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) November 12, 1998
ADELPHIA COMMUNICATIONS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 0-16014 23-2417713
(State or other (Commission File Number) (IRS Employer
jurisdiction of Identification No.)
incorporation)
Main at Water Street - Coudersport, PA 16915-1141 (Address of
principal executive offices) (Zip Code)
Registrant's telephone number, including area code (814) 274-9830
Item 5. Other Events.
The Registrant is filing certain exhibits herewith under Item 7 hereof,
which are with respect to recently announced events.
Item 7. Financial Statements and Exhibits
Exhibit No. Description
4.01 First Supplemental Indenture, dated as of November 12,
1998, with respect to the Registrant's 8-3/8% Senior Notes
due 2008, between the Registrant and the Bank of Montreal
Trust Company (Filed herewith)
4.02 Registration Rights Agreement between Adelphia
Communications Corporation and the Initial Purchaser, dated
November 12, 1998, regarding the Registrant's 8-3/8% Senior
Notes due 2008 (Filed herewith)
4.03 Indenture, dated as of January 13, 1999, with respect to
the Registrant's 7-1/2% Senior Notes due 2004 and 7-3/4%
Senior Notes due 2009 , between the Registrant and the Bank
of Montreal Trust Company (Filed herewith)
4.04 Registration Rights Agreement between Adelphia
Communications Corporation and the Initial Purchaser, dated
January 13, 1999, regarding the Registrant's 7-1/2% Senior
Notes due 2004 and 7-3/4% Senior Notes due 2009 (Filed
herewith)
4.05 Form of 7-1/2% Senior Note due 2004 (Contained in
Exhibit 4.03)
4.06 Form of 7-3/4% Senior Note due 2009 (Contained in
Exhibit 4.03)
10.01 Purchase Agreement among Adelphia Communications
Corporation and Barclays Capital, Inc. (the "Initial
Purchaser") dated November 6, 1998 (Filed herewith)
10.02 Purchase Agreement among Adelphia Communications
Corporation and Salomon Smith Barney Inc., Credit Suisse
First Boston Corporation, Goldman Sachs & Co., Lehman
Brothers Inc. and NationsBanc Montgomery Securities LLC
(the "Initial Purchasers") dated January 6, 1999 (Filed
herewith)
10.03 Credit Agreement, dated as of December 30, 1998,among
Parnassos, L.P. as the Borrower, various financial
institutions as the Lenders, The Bank of Nova Scotia as the
Administrative Agent, Nationsbank, N.A.as the Documentation
Agent, and TD SECURITIES (USA) INC.as the Syndication Agent
(Filed herewith)
10.04 Registration Rights Agreement among Adelphia Communications
Corporation, Doris Holdings, L.P. and Highland Holdings II
dated January 14, 1999 (Filed herewith)
99.01 Press Release dated January 21, 1999 regarding the
Registrant's acquisition of Verto Communications, Inc.
(Filed herewith)
99.02 Press Release dated January 28, 1999 regarding the
Registrant's repurchase agreements with FPL Group, Inc. on
Adelphia Stock and Olympus Interests.
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: January 25, 1999 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
4.01 First Supplemental Indenture, dated as of November 12,
1998, with respect to the Registrant's 8-3/8% Senior Notes
due 2008, between the Registrant and the Bank of Montreal
Trust Company (Filed herewith)
4.02 Registration Rights Agreement between Adelphia
Communications Corporation and the Initial Purchaser, dated
November 12, 1998, regarding the Registrant's 8-3/8% Senior
Notes due 2008 (Filed herewith)
4.03 Indenture, dated as of January 13, 1999, with respect to
the Registrant's 7-1/2% Senior Notes due 2004 and 7-3/4%
Senior Notes due 2009 , between the Registrant and the Bank
of Montreal Trust Company (Filed herewith)
4.04 Registration Rights Agreement between Adelphia
Communications Corporation and the Initial Purchaser, dated
January 13, 1999, regarding the Registrant's 7-1/2% Senior
Notes due 2004 and 7-3/4% Senior Notes due 2009 (Filed
herewith)
4.05 Form of 7-1/2% Senior Note due 2004 (Contained in
Exhibit 4.03)
4.06 Form of 7-3/4% Senior Note due 2009 (Contained in
Exhibit 4.03)
10.01 Purchase Agreement among Adelphia Communications
Corporation and Barclays Capital, Inc. (the "Initial
Purchaser") dated November 6, 1998 (Filed herewith)
10.02 Purchase Agreement among Adelphia Communications
Corporation and Salomon Smith Barney Inc., Credit Suisse
First Boston Corporation, Goldman Sachs & Co., Lehman
Brothers Inc. and NationsBanc Montgomery Securities LLC
(the "Initial Purchasers") dated January 6, 1999 (Filed
herewith)
10.03 Credit Agreement, dated as of December 30, 1998,among
Parnassos, L.P. as the Borrower, various financial
institutions as the Lenders, The Bank of Nova Scotia as the
Administrative Agent, Nationsbank, N.A.as the Documentation
Agent, and TD SECURITIES (USA) INC.as the Syndication Agent
(Filed herewith)
10.04 Registration Rights Agreement among Adelphia Communications
Corporation, Doris Holdings, L.P. and Highland Holdings II
dated January 14, 1999 (Filed herewith)
99.01 Press Release dated January 21, 1999 regarding the
Registrant's acquisition of Verto Communications, Inc.
(Filed herewith)
99.02 Press Release dated January 28, 1999 regarding the
Registrant's repurchase agreements with FPL Group, Inc. on
Adelphia Stock and Olympus Interests.
<PAGE>
EXHIBIT 10.01
$150,000,000
ADELPHIA COMMUNICATIONS CORPORATION
8-3/8% Senior Notes due 2008
PURCHASE AGREEMENT
November 6, 1998
BARCLAYS CAPITAL INC.
222 Broadway
New York, New York 10038
Ladies and Gentlemen:
Adelphia Communications Corporation, a Delaware corporation
(the "Company"), proposes, upon the terms and conditions set forth herein, to
issue and sell to you, as the initial purchaser (the "Initial Purchaser"),
$150,000,000 in aggregate principal amount of its 8-3/8% Senior Notes due 2008
(the "Senior Notes"). The Senior Notes will (i) have the terms and provisions
which are summarized in the Offering Memorandum (as defined herein), (ii) be in
the forms specified by the Initial Purchaser pursuant to Section 3 hereof, and
(iii) be issued pursuant to the provisions of the Indenture, dated as of January
21, 1998, as amended by the First Supplemental Indenture thereto, dated as of
November 12, 1998 (as so amended, the "Indenture"), between the Company and Bank
of Montreal Trust Company, as trustee (the "Trustee").
The Company wishes to confirm as follows its agreement with
you the Initial Purchaser in connection with the purchase and resale of the
Senior Notes.
1. Offering Memorandum. The Senior Notes will be offered and
sold to the Initial Purchaser without registration under the Securities Act of
1933, as amended (the "Act"), in reliance on an exemption pursuant to Section
4(2) under the Act. The Company has prepared an offering memorandum, dated
November 6, 1998, which incorporates by reference the Company's Annual Report on
Form 10-K for the fiscal year ended March 31, 1998 which incorporates, in Items
7 and 8 to such Form 10-K, portions of the Form 10-K for the fiscal year ended
December 31, 1997 of Olympus Communications, L.P. and Olympus Capital
Corporation, as amended by the Company's Form 10-K/A for the fiscal year ended
March 31, 1998; the Form 10-Q for the quarter ended June 30, 1998; Forms 8-K for
events dated June 29, 1998, July 2, 1998, August 3, 1998, August 18, 1998 and
September 10, 1998; and the definitive Proxy Statement dated September 11, 1998
(the "Offering Memorandum"), setting forth information regarding the Company,
the Senior Notes and the Exchange Notes (as defined herein). Any references
herein to the Offering Memorandum shall be deemed to include all amendments and
<PAGE>
supplements thereto, if any. The Company hereby confirms that they have
authorized the use of the Offering Memorandum in connection with the offering
and resale of the Senior Notes by the Initial Purchaser.
The Company understands that the Initial Purchaser proposes to
make offers (the "Exempt Resales") of the Senior Notes purchased by the Initial
Purchaser hereunder only on the terms set forth in the Offering Memorandum, and
Section 2 hereof, as soon as the Initial Purchaser deems advisable after this
Agreement has been executed and delivered, solely to persons whom the Initial
Purchaser reasonably believes to be "qualified institutional buyers" as defined
in Rule 144A under the Act ("QIBs") (such persons also being referred to herein
as the "Eligible Purchasers").
It is understood and acknowledged that upon original issuance
thereof, and until such time as the same is no longer required under the
applicable requirements of the Act, the Senior Notes (and all securities issued
in exchange therefor, in substitution thereof) shall bear the following legend:
"THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (1) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), (3) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (4) TO AN INSTITUTIONAL
ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND OTHER JURISDICTIONS."
It is also understood and acknowledged that holders (including
subsequent transferees) of the Senior Notes will have the registration rights
set forth in the registration rights agreement (the "Registration Rights
Agreement"), to be dated the Closing Date, in substantially the form of Exhibit
A hereto, for so long as such Senior Notes constitute "Transfer Restricted
Securities" (as defined in the Registration Rights Agreement). Pursuant to the
Registration Rights Agreement, the Company will agree to file with the
Securities and Exchange Commission (the "Commission") under the circumstances
set forth therein, (i) a registration statement under the Act relating to the
Company's 8-3/8% Senior Notes due 2008 (the "Exchange Notes") to be offered in
exchange for the Senior Notes (the "Registered Exchange Offer") and (ii) under
certain circumstances, a shelf registration statement pursuant to Rule 415 under
the Act relating to the resale by certain holders of the Senior Notes, and to
use its best efforts to cause such registration statements to be declared
effective. As used herein, the Senior Notes and the Exchange Notes are
hereinafter referred to collectively as the "Notes." This Agreement, the
Indenture, the Notes and the Registration Rights Agreement are hereinafter
referred to collectively as the "Operative Documents."
2. Agreements to Sell, Purchase and Resell. (a) The Company
hereby agrees, on the basis of the representations, warranties and agreements of
the Initial Purchaser contained herein and subject to all the terms and
conditions set forth herein, to issue and sell to the Initial Purchaser and,
<PAGE>
upon the basis of the representations, warranties and agreements of the Company
herein contained and subject to all the terms and conditions set forth herein,
the Initial Purchaser agrees to purchase from the Company, at a purchase price
of 99.20% of the principal amount thereof, plus accrued interest since August 1,
1998, all of the Senior Notes. The Company shall not be obligated to deliver any
of the Senior Notes to be delivered hereunder except upon payment for all of the
Senior Notes to be purchased as provided herein.
(b) The Initial Purchaser hereby represents and warrants to
the Company that it will offer the Senior Notes for sale upon the terms and
conditions set forth in this Agreement and in the Offering Memorandum. The
Initial Purchaser hereby represents and warrants to, and agrees with, the
Company that such Initial Purchaser (i) is either a QIB or other institutional
"accredited investor," as defined in Rule 501(a)(1), (2), (3) or (7) under the
Act (each, an "Accredited Institution") in either case with such knowledge and
experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an investment in the Senior Notes; (ii) is
purchasing the Senior Notes pursuant to a private sale exempt from registration
under the Act; (iii) in connection with the Exempt Resales, will solicit offers
to buy the Senior Notes only from, and will offer to sell the Senior Notes only
to, the Eligible Purchasers in accordance with this Agreement and on the terms
contemplated by the Offering Memorandum; and (iv) will not offer or sell the
Senior Notes, nor has it offered or sold the Senior Notes by, or otherwise
engaged in, any form of general solicitation or general advertising (within the
meaning of Regulation D; including, but not limited to, advertisements,
articles, notices or other communications published in any newspaper, magazine,
or similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising) in connection with the offering of the Senior Notes. The Initial
Purchaser has advised the Company that the Initial Purchaser will initially
offer the Senior Notes to Eligible Purchasers at a price of 100.00% of the
principal amount thereof, plus accrued interest from August 1, 1998. Such price
may be changed by the Initial Purchaser at any time thereafter without notice.
The Initial Purchaser understands that the Company and, for
purposes of the opinions to be delivered to the Initial Purchaser pursuant to
Sections 7(d) and 7(h) hereof, counsel to the Company and counsel to the Initial
Purchaser, will rely upon the accuracy and truth of the foregoing
representations, warranties and agreements and the Initial Purchaser hereby
consents to such reliance.
3. Delivery of the Notes and Payment Therefor. Delivery to the
Initial Purchaser of and payment for the Senior Notes shall be made at the
office of Latham & Watkins, 885 Third Avenue, Suite 1000, New York, New York
10022 at 9:00 A.M., New York City time, on November 12, 1998 (the "Closing
Date"). The place of closing for the Senior Notes and the Closing Date may be
varied by agreement between the Initial Purchaser and the Company.
The Senior Notes will be delivered to the Initial Purchaser
against payment of the purchase price therefor in immediately available funds.
The Senior Notes will be evidenced by one or more global securities in
definitive form (the "Global Note") and will be registered in the name of Cede &
Co. as nominee of The Depository Trust Company ("DTC"). The Senior Notes to be
delivered to the Initial Purchaser shall be made available to the Initial
Purchaser in New York City for inspection and packaging not later than 9:30
A.M., New York City time, on the business day next preceding the Closing Date.
4. Agreements of the Company. The Company agrees with the
Initial purchaser as follows:
(a) The Company will furnish to the Initial Purchaser, without
charge, such number of copies of the Offering Memorandum as the Initial
Purchaser may reasonably request.
<PAGE>
(b) The Company will not make any amendment or supplement to
the Offering Memorandum of which the Initial Purchaser shall not previously have
been advised or to which the Initial Purchaser shall reasonably object after
being so advised, including by way of filing any document with the Commission
that would be incorporated therein by reference.
(c) The Company consents to the use of the Offering Memorandum
in accordance with the securities or Blue Sky laws of the jurisdictions in which
the Senior Notes are offered by the Initial Purchaser and by all dealers to whom
Senior Notes may be sold, in connection with the offering and sale of the Senior
Notes.
(d) If, at any time prior to the Closing Date, any event shall
occur that in the judgment of the Company, or in the opinion of counsel for the
Initial Purchaser, should be set forth in the Offering Memorandum in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary to supplement or amend the
Offering Memorandum in order to comply with any law, the Company will forthwith
prepare an appropriate supplement or amendment thereto, and will expeditiously
furnish to the Initial Purchaser and dealers a reasonable number of copies
thereof.
(e) The Company will cooperate with the Initial Purchaser and
with its counsel in connection with the qualification of the Senior Notes for
offering and sale by the Initial Purchaser and by dealers under the securities
or Blue Sky laws of such jurisdictions as the Initial Purchaser may designate
and will file such consents to service of process or other documents necessary
or appropriate in order to effect such qualification; provided, that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Senior Notes, in any jurisdiction where it is not now so subject.
(f) So long as any of the Notes are outstanding, the Company
will furnish to the Initial Purchaser (i) as soon as available, a copy of each
report of the Company mailed to stockholders generally or filed with any stock
exchange or regulatory body and (ii) from time to time such other information
concerning the Company as the Initial Purchaser may reasonably request.
(g) If this Agreement shall terminate or shall be terminated
after execution and delivery pursuant to any provisions hereof (otherwise than
by notice given by the Initial Purchaser terminating this Agreement pursuant to
Section 10 hereof) or if this Agreement shall be terminated by the Initial
Purchaser because of any failure or refusal on the part of the Company to comply
with the terms or fulfill any of the conditions of this Agreement, the Company
agrees to reimburse the Initial Purchaser for all out-of-pocket expenses
(including reasonable fees and expenses of its counsel) reasonably incurred by
it in connection herewith, but without any further obligation on the part of the
Company for loss of profits or otherwise.
(h) The Company will apply the net proceeds from the sale of
the Senior Notes to be sold by it hereunder substantially in accordance with the
description set forth in the Offering Memorandum under the caption "Use of
Proceeds."
(i) Except as stated in this Agreement and in the Offering
Memorandum, the Company has not taken, nor will any of them take, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of the Senior Notes to
<PAGE>
facilitate the sale or resale of the Senior Notes. Except as permitted by the
Act, the Company will not distribute any offering material in connection with
the Exempt Resales.
(j) The Company will use its best efforts to permit the Notes
to be designated Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
relating to trading in the PORTAL Market and to permit the Notes to be eligible
for clearance and settlement through DTC.
(k) From and after the Closing Date, so long as any of the
Notes are outstanding and are "restricted securities" within the meaning of the
Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing
Date, and during any period in which the Company is not subject to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Company will furnish to holders of the Notes and prospective purchasers of
Notes designated by such holders, upon request of such holders or such
prospective purchasers, the information (the "Additional Company Information")
required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit
compliance with Rule 144A in connection with resales of the Notes.
(l) The Company has complied and will comply with all
provisions of Florida Statutes Section 517.075 relating to issuers doing
business with Cuba.
(m) The Company agrees not to sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
the Act) that would be integrated with the sale of the Senior Notes in a manner
that would require the registration under the Act of the sale to the Initial
Purchaser or the Eligible Purchasers of the Senior Notes.
(n) The Company agrees to comply with all the terms and
conditions of the Registration Rights Agreement and all agreements set forth in
the representation letters of the Company to DTC relating to the approval of the
Notes by DTC for "book entry" transfer.
(o) The Company agrees to cause the Exchange Offer to be made
in the appropriate form, as contemplated by the Registration Rights Agreement,
to permit registration of the Exchange Notes to be offered in exchange for the
Senior Notes, and to comply with all applicable federal and state securities
laws in connection with the Registered Exchange Offer.
(p) The Company agrees that prior to any registration of the
Senior Notes pursuant to the Registration Rights Agreement, or at such earlier
time as may be required, the Indenture shall be qualified under the Trust
Indenture Act of 1939 (the "1939 Act") and any necessary supplemental indentures
will be entered into in connection therewith.
(q) The Company will not voluntarily claim, and will resist
actively all attempts to claim, the benefit of any usury laws against holders of
the Notes.
(r) The Company will do and perform all things required or
necessary to be done and performed under this Agreement by it prior to the
Closing Date, and to satisfy all conditions precedent to the Initial Purchaser's
obligations hereunder to purchase the Senior Notes.
5. Representations and Warranties of the Company. The Company
represents and warrants to the Initial Purchaser that:
<PAGE>
(a) The Offering Memorandum has been prepared in connection
with the offering of the Senior Notes. The Offering Memorandum and any
amendments or supplements thereto did not and will not, as of their
respective dates, or as of the Closing Date, contain an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by the Initial
Purchaser concerning the Initial Purchaser expressly for use therein
(the "Initial Purchaser Information"). The Offering Memorandum, as of
its date, contains all the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Act.
(b) The Company has not sustained since March 31, 1998 any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering Memorandum;
and, since the respective dates as of which information is given in the
Offering Memorandum, or as of the Closing Date, there has not been any
reduction in the consolidated stockholders' equity or change in the
capital stock, as applicable (other than reductions in the ordinary
course of business consistent with prior periods), material increase in
the total amount of short-term debt (excluding trade payables) and
long-term debt of the Company or any of its material subsidiaries (the
"Subsidiaries") or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, partners' equity,
shareholders' equity or results of operations of the Company and its
Subsidiaries, otherwise than as set forth or contemplated in the
Offering Memorandum;
(c) Each of the Company and its Subsidiaries has good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Offering Memorandum or such as do not affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
Subsidiaries; and any real property and buildings held under lease by
the Company and its Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its Subsidiaries;
except in any case that would not have a material adverse effect on the
business, general affairs, management, financial position, partners
equity or shareholders' equity (other than reductions in the ordinary
course of business consistent with prior periods), results of
operations or prospects of the Company and its Subsidiaries, taken as a
whole a "Material Adverse Effect";
(d) (i) Each of the Subsidiaries that are partnerships has
been duly formed and is validly existing as a partnership in good
standing under the laws of its state of formation, with full power and
authority (partnership and other) to own its properties and conduct its
business as described in the Offering Memorandum, and has been duly
qualified as a foreign partnership for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of the failure to be so qualified in any such
jurisdiction except where the failure to so qualify would not have a
Material Adverse Effect; and (ii) each of the Company and the
Subsidiaries that are corporations has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its state of incorporation, with full power and authority (corporate
<PAGE>
and other) to own its properties and conduct its business as described
in the Offering Memorandum, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction
except where the failure to so qualify would not have a Material
Adverse Effect;
(e) Each of the Company and its Subsidiaries has the ownership
or authorized capitalizations, as the case may be, as set forth in the
Offering Memorandum, and all of the partnership interests of the
Subsidiaries that are partnerships and all of the issued shares of
capital stock of its Subsidiaries that are corporations have been duly
and validly authorized and issued and with respect to shares of capital
stock are fully paid and nonassessable; and all of the partnership
interests of the Subsidiaries disclosed in the Offering Memorandum as
being owned directly or indirectly by the Company and all of the issued
shares of capital stock of the Subsidiaries that are corporations
disclosed in the Offering Memorandum as being owned directly or
indirectly by the Company have been duly and validly authorized and
issued are fully paid and non-assessable and are owned directly or
indirectly by the Company free and clear of all liens, encumbrances,
equities or claims (other than liens to secure indebtedness under
credit facilities disclosed in the Offering Memorandum); and ownership
of the various interests and shares of the Company and its Subsidiaries
is as described in the Offering Memorandum;
(f) The Notes have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture under which they are to be issued, which will
be substantially in the form previously delivered to the Initial
Purchaser; the Indenture has been duly authorized by the Company and,
when executed and delivered by the Company and the Trustee, the
Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms against the Company, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Notes and the
Indenture will conform to the descriptions thereof in the Offering
Memorandum and will be in substantially the form previously delivered
to the Initial Purchaser;
(g) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Senior Notes) will violate or result in a violation of Section 7
of the Exchange Act, or any regulation promulgated thereunder,
including, without limitation, Regulations U and X of the Board of
Governors of the Federal Reserve System;
(h) Prior to the date hereof, none of the Company or any of
their affiliates (other than the Initial Purchaser or any person acting
on its behalf as to which the Company makes no representation) has
taken, directly or indirectly, any action which is designed to or which
has constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the
Company in connection with the offering of the Senior Notes;
(i) The Registration Rights Agreement has been duly authorized
by the Company and, when executed and delivered by the Company and the
Initial Purchaser, will constitute a valid and legally binding
instrument, enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
<PAGE>
Registration Rights Agreement will conform to the description thereof
in the Offering Memorandum and will be in substantially the form
previously delivered to the Initial Purchaser;
(j) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture, the
Registration Rights Agreement and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, sale/leaseback agreement, loan agreement or
other similar financing agreement or instrument or other agreement or
instrument (including, without limitation, any license or franchise
granted to the Company or one of its Subsidiaries by a local
franchising governmental body) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or has rights under or to which any of the
property or assets of the Company or any of its Subsidiaries is
subject, nor will such action result in any violation of the provisions
of the certificate of incorporation or bylaws of the Company or its
Subsidiaries that are corporations or the certificates of limited
partnership or the partnership agreements of its Subsidiaries that are
partnerships or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Notes or the consummation by the Company
of the transactions contemplated by this Agreement, the Indenture or
the Registration Rights Agreement, other than (i) such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Senior Notes by the Initial Purchaser,
(ii) the filing of a registration statement by the Company with the
Commission pursuant to the Act pursuant to the Registration Rights
Agreement, and (iii) such other consents, approvals, authorizations,
registrations or qualifications as may be required under the Act, state
or foreign securities or Blue Sky laws in connection with the exchange,
offer or resale registration contemplated in the Offering Memorandum
and described in the Registration Rights Agreement in connection with
the purchase and resale of the Senior Notes by the Initial Purchaser;
(k) None of the Company or its Subsidiaries is in violation of
its certificate of incorporation or bylaws, as the case may be, or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, sale/leaseback agreement, loan agreement or other
similar financing agreement or instrument or other agreement or
instrument (including, without limitation, any license or franchise
granted to the Company or a subsidiary by a local franchising
governmental body) to which the Company or a subsidiary is a party or
by which it or any of its properties may be bound, except for such
defaults as would not have individually or in the aggregate a Material
Adverse Effect;
(l) The statements set forth in the Offering Memorandum under
the caption "Description of the Notes," insofar as they purport to
constitute a summary of the terms of the Notes, and under the captions
"Business," and "Management's Discussion and Analysis of Financial
Condition and Results of Operations," insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair in all material respects;
(m) When the Senior Notes are issued and delivered pursuant to
this Agreement, the Senior Notes will not be of the same class (within
the meaning of Rule 144A under the Act) as securities of the Company
<PAGE>
which are listed on a national securities exchange registered under
Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system;
(n) None of the Company or its Subsidiaries is or, after
giving effect to the offering and sale of the Notes, will be an
"investment company", or an entity "controlled" by an "investment
company", as such terms are defined in the United States Investment
Company Act of 1940, as amended (the "Investment Company Act");
(o) None of the Company or any person acting on its or their
behalf (other than the Initial Purchaser, as to which the Company makes
no representation or warranty) has offered or sold the Senior Notes by
means of any general solicitation or general advertising within the
meaning of Rule 502(c) under the Act;
(p) Except for (i) the issuance of $325,000,000 aggregate
principal amount of the Company's Series B 9 1/4% Senior Notes due 2002
in exchange for previously issued and outstanding Series A 9 1/4%
Senior Notes due 2002, (ii) the issuance of $150,000,000 aggregate
principal amount of the Company's Series B 10 1/2% Senior Notes due
2004 in exchange for previously issued and outstanding Series A 10 1/2%
Senior Notes due 2004, (iii) the issuance of $350,000,000 aggregate
principal amount of the Company's Series B 9-7/8% Senior Notes due 2007
in exchange for previously issued and outstanding Series A 9-7/8%
Senior Notes due 2007, (iv) the issuance of $150,000,000 aggregate
principal amount of the Company's Series A 8-3/8% Senior Notes due 2008
and (v) the issuance of $150,000,000 aggregate principal amount of the
Company's Series B 8-3/8% Senior Notes due 2008 in exchange for
previously issued and outstanding Series A 8-3/8% Senior Notes due
2008, (vi) the issuance of $150,000,000 aggregate principal amount of
the Company's Series B 8-1/8% Senior Notes due 2003 in exchange for
previously issued and outstanding Series A 8-1/8% Senior Notes due
2003, within the preceding six months, none of the Company or any other
person acting on behalf of the Company (other than the Initial
Purchaser, as to which the Company makes no representation or warranty)
has offered or sold to any person any Notes, or any securities of the
same or a similar class as the Notes, other than Senior Notes offered
or sold to the Initial Purchaser hereunder. The Company will take
reasonable precautions designed to insure that any offer or sale,
direct or indirect, in the United States or to any U.S. person (as
defined in Rule 902 under the Act) of any Notes or any substantially
similar security issued by the Company, within six months subsequent to
the date on which the distribution of the Notes has been completed (as
notified by the Initial Purchaser), is made under restrictions and
other circumstances reasonably designed not to affect the status of the
offer and sale of the Notes in the United States and to U.S. persons
contemplated by this Agreement as transactions exempt from the
registration provisions of the Act;
(q) None of the Company or any of their affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(r) Other than as set forth in the Offering Memorandum
(including those matters referred to therein relating to general
rulemakings and similar matters relating generally to the cable
television industry), there are no legal or governmental proceedings
pending to which the Company or any of its Subsidiaries is a party or
of which any property of the Company or any of its Subsidiaries is the
subject which, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
<PAGE>
or by others; and except with respect to general rulemakings and
similar matters relating generally to the cable television industry,
during the time the Systems (as defined below) have been owned by the
Company or a subsidiary (i) there has been no adverse judgment, order,
or decree issued by the United States Federal Communications Commission
(the "FCC") relating to any of the Systems that has not been disclosed
in the Offering Memorandum that would be required to be disclosed in a
public offering registered under the Act; (ii) there are no actions,
suits, proceedings, inquiries or investigations by the FCC pending or
threatened in writing against or affecting the Company, any of its
Subsidiaries or any System; and (iii) to the Company's knowledge, after
due inquiry, there is no reasonable basis for any such action, suit,
proceeding or investigation;
(s) Deloitte & Touche LLP, who have reported on the financial
statements of the Company, is an independent public accountant within
the meaning of the Act and the rules and regulations of the Commission
thereunder;
(t) This Agreement has been duly authorized, executed and
delivered by the Company;
(u) Except for matters covered by paragraph (x) below or with
respect to matters that would not individually or in the aggregate have
a Material Adverse Effect, (i) the Company and its Subsidiaries have
made all filings, recordings and registrations with, and possess all
validations or exemptions, approvals, orders, authorizations, consents,
licenses, certificates and permits from, the FCC, applicable public
utilities and other federal, state and local regulatory or governmental
bodies and authorities or any subdivision thereof, including, without
limitation, cable television franchises, pole attachment agreements,
and cable antenna relay service, broadcast auxiliary, earth station,
business radio, microwave or special safety radio service licenses
issued by the FCC (collectively, the "Authorizations") necessary or
appropriate to own, operate and construct the cable communication
systems owned by them (the "Systems") or otherwise for the operation of
their businesses and are not in violation thereof; (ii) all such
Authorizations are in full force and effect, and no event has occurred
that permits, or after notice or lapse of time could permit, the
revocation, termination or modification of any Authorization which is
necessary or appropriate to own, operate and construct the Systems or
otherwise for the operation of any such business; (iii) none of the
Company or any of its Subsidiaries is in violation of any duty or
obligation required by the United States Communications Act of 1934, as
amended (the "Communications Act"), or any FCC rule or regulation
applicable to the operation of any portion of any of the Systems; (iv)
none of the Company or any of its Subsidiaries is in violation of any
duty or obligation required by state or local laws, or local rules or
regulations applicable to the operation of any portion of any of the
Systems; (v) there is not pending or, to the best knowledge of the
Company or any of its Subsidiaries, threatened, any action by the FCC
or state or local regulatory authority to modify, revoke, cancel,
suspend or refuse to renew any Authorization; (vi) other than as
described in the Offering Memorandum, there is not now issued or
outstanding or, to the best knowledge of the Company or any of its
Subsidiaries, threatened, any notice of any hearing, material violation
or material complaint against the Company or any of its Subsidiaries
with respect to the operation of any portion of the Systems and none of
the Company or its Subsidiaries has any knowledge that any person
intends to contest renewal of any material Authorization;
(v) (i) (A) The Company and its Subsidiaries have entered
into, or have rights under, all required programming agreements
(including, without limitation, all non-broadcast affiliation
agreements under which the Company and its Subsidiaries are accorded
retransmission rights relating to programming that the Systems provide
<PAGE>
to their customers) that are material to the conduct of their business
as described in the Offering Memorandum; and (B) all such material
agreements are in full force and effect and none of the Company, any of
its Subsidiaries or any of its affiliates has received any written
notice of revocation or material modifications of such material
agreements; and (ii)(A) either the Company or its Subsidiaries has
entered into agreements with the television stations that have notified
the Company or its Subsidiaries that such station's respective consent
is required to carry such stations on the Systems or has ceased
carrying such stations; (B) all such agreements grant the Company or
one of its Subsidiaries retransmission consent in exchange for various
non-cash consideration; and (C) all such agreements are in full force
and effect and are not subject to revocation (except in the case of
material breach by the Company or its Subsidiaries) or material
modifications, and no event has occurred that permits, or after notice
or lapse of time could permit, the revocation, termination or material
modification of any such agreement, except where the failure of such
agreements to be in full force and effect or such revocation would not,
in either case, individually or in the aggregate have a Material
Adverse Effect;
(w) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, (i) all registration
statements and all other documents (including but not limited to annual
reports) required by the FCC in connection with the operation of the
Systems have been filed with the FCC; (ii) all frequencies within the
restricted aeronautical and navigational bands (i.e., 108-136 MHz and
225-400 MHz) which are currently being used in connection with the
operation of the Systems have been authorized for such use by the FCC;
(iii) each of the Systems subject to Equal Employment Opportunity
Commission ("EEO") compliance certification by the FCC has been
certified by the FCC for annual EEO compliance during the time such
Systems have been owned by the Company or its Subsidiaries; and (iv)
all towers associated with the Systems are in compliance with the rules
and regulations of the United States Federal Aviation Administration;
(x) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, none of the Company or any of
its Subsidiaries is in breach or violation of, or in default under, any
of the terms, conditions or provisions of the Communications Act or the
rules, regulations or policies of the FCC thereunder;
(y) (i) Except for matters that would not individually or in
the aggregate have a Material Adverse Effect, all statements of
accounts and any other filings that are required under Section 111 of
the United States Copyright Act of 1976, as amended, in connection with
the retransmission of any broadcast television and radio signals on the
Systems have been timely filed with the United States Copyright Office
and indicated royalty payments have been made for each System for each
accounting period during which such Systems have been owned by the
Company or its Subsidiaries; (ii) none of the Company, any of its
Subsidiaries or any System has received any inquiry or request from the
United States Copyright Office or from any other party challenging or
questioning any such statements of account or royalty payments; and
(iii) no claim of copyright infringement has been made or threatened in
writing against the Company, any of its Subsidiaries or any System;
(z) Neither the execution and delivery of this Agreement, the
Indenture or the Registration Rights Agreement, nor the consummation of
the transactions contemplated hereby and thereby or by the Offering
Memorandum under "Use of Proceeds," nor compliance with the terms,
conditions and provisions thereof by the Company, will conflict with
the Communications Act or the rules, regulations or policies of the FCC
<PAGE>
thereunder, or will cause any suspension, revocation, impairment,
forfeiture, nonrenewal or termination of any material license, permit,
franchise, certificate, consent, authorization, designation,
declaration, filing, registration or qualification; and
(aa) Neither the execution and delivery of this Agreement, the
Indenture or the Registration Rights Agreement, nor the execution,
delivery, offer, issuance and sale of the Notes, nor compliance with
the terms, conditions and provisions thereof by the Company, requires
any license, permit, franchise, certificate, consent, authorization,
designation, declaration, filing, registration or qualification by or
with the FCC.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless the Initial Purchaser and each person, if any, who
controls the Initial Purchaser within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in the Offering Memorandum, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with the information relating to the Initial
Purchaser furnished in writing to the Company by or on behalf of the Initial
Purchaser expressly for use in connection therewith.
(b) If any action, suit or proceeding shall be brought against
the Initial Purchaser or any person controlling the Initial Purchaser in respect
of which indemnity may be sought against the Company, the Initial Purchaser or
such controlling person shall promptly notify the parties against whom
indemnification is being sought (the "indemnifying parties"), and such
indemnifying parties shall assume the defense thereof, including the employment
of counsel and payment of all fees and expenses. The Initial Purchaser or any
such controlling person shall have the right to employ separate counsel in any
such action, suit or proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the Initial
Purchaser or such controlling person unless (i) the indemnifying parties have
agreed in writing to pay such fees and expenses, (ii) the indemnifying parties
have failed to assume the defense and employ counsel, or (iii) the named parties
to any such action, suit or proceeding (including any impleaded parties) include
both the Initial Purchaser or such controlling person and the indemnifying
parties and the Initial Purchaser or such controlling person shall have been
advised in writing by its counsel that representation of such indemnified party
and any indemnifying party by the same counsel would be inappropriate under
applicable standards of professional conduct (whether or not such representation
by the same counsel has been proposed) due to actual or potential differing
interests between them (in which case the indemnifying party shall not have the
right to assume the defense of such action, suit or proceeding on behalf of the
Initial Purchaser or such controlling person). It is understood, however, that
the indemnifying parties shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
the Initial Purchaser and controlling persons not having actual or potential
differing interests with the Initial Purchaser or among themselves, which firm
shall be designated in writing by Barclays Capital Inc., and that all such fees
and expenses shall be reimbursed as they are incurred. The indemnifying parties
shall not be liable for any settlement of any such action, suit or proceeding
effected without their written consent, but if settled with such written
consent, or if there be a final judgment for the plaintiff in any such action,
suit or proceeding, the indemnifying parties agree to indemnify and hold
<PAGE>
harmless the Initial Purchaser, to the extent provided in paragraph (a), and any
such controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) The Initial Purchaser agrees to indemnify and hold
harmless the Company and its directors and officers, and any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the indemnity from the Company to the Initial
Purchaser set forth in paragraph (a) hereof, but only with respect to Initial
Purchaser Information furnished in writing by or on behalf of the Initial
Purchaser expressly for use in the Offering Memorandum. If any action, suit or
proceeding shall be brought against the Company, any of its directors or
officers, or any such controlling person based on the Offering Memorandum, and
in respect of which indemnity may be sought against the Initial Purchaser
pursuant to this paragraph (c), the Initial Purchaser shall have the rights and
duties given to the Company by paragraph (b) above (except that if the Company
shall have assumed the defense thereof, the Initial Purchaser shall not be
required to do so, but may employ separate counsel therein and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
Initial Purchaser's expense), and the Company, its directors and officers, and
any such controlling person shall have the rights and duties given to the
Initial Purchaser by paragraph (b) above. The foregoing indemnity agreement
shall be in addition to any liability which the Initial Purchaser may otherwise
have.
(d) If the indemnification provided for in this Section 6 is
unavailable (except if inapplicable according to its terms) to an indemnified
party under paragraphs (a) or (c) hereof in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then an indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Initial Purchaser on the other hand from the offering of the Senior
Notes, or (ii) if the allocation provided by clause (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Initial Purchaser on the other in connection
with the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the Initial
Purchaser on the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the
Company bear to the total discounts and commissions received by the Initial
Purchaser. The relative fault of the Company on the one hand and the Initial
Purchaser on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or by the Initial Purchaser on the other
hand and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and the Initial Purchaser agree that it would
not be just and equitable if contribution pursuant to this Section 6 were
determined by a pro rata allocation or by any other method of allocation that
does not take account of the equitable considerations referred to in paragraph
(d) above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to in paragraph (d)
above shall be deemed to include, subject to the limitations set forth above,
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating any claim or defending any such action, suit or
proceeding. Notwithstanding the provisions of this Section 6, the Initial
Purchaser shall not be required to contribute any amount in excess of the amount
by which the total price of the Senior Notes purchased by it and distributed to
the purchasers pursuant to Exempt Resales exceeds the amount of any damages
<PAGE>
which the Initial Purchaser has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 6 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred but only
to the extent that such losses, claims, damages, liabilities or expenses are
required to be paid by an indemnified party. The indemnity and contribution
agreements contained in this Section 6 and the representations and warranties of
the Company set forth in this Agreement shall remain operative and in full force
and effect, regardless of (i) any investigation made by or on behalf of the
Initial Purchaser or any person controlling the Initial Purchaser, the Company,
its directors or officers or any person controlling the Company, (ii) acceptance
of any Senior Notes and payment therefor hereunder, and (iii) any termination of
this Agreement. A successor to the Initial Purchaser or any person controlling
the Initial Purchaser, or to the Company, its directors or officers or any
person controlling the Company, shall be entitled to the benefits of the
indemnity, contribution and reimbursement agreements contained in this Section
6.
(g) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity could have been sought hereunder by
such indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such action, suit or proceeding.
7. Conditions of the Initial Purchaser's Obligation. The
obligation of the Initial Purchaser to purchase the Senior Notes hereunder is
subject to the following conditions:
(a) At the time of execution of this Agreement and on the
Closing Date, no order or decree preventing the use of the Offering Memorandum,
or any order asserting that the transactions contemplated by this Agreement are
subject to the registration requirements of the Act shall have been issued and
no proceedings for that purpose shall have been commenced or shall be pending
or, to the knowledge of the Company, be contemplated. No stop order suspending
the sale of the Senior Notes in any jurisdiction designated by the Initial
Purchaser shall have been issue and no proceedings for that purpose shall have
been commenced or shall be pending or, to the knowledge of the Company, shall be
contemplated.
(b) Subsequent to the date as of which information is given in
the Offering Memorandum, except as otherwise stated in the Offering Memorandum,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Company or its
Subsidiaries not contemplated by the Offering Memorandum, which in the opinion
of the Initial Purchaser, would materially adversely affect the market for the
Senior Notes, or (ii) any event or development relating to or involving the
Company, any of its Subsidiaries or any officer or director of the Company or
any of its Subsidiaries which makes any statement made in the Offering
Memorandum untrue or which, in the opinion of the Company and its counsel or the
Initial Purchaser and its counsel, requires the making of any addition to or
change in the Offering Memorandum in order to state a material fact required by
any law to be stated therein or necessary in order to make the statements
therein not misleading, if amending or supplementing the Offering Memorandum to
reflect such event or development would, in the opinion of the Initial
Purchaser, materially adversely affect the market for the Senior Notes.
<PAGE>
(c) The Final Offering Memorandum shall have been printed and
copies thereof distributed to the Initial Purchaser in such quantities as shall
have been previously specified by the Initial Purchaser not later than 9:00
A.M., New York City time, on November 10, 1998, or at such later date and time
as the Initial Purchaser may approve in writing.
