, however, that if
(a) such Grantor has made payment to the Secured Parties
of all or any part of the Obligations of any Borrower or any
other Obligor, and
(b) all Obligations of each Borrower and each other Obligor
have been paid in full, all Letters of Credit have expired or been terminated
and all Commitments have been terminated,
each Secured Party agrees that, at such Grantor's request, the Secured Parties
will execute and deliver to such Grantor appropriate documents (without recourse
and without representation or warranty) necessary to evidence the transfer by
subrogation to such Grantor of an interest in the Secured Obligations resulting
from such payment by such Grantor. In furtherance of the foregoing, for so long
as any Secured Obligations, Letters of Credit or Commitments remain outstanding,
each Grantor shall refrain from taking any action or commencing any proceeding
against any Borrower or any other Obligor (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 this Security Agreement to any Secured
Party.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. Each Grantor represents and warrants to each
Secured Party as set forth in this Article.
Organization, etc. Olympus is a limited partnership validly organized and
existing and in good standing under the laws of the State of Delaware and is
duly qualified to do business and is in good standing in each jurisdiction where
the nature of its business requires such qualification. DCP is a general
partnership validly organized and existing and in good standing under the laws
of the Commonwealth of Pennsylvania and is duly qualified to do business and is
in good standing in each jurisdiction where the nature of its business requires
such qualification.
Authority and Licenses to Conduct Business. Each Grantor has full partnership
power and authority and holds all requisite governmental licenses, permits and
other approvals to own and hold under lease its property and to conduct its
business substantially as currently conducted by it (except where the failure to
do so could not reasonably be expected to have a material adverse effect on the
business, assets, operations, financial condition or prospects of such Grantor
and its Subsidiaries).
Power and Authority. Each Grantor has full power and authority to enter into
and perform its obligations under this Security Agreement and each other Loan
Document executed or to be executed by it.
Non-Contravention, etc. The execution, delivery and performance by such
Grantor of this Security Agreement and each other Loan Document executed or to
be executed by such Grantor do not contravene any contractual restriction, law
or court decree or order binding on or affecting such Grantor; result in, or
require the creation or imposition of, any Lien on any of such Grantor's
properties, other than the Lien created pursuant to this Security Agreement; or
contravene its Organic Documents.
Ownership, No Liens, etc. Such Grantor owns the Collateral free and clear of
any Lien, security interest, charge or encumbrance except for the security
interests created by this Security Agreement. Subject to the preceding sentence,
no effective financing statement or other instrument similar in effect covering
all or any part of the Collateral is on file in any recording office, except
such as may have been filed in favor of the Administrative Agent relating to
this Security Agreement.
Validity, etc. Subject to Section 3.1.5, this Security Agreement creates a
valid first priority security interest in the Collateral, securing the payment
of the Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly taken.
The Grantors have furnished to the Administrative Agent a true and correct copy
of the TALP Partnership Agreement and all amendments thereto, which TALP
Partnership Agreement, as so amended, constitutes the valid, binding and
enforceable obligations of the Grantors, sets forth the entire agreement of the
parties thereto with respect to the subject matter thereof, has not been further
amended or modified and remains in full force and effect.
Partnership Interests, Profits. The character (general and/or limited partner)
of each Grantor's interest in TALP, and each Grantor's percentage interest in
TALP's profits (with profit interests as a general and as a limited partner
separately stated) are as set forth in Schedule I hereto, as amended,
supplemented or otherwise modified from time to time pursuant to Section 4.1.7
and otherwise with the prior written consent of the Administrative Agent.
Certificate. No interest of any Grantor in TALP is represented by a
certificate of interest or similar instrument, except such certificates or
instruments, if any, as have been delivered to the Administrative Agent and are
held in its possession (and each Grantor covenants and agrees that any such
certificates or instruments hereafter received by such Grantor with respect to
any of the Collateral will be promptly delivered to the Administrative Agent).
<PAGE>
TALP Partnership Agreement. Such Grantor had and has the partnership power and
authority on its own behalf, or as a partner of TALP, as the case may be, to
execute and carry out the provisions of the TALP Partnership Agreement and the
Credit Agreement. Such Grantor has substantially performed all of its respective
obligations to date under the TALP Partnership Agreement and has not received
notice of the failure of any other party thereto to perform substantially its
obligations thereunder.
Location, Records, etc. The place(s) of business and chief executive office of
each Grantor and the office(s) where such Grantor keeps its records concerning
the Collateral are located at the addresses listed below the name of such
Grantor on the signature page to this Security Agreement. Neither Grantor has
any trade name. No Grantor has been known by any legal name different from the
one set forth on the signature page hereto. Neither Grantor has been the subject
of any merger or other reorganization in the past twelve months.
Litigation, etc. There is no pending or, to the knowledge of any Grantor,
threatened litigation, action, proceeding, or labor controversy affecting TALP
or any of its Subsidiaries, or any of their respective properties, businesses,
assets or revenues, which may materially adversely affect the financial
condition, operations, assets, business, properties or prospects of TALP and its
Subsidiaries, taken as a whole, or which purports to affect the legality,
validity or enforceability of this Security Agreement, any other Loan Document,
the Management Agreement to which TALP is a party, the Organic Documents of TALP
or any Franchise Agreement to which TALP is a party, except as disclosed in Item
6.7 ("Litigation") of the Disclosure Schedule.
Authorization, Approval, etc. No authorization, approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body is required either
for the grant by such Grantor of the security interests granted hereby or for
the execution, delivery and performance of this Security Agreement by such
Grantor, or
for the perfection of or the exercise by the Administrative Agent of its
rights and remedies hereunder, except filings that may be required to perfect
Liens under the U.C.C.,
<PAGE>
other than those authorizations, approvals or notices required by the terms
and conditions of certain agreements, where the failure to obtain such
authorizations, approvals or notices could not reasonably be expected to have a
material adverse effect on the assets, properties, business, financial condition
or prospects of such Grantor and its Subsidiaries and would not, in any way,
impair the rights of the Administrative Agent or the Secured Parties under this
Security Agreement.
Compliance with Laws. Such Grantor is in compliance with the requirements of
all applicable laws (including, without limitation, the provisions of the Fair
Labor Standards Act), rules, regulations and orders of every governmental
authority, the non-compliance with which might materially adversely affect the
business, properties, assets, operations, condition (financial or otherwise) or
prospects of such Grantor or the value of the Collateral or the worth of the
Collateral as collateral security.
Representations and Warranties. Each Grantor hereby represents and warrants to
each Lender Party that the representations and warranties contained in Article
VI of the Credit Agreement, insofar as the representations and warranties
contained therein are applicable to such Grantor and its properties, are true
and correct in all respects, each such representation and warranty set forth in
such Article (insofar as applicable as aforesaid) and all other terms of the
Credit Agreement to which reference is made therein, together with all related
definitions and ancillary provisions, being hereby incorporated into this
Guaranty by reference as though specifically set forth in this Section.
COVENANTS
Certain Covenants. Each Grantor covenants and agrees that, until the
termination of this Security Agreement as provided in Section 2.3, such Grantor
will, unless the Required Lenders shall otherwise consent in writing, perform
the obligations set forth in this Section.
Maintenance of Records. Such Grantor will keep all of its records concerning
the Collateral at the addresses set forth below its signature on the signature
page to this Security Agreement, which records will be of such character as will
enable the Administrative Agent or its designees to determine at any time the
status thereof, or, upon 30 days' prior written notice to the Administrative
Agent, at such other locations in a jurisdiction where all actions necessary to
(i) perfect, preserve and protect any security interest granted or purported to
be granted hereby and (ii) enable the Administrative Agent to exercise and
enforce its rights and remedies hereunder, shall have been taken. Such Grantor
shall not change its name except upon 30 days' prior written notice to the
Administrative Agent and shall hold and preserve such records concerning the
Collateral and permit representatives of the Administrative Agent at any time
during normal business hours to inspect and make abstracts from such records.
Amendment of TALP Partnership Agreement. Such Grantor will not amend,
supplement or otherwise modify, or permit, consent or suffer to occur any
amendment, supplement or modification of any terms or provisions contained in,
or applicable to, the TALP Partnership Agreement if the effect thereof is to
impair, or is in any manner adverse to, the rights or interests of any Secured
Party under the Credit Agreement or any other Loan Document, without the prior
written consent of the Administrative Agent and the Required Lenders.
Notice of Litigation. Each Grantor will notify the Administrative Agent of the
institution of any litigation or governmental proceeding against or affecting
any of the Collateral, to the extent and as soon as practicable after such
Grantor shall have knowledge thereof.
Withdraw from Partnership. Except as provided in Section 4.1.7 hereof, no
Grantor will, without the express written consent of the Administrative Agent
and the Lenders, actively cause itself to withdraw as a general partner or
limited partner, as the case may be, of TALP.
Transfers and Other Liens. Such Grantor shall not:
sell, assign (by operation of law or otherwise) or otherwise dispose of any of
the Collateral; provided, however, that the Grantors may sell or assign limited
or general partnership interests in TALP if, after giving effect thereto, the
Grantors own, directly or indirectly and free and clear of all Liens and other
encumbrances (other than in favor of the Administrative Agent), sufficient
general and limited partnership interests in TALP such that a "Change in
Control" will not occur; or
create or suffer to exist any Lien or other charge or encumbrance upon or with
respect to any of the Collateral to secure Indebtedness of any Person or entity,
except for the security interests created by this Security Agreement and except
as permitted by the Credit Agreement.
Further Assurances, etc. Each Grantor agrees that, from time to time at its
own expense, such Grantor will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that the Administrative Agent may request, in order to perfect,
preserve and protect any security interest granted or purported to be granted
hereby or to enable the Administrative Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, each Grantor will
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices (including, without limitation,
any assignment of claim form under or pursuant to the federal assignment of
claims statute, 31 U.S.C. ss. 3726, any successor or amended version thereof or
any regulation promulgated under or pursuant to any version thereof), as may be
necessary or desirable, or as the Administrative Agent may request, in order to
perfect and preserve the security interests and other rights granted or
purported to be granted to the Administrative Agent hereby; and
furnish to the Administrative Agent, from time to time at the Administrative
Agent's request, statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Administrative Agent may reasonably request, all in reasonable detail.
With respect to the foregoing and the grant of the security interests hereunder,
such Grantor hereby authorizes the Administrative Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral without the signature of such Grantor where permitted
by law, and the Administrative Agent hereby agrees to furnish the Grantor with
copies of any such filings. A carbon, photographic or other reproduction of this
Security Agreement or any financing statement covering the Collateral or any
part thereof shall be sufficient as a financing statement where permitted by
law.
Credit Agreement Compliance. Such Grantor agrees to be bound by the terms of
clauses (c) and (d) of Section 8.1.9 of the Credit Agreement as if it were a
party to the Credit Agreement. Such Grantor will take all actions necessary to
cause TALP to comply with the terms and conditions of the Credit Agreement and
all Loan Documents to which TALP is a party, and such Grantor will not take any
action which would, in any way, prohibit TALP from complying with, or interfere
with TALP's compliance with, or cause TALP to fail to comply with, the terms and
conditions of the Credit Agreement or any Loan Documents to which TALP is a
party.
THE ADMINISTRATIVE AGENT
Administrative Agent Appointed Attorney-in-Fact. Each Grantor hereby
irrevocably appoints the Administrative Agent such Grantor's attorney-in-fact,
with full authority in the place and stead of such Grantor and in the name of
such Grantor or otherwise, from time to time in the Administrative Agent's
discretion, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Security Agreement, including, without limitation:
to ask, demand, collect, sue for, recover, compromise, receive and give
acquittance and receipts for moneys due and to become due under or in respect of
any of the Collateral;
to receive, endorse, and collect any drafts or other instruments, documents
and chattel paper, in connection with clause (a) above;
to file any claims or take any action or institute any proceedings which the
Administrative Agent may deem necessary or desirable for the collection of any
of the Collateral or otherwise to enforce the rights of the Administrative Agent
with respect to any of the Collateral; and
to perform the affirmative obligations of such Grantor hereunder (including
all obligations of such Grantor pursuant to Section 4.1.6).
Each Grantor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
Administrative Agent May Perform. If any Grantor fails to perform any
agreement contained herein, the Administrative Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Administrative
Agent incurred in connection therewith shall be payable by such Grantor pursuant
to Section 6.2.