(d) The Initial Purchaser shall have received on the Closing
Date an opinion of Buchanan Ingersoll Professional Corporation, counsel for the
Company, dated the Closing Date and addressed to the Initial Purchaser, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the state of its formation with full corporate power and authority to
own its properties and conduct its business as described in the
Offering Memorandum;
(ii) This Agreement has been duly authorized,
executed and delivered by the Company;
(iii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company;
(iv) The Notes have been duly authorized and, when
issued and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the benefits
provided by the Indenture and enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles and further except that (a) rights to contribution or
indemnification may be limited by the laws, rules or regulations of any
governmental authority or agency thereof or by public policy, and (b)
waivers as to usury, stay or extension laws may be unenforceable; and
the Notes and the Indenture conform in all material respects to the
descriptions thereof in the Offering Memorandum;
(v) The Indenture has been duly authorized, executed
and delivered by the Company and will constitute a valid and legally
binding instrument, enforceable in accordance with its terms against
the Company, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles and further except that (a) rights to contribution or
indemnification may be limited by the laws, rules or regulations of any
governmental authority or agency thereof or by public policy, and (b)
waivers as to usury, stay or extension laws may be unenforceable;
(vi) The Registration Rights Agreement has been duly
authorized by the Company and, when executed and delivered by the
parties thereto, will constitute a valid and legally binding
instrument, enforceable in accordance with its terms against the
Company, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights, to general equity
principles and further except that (a) rights to contribution or
indemnification may be limited by the laws, rules or regulations of any
governmental authority or agency thereof or by public policy and (b)
waivers as to usury, stay or extension laws may be unenforceable; and
the Registration Rights Agreement will conform in all material respects
to the description thereof in the Offering Memorandum;
<PAGE>
(vii) The issue and sale of the Notes and the
compliance by the Company with all of the provisions of the Notes, the
Indenture, the Registration Rights Agreement and this Agreement and the
consummation of the transactions herein and therein contemplated will
not contravene the provisions of the certificate of incorporation and
bylaws of the Company, or to the best of our knowledge, any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company;
(viii) The statements set forth in the Offering
Memorandum under the caption "Description of the Notes," insofar as
they purport to constitute a summary of the terms of the Notes and the
statements set forth in the Offering Memorandum under the caption
"Management's Discussion and Analysis of Financial Condition and
Results of Operations--Liquidity and Capital Resources--Financing
Activities," insofar as they purport to describe the debt instruments
referred to therein are, when taken together with the other information
included in the Offering Memorandum, accurate in all material respects;
(ix) No registration of the Senior Notes under the
Act, and no qualification of an indenture under the 1939 Act with
respect thereto, is required for the offer, sale and initial resale of
the Senior Notes by the Initial Purchaser in the manner contemplated by
this Agreement: and
(x) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act.
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Initial Purchaser at which the contents of the Offering Memorandum and
related matters were discussed and, although such counsel is not passing upon
and does not assume any responsibility for and has not verified the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum,
and has not made any independent check or verification thereof, on the basis of
the foregoing (relying as to materiality to the extent such counsel deemed
appropriate upon facts provided by officers and other representatives of the
Company), no facts have come to the attention of such counsel that lead such
counsel to believe that the Offering Memorandum, as of its date or as of the
Closing Date, contained or contains any untrue statement of material fact or
omitted or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief or
opinion with respect to the financial statements and other financial and
statistical data included therein).
The opinion of such counsel may be limited to the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States.
(e) The Initial Purchaser shall have received on the Closing
Date an opinion of Randall D. Fisher, Esq., General Counsel of the Company,
dated the Closing Date and addressed to the Initial Purchaser to the effect
that:
(i) Except as set forth in the Offering Memorandum,
each of the Company and its Subsidiaries has all of the licenses,
permits, franchises and authorizations, if any, required by the
relevant governmental authorities of each of New York, Virginia,
Pennsylvania, Ohio, New Jersey, Massachusetts, New Hampshire, Vermont,
Michigan and Connecticut and/or its political subdivisions for the
provision of cable television service (as such counsel understands
service to be provided which may be based on a certificate of an
officer of the Company, provided that such counsel shall state that
<PAGE>
they believe that both the Initial Purchaser and he are justified in
relying on such certificate), where the failure to obtain or hold such
license, permit, franchise or authorization would have a Material
Adverse Effect;
(ii) To the best of such counsel's knowledge after
due inquiry, each of the Company and its Subsidiaries has made all
filings, reports, applications and submissions required by the laws and
ordinances relating to cable services of each of New York, Virginia,
Pennsylvania, Ohio, New Jersey, Massachusetts, New Hampshire, Vermont,
Michigan and Connecticut, and the ordinances of the state's political
subdivisions relating thereto, and the rules and regulations
promulgated therewith;
(iii) Each of the Company and its Subsidiaries has
the consents, approvals, authorizations, licenses, certificates,
permits, or orders of any governmental authorities of the each of New
York, Virginia, Pennsylvania, Ohio, New Jersey, Massachusetts, New
Hampshire, Vermont, Michigan and Connecticut, and its political
subdivisions, if any, required for the consummations of the
transactions contemplated in the Purchase Agreement where the failure
to obtain the consents, approvals, authorizations, licenses,
certificates, permits or orders would have a Material Adverse Effect;
(iv) There are no actions, suits or proceedings
pending or, to the best of such counsel's knowledge, threatened by or
before any court or governmental body each of New York, Virginia,
Pennsylvania, Ohio, New Jersey, Massachusetts, New Hampshire, Vermont,
Michigan and Connecticut, against or affecting any of the Company or
its Subsidiaries, or the business of the Company and its Subsidiaries;
(v) The statements in the Offering Memorandum under
the headings "Risk Factors - Regulation in the Telecommunications
Industry" and "Risk Factors - Competition," insofar as they relate to
the Company and its Subsidiaries operations in each of New York,
Virginia, Pennsylvania, Ohio, New Jersey, Massachusetts, New Hampshire,
Vermont, Michigan and Connecticut, and purport to describe the
provisions of the laws and documents referred to therein, are accurate,
complete and fair in all material respects; and
(vi) Neither the execution and delivery of the
Purchase Agreement nor the offering of the Senior Notes contemplated
thereby will conflict with or result in a violation of any order or
regulation of each of New York, Virginia, Pennsylvania, Ohio, New
Jersey, Massachusetts, New Hampshire, Vermont, Michigan and
Connecticut, or its political subdivisions applicable to the Company
and its Subsidiaries, the conflict with or the violation of which would
have a material adverse effect on the Company and its Subsidiaries.
(f) The Initial Purchaser shall have received on the Closing
Date an opinion of Colin H. Higgin, Deputy General Counsel to the Company, dated
the Closing Date and addressed to the Initial Purchaser, to the effect that:
(i) None of the Company or its Subsidiaries is in
violation of its certificate of incorporation, by-laws, certificate of
limited partnership or partnership agreement, as applicable, or in
default in the performance or observance of any material obligation,
covenant or condition contained in any partnership agreement,
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
<PAGE>
(ii) Each of the Company and its Subsidiaries has
been duly qualified as a foreign corporation or partnership, as the
case may be, for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction,
except where the failure to so qualify would not have a Material
Adverse Effect (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company, provided
that such counsel shall state that he believes that both the Initial
Purchaser and he are justified in relying upon such opinions and
certificates);
(iii) Each subsidiary of the Company is owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (other than liens to secure
indebtedness under credit facilities disclosed in the Offering
Memorandum) (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company or its
Subsidiaries, provided that such counsel shall state that he believes
that both the Initial Purchaser and he are justified in relying upon
such opinions and certificates);
(iv) To the best of such counsel's knowledge and
other than as set forth in the Offering Memorandum, there are no legal
or governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any property of the Company or any
of its Subsidiaries is the subject which, if determined adversely to
the Company or any of its Subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, shareholder's equity, partners'
equity, or results of operations of the Company and its Subsidiaries;
and, to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(v) The issue and sale of the Notes and the
compliance by the Company with all of the provisions of the Notes, the
Indenture, the Registration Rights Agreement and this Agreement and the
consummation of the transactions herein and therein contemplated will
not, to the best of my knowledge after due inquiry, conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under any material indenture, mortgage, deed of
trust, sale/leaseback transaction, loan agreement or other similar
financing agreement, or instrument or other agreement or instrument
(including, without limitation, any license or franchise granted to the
Company or a Subsidiary by a local franchising governmental body) to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the certificate of incorporation, by-laws, the
certificate of limited partnership or the partnership agreements of the
Company and its Subsidiaries, as appropriate, or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its Subsidiaries or any
of their properties; and
(vi) No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Senior Notes
or the consummation by the Company of the transactions contemplated by
this Agreement, the Indenture or the Registration Rights Agreement,
except such consents, approvals, authorizations, registrations or
<PAGE>
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and resale of the Senior Notes by
the Initial Purchaser.
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Initial Purchaser at which the contents of the Offering Memorandum and
related matters were discussed and, although such counsel is not passing upon
and does not assume any responsibility for and has not verified the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum,
and has not made any independent check or verification thereof, on the basis of
the foregoing (relying as to materiality to the extent such counsel deemed
appropriate upon facts provided by officers and other representatives of the
Company), no facts have come to the attention of such counsel that lead such
counsel to believe that the Offering Memorandum, as of its date or as of the
Closing Date, contained or contains any untrue statement of material fact or
omitted or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief or
opinion with respect to the financial statements and other financial and
statistical data included therein).
(g) The Initial Purchaser shall have received on the Closing
Date an opinion of Fleischman & Walsh, P.C., special regulatory counsel for the
Company and its Subsidiaries, dated the Closing Date, and addressed to the
Initial Purchaser to the effect that:
(i) The communities listed in Section A of Attachment
1 to the opinion have been registered with the FCC in connection with
the operation of the Systems. The filing of a registration statement
constitutes initial FCC authorization for the commencement of cable
television operations in the community registered.
(ii) The Subsidiaries hold certain FCC licenses, as
that term is defined below ("FCC Licenses"). All FCC Licenses and
receive-only earth station registrations held by the Subsidiaries in
connection with the operation of the Cable Systems are listed on
Attachment 1 to the Opinion. To the best of our knowledge, all such FCC
Licenses have been validly issued or assigned to the present licensee
and are currently in full force and effect. We have no knowledge of any
event which would allow, or after notice or lapse of time which would
allow, revocation or termination of any FCC License held by the
Subsidiaries or would result in any other material impairment of the
rights of the holder of such license. To the best of our knowledge, no
other FCC Licenses are required in connection with the operation of the
Cable Systems by the Subsidiaries in the manner we have advised they
are presently being operated. For the purposes of this opinion, an FCC
License is defined as an authorization, or renewal thereof, issued by
the FCC authorizing the transmission of radio energy through the
airways.
(iii) Other than proceedings affecting the cable
television industry generally, there is no action, suit or proceeding
pending before or, to the best of our knowledge, threatened by the FCC
which is reasonably likely to have a materially adverse impact upon the
cable television operations of the Company and its Subsidiaries taken
as a whole.
(iv) To the best of our knowledge after due inquiry,
the Company and the Subsidiaries have filed all current and routine
filings, reports, applications and submissions required under the
Communications Act, as amended, and under the rules and regulations of
the FCC.
<PAGE>
(v) The Subsidiaries hold all authorizations and/or
have filed all notifications required by the FCC in connection with
their operation on all frequencies in the 108-137 MHz and 225-400 MHz
bands which we have been advised are currently being utilized on the
Cable Systems. The geographic and technical parameters with respect to
the authorized use of these frequencies are listed on Attachment 1
hereto.
(vi) The employment units covered by the Cable
Systems and operated by the Subsidiaries have been certified, where
required, by the FCC for compliance with equal employment opportunity
("EEO") requirements in each of calendar years 1992 through 1996 in
which such Cable Systems have been owned and operated by the Company or
the Subsidiaries. Employment certification records for the years prior
to 1992 have been purged from the FCC's database and are therefore
outside the scope of this opinion.
(vii) Statements of Account required by Section 111
of the Copyright Act of 1976, as amended have been filed, together with
royalty payments accompanying said Statements of Account, with the U.S.
Copyright Office for the Cable Systems covering each of the accounting
periods beginning with January 1 through June 30, 1994 accounting
period and ending with the July 1 through December 31, 1996 accounting
period during which such Cable Systems have been operated by the
Subsidiaries. We have not received the information or calculations
contained in these Statements, and express no opinion with respect to
the accuracy thereof. To the best of our knowledge, there are no
currently outstanding inquiries received from the U.S. Copyright Office
or any other party which question the copyright filings or payments
made by the Company or the Subsidiaries with respect to the Cable
Systems. It is possible that there may be matters pending before the
U.S. Copyright Office relating to the Cable Systems, the Company or the
Subsidiaries of which we do not have knowledge because such matters
have not yet been incorporated into the available public files of the
U.S. Copyright Office. However, we are not aware of the pending or
threatened claim, action or demand for copyright infringement or for
non-payment of royalties with respect to the Statements of Account or
related royalty payments filed by the Company and the Subsidiaries for
the Cable Systems.
(viii) The Company has obtained all consents,
approvals and of the FCC, if any, required for the consummation of the
transactions of the transactions contemplated in the Purchase Agreement
where the failure to obtain the consents, approval, authorizations,
licenses, certificates, permits or orders would reasonably be expected
to have a materially adverse impact on the Company or the Subsidiaries.
(ix) Neither the execution and delivery of the
Purchase Agreement nor the offering of the Senior Notes contemplated
thereby will conflict with or result in a violation of any order or
regulation of the FCC applicable to the Company and the Subsidiaries,
the conflict with or the violation of which would reasonably be
expected to have a materially adverse impact on the Company or the
Subsidiaries. However, we call your attention to the following.
(x) Under the Act as now in effect, the sale or other
disposition of certain pledged collateral and the exercise of certain
other rights and remedies conferred upon you by any agreement or by
applicable law might constitute an assignment of an FCC licensee, or
transfer of control of an FCC license, requiring for its consummation
the prior consent of the FCC granted upon an appropriate application
thereof.
<PAGE>
(xi) Under the Act as now in effect, and as now
interpreted by the FCC, no valid security interest may be granted in an
FCC license. To the extent that the Purchase Agreement and/or related
financing documents purport to grant to you a security interest in any
FCC licenses, such security interest may not be legally enforceable.
(xii) In the course of our representation of the
Company and its Subsidiaries, no matters have come to our attention,
other than matters affecting the cable television industry generally,
which would reasonable be expected to have a materially adverse impact
upon the cable television operations of the Company and the
Subsidiaries taken as a whole.
(xiii) In our opinion, the Statements in the Offering
Memorandum under the headings "Risk Factors Regulation in the
Telecommunications Industry" and "Risk Factors - Competition," insofar
as the purport to describe the provisions of the law referred to
therein, are accurate, complete and fair in all material respects.
(h) The Initial Purchaser shall have received on the Closing
date an opinion, of Latham & Watkins, counsel for the Initial Purchaser, dated
the Closing Date, and addressed to the Initial Purchaser, with respect to such
matters as the Initial Purchaser may reasonably request, and such counsel shall
have received such certificates, documents and information as they may
reasonably request to enable them to pass upon such matters.
(i) The Initial Purchaser shall have received letters
addressed to the Initial Purchaser, and dated the date hereof and the Closing
Date from Deloitte & Touche LLP, independent certified public accountants,
substantially in the forms heretofore approved by the Initial Purchaser and its
counsel.
(j)(i) There shall not have been any decrease in stockholders'
equity of the Company nor any material increase in the short-term or long-term
debt of the Company (other than in the ordinary course of business) from that
set forth or specifically contemplated in the Offering Memorandum; (ii) the
Company and its Subsidiaries shall not have any liabilities or obligations,
direct or contingent (whether or not in the ordinary course of business), that
are material to the Company and it subsidiaries, taken as a whole, other than
those reflected in the Offering Memorandum; and (iii) all the representations
and warranties of the Company contained in this Agreement shall be true and
correct in all material respects on and as of the date hereof and on and as of
the Closing Date as if made on and as of the Closing Date, and the Initial
Purchaser shall have received a certificate, dated the Closing Date and signed
by the Chief Executive Officer and the Chief Financial Officer of the Company
(or such other officers as are acceptable to the Initial Purchaser), to the
effect set forth in this Section 7(j) and in Section 7(k) hereof.
(k) The Company shall not have failed at or prior to the
Closing Date to have performed or complied in all material respects with any of
its agreements herein contained and required to be performed or complied with by
it hereunder at or prior to the Closing Date.
(l) There shall not have been any announcement by any
"nationally recognized statistical rating organization," as defined for purposes
of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to
any class of securities of the Company or any of its Subsidiaries, or (ii) it is
reviewing its ratings assigned to any class of securities of the Company or any
of its Subsidiaries with a view to possible downgrading, or with negative
implications, or direction not determined.
(m) The Senior Notes shall have been approved for trading in
the PORTAL Market.
<PAGE>
(n) The Company shall have obtained, in writing, all consents
and waivers required under the terms of any of its material agreements necessary
to ensure that the transactions contemplated by this Agreement and the other
Operative Documents will not conflict with or constitute a breach of, or a
default under any of such agreements. The Company shall have furnished
photocopies of such waivers and consents, if any, to the Initial Purchaser.
(o) The Company shall have furnished or caused to be furnished
to the Initial Purchaser such further certificates and documents as the Initial
Purchaser or its counsel shall have requested.
All such opinions, certificates, letters, consents, waivers
amendments and other documents will be in compliance with the provisions hereof
only if they are reasonably satisfactory in form and substance to the Initial
Purchaser and counsel for the Initial Purchaser. Any certificate or document
signed by any officer of the Company and delivered to the Initial Purchaser, or
to counsel for the Initial Purchaser, shall be deemed a representation and
warranty by the Company to the Initial Purchaser as to the statements made
therein.
8. Expenses. The Company agrees to pay the following costs,
expenses and fees and all other costs and expenses incident to the performance
by it of any of its obligations hereunder: (i) the preparation and reproduction
of the Offering Memorandum (including, without limitation, financial statements
thereto), and each amendment or supplement to any of them, this Agreement and
the Indenture; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Offering Memorandum, and all amendments or supplements thereto as
may be reasonably requested for use in connection with the offering and sale of
the Senior Notes; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Notes, including any stamp taxes in connection
with the original issuance and sale of the Notes; (iv) the printing (or
reproduction) and delivery of this Agreement, the preliminary and supplemental
Blue Sky Memoranda and all other agreements or documents printed (or reproduced)
and delivered in connection with the offering of the Senior Notes; (v) the
application for quotation of the Notes on the PORTAL Market; (vi) the
qualification of the Senior Notes for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 4(e) hereof
(including the reasonable fees, expenses and disbursements of counsel for the
Initial Purchaser relating to the preparation, printing or reproduction, and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
qualification); (vii) the performance by the Company of its obligations under
the Registration Rights Agreement; (viii) fees and expenses of the Trustee and
its counsel; (ix) the transportation and other expenses, if any, incurred by or
on behalf of the Company representatives in connection with presentations to
prospective purchasers of the Senior Notes; and (x) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel, if any) for the Company. The Company hereby agrees that they
will pay in full on the Closing Date the fees and expenses referred to in clause
(vi) of this Section 8 by delivering to counsel for the Initial Purchaser on
such date a check payable to such counsel in the requisite amount.
9. Effective Date of Agreement. This Agreement shall become
effective upon the execution and delivery hereof by all the parties hereto.
10. Termination of Agreement. This Agreement shall be subject
to termination in the absolute discretion of the Initial Purchaser, without
liability on the part of the Initial Purchaser to the Company, by notice to the
Company, if prior to the Closing Date, (i) trading in securities generally on
the New York Stock Exchange, the American Stock Exchange or the Nasdaq National
<PAGE>
Market shall have been suspended or materially limited, (ii) a general
moratorium on commercial banking activities in New York shall have been
declared, or (iii) there shall have occurred any outbreak or escalation of
hostilities involving the United States or other domestic, foreign or
international calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States is
such as to make it, in the judgment of the Initial Purchaser, impracticable or
inadvisable to commence or continue the offering of the Senior Notes on the
terms set forth on the cover page of the Offering Memorandum or to enforce
contracts for the resale of the Senior Notes by the Initial Purchaser. Notice of
such termination may be given to the Company by telegram, telecopy or telephone
and shall be subsequently confirmed by letter.
11. Information Furnished by the Initial Purchaser. The
statements set forth in the last paragraph of the cover page of the Offering
Memorandum and the second to last paragraph on the inside cover page of the
Offering Memorandum, constitute the only Initial Purchaser Information furnished
by or on behalf of the Initial Purchaser as such information is referred to in
Sections 5(a) and 6 hereof.
12. Miscellaneous. Except as otherwise provided in Sections 4,
9 and 10 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of the
Company at Main at Water Street, Coudersport, PA 16915, Attention: Chief
Financial Officer with a copy to Buchanan Ingersoll Professional Corporation, 1
Oxford Center, 301 Grant Street, 20th Floor, Pittsburgh, PA 15219, Attention:
Carl E. Rothenberger, Jr., or (ii) if to the Initial Purchaser, addressed to
Barclays Capital Inc., 222 Broadway, New York, NY 10038, Attention: Manager,
Investment Banking Division, with a copy to Latham & Watkins, 885 Third Avenue,
New York, NY 10022, Attention: Robert Zuccaro.
This Agreement has been and is made solely for the benefit of
the Initial Purchaser, the Company and their respective directors, officers and
the controlling persons referred to in Section 6 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from the Initial Purchaser of any of the Senior Notes
in his status as such purchaser.
13. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York
and without regard to the conflicts of law principles thereof.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
[signature page follows]
<PAGE>
Please confirm that the foregoing correctly sets forth the
agreement between the Company and the Initial Purchaser.
Very truly yours,
ADELPHIA COMMUNICATIONS CORPORATION
By:/s/James R. Brown
Name: James R. Brown
Title: Vice President
Confirmed as of the date first above mentioned.
BARCLAYS CAPITAL INC.
By:/s/ Michael Bloom
Name: Michael Bloom
Title: Director
Exhibit 10.02
ADELPHIA COMMUNICATIONS CORPORATION
$100,000,000 7 1/2% Senior Notes due 2004
$300,000,000 7 3/4% Senior Notes due 2009
PURCHASE AGREEMENT
January 6, 1999
SALOMON SMITH BARNEY INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
LEHMAN BROTHERS INC.
NATIONSBANC MONTGOMERY SECURITIES LLC
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Adelphia Communications Corporation, a Delaware corporation
(the "Company"), proposes, upon the terms and conditions set forth herein, to
issue and sell to you as the initial purchasers (the "Initial Purchasers"),
$100,000,000 in aggregate principal amount of its 7 1/2% Senior Notes due 2004
(the "2004 Notes") and $300,000,000 in aggregate principal amount of its 7 3/4
Senior Notes due 2009 (the "2009 Notes") (the 2004 Notes and the 2009 Notes
being referred to collectively as the "Senior Notes"). The Senior Notes will (i)
have the terms and provisions which are summarized in the Offering Memorandum
(as defined herein), (ii) be in the forms specified by the Initial Purchasers
pursuant to Section 3 hereof, and (iii) be issued pursuant to the provisions of
an Indenture, to be dated as of January 13, 1999 (the "Indenture"), between the
Company and Bank of Montreal Trust Company, as trustee (the "Trustee"). Initial
Purchasers shall mean either the singular or plural as the context requires. The
use of the neuter in this Agreement shall include the feminine and masculine
wherever appropriate.
The Company wishes to confirm as follows its agreement with
you the Initial Purchasers in connection with the purchase and resale of the
Senior Notes.
1. Offering Memorandum. The Senior Notes will be offered and
sold to the Initial Purchasers without registration under the Securities Act of
1933, as amended (the "Act"), in reliance on an exemption pursuant to Section
4(2) under the Act. The Company has prepared an offering memorandum, dated
<PAGE>
January 6, 1999, which incorporates by reference the Company's Annual Report on
Form 10-K for the fiscal year ended March 31, 1998 which incorporates, in Items
7 and 8 to such Form 10-K, portions of the Form 10-K for the fiscal year ended
December 31, 1997 of Olympus Communications, L.P. and Olympus Capital
Corporation, as amended by the Company's Form 10-K/A for the fiscal year ended
March 31, 1998; the Company's quarterly reports on Form 10-Q for the quarters
ended June 30, 1998 and September 30, 1998; Forms 8-K for events dated June 29,
1998, July 2, 1998, August 3, 1998, August 18, 1998, September 10, 1998 and
November 9, 1998; and the definitive Proxy Statement dated September 11, 1998
(the "Offering Memorandum"), setting forth information regarding the Company,
the Senior Notes and the Exchange Notes (as defined herein). Any references
herein to the Offering Memorandum shall be deemed to include all amendments and
supplements thereto, if any. The Company hereby confirms that they have
authorized the use of the Offering Memorandum in connection with the offering
and resale of the Senior Notes by the Initial Purchasers.
The Company understands that the Initial Purchasers propose to
make offers (the "Exempt Resales") of the Senior Notes purchased by the Initial
Purchasers hereunder only on the terms set forth in the Offering Memorandum, and
Section 2 hereof, as soon as the Initial Purchasers deem advisable after this
Agreement has been executed and delivered, solely to (i) persons whom the
Initial Purchasers reasonably believe to be "qualified institutional buyers" as
defined in Rule 144A under the Act ("QIBs"), and (ii) to persons other than U.S.
persons in offshore transactions meeting the requirements of Rule 903 of
Regulation S under the Act ("Regulation S") (such persons also being referred to
herein as the "Eligible Purchasers").
It is understood and acknowledged that upon original issuance
thereof, and until such time as the same is no longer required under the
applicable requirements of the Act, the Senior Notes (and all securities issued
in exchange therefor, in substitution thereof) shall bear the following:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES THAT (1)
IT WILL NOT PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS NOTE AND THE LAST DATE ON WHICH THE
COMPANY, OR ANY AFFILIATE OF THE COMPANY, WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN
<PAGE>
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND (2) WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND, IN CONNECTION WITH
ANY TRANSFER OF THIS NOTE PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE. IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, WILL BE
REQUIRED TO FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A
TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF
THE ACT, AS USED HEREIN. THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" and "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE ACT.
It is also understood and acknowledged that holders
(including subsequent transferees) of the Senior Notes will have the
registration rights set forth in the registration rights agreement (the
"Registration Rights Agreement"), to be dated the Closing Date, in substantially
the form of Exhibit A hereto, for so long as such Senior Notes constitute
"Transfer Restricted Securities" (as defined in the Registration Rights
Agreement). Pursuant to the Registration Rights Agreement, the Company will
agree to file with the Securities and Exchange Commission (the "Commission")
under the circumstances set forth therein, (i) a registration statement under
the Act relating to the Company's 7 1/2% Senior Notes due 2004 and 7 3/4% Senior
Notes due 2009 (collectively, the "Exchange Notes") to be offered in exchange
for the Senior Notes (the "Registered Exchange Offer") and (ii) under certain
circumstances, a shelf registration statement pursuant to Rule 415 under the Act
relating to the resale by certain holders of the Senior Notes, and to use its
best efforts to cause such registration statements to be declared effective. As
used herein, the Senior Notes and the Exchange Notes are hereinafter referred to
collectively as the "Notes." This Agreement, the Indenture, the Notes and the
Registration Rights Agreement are hereinafter referred to collectively as the
"Operative Documents."
2. Agreements to Sell, Purchase and Resell. (a) The Company
hereby agrees, on the basis of the representations, warranties and agreements of
the Initial Purchasers contained herein and subject to all the terms and
conditions set forth herein, to issue and sell to the Initial Purchasers and,
upon the basis of the representations, warranties and agreements of the Company
herein contained and subject to all the terms and conditions set forth herein,
the Initial Purchasers agree to purchase from the Company, all of the 2004 Notes
and 2009 Notes, at a purchase price of 98.400% and 98.637%, respectively, of the
principal amount thereof. The Company shall not be obligated to deliver any of
the Senior Notes to be delivered hereunder except upon payment for all of the
Senior Notes to be purchased as provided herein.
(b) Each of the Initial Purchasers hereby represent and
warrant to the Company that it will offer the Senior Notes for sale upon the
terms and conditions set forth in this Agreement and in the Offering Memorandum.
Each of the Initial Purchasers severally hereby represents and warrants to, and
agrees with, the Company that it (i) is either a QIB or other institutional
"accredited investor," as defined in Rule 501(a)(1), (2), (3) or (7) under the
Act (each, an "Accredited Institution") in either case with such knowledge and
<PAGE>
experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an investment in the Senior Notes; (ii) is
purchasing the Senior Notes pursuant to a private sale exempt from registration
under the Act; (iii) in connection with the Exempt Resales, will solicit offers
to buy the Senior Notes only from, and will offer to sell the Senior Notes only
to, the Eligible Purchasers in accordance with this Agreement and on the terms
contemplated by the Offering Memorandum; and (iv) will not offer or sell the
Senior Notes, nor has it offered or sold the Senior Notes by, or otherwise
engaged in, any form of general solicitation or general advertising (within the
meaning of Regulation D; including, but not limited to, advertisements,
articles, notices or other communications published in any newspaper, magazine,
or similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or general
advertising) in connection with the offering of the Senior Notes. The Initial
Purchasers have advised the Company that the Initial Purchasers will initially
offer the 2004 Notes and 2009 Notes to Eligible Purchasers at a price of
100.000% and 100.000%, respectively, of the principal amount thereof, plus
accrued interest, if any, from the date of issuance of the Senior Notes. Such
price may be changed by the Initial Purchasers at any time thereafter without
notice.
The Initial Purchasers understand that the Company and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Sections 7(d) and 7(h) hereof, counsel to the Company and counsel to the Initial
Purchasers, will rely upon the accuracy and truth of the foregoing
representations, warranties and agreements and the Initial Purchasers hereby
consent to such reliance.
3. Delivery of the Notes and Payment Therefor. Delivery to the
Initial Purchasers of and payment for the Senior Notes shall be made at the
office of Latham & Watkins, 885 Third Avenue, Suite 1000, New York, New York
10022 at 9:00 A.M., New York City time, on January 13, 1999 (the "Closing
Date"). The place of closing for the Senior Notes and the Closing Date may be
varied by agreement between the Initial Purchasers and the Company.
The Senior Notes will be delivered to the Initial Purchasers
against payment of the purchase price therefor in immediately available funds.
The Senior Notes will be evidenced by two or more global securities in
definitive form (the "Global Notes") and will be registered in the name of Cede
& Co. as nominee of The Depository Trust Company ("DTC"). The Senior Notes to be
delivered to the Initial Purchasers shall be made available to the Initial
Purchasers in New York City for inspection and packaging not later than 9:30
A.M., New York City time, on the business day next preceding the Closing Date.
4. Agreements of the Company. The Company agrees with the
Initial Purchasers as follows:
(a) The Company will furnish to the Initial Purchasers,
without charge, such number of copies of the Offering Memorandum as the Initial
Purchasers may reasonably request.
(b) The Company will not make any amendment or supplement to
the Offering Memorandum of which the Initial Purchasers shall not previously
have been advised or to which the Initial Purchasers shall reasonably object
after being so advised, including by way of filing any document with the
Commission that would be incorporated therein by reference.
<PAGE>
(c) The Company consents to the use of the Offering Memorandum
in accordance with the securities or Blue Sky laws of the jurisdictions in which
the Senior Notes are offered by the Initial Purchasers and by dealers to whom
Senior Notes may be sold, in connection with the offering and sale of the Senior
Notes.
(d) If, at any time prior to completion of the distribution of
the Senior Notes by the Initial Purchasers to Eligible Purchasers, any event
shall occur that in the judgment of the Company, or in the opinion of counsel
for the Initial Purchasers, should be set forth in the Offering Memorandum in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to supplement or
amend the Offering Memorandum in order to comply with any law, the Company will
forthwith prepare an appropriate supplement or amendment thereto, and will
expeditiously furnish to the Initial Purchasers and dealers a reasonable number
of copies thereof.
(e) The Company will cooperate with the Initial Purchasers and
with their counsel in connection with the qualification of the Senior Notes for
offering and sale by the Initial Purchasers and by dealers under the securities
or Blue Sky laws of such jurisdictions as the Initial Purchasers may designate
and will file such consents to service of process or other documents necessary
or appropriate in order to effect such qualification; provided, that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action which would subject it to
service of process in suits, other than those arising out of the offering or
sale of the Senior Notes, in any jurisdiction where it is not now so subject.
(f) So long as any of the Notes are outstanding, the Company
will furnish to the Initial Purchasers (i) as soon as available, a copy of each
report of the Company mailed to stockholders generally or filed with any stock
exchange or regulatory body and (ii) from time to time such other information
concerning the Company as the Initial Purchasers may reasonably request.
(g) If this Agreement shall terminate or shall be terminated
after execution and delivery pursuant to any provisions hereof (otherwise than
by notice given by the Initial Purchasers terminating this Agreement pursuant to
Section 10 hereof) or if this Agreement shall be terminated by the Initial
Purchasers because of any failure or refusal on the part of the Company to
comply with the terms or fulfill any of the conditions of this Agreement, the
Company agrees to reimburse the Initial Purchasers for all out-of-pocket
expenses (including reasonable fees and expenses of their counsel) reasonably
incurred by it in connection herewith, but without any further obligation on the
part of the Company for loss of profits or otherwise.
(h) The Company will apply the net proceeds from the sale of
the Senior Notes to be sold by it hereunder substantially in accordance with the
description set forth in the Offering Memorandum under the caption "Use of
Proceeds."
(i) Except as stated in this Agreement and in the Offering
Memorandum, the Company has not taken, and will not take, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of the Senior Notes to
facilitate the sale or resale of the Senior Notes. Except as permitted by the
Act, the Company will not distribute any offering material in connection with
the Exempt Resales.
<PAGE>
(j) The Company will use its best efforts to permit the Notes
to be designated Private Offerings, Resales and Trading through Automated
Linkages ("PORTAL") Market securities in accordance with the rules and
regulations adopted by the National Association of Securities Dealers, Inc.
relating to trading in the PORTAL Market and to permit the Notes to be eligible
for clearance and settlement through DTC, the Euroclear System and Cedel Bank,
Societe Anonyme.
(k) From and after the Closing Date, so long as any of the
Notes are outstanding and are "restricted securities" within the meaning of the
Rule 144(a)(3) under the Act or, if earlier, until three years after the Closing
Date, and during any period in which the Company is not subject to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Company will furnish to holders of the Notes and prospective purchasers of
Notes designated by such holders, upon request of such holders or such
prospective purchasers, the information (the "Additional Company Information")
required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit
compliance with Rule 144A in connection with resales of the Notes.
(l) The Company has complied and will comply with all
provisions of Florida Statutes Section 517.075 relating to issuers doing
business with Cuba.
(m) The Company agrees not to sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
the Act) that would be integrated with the sale of the Senior Notes in a manner
that would require the registration under the Act of the sale to the Initial
Purchasers or the Eligible Purchasers of the Senior Notes.
(n) The Company agrees to comply with all the terms and
conditions of the Registration Rights Agreement and all agreements set forth in
the representation letters of the Company to DTC relating to the approval of the
Notes by DTC for "book entry" transfer.
(o) The Company agrees to cause the Exchange Offer to be made
in the appropriate form, as contemplated by the Registration Rights Agreement,
to permit registration of the Exchange Notes to be offered in exchange for the
Senior Notes, and to comply with all applicable federal and state securities
laws in connection with the Registered Exchange Offer.
(p) The Company agrees that prior to any registration of the
Senior Notes pursuant to the Registration Rights Agreement, or at such earlier
time as may be required, the Indenture shall be qualified under the Trust
Indenture Act of 1939 (the "1939 Act") and any necessary supplemental indentures
will be entered into in connection therewith.
(q) The Company will not voluntarily claim, and will resist
actively all attempts to claim, the benefit of any usury laws against holders of
the Notes.
(r) The Company will do and perform all things required or
necessary to be done and performed under this Agreement by it prior to the
Closing Date, and to satisfy all conditions precedent to the Initial Purchasers'
obligations hereunder to purchase the Senior Notes.
<PAGE>
5. Representations and Warranties of the Company. The Company
represents and warrants to the Initial Purchasers that:
(a) The Offering Memorandum has been prepared in connection
with the offering of the Senior Notes. The Offering Memorandum and any
amendments or supplements thereto did not and will not, as of their
respective dates, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by the Initial Purchasers through Salomon Smith Barney
Inc. concerning the Initial Purchasers expressly for use therein (the
"Initial Purchasers Information"). The Offering Memorandum, as of its
date, contains all the information specified in, and meeting the
requirements of, Rule 144A(d)(4) under the Act;
(b) The Company has not sustained since September 30, 1998 any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Offering Memorandum;
and, since the respective dates as of which information is given in the
Offering Memorandum, there has not been any reduction in the
consolidated stockholders' equity or change in the capital stock, as
applicable (other than reductions in the ordinary course of business
consistent with prior periods), material increase in the total amount
of short-term debt (excluding trade payables) and long-term debt of the
Company or any of its material subsidiaries (the "Subsidiaries") or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the general affairs,
management, financial position, partners' equity, shareholders' equity
or results of operations of the Company and its Subsidiaries, otherwise
than as set forth or contemplated in the Offering Memorandum;
(c) Each of the Company and its Subsidiaries has good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Offering Memorandum or such as do not affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
Subsidiaries; and any real property and buildings held under lease by
the Company and its Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its Subsidiaries;
except in any case that would not have a material adverse effect on the
business, general affairs, management, financial position, partners
equity or shareholders' equity (other than reductions in the ordinary
course of business consistent with prior periods), results of
operations or prospects of the Company and its Subsidiaries, taken as a
whole a "Material Adverse Effect;"
(d) (i) Each of the Subsidiaries that are partnerships has
been duly formed and is validly existing as a partnership in good
standing under the laws of its state of formation, with full power and
authority (partnership and other) to own its properties and conduct its
business as described in the Offering Memorandum, and has been duly
qualified as a foreign partnership for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
<PAGE>
disability by reason of the failure to be so qualified in any such
jurisdiction except where the failure to so qualify would not have a
Material Adverse Effect; and (ii) each of the Company and the
Subsidiaries that are corporations has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its state of incorporation, with full power and authority (corporate
and other) to own its properties and conduct its business as described
in the Offering Memorandum, and has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction
except where the failure to so qualify would not have a Material
Adverse Effect;
(e) Each of the Company and its Subsidiaries has the ownership
or authorized capitalizations, as the case may be, as set forth in the
Offering Memorandum, and all of the partnership interests of the
Subsidiaries that are partnerships and all of the issued shares of
capital stock of its Subsidiaries that are corporations have been duly
and validly authorized and issued and with respect to shares of capital
stock are fully paid and non-assessable; and all of the partnership
interests of the Subsidiaries disclosed in the Offering Memorandum as
being owned directly or indirectly by the Company and all of the issued
shares of capital stock of the Subsidiaries that are corporations
disclosed in the Offering Memorandum as being owned directly or
indirectly by the Company have been duly and validly authorized and
issued are fully paid and non-assessable and are owned directly or
indirectly by the Company free and clear of all liens, encumbrances,
equities or claims (other than liens to secure indebtedness under
credit facilities disclosed in the Offering Memorandum); and ownership
of the various interests and shares of the Company and its Subsidiaries
is as described in the Offering Memorandum;
(f) The Notes have been duly authorized and, when issued and
delivered pursuant to this Agreement, will have been duly executed,
authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company entitled to the benefits
provided by the Indenture under which they are to be issued, which will
be substantially in the form previously delivered to the Initial
Purchasers; the Indenture has been duly authorized by the Company and,
when executed and delivered by the Company and the Trustee, the
Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms against the Company, subject,
as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors'
rights and to general equity principles; and the Notes and the
Indenture will conform to the descriptions thereof in the Offering
Memorandum and will be in substantially the form previously delivered
to the Initial Purchasers;
(g) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Senior Notes) will violate or result in a violation of Section 7
of the Exchange Act, or any regulation promulgated thereunder,
including, without limitation, Regulations U and X of the Board of
Governors of the Federal Reserve System;
(h) Prior to the date hereof, none of the Company or any of
their affiliates (other than the Initial Purchasers or any person
acting on their behalf as to which the Company makes no representation)
has taken, directly or indirectly, any action which is designed to or
<PAGE>
which has constituted or which might have been expected to cause or
result in stabilization or manipulation of the price of any security of
the Company in connection with the offering of the Senior Notes;
(i) The Registration Rights Agreement has been duly authorized
by the Company and, when executed and delivered by the Company and the
Initial Purchasers, will constitute a valid and legally binding
instrument, enforceable against the Company in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Registration Rights Agreement will conform to the description thereof
in the Offering Memorandum and will be in substantially the form
previously delivered to the Initial Purchasers;
(j) The issue and sale of the Notes and the compliance by the
Company with all of the provisions of the Notes, the Indenture, the
Registration Rights Agreement and this Agreement and the consummation
of the transactions herein and therein contemplated will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material indenture,
mortgage, deed of trust, sale/leaseback agreement, loan agreement or
other similar financing agreement or instrument or other agreement or
instrument (including, without limitation, any license or franchise
granted to the Company or one of its Subsidiaries by a local
franchising governmental body) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its
Subsidiaries is bound or has rights under or to which any of the
property or assets of the Company or any of its Subsidiaries is
subject, nor will such action result in any violation of the provisions
of the certificate of incorporation or bylaws of the Company or its
Subsidiaries that are corporations or the certificates of limited
partnership or the partnership agreements of its Subsidiaries that are
partnerships or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Notes or the consummation by the Company
of the transactions contemplated by this Agreement, the Indenture or
the Registration Rights Agreement, other than (i) such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Senior Notes by the Initial
Purchasers, (ii) the filing of a registration statement by the Company
with the Commission pursuant to the Act pursuant to the Registration
Rights Agreement, and (iii) such other consents, approvals,
authorizations, registrations or qualifications as may be required
under the Act, state or foreign securities or Blue Sky laws in
connection with the exchange, offer or resale registration contemplated
in the Offering Memorandum and described in the Registration Rights
Agreement in connection with the purchase and resale of the Senior
Notes by the Initial Purchasers;
(k) None of the Company or its Subsidiaries is in violation of
its certificate of incorporation or bylaws, as the case may be, or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, sale/leaseback agreement, loan agreement or other
similar financing agreement or instrument or other agreement or
<PAGE>
instrument (including, without limitation, any license or franchise
granted to the Company or a subsidiary by a local franchising
governmental body) to which the Company or a subsidiary is a party or
by which it or any of its properties may be bound, except for such
defaults as would not have individually or in the aggregate a Material
Adverse Effect;
(l) The statements set forth in the Offering Memorandum under
the caption "Description of the Notes," insofar as they purport to
constitute a summary of the terms of the Notes, and incorporated by
reference in the Offering Memorandum from the Form 10-K and Forms 10-Q
(each as defined in the Offering Memorandum) under the captions
"Business" and "Management's Discussion and Analysis of Financial
Condition and Results of Operations," as applicable, insofar as they
purport to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair in all material respects;
(m) When the Senior Notes are issued and delivered pursuant to
this Agreement, the Senior Notes will not be of the same class (within
the meaning of Rule 144A under the Act) as securities of the Company
which are listed on a national securities exchange registered under
Section 6 of the Exchange Act or quoted in a U.S. automated
inter-dealer quotation system;
(n) None of the Company or its Subsidiaries is or, after
giving effect to the offering and sale of the Notes, will be an
"investment company," or an entity "controlled" by an "investment
company," as such terms are defined in the United States Investment
Company Act of 1940, as amended (the "Investment Company Act");
(o) None of the Company or any person acting on its or their
behalf (other than the Initial Purchasers, as to which the Company
makes no representation or warranty) has offered or sold the Senior
Notes by means of any general solicitation or general advertising
within the meaning of Rule 502(c) under the Act;
(p) None of the Company nor any person acting on its or their
behalf has engaged in any directed selling efforts with respect to the
Notes, and each of them has complied with the offering restrictions
requirement of Regulation S. Terms used in this paragraph have the
meanings given to them by Regulation S.
(q) Except for (i) the issuance of $150,000,000 aggregate
principal amount of the Company's Series B 8-3/8% Senior Notes due 2008
in exchange for previously issued and outstanding Series A 8-3/8%
Senior Notes due 2008, (ii) the issuance of $150,000,000 aggregate
principal amount of the Company's Series A 8-1/8% Senior Notes due
2003, (iii) the issuance of $150,000,000 aggregate principal amount of
the Company's Series B 8-1/8% Senior Notes due 2003 in exchange for
previously issued and outstanding Series A 8-1/8% Senior Notes due 2003
and (iv) the issuance of $150,000,000 aggregate principal amount of the
Company's Series A 8-3/8% Senior Notes due 2008, within the preceding
six months, none of the Company or any other person acting on behalf of
the Company (other than the Initial Purchasers, as to which the Company
makes no representation or warranty) has offered or sold to any person
any Notes, or any securities of the same or a similar class as the
Notes, other than Senior Notes offered or sold to the Initial
Purchasers hereunder. The Company will take reasonable precautions
designed to insure that any offer or sale, direct or indirect, in the
United States or to any U.S. person (as defined in Rule 902 under the
<PAGE>
Act) of any Notes or any substantially similar security issued by the
Company, within six months subsequent to the date on which the
distribution of the Notes has been completed (as notified by the
Initial Purchasers), is made under restrictions and other circumstances
reasonably designed not to affect the status of the offer and sale of
the Notes in the United States and to U.S. persons contemplated by this
Agreement as transactions exempt from the registration provisions of
the Act;
(r) None of the Company or any of their affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida
Statutes;
(s) Other than as set forth in the Offering Memorandum
(including those matters referred to therein relating to general
rulemakings and similar matters relating generally to the cable
television industry), there are no legal or governmental proceedings
pending to which the Company or any of its Subsidiaries is a party or
of which any property of the Company or any of its Subsidiaries is the
subject which, if determined adversely to the Company or any of its
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or by others; and except with respect to general rulemakings and
similar matters relating generally to the cable television industry,
during the time the Systems (as defined below) have been owned by the
Company or a subsidiary (i) there has been no adverse judgment, order,
or decree issued by the United States Federal Communications Commission
(the "FCC") relating to any of the Systems that has not been disclosed
in the Offering Memorandum that would be required to be disclosed in a
public offering registered under the Act; (ii) there are no actions,
suits, proceedings, inquiries or investigations by the FCC pending or
threatened in writing against or affecting the Company, any of its
Subsidiaries or any System; and (iii) to the Company's knowledge, after
due inquiry, there is no reasonable basis for any such action, suit,
proceeding or investigation;
(t) Deloitte & Touche LLP, who have reported on the financial
statements of the Company, is an independent public accountant as
required by the Act and the rules and regulations of the Commission
thereunder;
(u) This Agreement has been duly authorized, executed and
delivered by the Company;
(v) Except for matters covered by paragraph (x) below or with
respect to matters that would not individually or in the aggregate have
a Material Adverse Effect, (i) the Company and its Subsidiaries have
made all filings, recordings and registrations with, and possess all
validations or exemptions, approvals, orders, authorizations, consents,
licenses, certificates and permits from, the FCC, applicable public
utilities and other federal, state and local regulatory or governmental
bodies and authorities or any subdivision thereof, including, without
limitation, cable television franchises, pole attachment agreements,
and cable antenna relay service, broadcast auxiliary, earth station,
business radio, microwave or special safety radio service licenses
issued by the FCC (collectively, the "Authorizations") necessary or
appropriate to own, operate and construct the cable communication
systems owned by them (the "Systems") or otherwise for the operation of
<PAGE>
their businesses and are not in violation thereof; (ii) all such
Authorizations are in full force and effect, and no event has occurred
that permits, or after notice or lapse of time could permit, the
revocation, termination or modification of any Authorization which is
necessary or appropriate to own, operate and construct the Systems or
otherwise for the operation of any such business; (iii) none of the
Company or any of its Subsidiaries is in violation of any duty or
obligation required by the United States Communications Act of 1934, as
amended (the "Communications Act"), or any FCC rule or regulation
applicable to the operation of any portion of any of the Systems; (iv)
none of the Company or any of its Subsidiaries is in violation of any
duty or obligation required by state or local laws, or local rules or
regulations applicable to the operation of any portion of any of the
Systems; (v) there is not pending or, to the best knowledge of the
Company or any of its Subsidiaries, threatened, any action by the FCC
or state or local regulatory authority to modify, revoke, cancel,
suspend or refuse to renew any Authorization; (vi) other than as
described in the Offering Memorandum, there is not now issued or
outstanding or, to the best knowledge of the Company or any of its
Subsidiaries, threatened, any notice of any hearing, material violation
or material complaint against the Company or any of its Subsidiaries
with respect to the operation of any portion of the Systems and none of
the Company or its Subsidiaries has any knowledge that any person
intends to contest renewal of any material Authorization;
(w) (i) (A) The Company and its Subsidiaries have entered
into, or have rights under, all required programming agreements
(including, without limitation, all non-broadcast affiliation
agreements under which the Company and its Subsidiaries are accorded
retransmission rights relating to programming that the Systems provide
to their customers) that are material to the conduct of their business
as described in the Offering Memorandum; and (B) all such material
agreements are in full force and effect and none of the Company, any of
its Subsidiaries or any of its affiliates has received any written
notice of revocation or material modifications of such material
agreements; and (ii)(A) either the Company or its Subsidiaries has
entered into agreements with the television stations that have notified
the Company or its Subsidiaries that such station's respective consent
is required to carry such stations on the Systems or has ceased
carrying such stations; (B) all such agreements grant the Company or
one of its Subsidiaries retransmission consent in exchange for various
non-cash consideration; and (C) all such agreements are in full force
and effect and are not subject to revocation (except in the case of
material breach by the Company or its Subsidiaries) or material
modifications, and no event has occurred that permits, or after notice
or lapse of time could permit, the revocation, termination or material
modification of any such agreement, except where the failure of such
agreements to be in full force and effect or such revocation would not,
in either case, individually or in the aggregate have a Material
Adverse Effect;
(x) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, (i) all registration
statements and all other documents (including but not limited to annual
reports) required by the FCC in connection with the operation of the
Systems have been filed with the FCC; (ii) all frequencies within the
restricted aeronautical and navigational bands (i.e., 108-136 MHz and
225-400 MHz) which are currently being used in connection with the
operation of the Systems have been authorized for such use by the FCC;
(iii) each of the Systems subject to Equal Employment Opportunity
Commission ("EEOC") compliance certification by the FCC has been
certified by the FCC for annual EEOC compliance during the time such
<PAGE>
Systems have been owned by the Company or its Subsidiaries; and (iv)
all towers associated with the Systems are in compliance with the rules
and regulations of the United States Federal Aviation Administration;
(y) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, none of the Company or any of
its Subsidiaries is in breach or violation of, or in default under, any
of the terms, conditions or provisions of the Communications Act or the
rules, regulations or policies of the FCC thereunder;
(z) (i) Except for matters that would not individually or in
the aggregate have a Material Adverse Effect, all statements of
accounts and any other filings that are required under Section 111 of
the United States Copyright Act of 1976, as amended, in connection with
the retransmission of any broadcast television and radio signals on the
Systems have been timely filed with the United States Copyright Office
and indicated royalty payments have been made for each System for each
accounting period during which such Systems have been owned by the
Company or its Subsidiaries; (ii) none of the Company, any of its
Subsidiaries or any System has received any inquiry or request from the
United States Copyright Office or from any other party challenging or
questioning any such statements of account or royalty payments; and
(iii) no claim of copyright infringement has been made or threatened in
writing against the Company, any of its Subsidiaries or any System;
(aa) Neither the execution and delivery of this Agreement, the
Indenture or the Registration Rights Agreement, nor the consummation of
the transactions contemplated hereby and thereby or by the Offering
Memorandum under "Use of Proceeds," nor compliance with the terms,
conditions and provisions thereof by the Company, will conflict with
the Communications Act or the rules, regulations or policies of the FCC
thereunder, or will cause any suspension, revocation, impairment,
forfeiture, nonrenewal or termination of any material license, permit,
franchise, certificate, consent, authorization, designation,
declaration, filing, registration or qualification; and
(bb) Neither the execution and delivery of this Agreement, the
Indenture or the Registration Rights Agreement, nor the execution,
delivery, offer, issuance and sale of the Notes, nor compliance with
the terms, conditions and provisions thereof by the Company, requires
any license, permit, franchise, certificate, consent, authorization,
designation, declaration, filing, registration or qualification by or
with the FCC.
6. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Initial Purchaser, the directors, officers,
employees and agents of each Initial Purchaser and each person who controls any
Initial Purchaser within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Offering Memorandum (or in any
supplement or amendment thereto) or any information provided by the Company to
any holder or prospective purchaser of Securities pursuant to Section 4(k), or
in any amendment thereof or supplement thereto, or arise out of or are based
<PAGE>
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the Offering Memorandum, or in any amendment thereof or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Initial Purchaser through Salomon Smith Barney
Inc. specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Initial Purchaser severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers, and each person who controls the Company within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company to each Initial Purchaser, but only with reference to written
information relating to such Initial Purchaser furnished to the Company by or on
behalf of such Initial Purchaser through Salomon Smith Barney Inc. specifically
for inclusion in the Offering Memorandum (or in any amendment or supplement
thereto). This indemnity agreement will be in addition to any liability which
any Initial Purchaser may otherwise have. The Company acknowledges that the
statements set forth in the last paragraph of the cover page of the Offering
Memorandum and the last paragraph on the inside cover page of the Offering
Memorandum constitute the only information furnished in writing by or on behalf
of the Initial Purchasers for inclusion in the Offering Memorandum (or in any
amendment or supplement thereto).
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses;
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
<PAGE>
from or additional to those available to the indemnifying party; (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action; or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section 6 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Initial Purchasers agree
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Initial Purchasers may be subject in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and by the Initial Purchasers on the other from the offering of the
Securities; provided, however, that in no case shall any Initial Purchaser
(except as may be provided in any agreement among the Initial Purchasers
relating to the offering of the Securities) be responsible for any amount in
excess of the purchase discount or commission applicable to the Securities
purchased by such Initial Purchaser hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Initial Purchasers shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Initial Purchasers on the other in connection
with the statements or omissions which resulted in such Losses, as well as any
other relevant equitable considerations. Benefits received by the Company shall
be deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by it, and benefits received by the Initial
Purchasers shall be deemed to be equal to the total purchase discounts and
commissions in each case set forth on the cover of the Offering Memorandum.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company on the one hand or the Initial Purchasers on the other, the intent of
the parties and their relative knowledge, information and opportunity to correct
or prevent such untrue statement or omission. The Company and the Initial
Purchasers agree that it would not be just and equitable if contribution were
determined by pro rata allocation or any other method of allocation which does
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 6, each person who
controls an Initial Purchaser within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an Initial
Purchaser shall have the same rights to contribution as such Initial Purchaser,
and each person who controls the Company within the meaning of either the Act or
the Exchange Act and each officer and director of the Company shall have the
same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
<PAGE>
7. Conditions of the Initial Purchasers' Obligation. The
obligation of the Initial Purchasers to purchase the Senior Notes hereunder is
subject to the following conditions:
(a) At the time of execution of this Agreement and on the
Closing Date, no order or decree preventing the use of the Offering Memorandum,
or any order asserting that the transactions contemplated by this Agreement are
subject to the registration requirements of the Act shall have been issued and
no proceedings for that purpose shall have been commenced or shall be pending
or, to the knowledge of the Company, be contemplated. No stop order suspending
the sale of the Senior Notes in any jurisdiction designated by the Initial
Purchasers shall have been issued and no proceedings for that purpose shall have
been commenced or shall be pending or, to the knowledge of the Company, shall be
contemplated.
(b) Subsequent to the date as of which information is given in
the Offering Memorandum, except as otherwise stated in the Offering Memorandum,
there shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting the condition (financial or other),
business, properties, net worth, or results of operations of the Company or its
Subsidiaries not contemplated by the Offering Memorandum, which in the opinion
of the Initial Purchasers, would materially adversely affect the market for the
Senior Notes, or (ii) any event or development relating to or involving the
Company, any of its Subsidiaries or any officer or director of the Company or
any of its Subsidiaries which makes any statement made in the Offering
Memorandum untrue or which, in the opinion of the Company and its counsel or the
Initial Purchasers and their counsel, requires the making of any addition to or
change in the Offering Memorandum in order to state a material fact required by
any law to be stated therein or necessary in order to make the statements
therein not misleading, if amending or supplementing the Offering Memorandum to
reflect such event or development would, in the opinion of the Initial
Purchasers, materially adversely affect the market for the Senior Notes.
(c) The Offering Memorandum shall have been printed and copies
thereof distributed to the Initial Purchasers in such quantities as shall have
been previously specified by the Initial Purchasers not later than 5:00 P.M.,
New York City time, on January 7, 1999, or at such later date and time as the
Initial Purchasers may approve in writing.
(d) The Initial Purchasers shall have received on the Closing
Date an opinion of Buchanan Ingersoll Professional Corporation, counsel for the
Company, dated the Closing Date and addressed to the Initial Purchasers, to the
effect that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the state of its formation with full corporate power and authority to
own its properties and conduct its business as described in the
Offering Memorandum;
(ii) This Agreement has been duly authorized,
executed and delivered by the Company;
(iii) The Registration Rights Agreement has been duly
authorized, executed and delivered by the Company;
<PAGE>
(iv) The Notes have been duly authorized and, when
issued and delivered pursuant to this Agreement, will have been duly
executed, authenticated, issued and delivered and will constitute valid
and legally binding obligations of the Company entitled to the benefits
provided by the Indenture and enforceable against the Company in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles and further except that (a) rights to contribution or
indemnification may be limited by the laws, rules or regulations of any
governmental authority or agency thereof or by public policy, and (b)
waivers as to usury, stay or extension laws may be unenforceable; and
the Notes and the Indenture conform in all material respects to the
descriptions thereof in the Offering Memorandum;
(v) The Indenture has been duly authorized, executed
and delivered by the Company and will constitute a valid and legally
binding instrument, enforceable in accordance with its terms against
the Company, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles and further except that (a) rights to contribution or
indemnification may be limited by the laws, rules or regulations of any
governmental authority or agency thereof or by public policy, and (b)
waivers as to usury, stay or extension laws may be unenforceable;
(vi) The Registration Rights Agreement has been duly
authorized by the Company and, when executed and delivered by the
parties thereto, will constitute a valid and legally binding
instrument, enforceable in accordance with its terms against the
Company, subject, as to enforcement, to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights, to general equity
principles and further except that (a) rights to contribution or
indemnification may be limited by the laws, rules or regulations of any
governmental authority or agency thereof or by public policy and (b)
waivers as to usury, stay or extension laws may be unenforceable; and
the Registration Rights Agreement will conform in all material respects
to the description thereof in the Offering Memorandum;
(vii) The issue and sale of the Notes and the
compliance by the Company with all of the provisions of the Notes, the
Indenture, the Registration Rights Agreement and this Agreement and the
consummation of the transactions herein and therein contemplated will
not contravene the provisions of the certificate of incorporation and
bylaws of the Company, or to the best of our knowledge, any order, rule
or regulation of any court or governmental agency or body having
jurisdiction over the Company;
(viii) The statements set forth in the Offering
Memorandum under the caption "Description of the Notes," insofar as
they purport to constitute a summary of the terms of the Notes, are
accurate in all material respects, and the statements in the Offering
Memorandum under the heading "Certain United States Federal Tax
Considerations for Non-United States Holders," insofar as they purport
to constitute a summary of laws, governmental rules or regulations or
documents, are accurate in all material respects;
<PAGE>
(ix) No registration of the Senior Notes under the
Act, and no qualification of an indenture under the 1939 Act with
respect thereto, is required for the offer, sale and initial resale of
the Senior Notes by the Initial Purchasers in the manner contemplated
by this Agreement; and
(x) The Company is not an "investment company" or an
entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act.
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Initial Purchasers at which the contents of the Offering Memorandum and
related matters were discussed and, although such counsel is not passing upon
and does not assume any responsibility for and has not verified the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum,
and has not made any independent check or verification thereof, on the basis of
the foregoing (relying as to materiality to the extent such counsel deemed
appropriate upon facts provided by officers and other representatives of the
Company), no facts have come to the attention of such counsel that lead such
counsel to believe that the Offering Memorandum, as of its date or as of the
Closing Date, contained or contains any untrue statement of material fact or
omitted or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief or
opinion with respect to the financial statements and other financial and
statistical data included therein).
The opinion of such counsel may be limited to the laws of the
State of New York, the General Corporation Law of the State of Delaware and the
federal laws of the United States.
(e) The Initial Purchasers shall have received on the Closing
Date an opinion of Randall D. Fisher, Esq., General Counsel of the Company,
dated the Closing Date and addressed to the Initial Purchasers to the effect
that:
(i) Except as set forth in the Offering Memorandum,
each of the Company and its Subsidiaries has all of the licenses,
permits, franchises and authorizations, if any, required by the
relevant governmental authorities of each of New York, Virginia,
Pennsylvania, Ohio, New Jersey, Massachusetts, New Hampshire, Vermont,
Michigan and Connecticut and/or its political subdivisions for the
provision of cable television service (as such counsel understands
service to be provided which may be based on a certificate of an
officer of the Company, provided that such counsel shall state that
they believe that both the Initial Purchasers and he are justified in
relying on such certificate), where the failure to obtain or hold such
license, permit, franchise or authorization would have a Material
Adverse Effect;
(ii) To the best of such counsel's knowledge after
due inquiry, each of the Company and its Subsidiaries has made all
filings, reports, applications and submissions required by the laws and
ordinances relating to cable services of each of New York, Virginia,
Pennsylvania, Ohio, New Jersey, Massachusetts, New Hampshire, Vermont,
Michigan and Connecticut, and the ordinances of the state's political
<PAGE>
subdivisions relating thereto, and the rules and regulations
promulgated therewith;
(iii) Each of the Company and its Subsidiaries has
the consents, approvals, authorizations, licenses, certificates,
permits, or orders of any governmental authorities of the each of New
York, Virginia, Pennsylvania, Ohio, New Jersey, Massachusetts, New
Hampshire, Vermont, Michigan and Connecticut, and its political
subdivisions, if any, required for the consummations of the
transactions contemplated in the Purchase Agreement where the failure
to obtain the consents, approvals, authorizations, licenses,
certificates, permits or orders would have a Material Adverse Effect;
(iv) There are no actions, suits or proceedings
pending or, to the best of such counsel's knowledge, threatened by or
before any court or governmental body each of New York, Virginia,
Pennsylvania, Ohio, New Jersey, Massachusetts, New Hampshire, Vermont,
Michigan and Connecticut, against or affecting any of the Company or
its Subsidiaries, or the business of the Company and its Subsidiaries;
(v) The statements in the Offering Memorandum under
the headings "Risk Factors Regulation in the Telecommunications
Industry" and "Risk Factors - Competition," insofar as they relate to
the Company and its Subsidiaries operations each of New York, Virginia,
Pennsylvania, Ohio, New Jersey, Massachusetts, New Hampshire, Vermont,
Michigan and Connecticut, and purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and fair
in all material respects; and
(vi) Neither the execution and delivery of the
Purchase Agreement nor the offering of the Senior Notes contemplated
thereby will conflict with or result in a violation of any order or
regulation of each of New York, Virginia, Pennsylvania, Ohio, New
Jersey, Massachusetts, New Hampshire, Vermont, Michigan and
Connecticut, or its political subdivisions applicable to the Company
and its Subsidiaries, the conflict with or the violation of which would
have a material adverse effect on the Company and its Subsidiaries.
(f) The Initial Purchasers shall have received on the Closing
Date an opinion of Colin H. Higgin, Deputy General Counsel to the Company, dated
the Closing Date and addressed to the Initial Purchasers, to the effect that:
(i) None of the Company or its Subsidiaries is in
violation of its certificate of incorporation, by-laws, certificate of
limited partnership or partnership agreement, as applicable, or in
default in the performance or observance of any material obligation,
covenant or condition contained in any partnership agreement,
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of
its properties may be bound;
(ii) Each of the Company and its Subsidiaries has
been duly qualified as a foreign corporation or partnership, as the
case may be, for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction,
<PAGE>
except where the failure to so qualify would not have a Material
Adverse Effect (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company, provided
that such counsel shall state that he believes that both the Initial
Purchasers and he are justified in relying upon such opinions and
certificates);
(iii) Each subsidiary of the Company is owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (other than liens to secure
indebtedness under credit facilities disclosed in the Offering
Memorandum) (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company or its
Subsidiaries, provided that such counsel shall state that he believes
that both the Initial Purchasers and he are justified in relying upon
such opinions and certificates);
(iv) To the best of such counsel's knowledge and
other than as set forth in the Offering Memorandum, there are no legal
or governmental proceedings pending to which the Company or any of its
Subsidiaries is a party or of which any property of the Company or any
of its Subsidiaries is the subject which, if determined adversely to
the Company or any of its Subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or future
consolidated financial position, shareholder's equity, partners'
equity, or results of operations of the Company and its Subsidiaries;
and, to the best of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others;
(v) The issue and sale of the Notes and the
compliance by the Company with all of the provisions of the Notes, the
Indenture, the Registration Rights Agreement and this Agreement and the
consummation of the transactions herein and therein contemplated will
not, to the best of my knowledge after due inquiry, conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under any material indenture, mortgage, deed of
trust, sale/leaseback transaction, loan agreement or other similar
financing agreement, or instrument or other agreement or instrument
(including, without limitation, any license or franchise granted to the
Company or a Subsidiary by a local franchising governmental body) to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries is bound or to which any of the
property or assets of the Company or any of its Subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the certificate of incorporation, by-laws, the
certificate of limited partnership or the partnership agreements of the
Company and its Subsidiaries, as appropriate, or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of its Subsidiaries or any
of their properties; and
(vi) No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Senior Notes
or the consummation by the Company of the transactions contemplated by
this Agreement, the Indenture or the Registration Rights Agreement,
except such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and resale of the Senior Notes by
the Initial Purchasers.
<PAGE>
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and the Initial Purchasers at which the contents of the Offering Memorandum and
related matters were discussed and, although such counsel is not passing upon
and does not assume any responsibility for and has not verified the accuracy,
completeness or fairness of the statements contained in the Offering Memorandum,
and has not made any independent check or verification thereof, on the basis of
the foregoing (relying as to materiality to the extent such counsel deemed
appropriate upon facts provided by officers and other representatives of the
Company), no facts have come to the attention of such counsel that lead such
counsel to believe that the Offering Memorandum, as of its date or as of the
Closing Date, contained or contains any untrue statement of material fact or
omitted or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no belief or
opinion with respect to the financial statements and other financial and
statistical data included therein).
(g) The Initial Purchasers shall have received on the Closing
Date an opinion of Fleischman & Walsh, P.C., special regulatory counsel for the
Company and its Subsidiaries, dated the Closing Date, and addressed to the
Initial Purchasers to the effect that:
(i) The communities listed in Section A of Attachment
1 to the opinion have been registered with the FCC in connection with
the operation of the Systems. The filing of a registration statement
constitutes initial FCC authorization for the commencement of cable
television operations in the community registered.
(ii) The Subsidiaries hold certain FCC licenses, as
that term is defined below ("FCC Licenses"). All FCC Licenses and
receive-only earth station registrations held by the Subsidiaries in
connection with the operation of the Cable Systems are listed on
Attachment 1 to the Opinion. To the best of our knowledge, all such FCC
Licenses have been validly issued or assigned to the present licensee
and are currently in full force and effect. We have no knowledge of any
event which would allow, or after notice or lapse of time which would
allow, revocation or termination of any FCC License held by the
Subsidiaries or would result in any other material impairment of the
rights of the holder of such license. To the best of our knowledge, no
other FCC Licenses are required in connection with the operation of the
Cable Systems by the Subsidiaries in the manner we have advised they
are presently being operated. For the purposes of this opinion, an FCC
License is defined as an authorization, or renewal thereof, issued by
the FCC authorizing the transmission of radio energy through the
airways.
(iii) Other than proceedings affecting the cable
television industry generally, there is no action, suit or proceeding
pending before or, to the best of our knowledge, threatened by the FCC
which is reasonably likely to have a materially adverse impact upon the
cable television operations of the Company and its Subsidiaries taken
as a whole.
(iv) To the best of our knowledge after due inquiry,
the Company and the Subsidiaries have filed all current and routine
filings, reports, applications and submissions required under the
Communications Act, as amended, and under the rules and regulations of
the FCC.
<PAGE>
(v) The Subsidiaries hold all authorizations and/or
have filed all notifications required by the FCC in connection with
their operation on all frequencies in the 108-137 MHz and 225-400 MHz
bands which we have been advised are currently being utilized on the
Cable Systems. The geographic and technical parameters with respect to
the authorized use of these frequencies are listed on Attachment 1
hereto.
(vi) The employment units covered by the Cable
Systems and operated by the Subsidiaries have been certified, where
required, by the FCC for compliance with equal employment opportunity
requirements in each of calendar years 1992 through 1996 in which such
Cable Systems have been owned and operated by the Company or the
Subsidiaries. Employment certification records for the years prior to
1992 have been purged from the FCC's database and are therefore outside
the scope of this opinion.
(vii) Statements of Account required by Section 111
of the Copyright Act of 1976, as amended have been filed, together with
royalty payments accompanying said Statements of Account, with the U.S.
Copyright Office for the Cable Systems covering each of the accounting
periods beginning with January 1 through June 30, 1994 accounting
period and ending with the July 1 through December 31, 1996 accounting
period during which such Cable Systems have been operated by the
Subsidiaries. We have not received the information or calculations
contained in these Statements, and express no opinion with respect to
the accuracy thereof. To the best of our knowledge, there are no
currently outstanding inquiries received from the U.S. Copyright Office
or any other party which question the copyright filings or payments
made by the Company or the Subsidiaries with respect to the Cable
Systems. It is possible that there may be matters pending before the
U.S. Copyright Office relating to the Cable Systems, the Company or the
Subsidiaries of which we do not have knowledge because such matters
have not yet been incorporated into the available public files of the
U.S. Copyright Office. However, we are not aware of the pending or
threatened claim, action or demand for copyright infringement or for
non-payment of royalties with respect to the Statements of Account or
related royalty payments filed by the Company and the Subsidiaries for
the Cable Systems.
(viii) The Company has obtained all consents,
approvals and authorizations of the FCC, if any, required for the
consummation of the transactions of the transactions contemplated in
the Purchase Agreement where the failure to obtain the consents,
approval, authorizations, licenses, certificates, permits or orders
would reasonably be expected to have a materially adverse impact on the
Company or the Subsidiaries.
(ix) Neither the execution and delivery of the
Purchase Agreement nor the offering of the Senior Notes contemplated
thereby will conflict with or result in a violation of any order or
regulation of the FCC applicable to the Company and the Subsidiaries,
the conflict with or the violation of which would reasonably be
expected to have a materially adverse impact on the Company or the
Subsidiaries. However, we call your attention to the following.
(x) Under the Act as now in effect, the sale or other
disposition of certain pledged collateral and the exercise of certain
other rights and remedies conferred upon you by any agreement or by
applicable law might constitute an assignment of an FCC licensee, or
transfer of control of an FCC license, requiring for its consummation
<PAGE>
the prior consent of the FCC granted upon an appropriate application
thereof.
(xi) Under the Act as now in effect, and as now
interpreted by the FCC, no valid security interest may be granted in an
FCC license. To the extent that the Purchase Agreement and/or related
financing documents purport to grant to you a security interest in any
FCC licenses, such security interest may not be legally enforceable.
(xii) In the course of our representation of the
Company and its Subsidiaries, no matters have come to our attention,
other than matters affecting the cable television industry generally,
which would reasonable be expected to have a materially adverse impact
upon the cable television operations of the Company and the
Subsidiaries taken as a whole.
(xiii) In our opinion, the Statements in the Offering
Memorandum under the headings "Risk Factors - Regulation in the
Telecommunications Industry" and "Risk Factors - Competition," insofar
as the purport to describe the provisions of the law referred to
therein, are accurate, complete and fair in all material respects.
(h) The Initial Purchasers shall have received on the Closing
date an opinion, of Latham & Watkins, counsel for the Initial Purchasers, dated
the Closing Date, and addressed to the Initial Purchasers, with respect to such
matters as the Initial Purchasers may reasonably request, and such counsel shall
have received such certificates, documents and information as they may
reasonably request to enable them to pass upon such matters.
(i) The Initial Purchasers shall have received letters
addressed to the Initial Purchasers, and dated the date hereof and the Closing
Date from Deloitte & Touche LLP, independent certified public accountants,
substantially in the forms heretofore approved by the Initial Purchasers and
their counsel.
(j) There shall not have been any decrease in stockholders'
equity of the Company nor any material increase in the short-term or long-term
debt of the Company (other than in the ordinary course of business) from that
set forth or specifically contemplated in the Offering Memorandum; (ii) the
Company and its Subsidiaries shall not have any liabilities or obligations,
direct or contingent (whether or not in the ordinary course of business), that
are material to the Company and it subsidiaries, taken as a whole, other than
those reflected in the Offering Memorandum; and (iii) all the representations
and warranties of the Company contained in this Agreement shall be true and
correct in all material respects on and as of the date hereof and on and as of
the Closing Date as if made on and as of the Closing Date, and the Initial
Purchasers shall have received a certificate, dated the Closing Date and signed
by the Chief Executive Officer and the Chief Financial Officer of the Company
(or such other officers as are acceptable to the Initial Purchasers), to the
effect set forth in this Section 7(j) and in Section 7(k) hereof.
(k) The Company shall not have failed at or prior to the
Closing Date to have performed or complied in all material respects with any of
its agreements herein contained and required to be performed or complied with by
it hereunder at or prior to the Closing Date.
<PAGE>
(l) There shall not have been any announcement by any
"nationally recognized statistical rating organization," as defined for purposes
of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to
any class of securities of the Company or any of its Subsidiaries, or (ii) it is
reviewing its ratings assigned to any class of securities of the Company or any
of its Subsidiaries with a view to possible downgrading, or with negative
implications, or direction not determined.
(m) The Senior Notes shall have been approved for trading in
the PORTAL Market.
(n) The Company shall have obtained, in writing, all consents
and waivers required under the terms of any of its material agreements necessary
to ensure that the transactions contemplated by this Agreement and the other
Operative Documents will not conflict with or constitute a breach of, or a
default under any of such agreements. The Company shall have furnished
photocopies of such waivers and consents, if any, to the Initial Purchasers.
(o) The Company shall have irrevocably notified the Trustee
for the Company's 9 1/2% Senior Pay-in-Kind Notes due 2004 (the "9 1/2% Notes")
that it is irrevocably calling for redemption at least $154.5 million in
aggregate principal amount of 9 1/2% Notes on a specified date (selected by the
Company and contained in such irrevocable notice to such Trustee) no more than
45 days after the Closing Date. The Company agrees to issue a press release
regarding the redemption of the 9 1/2% Notes as soon as practicable following
delivery of the irrevocable notice to such Trustee.
(p) The Company shall have furnished or caused to be furnished
to the Initial Purchasers such further certificates and documents as the Initial
Purchasers or its counsel shall have requested.
All such opinions, certificates, letters, consents, waivers
amendments and other documents will be in compliance with the provisions hereof
only if they are reasonably satisfactory in form and substance to the Initial
Purchasers and counsel for the Initial Purchasers. Any certificate or document
signed by any officer of the Company and delivered to the Initial Purchasers, or
to counsel for the Initial Purchasers, shall be deemed a representation and
warranty by the Company to the Initial Purchasers as to the statements made
therein.
8. Expenses. The Company agrees to pay the following costs,
expenses and fees and all other costs and expenses incident to the performance
by it of any of its obligations hereunder: (i) the preparation and reproduction
of the Offering Memorandum (including, without limitation, financial statements
thereto), and each amendment or supplement to any of them, this Agreement and
the Indenture; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the Offering Memorandum, and all amendments or supplements to any of
them as may be reasonably requested for use in connection with the offering and
sale of the Senior Notes; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Notes, including any stamp taxes
in connection with the original issuance and sale of the Notes; (iv) the
printing (or reproduction) and delivery of this Agreement, the Blue Sky
Memoranda and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Senior Notes; (v) the
<PAGE>
application for quotation of the Notes on the PORTAL Market; (vi) the
qualification of the Senior Notes for offer and sale under the securities or
Blue Sky laws of the several states as provided in Section 4(e) hereof
(including the reasonable fees, expenses and disbursements of counsel for the
Initial Purchasers relating to the preparation, printing or reproduction, and
delivery of the Blue Sky Memoranda and such qualification); (vii) the
performance by the Company of its obligations under the Registration Rights
Agreement; (viii) fees and expenses of the Trustee and its counsel; (ix) the
transportation and other expenses, if any, incurred by or on behalf of the
Company representatives in connection with presentations to prospective
purchasers of the Senior Notes; and (x) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel, if any) for the Company. The Company hereby agrees that they will pay
in full on the Closing Date the fees and expenses referred to in clause (vi) of
this Section 8 by delivering to counsel for the Initial Purchasers on such date
a check payable to such counsel in the requisite amount.
9. Effective Date of Agreement. This Agreement shall become
effective upon the execution and delivery hereof by all the parties hereto.
10. Termination of Agreement. This Agreement shall be subject
to termination in the absolute discretion of the Initial Purchasers, by notice
from Salomon Smith Barney Inc. on behalf of itself and the other Initial
Purchasers given to the Company, prior to delivery of and payment for the Senior
Notes, if at any time prior to such time, (i) trading in the Company's Common
Stock shall have been suspended by the Commission or the Nasdaq National Market
or trading in securities generally on the New York Stock Exchange or the Nasdaq
National Market shall have been suspended or limited or minimum prices shall
have been established on such Exchange or the Nasdaq National Market; (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities; or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Initial Purchasers, impracticable or
inadvisable to proceed with the offering or delivery of the Senior Notes as
contemplated by the Offering Memorandum (exclusive of any amendment or
supplement thereto).
11. Miscellaneous. Except as otherwise provided in Sections 4,
9 and 10 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company, at the office of the
Company at Main at Water Street, Coudersport, PA 16915, Attention: Chief
Financial Officer with a copy to Buchanan Ingersoll Professional Corporation, 1
Oxford Center, 301 Grant Street, 20th Floor, Pittsburgh, PA 15219, Attention:
Carl E. Rothenberger, Jr., or (ii) if to the Initial Purchasers, addressed to
Salomon Smith Barney Inc., 388 Greenwich Street, New York, NY 10013, Attention:
General Counsel, with a copy to Latham & Watkins, 885 Third Avenue, New York, NY
10022, Attention: Robert A. Zuccaro.
This Agreement has been and is made solely for the benefit of
the Initial Purchasers, the Company and their respective directors, officers and
the controlling persons referred to in Section 6 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from the Initial Purchasers of any of the Senior Notes
in his status as such purchaser.
<PAGE>
12. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York
and without regard to the conflicts of law principles thereof.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
(signature pages follow)
<PAGE>
[PURCHASE AGREEMENT]
NY_DOCS\310095.6
[PURCHASE AGREEMENT]
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Initial Purchasers.
Very truly yours,
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ Daniel R.Milliard_____
Name: Daniel R. Milliard
Title: Senior Vice President
Confirmed as of the date first above mentioned.
SALOMON SMITH BARNEY INC.
By: _/s/ Todd C. Alexander___
Name: Todd C. Alexander
Title: Director
<PAGE>
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ Joseph A. Coneeny____
Name: Joseph A. Coneeny
Title: Managing Director
GOLDMAN, SACHS & CO.
By: _/s/ Goldman Sachs & Co.____
Name:
Title:
LEHMAN BROTHERS INC.
By: /s/ Arlene Salmonson___
Name: Arlene Salmonson
Title: Vice President
NATIONSBANC MONTGOMERY SECURITIES LLC
By: _/s/ David G. James___
Name: David G. James
Title: Principal
<PAGE>
Exhibit A
Form of Registration Rights Agreement
EXHIBIT 10.03
CREDIT AGREEMENT,
dated as of December 30, 1998,
among
PARNASSOS, L.P.
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS
as the Lenders,
THE BANK OF NOVA SCOTIA
as the Administrative Agent,
NATIONSBANK, N.A.
as the Documentation Agent,
and
TD SECURITIES (USA) INC.
as the Syndication Agent.
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 30, 1998, is among
PARNASSOS, L.P., a Delaware limited partnership (the "Borrower"), the various
financial institutions as are or may become parties hereto (collectively, the
"Lenders"), THE BANK OF NOVA SCOTIA ("Scotiabank"), as administrative agent (in
such capacity, the "Administrative Agent"), NATIONSBANK, N.A. ("NationsBank"),
as documentation agent (in such capacity, the "Documentation Agent"), TD
SECURITIES (USA) INC. ("TD"), as syndication agent (in such capacity, the
"Syndication Agent") and each Managing Agent and each Co-Agent listed herein.
WITNESSETH:
WHEREAS, pursuant to the terms of this Agreement, the Borrower desires
to obtain Commitments pursuant to which
(a) Revolving Loans will be made by the Revolving Loan Lenders
from time to time prior to the Revolving Loan Commitment Termination
Date;
(b) Letters of Credit will be issued for the account of the
Borrower by one or more of the Issuers from time to time prior to the
Revolving Loan Commitment Termination Date; and
(c) Term Loans will be made on the Initial Funding Date by the
Term Loan Lenders; and
WHEREAS, the Lenders and the Issuers are willing, on the terms and
subject to the conditions set forth in this Agreement, to extend such
Commitments and make such Loans and issue (or participate in) Letters of Credit;
NOW, THEREFORE, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined 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):
"ACC" means Adelphia Communications Corporation, a Delaware
corporation.
<PAGE>
"ACI" means Adelphia Cablevision, Inc., a Pennsylvania corporation.
"Acquisition" means any transaction, or any series of related
transactions by which the Borrower or any of its Restricted 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) following which such
corporation or Person is consolidated with the Borrower in accordance with GAAP.
"Active Plant" means a coaxial or fiber optic television cable,
together with all amplifiers and electronics, which has been connected to a Head
End and has been energized and which is capable of carrying television signals
to subscribers with only the addition of a drop line from such television cable
to the Homes of such subscribers.
"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.
"Administrative Agent's Fee Letter" means the confidential fee letter,
dated October 26, 1998, from Scotiabank to the Borrower and acknowledged and
agreed to by the Borrower, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"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 35% 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.