Administrative Agent Has No Duty. In addition to, and not in limitation of,
Section 2.4, the powers conferred on the Administrative Agent hereunder are
solely to protect its interest (on behalf of the Secured Parties) in the
Collateral and shall not impose any duty on it to exercise any such powers.
Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
Reasonable Care. The Administrative Agent is required to exercise reasonable
care in the custody and preservation of any of the Collateral in its possession;
provided, however, the Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral, if it
takes such action for that purpose as such Grantor reasonably requests in
writing at times other than upon the occurrence and during the continuance of
any Event of Default, but failure of the Administrative Agent to comply with any
such request at any time shall not in itself be deemed a failure to exercise
reasonable care.
REMEDIES
Certain Remedies. If any Event of Default shall have occurred and be
continuing
The Administrative Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all of the rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected Collateral) and also
may require the Grantors to, and each Grantor hereby agrees that it will, at its
expense and upon request of the Administrative Agent forthwith, assemble all or
part of the Collateral as directed by the Administrative Agent and make it
available to the Administrative Agent at a place to be designated by the
Administrative Agent which is reasonably convenient to all parties.
All cash proceeds received by the Administrative Agent in respect of any sale
of, collection from, or other realization upon all or any part of the Collateral
may, in the discretion of the Administrative Agent, be held by the
Administrative Agent as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Administrative Agent
pursuant to Section 6.2) in whole or in part by the Administrative Agent for the
ratable benefit of the Secured Parties against, all or any part of the Secured
Obligations in such order as the Administrative Agent shall elect. Any surplus
of such cash or cash proceeds held by the Administrative Agent and remaining
after payment in full of all the Secured Obligations shall be paid over to the
Grantors or to whomsoever may be lawfully entitled to receive such surplus.
Indemnity and Expenses.
Each Grantor agrees to indemnify the Administrative Agent and each other
Secured Party from and against any and all claims, losses and liabilities
arising out of or resulting from this Security Agreement (including, without
limitation, enforcement of this Security Agreement), except claims, losses or
liabilities resulting from any such Secured Party's gross negligence or wilful
misconduct.
Each Grantor will upon demand pay to the Administrative Agent the amount of
any and all reasonable expenses, including the reasonable fees and disbursements
of its counsel and of any experts and agents, which the Administrative Agent may
incur in connection with (i) the administration of this Security Agreement, (ii)
the custody, preservation, use or operation of, or the sale of, collection from,
or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Administrative Agent or the Secured
Parties hereunder, or (iv) the failure by any Grantor to perform or observe any
of the provisions hereof.
MISCELLANEOUS PROVISIONS
Loan Document. This Security Agreement is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof.
Approvals. Notwithstanding anything to the contrary contained herein or in any
other Loan Document, the Administrative Agent will not take any action
(including the exercise of voting rights by the Administrative Agent with
respect to the Collateral consisting of general and limited partnership
interests) pursuant to this Security 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 TALP or any Subsidiary of TALP
without first obtaining the prior approval of the FCC, any other federal, state
or local governmental authority or other person, 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, other federal, state or local
governmental authority or other person. Prior to the exercise by the
Administrative Agent of any power, right, privilege or remedy pursuant to this
Security Agreement which requires any consent, approval, recording,
qualification or authorization of any federal, state or local governmental
authority or instrumentality, or other person, each applicable Grantor 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 consent, approval,
recording, qualification or authorization and, following the occurrence and
continuance of an Event of Default, upon the reasonable request of the
Administrative Agent, such applicable Grantor will use its best efforts to
assist the Administrative Agent in obtaining such approvals and consents.
Amendments; etc. No amendment to or waiver of any provision of this Security
Agreement nor consent to any departure by any Grantor herefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Addresses for Notices. All notices and other communications provided to any
party hereto shall be in writing and mailed, delivered or transmitted to such
party at its address or facsimile number set forth below its signature hereto in
Coudersport, Pennsylvania and, if to the Administrative Agent, mailed, delivered
or transmitted to it at the address of the Administrative Agent specified in the
Credit Agreement, or as to any party, at such other address or facsimile number
as shall be designated by such party in a written notice to each other party
complying as to delivery with the terms of this Section. Any notice, if mailed
and properly addressed with postage prepaid or, if properly addressed and sent
by prepaid courier service, shall be deemed given when received; any notice, if
transmitted by facsimile, shall be deemed given when transmitted (upon receipt
of electronic confirmation of transmission).
Section Captions. Section captions used in this Security Agreement are for
convenience of reference only, and shall not affect the construction of this
Security Agreement.
Severability. Wherever possible each provision of this Security Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Security Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Security Agreement.
Governing Law, Entire Agreement, etc. THIS SECURITY AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTERESTS HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK. THIS SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE
ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS SECURITY AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY SECURED PARTY OR ANY GRANTOR SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH GRANTOR HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION SUBJECT TO ANY RIGHTS OF APPEAL OF ANY JUDGMENT RENDERED BY THE
HIGHEST COURT IN THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT, FOR
THE STATE OF NEW YORK, AS THE CASE MAY BE. EACH GRANTOR FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH GRANTOR HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT ANY GRANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, SUCH GRANTOR HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS SECURITY AGREEMENT.
Waiver of Jury Trial. EACH GRANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
SECURITY AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY SECURED PARTY OR ANY GRANTOR. EACH
GRANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE SECURED PARTIES ENTERING INTO THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
<PAGE>
IN WITNESS WHEREOF, each Grantor has caused this Security Agreement
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
OLYMPUS COMMUNICATIONS, L.P.