"Affiliate Indebtedness" means (i) the unsecured Indebtedness which is
subordinated to the Obligations (excluding Intercompany Indebtedness) incurred
by the Borrower or a Restricted Subsidiary and payable to an Affiliate of the
Borrower or a Restricted Subsidiary in accordance with the terms of the
Intercompany Subordination Agreement, and (ii) the unsecured Management Fees
payable in accordance with the terms of the Manager Subordination Agreement,
subordinated (in each case) on (among others), the following terms:
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<PAGE>
(a) in the event of a Default under Section 8.1.9, the
Lenders, the Issuers and the Administrative Agent shall (i) have the
right to file a claim on behalf of the holders of such Affiliate
Indebtedness and collect and receive all such payments, (ii) be
irrevocably granted a power of attorney to act on behalf of such
holders of the Affiliate Indebtedness, 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;
(b) if (prior to payment in full of the Obligations in cash),
any holder of the Affiliate Indebtedness receives any payment (other
than as permitted pursuant to Sections 7.2.6, 7.2.14 and 7.2.15) in
respect of such Affiliate Indebtedness 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
(c) such Affiliate Indebtedness will not have the benefit of
any cross-defaults or cross-accelerations with any other Indebtedness.
"Aggregate Capital Contribution Amount" means the aggregate amount of
Capital Contributions made following the Effective Date to the Borrower less,
without duplication, the sum of the aggregate amount of (i) any such Capital
Contributions used by the Borrower or any of its Subsidiaries since the
Effective Date, either directly or indirectly, to make Capital Expenditures or
to pay Management Fees pursuant to clause (b) of Section 7.2.15 and (ii)
Restricted Payments made on or subsequent to the Effective Date in accordance
with clause (b)(i) of Section 7.2.6.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time further
amended, supplemented, amended and restated or otherwise modified and in effect
on such date.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum (rounded upwards, if
necessary, to the next highest 1/16th of 1%) equal to the higher of
(a) the Base Rate in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus 1/2 of
1%.
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 Borrower
and the Lenders of changes in the Alternate Base Rate; provided that the failure
to give such notice shall not affect the Alternate Base Rate in effect after
such change.
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<PAGE>
"Annualized Operating Cash Flow" means, on any date and with respect to
the Borrower and its Restricted Subsidiaries, the product of (i) the Operating
Cash Flow for the Borrower and such Restricted Subsidiaries for the most
recently ended Fiscal Quarter multiplied by (ii) four.
"Applicable Commitment Fee Margin" means at all times during the
applicable periods set forth below with respect to the fee payable pursuant to
Section 3.3.1, the applicable percentage set forth below under the column
entitled "Applicable Commitment Fee Margin":
Leverage Applicable Commitment
Ratio Fee Margin
--------------------- ---------------------
Greater than or 0.375%
equal to 4.50:1
less than 4.50:1 0.250%
The Leverage Ratio used to compute the Applicable Commitment Fee Margin shall be
that set forth in the Compliance Certificate most recently delivered by the
Borrower to the Administrative Agent; changes in the Applicable Commitment Fee
Margin resulting from a change in the Leverage Ratio shall become effective upon
the second Business Day occurring after the earlier of (i) the date that the
Borrower is required to deliver or (ii) the date that the Borrower actually
delivers, in each case, a Compliance Certificate pursuant to clause (c) of
Section 7.1.1.
"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:
Applicable Margin
-----------------
Base Rate LIBO Rate
Leverage Ratio Loans Loans
-------------- ----- -----
Greater than or equal to 1.000% 2.000%
6.25:1
Greater than or equal to 0.875% 1.875%
6.00:1 but less than
6.25:1
Greater than or equal to 0.625% 1.625%
5.75:1 but less than
6.00:1
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<PAGE>
Applicable Margin
-----------------
Base Rate LIBO Rate
Leverage Ratio Loans Loans
-------------- ----- -----
Greater than or equal to 0.250% 1.250%
5.25:1 but less than
5.75:1
Greater than or equal to 0.000% 1.000%
4.75:1 but less than
5.25:1
Less than 4.75:1 0.000% 0.750%
Notwithstanding anything to the contrary set forth in this Agreement (including
the then effective Leverage Ratio), the Applicable Margin for all Loans from the
Effective Date through (and including) the sixth-month anniversary of the
Effective Date shall be the highest Applicable Margin set forth above. Following
the sixth-month anniversary of the Effective Date, the Leverage Ratio used to
compute the Applicable Margin shall be the Leverage Ratio set forth in the
Compliance Certificate most recently delivered by the Borrower to the
Administrative Agent; changes in the Applicable Margin resulting from a change
in the Leverage Ratio shall become effective upon the second Business Day
occurring after the earlier of (i) the date that the Borrower is required to
deliver or (ii) the date that the Borrower actually delivers, in each case, a
Compliance Certificate pursuant to clause (c) of Section 7.1.1.
"Approvals" is defined in Section 8.1.13.
"Approved Accounting Firm" means Arthur Andersen LLP, Deloitte & Touche
LLP, Ernst & Young LLP, Pricewaterhouse Coopers LLP or KPMG Peat Marwick LLP, or
any successor thereof.
"Arranging Agents" means, collectively, the Administrative Agent, the
Syndication Agent and the Documentation Agent.
"Arranging Agents' Fee Letter" means the confidential fee letter, dated
October 26, 1998, among Scotiabank, TD, NationsBank and the Borrower, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Asset Swap" means any exchange of assets (including Cable Systems) of
the Borrower or any of its Restricted Subsidiaries, whether in a single
transaction or a series of related transactions, to any other Person (including
an Unrestricted Subsidiary) for assets which are similar in all material
respects.
-5-
<PAGE>
"Assignee Lender" is defined in Section 10.11.1.
"Authorized Officer" means, relative to any Obligor, those of its
officers, managing member 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 hereof.
"Base Rate" means, at any time, the rate of interest then most recently
established by the Administrative Agent in New York as its base rate for U.S.
dollars loaned in the United States. The Base Rate is not necessarily intended
to be the lowest rate of interest determined by the Administrative Agent in
connection with extensions of credit.
"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.
"Borrower" is defined in the preamble.
"Borrower Management Agreement" means the Management Services
Agreement, dated as of December 30, 1998, by and between the Borrower and ACI,
as such agreement 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 Borrower to the Manager pursuant to the Borrower Management
Agreement.
"Borrower Pledge Agreement" means a Pledge Agreement executed and
delivered by an Authorized Officer of the Borrower, substantially in the form of
Exhibit H-2 hereto, delivered pursuant to the terms of this Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
-6-
<PAGE>
"Borrowing" means the Loans of the same type and, in the case of LIBO
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 the Borrower, substantially in the form of Exhibit
B-1 hereto.
"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, New York; and
(b) relative to the making, continuing, prepaying or repaying
of any LIBO Rate Loans, any day which is a Business Day described in
clause (a) above and which is also a day on which dealings in Dollars
are carried on in the interbank eurodollar market of the Administrative
Agent's LIBOR Office.
"Cable Systems" means the assets of any Person constituting a 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 (including
Pole Agreements and Pole Rental Leases), utility easements and all other
property owned or used in connection with the entertainment, information and
data carriage, advertising or other services provided pursuant to, and all
interest of the holder thereof to receive revenues from, or pursuant to, said
FCC Licenses, Franchises and permits) and owned or operated by such Person in
connection with providing entertainment and other services to 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 (a) any cash
capital contribution made in, and (b) the principal amount of any Affiliate
Indebtedness incurred by, the Borrower or a Restricted Subsidiary after the
Effective Date from, in either case, ACC, the Rigas Family, any Partner or any
Affiliate of any of the foregoing.
"Capital Expenditures" means, for any period, the sum of (a) the
aggregate amount of all expenditures of the Borrower and its Restricted
Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures less (b) the
aggregate amounts of Capital Contributions received by the Borrower and its
Restricted Subsidiaries in order to finance all such expenditures; provided that
such payments were included in the calculations of the financial covenants
certified to by the Borrower in the most recently delivered Compliance
Certificate.
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<PAGE>
"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 of any type referred to in
clause (a) of this definition.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Restricted Subsidiaries under any leasing or similar
arrangement which have been (or, in accordance with GAAP, should be) classified
as capitalized leases, and for purposes of each 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 premium or
a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any direct obligation of (or unconditionally guaranteed
by) the United States of America or a State thereof (or any agency or
political subdivision thereof, to the extent such obligations are
supported by the full faith and credit of the United States of America
or a State thereof) maturing not more than one year after such time;
(b) commercial paper maturing not more than 270 days from the
date of issue, which is issued by 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 and rated A-1 or higher by
S&P or P-1 or higher by Moody's;
(c) any certificate of deposit maturing not more than one year
after its date of issuance, which is issued by either (i) any bank
organized under the laws of the United States (or any State thereof)
and which has a certificate of deposit rating equal to one of the two
highest ratings by Moody's or S&P, or (ii) any Lender;
(d) any repurchase agreement having a term of 30 days or less
entered into with any Lender or any commercial banking institution
satisfying the criteria set forth in clause (c)(i) which (i) is secured
by a fully perfected security interest in any obligation of the type
described in clause (a), and (ii) has a market value at the time such
repurchase agreement is entered into of not less than 100% of the
repurchase obligation of such commercial banking institution
thereunder; or
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(e) debt securities with a remaining maturity not exceeding
one year issued by any Person organized under the laws of any state of
the United States of America or of the District of Columbia, which
securities are rated within the two highest rating categories by S&P or
Moody's.
"CATV System" means any Cable System that is a community antenna
television system as such term is commonly understood in the cable television
industry.
"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 ACC to own, directly or indirectly, 51% or
more of the Capital Securities (of the type described in clause (a) of
the definition of Capital Securities) of the Borrower under ordinary
circumstances (not dependent on any contingency) having voting power;
(b) the failure of ACC or any of its Affiliates to be the only
managing general partner of the Borrower; or
(c) the failure of the Rigas Family to control, directly or
indirectly, more than 50% of the total number of votes that holders of
ACC's Capital Securities (of the type described in clause (a) of the
definition of Capital Securities) are then entitled to vote (which, on
the Effective Date, consist of the Class "A" common stock and Class "B"
common stock of ACC).
"Closing Date Certificate" means the closing date certificate executed
and delivered by the Borrower pursuant to the terms of this Agreement,
substantially in the form of Exhibit F hereto.
"Co-Agent" means Bayerische Hypo-und Vereinsbank AG, New York Branch,
Dresdner Bank AG, New York & Grand Cayman Branches, MeesPierson Capital Corp.,
The Bank of New York Company Inc. and Lehman Brothers Inc.
"Code" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
"Commitment" means, as the context may require, a Term Loan Commitment,
Revolving Loan Commitment or Letter of Credit Commitment.
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"Commitment Amount" means, as the context may require, the Term Loan
Commitment Amount, the Revolving Loan Commitment Amount or the Letter of Credit
Commitment Amount.
"Commitment Notice" is defined in Section 2.8.
"Commitment Termination Date" means, as the context may require, the
Term Loan Commitment Termination Date or the Revolving Loan Commitment
Termination Date.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default with respect to the
Borrower described in clauses (a) through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of all or any portion of the
Loans to be due and payable pursuant to Section 8.3, or
(ii) the giving of notice by the Administrative
Agent, acting at the direction of the Required Lenders, to the
Borrower that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit E hereto, together with such changes thereto as the Administrative Agent
may from time to time request for the purpose of monitoring the Borrower's
compliance with the financial covenants contained herein.
"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 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 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 the
Borrower, substantially in the form of Exhibit C hereto.
"Contributed Property" is defined in clause (b) of Section 7.2.6.
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"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 the
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 an Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Credit Party" means, collectively, the Lenders, the Issuers and the
Arranging Agents and, in each case, each of their respective successors,
transferees and assigns.
"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, amended and restated or
otherwise modified from time to time by the Borrower with the written consent of
the Required Lenders.
"Disposition" (or correlative words such as "Dispose") means any sale,
transfer (including Asset Swaps and Restricted Payments permitted pursuant to
clause (b)(ii) of Section 7.2.6), lease, contribution or other conveyance
(including by way of merger) of, or the granting of options, warrants or other
rights to, any of the Borrower's or its Restricted Subsidiaries' assets
(including accounts receivables, Capital Securities of Restricted Subsidiaries,
Franchises and FCC Licenses) to any other Person in a single transaction or
series of related transactions.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such Lender's "Domestic Office" set forth opposite its name
on Schedule II hereto or in a Lender Assignment Agreement, or such other office
of a Lender (or any successor or assign of such
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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.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 10.8.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to the protection of public
health and safety with respect to Hazardous Materials and protection of the
environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto 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 thereto.
"Event of Default" is defined in Section 8.1.
"Excess Cash Balance" means, on any date of determination, the sum of
unencumbered cash and Cash Equivalent Investments then held in the name of the
Borrower or its Restricted Subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exemption Certificate" is defined in clause (e) of Section 4.6.
"Existing Assets" means assets (including Cable Systems) owned by the
Borrower on the Effective Date (including as such assets may from time to time
be Disposed of to Restricted Subsidiaries).
"Fair Market Value" means, in respect of any assets or group of assets,
fair market value for such assets as determined in good faith (using reasonable
methods) by the Borrower.
"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
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(a) 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; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by Scotiabank from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" means the Administrative Agents' Fee Letter and/or the
Arranging Agents' Fee Letter, as applicable.
"Fiscal Quarter" means a quarter ending on the last day of March, June,
September or December.
"Fiscal Year" means any period of twelve consecutive calendar months
ending (initially) on March 31; references to a Fiscal Year with a number
corresponding to any calendar year (e.g., the "1999 Fiscal Year") refer
(initially) to the Fiscal Year ending on March 31 of such calendar year;
provided, however, that notwithstanding the foregoing, upon no less than 10
Business Days' prior notice to the Administrative Agent the Borrower may change
its Fiscal Year to a period of twelve consecutive calendar months ending on
December 31.
"Fixed Charge Coverage Ratio" means
(a) as of the close of the Fiscal Quarter ended (i) March 31,
2001, the ratio computed for the period consisting of such Fiscal
Quarter, (ii) June 30, 2001, the ratio computed for the period
consisting of such Fiscal Quarter and the immediately preceding Fiscal
Quarter, and (iii) September 30, 2001, the ratio computed for the
period consisting of such Fiscal Quarter and the two immediately
preceding Fiscal Quarters of (i) Operating Cash Flow (for such Fiscal
Quarter or Fiscal Quarters) to (ii) Fixed Charges (for such Fiscal
Quarter or Fiscal Quarters); and
(b) as of the close of any Fiscal Quarter ending subsequent to
September 30, 2001, the ratio of (i) Annualized Operating Cash Flow to
(ii) Fixed Charges (in the case of this clause (b)(ii), for such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters).
"Fixed Charges" means, without duplication, for the period in question
and with respect to the Borrower and its Restricted Subsidiaries, the sum of (i)
all Interest Expense, (ii) the aggregate outstanding principal amount of the
Revolving Loans plus Letter of Credit Outstandings at the beginning of any
period of determination less the Revolving Loan Commitment Amount that will be
in effect at the end of such period (which amount under this clause (ii) shall
be deemed to never be less than zero), (iii) the aggregate amount of Term Loans
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scheduled to be repaid pursuant to clause (d) of Section 3.1.1 during such
period, (iv) all fees owed pursuant to Section 3.3, (v) all Capital Expenditures
of the Borrower and its Restricted Subsidiaries, and (vi) all federal, state and
foreign income taxes actually paid in cash by the Borrower and its Restricted
Subsidiaries.
"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 or maintenance
of a system to receive or distribute, or both, by cable, satellite or other
technology, audio and visual signals within a geographic area, 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 Borrower and its 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.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantees" means, collectively, the Subsidiary Guaranty and each
other guaranty delivered from time to time in respect of the Obligations.
"Guarantor" means, collectively, each Subsidiary Guarantor.
"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; or
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(c) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance (including any petroleum product)
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.
"Head End" means the site and related facilities and equipment used as
the head end for a Cable System, including the antenna site, the tower and the
antenna, the microwave communications equipment, the earth station and the head
end facilities.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under currency exchange agreements, 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.
"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.
"Home" means a single residential dwelling or commercial building which
can be connected by a single drop line. In the case of multiple residential
dwellings, such as apartment houses and multi-family homes, which do not obtain
reduced bulk service rates, each separate dwelling unit shall be counted as one
Home. The number of Homes in a multiple residential dwelling which does obtain a
reduced bulk service rate shall be the number of Basic Subscribers for such
multiple residential dwelling.
"Home Passed" means a Home which can be connected by a single drop line
from an Active Plant.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Borrower and its Restricted Subsidiaries on a consolidated basis, 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
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item the effect of which would be to cause the Borrower 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.
"Incremental Facility" is defined in Section 2.8.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or
advances and all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities of such Person;
(d) for purposes of Section 8.1.5 only, 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 excluding trade accounts payable in the
ordinary course of business which are not overdue for a period of more
than 90 days or, if overdue for more than 90 days, as to which a
dispute exists and adequate reserves in conformity with GAAP have been
established on the books of such Person, and indebtedness secured by
(or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) a Lien on property owned or
being acquired 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;
(g) obligations arising under Synthetic Leases; and
(h) all Contingent Liabilities of such Person in respect of
any of the foregoing.
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For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Initial Funding Date" is defined in Section 2.1.3.
"Intercompany Indebtedness" means unsecured Indebtedness permitted by
clause (j) of Section 7.2.2 subordinated pursuant to the Intercompany
Subordination Agreement.
"Intercompany Subordination Agreement" means the Intercompany
Subordination Agreement executed by the Borrower, each Partner, each Restricted
Subsidiary and/or an Affiliate of the Borrower substantially in the form of
Exhibit G-1 hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with its terms.
"Interest Coverage Ratio" means (as of the last day of any Fiscal
Quarter) the ratio of:
(a) Operating Cash Flow (for such Fiscal Quarter)
to
(b) Interest Expense (for such Fiscal Quarter).
"Interest Expense" means, for any Fiscal Quarter, the aggregate
interest expense payable with respect to Total Debt of the Borrower and its
Restricted Subsidiaries, on a consolidated basis, for such Fiscal Quarter, as
determined in accordance with GAAP, including the portion of any payments made
in respect of Capitalized Lease Liabilities allocable to interest expense.
"Interest Period" means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or 2.4
and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three, six or, if available to all Lenders, twelve months
thereafter (or, if such month has no numerically corresponding day, on the last
Business Day of such month), in either case as the Borrower may select in its
relevant notice pursuant to Section 2.3 or 2.4; provided, however, that
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(a) the Borrower shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration dates
occurring on more than ten different dates;
(b) 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 (unless such next following Business Day is the
first Business Day of a calendar month, in which case such Interest
Period shall end on the Business Day next preceding such numerically
corresponding day); and
(c) no Interest Period for any Loan may end later than the
Stated Maturity Date for such Loan.
"Investment" means, relative to any Person,
(a) any loan, advance or extension of credit made by such
Person (either directly or indirectly) to any other Person (either
directly or indirectly), including the purchase by such Person of any
bonds, notes, debentures or other debt securities of any other Person
(excluding commission, travel, petty cash and similar advances to
officers and employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any Capital Security held by such Person (either directly
or indirectly) in any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon 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 at the time of such Investment.
"Investment Grade Senior Debt" means, with respect to any Person, that
such Person's long-term senior, unsecured debt for borrowed money (without third
party credit enhancement) is rated BBB- or above by S&P or Baa3 or above by
Moody's.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the Borrower, substantially in the
form of Exhibit B-2 hereto.
"Issuer" means an Arranging Agent in its capacity as issuer of the
Letters of Credit. At the request of such Arranging Agent and with the
Borrower's consent (not to be unreasonably withheld), another Lender or an
Affiliate of such Arranging Agent may issue one or more Letters of Credit
hereunder.
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"Lender Assignment Agreement" means a notice to be delivered to the
Administrative Agent and the Borrower pursuant to Section 10.11.1 substantially
in the form of Exhibit D hereto.
"Lenders" is defined in the preamble and, in addition, shall include
(a) any commercial bank or other financial institution that becomes a Lender
pursuant to Section 10.11.1 and (b) any Supplemental Lender which executes a
joinder agreement pursuant to Section 2.8.
"Lender's Environmental Liability" means any and all losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
costs, judgments, suits, proceedings, damages (including consequential damages),
disbursements or expenses of any kind or nature whatsoever (including reasonable
attorneys' fees at trial and appellate levels and experts' fees and
disbursements and expenses incurred in investigating, defending against or
prosecuting any litigation, claim or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against the Administrative
Agent, any Lender or any Issuer or any of such Person's Affiliates,
shareholders, directors, officers, employees, and agents in connection with or
arising from:
(a) any Hazardous Material on, in, under or affecting all or
any portion of any property of the Borrower or any of its Subsidiaries,
the groundwater thereunder, or any surrounding areas thereof to the
extent caused by Releases from the Borrower's or any of its
Subsidiaries' or any of their respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any
warranty, contained or referred to in Section 6.12;
(c) any violation or claim of violation by the Borrower or any
of its Subsidiaries of any Environmental Laws; or
(d) the imposition of any lien for damages caused by or the
recovery of any costs for the cleanup, release or threatened release of
Hazardous Material by the Borrower or any of its Subsidiaries, or in
connection with any property owned or formerly owned by the Borrower or
any of its Subsidiaries.
"Letter of Credit" is defined in Section 2.1.2.
"Letter of Credit Commitment" means, with respect to an Issuer, such
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.2 and,
with respect to each Revolving Loan Lender, the obligations of each such Lender
to participate in such Letters of Credit pursuant to Section 2.6.1.
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"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $75,000,000, as such amount may be permanently reduced from time to
time pursuant to Section 2.2.
"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) Total Debt outstanding 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" 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 the Administrative Agent's LIBOR
Office in the London interbank market as at or about 11:00 a.m. London, England
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 the Administrative Agent's LIBO Rate Loan
and for a period approximately equal to such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a rate of interest determined by
reference to the LIBO Rate (Reserve Adjusted).
"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 two Business Days before the first day of such Interest
Period.
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"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such Lender's "LIBOR Office" set forth opposite its name on
Schedule II hereto or in a Lender Assignment Agreement, or such other office of
a Lender as designated from time to time by notice from such Lender to the
Borrower 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" 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 or 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.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or other priority or preferential
arrangement of any kind or nature whatsoever, to secure payment of a debt or
performance of an obligation.
"Loan Documents" collectively means this Agreement, the Letters of
Credit, each Note, each Rate Protection Agreement, the Pledge Agreements, the
Fee Letters, each Guarantee, each agreement pursuant to which the Administrative
Agent is granted a Lien to secure the Obligations and each other agreement,
certificate, document or instrument delivered in connection with this Agreement
or such other Loan Documents, whether or not specifically mentioned herein or
therein.
"Loans" means, as the context may require, a Revolving Loan or a Term
Loan, of any type.
"Management Agreements" means the Borrower Management Agreement and
each other agreement with respect to the management of the Cable Systems of any
Restricted Subsidiary that is reasonably acceptable to the Administrative Agent.
"Management Fees" means any of the Borrower Management Fees and any of
the management fees payable by any Restricted Subsidiary to any Manager pursuant
to any other Management Agreement.
"Manager" means, as the context may require, as of the Effective Date,
ACI in its capacity as manager under the Borrower Management Agreement (and
shall also include any Affiliate of ACI in its capacity as manager under the
Borrower Management Agreement) and, following the Effective Date, any manager
party to a Management Agreement.
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"Manager Subordination Agreements" means, collectively, (i) the Manager
Subordination Agreement, dated the date hereof, executed and delivered by ACI
and (ii) each other Manager Subordination Agreement from time to time executed
by any Manager, in each case, substantially in the form of Exhibit G-2 hereto
with such changes as agreed to by the Administrative Agent and as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with its terms.
"Managing Agent" means Bank of Montreal, Barclays Bank PLC, CIBC Inc.,
Credit Lyonnais, New York Branch, Credit Suisse First Boston, First Union
National Bank, Fleet Bank, N.A., PNC Bank, National Association, Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., New York Branch and Salomon Brothers
Holding Company Inc.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, properties or assets, liabilities, condition (financial or
otherwise), results of operations or prospects of the Borrower and the
Restricted Subsidiaries taken as a whole, (b) the ability of the Borrower to
perform its Obligations under the Loan Documents or (c) the validity or
enforceability of this Agreement or any other Loan Document or the rights or
remedies of the Administrative Agent, the Lenders or the Issuers hereunder or
thereunder.
"Merge" is defined in Section 7.2.9.
"Minority Owner" means any Person that owns less than 51% of the
Capital Securities of any Restricted Subsidiary.
"Minority Owner Pledge Agreement" means a Pledge Agreement to be
executed and delivered by an Authorized Officer of a Minority Owner, in
substantially the form of the Borrower Pledge Agreement with such changes as the
Administrative Agent may reasonably request, as amended, supplemented, amended
and restated or otherwise modified from time to time in accordance with its
terms.
"Moody's" means Moody's Investors Service, Inc.
"NationsBank" is defined in the preamble.
"Net Disposition Proceeds" means, with respect to any Permitted
Disposition, the excess of
(a) the gross Permitted Consideration received as a result of
such Permitted Disposition
less
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(b) all reasonable fees and expenses with respect to legal,
accounting 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 the Borrower or any of its 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 the definition of "Permitted
Disposition".
"Net Income" means, for any period, the aggregate of all amounts which,
in accordance with GAAP, would be included as net income on the consolidated
financial statements of the Borrower and its Restricted Subsidiaries for such
period.
"Non-Excluded Taxes" means any Taxes other than net income and
franchise taxes imposed with respect to any Credit Party by a Governmental
Authority under the laws of which such Credit Party is organized or in which it
maintains its applicable lending office.
"Non-U.S. Lender" means any Lender that is not a "United States
person", as defined under section 7701(a)(30) of the Code.
"Note" means, as the context may require, a Revolving Note or a Term
Note.
"Obligated Party" means, collectively, each Restricted Subsidiary and
each Person that has granted a Lien in favor of the Secured Parties pursuant to
any Loan Document.
"Obligations" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured) of the Borrower and each other
Obligor arising under, or in connection with, this Agreement and each other Loan
Document.
"Obligor" means, as the context may require, (i) the Borrower, each
Restricted Subsidiary and each Partner and (ii) the Manager or any other Person
(other than a Secured Party) obligated under any Loan Document (other than the
Intercompany Subordination Agreement).
"Operating Cash Flow" means, without duplication, during any period and
with respect to the Borrower and its Restricted Subsidiaries, the sum during
such period of:
(a) Net Income;
plus
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(b) to the extent deducted in determining such Net Income,
interest expense, depreciation, amortization and income taxes of the
Borrower and its Restricted Subsidiaries;
provided, that (i) in calculating Operating Cash Flow, there shall be excluded
from such calculation all non-cash charges and non-cash expenses, non-cash
income and non-cash gains; and (ii) if the Borrower or any of its Restricted
Subsidiaries shall have made any Dispositions of Cable Systems, Permitted
Business Acquisitions or Asset Swaps during such period, Operating Cash Flow for
such period shall be adjusted on a pro forma basis to give effect to all such
Dispositions, Permitted Business Acquisitions or Asset Swaps as if they had
occurred at the beginning of such period.
"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement and all
shareholder agreements, voting trusts and similar arrangements applicable to any
of such Obligor's shares of Capital Securities.
"Participant" is defined in Section 10.11.2.
"Partners" means Parnassos Communications, L.P., a Delaware limited
partnership and the managing general partner of the Borrower, and Parnassos
Holdings, LLC, a Delaware limited liability company and, as of the Effective
Date, the sole limited partner of the Borrower, and their respective successors,
transferees and assigns.
"Partners Pledge Agreement" means the Pledge Agreement, executed and
delivered by each Partner pursuant to Section 5.1.5, substantially in the form
of Exhibit H-1 hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with its terms.
"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 the
Borrower or any corporation, trade or business that is, along with the 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, as the context may require, any Lender's Revolving
Loan Percentage or Term Loan Percentage.
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"Permitted Business Acquisition" means any Investment or Acquisition
(other than an Asset Swap) made by the Borrower or any of its Restricted
Subsidiaries of (a) a Person that owns and operates a Cable System or business
permitted by Section 7.2.1 or (b) a Cable System or business permitted by
Section 7.2.1, in either case, only if (i) as a result of such Acquisition or
Investment such Person becomes a Restricted Subsidiary or (if assets are being
purchased), such purchase is made by the Borrower or a Restricted Subsidiary,
(ii) no Default shall have occurred and be continuing immediately before or
after giving effect to such Acquisition or Investment, (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 and (iv) prior to consummating any Investment or Acquisition
with a purchase price (based on both cash and non-cash consideration) in excess
of $50,000,000, the Borrower shall have delivered to the Administrative Agent a
pro forma Compliance Certificate for the most recently reported Fiscal Quarter
(prepared in good faith and in a manner and using such methodology which is
consistent with the most recent financial statements delivered pursuant to
Section 7.1.1) giving pro forma effect to the consummation of such acquisition
and evidencing compliance with the covenants set forth in Section 7.2.4.
"Permitted Consideration" means cash, Cash Equivalent Investments of
the type set forth in clauses (a), (b) or (c)(i) of that definition, common or
preferred Capital Securities (including debt securities) issued by a Person
which has Investment Grade Senior Debt or common or preferred Capital Securities
issued by a Person engaged as its primary business in owning and operating Cable
Systems whose long-term senior, unsecured debt for borrowed money (without
credit enhancement) is rated BB or above by S&P or Ba2 or above by Moody's. Any
non-cash Permitted Consideration shall be valued at the Fair Market Value of
such assets as of the date of the applicable Disposition.
"Permitted Disposition" means any Disposition (other than as permitted
by Section 7.2.5, Section 7.2.6, clauses (a) and (b) of Section 7.2.9, clauses
(c), (d), (e) or (f) of Section 7.2.10 or an Asset Swap) of assets (which shall
include Cable Systems) of the Borrower and its Restricted Subsidiaries, whether
in a single transaction or a series of related transactions, to any Person
(including Unrestricted Subsidiaries), but only if (i) no Default has occurred
and is continuing or would result therefrom, (ii) the consideration received for
such Disposition is Permitted Consideration and represents the Fair Market Value
for such assets, and (iii) all Net Disposition Proceeds shall either be
reinvested or applied toward the prepayment of the Loans pursuant to Sections
3.1.1 and 3.1.2.
"Permitted Existing Asset Transfer" means, in the case of Existing
Assets only, a Disposition (by way of Permitted Dispositions of Existing Assets,
Restricted Payments, Asset Swaps or a Merger permitted by clause (c) of Section
7.2.9), whereby, unless otherwise agreed to by the Required Lenders (such
consent not to be unreasonably withheld), (i) the System Cash
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Flow Percentage of such Existing Assets Disposed of by the Borrower and its
Restricted Subsidiaries in any single Disposition shall be 25% or less and (ii)
the System Cash Flow Percentage of all such Existing Assets Disposed of by the
Borrower and its Restricted Subsidiaries subsequent to the date of this
Agreement shall not exceed, in the aggregate, 35%; provided, that if the Fair
Market Value of the Existing Assets being Disposed equals or exceeds
$50,000,000, the Borrower shall, at least seven Business Days prior to effecting
any such Disposition, deliver to the Administrative Agent a Compliance
Certificate (for the most recently ended full Fiscal Quarter for which a
Compliance Certificate was delivered preceding such Disposition) executed by an
Authorized Officer of the Borrower demonstrating to the satisfaction of the
Administrative Agent pro forma compliance with the covenants set forth in
Section 7.2.4 after giving effect to such Disposition.
"Person" means any natural person, corporation, limited liability
company, partnership, joint venture, association, trust or unincorporated
organization, Governmental Authority or any other legal entity, whether acting
in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreements" means, collectively, the Partners Pledge Agreement,
the Borrower Pledge Agreement, any Minority Owner Pledge Agreement and the
Subsidiary 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.
"Pole Rental Lease" means any lease under which the Borrower or any of
its Restricted Subsidiaries has the right to use telephone or utility poles,
conduits or trenches for the purpose of supporting or housing cables of any
Cable System owned or operated by the Borrower or any of its Subsidiaries.
"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 Balance Sheet" is defined in Section 5.1.13.
"Pro-Forma Debt Service" means, at any date of determination and with
respect to the Borrower and its 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 Total
Debt of the Borrower and its Restricted Subsidiaries, for the four Fiscal
Quarters immediately succeeding such date of determination. On any date of
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determination, "scheduled principal payments" under this Agreement shall equal
the sum of (i) the aggregate outstanding principal amount of the Revolving Loans
plus Letter of Credit Outstandings on such date of determination less the
Revolving Loan Commitment Amount that will be in effect at the end of such
period (which amount under this clause (i) shall be deemed to never be less than
zero), and (ii) the aggregate amount of Term Loans scheduled to be repaid
pursuant to clause (d) of Section 3.1.1 during such period.
"Pro-Forma Interest Expense" means, at any date of determination
thereof, the Interest Expense (calculated using interest rates in effect on the
last day of the most recently ended Fiscal Quarter of the Borrower) of the
Borrower and its Restricted Subsidiaries for the four Fiscal Quarters
immediately succeeding such date of determination.
"Property Contribution" means any capital contribution of real or
personal property made in the Borrower after the Effective Date by ACC, the
Rigas Family, any Partner or any Affiliate of any of the foregoing.
"Quarterly Payment Date" means the last day of March, June, September
and December, or, if any such day is not a Business Day, the next succeeding
Business Day.
"Rate Protection Agreement" means, collectively, any currency exchange
agreements, interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements, and all other agreements or arrangements
designed to protect against fluctuations in interest rates or currency exchange
rates entered into by the Borrower or any of its Restricted Subsidiaries under
which the counterparty to such agreement is (or at the time such agreement was
entered into, was) a Lender or an Affiliate of a Lender.
"Register" is defined in Section 2.7.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in clause (g) of Section 10.11.1.
"Required Lenders" means, at any time,
(a) prior to the date of the making of the initial Credit
Extension hereunder, Lenders having at least 51% of the Term Loan
Commitments and the Revolving Loan Commitments; and
(b) on and after the Effective Date, Lenders holding at least
51% of the Total Exposure Amount.
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"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.
"Restricted Payment" means, in each case directly or indirectly,
whether in cash or property, obligations of the Borrower or any Restricted
Subsidiary or otherwise in respect of (a) the declaration or payment of any
dividend on, or the making of any repayment or prepayment or distribution on
account of, or setting apart assets for a sinking or other analogous fund for,
the purchase, redemption, defeasance, retirement or other acquisition of
Subordinated Debt (other than the payment of interest or premium, thereon)
pursuant to the last sentence of Section 7.2.8, of the principal amount of
and/or interest or premium on Affiliate Indebtedness (other than Management
Fees) or on any class of Capital Security of the Borrower or any Restricted
Subsidiary (other than dividends or distributions made in Capital Securities (of
the type set forth in clause (a) of the definition thereof) of the Borrower
which does not result in a Default) or any warrants or options to purchase any
such Capital Security, whether now or hereafter outstanding, or the making of
any other distribution in respect thereof (other than dividends or distributions
made by Restricted Subsidiaries to the Borrower or to other Restricted
Subsidiaries) and (b) Investments by the Borrower or any Restricted Subsidiary
in an Unrestricted Subsidiary.
"Restricted Subsidiary" means each Subsidiary that is not an
Unrestricted Subsidiary.
"Revolving Loan" is defined in Section 2.1.1.
"Revolving Loan Commitment" means, relative to any Lender, such
Lender's obligation (if any) to make Revolving Loans pursuant to Section 2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $350,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" means the earliest of
(a) January 5, 1999 (if the initial Credit Extension has not
occurred on or prior to such date);
(b) June 30, 2007;
(c) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to the terms of this
Agreement; and
(d) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in the preceding clauses (c) or (d),
the Revolving Loan Commitments shall terminate automatically and without any
further action.
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"Revolving Loan Lender" is defined in Section 2.1.1.
"Revolving Loan Percentage" means, relative to any Lender, its
percentage (if any) of the Revolving Loan Commitment Amount set forth opposite
its name on Schedule II hereto under the Revolving Loan Commitment column, as
such percentage may be adjusted from time to time pursuant to Lender Assignment
Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered
pursuant to Section 10.11.1.
"Revolving Note" means a promissory note of the Borrower payable to any
Revolving Loan Lender, in the form of Exhibit A-1 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to such Revolving Loan
Lender resulting from outstanding Revolving Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"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 Services, a division of the
McGraw-Hill Companies..
"Scotiabank" is defined in the preamble.
"SEC" means the Securities and Exchange Commission.
"Secured Parties" means, collectively, the Lenders, the Issuers, the
Administrative Agent, each counterparty to a Rate Protection Agreement and (in
each case), each of their respective successors, transferees and assigns.
"SMATV System" means any Cable System that is a satellite master
antenna television system as such term is commonly understood in the cable
television industry.
"Stated Amount" means, on any date and with respect to a particular
Letter of Credit, the total amount then available to be drawn under such Letter
of Credit regardless of whether conditions to drawing are then satisfied.
"Stated Expiry Date" is defined in Section 2.6.
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"Stated Maturity Date" means June 30, 2007.
"Sub Debt Documents" means, collectively, the loan agreements,
indentures, note purchase agreements, promissory notes, guarantees, and other
instruments and agreements evidencing the terms of Subordinated Debt, as
amended, supplemented, amended and restated or otherwise modified in accordance
with Section 7.2.11.
"Subordinated Debt" means all Indebtedness (other than Affiliate
Indebtedness or Intercompany Indebtedness) of the Borrower and its Restricted
Subsidiaries incurred pursuant to any Sub Debt Document, subordinated (in each
case) on customary terms reasonably satisfactory to the Arranging Agents,
including the following terms:
(a) payments of scheduled amortizations of the Subordinated
Debt and the scheduled maturity thereof shall not occur prior to July
1, 2007;
(b) no security interest in or Lien on any assets of the
Partners, the Borrower or any Restricted Subsidiary shall be given to
secure Subordinated Debt;
(c) upon any payment or distribution of assets of the 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,
principal and interest) on Subordinated Debt shall be made; and
(d) if prior to payment in full of the Obligations in cash,
the holder of Subordinated Debt receives any payment in respect of such
Subordinated Debt or a Lien on (or security interest in) any assets of
any Obligor and has actual knowledge that such payment is not
permitted, such payment or security shall be delivered to the
Administrative Agent.
"Subordinated Notes" means, collectively, any promissory notes
evidencing Subordinated Debt, as such notes or instruments may be amended,
supplemented or otherwise modified from time to time in accordance with Section
7.2.11.
"Subordination Agreements" means, collectively, the Intercompany
Subordination Agreement and each Manager Subordination Agreement.
"Subordination Provisions" is defined in Section 8.1.11.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership or other entity of which more than 50% of
the outstanding Capital Securities having ordinary voting power to elect the
board of directors, managers or other voting members of the governing body of
such corporation, limited liability company, partnership or
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other entity (irrespective of whether at the time securities (or other ownership
interest) of any other class or classes of such corporation, limited liability
company, partnership or other entity shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned or
controlled 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. Unless the
context otherwise specifically requires, the terms "Subsidiary", "Restricted
Subsidiary" and "Unrestricted Subsidiary" shall be references to a Subsidiary of
the Borrower.
"Subsidiary Guarantor" means each Subsidiary that is required, pursuant
to Section 7.1.11, to execute and deliver a Subsidiary Guaranty, and
collectively means all such Persons.
"Subsidiary Guaranty" means the guaranty executed and delivered by each
Subsidiary Guarantor pursuant to the terms of this Agreement in substantially
the form of Exhibit I hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Subsidiary Pledge Agreement" means the pledge agreement executed and
delivered by each Subsidiary Pledgor pursuant to the terms of this Agreement in
substantially the form of the Borrower Pledge Agreement with such changes as the
Administrative Agent may reasonably request, as amended, supplemented, amended
and restated or otherwise modified from time to time in accordance with its
terms.
"Subsidiary Pledgor" means each Subsidiary of the Borrower that is
required, pursuant to Section 7.1.11, to execute and deliver a Subsidiary Pledge
Agreement, and collectively means all such Persons.
"Supplemental Lenders" is defined in Section 2.8.
"Synthetic Lease" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) (i) that is not a capital lease in accordance
with GAAP and (ii) in respect of which the lessee retains or obtains ownership
of the property so leased for federal income tax purposes, other than any such
lease under which that Person is the lessor.
"System Cash Flow Percentage" means, on any date of determination, as
to any assets (including Cable Systems) being Disposed of, the percentage of the
total Annualized Operating Cash Flow (arising solely from the Existing Assets),
based on the most recent full Fiscal Quarter ended prior to the date of such
Disposition contributed by such assets and/or Cable Systems (and subscribers
thereof of such Cable Systems).
"Taxes" means any and all income, stamp or other taxes, duties, levies,
imposts, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, and all
interest, penalties or similar liabilities with respect thereto.
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"TCIA" means TCI Adelphia Holdings, LLC, a Delaware limited liability
company.
"TD" is defined in the preamble.
"Term Loan" is defined in Section 2.1.3.
"Term Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Term Loans pursuant to Section 2.1.3.
"Term Loan Commitment Amount" means, on any date, $350,000,000.
"Term Loan Commitment Termination Date" means the earlier of
(a) January 5, 1999 (if the initial Credit Extension has not
occurred on or prior to such date);
(b) the date the initial Credit Extensions are made
(immediately after the making of the Term Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Term Loan
Commitments shall terminate automatically and without any further action.
"Term Loan Lender" is defined in Section 2.1.3.
"Term Loan Percentage" means, relative to any Lender, its percentage
(if any) of the Term Loan Commitment Amount set forth opposite its name on
Schedule II hereto under the Term Loan Commitment column, as such percentage may
be adjusted from time to time pursuant to Lender Assignment Agreement(s)
executed by such Lender and its Assignee Lender(s) and delivered pursuant to
Section 10.11.1.
"Term Note" means a promissory note of the Borrower payable to any
Lender, in the form of Exhibit A-2 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Term Loans, and also means all other promissory notes accepted from time to time
in substitution therefor or renewal thereof.
"Termination Date" means the date on which all Obligations (other than
in respect of the Rate Protection Agreements) shall have been paid in full in
cash, all Letters of Credit have been terminated or expired (or the
Administrative Agent shall have received immediately available funds in an
amount equal to all Letter of Credit Outstandings, deposited in a cash
collateral account with the Administrative Agent or its designee on terms
satisfactory to the Administrative
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Agent), all Rate Protection Agreements have been terminated and all Commitments
shall have terminated.
"Total Debt" means, on any date, the amount (in excess of zero) of (i)
the sum of the outstanding principal amount of all Indebtedness of the Borrower
and its Restricted Subsidiaries of the type referred to in clause (a) (exclusive
of Affiliate Indebtedness and Intercompany Indebtedness), clause (b), clause (c)
and clause (g), in each case of the definition of "Indebtedness" and (without
duplication) any Contingent Liability in respect of any of the foregoing minus
(ii) any Excess Cash Balance existing on such date.
"Total Exposure Amount" means, on any date of determination (and
without duplication), the outstanding principal amount of all Loans, the
aggregate amount of all Letter of Credit Outstandings and the unfunded amount of
the Commitments.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"U.C.C." means the Uniform Commercial Code as from time to time in
effect in the State of New York.
"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 the 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 the Borrower that is promptly delivered to the
Administrative Agent as an Unrestricted Subsidiary.
"U.S. Subsidiary" means any Subsidiary that is incorporated or
organized under the laws of the United States or a state thereof or the District
of Columbia.
"Voting Stock" means, with respect to any Person, Capital Securities of
any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Weighted Average Life to Maturity" means, relative to any Indebtedness
at any date, the number of years (rounded to the nearest one-twelfth) obtained
by dividing (a) the then outstanding principal amount of such Indebtedness into
(b) the total of the product obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment of final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment.
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"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
"wholly-owned" 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 Subsidiary" shall mean a
Subsidiary of the Borrower that is also a wholly-owned Subsidiary of the
Borrower.
"Year 1" is defined in Section 7.2.7.
"Year 2" is defined in Section 7.2.7.
SECTION 1.2. Use 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 each other Loan Document and the
Disclosure Schedule.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document 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.
SECTION 1.4. Accounting and Financial Determinations. (a) Unless
otherwise specified, all accounting terms used herein or in any other Loan
Document shall be interpreted, and all accounting determinations and
computations hereunder or thereunder (including under Section 7.2.4) shall be
made, in accordance with, those generally accepted accounting principles
("GAAP") applied in the preparation of the financial statements referred to
Section 5.1.13. Unless otherwise expressly provided, all financial covenants and
defined financial terms shall be computed on a consolidated basis for the
Borrower and its Restricted Subsidiaries, in each case without duplication.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES AND NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions
of this Agreement, the Lenders and the Issuers severally agree to make Credit
Extensions as set forth below.
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SECTION 2.1.1. Revolving Loan Commitment. From time to time on any
Business Day occurring from and after the Effective Date but prior to the
Revolving Loan Commitment Termination Date, each Lender with a Revolving Loan
Percentage in excess of zero (referred to as a "Revolving Loan Lender"), will
make loans (relative to such Lender, its "Revolving Loans") to the Borrower
equal to such Lender's Revolving Loan Percentage of the aggregate amount of each
Borrowing of the Revolving Loans requested by the Borrower to be made on such
day. On the terms and subject to the conditions hereof, the Borrower may from
time to time borrow, prepay and reborrow Revolving Loans.
SECTION 2.1.2. Letter of Credit Commitment. From time to time on any
Business Day occurring from and after the Effective Date but no later than five
Business Days prior to the Revolving Loan Commitment Termination Date, each
Issuer will
(a) issue one or more standby letters of credit (relative to
such Issuer, its "Letter of Credit") for the account of the Borrower or
any Subsidiary Guarantor in the Stated Amount requested by the Borrower
on such day; or
(b) extend the Stated Expiry Date of an existing standby
Letter of Credit previously issued hereunder to a date not later than
the earlier of (x) five Business Days prior to the Revolving Loan
Commitment Termination Date and (y) unless otherwise agreed to by such
Issuer in its sole discretion, one year from the date of such
extension.
SECTION 2.1.3. Term Loan Commitment. In a single Borrowing (which shall
be on a Business Day) occurring on or after the Effective Date but prior to the
Term Loan Commitment Termination Date (the "Initial Funding Date"), each Lender
with a Term Loan Percentage in excess of zero (referred to as a "Term Loan
Lender") will make loans (relative to such Lender, its "Term Loans") to the
Borrower equal to such Lender's Term Loan Percentage of the aggregate amount of
the Borrowing of Term Loans requested by the Borrower to be made on such day
(with the commitment of each such Lender described in this clause herein
referred to as its "Term Loan Commitment").
No amounts paid or prepaid with respect to Term Loans may be reborrowed.
SECTION 2.1.4. Lenders 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
(a) all Revolving Loans (i) of all Revolving Loan Lenders,
together with the aggregate amount of all Letter of Credit
Outstandings, would exceed the then existing Revolving Loan Commitment
Amount; or (ii) of such Revolving Loan Lender, together with such
Lender's Revolving Loan Percentage of the aggregate amount of all
Letter of Credit Outstandings, would exceed such Lender's Revolving
Loan Percentage of the then existing Revolving Loan Commitment Amount;
and
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(b) all Term Loans (i) of all Term Loan Lenders made on the
Initial Funding Date would exceed the Term Loan Commitment Amount; or
(ii) of a Term Loan Lender would exceed such Term Loan Lender's Term
Loan Percentage.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall 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 Revolving Loans then outstanding would exceed
the Revolving Loan Commitment Amount then in effect.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment
Amounts are subject to reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrower may, from time to time on any
Business Day occurring after the Effective Date, voluntarily reduce the amount
of the Revolving Loan Commitment Amount or the Letter of Credit Commitment
Amount on the Business Day so specified by the Borrower; provided, however, that
all such reductions shall require at least one Business Day's prior notice to
the Administrative Agent and be permanent, and any partial reduction of any
Commitment Amount shall be in a minimum amount of $5,000,000 and in an integral
multiple of $1,000,000. Any optional or mandatory reduction of the Revolving
Loan Commitment Amount pursuant to the terms of this Agreement which reduces the
Revolving Loan Commitment Amount below the Letter of Credit Commitment Amount
shall result in an automatic and corresponding reduction of the Letter of Credit
Commitment Amount (as directed by the Borrower in a notice to the Administrative
Agent delivered together with the notice of such voluntary reduction in the
Revolving Loan Commitment Amount) to an aggregate amount not in excess of the
Revolving Loan Commitment Amount, as so reduced, without any further action on
the part of any Issuer.
SECTION 2.2.2. Mandatory Reduction of Revolving Loan Commitment
Amount. Prior to the Revolving Loan Commitment Termination Date, the Revolving
Loan Commitment Amount shall also be permanently reduced as follows:
(a) Commencing on December 31, 2001, and on each subsequent
Quarterly Payment Date occurring during each period set forth below,
the Revolving Loan Commitment Amount will be reduced in an amount
corresponding to the percentage of the Revolving Loan Commitment Amount
existing on the Effective Date set forth opposite such period:
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Amount Of
Period Reduction
------ ---------
10/01/01 through (and
including) 12/31/02 3.00%
01/01/03 through (and
including) 12/31/05 4.25%
01/01/06 through (and
including) 03/31/07 5.50%
04/01/07 through (and
including) 06/30/07 6.50%, or the then
outstanding principal amount
of all Revolving Loans, if
different.
(b) After all Term Loans (and, if applicable, term loans made
under the Incremental Facility) have been paid in full, the Revolving
Loan Commitment Amount will be permanently reduced in an amount equal
to 100% of the Net Disposition Proceeds remaining after giving effect
to any Net Disposition Proceeds applied to Term Loan prepayments to the
extent (and on the dates) required pursuant to clause (c) of Section
3.1.1, with the commitment reduction applied against future scheduled
reductions in the Revolving Loan Commitment Amount (as set forth in
clause (a) above), ratably in accordance with the then remaining
scheduled reductions in the Revolving Loan Commitment Amount.
SECTION 2.3. Borrowing Procedure. By delivering a Borrowing Request to
the Administrative Agent on or before 10:00 a.m., New York time (in the case of
Base Rate Loan) or 12:00 noon (in the case of a LIBO Rate Loan), on a Business
Day, the Borrower may from time to time irrevocably request on such Business Day
in the case of Base Rate Loans, or three Business Days' notice in the case of
LIBO Rate Loans, and in either case not more than five Business Days' notice,
that a Borrowing be made, in the case of LIBO Rate Loans, in a minimum amount of
$5,000,000 and an integral multiple of $1,000,000, in the case of Base Rate
Loans, in a minimum amount of $3,000,000 and an integral multiple of $1,000,000
or, in either case, in the unused amount of the applicable Commitment. 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 time (or, if later,
two hours following the Administrative Agent's providing of notice to such
Lender of such Borrowing Request), on such Business Day each Lender that has a
Commitment to make the Loans being requested shall deposit with the
Administrative Agent same day funds in an
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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 by wire transfer to the accounts the 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.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/ Conversion Notice to the Administrative Agent on or before 12:00
noon, New York time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Day's notice in the case of
Base Rate Loans, or three Business Days' notice in the case of LIBO Rate Loans,
and in either case not more than five Business Days' notice, that all, or any
portion in an aggregate minimum amount of $5,000,000 and an integral multiple of
$1,000,000 be, in the case of Base Rate Loans, converted into LIBO Rate Loans or
be, in the case of LIBO Rate Loans, converted into Base Rate Loans or continued
as LIBO Rate Loans (in the absence of delivery of a Continuation/Conversion
Notice with respect to any LIBO Rate Loan at least three Business Days (but not
more than five Business Days) before the last day of the then current Interest
Period with respect thereto, such LIBO Rate Loan shall, on such last day,
automatically convert to a Base Rate Loan); provided, however, that (x) each
such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders that have made such Loans, and (y) no portion
of the outstanding principal amount of any Loans may be continued as, or be
converted into, LIBO Rate Loans when any Default has occurred and is continuing.
The Administrative Agent will promptly notify the Lenders of each such
Continuation/Conversion Notice and the contents thereof.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO 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 LIBO Rate Loan; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
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 LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent and the applicable Issuer an Issuance Request on or before 12:00 noon.,
New York time, on a Business Day, the Borrower may from time to time irrevocably
request on not less than three nor more than ten Business Days' notice, in the
case of an initial issuance of a Letter of Credit and not less than three
Business Days' prior notice, in the case of a request for the extension of the
Stated Expiry Date of a standby Letter of Credit, that an Issuer issue, or
extend the Stated Expiry Date of, as the case may be, an irrevocable Letter of
Credit in such form as may be requested by the
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Borrower and approved by such Issuer, solely for the purposes described in
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) five
Business Days prior to the Revolving Loan Commitment Termination Date or (ii)
(unless otherwise agreed to by an Issuer, in its sole discretion) one year from
the date of its issuance. Each Issuer will make available to the beneficiary
thereof the original of the Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by an Issuer pursuant hereto, and without further
action, each Revolving Loan Lender (other than such Issuer) shall be deemed to
have irrevocably purchased, to the extent of its Percentage to make Revolving
Loans, a participation interest in such Letter of Credit (including the
Contingent Liability and any Reimbursement Obligation with respect thereto), and
such Revolving Loan Lender shall, to the extent of its Percentage to make
Revolving Loans, be responsible for reimbursing promptly (and in any event
within one Business Day) the applicable Issuer for Reimbursement Obligations
which have not been reimbursed by the Borrower in accordance with Section 2.6.3.
In addition, such Revolving Loan Lender shall, to the extent of its Percentage
to make Revolving Loans, be entitled to receive a ratable portion of the Letter
of Credit fees payable pursuant to Section 3.3.3 with respect to each Letter of
Credit (other than the issuance fees payable to an Issuer of such Letter of
Credit pursuant to the last sentence of Section 3.3.3) and of interest payable
pursuant to Section 3.2 with respect to any Reimbursement Obligation. To the
extent that any Revolving Loan Lender has reimbursed any Issuer for a
Disbursement, such Lender shall be entitled to receive its ratable portion of
any amounts subsequently received (from the Borrower or otherwise) in respect of
such Disbursement.
SECTION 2.6.2. Disbursements. An Issuer will notify the Borrower and
the Administrative Agent promptly of the presentment for payment of any Letter
of Credit issued by such 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 applicable Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. Prior to 12:00 noon, New
York time, on the Disbursement Date, the Borrower will reimburse the
Administrative Agent, for the account of the applicable Issuer, for all amounts
which such Issuer has disbursed under such Letter of Credit, together with
interest thereon at a rate per annum equal to the rate per annum then in effect
for Base Rate Loans (with the then Applicable Margin for Revolving Loans
accruing on such amount) pursuant to Section 3.2 for the period from the
Disbursement Date through the date of such reimbursement. Without limiting in
any way the foregoing and notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the Borrower
hereby acknowledges and agrees that it shall be obligated to reimburse the
applicable Issuer upon each Disbursement of a Letter of Credit, and it shall be
deemed to be the obligor for purposes of each such Letter of Credit issued
hereunder (whether the account party on such Letter of Credit is the Borrower or
a Restricted Subsidiary).
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SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse an Issuer with
respect to each Disbursement (including interest thereon), and, upon the failure
of the Borrower to reimburse an Issuer, each Revolving Loan Lender's obligation
under Section 2.6.1 to reimburse an Issuer, shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or such Revolving Loan Lender, as the case
may be, may have or have had against such Issuer or any Lender, including any
defense based upon the failure of any Disbursement to conform to the terms of
the applicable Letter of Credit (if, in such 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 the Borrower or
such Lender, as the case may be, to commence any proceeding against an Issuer
for any wrongful Disbursement made by such Issuer under a Letter of Credit as a
result of acts or omissions constituting gross negligence or wilful misconduct
on the part of such Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Default under Section 8.1.9 or upon notification by the
Administrative Agent (acting at the direction of the Required Lenders) to the
Borrower of its obligations under this Section, following the occurrence and
during the continuation of any other Event of Default,
(a) the aggregate Stated Amount of all Letters of Credit
shall, without demand upon or notice to the Borrower or any other
Person, be deemed to have been paid or disbursed by the applicable
Issuers of such Letters of Credit (notwithstanding that such amount may
not in fact have been paid or disbursed); and
(b) the Borrower shall be immediately obligated to reimburse
the applicable Issuers for the amount deemed to have been so paid or
disbursed by such Issuers.
Amounts payable by the Borrower pursuant to this Section shall be deposited in
immediately available funds with the Administrative Agent and held as collateral
security for the Reimbursement Obligations. When all Defaults giving rise to the
deemed disbursements under this Section have been cured or waived the
Administrative Agent shall return to the Borrower all amounts then on deposit
with the Administrative Agent pursuant to this Section which have not been
applied to the satisfaction of the Reimbursement Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower, each
other Obligated Party and, to the extent set forth in Section 2.6.1, each
Revolving Loan Lender shall assume all risks of the acts, omissions or misuse of
any Letter of Credit by the beneficiary thereof. No Issuer (except to the extent
of its own gross negligence or wilful misconduct) shall be responsible for:
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(a) 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;
(b) 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;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise; or
(e) 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 any Issuer or any Revolving Loan Lender hereunder.
In furtherance and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by an Issuer in good faith (and not
constituting gross negligence or willful misconduct) shall be binding upon each
Obligated Party and each such Secured Party, and shall not put such Issuer under
any resulting liability to any Obligated Party or any Secured Party, as the case
may be.
SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder. In the
case of a Lender that does not request, pursuant to clause (b)(ii) below,
execution and delivery of a Note evidencing the Loans made by such Lender to the
Borrower, such account or accounts shall, to the extent not inconsistent with
the notations made by the Administrative Agent in the Register, be conclusive
and binding on the Borrower absent manifest error; provided, however, that the
failure of any Lender to maintain such account or accounts shall not limit or
otherwise affect any Obligations of the Borrower or any other Obligor.
(b)(i) The Borrower hereby designates the Administrative Agent to serve
as the Borrower's agent, solely for the purpose of this clause (b), to maintain
a register (the "Register") on which the Administrative Agent will record each
Lender's Commitment, the Loans made by each Lender and each repayment in respect
of the principal amount of the Loans of each Lender
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and annexed to which the Administrative Agent shall retain a copy of each Lender
Assignment Agreement delivered to the Administrative Agent pursuant to Section
10.11.1. Failure to make any recordation, or any error in such recordation,
shall not affect the Borrower's obligation in respect of such Loans. The entries
in the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders shall treat each Person in
whose name a Loan (and as provided in clause (ii) the Note evidencing such Loan,
if any) is registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. A Lender's
Commitment and the Loans made pursuant thereto may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer in the Register. Any assignment or transfer of a Lender's Commitment or
the Loans made pursuant thereto shall be registered in the Register only upon
delivery to the Administrative Agent of a Lender Assignment Agreement duly
executed by the assignor thereof and the compliance by the parties thereto with
the other requirements of Section 10.11.1. No assignment or transfer of a
Lender's Commitment or the Loans made pursuant thereto shall be effective unless
such assignment or transfer shall have been recorded in the Register by the
Administrative Agent as provided in this Section.
(ii) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender, as
applicable, a Note evidencing the Loans made by such Lender. The Borrower hereby
irrevocably authorizes each Lender to make (or cause to be made) appropriate
notations on the grid attached to such Lender's Notes (or on any continuation of
such grid), which notations, if made, shall evidence, inter alia, the date of,
the outstanding principal amount of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. Such notations shall, to the extent
not inconsistent with the notations made by the Administrative Agent in the
Register, be conclusive and binding on the Borrower 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 the Borrower or any other
Obligor.
SECTION 2.8. Incremental Facility. (a) Subject to the terms of this
Agreement and so long as no Default has occurred and is continuing, the Borrower
may request, by written notice to the Administrative Agent delivered not more
than twice over the term of this Agreement, that a revolving credit and/or term
loan facility (the "Incremental Facility") in a specified principal amount which
(when aggregated with the outstanding principal amount of Loans and unused
amount of commitments under all other Incremental Facilities provided pursuant
to this Section) shall not exceed $100,000,000 pursuant to which revolving loans
and/or term loans will be made to the Borrower pursuant to this Agreement. Loans
made pursuant to the Incremental Facility will (subject to clause (c)), be on
terms and conditions satisfactory to the Required Lenders, with (x) revolving
loans under the Incremental Facility being instituted as an increase to the then
existing Revolving Loan Commitment Amount (and having a maturity date the same
as the Stated Maturity Date), and loans made thereunder being "Revolving Loans"
hereunder and otherwise treated pari passu (including as to repayments,
prepayments, interest rate, commitment fees, mandatory commitment reductions,
risk participations in Letters of Credit and collateral)
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pro rata with all other Revolving Loans and (y) term loans under the Incremental
Facility being instituted as an increase to the aggregate outstanding principal
amount of the Term Loans (and having a maturity date the same as the Stated
Maturity Date), and loans made thereunder being "Term Loans" hereunder and
otherwise treated pari passu (as to repayments, prepayments, mandatory
commitment reductions and collateral) pro rata with all other Term Loans,
provided that the Weighted Average Life to Maturity of such Incremental Facility
term loans shall in no event be shorter than the Weighted Average Life to
Maturity of the then outstanding Term Loans.
(b) Upon receipt of such request, the Administrative Agent will
promptly notify, and deliver a copy of such request and related materials to,
each Lender (by telephone or otherwise). Within 15 Business Days after receipt
by the Lenders of such request, each Lender interested in participating in the
requested Incremental Facility shall notify the Administrative Agent and the
Borrower of its desire to participate and the maximum amount of its proposed
Commitment with respect to such Incremental Facility (a "Commitment Notice");
provided, however, that each Lender may participate or not participate in the
Incremental Facility in its sole discretion, and no Lender shall be deemed to
have committed to participate in any Incremental Facility as a result of being a
signatory to this Agreement prior to the effectiveness of the Incremental
Facility, nor shall any Lender have any obligation to participate in any
Incremental Facility unless and until it commits to do so as provided in this
Section. Following receipt of such Commitment Notices, the Borrower (i) shall
allocate the Incremental Facility, which allocations may be made, at the
Borrower's option, in whole or in part to one or more of the Lenders or other
lenders (such Lenders or other lenders, the "Supplemental Lenders") selected by
the Borrower with, as to any Supplemental Lender which is not a Lender
hereunder, the consent of the Administrative Agent and each Issuer (such consent
not to be unreasonably withheld), (ii) shall advise each Lender of the amount of
such Lender's commitment with respect to the Incremental Facility; provided,
however, that the existing Lenders providing a Commitment Notice with respect to
such Incremental Facility shall be entitled to participate in the Incremental
Facility on the same terms and conditions applicable to the Supplemental Lenders
with respect to such Incremental Facility (subject, however, to the allocations
made by the Borrower pursuant to clause (i) above).
(c) Each Lender hereby authorizes the Arranging Agents, without the
requirement to obtain any further consents of the Lenders, the Issuers, the
Managing Agents or the Co-Agents (but subject to the provisions of clauses (a)
through (g) of Section 10.1), to enter into any amendments or supplements
(including an amendment and restatement of the Agreement) with the Borrower to
this and any other Loan Document to the extent necessary to implement the
foregoing and include the Incremental Facility hereunder. By way of example, and
not in limitation, the following items and sections hereof would be revised in
order to implement the Incremental Facility: (a) the definitions of the terms
"Commitment", "Commitment Amount", "Commitment Termination Date", "Loans",
"Note", "Percentage", "Revolving Loan Commitment Amount","Term Loan Commitment
Amount" and "Termination Date"; (b) Sections 2.1.1, 2.1.3, 2.1.4, 2.2, 2.6.1,
3.1.1, and 3.1.2; and (c) Supplemental Lenders not otherwise Lenders hereunder
shall become Lenders hereunder pursuant to a joinder agreement reasonably
satisfactory to the Administrative Agent and the Borrower. Prior to the making
of any
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Loans under the Incremental Facility, the Borrower will satisfy conditions and
provide to the Arranging Agents (with counterparts for each Lender) similar
documents as those executed and provided on the Effective Date including
satisfaction of conditions similar to those contained in Sections 5.1.1, 5.1.2,
5.1.3, 5.1.5, 5.1.6, 5.1.7, 5.1.8, 5.1.9, 5.1.11, 5.1.13, 5.1.14, 5.1.15 and
5.2, and such others as reasonably requested by the Arranging Agents.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application. The Borrower
agrees that the Loans shall be repaid and prepaid pursuant to the following
terms.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the applicable Stated
Maturity Date therefor. Prior thereto, payments and prepayments of Loans shall
or may be made as set forth below.
(a) From time to time on any Business Day, the Borrower may
make a voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Loans; provided, however, that
(i) any such prepayment of the Term Loans shall be
made pro rata among Term Loans of the same type and, if
applicable, having the same Interest Period of all Lenders
that have made such Term Loans (applied pro rata to the
remaining amortization payments for the Term Loans) and any
such prepayment of Revolving Loans shall be made pro rata
among the Revolving Loans of the same type and, if applicable,
having the same Interest Period of all Lenders that have made
such Revolving Loans;
(ii) all such voluntary prepayments (other than those
made on the date of the initial credit extension) shall
require at least three but no more than five Business Days'
prior written notice to the Administrative Agent; and
(iii) all such voluntary partial prepayments shall
be, in the case of LIBO Rate Loans, in an aggregate minimum
amount of $5,000,000 and an integral multiple of $1,000,000
and, in the case of Base Rate Loans, in an aggregate minimum
amount of $3,000,000 and an integral multiple of $1,000,000.
(b) On each date when the sum of (i) the aggregate outstanding
principal amount of all Revolving Loans and (ii) the aggregate amount
of all Letter of Credit Outstandings exceeds the then existing
Revolving Loan Commitment Amount, the Borrower shall make a mandatory
prepayment of Revolving Loans and/or deposit cash collateral with the
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Administrative Agent or its designee pursuant to an agreement
satisfactory to the Administrative Agent to collateralize Letter of
Credit Outstandings, in an aggregate amount equal to such excess.
(c) Within 365 days following the date of any Permitted
Disposition, the Borrower shall (subject to the following proviso) make
a mandatory prepayment of the Loans in an amount equal to 100% of such
Net Disposition Proceeds, to be applied as set forth in Section 3.1.2;
provided, however, that if no Event of Default has occurred and is
continuing, the Borrower may at any time during such 365-day period
apply such Net Disposition Proceeds to purchase one or more Cable
Systems in lieu of the foregoing mandatory prepayment requirement to
the extent that such Net Disposition Proceeds were so applied.
(d) On the Stated Maturity Date and on each Quarterly Payment
Date occurring during any period set forth below, the Borrower shall
make a scheduled repayment of the aggregate outstanding principal
amount, if any, of all Term Loans in an amount equal to the percentage
(of $350,000,000, as such amount may be increased pursuant to Section
2.8) set forth below opposite the Stated Maturity Date or such
Quarterly Payment Date, as applicable:
Amount of Required
Period Principal Repayment
------ -------------------
10/01/00 through (and
including) 03/31/01 2.00%
04/01/01 through (and
including) 03/31/04 3.00%
04/01/04 through (and
including) 12/31/05 4.25%
01/01/06 through (and
including) 03/31/07 5.00%
04/01/07 through (and
including) 06/30/07 5.25%, or the then outstanding
principal amount of all Term
Loans, if different.
(e) Immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 8.2 or Section 8.3, the Borrower
shall repay all the Loans, unless, pursuant to Section 8.3, only a
portion of all the Loans is so accelerated (in which case the portion
so accelerated shall be so repaid).
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Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. No prepayment of
principal of any Revolving Loans pursuant to clause (a) or (b) shall cause a
reduction in the Revolving Loan Commitment Amount.
SECTION 3.1.2. Application. Amounts prepaid pursuant to Section 3.1.1
shall be applied as set forth in this Section.
(a) Subject to clause (b), each prepayment or repayment of the
principal of the Loans shall be applied, to the extent of such
prepayment or repayment, first, to the principal amount thereof being
maintained as Base Rate Loans, and second, subject to the terms of
Section 4.4, to the principal amount thereof being maintained as LIBO
Rate Loans.
(b) Each prepayment of Loans made pursuant to clause (c) of
Section 3.1.1 shall be applied (i) first, to a mandatory prepayment of
the outstanding principal amount of all Term Loans (with the amount of
such prepayment of the Term Loans being applied to the remaining Term
Loan amortization payments, pro rata in accordance with the amount of
each such remaining Term Loan amortization payment), until all Term
Loans have been paid in full, and (ii) second, once all Term Loans have
been repaid in full, all prepayments of Loans made pursuant to clause
(c) of Section 3.1.1 shall be applied to the repayment of any
outstanding Revolving Loans and a reduction of the Revolving Loan
Commitment Amount in accordance with Section 2.2.2.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the Borrower may elect that
Loans comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to
time in effect plus the Applicable Margin; and
(b) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the LIBO
Rate (Reserve Adjusted) for such Interest Period plus the Applicable
Margin.
All LIBO 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 LIBO
Rate Loan.
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SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan or Reimbursement Obligation is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise), or after any other
monetary Obligation of the Borrower shall have become due and payable, the
Borrower 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 sum of
the interest rate then in effect with respect to such Loan or Reimbursement
Obligation (including any Applicable Margin) plus 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan on the principal amount so
paid or prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment
Date occurring after the Effective Date;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on the date occurring on each three-month interval
occurring after the first day of such Interest Period); and
(e) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
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.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, for the period (including
any portion thereof when any of its Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V) commencing on the
Effective Date and continuing through the Revolving Loan Commitment Termination
Date, a commitment fee in an amount equal to the Applicable Commitment Fee
Margin, in each case on such Lender's Percentage of the sum of the average daily
unused portion of the applicable Commitment Amount (net of Letter of Credit
Outstandings, in the case of the Revolving Loan Commitment Amount). All
commitment fees payable pursuant to this Section shall be calculated on a year
comprised of 365 days and payable by the Borrower in arrears on each Quarterly
Payment Date, commencing with the first Quarterly
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Payment Date following the Effective Date, and on the Revolving Loan Commitment
Termination Date.
SECTION 3.3.2. Agent's Fee. The Borrower agrees to pay to the
Administrative Agent, for its own account, the fees in the amounts and on the
dates set forth in the Administrative Agent's Fee Letter. The Borrower agrees to
pay to the applicable party the fees in the amounts and on the dates set forth
in the Arranging Agents' Fee Letter.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of each Revolving Loan Lender, a
Letter of Credit fee in an amount equal to the then effective Applicable Margin
for LIBO Rate Loans, multiplied by the Stated Amount of each such Letter of
Credit, such fees being payable quarterly in arrears on each Quarterly Payment
Date following the date of issuance of each Letter of Credit and on the
Revolving Loan Commitment Termination Date. The Borrower further agrees to pay
to the applicable Issuer for its own account quarterly in arrears on each
Quarterly Payment Date following the date of issuance of a Letter of Credit and
on the Revolving Loan Commitment Termination Date an issuance fee as specified
in the Arranging Agents' Fee Letter.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the
Administrative Agent, be conclusive and binding on the Borrower) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any Governmental Authority asserts that it is unlawful, for such
Lender to make or continue any Loan as, or to convert any Loan into, a LIBO Rate
Loan, the obligations of such Lender to make, continue or convert any such LIBO
Rate Loan 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 outstanding LIBO Rate Loans payable to such
Lender 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.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall
have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to it in its relevant
market; or
(b) by reason of circumstances affecting it's relevant market,
adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans;
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then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees
to reimburse each Lender and Issuer for any increase in the cost to such Lender
or Issuer of, or any reduction in the amount of any sum receivable by such
Lender or Issuer in respect of, such Lender's or Issuer's Commitments and the
making of Credit Extensions hereunder (including the 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, LIBO Rate
Loans) that arise in connection with any change in, or the introduction,
adoption, effectiveness, interpretation, reinterpretation or phase-in after the
date hereof of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority, except
for such changes with respect to increased capital costs and Taxes which are
governed by Sections 4.5 and 4.6, respectively. Each affected Lender or Issuer
shall promptly notify the Administrative Agent and the Borrower in writing of
the occurrence of any such event, such notice to state the reasons therefor and
the additional amount required fully to compensate such Lender or Issuer for
such increased cost or reduced amount. Such additional amounts shall be payable
by the Borrower directly to such Lender or Issuer 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 Borrower.
SECTION 4.4. Funding 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 or continue any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a LIBO Rate Loan)
as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loan on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
Article III or otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/Conversion Notice
therefor;
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender in each case at the applicable rate of
interest for such Loans provided for in this Agreement over the
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amount of interest (as reasonably determined by such Lender) which would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the London interbank market. Such
written notice shall, in the absence of manifest error, be conclusive and
binding on the Borrower.
SECTION 4.5. Increased 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 Governmental Authority affects
or would affect the amount of capital required or expected to be maintained by
any Lender or Issuer or any Person controlling such Lender or Issuer, and such
Lender or Issuer determines (in good faith but in its sole and absolute
discretion) that the rate of return on its or such controlling Person's capital
as a consequence of the Commitments or the Credit Extensions made, or the
Letters of Credit participated in, by such Lender or Issuer is reduced to a
level below that which such Lender or Issuer 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 or Issuer to the Borrower, the
Borrower shall within five days following receipt of such notice pay directly to
such Lender or Issuer additional amounts sufficient to compensate such Lender or
Issuer or such controlling Person for such reduction in rate of return. A
statement of such Lender or Issuer as to any such additional amount or amounts
shall, in the absence of manifest error, be conclusive and binding on the
Borrower. In determining such amount, such Lender or Issuer may use any method
of averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable.
SECTION 4.6. Taxes. The Borrower covenants and agrees as follows with
respect to Taxes.
(a) Any and all payments by the Borrower under this Agreement
and each other Loan Document shall be made without setoff, counterclaim
or other defense, and free and clear of, and without deduction or
withholding for or on account of, any Taxes. In the event that any
Taxes are required by law to be deducted or withheld from any payment
required to be made by the Borrower to or on behalf of any Credit Party
under any Loan Document, then (i) subject to clause (f), if such Taxes
are Non-Excluded Taxes, the amount of such payment shall be increased
as may be necessary such that such payment is made, after withholding
or deduction for or on account of such Taxes, in an amount that is not
less than the amount provided for herein or in such other Loan
Document; and (ii) the Borrower shall withhold the full amount of such
Taxes from such payment (as increased pursuant to clause (a) (i)) and
shall pay such amount to the Governmental Authority imposing such Taxes
in accordance with applicable law.
(b) In addition, the Borrower shall pay any and all Other
Taxes imposed to the relevant Governmental Authority imposing such
Other Taxes in accordance with applicable law.
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(c) As promptly as practicable after the payment of any Taxes
or Other Taxes, and in any event within 45 days of any such payment
being due, the Borrower shall furnish to the Administrative Agent a
copy of an official receipt (or a certified copy thereof) evidencing
the payment of such Taxes or Other Taxes. The Administrative Agent
shall make copies thereof available to any Lender upon request
therefor.
(d) Subject to clause (f), the Borrower shall indemnify each
Credit Party for any Non-Excluded Taxes and Other Taxes levied, imposed
or assessed on (and whether or not paid directly by) such Credit Party
(whether or not such Non-Excluded Taxes or Other Taxes are correctly or
legally asserted by the relevant Governmental Authority). Promptly upon
having knowledge that any such Non-Excluded Taxes or Other Taxes have
been levied, imposed or assessed, and promptly upon notice thereof by
any Credit Party, the Borrower shall pay such Non-Excluded Taxes or
Other Taxes directly to the relevant Governmental Authority (provided,
however, that no Credit Party shall be under any obligation to provide
any such notice to the Borrower). In addition, the Borrower shall
indemnify each Credit Party for any incremental Taxes that may become
payable by such Credit Party as a result of any failure of the Borrower
to pay any Taxes when due to the appropriate Governmental Authority or
to deliver to the Administrative Agent, pursuant to clause (c),
documentation evidencing the payment of Taxes or Other Taxes. With
respect to indemnification for Non-Excluded Taxes and Other Taxes
actually paid by any Credit Party or the indemnification provided in
the immediately preceding sentence, such indemnification shall be made
within 30 days after the date such Credit Party makes written demand
therefor. The Borrower acknowledges that any payment made to any Credit
Party or to any Governmental Authority in respect of the
indemnification obligations of the Borrower provided in this clause
shall constitute a payment in respect of which the provisions of clause
(a) and this clause shall apply.
(e) Each Non-U.S. Lender, on or prior to the date on which
such non-U.S. Lender becomes a Lender hereunder (and from time to time
thereafter upon the request of the Borrower or the Administrative
Agent, but only for so long as such non-U.S. Lender is legally entitled
to do so), shall deliver to the Borrower and the Administrative Agent
either
(i) (x) two duly completed copies of either (A)
Internal Revenue Service Form 1001 or (B) Internal Revenue
Service Form 4224, or in either case an applicable successor
form, and (y) a duly completed copy of Internal Revenue
Service Form W-8 or W-9 or applicable successor form; or
(ii) in the case of a Non-U.S. Lender that is not
legally entitled to deliver either form listed in clause
(e)(i)(x), (x) a certificate of a duly authorized officer of
such Non-U.S. Lender to the effect that such Non-U.S. Lender
is not (A) a "bank" within the meaning of Section 881(c)(3)(A)
of the Code, (B) a "10 percent shareholder" of the Borrower
within the meaning of Section 881(c)(3)(B) of the
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Code, or (C) a controlled foreign corporation receiving
interest from a related person within the meaning of Section
881(c)(3)(C) of the Code (such certificate, an "Exemption
Certificate") and (y) two duly completed copies of Internal
Revenue Service Form W-8 or applicable successor form.
(f) The Borrower shall not be obligated to gross up any
payments to any Lender pursuant to clause (a)(i), or to indemnify any
Lender pursuant to clause (d), in respect of United States federal
withholding taxes to the extent imposed as a result of (i) the failure
of such Lender to deliver to the Borrower the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to clause
(e), (ii) such form or forms and/or Exemption Certificate not
establishing a complete exemption from U.S. federal withholding tax or
the information or certifications made therein by the Lender being
untrue or inaccurate on the date delivered in any material respect, or
(iii) the Lender designating a successor lending office at which it
maintains its Loans which has the effect of causing such Lender to
become obligated for tax payments in excess of those in effect
immediately prior to such designation; provided, however, that the
Borrower shall be obligated to gross up any payments to any such Lender
pursuant to clause (a)(i), and to indemnify any such Lender pursuant to
clause (d), in respect of United States federal withholding taxes if
(i) any such failure to deliver a form or forms or an Exemption
Certificate or the failure of such form or forms or Exemption
Certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted
from a change in any applicable statute, treaty, regulation or other
applicable law or any interpretation of any of the foregoing occurring
after the date hereof, which change rendered such Lender no longer
legally entitled to deliver such form or forms or Exemption Certificate
or otherwise ineligible for a complete exemption from U.S. federal
withholding tax, or rendered the information or certifications made in
such form or forms or Exemption Certificate untrue or inaccurate in a
material respect, (ii) the redesignation of the Lender's lending office
was made at the request of the Borrower or (iii) the obligation to
gross up payments to any such Lender pursuant to clause (a)(i) or to
indemnify any such Lender pursuant to clause (d) is with respect to an
Assignee Lender that becomes an Assignee Lender as a result of an
assignment made at the request of the Borrower.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided in a Loan Document, all payments by the Borrower pursuant to this
Agreement or any other Loan Document shall be made by the Borrower to the
Administrative Agent for the pro rata account of the Credit Parties entitled to
receive such payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or counterclaim,
not later than 2:00 p.m., New York 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 Borrower. 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 Credit Party its share, if any, of such payments received
by the
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Administrative Agent for the account of such Credit Party. All interest and fees
based upon the LIBO Rate (Reserve Adjusted) 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 and all other interest and fees shall be computed in
the same manner, however such calculations will be based upon a year comprised
of 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") 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.
SECTION 4.8. Sharing of Payments. If any Credit Party shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Credit Extension or Reimbursement
Obligation (other than pursuant to the terms of Section 4.3, 4.4, 4.5 or 4.6) in
excess of its pro rata share of payments obtained by all Credit Parties, such
Credit Party shall purchase from the other Credit Parties such participations in
Credit Extensions made by them as shall be necessary to cause such purchasing
Credit Party to share the excess payment or other recovery ratably (to the
extent such other Credit Parties were entitled to receive a portion of such
payment or recovery) 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 Credit Party, the purchase shall be rescinded and each Credit
Party which has sold a participation to the purchasing Credit Party shall repay
to the purchasing Credit Party the purchase price to the ratable extent of such
recovery together with an amount equal to such selling Credit Party's ratable
share (according to the proportion of
(a) the amount of such selling Credit Party's required
repayment to the purchasing Credit Party
to
(b) total amount so recovered from the purchasing Credit
Party)
of any interest or other amount paid or payable by the purchasing Credit Party
in respect of the total amount so recovered. The Borrower agrees that any Credit
Party so purchasing a participation from another Credit Party 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 Credit Party were the direct creditor of the Borrower in the
amount of such participation. If under any applicable bankruptcy, insolvency or
other similar law, any Credit Party receives a secured claim in lieu of a setoff
to which this Section applies, such Credit Party shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Credit Parties entitled under this Section to
share in the benefits of any recovery on such secured claim.
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SECTION 4.9. Setoff. Each Credit Party shall, upon the occurrence and
during the continuance of any Default described in clauses (a) through (d) of
Section 8.1.9 or, with the consent of the Required Lenders, upon the occurrence
and during the continuance 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), and (as security for such Obligations) the Borrower hereby grants
to each Credit Party a continuing security interest in, any and all balances,
credits, deposits, accounts or moneys of the Borrower then or thereafter
maintained with such Credit Party; provided, however, that any such
appropriation and application shall be subject to the provisions of Section 4.8.
Each Credit Party agrees promptly to notify the Borrower and the Administrative
Agent after any such setoff and application made by such Credit Party; provided,
however, that the failure to give such notice shall not affect the validity of
such setoff and application. The rights of each Credit Party under this Section
are in addition to other rights and remedies (including other rights of setoff
under applicable law or otherwise) which such Credit Party may have.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders
and, if applicable, any Issuer to fund the initial Credit Extension shall be
subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have
received from each of the Borrower, the Partners and the Manager, as applicable,
(i) a copy of a good standing certificate, dated a date reasonably close to the
Effective Date, for each such Person and (ii) a certificate, dated the Effective
Date and with counterparts for each Lender, duly executed and delivered by such
Person's Secretary or Assistant Secretary, managing member or general partner,
as applicable, as to
(a) resolutions of each such Person's Board of Directors (or
other managing body, in the case of other than a corporation) then in
full force and effect authorizing, to the extent relevant, delivery and
performance of this Agreement, each other Loan Document to be executed
by such Person and the transactions contemplated hereby and thereby;
(b) the incumbency and signatures of those of its Authorized
Officers, as applicable, authorized to act with respect to this
Agreement and each other Loan Document to be executed by such Person;
and
(c) the full force and validity of each Organic Document of
such Person and copies thereof;
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upon which certificates each Secured Party may conclusively rely until it shall
have received a further certificate of the Secretary, Assistant Secretary,
managing member or general partner, as applicable, of any such Person canceling
or amending the prior certificate of such Person.