By: ACP Holdings, Inc., its
Managing General Partner
By: ,
Title:
Address: 2129 Congress Avenue
Riviera Beach, FL 33404
Telecopy No.: 407-845-7709
Attention:Mark Galloway
With a copy to:
c/o Highland Video Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: 814-274-6586
Attention:Michael Mulcahey
DORELLENIC CABLE PARTNERS
By: ,
a General Partner
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: 814-274-6586
Attention:Michael Mulcahey
<PAGE>
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
Title: Authorized Signatory
Address: One Liberty Plaza
New York, New York 10006
Telecopy No.: (212) 225-5090
Attention:Vincent Fitzgerald
Media Communication
Group
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
to
TALP Partners
Security Agreement
========================================================== -------------------------- ------------------------ =====================
<S> <C> <C> <C>
Grantor's Name Character of Partnership Grantor's Grantor's Percentage
Interest Interest in Interest in
TALP Profits of
TALP
========================================================== -------------------------- ------------------------ =====================
Olympus Communications, L.P. general partner 99.99% 99.99%
========================================================== ========================== ======================== =====================
Dorellenic Cable Partners limited 0.01% 0.01%
partner
========================================================== ========================== ======================== =====================
</TABLE>
<PAGE>
[EXECUTION COPY]
GLOBAL PARTNERS SECURITY AGREEMENT
THIS GLOBAL PARTNERS SECURITY AGREEMENT (this "Security Agreement"),
dated as of April 1, 1996, made by each of the parties identified on the
signature pages hereto (each a "Grantor" and collectively the "Grantors") in
favor of THE BANK OF NOVA SCOTIA, as administrative agent (together with any
successor(s) thereto in such capacity, the "Administrative Agent") for each of
the Secured Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated
as of March 29, 1996, amending and restating the Credit Agreement, dated as of
February 28, 1996 (as further amended, supplemented, amended and restated or
otherwise modified, the "Credit Agreement"), among Highland Video Associates,
L.P., a Pennsylvania limited partnership ("HVA"), Telesat Acquisition Limited
Partnership, a Delaware limited partnership ("TALP"), Global Acquisition
Partners, L.P., a Delaware limited partnership ("Global"; Global, TALP and HVA
being individually referred to as a "Borrower" and collectively as the
"Borrowers"), the financial institutions from time to time parties thereto (the
"Lenders"), Bank of Montreal, as Syndication Agent, Chemical Bank, as
Documentation Agent, and the Administrative Agent, the Lenders have agreed to
make Loans to, and the Issuer has agreed to issue (and the Lenders have agreed
to participate in) Letters of Credit for the account of, the Borrowers;
WHEREAS, as a condition precedent to the making of Credit Extensions
under the Credit Agreement, each Grantor is required to execute and deliver this
Security Agreement;
WHEREAS, each Grantor has duly authorized the execution, delivery and
performance of this Security Agreement; and
WHEREAS, it is in the best interests of each Grantor to execute this
Security Agreement inasmuch as such Grantor will derive substantial direct and
indirect benefits from the Credit Extensions made from time to time to the
Borrowers by the Secured Parties pursuant to the Credit Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, and in order to induce the Secured Parties to make
Credit Extensions to the Borrowers pursuant to the Credit Agreement, each
Grantor agrees, for the benefit of each Secured Party, as follows:
DEFINITIONS
Certain Terms. The following terms (whether or not underscored) when used in
this Security Agreement, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to the singular
and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" and "Borrowers" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Grantor" and "Grantors" is defined in the preamble.
"Global" is defined in the first recital.
"HVA" is defined in the first recital.
"Lenders" is defined in the first recital.
"Secured Obligations" is defined in Section 2.2.
"Secured Party" means, as the context may require, each Lender, the
Issuer, each Swap Party, the Syndication Agent, the Documentation Agent and the
Administrative Agent and each of their respective successors, transferees and
assigns.
"Security Agreement" is defined in the preamble.
"TALP" is defined in the first recital.
"U.C.C." means the Uniform Commercial Code, as in effect in the State
of New York.
Credit Agreement Definitions. Unless otherwise defined herein or the context
otherwise requires, terms used in this Security Agreement, including its
preamble and recitals, have the meanings provided in the Credit Agreement.
U.C.C. Definitions. Unless otherwise defined herein or the context
otherwise requires, terms for which meanings are provided in the U.C.C. are used
in this Security Agreement, including its preamble and recitals, with such
meanings.
SECURITY INTEREST
Grant of Security. Each Grantor hereby grants, assigns and pledges to the
Administrative Agent for its benefit and the ratable benefit of each of the
Secured Parties a security interest in all of the following, whether now owned
or hereafter existing or acquired (the "Collateral"):
all right, title and interest of such Grantor, whether now existing or
hereafter arising or acquired, in, to and under the Global Partnership
Agreement, including such Grantor's rights, now existing or hereafter arising or
acquired, to receive from time to time its share of profits, income, surplus,
compensation, return of capital, distributions and other reimbursements and
payments from Global (including specific properties of Global upon dissolution
and otherwise);
all general or limited partnership interests now owned or hereafter acquired
by such Grantor in Global as a result of exchange offers, direct investments or
contributions or otherwise;
such Grantor's accounts, general intangibles and other rights to payment or
reimbursement, now existing or hereafter arising or acquired, from Global,
existing or arising from loans, advances or other extensions of credit by such
Grantor from time to time to or for the account of Global, or from services
rendered by such Grantor from time to time to or for the account of Global; and
all products, offspring, rents, issues, profits, returns, income and proceeds
of and from any and all of the foregoing Collateral (including proceeds which
constitute property of the types described in clauses (a), (b) and (c), and, to
the extent not otherwise included, all payments under insurance (whether or not
the Administrative Agent is the loss payee thereof), or any indemnity, warranty
or guaranty, payable by reason of loss or damage to or otherwise with respect to
any of the foregoing Collateral).
Security for Obligations. This Security Agreement secures the payment of all
Obligations of each Borrower now or hereafter existing under the Credit
Agreement and each other Loan Document to which a Borrower is or may become a
party, whether for principal, interest, costs, fees, expenses or otherwise, and
all other obligations of each such Grantor now or hereafter existing under this
Security Agreement and each other Loan Document to which it is or may become a
party (all such Obligations of each Borrower and such Grantor being the "Secured
Obligations").
Continuing Security Interest; Transfer of Notes. This Security Agreement
shall create a continuing security interest in the Collateral and shall remain
in full force and effect as hereinafter provided in this Section 2.3 until
payment in full in cash of all Secured Obligations, the termination or
expiration of all Letters of Credit and the termination of all Commitments, be
binding upon each Grantor, and each Grantor's successors, transferees and
assigns, and inure, together with the rights and remedies of the Administrative
Agent hereunder, to the benefit of the Administrative Agent and each other
Secured Party.
Without limiting the generality of the foregoing clause (c), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Loan held by it
to any other Person or entity, and such other Person or entity shall thereupon
become vested with all the rights and benefits in respect thereof granted to
such Lender under any Loan Document (including this Security Agreement) or
otherwise, subject, however, to any contrary provisions in such assignment or
transfer, and to the provisions of Section 10.11 and Article IX of the Credit
Agreement. Notwithstanding anything to the contrary contained herein, upon the
payment in full in cash of all principal, fees and interest due under the Credit
Agreement, the termination or expiration of all Letters of Credit, the
termination of all Commitments, the termination of all Rate Protection
Agreements with Swap Parties and the satisfaction of all obligations owing to
any Lender thereunder, the obligations of each Grantor hereunder (except under
Section 6.2, which shall survive the termination of this Security Agreement) and
the security interests granted herein shall terminate and all rights to the
Collateral shall revert to the Grantors. Upon any such termination, the
Administrative Agent will, at the sole expense of the Grantors, execute and
deliver to the Grantors such documents as the Grantors shall reasonably request
to evidence such termination.
Grantors Remain Liable. Anything herein to the contrary notwithstanding
each Grantor shall remain liable under the Global Partnership Agreement and
the contracts and agreements included in the Collateral to the extent set forth
therein, and shall perform all of its duties and obligations under the Global
Partnership Agreement and such contracts and agreements to the same extent as if
this Security Agreement had not been executed,
the exercise by the Administrative Agent of any of its rights hereunder shall
not release any Grantor from any of its duties or obligations under the Global
Partnership Agreement and any such contracts or agreements included in the
Collateral, and
neither the Administrative Agent nor any other Secured Party shall have any
obligation or liability under the Global Partnership Agreement and any such
contracts or agreements included in the Collateral by reason of this Security
Agreement, nor shall the Administrative Agent or any other Secured Party be
obligated to perform any of the obligations or duties of any Grantor thereunder
or to take any action to collect or enforce any claim for payment assigned
hereunder.
Security Interest Absolute. All rights of the Secured Parties and the
security interests granted to the Secured Parties hereunder, and all obligations
of the Grantors hereunder, shall be absolute and unconditional, irrespective of
any lack of validity or enforceability of the Credit Agreement, any Note or any
other Loan Document; the failure of any Secured Party to assert any claim or
demand or to enforce any right or remedy against any Borrower, any other Obligor
or any other Person under the provisions of the Credit Agreement, any Note, any
other Loan Document or otherwise, or to exercise any right or remedy against any
other guarantor of, or collateral securing, any Secured Obligations; any change
in the time, manner or place of payment of, or in any other term of, all or any
of the Secured Obligations or any other extension, compromise or renewal of any
Secured Obligation;
any reduction, limitation, impairment or termination of any Secured
Obligations for any reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and each Grantor 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, any Secured Obligations;
any amendment to, rescission, waiver, or other modification of, or any consent
to departure from, any of the terms of the Credit Agreement, any Note or any
other Loan Document;
any addition, exchange, release, surrender or non-perfection of any collateral
(including the Collateral), or any amendment to or waiver or release of or
addition to or consent to departure from any guaranty, for any of the Secured
Obligations; or
any other circumstances which might otherwise constitute a defense available
to, or a legal or equitable discharge of, any Borrower, any other Obligor, any
surety or any guarantor.
Postponement of Subrogation. Each Grantor agrees that it will not exercise any
rights which it may acquire by way of subrogation under this Security Agreement,
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 Obligor, the
termination or expiration of all Letters of Credit and the termination of all
Commitments. Any amount paid to such Grantor on account of any such subrogation
rights prior to the payment in full of all Obligations of each Borrower and each
other Obligor, the termination or expiration of all Letters of Credit and the
termination of all Commitments shall be held in trust for the benefit of the
Secured Parties and shall immediately be paid to the Administrative Agent and
credited and applied against the Obligations of each Borrower and each other
Obligor, whether matured or unmatured, in accordance with the terms of the
Credit Agreement; provided, however, that if
(a) such Grantor has made payment to the Secured Parties
of all or any part of the Obligations of any Borrower or any
other Obligor, and
(b) all Obligations of each Borrower and each other Obligor
have been paid in full, all Letters of Credit have expired or been terminated
and all Commitments have been terminated,
each Secured Party agrees that, at such Grantor's request, the Secured Parties
will execute and deliver to such Grantor appropriate documents (without recourse
and without representation or warranty) necessary to evidence the transfer by
subrogation to such Grantor of an interest in the Secured Obligations resulting
from such payment by such Grantor. In furtherance of the foregoing, for so long
as any Secured Obligations, Letters of Credit or Commitments remain outstanding,
each Grantor shall refrain from taking any action or commencing any proceeding
against any Borrower or any other Obligor (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 this Security Agreement to any Secured
Party.
REPRESENTATIONS AND WARRANTIES
Representations and Warranties. Each Grantor represents and warrants to each
Secured Party as set forth in this Article.
Organization, etc. Each Grantor is a corporation validly organized and
existing and in good standing under the laws of the State of Delaware and is
duly qualified to do business and is in good standing in each jurisdiction where
the nature of its business requires such qualification.
Authority and Licenses to Conduct Business. Each Grantor has full corporate
power and authority and holds all requisite governmental licenses, permits and
other approvals to own and hold under lease its property and to conduct its
business substantially as currently conducted by it (except where the failure to
do so could not reasonably be expected to have a material adverse effect on the
business, assets, operations, financial condition or prospects of such Grantor
and its Subsidiaries).
Power and Authority. Each Grantor has full power and authority to enter into
and perform its obligations under this Security Agreement and each other Loan
Document executed or to be executed by it.
Non-Contravention, etc. The execution, delivery and performance by such
Grantor of this Security Agreement and each other Loan Document executed or to
be executed by such Grantor do not contravene any contractual restriction, law
or court decree or order binding on or affecting such Grantor;
result in, or require the creation or imposition of, any Lien on any of such
Grantor's properties, other than the Lien created pursuant to this Security
Agreement; or
contravene its Organic Documents.
Ownership, No Liens, etc. Such Grantor owns the Collateral free and clear of
any Lien, security interest, charge or encumbrance except for the security
interests created by this Security Agreement. Subject to the preceding sentence,
no effective financing statement or other instrument similar in effect covering
all or any part of the Collateral is on file in any recording office, except
such as may have been filed in favor of the Administrative Agent relating to
this Security Agreement.
Validity, etc. Subject to Section 3.1.5, this Security Agreement creates a
valid first priority security interest in the Collateral, securing the payment
of the Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly taken.