SECTION 5.1.2. Delivery of Notes. The Administrative Agent shall have
received, for the account of each Lender that has requested a Note, such
Lender's Notes duly executed and delivered by an Authorized Officer of the
Borrower.
SECTION 5.1.3. Payment of Outstanding Indebtedness, etc. All
Indebtedness identified in Item 7.2.2(b) of the Disclosure Schedule, together
with all interest, all prepayment premiums and other amounts due and payable
with respect thereto, shall have been paid in full from the proceeds of the
initial Credit Extension and the commitments in respect of such Indebtedness
shall have been terminated, and all Liens securing payment of any such
Indebtedness have been released and the Administrative Agent shall have received
all Uniform Commercial Code Form U.C.C.-3 termination statements or other
instruments as may be suitable or appropriate in connection therewith.
SECTION 5.1.4. Due Diligence. Each of the Arranging Agents shall have
completed and be satisfied in all respects with its review of the unaudited
financial statements of the Borrower for the Fiscal Quarter ended September 30,
1998.
SECTION 5.1.5. Partners Pledge Agreement. The Administrative Agent
shall have received, with counterparts for each Lender, the Partners Pledge
Agreement, dated as of the date hereof, duly executed and delivered by an
Authorized Officer of each Partner, together with confirmation and evidence
satisfactory to the Administrative Agent that the security interest in the
Capital Securities of the Borrower has been transferred to and perfected by the
Administrative Agent for the benefit of the Secured Parties in accordance with
Articles 8 and 9 of the U.C.C. and all laws otherwise applicable to the
perfection of the pledge of such shares. The Administrative Agent and its
counsel shall be satisfied that (i) the Lien granted to the Administrative
Agent, for the benefit of the Secured Parties in the collateral described above
is a first priority (or local equivalent thereof) security interest; and (ii) no
Lien exists on any of the collateral described above other than the Lien created
in favor of the Administrative Agent, for the benefit of the Secured Parties,
pursuant to a Loan Document.
SECTION 5.1.6. Subordination Agreements. The Administrative Agent shall
have received, with counterparts for each Lender, (a) the Manager Subordination
Agreement duly executed and delivered by an Authorized Officer of each Manager
and the Borrower, and (b) the Intercompany Subordination Agreement, duly
executed and delivered by an Authorized Officer of each Partner, the Borrower,
and each other Affiliate of the Borrower which may from time to time be the
payee of any Affiliate Indebtedness.
SECTION 5.1.7. Insurance. The Administrative Agent shall have
received, with copies for each Lender, certificates from one or more insurance
companies satisfactory to the
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Administrative Agent, evidencing coverage required to be maintained pursuant
hereto and each Loan Document.
SECTION 5.1.8. 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 pursuant to
Sections 3.3 and 10.3, if then invoiced.
SECTION 5.1.9. Approvals. The Administrative Agent shall have received
evidence satisfactory to it that each Obligor 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 such Obligor.
SECTION 5.1.10. Management Agreements. The Administrative Agent shall
have received, with copies for each Lender, the Borrower Management Agreement
and each other Management Agreement in effect on the Effective Date, in each
case, 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
Arranging Agents.
SECTION 5.1.11. Opinions of Counsel. The Administrative Agent shall
have received opinions, dated the Effective Date and addressed to the
Administrative Agent and all Lenders, from
(a) Colin Higgin, Deputy General Counsel to the Borrower and
each other Obligor, in form and substance satisfactory to the Arranging
Agents;
(b) Fleischman & Walsh, FCC counsel to the Borrower, in form
and substance satisfactory to the Arranging Agents; and
(c) Buchanan Ingersoll, a Professional Corporation, special
Pennsylvania and New York counsel to the Borrower and each other
Obligor, in form and substance satisfactory to the Arranging Agents.
SECTION 5.1.12. Franchise Agreements and FCC Licenses. The Borrower
shall certify that it has all FCC Licenses, material permits and other rights,
including, all Franchises which are necessary to own and operate their
respective properties and Cable Systems and to carry on their respective
businesses as conducted on the Effective Date, and that all such instruments are
in the name of such Person.
SECTION 5.1.13. Financial Information, etc. The Administrative Agent
shall have received, with counterparts for each Lender, a pro forma consolidated
balance sheet of the
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Borrower and its Restricted Subsidiaries, as of the Effective Date (the
"Pro-Forma Balance Sheet"), certified by the chief financial or accounting
Authorized Officer of the Borrower, giving effect to all the transactions
contemplated by this Agreement and reflecting the proposed capital structure of
the Borrower, which shall be satisfactory to the Arranging Agents.
SECTION 5.1.14. Compliance Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, an initial Compliance
Certificate on a pro forma basis as if the initial Credit Extension had been
made as of September 30, 1998 and as to such items therein as the Administrative
Agent reasonably requests, dated the Effective Date, duly executed (and with all
schedules thereto duly completed) and delivered by the chief executive,
financial or accounting Authorized Officer of the Borrower.
SECTION 5.1.15. Closing Date Certificate. The Administrative Agent
shall have received, with counterparts for each Lender, the Closing Date
Certificate, dated the Effective Date and duly executed and delivered by an
Authorized Officer of the Borrower, in which certificate the Borrower shall
agree and acknowledge that the statements made therein shall be deemed to be
true and correct representations and warranties of the Borrower as of such date,
and, at the time each such certificate is delivered, such statements shall in
fact be true and correct. All documents and agreements required to be appended
to the Closing Date Certificate shall be in form and substance satisfactory to
the Arranging Agents.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and
each Issuer to make any Credit Extension (including the initial Credit
Extension) shall be subject to the satisfaction of each of the conditions
precedent set forth below.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension (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:
(a) the representations and warranties set forth in Article VI
and in each other Loan Document shall, in each case, 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 in all material respects as of
such earlier date); and
(b) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request, etc. 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
the Borrower of the proceeds of such Credit Extension shall
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constitute a representation and warranty by the Borrower 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 5.2.1 are true and correct in all material respects.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any other Obligor
shall be reasonably satisfactory in form and substance to the Administrative
Agent and its counsel, and the Administrative Agent and its counsel shall have
received all information, approvals, opinions, documents or instruments as the
Administrative Agent or its counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce each Arranging Agent, each Issuer and each Lender to
enter into this Agreement and to make Credit Extensions hereunder, the Borrower
represents and warrants to each Arranging Agent, each Issuer and each Lender as
set forth in this Article.
SECTION 6.1. Organization, etc. (a) The Borrower, each of its
Restricted Subsidiaries and each other Obligor is validly organized and existing
and in good standing under the laws of the state or jurisdiction of its
incorporation or organization, is duly qualified to do business and is in good
standing as a foreign entity in each jurisdiction where the nature of its
business requires such qualification, and has full power and authority and holds
all requisite governmental licenses, permits and other approvals to enter into
and perform its Obligations under this Agreement and each other Loan Document to
which it is a party and to own and hold under lease its property and to conduct
its business substantially as currently conducted by it.
(b) The Partners are the only partners of the Borrower.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement 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, have been duly authorized by all necessary action, and do not
(a) contravene any such Person's Organic Documents;
(b) contravene any contractual restriction, any law or
governmental regulation, or any court decree or order binding on or
affecting any such Person; or
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(c) result in, or require the creation or imposition of, any
Lien on any of such Person's properties other than those contemplated
by the Loan Documents.
SECTION 6.3. 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 (other than those that have been,
or on the Effective Date will be, duly obtained or made and which are, or on the
Effective Date will be, in full force and effect) is required for the due
execution, delivery or performance by the Borrower or any other Obligor of this
Agreement or any other Loan Document to which it is a party, in each case by the
parties thereto. Neither the Borrower nor any of its 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.
SECTION 6.4. Validity, etc. This Agreement constitutes and each other
Loan Document executed by the Borrower will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms; and
each other Loan Document executed by each other Obligor will, on the due
execution and delivery thereof by such Obligor, constitute the legal, valid and
binding obligation of such Obligor enforceable against such Obligor 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.
SECTION 6.5. Financial Information. The financial statements of the
Borrower and its Restricted Subsidiaries furnished to the Administrative Agent
and each Lender pursuant to Section 5.1.13 have been prepared in accordance with
GAAP consistently applied, and present fairly the consolidated financial
condition of the Persons covered thereby as at the dates thereof and the results
of their operations for the periods then ended. All balance sheets, all
statements of operations, shareholders' equity and cash flow and all other
financial information of each of the Borrower and its Restricted Subsidiaries
furnished pursuant to Section 7.1.1 have been and will for periods following the
Effective Date be prepared in accordance with GAAP consistently applied, and do
or will present fairly the consolidated financial condition of the Persons
covered thereby as at the dates thereof and the results of their operations for
the periods then ended.
SECTION 6.6. No Material Adverse Change. There has been no material
adverse change in the financial condition, results of operations, assets,
business, properties or prospects of the Borrower or the Borrower and any of its
Subsidiaries, taken as a whole since September 30, 1998.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no
pending or, to the knowledge of the Borrower, its Subsidiaries or any Partner,
threatened litigation, action, proceeding, or labor controversy
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(a) except as disclosed in Item 6.7 of the Disclosure
Schedule, affecting the Borrower, or any other Obligated Party, or any
of their respective properties, businesses, assets or revenues, which
could reasonably be expected to have a Material Adverse Effect, and no
development has occurred in any labor controversy, litigation,
arbitration or governmental investigation or proceeding disclosed in
Item 6.7 which could reasonably be expected to have a Material Adverse
Effect; or
(b) which purports to affect the legality, validity or
enforceability of this Agreement, any other Loan Document, any
Management Agreement, the Organic Documents of any Obligor or any
Franchise Agreement to which the Borrower or any other Obligated Party
is a party.
SECTION 6.8. Subsidiaries. The Borrower has no Subsidiaries, except
those Subsidiaries
(a) which are identified in Item 6.8 of the Disclosure
Schedule; or
(b) which are permitted to have been organized or acquired in
accordance with Sections 7.2.5 or 7.2.9.
SECTION 6.9. Ownership of Properties. The Borrower and each of its
Restricted Subsidiaries owns (i) in the case of owned real property, good and
marketable fee title to, and (ii) in the case of owned personal property, good
and valid title to, or, in the case of leased real or personal property, valid
and enforceable leasehold interests (as the case may be) in, all of its
properties and assets, real and personal, tangible and intangible, of any nature
whatsoever, free and clear in each case of all Liens or claims, except for Liens
permitted pursuant to Section 7.2.3.
SECTION 6.10. Taxes. The Borrower and each of its Subsidiaries has
filed all tax returns and reports required by law to have been filed by it and
has paid all taxes and governmental charges thereby shown to be due and 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 its books.
SECTION 6.11. Pension 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 the Borrower or any member of the Controlled Group of any material liability,
fine or penalty. Except as disclosed in Item 6.11 of the Disclosure Schedule,
neither the Borrower nor any member of the Controlled Group 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.
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SECTION 6.12. Environmental Warranties. The Borrower and its
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 which is reasonably likely to result in a
Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries
manages any Hazardous Materials in material violation of any Environmental Law,
and there are no known conditions or previously owned or leased properties or
operations of the Borrower or any of its Subsidiaries or tenants of the Borrower
or such Subsidiary which may give rise to any liabilities and costs under any
Environmental Law which are reasonably likely to result in a Material Adverse
Effect.
SECTION 6.13. Regulations U and X. Neither the Borrower or any of its
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 purchase or carry margin stock or otherwise for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation U or Regulation
X. Terms for which meanings are provided in F.R.S. Board Regulation U or
Regulation X or any regulations substituted therefor, as from time to time in
effect, are used in this Section with such meanings.
SECTION 6.14. The Franchises. Each Franchise of the Borrower and each
of its Restricted Subsidiaries is in full force and effect pursuant to each
agreement set forth in Item 6.14 ("Franchises") of the Disclosure Schedule, was
lawfully issued pursuant to the rules and regulations of each jurisdiction set
forth in Item 6.14 of the Disclosure Schedule and authorizes the Borrower and
each such Restricted Subsidiary to operate such Franchise until the dates set
forth in Item 6.14 of the Disclosure Schedule, and no other or further approval,
filing or other action of any Governmental Authority is or will be necessary or
advisable in order to permit the Borrower's or any of its Restricted
Subsidiaries' operation of its Cable Systems in accordance with the terms
thereof. Item 6.14 of the Disclosure Schedule correctly identifies each
franchisee. The 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 Borrower and its Restricted Subsidiaries or their respective
Cable Systems.
SECTION 6.15. Patents, Copyrights, FCC Licenses, etc. The Borrower and
each of its 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 (including Pole Agreements and Pole Rental Leases) 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
the Borrower and each of its
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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.
SECTION 6.16. Partnership Agreements; Management Agreement. The
partnership agreement of the Borrower and the partnership agreements of its
Restricted Subsidiaries (that are partnerships) and each Management Agreement
are 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 each such Management Agreement or partnership agreement. Each
Manager has signed a Manager Subordination Agreement.
SECTION 6.17. Issuance of Subordinated Debt, and Affiliate Indebtedness
and Intercompany Indebtedness; Status of Obligations as Senior Indebtedness,
etc. The Borrower has the power and authority to incur the Subordinated Debt,
Affiliate Indebtedness and Intercompany Indebtedness as provided for under the
documents applicable thereto and has duly authorized, executed and delivered the
documents applicable to such Subordinated Debt, Affiliate Indebtedness and
Intercompany Indebtedness. The Borrower has issued, pursuant to due
authorization, the Subordinated Debt, Affiliate Indebtedness and Intercompany
Indebtedness under the applicable documents, and such documents constitute the
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and by principles of equity). The
subordination provisions of the Subordinated Debt, Affiliate Indebtedness and
Intercompany Indebtedness contained in the documents relating thereto are
enforceable against the holders of the Subordinated Debt, Affiliate Indebtedness
and Intercompany Indebtedness by the holder of any "Senior Indebtedness" or
similar term referring to the Obligations (as defined in such documents). All
Obligations, including those to pay principal of and interest (including
post-petition interest, whether or not allowed as a claim under bankruptcy or
similar laws) on the Loans and Reimbursement Obligations, and fees and expenses
in connection therewith, constitute "Senior Indebtedness" or similar term
relating to the Obligations (as defined in the applicable documents) and all
such Obligations are entitled to the benefits of the subordination by such
documents. The Borrower acknowledges that each Arranging Agent, each Lender and
each Issuer is entering into this Agreement and is extending its Commitments in
reliance upon the subordination provisions of the Sub Debt Documents, the
Intercompany Subordination Agreement and the Manager Subordination Agreements.
SECTION 6.18. Accuracy of Information. None of the factual information
heretofore or contemporaneously furnished in writing to any Credit Party by or
on behalf of the Borrower or any other Obligor for purposes of or in connection
with this Agreement or any transaction contemplated hereby (true and complete
copies of which were furnished to the Credit Parties in connection with its
execution and delivery hereof), contains any untrue statement of a material
fact, and no other factual information hereafter furnished in connection with
this Agreement or any other Loan Document by the Borrower or any other Obligor
to any Credit Party will contain any untrue statement of a material fact on the
date as of which such information is dated or
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certified and, as of the date of the execution and delivery of this Agreement by
the Credit Parties, the information delivered prior to the date of execution and
delivery of this Agreement (unless such information specifically relates to a
prior date) does not, and the factual information hereafter furnished shall not
on the date as of which such information is dated or certified, omit to state
any material fact necessary to make any information not misleading.
SECTION 6.19. Solvency. Both before and immediately after giving
effect to any Credit Extension requested hereunder:
(a) the fair value of the assets of the Borrower and its
Subsidiaries on a consolidated basis will exceed the total amount of
liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of the Borrower and its Subsidiaries on a
consolidated basis, on a going-concern basis;
(b) the present fair salable value (as defined below) of the
assets of the Borrower and its Subsidiaries on a consolidated basis
will exceed the probable total liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) of the Borrower
and its Subsidiaries on a consolidated basis as they become absolute
and matured;
(c) the Borrower and its Subsidiaries on a consolidated basis
will be able to pay their debts, including contingent liabilities, as
they mature and become due;
(d) the 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 the
Borrower's consolidated business; and
(e) the 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 the Borrower or any of its
Subsidiaries.
For purposes of this Section, the "fair salable value" of the 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 on an "arms' length"
basis 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.
SECTION 6.20. Compliance with Laws. The Borrower and its 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.
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SECTION 6.21. Year 2000 Compliance. The Borrower and each other
Obligated Party has reviewed the areas within its business and operations
(including those affected by suppliers and vendors) which could be adversely
affected by, and has developed or is developing a program to address on a timely
basis, the "Year 2000 Problem" (that is, the risk that computer applications
used by such Person (or suppliers and vendors) may be unable to recognize and
properly perform date-sensitive functions involving certain dates prior to and
any date after December 31, 1999). Based on such review and program, the Year
2000 Problem could not reasonably be expected to have a Material Adverse Effect.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with each
Lender, each Issuer and each Arranging Agent that until the Termination Date has
occurred, the Borrower will, and will cause its Subsidiaries to, perform or
cause to be performed the obligations set forth below.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Borrower will furnish or cause to be furnished to the Administrative Agent (with
sufficient copies for each Lender) copies of the following financial statements,
reports, notices and information:
(a) 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,
an unaudited consolidated balance sheet of the Borrower and its
Restricted Subsidiaries as of the end of such Fiscal Quarter and
consolidated statements of income and cash flow of the 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, and, beginning with the financial
statements for the December 31, 1999 Fiscal Quarter, including (in each
case), in comparative form the figures for the corresponding Fiscal
Quarter in, and (to the extent available) year to date portion of, the
immediately preceding Fiscal Year (in each case as to assets owned by
the Borrower and its Restricted Subsidiaries during the period in
question), certified as complete and correct by any financial or
accounting Authorized Officer of the Borrower;
(b) as soon as available and in any event within 120 days
after the end of each Fiscal Year, a copy of the consolidated balance
sheet of the Borrower and its Restricted Subsidiaries, and the related
consolidated statements of income and cash flow of the Borrower and its
Restricted Subsidiaries for such Fiscal Year, and, beginning with the
financial statements delivered for the 2001 Fiscal Year (or, if the
Borrower changes its Fiscal Year to one ending on December 31, the 2000
Fiscal Year), setting forth in comparative form the figures for the
immediately preceding Fiscal Year (in each case as
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to assets owned by the Borrower and its Restricted Subsidiaries during
the period in question), audited (without any Impermissible
Qualification) by an Approved Accounting Firm or another independent
public accounting firm reasonably acceptable to the Administrative
Agent stating that, in performing the examination necessary to deliver
the audited financial statements of the Borrower, no knowledge was
obtained of any Default;
(c) concurrently with the delivery of the financial
information pursuant to clauses (a) and (b), a Compliance Certificate,
executed by any financial or accounting Authorized Officer of the
Borrower, (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 Section 7.2.7, (ii) stating that no Default has
occurred and is continuing and (iii) giving notice, if applicable, of
(A) the incurrence of Indebtedness of the types described in clauses
(d), (e), (g), and (j) of Section 7.2.2, (B) any Investments made, as
permitted pursuant to clauses (d) and (f) of Section 7.2.5, (C) any
payment of dividends or distributions, as permitted pursuant to Section
7.2.6, (D) any prepayment of Subordinated Debt, as permitted pursuant
to Section 7.2.8, (E) the occurrence of any liquidations, dissolutions
or mergers, as permitted pursuant to Section 7.2.9, (F) the occurrence
of any Permitted Asset Swap, Permitted Business Acquisition or
Permitted Disposition, (G) notice of any (i) voluntary liquidation or
dissolution by any Subsidiary of the Borrower into the Borrower or
another Subsidiary of the Borrower, (ii) merger by any Subsidiary of
the Borrower with and into the Borrower or another Subsidiary of the
Borrower, or (iii) the purchase by the Borrower or any of its
Subsidiaries of any Capital Securities of the Borrower or any other
Subsidiary of the Borrower, during the preceding Fiscal Quarter, (H)
any Capital Contribution or Property Contribution made to the Borrower,
(I) the sale or distribution of any limited partnership interest in the
Borrower and (J) the occurrence of any Default or Event of Default and
specifying the details of such Default and the action that the Borrower
or such Obligor has taken or proposes to take with respect thereto;
(d) as soon as possible and in any event within five days
after the Borrower or any other Obligated Party obtains knowledge of
the occurrence of a Default, a statement of an Authorized Officer of
the Borrower setting forth details of such Default and the action which
the Borrower or such Obligated Party has taken and proposes to take
with respect thereto;
(e) as soon as possible and in any event within five days
after the Borrower or any other Obligated Party obtains knowledge of
(i) the occurrence of any material adverse development with respect to
any litigation, action, proceeding or labor controversy described in
Item 6.7 of the Disclosure Schedule or (ii) the commencement of any
litigation, action, proceeding or labor controversy of the type and
materiality described in Section 6.7, notice thereof and, to the extent
the Administrative Agent requests, copies of all documentation relating
thereto;
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(f) concurrently with the delivery of the financial
information pursuant to clauses (a) and (b), a subscriber's report of
the Borrower as of the end of such Fiscal Quarter setting forth (i) the
number of Basic Subscribers of the Borrower and its Subsidiaries, (ii)
the number of Premium Subscriptions of the Borrower and its
Subsidiaries and (iii) the number of Homes Passed of the Borrower and
its Subsidiaries;
(g) promptly after the sending or filing thereof, copies of
all reports, notices, prospectuses and registration statements which
the Borrower, any Subsidiary, any Partner or ACC files with the SEC or
any national securities exchange (including, copies of Form 10-K and
Form 10-Q);
(h) immediately upon becoming aware of (i) the institution of
any steps by any Person to terminate any Pension Plan, (ii) 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, (iii)
the taking of any action with respect to a Pension Plan which could
result in the requirement that any Obligated Party furnish a bond or
other security to the PBGC or such Pension Plan, or (iv) the occurrence
of any event with respect to any Pension Plan which could result in the
incurrence by any Obligated Party of any material liability, fine or
penalty, notice thereof and copies of all documentation relating
thereto;
(i) promptly upon receipt thereof, copies of all "management
letters" submitted to the Borrower or any other Obligated Party by the
Approved Accounting Firm or other independent public accountants
referred to in clause (b) in connection with each audit made by such
accountants;
(j) promptly following the mailing or receipt of any notice or
report delivered under the terms of any Subordinated Debt, copies of
such notice or report;
(k) promptly after the occurrence of (i) any lapse or other
termination of any FCC License, permit, Franchise or other
authorization issued to the Borrower or any of its Restricted
Subsidiaries by any Governmental Authority or (ii) any refusal by any
Governmental Authority to renew or extend any such FCC License, permit,
Franchise or other authorization, in either case to the extent that any
such event could reasonably be expected to result in a Material Adverse
Effect, notice thereof;
(l) promptly upon their becoming available to the Borrower,
copies of (i) any periodic or special report filed by the Borrower or
any of its Restricted Subsidiaries with the FCC or any other
Governmental 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 the 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 the
Borrower
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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; and
(m) such other financial and other information regarding any
Obligor as any Lender or Issuer through the Administrative Agent may
from time to time reasonably request (including information and reports
in such detail as the Administrative Agent may request with respect to
the terms of and information provided pursuant to the Compliance
Certificate).
SECTION 7.1.2. Maintenance of Existence; Compliance with Laws, etc.
The Borrower will, and will cause each of its Subsidiaries to,
(a) except as otherwise permitted by Section 7.2.9 or Section
7.2.10, preserve and maintain its legal existence;
(b) comply in all material respects with all applicable laws,
rules, regulations and orders, including the payment (before the same
become delinquent), of all taxes, assessments and governmental charges
imposed upon the Borrower or its Subsidiaries or upon their property
except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP have been set aside on the books of the Borrower or its
Subsidiaries, as applicable; and
(c) maintain in full force and effect all material
authorizations, consents, approvals, licenses, exemptions and other
actions by, and all registrations, qualifications, designations and
declarations and other filings with, each Governmental Authority
necessary or advisable in connection with the execution and delivery of
each Loan Document and the ownership and operation of each of their
respective Cable Systems.
SECTION 7.1.3. Maintenance of Properties. The Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its and
their respective properties in good repair, working order and condition
(ordinary wear and tear excepted), and make necessary repairs, renewals and
replacements so that the business carried on by the Borrower and its
Subsidiaries may be properly conducted at all times, unless the Borrower or such
Subsidiary determines in good faith that the continued maintenance of such
property is no longer economically desirable.
SECTION 7.1.4. Insurance. The Borrower will, and will cause each of
its Restricted Subsidiaries to maintain:
(a) insurance on its property with financially sound and
reputable insurance companies against loss and damage in at least the
amounts (and with only those deductibles) customarily maintained, and
against such risks as are typically insured
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against in the same general area, by Persons of comparable size engaged
in the same or similar business as the Borrower and its Restricted
Subsidiaries; and
(b) all worker's compensation, employer's liability insurance
or similar insurance as may be required under the laws of any state or
jurisdiction in which it may be engaged in business.
SECTION 7.1.5. Books and Records. The Borrower will, and will cause
each of its Restricted Subsidiaries to, keep books and records in accordance
with GAAP which accurately reflect all of its business affairs and transactions
and permit each Credit Party or any of their respective representatives, at
reasonable times and intervals upon reasonable notice to the Borrower, to visit
the Borrower's and its Restricted Subsidiaries' respective offices, to discuss
such Person's financial matters with its officers and employees, and its
independent public accountants (and the Borrower hereby authorizes such
independent public accountant to discuss the Borrower's and its Restricted
Subsidiaries') financial matters with each Credit Party or their representatives
if a representative of the Borrower or such Subsidiary is present) and to
examine (and photocopy extracts from) any of its books and records. The Borrower
shall pay any fees of such independent public accountant incurred in connection
with any Credit Party's exercise of its rights pursuant to this Section.
SECTION 7.1.6. Environmental Law Covenant. The Borrower will, and
will cause each of its Subsidiaries to,
(a) use and operate all of its and their 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; and
(b) promptly 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 in
respect of, or as to compliance with, Environmental Laws, and shall
promptly resolve any material non-compliance with Environmental Laws
and keep its property free of any Lien imposed by any Environmental
Law.
SECTION 7.1.7. Rate Protection. On or prior to the 180th day following
the Effective Date, the Borrower will enter into one or more Rate Protection
Agreements having expiration dates occurring no earlier than the third
anniversary of the Effective Date, in substance reasonably satisfactory to the
Administrative Agent, on an aggregate notional principal amount equal to at
least 35% of the average principal amount of the Loans outstanding from the
Effective Date (after the making of the initial Loans) through and including the
180th day following the Effective Date. Notwithstanding the foregoing, however,
the Borrower may obtain up to 50% of its interest rate protection required
pursuant to this Section 7.1.7 from one or more of its
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Affiliates (satisfactory to the Administrative Agent). All such interest rate
protection agreements which are not Rate Protection Agreements shall be
unsecured and all Rate Protection Agreements shall be secured, on a pari passu
basis, with the security interests granted by the Borrower to the Administrative
Agent on behalf of the Lenders in connection with this Agreement.
SECTION 7.1.8. Subordination. The Borrower will take all action
necessary to ensure that the payment or repayment of the Affiliate Indebtedness
and the Intercompany Indebtedness is subject to the terms and conditions of the
Subordination Agreements at all times.
SECTION 7.1.9. Use of Proceeds. The proceeds of the Credit Extensions
will be applied as follows:
(a) the proceeds of the Loans in an amount not to exceed
$668,000,000 made on the Initial Funding Date will be used by the
Borrower (either directly or by way of a distribution to Affiliates of
the Borrower to then contemporaneously be applied) to repay in full the
Indebtedness identified in Item 7.2.2(b) of the Disclosure Schedule;
and
(b) the proceeds of Loans made or Letters of Credit issued on
or subsequent to the Initial Funding Date will be used for the ongoing
working capital and general corporate and partnership purposes, as the
case may be, of the Borrower and its Restricted Subsidiaries.
SECTION 7.1.10. Additional Collateral. The Borrower shall, and shall
cause each of its Restricted Subsidiaries and each Minority Owner to, cause the
Secured Parties to have at all times a first priority perfected security
interest in all of the issued and outstanding Capital Securities of the
Restricted Subsidiaries acquired or created by the Borrower or any of its
Restricted Subsidiaries after the Effective Date as well as any intercompany
notes evidencing intercompany Indebtedness permitted by clause (j) of Section
7.2.2. Without limiting the generality of the foregoing, the Borrower shall, and
shall cause each of its Restricted Subsidiaries and each Minority Owner to,
deliver or cause to be delivered to the Administrative Agent all Capital
Securities of the after-acquired Restricted Subsidiaries for which possession by
the Administrative Agent is required and (in the case of uncertificated
securities), take all actions necessary under Articles 8 and 9 of the applicable
State's Uniform Commercial Code, in each case for perfection of such security
interest, and shall, and shall cause each of its Restricted Subsidiaries to
execute, deliver and/or file (as applicable), or cause to be executed, delivered
and/or filed (as applicable), each Pledge Agreement, U.C.C. financing statement,
U.C.C. termination statement and other documentation necessary to grant and
perfect such security interest, in each case in form and substance reasonably
satisfactory to the Administrative Agent.
SECTION 7.1.11. Future Subsidiaries. Upon any Person becoming, after
the Effective Date, either a direct or indirect Restricted Subsidiary or upon
the Borrower or any Restricted Subsidiary acquiring additional Capital
Securities of any other Restricted Subsidiary or upon any Minority Owner
acquiring any Capital Securities of any Restricted Subsidiary or upon the
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Borrower, any Restricted Subsidiary or any Minority Owner acquiring additional
Capital Securities of any existing Restricted Subsidiary, the Borrower shall, or
shall cause such Restricted Subsidiary or such Minority Owner, as the case may
be, to, promptly notify the Administrative Agent of such event, and
(a) if such Person is a U.S. Subsidiary of the Borrower before
or after giving effect to such acquisition the Borrower will, and cause
any Subsidiary that owns Capital Securities in a Restricted Subsidiary
to, (i) enter into or deliver a supplement to the Borrower Pledge
Agreement (as applicable), in order to pledge to the Administrative
Agent the Borrower's ownership interest in such Restricted Subsidiary
in a manner satisfactory to the Administrative Agent and, as
applicable, (ii) cause each Minority Owner of such Person to enter into
or deliver a supplement to, the Minority Owner Pledge Agreement (as
applicable), in order to pledge to the Administrative Agent such
Minority Owner's ownership interest in such Restricted Subsidiary in a
manner satisfactory to the Administrative Agent;
(b) such Restricted Subsidiary (if a U.S. Subsidiary of the
Borrower before or after giving effect to such acquisition) shall
become a party to the Subsidiary Pledge Agreement and the Subsidiary
Guaranty, if not already a party thereto, in a manner satisfactory to
the Administrative Agent; and
(c) such Restricted Subsidiary, if it is party to a Management
Agreement, shall become a party to a 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.
Neither the Borrower nor any of its Restricted Subsidiaries shall acquire or
otherwise establish or own any interest in any Restricted Subsidiary unless all
the Capital Securities are owned by the Borrower, one or more Restricted
Subsidiaries and/or (if applicable) Minority Owners, in each case free and clear
of all Liens (except for Liens in favor of the Secured Parties to secure the
Obligations).
SECTION 7.1.12. Year 2000 Compliance. The Borrower will promptly notify
the Administrative Agent in the event the Borrower or any Restricted Subsidiary
discovers or determines that any computer application (including those of its
suppliers or vendors) that is material to its or any of its Subsidiaries'
business and operations will not be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000, except to the extent
that such failure could not reasonably be expected to have a Material Adverse
Effect.
SECTION 7.2. Negative Covenants. The Borrower covenants and agrees with
each Lender, each Issuer and each Arranging Agent that until the Termination
Date has occurred, the Borrower will, and will cause its Restricted Subsidiaries
to, perform or cause to be performed the obligations set forth below.
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SECTION 7.2.1. Business Activities. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, engage in any business activity,
except owning, operating, managing and investing in Cable Systems and activities
reasonably incidental or related thereto.
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, create, incur, assume or permit to
exist any Indebtedness, other than:
(a) Indebtedness in respect of the Obligations;
(b) until the date of the initial Credit Extensions,
Indebtedness that is to be repaid in full as further identified in Item
7.2.2(b) of the Disclosure Schedule;
(c) Indebtedness existing as of the Effective Date which is
identified in Item 7.2.2(c) of the Disclosure Schedule, and refinancing
of such Indebtedness so long as the amount is not increased;
(d) unsecured Subordinated Debt of the Borrower and its
Restricted Subsidiaries incurred pursuant to the terms of the Sub Debt
Documents, and refinancings thereof (provided, that such refinanced
Indebtedness shall continue to comply with the definition of
"Subordinated Debt");
(e) unsecured Affiliate Indebtedness (excluding Management
Fees) in an aggregate outstanding principal amount not to exceed
$125,000,000 at any time;
(f) deferred Management Fees owing to a Manager that has
executed and delivered a Manager Subordination Agreement;
(g) senior unsecured Indebtedness of the Borrower and its
Restricted Subsidiaries which shall not provide for any scheduled
principal repayments prior to the Stated Maturity Date and not have a
scheduled maturity date earlier than the Stated Maturity Date, with
material terms that are no more restrictive to the Borrower and its
Restricted Subsidiaries, as determined in the reasonable judgement of
the Arranging Agents, than those terms found in this Agreement;
(h) Indebtedness in an aggregate principal amount not to
exceed $35,000,000 for the Borrower and its Restricted Subsidiaries at
any time outstanding which is incurred in respect of Capitalized Lease
Liabilities; provided, that at the election of the Borrower, up to
$5,000,000 of the Indebtedness permitted by this clause can be incurred
for obligations which do not constitute Capitalized Lease Liabilities;
(i) unsecured Indebtedness (i) incurred in the ordinary course
of business of the Borrower and its Restricted Subsidiaries (including
open accounts extended by suppliers on normal trade terms in connection
with purchases of goods and services which are not
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overdue for a period of more than 90 days or, if overdue for more than
90 days, as to which a dispute exists and adequate reserves in
conformity with GAAP have been established on the books of the Borrower
or such Restricted Subsidiary) and (ii) in respect of performance,
surety or appeal bonds provided in the ordinary course of business, but
excluding (in each case), Indebtedness incurred through the borrowing
of money or Contingent Liabilities in respect thereof; and
(j) unsecured Indebtedness of (i) the Borrower owing to
Restricted Subsidiaries that have executed and delivered the
Intercompany Subordination Agreement and (ii) the Borrower's Restricted
Subsidiaries owing to the Borrower or to another Restricted Subsidiary
which shall not be forgiven or otherwise discharged for any
consideration other than payment Dollar for Dollar in cash, unless the
Arranging Agents otherwise consent;
provided, however, that no Indebtedness otherwise permitted by clause (d), (e),
(g), or (j)(ii) shall be assumed or otherwise incurred if a Default has occurred
and is then continuing or would result therefrom.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of
its Restricted Subsidiaries to, create, incur, assume or permit to exist any
Lien upon any of its property (including Capital Securities of any Person),
revenues or assets, whether now owned or hereafter acquired, except:
(a) Liens securing payment of the Obligations;
(b) until the Effective Date, Liens securing payment of
Indebtedness of the type described in clause (b) of Section 7.2.2;
(c) Liens existing as of the Effective Date and disclosed in
Item 7.2.3(c) of the Disclosure Schedule securing Indebtedness
described in clause (c) of Section 7.2.2, and refinancings of such
Indebtedness; provided, that no such Lien shall encumber any additional
property and the amount of Indebtedness secured by such Lien is not
increased from that existing on the Effective Date (as such
Indebtedness may have been permanently reduced subsequent to the
Effective Date);
(d) Liens securing Indebtedness permitted pursuant to clause
(h) of Section 7.2.2; provided, that such Lien does not (i) secure
Indebtedness in excess of the amount of Indebtedness incurred with
respect to such Capitalized Lease Liability, (ii) attach to any assets
or property of the Borrower or its Restricted Subsidiaries beyond the
assets or property leased or acquired as a result of the incurrence of
such Indebtedness (in the case of Capitalized Lease Liabilities), and
(iii) in the case of other than Capitalized Lease Liabilities, such
Lien is in respect of real property owned or leased by the Borrower or
a Restricted Subsidiary;
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(e) Liens of utilities incurred in the ordinary course of
business on cables and other property affixed to transmission poles
pursuant to Pole Agreements or Pole Rental Leases;
(f) Liens in favor of carriers, warehousemen, mechanics,
materialmen and landlords granted in the ordinary course of business
for amounts 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;
(g) Liens incurred or deposits made in the ordinary course of
business in connection with workmen's compensation, unemployment
insurance or other forms of governmental insurance or benefits, or to
secure performance of tenders, statutory obligations, bids, leases or
other similar obligations (other than for borrowed money) entered into
in the ordinary course of business or to secure obligations on surety
and appeal bonds or performance bonds;
(h) judgment Liens in existence for less than 45 days after
the entry thereof or with respect to which execution has been stayed or
the payment of which is (i) covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance
companies, (ii) adequately bonded (as reasonably determined by the
Administrative Agent) or (iii) covered by adequate reserves in
conformity with GAAP which have been established on the books of such
Person;
(i) easements, rights-of-way, zoning restrictions, minor
defects or irregularities in title and other similar encumbrances not
interfering in any material respect with the value or use of the
property to which such Lien is attached;
(j) 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; and
(k) Liens securing Indebtedness of any Unrestricted Subsidiary
in favor of a lender to such Subsidiary; provided that (i) such Liens
are granted only in the Capital Securities of such Subsidiary and (ii)
the Indebtedness is totally nonrecourse (including by way of a
Contingent Liability) to the Borrower nor any Restricted Subsidiary.
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SECTION 7.2.4. Financial Condition and Operations. The Borrower will
not permit to occur any of the events set forth below.
(a) Leverage Ratio. The Borrower will not permit the Leverage
Ratio on the last day of any Fiscal Quarter occurring during any period
set forth below to be greater than the ratio set forth opposite such
period:
Period Ratio
------ -----
Effective Date through (and including) 6.50:1
03/31/00
04/01/00 through (and including) 6.25:1
09/30/00
10/01/00 through (and including) 6.00:1
03/31/01
04/01/01 through (and including 5.75:1
09/30/01
10/01/01 through (and including) 5.50:1
03/31/02
Each Fiscal Quarter thereafter 4.50:1
(b) Interest Coverage. The Borrower will not permit the
Interest Coverage Ratio on the last day of any Fiscal Quarter to be
less than 2:1.
(c) Pro-Forma Debt Service Coverage. The Borrower will not
permit the ratio of Annualized Operating Cash Flow to Pro-Forma Debt
Service on the last day of any Fiscal Quarter to be less than 1.10:1;
provided, however, that this covenant shall not apply for any Fiscal
Quarter in which the Leverage Ratio is less than 3.5:1.
(d) Fixed Charge Coverage. From and after March 31, 2001, the
Borrower will not permit the Fixed Charge Coverage Ratio on the last
day of any Fiscal Quarter to be less than 1:1; provided, however, that
this covenant shall not apply for any Fiscal Quarter in which the
Leverage Ratio is less than 3.5:1.
SECTION 7.2.5. Investments. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, purchase, make, incur, assume or
permit to exist any Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified
in Item 7.2.5(a) of the Disclosure Schedule;
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(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
(d) without duplication, Permitted Business Acquisitions made
by the Borrower or any of its Restricted Subsidiaries in an aggregate
amount not to exceed (individually or in the aggregate over the term of
this Agreement) at any time $150,000,000 plus the amount of any Net
Disposition Proceeds not theretofore utilized pursuant to this clause
or applied to a repayment of the Loans pursuant to the terms of this
Agreement; provided, that upon making such Investments, the provisions
of Section 7.1.11 are complied with;
(e) Investments constituting (i) accounts receivable arising,
(ii) trade debt granted, or (iii) deposits made in connection with the
purchase price of goods or services, in each case in the ordinary
course of business;
(f) Investments received (i) in consideration for Restricted
Payments permitted under Section 7.2.6 or (ii) (without duplication) as
non-cash Permitted Consideration;
(g) Investments made by the Borrower or any Restricted
Subsidiary in other Restricted Subsidiaries;
(h) Investments made in accordance with clause (a) of Section
7.2.10; and
(i) Investments consisting of Contributed Property;
provided, however, that
(j) 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
(k) no Investment otherwise permitted by clauses (d), (f) and
(h) 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.
SECTION 7.2.6. Restricted Payments, etc. (a) The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, declare or make a
Restricted Payment, or make any deposit for any Restricted Payment; provided,
however, that after the delivery of the most recent financial statements and
Compliance Certificate required by Section 7.1.1, the Borrower or any of its
Restricted Subsidiaries may declare and make Restricted Payments if (x) no
Default
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hereunder or any default under other Total Debt exists immediately before and
after giving effect to the making of such Restricted Payment and (y) the
Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter
for which a Compliance Certificate was delivered immediately preceding the date
of such Restricted Payment, and shall continue to be less than 5:1 on a pro
forma basis after giving effect thereto; provided, further, that in the case of
Restricted Payments of Existing Assets, such Restricted Payment also satisfies
the requirements of a Permitted Existing Asset Transfer.