The Grantors have furnished to the Administrative Agent a true and correct copy
of the Global Partnership Agreement and all amendments thereto, which Global
Partnership Agreement, as so amended, constitutes the valid, binding and
enforceable obligations of the Grantors, sets forth the entire agreement of the
parties thereto with respect to the subject matter thereof, has not been further
amended or modified and remains in full force and effect.
Partnership Interests, Profits. The character (general and/or limited partner)
of each Grantor's interest in Global, and each Grantor's percentage interest in
Global's profits (with profit interests as a general and as a limited partner
separately stated) are as set forth in Schedule I hereto, as amended,
supplemented or otherwise modified from time to time pursuant to Section 4.1.7
and otherwise with the prior written consent of the Administrative Agent.
Certificate. No interest of any Grantor in Global is represented by a
certificate of interest or similar instrument, except such certificates or
instruments, if any, as have been delivered to the Administrative Agent and are
held in its possession (and each Grantor covenants and agrees that any such
certificates or instruments hereafter received by such Grantor with respect to
any of the Collateral will be promptly delivered to the Administrative Agent).
<PAGE>
Global Partnership Agreement. Such Grantor had and has the corporate power and
authority on its own behalf, or as a partner of Global, as the case may be, to
execute and carry out the provisions of the Global Partnership Agreement and the
Credit Agreement. Such Grantor has substantially performed all of its respective
obligations to date under the Global Partnership Agreement and has not received
notice of the failure of any other party thereto to perform substantially its
obligations thereunder.
Location, Records, etc. The place(s) of business and chief executive office of
each Grantor and the office(s) where such Grantor keeps its records concerning
the Collateral are located at the addresses listed below the name of such
Grantor on the signature page to this Security Agreement. Neither Grantor has
any trade name. No Grantor has been known by any legal name different from the
one set forth on the signature page hereto. Neither Grantor has been the subject
of any merger or other reorganization in the past twelve months.
Litigation, etc. There is no pending or, to the knowledge of any Grantor,
threatened litigation, action, proceeding, or labor controversy affecting Global
or any of its Subsidiaries, or any of their respective properties, businesses,
assets or revenues, which may materially adversely affect the financial
condition, operations, assets, business, properties or prospects of Global and
its Subsidiaries, taken as a whole, or which purports to affect the legality,
validity or enforceability of this Security Agreement, any other Loan Document,
the Management Agreement to which Global is a party, the Organic Documents of
Global or any Franchise Agreement to which Global is a party, except as
disclosed in Item 6.7 ("Litigation") of the Disclosure Schedule.
Authorization, Approval, etc. No authorization, approval or other action by,
and no notice to or filing with, any governmental authority or
regulatory body is required either
for the grant by such Grantor of the security interests granted hereby or for
the execution, delivery and performance of this Security Agreement by such
Grantor, or
for the perfection of or the exercise by the Administrative Agent of its
rights and remedies hereunder, except filings that may be required to perfect
Liens under the U.C.C.,
<PAGE>
other than those authorizations, approvals or notices required by the terms and
conditions of certain agreements, where the failure to obtain such
authorizations, approvals or notices could not reasonably be expected to have a
material adverse effect on the assets, properties, business, financial condition
or prospects of such Grantor and its Subsidiaries and would not, in any way,
impair the rights of the Administrative Agent or the Secured Parties under this
Security Agreement.
Compliance with Laws. Such Grantor is in compliance with the requirements of
all applicable laws (including, without limitation, the provisions of the Fair
Labor Standards Act), rules, regulations and orders of every governmental
authority, the non-compliance with which might materially adversely affect the
business, properties, assets, operations, condition (financial or otherwise) or
prospects of such Grantor or the value of the Collateral or the worth of the
Collateral as collateral security.
Representations and Warranties. Each Grantor hereby represents and warrants to
each Lender Party that the representations and warranties contained in Article
VI of the Credit Agreement, insofar as the representations and warranties
contained therein are applicable to such Grantor and its properties, are true
and correct in all respects, each such representation and warranty set forth in
such Article (insofar as applicable as aforesaid) and all other terms of the
Credit Agreement to which reference is made therein, together with all related
definitions and ancillary provisions, being hereby incorporated into this
Guaranty by reference as though specifically set forth in this Section.
COVENANTS
Certain Covenants. Each Grantor covenants and agrees that, until the
termination of this Security Agreement as provided in Section 2.3, such Grantor
will, unless the Required Lenders shall otherwise consent in writing, perform
the obligations set forth in this Section.
Maintenance of Records. Such Grantor will keep all of its records concerning
the Collateral at the addresses set forth below its signature on the signature
page to this Security Agreement, which records will be of such character as will
enable the Administrative Agent or its designees to determine at any time the
status thereof, or, upon 30 days' prior written notice to the Administrative
Agent, at such other locations in a jurisdiction where all actions necessary to
(i) perfect, preserve and protect any security interest granted or purported to
be granted hereby and (ii) enable the Administrative Agent to exercise and
enforce its rights and remedies hereunder, shall have been taken. Such Grantor
shall not change its name except upon 30 days' prior written notice to the
Administrative Agent and shall hold and preserve such records concerning the
Collateral and permit representatives of the Administrative Agent at any time
during normal business hours to inspect and make abstracts from such records.
Amendment of Global Partnership Agreement. Such Grantor will not amend,
supplement or otherwise modify, or permit, consent or suffer to occur any
amendment, supplement or modification of any terms or provisions contained in,
or applicable to, the Global Partnership Agreement if the effect thereof is to
impair, or is in any manner adverse to, the rights or interests of any Secured
Party under the Credit Agreement or any other Loan Document, without the prior
written consent of the Administrative Agent and the Required Lenders.
Notice of Litigation. Each Grantor will notify the Administrative Agent of the
institution of any litigation or governmental proceeding against or affecting
any of the Collateral, to the extent and as soon as practicable after such
Grantor shall have knowledge thereof.
Withdraw from Partnership. Except as provided in Section 4.1.7 hereof, no
Grantor will, without the express written consent of the Administrative Agent
and the Lenders, actively cause itself to withdraw as a general partner or
limited partner, as the case may be, of Global.