(b) Notwithstanding the foregoing, however, the Borrower or any of its
Restricted Subsidiaries may declare and make Restricted Payments (i) with the
amount of Capital Contributions made into the Borrower after the Effective Date;
provided that (A) no Default exists immediately before and after giving effect
to the making of such Restricted Payment and (B) after giving effect thereto,
the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long
as no Default exists immediately before and after giving effect to the making of
such Restricted Payment, (A) with property (referred to as "Contributed
Property") which had been previously contributed to the Borrower as a Property
Contribution; provided, that such property is similar in all material respects
(as determined by the Arranging Agents, including as to the Fair Market Value
thereof) to the Contributed Property and the Restricted Payment under this
clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market
Value (determined as of the date of contribution) of such Contributed Property)
available for future Restricted Payments under this clause (b)(ii) or (B) with
Existing Assets so long as (x) such Restricted Payment satisfies the
requirements of a Permitted Existing Asset Transfer (or, if less, the amount
available to be made as a Restricted Payment pursuant to this clause (b)(ii))
and (y) such Existing Assets shall have a Fair Market Value no greater than the
aggregate Fair Market Value of all Contributed Property contributed on or prior
to such date (as such amount has been reduced by Restricted Payments of
Contributed Property previously made pursuant to this clause (b)(ii)).
SECTION 7.2.7. Capital Expenditures (1999 and 2000). The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, make or commit
to make Capital Expenditures in excess of $85,000,000 during the twelve-month
period ending December 31, 1999 ("Year 1") and $85,000,000 during the
twelve-month period ending December 31, 2000 ("Year 2"); provided, however,
that, to the extent the amount of Capital Expenditures permitted to be made in
Year 1 pursuant to this Section exceeds the aggregate amount of Capital
Expenditures actually made by the Borrower and its Restricted Subsidiaries
during Year 1, the excess amount may be carried forward to Year 2 (any such
amount to be certified by the Borrower to the Administrative Agent in the
Compliance Certificate delivered for the last Fiscal Quarter of the 1999 Fiscal
Year).
SECTION 7.2.8. No Prepayment of Subordinated Debt. Subject to the
last sentence of this Section, the Borrower will not, and will not permit any of
its Restricted Subsidiaries to,
(a) make any payment or prepayment of principal of, or premium
or interest on, any Subordinated Debt (i) other than, in the case of
interest only, the stated, scheduled
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date for such payment of interest set forth in the Sub Debt Documents
governing such Subordinated Debt, or (ii) which would violate the terms
of this Agreement or the Sub Debt Documents governing such Subordinated
Debt;
(b) redeem, retire, purchase, defease or otherwise acquire any
Subordinated Debt; or
(c) make any deposit (including the payment of amounts into a
sinking fund or other similar fund) for any of the foregoing purposes.
Notwithstanding the foregoing, the Borrower and its Restricted Subsidiaries may
take any of the foregoing actions pursuant to the same terms on which Restricted
Payments are permitted by Section 7.2.6.
SECTION 7.2.9. Consolidation, Merger, etc. The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other Person (collectively, to
"Merge"), or purchase or otherwise consummate an Acquisition except:
(a) any Restricted Subsidiary may Merge with and into, the
Borrower (with the Borrower being the surviving Person) or any other
Restricted Subsidiary, and the assets or Capital Securities of any
Restricted Subsidiary may be purchased, transferred or otherwise
acquired by the Borrower or any other Restricted Subsidiary;
(b) Permitted Business Acquisitions permitted by Section
7.2.5;
(c) any Restricted Subsidiary may Merge with a Person other
than the Borrower or another Restricted Subsidiary so long as (i) no
Default has occurred and is continuing or would result therefrom and
(ii) the requirements contained in the Permitted Existing Asset
Transfer definition are satisfied; and
(d) Acquisitions to the extent permitted as by Section 7.2.6.
SECTION 7.2.10. Asset Swaps, Dispositions, etc. The Borrower will not,
and will not permit any of its Restricted Subsidiaries to, Dispose of any of
their respective assets to any Person in one transaction or series of
transactions except:
(a) Asset Swaps; provided, that (i) both before and after
giving effect thereto, no Default shall have occurred and be continuing
or would result from such Asset Swap; and (ii) in the case of Existing
Assets, such Asset Swap satisfies the requirements of a Permitted
Existing Asset Transfer;
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(b) Permitted Dispositions; provided, that any Permitted
Disposition of Existing Assets satisfies the requirements of a
Permitted Existing Asset Transfer;
(c) Dispositions (i) from the Borrower to any Restricted
Subsidiary, (ii) from a Restricted Subsidiary to the Borrower, or (iii)
from a Restricted Subsidiary to another Restricted Subsidiary;
(d) the Disposition of obsolete or worn out equipment or
equipment no longer used or useful in the business of any Borrower or
any Restricted Subsidiary, in each case, in the ordinary course of
business;
(e) the sale of inventory in the ordinary course of business;
(f) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection
with the compromise or collection thereof (which in any event will not
include a "securitization" or similar receivables sale program);
(g) Dispositions permitted by Section 7.2.5 and by Section
7.2.9; and
(h) all Restricted Payments permitted under Section 7.2.6.
SECTION 7.2.11. Modification of Certain Agreements. The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, consent to any
amendment, supplement, waiver or other modification of, or enter into any
forbearance from exercising any rights with respect to, any of the terms or
provisions contained in, or applicable to, any Management Agreement, any Organic
Documents of the Borrower or of any Restricted Subsidiary or any Sub Debt
Document 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, other than any amendment,
supplement, waiver or modification which (i) extends the date or reduces the
amount of any required repayment, prepayment or redemption of the principal of
such Subordinated Debt, (ii) reduces the rate or extends the date for payment of
the interest, premium (if any) or fees payable on such Subordinated Debt or
(iii) makes the covenants, events of default or remedies in such Sub Debt
Documents less restrictive on the Borrower.
SECTION 7.2.12. Transactions with Affiliates. Except for the Affiliate
Indebtedness and the Intercompany Indebtedness payable in accordance with the
terms of the Subordination Agreements, the Borrower will not, and will not
permit any of its Restricted Subsidiaries to, enter into or cause or permit to
exist any arrangement or contract (including for the purchase, lease or exchange
of property or the rendering of services) with any of its other Affiliates,
unless such arrangement or contract (i) is on fair and reasonable terms no less
favorable to the Borrower or such Restricted Subsidiary than it could obtain in
an arm's-length transaction with a Person that
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is not an Affiliate and (ii) is of the kind which would be entered into by a
prudent Person in the position of the Borrower or such Restricted Subsidiary
with a Person that is not one of its Affiliates; provided, however, that the
Management Agreements and Management Fees accrued or paid in accordance with
Section 7.2.14 or Section 7.2.15 shall not violate this Section.
SECTION 7.2.13. Negative Pledges, Restrictive Agreements, etc. The
Borrower will not, and will not permit any of its Restrictive Subsidiaries to,
enter into any agreement prohibiting
(a) the creation or assumption of any Lien upon any assets,
whether now owned or hereafter acquired, that are, or are required to
be, delivered in pledge pursuant to the terms of this Agreement or a
Loan Document;
(b) the ability of any Obligor to amend or otherwise modify
this Agreement or any other Loan Document; or
(c) the ability of any Restricted Subsidiary to make any
payments, directly or indirectly, to the Borrower, including by way of
dividends, advances, repayments of loans, reimbursements of management
and other intercompany charges, expenses and accruals or other returns
on investments.
The foregoing prohibitions shall not apply to restrictions contained in this
Agreement and any other Loan Document.
SECTION 7.2.14. Management Fees. The Borrower will not permit the
Management Fees (including any interest thereon) payable to accrue at a rate
such that, during any Fiscal Quarter of the Borrower, the total amount of such
accrued fees exceeds 5% of the gross revenue (which, when used in this Agreement
and the Loan Documents, shall be determined in accordance with GAAP), of the
Borrower and its Restricted Subsidiaries for the immediately preceding Fiscal
Quarter.
SECTION 7.2.15. Payment of Management Fees. (a) The Borrower will not,
and will not permit any of its Restricted Subsidiaries to, pay any Management
Fees during any Fiscal Quarter in excess of 5% of the gross revenues of the
Borrower and its Restricted Subsidiaries for the immediately preceding Fiscal
Quarter. In addition, and without limiting the foregoing, the Borrower will not,
and will not permit any of its Restricted Subsidiaries to, make any payments of
such Management Fees (or make any payments of Management Fees of the Borrower or
any of its Restricted Subsidiaries that have accrued prior to or during the
Fiscal Quarter immediately last ended for which a Compliance Certificate was
delivered but remain unpaid), at any time when any Default has occurred and is
continuing or would result therefrom.
(b) Notwithstanding the foregoing, however, the Borrower may, and may
permit any of its Restricted Subsidiaries to, make payments of such Management
Fees (or make payments of
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Management Fees of the Borrower or any of its Restricted Subsidiaries that have
accrued prior to or during the Fiscal Quarter immediately last ended for which a
Compliance Certificate was delivered but remain unpaid) out of the proceeds of a
Capital Contribution received by the Borrower after the occurrence of a Default
which was made for the purpose of funding such Management Fee payments; provided
that after giving effect thereto, the Aggregate Capital Contribution Amount is
greater than $1.00. Other than the payment of Management Fees from the proceeds
of Capital Contributions, Management Fees shall be Affiliate Indebtedness.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following
events or occurrences described in this Article shall constitute an "Event of
Default".
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall default
in the payment or prepayment when due of
(a) any principal of or interest (which default, as to
interest only, shall continue for a period of three Business Days) on
any Loan, or any Reimbursement Obligation or any deposit of cash for
collateral purposes pursuant to Section 2.6.4; or
(b) any fee described in Article III or any other monetary
Obligation, and such default shall continue unremedied for a period of
three days after such amount was due.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
any Obligor made or deemed to be made in any Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when made
or deemed to have been made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance or observance of any of its
obligations under Section 7.1.1, Section 7.1.9 or Section 7.2 or any Obligor
shall default in the due performance or observance of its obligations under
Article III or Article IV of a Pledge Agreement.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
obligations 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 the Borrower by the Administrative Agent or any
Lender.
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SECTION 8.1.5. Default 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 the Borrower or any other Obligated Party having
a principal amount, individually or in the aggregate, in excess of $10,000,000
(in the case of the Borrower and its Restricted Subsidiaries) or $25,000,000 (in
the case of other Obligated Parties), 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 to cause or declare such Indebtedness to become due and
payable or to require such Indebtedness to be prepaid, redeemed, purchased or
defeased, or require an offer to purchase or defease such Indebtedness to be
made, prior to its expressed maturity, or (only in the case of the Borrower or
any Restricted Subsidiary) 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 take the foregoing
actions.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of
money in excess of $10,000,000 (exclusive of any amounts fully covered by
insurance (less any applicable deductible) and as to which the insurer has
acknowledged its responsibility to cover such judgment or order) shall be
rendered against the Borrower or any Restricted Subsidiary and such judgment
shall not have been vacated or discharged or stayed or bonded pending appeal
within 30 days after the entry thereof.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan
(a) the institution of any steps by the Borrower, any member
of its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, the 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 $1,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. Any Partner, the
Borrower, any of their respective Restricted Subsidiaries or any other Obligated
Party shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to generally pay, debts as they
become due;
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(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for any such
Person, or any substantial part of the property of any thereof, or make
a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence in or permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for any such Person
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 such Person
hereby expressly authorizes each Secured Party to appear in any court
conducting any relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;
(d) 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 any such Person,
and, if any such case or proceeding is not commenced by any such
Person, such case or proceeding shall be consented to or acquiesced in
by any such Person, as the case may be, or shall result in the entry of
an order for relief or shall remain for 60 days undismissed; provided,
however, that each such Person hereby expressly authorizes each Secured
Party to appear in any court conducting any such case or proceeding
during such 60-day period to preserve, protect and defend their rights
under the Loan Documents; or
(e) take any action authorizing, or in furtherance of, any of
the foregoing.
SECTION 8.1.10. 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 cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; any Obligor or
any other party shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or, except as
permitted under any Loan Document, any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien.
SECTION 8.1.11. Failure of Subordination. Unless otherwise waived or
consented to by the Arranging Agents, the Lenders and the Issuers in writing,
the subordination provisions set forth in any Sub Debt Document relating to any
Subordinated Debt or in any Subordination Agreement (the "Subordination
Provisions") shall fail to be enforceable by the Arranging Agents, the Lenders
and the Issuers in accordance with the terms thereof, or the monetary
Obligations shall fail to constitute "Senior Indebtedness" (or similar term)
referring to the Obligations; or the Borrower or any of its Subsidiaries shall,
directly or indirectly, disavow or contest in any manner (i) the effectiveness,
validity or enforceability of any of the Subordination Provisions, (ii) that the
Subordination Provisions exist for the benefit of the Administrative Agent, the
Lenders and the Issuers or (iii) that all payments of principal of or premium
and interest on the Subordinated
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Debt, Affiliate Indebtedness or Intercompany Indebtedness, or realized from the
liquidation of any property of any Obligor, shall be subject to any of such
Subordination Provisions.
SECTION 8.1.12. 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 Governmental Authority in connection with
this Agreement (other than matters referred to in Section 8.1.13 hereof) or the
other Loan Documents or any such action or undertaking now or hereafter
necessary or advisable to make this Agreement or the other Loan Documents legal,
valid and enforceable against any Obligor party thereto 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.
SECTION 8.1.13. Cancellation 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, the "Approvals") granted by the FCC or by any other Governmental
Authority 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 the Borrower or any of its Restricted Subsidiaries, the cancellation
or termination of which could reasonably be expected to have a Material Adverse
Effect, or which could reasonably be expected to materially impair 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 the Borrower or
any of its Restricted 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 reasonable judgment of the Arranging Agents).
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur with respect to the
Borrower, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations (including Reimbursement Obligations) shall automatically be
and become immediately due and payable, without notice or demand to any Person
and the Borrower shall automatically and immediately be obligated to deposit
with the Administrative Agent cash collateral in an amount equal to all Letter
of Credit Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9 with respect to the Borrower) 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 Borrower declare all
or any portion of the outstanding principal amount of the Loans and other
Obligations (including Reimbursement Obligations) to be due and payable and/or
the Commitments (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount
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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 and
the Borrower shall automatically and immediately be obligated to deposit with
the Administrative Agent cash collateral in an amount equal to all Letter of
Credit Outstandings.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints Scotiabank as its
Administrative Agent under and for purposes of this Agreement and each other
Loan Document. Each Lender authorizes the Administrative Agent to act on behalf
of such Lender under this Agreement 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 in order to avoid contravention
of applicable law), 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 hereby indemnifies (which indemnity shall survive any
termination of this Agreement) the Administrative Agent, pro rata according to
such Lender's proportionate Total Exposure Amount, 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 and any other Loan Document, including reasonable attorneys'
fees, and as to which the Administrative Agent is not reimbursed by the
Borrower; provided, however, that no Lender 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 from the Administrative Agent's gross negligence or
wilful misconduct. The Administrative Agent shall not be required to take any
action hereunder or under any other Loan Document, or to prosecute or defend any
suit in respect of this Agreement 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.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
3:00 p.m., New York time, on the Business 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
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Administrative Agent and, in reliance upon such assumption, make available to
the 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
the 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 the
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 (in the
case of the Borrower) and (in the case of a Lender), at the Federal Funds Rate
(for the first two Business Days after which such amount has not been repaid),
and thereafter at the interest rate applicable to Loans comprising such
Borrowing.
SECTION 9.3. Exculpation. 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 the Borrower or any other Obligor 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.
SECTION 9.4. Successor. The Administrative Agent may resign as such at
any time upon at least 30 days' prior notice to the Borrower 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 shall thereupon
become the Administrative Agent hereunder. 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
$250,000,000; provided, however, that if such retiring Administrative Agent is
unable to find a commercial banking institution which is willing to accept such
appointment and which meets the qualifications set forth in above, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor as provided for above. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor
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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
(a) 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
(b) Section 10.3 and Section 10.4 shall continue to inure to
its benefit.
SECTION 9.5. Loans by Arranging Agents. Each Arranging Agent shall have
the same rights and powers with respect to (x) the Credit Extensions 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 Arranging Agent and its respective
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if such Person were not an Arranging Agent.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Arranging Agent and each other Lender, and based on such
Lender's review of the financial information of the Borrower, this Agreement,
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
Commitments. Each Lender also acknowledges that it will, independently of each
Arranging 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.
SECTION 9.7. 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 Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the 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 Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement or any other
Loan Document.
SECTION 9.8. Limitation on Duties. Notwithstanding anything else to
the contrary contained in this Agreement or any other Loan Document, neither the
Syndication Agent, the Documentation Agent, any Managing Agent nor any Co-Agent,
in such capacity, shall have any
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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, the
Documentation Agent, any Managing Agent or any Co-Agent.
SECTION 9.9. Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, facsimile, telecopy, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or thereunder in accordance with
instructions given by the Required Lenders or all of the Lenders as is required
in such circumstance, and such instructions of such Lenders and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders. For
purposes of applying amounts in accordance with this Section, the Administrative
Agent shall be entitled to rely upon any Secured Party that has entered into a
Rate Protection Agreement with the Borrower or any of its Subsidiaries for a
determination (which such Secured Party agrees to provide or cause to be
provided upon request of the Administrative Agent) of the outstanding Secured
Obligations owed to such Secured Party under any Rate Protection Agreement.
Unless it has actual knowledge evidenced by way of written notice from any such
Secured Party and the Borrower to the contrary, the Administrative Agent, in
acting hereunder and each other Loan Document, shall be entitled to assume that
no Rate Protection Agreements or Obligations in respect thereof are in existence
or outstanding between any Secured Party and any Obligor.
SECTION 9.10. Defaults. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received written notice from a Lender or the Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall (subject to Section 10.1)
take such action with respect to such Default as shall be directed by the
Required Lenders; provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it determines to be in the best interest of the Lenders.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document (other than any Rate Protection
Agreement) may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by the Borrower
and the Required Lenders (or, in the case of any Rate Protection Agreement, the
Borrower and the Lender party thereto); provided, however, that no such
amendment, modification or waiver shall:
(a) modify this Section 10.1 without the consent of all
Lenders;
(b) increase any Lender's Percentage of any Commitment Amount,
increase any Lender's Commitment, extend the final Commitment
Termination Date of Credit Extensions made (or participated in) by a
Lender, waive a default in the payment of principal, interest or fees
owing to a Lender or reduce any fees described in Article III payable
to any Lender without the consent of such Lender;
(c) extend the date (including the final Stated Maturity Date)
of repayment or prepayment of any Lender's Loans or the principal
amount required to be repaid or prepaid on such date, or reduce the
principal amount of or rate of interest on any Lender's Loan or extend
the date on which interest or fees are payable in respect of such
Lender's Loans or change the application of payment contained in
Section 3.1.2, in each case, without the consent of such Lender (it
being understood and agreed, however, that any vote to rescind any
acceleration made pursuant to Section 8.2 and Section 8.3 of amounts
owing with respect to the Loans and other Obligations shall only
require the vote of the Required Lenders);
(d) reduce the percentage set forth in the definition of
"Required Lenders" or any requirement hereunder that any particular
action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless
consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in this Agreement
(including, without limitation, Section 10.16) or another Loan
Document, release (i) any Guarantor from its obligations under a
Guaranty or (ii) all or substantially all of the collateral under the
Loan Documents, in either case without the consent of all Lenders; or
(g) affect adversely the interests, rights or obligations of
the Administrative Agent (in its capacity as the Administrative Agent),
or any Issuer (in its capacity as
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Issuer), unless consented to by the Administrative Agent or such
Issuer, as the case may be.
No failure or delay on the part of the Administrative Agent, any 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 Borrower or any other Obligor in any case shall entitle it to any notice or
demand in similar or other circumstances. No waiver or approval by the
Administrative Agent, any 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.
SECTION 10.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth on Schedule II or set forth in the
Lender Assignment Agreement 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 pre-paid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when the confirmation
of transmission thereof is received by the transmitter.
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay
on demand all expenses of the Administrative Agent (including the 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
(a) the negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, 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; and
(b) the filing, recording, refiling or rerecording of any Loan
Document and/or any Uniform Commercial Code financing statements
relating thereto and all amendments, supplements, amendments and
restatements and other 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 or the
terms of any Loan Document; and
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(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save each Secured Party harmless from
all liability 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 Borrower also agrees to reimburse each Secured Party upon demand
for all reasonable out-of-pocket expenses (including reasonable attorneys' fees
and legal expenses of counsel to each Secured Party) incurred by such Secured
Party in connection with (x) the negotiation of any restructuring or "work-out"
with the Borrower, whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Secured Party, the Borrower hereby
indemnifies, exonerates and holds each Secured Party and each of their
respective officers, directors, employees and agents (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, whether incurred in
connection with actions between or among the parties hereto or the parties
hereto and third parties (collectively, the "Indemnified Liabilities"), incurred
by the Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension, including all Indemnified Liabilities arising in connection
with the entering into and performance of this Agreement;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of the Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to fund
any Credit Extension, provided that any such action is resolved in
favor of such Indemnified Party);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not an Indemnified Party is party thereto;
(d) 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 the Borrower or any
of its Subsidiaries of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of
any Hazardous Material (including any losses,
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liabilities, damages, injuries, costs, expenses or claims asserted or
arising under any Environmental Law), regardless of whether caused by,
or within the control of, the Borrower or such Subsidiary; or
(f) each Lender's Environmental Liability (the indemnification
herein shall survive repayment of the Loans and any transfer of the
property of the Borrower or any of its Subsidiaries by foreclosure or
by a deed in lieu of foreclosure for any Lender's Environmental
Liability, regardless of whether caused by, or within the control of,
the Borrower or such Subsidiary);
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. The Borrower and its successors and assigns
hereby waive, release and agree not to make any claim or bring any cost recovery
action against, any Secured Party under CERCLA or any state equivalent, or any
similar law now existing or hereafter enacted. It is expressly understood and
agreed that to the extent that any of such Persons is strictly liable under any
Environmental Laws, the Borrower's obligation to such Person under this
indemnity shall likewise be without regard to fault on the part of the Borrower
with respect to the violation or condition which results in liability of such
Person. If and to the extent that the foregoing undertaking may be unenforceable
for any reason, the Borrower hereby agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
SECTION 10.5. Survival. The obligations of the 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 assignment from one Lender to
another (in the case of Sections 10.3 and 10.4) and any termination of this
Agreement, the payment in full of all the Obligations and the termination of all
the Commitments. The representations and warranties made by the Borrower and
each other Obligor in this Agreement and in each other Loan Document shall
survive the execution and delivery of this Agreement and each such other Loan
Document.
SECTION 10.6. Severability. 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.
SECTION 10.7. Headings. The various headings of this Agreement and of
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.
SECTION 10.8. 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 executed on behalf of the Borrower, the
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Administrative Agent and each Lender (or notice thereof satisfactory to the
Administrative Agent) shall have been received by the Administrative Agent and
notice thereof shall have been given by the Administrative Agent to the Borrower
and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT (INCLUDING PROVISIONS WITH RESPECT TO INTEREST, LOAN CHARGES
AND COMMITMENT FEES) SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH
PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK), EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF A SECURITY
INTEREST UNDER A LOAN DOCUMENT, OR REMEDIES UNDER A LOAN DOCUMENT IN RESPECT OF
ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN
THE STATE OF NEW YORK. This Agreement and the other Loan Documents constitute
the entire understanding among the parties hereto with respect to the subject
matter hereof and thereof and supersede any prior agreements, written or oral,
with respect thereto.
SECTION 10.10. Successors 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:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans,
Letters of Credit and Commitments to one or more other Persons in accordance
with the terms set forth below.
SECTION 10.11.1. Assignments. Any Lender, pursuant to a Lender
Assignment Agreement,
(a) with the consent of the Borrower and the Administrative
Agent (which consents shall not be unreasonably delayed or withheld
and, which consent, in the case of the Borrower, shall not be required
during the continuation of an Event of Default or if the assignment is
to another Lender) may at any time assign and delegate to one or more
financial institutions; and
(b) upon notice to the Borrower and the Administrative Agent,
upon the Administrative Agent's acknowledgment on a Lender Assignment
Agreement, may assign and delegate to any of its Affiliates or to any
other Lender
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(each Person described in either of the foregoing clauses as being the 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,
Letter of Credit Outstandings and Commitments in a minimum aggregate amount of
$5,000,000 (or, if less, the entire remaining amount of such Lender's Loans,
Letter of Credit Outstandings and Commitments) and; provided, however, that
following such assignment, such assigning Lender's total Loans, Letter of Credit
Outstandings and Commitments shall be either a minimum aggregate amount of
$5,000,000 or zero ($0); and provided, further, however, that such minimum
assignment amount will not apply to assignments by a Lender to its Affiliate.
Each Obligor and the Administrative Agent shall be entitled to continue to deal
solely and directly with a Lender in connection with the interests so assigned
and delegated to an Assignee Lender until
(c) notice of such assignment and delegation, together with
(i) payment instructions, (ii) the Internal Revenue Service forms or
other statements contemplated or required to be delivered pursuant to
Section 4.6, if applicable, and (iii) addresses and related information
with respect to such Assignee Lender, shall have been delivered to the
Borrower and the Administrative Agent by such assignor Lender and such
Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to
the Borrower and the Administrative Agent a Lender Assignment
Agreement, accepted by the Administrative Agent;
(e) the processing fees described below shall have been paid;
and
(f) the Administrative Agent shall have registered such
assignment and delegation in the Register pursuant to clause (b) of
Section 2.7.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement and such assignment and delegation is registered in the
Register, (i) 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 Agreement, shall have the rights and obligations of
a Lender hereunder and under the other Loan Documents, and (ii) the assignor
Lender, to the extent that rights and obligations hereunder have been assigned
and delegated by it in connection with such Lender Assignment Agreement, shall
be released from its obligations hereunder and under the other Loan Documents.
Subject to the provisions of Section 2.7, within five Business Days after its
receipt of notice that the Administrative Agent has received and accepted an
executed Lender Assignment Agreement (and if requested by the Assignee Lender),
but subject to clause (c), the Borrower shall execute and deliver to the
Administrative Agent (for delivery to the relevant Assignee Lender) a new Note
(if the Assignee Lender so requests a Note) evidencing such Assignee Lender's
assigned Loans and Commitments and, if the assignor Lender has retained Loans
and Commitments hereunder (and if requested by such Lender), a replacement Note
in the principal amount of the Loans and Commitments retained by the assignor
Lender hereunder (such Note to be in exchange for, but not in payment of, the
Note then held by such
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assignor Lender). Each such Note shall be dated the date of the predecessor
Note. The assignor Lender shall mark each predecessor Note "exchanged" and
deliver each of them to the Borrower. Accrued interest on the transferred Loans
and accrued fees, shall be paid as provided in this Agreement. Accrued interest
on that part of the assigned Loans shall be paid to the assignor Lender. Accrued
interest and accrued fees shall be paid at the same time or times provided in
this Agreement. Such assignor Lender or such Assignee Lender must also pay a
processing fee in the amount of $3,500 to the Administrative Agent upon delivery
of any Lender Assignment Agreement unless such assignment and delegation is by a
Lender to its Affiliate or if such assignment and delegation is by a Lender to
the Federal Reserve Bank, as provided below or is otherwise consented to by the
Administrative Agent. Any attempted assignment and delegation not made in
accordance with this Section shall be null and void. Notwithstanding anything to
the contrary set forth above, any Lender may (without requesting the consent of
the Borrower or the Administrative Agent) pledge its rights under this Agreement
and/or its Loans and/or its Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank.
(g) 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 Lender with a Commitment to make Revolving Loans or
participate in Letters of Credit becomes a Lender, downgrade the
long-term certificate of deposit rating or long-term senior, unsecured
debt rating of such Lender, and the resulting rating shall be below
BBB-, Baa3 or C (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 such Lender with a financial
institution (a "Replacement 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 Revolving Loan
Commitment 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
Replacement 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, and
Letters of Credit participated in, by such Lender hereunder and all
other amounts accrued for such Lender's account or owed to it
hereunder. Upon any such termination or assignment, such Lender shall
cease to be a party hereto but shall continue to be entitled to the
benefits of any provisions of this Agreement which by their terms
survive the termination of this Agreement.
SECTION 10.11.2. Participations. Any Lender may 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, Commitments, or other interests of such Lender hereunder; provided,
however, that
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(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrower and 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 of the other Loan Documents;
(d) 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 clauses (b), (c) and
(f) of Section 10.1; and
(e) the Borrower shall not be required to pay any amount under
this Agreement that is greater than the amount which it would have been
required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 7.1.1, 10.3 and 10.4, shall be considered
a Lender. Each Participant shall only be indemnified for increased costs
pursuant to Section 4.3, 4.5 or 4.6 if and to the extent that the Lender which
sold such participating interest to such Participant concurrently is entitled to
make, and does make, a claim on the Borrower for such increased costs. Any
Lender that sells a participating interest in any Loan, Commitment or other
interest to a Participant under this Section shall indemnify and hold harmless
the Borrower and the Administrative Agent from and against any taxes, penalties,
interest or other costs or losses (including reasonable attorneys' fees and
expenses) incurred or payable by the Borrower or the Administrative Agent as a
result of the failure of the Borrower or the Administrative Agent to comply with
its obligations to deduct or withhold any Taxes from any payments made pursuant
to this Agreement to such Lender or the Administrative Agent, as the case may
be, which Taxes would not have been incurred or payable if such Participant had
been a Non-U.S. Lender that was entitled to deliver to the Borrower, the
Administrative Agent or such Lender, and did in fact so deliver, a duly
completed and valid Form 1001 or 4224 (or applicable successor form) entitling
such Participant to receive payments under this Agreement without deduction or
withholding of any United States federal taxes.
SECTION 10.12. Other Transactions. Nothing contained herein shall
preclude any Arranging Agent, any Managing Agent, any Co-Agent, any Issuer or
any other Lender from engaging in any transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Affiliates in which the Borrower or such Affiliate is not restricted
hereby from engaging with any other Person.
SECTION 10.13. Limited Recourse. Notwithstanding any contrary
provision of this Agreement or any other Loan Document, no recourse shall be had
for the payment of the
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principal of or interest or premium, if any, on the Loans 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 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 Arranging Agents, the Managing Agents, the
Co-Agents, the Issuers 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 the 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 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 Arranging Agents, the Managing Agents, the Co-Agents,
the Issuers or the Lenders of any rights to damages, other monetary relief,
injunctive relief or any other remedy at law or equity against the 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 any Arranging Agent's, any Managing Agent's, any Co-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 the Borrower or any
Obligor.
SECTION 10.14. Forum 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 LENDERS, ANY ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR
THEREWITH 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 OF THE BORROWER AND THE PARTNERS HEREBY EXPRESSLY
AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY
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PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR
NOTICES SPECIFIED IN SECTION 10.2. EACH OF THE BORROWER AND THE PARTNERS 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 THE BORROWER OR ANY PARTNER 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, EACH OF THE BORROWER AND THE
PARTNERS HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. EACH ARRANGING AGENT, EACH
MANAGING AGENT, EACH CO-AGENT, EACH ISSUER, EACH LENDER, THE BORROWER AND EACH
PARTNER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST
EXTENT PERMITTED BY LAW 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 SUCH ARRANGING
AGENT, SUCH ISSUER, SUCH LENDER OR THE BORROWER OR SUCH PARTNER IN CONNECTION
HEREWITH OR THEREWITH. THE BORROWER AND EACH PARTNER 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 EACH ARRANGING AGENT, EACH
MANAGING AGENT, EACH CO-AGENT, EACH ISSUER AND EACH LENDER ENTERING INTO THIS
AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.16. Release. The Administrative Agent is hereby authorized
and directed by the Lenders and Issuers to, and shall, release Liens, any party
to a Guaranty and any other guarantees or any other Obligations under the Loan
Documents and take such other actions as the Borrower may reasonably request in
connection with any transaction permitted under this Agreement and involving any
asset subject to any such Lien.
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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.
PARNASSOS, L.P.,
By: PARNASSOS COMMUNICATIONS, L.P.,
its General Partner
By: ADELPHIA WESTERN NEW YORK
HOLDINGS, L.L.C., its General Partner
By: ADELPHIA COMMUNICATIONS
CORPORATION, its Sole Member
By: /S/ James Brown
Title: Vice President
THE BANK OF NOVA SCOTIA,
as Administrative Agent and as a Lender
By: /s/ Vincent J. Fitzgerald
Title: Authorized Signatory
NATIONSBANK, N.A., as Documentation
Agent and as a Lender
By: /s/Pamela S. Kurtzman
Title: Vice President
TORONTO DOMINION (TEXAS), INC., as
Syndication Agent and as a Lender
By: /s/ Sheila M Conley
Title: Vice President
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BANK OF MONTREAL, as Managing Agent and
as a Lender
By: /s/ Allegra Griffiths
Name: Allegra Griffiths
Title: Director
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BARCLAYS BANK PLC, as Managing Agent and
as a Lender
By: /s/ Daniele Iacovone
Name: Daniele Iacovone
Title: Associate Director
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CIBC INC., as Managing Agent and as a Lender
By: /s/ Michelle E. Roller
Name: Michelle E. Roller
Title: Executive Director:
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CREDIT LYONNAIS NEW YORK BRANCH, as
Managing Agent and as a Lender
By: /s/ John P. Judge
Name: John P. Judge
Title: Vice President
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CREDIT SUISSE FIRST BOSTON, as Managing
Agent
By: /s/ Judith E. Smith
Name: Judith E. Smith
Title: Director
By: /s/ Chris T. Horgan
Name: Chris T. Horgan
Title: Vice President
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FIRST UNION NATIONAL BANK, as Managing
Agent and as a Lender
By: /s/ Bruce W. Loftin
Name: Bruce W. Loftin
Title: Senior Vice President
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FLEET BANK, N.A., as Managing Agent and as a
Lender
By: /s/ Russ J. Lopinto
Name: Russ J. Lopinto
Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION,
as Managing Agent and as a Lender
By: /s/ Jeffrey E. Hauser
Name: Jeffrey E. Hauser
Title: Vice President
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH, as Managing Agent and as a
Lender
By: /s/ Alan E. Mclintock
Name: Alan E. McLintock
Title: Vice President
By: /s/ Ian Reece
Name: Ian Reece
Title: Senior Credit Officer
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<PAGE>
SALOMON BROTHERS HOLDING COMPANY
INC., as Managing Agent and as a Lender
By: /s/ Mavis B. Taintor
Name: Mavis B. Taintor
Title: Managing Director
-108-
<PAGE>
BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH, as a Co-Agent and as a
Lender
By: /s/ Erich Ebner von Eschenback
Name: Erich Ebner von Eschenback
Title: Managing Director
By: /s/ Carlo Lamberti
Name: Carlo Lamberti
Title: Associate Director
-109-
<PAGE>
DRESDNER BANK, AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Co-Agent
and as a Lender
By: /s/ Patrick A. Keleher
Name: Patrick A. Keleher
Title: Vice President
By: /s/ Constance Loosemore
Name: Constance Loosemore
Title: Assistant Vice President
-110-
<PAGE>
MEESPIERSON CAPITAL CORP., as a Co-Agent
and as a Lender
By: Scott T. Webster, Jr.
Name: Scott T. Webster, Jr.
Title: Assistant Vice President
By: John T. Connors
Name: John T. Connors
Title: Chief Operating Officer
-111-
<PAGE>
THE BANK OF NEW YORK COMPANY INC., as
a Co-Agent and as a Lender
By: /s/ Brendan T. Nedzi
Name: Brendan T. Nedzi
Title: Authorized Signor
-112-
<PAGE>
LENDERS
BANQUE NATIONALE DE PARIS
By: /s/ Stephanie Rogers
Name: Stephanie Rogers
Title: Vice President
By: /s/ Serge Desrayaud
Name: Serge Desrayaud
Title: Vice President
-113-
<PAGE>
CRESTAR BANK
By: /s/ Thomas C. Palmer
Name: Thomas C. Palmer
Title: Vice President
-114-
<PAGE>
FIRST HAWAIIAN BANK
By: /s/ James C. Polk
Name: James C. Polk
Title: Assistant Vice President
-115-
<PAGE>
FIRST NATIONAL BANK OF MARYLAND
By: /s/ Christopher L. Smith
Name: Christopher L. Smith
Title: Vice President
-116-
<PAGE>
GOLDMAN SACHS CREDIT PARTNERS L.P.
By: /s/ S. Strenbin
Name:
Title:
-117-
<PAGE>
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ C. Gregory Vogelsang
Name: C. Gregory Vogelsang
Title: Assistant Vice President
-118-
<PAGE>
USTRUST
By: /s/ D. G. Eastman
Name: D. G. Eastman
Title: Vice President
-119-
<PAGE>
SCHEDULE I
DISCLOSURE SCHEDULE
Item 6.7 Litigation, Labor Controversies, etc.
Item 6.8 Subsidiaries.
Item 6.11 Pension and Welfare Plans.
Item 6.12 Environmental.
Item 6.14 Franchises.
Item 6.15 Patents, Copyrights, FCC Licenses, etc.
Item 7.2.2(b) Indebtedness to be paid.
Item 7.2.2(c) Ongoing Indebtedness.
Item 7.2.3(c) Ongoing Liens.
Item 7.2.5(a) Investments.
<PAGE>
SCHEDULE II
PERCENTAGES AND ADMINISTRATIVE INFORMATION
The Borrower:
Parnassos, L.P.
Address:
Main at Water Street
Coudersport, PA 16915
Facsimile No.: (814) 274-6586
Attention: Dean Marshall
Lenders:
<TABLE>
Percentages
-----------
Term Loan
Commitment/ Revolving Loan
Name: Term Loans: Commitment: Domestic Office: LOBOR Office:
- ---- ---------- ---------- --------------- ------------
<S> <C> <C> <C> <C>
The Bank of Nova Scotia 14.52380942857% 14.52380942857% One Liberty Plaza SAME.
New York, NY 10006
Facsimile No.: (212) 225-5090
Attn: Jose Carlos
NationsBank (to be merged into 5.95238100000% 5.95238100000% 901 Main Street, 64th Floor SAME.
Bank of America) Dallas, TX 75202-3748
Facsimile No.: 214-508-9390
Attn: Pam Kurtzman
</TABLE>
<PAGE>
<TABLE>
Percentages
-----------
Term Loan
Commitment/ Revolving Loan
Name: Term Loans: Commitment: Domestic Office: LOBOR Office
- ---- ---------- ---------- --------------- ------------
<S> <C> <C> <C> <C>
TD Securities (USA) Inc. 5.95238100000% 5.95238100000% 31 West 52nd Street SAME.
New York, NY 10019
Facsimile No.: 212-262-1928
Attention: Nancy Sheridan
Bank of Montreal 5.00000000000% 5.00000000000% 430 Park Avenue SAME.
New York, NY 10022
Facsimile No.: 212-605-1648
Attention: Allegra Griffith
Barclays Bank PLC 5.00000000000% 5.00000000000% 388 Market Street Ste. 1700 SAME.
San Francisco, CA
Facsimile No.: 415-765-4760
Attention: Daniele Iacovone
CIBC Inc. 5.00000000000% 5.00000000000% 425 Lexington Avenue SAME.
New York, NY 10017
Facsimile No.: 212-856-3558
Attention: Michele Roller
Salomon Brothers Holding 5.00000000000% 5.00000000000% 7 World Trade Center, 33rd Floor SAME.
Company Inc. New York, NY 10048
Facsimile No.: 212-783-1946
Attention: Todd Alexander
Credit Lyonnais 5.00000000000% 5.00000000000% 1301 Avenue of the Americas SAME.
New York, NY 10019
Facsimile No.: 212-261-7890
Attention: John Judge
</TABLE>
<PAGE>
<TABLE>
Percentages
-----------
Term Loan
Commitment/ Revolving Loan
Name: Term Loans: Commitment: Domestic Office: LOBOR Office:
- ---- ---------- ---------- --------------- ------------
<S> <C> <C> <C> <C>
First Union National Bank 5.00000000000% 5.00000000000% 123 South Broad Street, Suite 1038 SAME.
Philadelphia, PA 19109
Facsimile No.: 215-786-8448
Attention: Scott Benjamin
Fleet Bank, NA 5.00000000000% 5.00000000000% 1185 Avenue of the Americas SAME.
16th Floor
New York, NY 10036
Facsimile No.: 212-819-6202
Attention: Russ Lopinto
PNC Bank, National 5.00000000000% 5.00000000000% Communications Banking Division SAME.
Association 21st Floor Mail Stop F2-F070-21-1
1600 Market Street
Philadelphia, PA 19103
Facsimile No.: 215-585-6680
Attention: Jeff Hauser
Rabobank Nederland 5.00000000000% 5.00000000000% 245 Park Avenue SAME.
New York, NY 10167-0062
Facsimile No.: 212-818-0233
Attention: Corporate Services
The Bank of New York 3.57142857143% 3.57142857143% One Wall Street SAME.