Transfers and Other Liens. Such Grantor shall not:
sell, assign (by operation of law or otherwise) or otherwise dispose of any of
the Collateral; provided, however, that the Grantors may sell or assign limited
or general partnership interests in Global if, after giving effect thereto, the
Grantors own, directly or indirectly and free and clear of all Liens and other
encumbrances (other than in favor of the Administrative Agent), sufficient
general and limited partnership interests in Global such that a "Change in
Control" will not occur; or
create or suffer to exist any Lien or other charge or encumbrance upon or with
respect to any of the Collateral to secure Indebtedness of any Person or entity,
except for the security interests created by this Security Agreement and except
as permitted by the Credit Agreement.
Further Assurances, etc. Each Grantor agrees that, from time to time at its
own expense, such Grantor will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary or
desirable, or that the Administrative Agent may request, in order to perfect,
preserve and protect any security interest granted or purported to be granted
hereby or to enable the Administrative Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral. Without limiting the
generality of the foregoing, each Grantor will
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices (including, without limitation,
any assignment of claim form under or pursuant to the federal assignment of
claims statute, 31 U.S.C. ss. 3726, any successor or amended version thereof or
any regulation promulgated under or pursuant to any version thereof), as may be
necessary or desirable, or as the Administrative Agent may request, in order to
perfect and preserve the security interests and other rights granted or
purported to be granted to the Administrative Agent hereby; and
furnish to the Administrative Agent, from time to time at the Administrative
Agent's request, statements and schedules further identifying and describing the
Collateral and such other reports in connection with the Collateral as the
Administrative Agent may reasonably request, all in reasonable detail.
With respect to the foregoing and the grant of the security interests hereunder,
such Grantor hereby authorizes the Administrative Agent to file one or more
financing or continuation statements, and amendments thereto, relative to all or
any part of the Collateral without the signature of such Grantor where permitted
by law, and the Administrative Agent hereby agrees to furnish the Grantor with
copies of any such filings. A carbon, photographic or other reproduction of this
Security Agreement or any financing statement covering the Collateral or any
part thereof shall be sufficient as a financing statement where permitted by
law.
Credit Agreement Compliance. Such Grantor agrees to be bound by the terms of
clauses (c) and (d) of Section 8.1.9 of the Credit Agreement as if it were a
party to the Credit Agreement. Such Grantor will take all actions necessary to
cause Global to comply with the terms and conditions of the Credit Agreement and
all Loan Documents to which Global is a party, and such Grantor will not take
any action which would, in any way, prohibit Global from complying with, or
interfere with Global's compliance with, or cause Global to fail to comply with,
the terms and conditions of the Credit Agreement or any Loan Documents to which
Global is a party.
THE ADMINISTRATIVE AGENT
Administrative Agent Appointed Attorney-in-Fact. Each Grantor hereby
irrevocably appoints the Administrative Agent such Grantor's attorney-in-fact,
with full authority in the place and stead of such Grantor and in the name of
such Grantor or otherwise, from time to time in the Administrative Agent's
discretion, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of this Security Agreement, including, without limitation:
to ask, demand, collect, sue for, recover, compromise, receive and give
acquittance and receipts for moneys due and to become due under or in respect of
any of the Collateral;
to receive, endorse, and collect any drafts or other instruments, documents
and chattel paper, in connection with clause (a) above;
to file any claims or take any action or institute any proceedings which the
Administrative Agent may deem necessary or desirable for the collection of any
of the Collateral or otherwise to enforce the rights of the Administrative Agent
with respect to any of the Collateral; and
to perform the affirmative obligations of such Grantor hereunder (including
all obligations of such Grantor pursuant to Section 4.1.6).
Each Grantor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
Administrative Agent May Perform. If any Grantor fails to perform any
agreement contained herein, the Administrative Agent may itself perform, or
cause performance of, such agreement, and the expenses of the Administrative
Agent incurred in connection therewith shall be payable by such Grantor pursuant
to Section 6.2.
Administrative Agent Has No Duty. In addition to, and not in limitation of,
Section 2.4, the powers conferred on the Administrative Agent hereunder are
solely to protect its interest (on behalf of the Secured Parties) in the
Collateral and shall not impose any duty on it to exercise any such powers.
Except for reasonable care of any Collateral in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
Reasonable Care. The Administrative Agent is required to exercise reasonable
care in the custody and preservation of any of the Collateral in its possession;
provided, however, the Administrative Agent shall be deemed to have exercised
reasonable care in the custody and preservation of any of the Collateral, if it
takes such action for that purpose as such Grantor reasonably requests in
writing at times other than upon the occurrence and during the continuance of
any Event of Default, but failure of the Administrative Agent to comply with any
such request at any time shall not in itself be deemed a failure to exercise
reasonable care.
REMEDIES
Certain Remedies. If any Event of Default shall have occurred and be
continuing
The Administrative Agent may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or otherwise available
to it, all of the rights and remedies of a secured party on default under the
U.C.C. (whether or not the U.C.C. applies to the affected Collateral) and also
may require the Grantors to, and each Grantor hereby agrees that it will, at its
expense and upon request of the Administrative Agent forthwith, assemble all or
part of the Collateral as directed by the Administrative Agent and make it
available to the Administrative Agent at a place to be designated by the
Administrative Agent which is reasonably convenient to all parties.
All cash proceeds received by the Administrative Agent in respect of any sale
of, collection from, or other realization upon all or any part of the Collateral
may, in the discretion of the Administrative Agent, be held by the
Administrative Agent as collateral for, and/or then or at any time thereafter
applied (after payment of any amounts payable to the Administrative Agent
pursuant to Section 6.2) in whole or in part by the Administrative Agent for the
ratable benefit of the Secured Parties against, all or any part of the Secured
Obligations in such order as the Administrative Agent shall elect. Any surplus
of such cash or cash proceeds held by the Administrative Agent and remaining
after payment in full of all the Secured Obligations shall be paid over to the
Grantors or to whomsoever may be lawfully entitled to receive such surplus.
Indemnity and Expenses.
Each Grantor agrees to indemnify the Administrative Agent and each other
Secured Party from and against any and all claims, losses and liabilities
arising out of or resulting from this Security Agreement (including, without
limitation, enforcement of this Security Agreement), except claims, losses or
liabilities resulting from any such Secured Party's gross negligence or wilful
misconduct.
Each Grantor will upon demand pay to the Administrative Agent the amount of
any and all reasonable expenses, including the reasonable fees and disbursements
of its counsel and of any experts and agents, which the Administrative Agent may
incur in connection with (i) the administration of this Security Agreement, (ii)
the custody, preservation, use or operation of, or the sale of, collection from,
or other realization upon, any of the Collateral, (iii) the exercise or
enforcement of any of the rights of the Administrative Agent or the Secured
Parties hereunder, or (iv) the failure by any Grantor to perform or observe any
of the provisions hereof.
MISCELLANEOUS PROVISIONS
Loan Document. This Security Agreement is a Loan Document executed pursuant to
the Credit Agreement and shall (unless otherwise expressly indicated herein) be
construed, administered and applied in accordance with the terms and provisions
thereof.
Approvals. Notwithstanding anything to the contrary contained herein or in any
other Loan Document, the Administrative Agent will not take any action
(including the exercise of voting rights by the Administrative Agent with
respect to the Collateral consisting of general and limited partnership
interests) pursuant to this Security 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 Global or any Subsidiary of
Global without first obtaining the prior approval of the FCC, any other federal,
state or local governmental authority or other person, 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, other federal, state or local
governmental authority or other person. Prior to the exercise by the
Administrative Agent of any power, right, privilege or remedy pursuant to this
Security Agreement which requires any consent, approval, recording,
qualification or authorization of any federal, state or local governmental
authority or instrumentality, or other person, each applicable Grantor 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 consent, approval,
recording, qualification or authorization and, following the occurrence and
continuance of an Event of Default, upon the reasonable request of the
Administrative Agent, such applicable Grantor will use its best efforts to
assist the Administrative Agent in obtaining such approvals and consents.
Amendments; etc. No amendment to or waiver of any provision of this Security
Agreement nor consent to any departure by any Grantor herefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
Addresses for Notices. All notices and other communications provided to any
party hereto shall be in writing and mailed, delivered or transmitted to such
party at its address or facsimile number set forth below its signature hereto
and, if to the Administrative Agent, mailed, delivered or transmitted to it at
the address of the Administrative Agent specified in the Credit Agreement, or as
to any party, at such other address or facsimile number as shall be designated
by such party in a written notice to each other party complying as to delivery
with the terms of this Section. Any notice, if mailed and properly addressed
with postage prepaid or, if properly addressed and sent by prepaid courier
service, shall be deemed given when received; any notice, if transmitted by
facsimile, shall be deemed given when transmitted (upon receipt of electronic
confirmation of transmission).
Section Captions. Section captions used in this Security Agreement are for
convenience of reference only, and shall not affect the
construction of this Security Agreement.
Severability. Wherever possible each provision of this Security Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Security Agreement shall be
prohibited by or invalid under such law, such provision shall be ineffective to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Security Agreement.
Governing Law, Entire Agreement, etc. THIS SECURITY AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK, EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY
INTERESTS HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK. THIS SECURITY AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE
ENTIRE UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
Forum Selection and Consent to Jurisdiction. ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS SECURITY AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF ANY SECURED PARTY OR ANY GRANTOR SHALL BE BROUGHT AND MAINTAINED
EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE
BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH GRANTOR HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION SUBJECT TO ANY RIGHTS OF APPEAL OF ANY JUDGMENT RENDERED BY THE
HIGHEST COURT IN THE STATE OF NEW YORK OR THE UNITED STATES DISTRICT COURT, FOR
THE STATE OF NEW YORK, AS THE CASE MAY BE. EACH GRANTOR FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, OR BY
PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH GRANTOR HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT ANY GRANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF
ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, SUCH GRANTOR HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS SECURITY AGREEMENT.
Waiver of Jury Trial. EACH GRANTOR HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
SECURITY AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY SECURED PARTY OR ANY GRANTOR. EACH
GRANTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE SECURED PARTIES ENTERING INTO THE CREDIT AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
<PAGE>
IN WITNESS WHEREOF, each Grantor has caused this Security Agreement
to be duly executed and delivered by its officer thereunto duly authorized as of
the date first above written.
GLOBAL CABELVISION, INC.
By:
Title:
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: 814-274-6586
Attention:Michael Mulcahey
ORCHARD PARK CABLEVISION, INC.
By:
Title:
Address: c/o Highland Video
Associates, L.P.
5 West Third Street
Coudersport, PA 16915
Telecopy No.: 814-274-6586
Attention:Michael Mulcahey
<PAGE>
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:
Title: Authorized Signatory
Address: One Liberty Plaza
New York, New York 10006
Telecopy No.: (212) 225-5090
Attention:Vincent Fitzgerald
Media Communication
Group
<PAGE>
<TABLE>
<CAPTION>
- l -
SCHEDULE I
to
Global Partners
Security Agreement
======================================================== -------------------------- ---------------------- ========================
<S> <C> <C> <C>
Grantor's Name Character of Partnership Grantor's Grantor's Percentage
Interest Interest in Interest in
Global Profits of
Global
======================================================== -------------------------- ---------------------- ========================
Global Cablevision, Inc. general partner 99% 99%
======================================================== ========================== ====================== ========================
Orchard Park Cablevision, Inc. limited 1% 1%
partner
======================================================== ========================== ====================== ========================
</TABLE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (date of earliest event reported) March 29, 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
Global Acquisition Partners ,L.P., a subsidiary of Adelphia Communications
Corporation ("Adelphia"), has become a party to a credit agreement which
provides for loans up to an aggregate to $200,000,000. The amended credit
agreement related to such loans is attached hereto as Exhibit 10.37.
Item 7. Financial Statements and Exhibits
(c) The following exhibit is filed as part of this report on Form 8-K,
Exhibit 10.37 - Amended Credit Agreement, dated as of March 29, 1996,
among Highland Video Associates L.P., Telesat
Acquisition Limited Partnership, Global
Acquisition Partners, L.P, the various
financial institutions as parties thereto, Bank of
Montreal as syndication agent, Chemical Bank as
documentation agent, and the Bank of Nova Scotcia 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: June 19, 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 10.37 Amended Credit Agreement, dated as of March 29, 1996,
among Highland Video Associates L.P., Telesat
Acquisition Limited Partnership, Global Acquisition
Partners, L.P, the various financial institutions
as parties thereto, Bank of Montreal as syndication
agent, Chemical Bank as documentation agent, and the
Bank of Nova Scotcia as administrative agent.