Company Inc. New York, NY 10286
Facsimile No.: 212-635-8679
Attention: Debra McGarry
Bayerische Hypound 3.57142857143% 3.57142857143% 150 E. 42nd Street, 30th Floor SAME.
Vereinsbank AG New York, NY 10017
Facsimile No.: 212-672-5591
Attention: Sylvia Cheng
</TABLE>
<PAGE>
<TABLE>
Percentages
-----------
Term Loan
Commitment/ Revolving Loan
Name: Term Loans: Commitment: Domestic Office: LOBOR Office:
- ---- ---------- ---------- --------------- ------------
<S> <C> <C> <C> <C>
MeesPierson Capital Corp. 3.57142857143% 3.57142857143% 3 Stamford Plaza SAME.
301 Tresser Boulevard, 9th Fl.
New York, NY 10017
Facsimile No.: 203-705-5890
Attention: Scott Webster
Dresdner Bank AG 2.85714285714% 2.85714285714% 75 Wall Street SAME.
New York, NY 10005-2889
Facsimile No.: 212-429-4181
Attention: Constance Loosemore
Banque Nationale de Paris 2.14285714286% 2.14285714286% 499 Park Avenue, 9th Floor SAME.
New York, NY 10022-1278
Facsimile No.: Stephanie Rogers
Attention: 212-415-9836
Crestar Bank 2.14285714286% 2.14285714286% 919 East Main, 22nd Floor SAME.
Richmond, VA 23219
Facsimile No.: 804-782-5413
Attention: Thomas Palmer
First Hawaiian Bank 2.14285714286% 2.14285714286% 999 Bishop Street, 11th Floor SAME.
Honolulu, HI 96813
Facsimile No.: 804-525-8973
Attention: Donald Young
First National Bank of Maryland 2.14285714286% 2.14285714286% 25 S. Charles Street, 18th Fl. SAME.
Baltimore, MD 21201
Facsimile No.: 410-244-4920
Attention: Wendy Andrus
</TABLE>
<PAGE>
<TABLE>
Percentages
-----------
Term Loan
Commitment/ Revolving Loan
Name: Term Loans: Commitment: Domestic Office: LOBOR Office:
- ---- ---------- ---------- --------------- ------------
<S> <C> <C> <C> <C>
Goldman Sachs Credit Partners 2.14285714286% 2.14285714286% 85 Broad Street - 27th Floor SAME.
New York, NY 10004
Facsimile No.: 212-902-2417
Attention: Steven McGuinness
Manufacturers and Traders 2.14285714286% 2.14285714286% One Fountain Plaza SAME.
Trust Company Buffalo, NY 14203-1495
Facsimile No.: 716-848-7318
Attention: Gregory Vogelsang
USTrust 2.14285714286% 2.14285714286% 40 Court Street, 2nd Floor SAME.
Boston, MA 02108
Facsimile No.: 617-695-4185
Attention: Terri DeMarco
</TABLE>
<PAGE>
<TABLE>
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
<S> <C> <C>
1.1. Defined Terms.......................................................................................1
1.2. Use of Defined Terms...............................................................................33
1.3. Cross-References...................................................................................34
1.4. Accounting and Financial Determinations............................................................34
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES AND NOTES AND LETTERS OF CREDIT
2.1. Commitments........................................................................................34
2.1.1. Revolving Loan Commitment..........................................................................34
2.1.2. Letter of Credit Commitment........................................................................34
2.1.3. Term Loan Commitment...............................................................................35
2.1.4. Lenders Not Permitted or Required to Make Loans....................................................35
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit........................................35
2.2. Reduction of the Commitment Amounts................................................................35
2.2.1. Optional...........................................................................................35
2.2.2. Mandatory Reduction of Revolving Loan Commitment Amount............................................36
2.3. Borrowing Procedure................................................................................37
2.4. Continuation and Conversion Elections..............................................................37
2.5. Funding............................................................................................38
2.6. Issuance Procedures................................................................................38
2.6.1. Other Lenders' Participation.......................................................................38
2.6.2. Disbursements......................................................................................38
2.6.3. Reimbursement......................................................................................39
2.6.4. Deemed Disbursements...............................................................................39
2.6.5. Nature of Reimbursement Obligations................................................................40
2.7. Register; Notes....................................................................................40
2.8. Incremental Facility...............................................................................41
</TABLE>
<PAGE>
<TABLE>
SECTION PAGE
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
<S> <C> <C>
3.1. Repayments and Prepayments; Application............................................................43
3.1.1. Repayments and Prepayments.........................................................................43
3.1.2. Application........................................................................................45
3.2. Interest Provisions................................................................................45
3.2.1. Rates..............................................................................................46
3.2.2. Post-Maturity Rates................................................................................46
3.2.3. Payment Dates......................................................................................46
3.3. Fees...............................................................................................47
3.3.1. Commitment Fee.....................................................................................47
3.3.2. Agent's Fee........................................................................................47
3.3.3. Letter of Credit Fee...............................................................................47
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful.........................................................................47
4.2. Deposits Unavailable...............................................................................48
4.3. Increased LIBO Rate Loan Costs, etc................................................................48
4.4. Funding Losses.....................................................................................48
4.5. Increased Capital Costs............................................................................49
4.6. Taxes..............................................................................................49
4.7. Payments, Computations, etc........................................................................52
4.8. Sharing of Payments................................................................................52
4.9. Setoff.............................................................................................53
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extension...........................................................................53
5.1.1. Resolutions, etc...................................................................................53
5.1.2. Delivery of Notes..................................................................................54
5.1.3. Payment of Outstanding Indebtedness, etc...........................................................54
5.1.4. Due Diligence......................................................................................54
5.1.5. Partners Pledge Agreement..........................................................................54
5.1.6. Subordination Agreements...........................................................................55
5.1.7. Insurance..........................................................................................55
5.1.8. Closing Fees, Expenses, etc........................................................................55
-ii-
</TABLE>
<PAGE>
<TABLE>
SECTION PAGE
<S> <C> <C>
5.1.9. Approvals..........................................................................................55
5.1.10. Management Agreements..............................................................................55
5.1.11. Opinions of Counsel................................................................................55
5.1.12. Franchise Agreements and FCC Licenses..............................................................56
5.1.13. Financial Information, etc.........................................................................56
5.1.14. Compliance Certificate.............................................................................56
5.1.15. Closing Date Certificate...........................................................................56
5.2. All Credit Extensions..............................................................................56
5.2.1. Compliance with Warranties, No Default, etc........................................................56
5.2.2. Credit Extension Request, etc......................................................................57
5.2.3. Satisfactory Legal Form............................................................................57
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc..................................................................................57
6.2. Due Authorization, Non-Contravention, etc..........................................................57
6.3. Government Approval, Regulation, etc...............................................................58
6.4. Validity, etc......................................................................................58
6.5. Financial Information..............................................................................58
6.6. No Material Adverse Change.........................................................................58
6.7. Litigation, Labor Controversies, etc...............................................................59
6.8. Subsidiaries.......................................................................................59
6.9. Ownership of Properties............................................................................59
6.10. Taxes..............................................................................................59
6.11. Pension and Welfare Plans..........................................................................59
6.12. Environmental Warranties...........................................................................60
6.13. Regulations U and X................................................................................60
6.14. The Franchises.....................................................................................60
6.15. Patents, Copyrights, FCC Licenses, etc.............................................................60
6.16. Partnership Agreements; Management Agreement.......................................................61
6.17. Issuance of Subordinated Debt, and Affiliate Indebtedness and Intercompany
Indebtedness; Status of Obligations as Senior Indebtedness, etc....................................61
6.18. Accuracy of Information............................................................................61
6.19. Solvency...........................................................................................62
6.20. Compliance with Laws...............................................................................63
6.21. Year 2000 Compliance...............................................................................63
-iii-
</TABLE>
<PAGE>
<TABLE>
SECTION PAGE
ARTICLE VII
COVENANTS
<S> <C> <C>
7.1. Affirmative Covenants..............................................................................63
7.1.1. Financial Information, Reports, Notices, etc.......................................................63
7.1.2. Maintenance of Existence; Compliance with Laws, etc................................................66
7.1.3. Maintenance of Properties..........................................................................66
7.1.4. Insurance..........................................................................................66
7.1.5. Books and Records..................................................................................67
7.1.6. Environmental Law Covenant.........................................................................67
7.1.7. Rate Protection....................................................................................67
7.1.8. Subordination......................................................................................68
7.1.9. Use of Proceeds....................................................................................68
7.1.10. Additional Collateral..............................................................................68
7.1.11. Future Subsidiaries................................................................................68
7.1.12. Year 2000 Compliance...............................................................................69
7.2. Negative Covenants.................................................................................69
7.2.1. Business Activities................................................................................70
7.2.2. Indebtedness.......................................................................................70
7.2.3. Liens..............................................................................................71
7.2.4. Financial Condition and Operations.................................................................72
7.2.5. Investments........................................................................................73
7.2.6. Restricted Payments, etc...........................................................................74
7.2.7. Capital Expenditures (1999 and 2000)...............................................................75
7.2.8. No Prepayment of Subordinated Debt.................................................................75
7.2.9. Consolidation, Merger, etc.........................................................................76
7.2.10. Asset Swaps, Dispositions, etc.....................................................................76
7.2.11. Modification of Certain Agreements.................................................................77
7.2.12. Transactions with Affiliates.......................................................................77
7.2.13. Negative Pledges, Restrictive Agreements, etc......................................................77
7.2.14. Management Fees....................................................................................78
7.2.15. Payment of Management Fees.........................................................................78
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default.......................................................................79
8.1.1. Non-Payment of Obligations.........................................................................79
8.1.2. Breach of Warranty.................................................................................79
8.1.3. Non-Performance of Certain Covenants and Obligations...............................................79
8.1.4. Non-Performance of Other Covenants and Obligations.................................................79
-iv-
</TABLE>
<PAGE>
<TABLE>
SECTION PAGE
<S> <C> <C>
8.1.5. Default on Other Indebtedness......................................................................79
8.1.6. Judgments..........................................................................................80
8.1.7. Pension Plans......................................................................................80
8.1.8. Change in Control..................................................................................80
8.1.9. Bankruptcy, Insolvency, etc........................................................................80
8.1.10. Impairment of Security, etc........................................................................81
8.1.11. Failure of Subordination...........................................................................81
8.1.12. Failure to Obtain or Cessation of Authorization, etc...............................................81
8.1.13. Cancellation of Any Franchise Agreement............................................................82
8.2. Action if Bankruptcy...............................................................................82
8.3. Action if Other Event of Default...................................................................82
ARTICLE IX
THE AGENTS
9.1. Actions............................................................................................83
9.2. Funding Reliance, etc..............................................................................83
9.3. Exculpation........................................................................................84
9.4. Successor..........................................................................................84
9.5. Loans by Arranging Agents..........................................................................85
9.6. Credit Decisions...................................................................................85
9.7. Copies, etc........................................................................................85
9.8. Limitation on Duties...............................................................................85
9.9. Reliance by Administrative Agent...................................................................85
9.10. Defaults...........................................................................................86
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc...........................................................................86
10.2. Notices............................................................................................87
10.3. Payment of Costs and Expenses......................................................................88
10.4. Indemnification....................................................................................88
10.5. Survival...........................................................................................90
10.6. Severability.......................................................................................90
10.7. Headings...........................................................................................90
10.8. Execution in Counterparts, Effectiveness, etc......................................................90
10.9. Governing Law; Entire Agreement....................................................................90
10.10. Successors and Assigns.............................................................................91
10.11. Sale and Transfer of Loans and Notes; Participations in Loans and Notes............................91
10.11.1. Assignments........................................................................................91
-v-
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
10.11.2. Participations.....................................................................................93
10.12. Other Transactions.................................................................................94
10.13. Limited Recourse...................................................................................94
10.14. Forum Selection and Consent to Jurisdiction........................................................95
10.15. Waiver of Jury Trial...............................................................................96
10.16. Release............................................................................................96
</TABLE>
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term 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 Agreement
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Closing Date Certificate
EXHIBIT G-1 - Form of Intercompany Subordination Agreement
EXHIBIT G-2 - Form of Manager Subordination Agreement
EXHIBIT H-1 - Form of Partners Pledge Agreement (Borrower's Partners)
EXHIBIT H-2 - Form of Borrower Pledge Agreement
EXHIBIT I - Form of Subsidiary Guaranty
-vi-
<PAGE>
EXHIBIT 10.04
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is dated as of
January 14, 1999 (the "Closing Date") by and among ADELPHIA COMMUNICATIONS
CORPORATION, a Delaware corporation (together with its successors and assigns,
the "Company"), and hIGHLAND HOLDINGS II, a Pennsylvania general partnership
("Highland") and Doris Holdings, L.P., a Delaware limited partnership (together
with Highland, the "Investors").
1. Background. The Company and Highland have entered into a stock
purchase agreement, dated as of January 11, 1999 (the "Direct Offering
Agreement"), pursuant to which the Company will issue 4,000,000 shares (the
"Direct Offering Shares") of its Class A common stock to Highland in an offering
exempt from the registration requirements of the Securities Act of 1993, as
amended. Concurrently with the issuance of the Direct Offering Shares, the
Investors and Goldman, Sachs & Co. (the "Lender") are entering into a margin
loan as of the Closing Date (the "Margin Loan"), the proceeds from which will be
used to fund portion of the purchase price of the Direct Offering Shares. As an
inducement to the Lender to enter into the Margin Loan and in satisfaction of a
condition to the obligations of the Lender thereunder, the Investors are (i)
pledging, in accordance with the terms of the Margin Loan, to the Lender, as
pledgee (in such capacity, the "Pledgee"), 6,200,000 shares in the aggregate
(including all of the Direct Offering Shares) (the "Pledged Securities") of the
Company's Class A common stock owned by the Investors and (ii) executing and
delivering this Agreement with the Company. Certain capitalized terms used in
this Agreement are defined in Section 3 hereof.
2. Registration under Securities Act of 1933.
2.1. Registration Statement and Prospectus.
(a) As soon as practicable after the date
hereof but in no event later than 45 days after the Closing Date (such 45th day
being the "Filing Deadline"), the Company shall file with the Commission, in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement, including a prospectus and, if applicable, a
prospectus supplement, relating to all Pledged Securities on Form S-3 under the
Act (the "Initial Registration Statement"), and shall use its best efforts to
cause the Registration Statement to become effective on or prior to 60 days
after the Filing Deadline (such 60th day, being the "Effectiveness Deadline").
During the period from the date the Initial Registration Statement becomes
effective to the date there ceases to be any outstanding obligations (including,
but not limited to, obligations to pay principal, interest or other amounts
payable) under the Margin Loan (the "Registration Period"), to the extent that
for any reason the form of the Initial Registration Statement becomes no longer
available, the Company shall use its best efforts to file and to cause to become
effective as promptly as practicable any necessary amendments to or any
successor form of registration statement relating to the Pledged Securities (the
"Successor Registration Statement" and, together with the Initial Registration
Statement, the "Registration Statement") as then shall be available under the
Act to permit sales of Pledged Securities by the Pledgee, the Investors and the
Underwriters, if any, of the type contemplated by this Agreement. The Company
<PAGE>
agrees to include in the Registration Statement all information that the Pledgee
or the Underwriters, if any, shall reasonably request.
During the Registration Period, the Company
shall use its best efforts to keep the Registration Statement continuously
effective, supplemented and amended to the extent necessary to ensure that it is
available for public sales of the Pledged Securities by the Pledgee, the
Investors and the Underwriters, if any, and to ensure that it conforms with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time.
(b) Registration of Other Securities. No
securities other than the Pledged Securities shall be included among the
securities covered by the Registration Statement unless the Pledgee shall have
consented in writing to the inclusion of such other securities.
(c) Expenses. The Company will pay all
Registration Expenses in connection with its obligations under this Agreement.
Each of the Pledgee, the Investors and the Underwriters, if any, shall pay all
of its respective Selling Expenses incurred in connection with the sale of such
Person's sale of its Pledged Securities.
(d) Selection of Underwriters. If, at the sole
option of the Pledgee, a proposed sale of not less than $15.0 million in then
aggregate market value of the Pledged Securities by or on behalf of the Pledgee
involves an underwritten offering, the underwriter managing such offering (the
"Managing Underwriter") and other underwriters, if any, (together with the
Managing Underwriter, the "Underwriters") shall be designated by the Pledgee;
provided that such Underwriters shall be reasonably satisfactory to the Company.
The Pledgee may act as an Underwriter, including the Managing Underwriter.
2.2. Registration Procedures. The Company shall:
(i) prepare and file with the Commission the
Initial Registration Statement no later than by the Filing Deadline,
(ii) use its best efforts to cause the Initial
Registration Statement to become effective no later than by the
Effectiveness Deadline;
(iii) if required by Section 2.1(a) hereof, use its
best efforts to prepare, file and have become effective promptly as
practicable all Successor Registration Statements;
(iv) during the Registration Period, use its best
efforts to keep the Registration Statement continuously effective,
supplemented and amended to the extent necessary to ensure that it is
available for public sales of the Pledged Securities and to ensure that
it conforms with the requirements of this Agreement, the Act and the
policies, rules and regulations of the Commission as announced from
time to time;
(v) furnish to each of the Pledgee and the
Underwriters, if any, such number of conformed copies of the
Registration Statement and of each such amendment and supplement
thereto (in each case including all exhibits), such number of copies of
the prospectus contained in the Registration Statement (including each
<PAGE>
preliminary prospectus and any summary prospectus) and any other
prospectus filed under Rule 424 under the Act, in conformity with the
requirements of the Act, and such other documents, as the Pledgee or
the Underwriters, if any, may reasonably request;
(vi) use its best efforts to register or qualify all
Pledged Securities under such other securities or blue sky laws of such
jurisdictions as the Pledgee or the Underwriters, if any, shall
reasonably request, to keep such registration or qualification in
effect for the Registration Period, and take any other action that may
be reasonably necessary or advisable to enable the Pledgee and the
Underwriters, if any, to consummate the disposition in such
jurisdictions of the Pledged Securities, except that the Company shall
not for any such purpose be required to qualify generally to do
business as a foreign corporation in any jurisdiction wherein it would
not but for the requirements of this subdivision (vi) be obligated to
be so qualified or to consent to general service of process in any such
jurisdiction;
(vii) use its best efforts to cause all Pledged
Securities to be registered with or approved by such other governmental
agencies or authorities as may be necessary to enable the Pledgee and
the Underwriters, if any, to consummate the disposition of the Pledged
Securities;
(viii) make available at reasonable times for
inspection by the Pledgee and the Underwriters, if any, and any
attorney or accountant retained by the Pledgee or the Underwriters, if
any, all financial and other records, pertinent corporate documents of
the Company and cause the Company's officers, directors and employees
to supply all information reasonably requested by the Pledgee, the
Underwriters, if any, and any such attorney or accountant in connection
with "due diligence" investigations;
(ix) in connection with a sale of the Pledged
Securities by the Pledgee or the Underwriters, if any, furnish to the
Pledgee and the Underwriters, if any, a signed counterpart, addressed
to the Pledgee and the Underwriters, if any, of:
(A) an opinion of counsel for the Company,
dated the effective date of each Registration
Statement (and, if such registration includes an
underwritten public offering, dated the date of the
closing under the underwriting agreement) and
addressed to the Pledgee and the Underwriters, if
any, reasonably satisfactory in form and substance to
the Pledgee and the Underwriters, if any, and
(B) a "comfort" letter, dated the effective
date of each Registration Statement (and, if such
registration includes an underwritten public
offering, dated the date of the closing under the
underwriting agreement) addressed to the Pledgee and
the Underwriters, if any, signed by the independent
public accountants who have certified the Company's
financial statements included in such registration
statement,
covering substantially the same matters with respect to such
Registration Statement (and the prospectus included therein) and, in
the case of the accountants' letter, with respect to events subsequent
to the date of such financial statements, as are customarily covered in
opinions of issuer's counsel and in accountants' letters delivered to
the underwriters in underwritten public offerings of securities and, in
<PAGE>
the case of the accountants' letter, such other financial matters, and,
in the case of the legal opinion, such other legal matters, as the
Pledgee or the Underwriters, if any, may reasonably request;
(x) notify the Pledgee and each of the Underwriters,
if any, at any time when a prospectus relating to the Pledged
Securities is required to be delivered under the Act, upon discovery
that, or upon the happening of any event as a result of which, the
prospectus included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
under which they were made, and at the request of the Pledgee or the
Underwriters, if any, promptly prepare and furnish to the Pledgee or
the Underwriters, if any, a reasonable number of copies of a supplement
to or an amendment of such prospectus (and to timely make any necessary
filings thereof with the Commission and to use its best efforts to
cause such supplement or amendment, if necessary, to be declared
effective under the Act) as may be necessary so that, as thereafter
delivered to the purchasers of any of the Pledged Securities, such
prospectus shall not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the light of
the circumstances under which they were made;
(xi) if not already so listed or qualified, to use
its reasonable best efforts to cause all Pledged Securities to be
listed on any securities exchange or qualified for inclusion in any
automated quotation system on which the Class A common stock is then
listed or included for quotation, as the case may be;
(xii) in connection with an underwritten offering
pursuant to Section 2.1(d) hereof, make appropriate officers of the
Company available to the Underwriters for meetings with prospective
purchasers of the Pledged Securities and prepare and present to
potential investors customary "road show" material in a manner the
Managing Underwriter shall reasonably request;
(xiii) in the event that any broker-dealer registered
under the Securities Exchange Act of 1934 shall be an "affiliate" (as
defined in Rule 2720(b)(1) of the National Association of Securities
Dealers ("NASD") rules (or any successor provision thereto)) of the
Company or has a "conflict of interest" (as defined in Rule 2720(b)(7)
of the NASD rules (or any successor provision thereto)) and such
broker-dealer shall underwrite, participate as a member of an
underwriting syndicate or selling group or assist in the distribution
of any Pledged Securities covered by the Registration Statement,
whether as a holder of such Pledged Securities or as an underwriter, a
placement or sales agent or a broker or dealer in respect thereof, or
otherwise, assist such broker-dealer in complying with the requirements
of the NASD rules, including, without limitation, by (A) engaging a
"qualified independent underwriter" (as defined in Rule 2720(b)(15) of
the NASD rules (or any successor provision thereto)) to participate in
the preparation of the registration statement relating to such Pledged
Securities, to exercise usual standards of due diligence in respect
thereto and to recommend the public offering price of such Pledged
Securities, (B) indemnifying such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section
2.5 hereof, and (C) providing such information to such broker-dealer as
<PAGE>
may be required in order for such broker-dealer to comply with the
requirements of the NASD rules;
(xiv) to make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the
period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the "effective date"
(as defined in Rule 158(c) promulgated under the Act) of each
Registration Statement used to sell Pledged Securities which earnings
statement shall satisfy the provisions of Section 11(a) of, and Rule
158 promulgated under, the Act; and
(xv) enter into such agreements and take such other
actions as the Pledgee shall reasonably request in order to expedite or
facilitate the disposition of the Pledged Securities.
The Company may require the Pledgee or any of the Underwriters, if any,
to furnish the Company such information regarding such Person and the
distribution of the Pledged Securities by such Person as the Company may from
time to time reasonably request in writing if such information is required by
the Act to be included in the Registration Statement.
Each of the Pledgee and the Underwriters, if any, agrees by acquisition
of the Pledged Securities that upon receipt of any notice from the Company of
the happening of any event of the kind described in the subdivision (x) of this
Section 2.2, such Person will forthwith discontinue such Person's disposition of
the Pledged Securities pursuant to the Registration Statement until such
Person's receipt of the copies of the supplemented or amended prospectus
contemplated by subdivision (x) of this Section 2.2 and, if so directed by the
Company, will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in such Person's possession of the
prospectus relating to the Pledged Securities current at the time of receipt of
such notice.
2.3. Underwritten Offerings. If requested by the Underwriters
for any underwritten offering pursuant to Section 2.1(d), the Company shall
enter into an underwriting agreement with such Underwriters for such offering,
such agreement to be satisfactory in substance and form to each of the Pledgee
and the Underwriters and to contain such representations and warranties by the
Company and such other terms as are generally prevailing in agreements of this
type, including, without limitation, indemnities to the effect and to the extent
provided in Section 2.5 of this Agreement or in such other form as is customary
for the Managing Underwriter for such offering. The Pledgee, regardless of
whether the Pledgee is an Underwriter, may at its option be a party to such
underwriting agreement and may, at its option, require that any or all of the
representations and warranties by, and the other agreements (including those
pertaining to the indemnification of the Underwriters) on the part of, the
Company to and for the benefit of such Underwriters shall also be made to and
for the benefit of the Pledgee and that any or all of the conditions precedent
to the obligations of such Underwriters under such underwriting agreement be
conditions precedent to the obligations of such Pledgee.
2.4. Additional Rights of Holders. If the Registration
Statement prepared under this Agreement refers to the Pledgee by name or
otherwise as the holder of any securities of the Company, then such party shall
have the right to require (x) the insertion therein of language, in form and
substance satisfactory to the Pledgee, to the effect that the holding by the
<PAGE>
Pledgee of such securities does not necessarily make the Pledgee a "controlling
person" of the Company within the meaning of the Act and is not to be construed
as a recommendation by the Pledgee of the investment quality of the Company's
securities covered thereby and that such holding does not imply that the Pledgee
will assist in meeting any future financial requirements of the Company, or (y)
in the event that such reference to the Pledgee by name or otherwise is not
required by the Act, the deletion of the reference to the Pledgee.
2.5. Indemnification.
(a) The Company will indemnify and hold harmless
the Pledgee and each of the Investors against any losses, claims, damages or
liabilities, joint or several, to which the Pledgee or any of the Investors may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the prospectus contained therein, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each of the Pledgee and the Investors for any legal or other
expenses reasonably incurred by such Person in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the Pledgee or
the Investors to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement or the
prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by the Pledgee (in
the case of the Pledgee) or by the Investors (in the case of the Investors)
expressly for use therein.
(b) Each of the Pledgee and the Investors
will, severally but not jointly, indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in the Registration Statement or the prospectus or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Pledgee or Investors expressly for
use therein; and will, severally but not jointly, reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under such subsection. In
<PAGE>
case any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and, after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party, in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
(d) If the indemnification provided for in
this Section 2.5 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred to
therein, then the indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Company on the one hand and the
Investors on the other from the initial offering of the Pledged Securities to
the Investors. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law or if the indemnified party failed
to give the notice required under subsection (c) above, then the indemnifying
party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the Pledgee
and/or the Investors on the other, as the case may be, in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Pledgee and/or the Investors on the other, as the case may be,
shall be deemed to be in the same proportion as the total net proceeds from the
initial offering of such Pledged Securities to the Investors (before deducting
expenses) received by the Company bear to the total discounts allowed to the
Investors. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Pledgee and/or the Investors, as
the case may be, on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Investors and the Pledgee agree that it would not be
just and equitable if contributions pursuant to this subsection (d) were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
<PAGE>
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), the Pledgee and/or the Investors, as the case
may be, shall not be required to contribute any amount in excess of the amount
by which the total price at which the Pledged Securities sold by it to the
public pursuant to the Registration Statement exceeds the amount of any damages
which the Pledgee has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(e) The obligations of the Company under this Section
2.5 shall be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each Person, if any,
who controls the Pledgee or the Investors within the meaning of the Act; and the
obligations of the Pledgee or the Investors under this Section 2.5 shall be in
addition to any liability which the Pledgee or the Investors may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company and to each Person, if any, who controls the Company
within the meaning of the Act.
2.6. Adjustments Affecting Pledged Securities. Notwithstanding
any other provision of this Agreement, the Investors' and the Pledgee's rights
with respect to Pledged Securities and their benefits under this Agreement, and
the Company's obligations, including obligations to effect registration of
Pledged Securities under the Act, shall include the original Pledged Securities
and all other securities of the Company (or any other issuer) delivered in
exchange for or in respect of the Pledged Securities, whether by way of a
dividend or other distribution or in connection with a subdivision or
combination of shares, recapitalization, merger, consolidation, exchange offer,
reorganization or other transaction.
2.7. Lockup Agreement. (a) In consideration for the Company
agreeing to its obligations under this Agreement, each of the Investors agrees
in connection with any registration of the Company's securities, upon the
request of the Company or the underwriters managing any underwritten offering of
the Company's securities, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Pledged Securities
(other than (i) those included in the registration in question and (ii) sale
transactions not involving a public offering, provided that the transferee of
such Investor as a condition thereto and in connection therewith, agrees to be
bound by and joins into this Section 2.7), without the prior written consent of
the Company or such underwriters, as the case may be, for such period of time
not to exceed 90 days from the effective date of such registration as the
Company or the underwriters may specify. The restrictions under this Section 2.7
shall be conditioned upon an understanding that the Rigas Shareholders (as
defined in Section 2.7(d) below) will be similarly restricted during any period.
During any period that sales of Pledged Securities by an Investor are restricted
under this Section 2.7, at the Investor's request, the Company will give written
notice to the Investor as soon as the restrictions on sale terminate. The
Company hereby agrees to give the Investors among other things written notice of
the filing of a registration statement for a proposed underwritten offering to
which the restrictions in this Section 2.7 could apply if so requested.
(b) Notwithstanding Section 2.7(a) of this
Agreement or comparable provisions of any other agreement, whether now existing
or hereafter entered into, to which the Company, the Investors or any of the
Rigas Shareholders (or any of their respective affiliates) may be a party (i)
the Company agrees that it will not request, and will not permit the
<PAGE>
underwriters managing any underwritten offering of the Company's securities to
request, and (ii) each of the Investors agrees that it will not agree to, and
will not permit the Rigas Shareholders to agree to, any restriction of the type
described in Section 2.7(a) which could, under any circumstances, restrict the
ability of the Pledgee to sell, for its own account or the account of the
Investors, any Pledged Securities. If, despite the foregoing sentence, any
person shall assert that the Pledgee is or may be restricted in its ability to
sell, for its own account or for the account of the Investors, Pledged
Securities as a result of restrictions of the type described in Section 2.7(a)
(or comparable provisions of other agreements as described in the foregoing
sentence), the Company hereby irrevocably consents, and agrees to cause any
underwriter managing any underwritten offering of the Company's securities to
irrevocably consent in writing, to such sale or sales.
(c) Nothing in this Section 2.7 shall be
deemed to imply or constitute an admission that sales of Pledged Securities by
the Pledgee are intended to be or would be subject to the restrictions set forth
in Section 2.7(a) of this Agreement or comparable provisions of any other
agreement, whether now existing or hereafter entered into, to which the Company,
the Investors or any of the Rigas Shareholders (or any of their respective
affiliates) may be a party.
(d) The term "Rigas Shareholders" means Dorellenic,
Ionian Communications, L.P., Syracuse Hilton Head Holdings, L.P., Highland
Holdings, John J. Rigas, Doris N. Rigas, Timothy J. Rigas, Michael J. Rigas,
James P. Rigas, Ellen K. Rigas, any of their respective spouses, estates or
lineal descendants, any trust created for the 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, and any corporation,
partnership or other entity owned or controlled by one or more of the Rigas
Shareholders.
3. Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
Commission: The Securities and Exchange Commission or any
other federal agency at the time administering the Act.
Person: A corporation, an association, a partnership,
a business, an individual, a governmental or political
subdivision thereof or a governmental agency.
Registration Expenses: All expenses incident to the Company's
performance of or compliance with this Agreement, including,
without limitation, all registration, filing and NASD fees
(including fees, if any, of any "qualified independent
underwriter"), all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating
and printing expenses, messenger and delivery expenses, the
fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any
special audits or "cold comfort" letters required by or
incident to such performance and compliance, premiums and
other costs of policies of insurance against liabilities
arising out of the public offering of the Pledged Securities
being registered and any fees and disbursements of
underwriters customarily paid by issuers or sellers of
securities, but excluding Selling Expenses, if any.
Selling Expenses: Underwriting discounts and commissions and
stock transfer taxes relating to Pledged Securities registered
<PAGE>
by the Company and the fees and disbursements incurred by each
of the Pledgee, the Investors or the Underwriters, if any, in
connection with the sale of its Pledged Securities by such
Person (including, without limitation, the fees and
disbursements of legal counsel to the Pledgee, the Investors
and/or the Underwriters, if any).
4. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited or omit to perform any act herein
required to be performed by it, only if the Company shall have obtained the
written consent of the Pledgee to such amendment, action or omission to act .
5. Notices. All communications provided for hereunder shall be sent by
first-class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery (i) if to the
Company, to the office of the Company at Adelphia Communications Corporation,
Main at Water Street, Coudersport, Pennsylvania 16915, Attention: Chief
Financial Officer, with a copy to Buchanan Ingersoll Professional Corporation,
One Oxford Centre, 301 Grant Street, Pittsburgh, Pennsylvania 15219, Attention:
Carl Rothenberger, (ii) if to the Investors, c/o Adelphia Communications
Corporation, Main at Water Street, Coudersport, Pennsylvania 16915, Attention:
Chief Financial Officer and Colin Higgin, with a copy to Buchanan Ingersoll
Professional Corporation, One Oxford Centre, 301 Grant Street, Pittsburgh,
Pennsylvania 15219, Attention: Carl Rothenberger, and (iii) if to the Pledgee,
to Goldman, Sachs & Co., 85 Broad Street, New York, New York 10004, Attention:
Registration Department.
6. Third Party Beneficiary. The Pledgee shall be a third party
beneficiary to the agreements made hereunder between the Company, on the one
hand, and the Investors, on the other hand, and shall have the right to enforce
such agreements directly to the extent the Pledgee may deem such enforcement
necessary or advisable to protect its rights hereunder.
7. Assignment. This Agreement shall (i) be binding upon by the parties
hereto and their respective successors and assigns and (ii) inure to the benefit
of and be enforceable by the parties hereto and the Pledgee, as a third party
beneficiary of this Agreement, and their respective successors and assigns.
8. Termination. This Agreement shall terminate at the end of the
Registration Period; provided, however, that the agreements, representations,
warranties and other statements of the Company, the Investors and the Pledgee
set forth in or made pursuant Sections 2.1(c) and 2.5 hereof shall remain
operative and in full force and effect, and will survive the end of the
Registration Period.
9. Descriptive Headings. The descriptive headings of the several
sections and paragraphs of this Agreement are inserted for reference only and
shall not limit or otherwise affect the meaning hereof.
10. Specific Performance. The parties hereto recognize and agree that
money damages may be insufficient to compensate the Investors or the Pledgee for
breaches by the Company of the terms hereof and, consequently, that the
equitable remedy of specific performance of the terms hereof will be available
in the event of any such breach.
11. Choice of Law; Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT
<PAGE>
REGARD TO PRINCIPLES OF CONFLICT OF LAWS. THE PARTIES HERETO WAIVE ANY TRIAL BY
JURY WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING IN CONNECTION WITH OR AS A
RESULT OF THIS AGREEMENT. THE COMPANY AGREES THAT ANY SUIT OR PROCEEDING ARISING
IN RESPECT TO THIS AGREEMENT WILL BE TRIED EXCLUSIVELY IN THE U.S. DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK OR, IF THAT COURT DOES NOT HAVE
SUBJECT MATTER JURISDICTION, IN ANY STATE COURT LOCATED IN THE CITY OF NEW YORK
AND THE COMPANY HEREBY SUBMITS TO THE JURISDICTION OF, AND VENUE IN, SUCH
COURTS.
12. Counterparts. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement, or caused
this Agreement to be executed and delivered by their respective representatives
thereunto duly authorized, as of the date first above written.
COMPANY:
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ James Brown
Name: James Brown
Title: Vice President
INVESTORS:
HIGHLAND HOLDINGS II
By: /s/ Timothy J. Rigas
Name:Timothy J. Rigas
Title: General Partner
DORIS HOLDINGS, L.P.
By: /s/ Timothy J. Rigas
Name: Timothy J. Rigas
Title: Vice President, Eleni
Acquisition, Inc.,
General Partner of Doris
Holdings, L.P.
EXHIBIT 4.01
FIRST SUPPLEMENTAL INDENTURE, dated as of November 12, 1998 (the "First
Supplemental Indenture"), to the Indenture, dated as of January 21, 1998 (the
"Indenture") between ADELPHIA COMMUNICATIONS CORPORATION, a Delaware corporation
(the "Company"), and BANK OF MONTREAL TRUST COMPANY, a trust company organized
under the laws of the State of New York (the "Trustee").
WHEREAS, the Company has duly authorized the execution and delivery of
the Indenture to provide for the issuance of both Series A and Series B 8 3/8%
Senior Notes due 2008 (the "Notes"); and
WHEREAS, the Indenture permits the Company to issue up to $300,000,000
in Notes;
WHEREAS, the Company originally issued on January 21, 1998,
$150,000,000 in aggregate principal amounts of Notes under the Indenture (the
"Original Notes");
WHEREAS, the Company proposes to issue an additional $150,000,000 in
aggregate principal amounts of Notes under the Indenture as of November 12,
1998, (the "Subsequent Issuance");
WHEREAS, the Company desires and has requested the Trustee to join it
in the execution and delivery of this First Supplemental Indenture as permitted
by Section 8.01 of the Indenture to issue up to $150,000,000 in aggregate
principal amount of additional notes on or about November 12, 1998 (the
"Additional Notes") and to amend certain definitions relating to the Subsequent
Issuance; and
WHEREAS, the Original Notes and the Additional Notes are identical in
all respects;
WHEREAS, the conditions set forth in the Indenture for the execution
and delivery of this First Supplemental Indenture have been complied with; and
WHEREAS, all things necessary to make this First Supplemental Indenture
a valid agreement of the Company and the Trustee, in accordance with its terms,
and a valid amendment of, and supplement to, the Indenture, have been done;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein, the Company agrees with the Trustee that the Indenture is
supplemented and amended, solely to the extent and for the purposes expressed
herein, as follows:
Section 1. Definitions. Any capitalized term used herein and
not otherwise defined herein shall have the meaning given in the Indenture.
Section 2. Modification of the Definition of "Registration Rights
Agreement." The definition of "Registration Rights Agreement" appearing on page
8 of the Indenture is hereby amended and restated to read in its entirety as
<PAGE>
follows: "Registration Rights Agreement" means (i) with respect to the Original
Notes, the Note Registration Agreement, dated January 21, 1998, by and between
the Company and Salomon Brothers Inc. and (ii) with respect to the Additional
Notes, the Note Registration Rights Agreement, dated November 12, 1998, by and
between the Company and Barclays Capital Inc.
Section 3. Issuance of $150,000,000 in Aggregate Principal Amount of
Additional Notes. The Company and the Trustee agree to supplement the Indenture
pursuant to Section 8.01 of the Indenture to issue up to $150,000,000 in
aggregate principal amount of Additional Notes pursuant to the Indenture.
Section 4. Modification of Form of Note. It is further agreed that the
form of note attached to the Indenture as Exhibit A, is hereby amended and
restated in its entirety in the form set forth as Exhibit A to this First
Supplemental Indenture.
Section 5. Multiple Counterparts. The parties may sign multiple
counterparts of this First Supplemental Indenture. Each counterpart shall be
deemed original, but all of them together represent one and the same agreement.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and attested, all as of the date and
first year above written.
ADELPHIA COMMUNICATIONS CORPORATION
/s/ Midge Houghtaling By:/s/ James Brown
Witness: Vice President
BANK OF MONTREAL TRUST COMPANY, as Trustee
By:/s/ Amy Roberts
Witness: Vice President
<PAGE>
EXHIBIT A
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EXHIBIT 4.02
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NOTE REGISTRATION RIGHTS AGREEMENT
Dated as of November 12, 1998
between
Adelphia Communications Corporation
and
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Barclays Capital Inc.
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<PAGE>
This Note Registration Rights Agreement (this "Agreement") is made and
entered into as of November 12, 1998 between Adelphia Communications Corporation
(the "Company") and Barclays Capital Inc. (the "Initial Purchaser"), who has
agreed to purchase the 8-3/8% Senior Notes due 2008 of the Company (the "Senior
Notes") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
November 6, 1998 (the "Purchase Agreement"), between the Company and the Initial
Purchaser. In order to induce the Initial purchaser to purchase the Senior
Notes, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchaser set forth in Section 2 of the Purchase
Agreement.
The parties hereby agree as follows:
Section 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company
to the Registrar under the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Senior Notes that were
tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Senior Notes, each Interest
Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The 8-3/8% Senior Notes due 2008 of the Company to
be issued pursuant to the Indenture
in the Exchange Offer.
Exchange Offer: The registration by the Company under the Act of the
Exchange Notes pursuant to a Registration Statement pursuant to which the
Company offers the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted Securities held
by such Holders for Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
<PAGE>
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchaser
proposes to sell the Senior Notes to certain "qualified institutional buyers,"
as such term is defined in Rule 144A under the Act.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of January 21, 1998, as amended by
the First Supplemental Indenture thereto, dated as of November 12, 1998, between
the Company and Bank of Montreal Trust Company, as trustee (the "Trustee"),
pursuant to which the Senior Notes are to be issued, as such Indenture is
amended or supplemented from time to time in accordance with the terms thereof.
Initial Purchaser: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Senior Notes and the Exchange Notes.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such prospectus.
Record Holder: With respect to any Damages Payment Date relating to
Notes, each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall occur.
Registrar: Means the Registrar of the Notes as defined in the
Indenture.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Company
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the provisions of
this Agreement in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Senior Notes: As defined in the preamble hereto.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
<PAGE>
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Senior Note, until the earliest to
occur of (a) the date on which such Senior Note is exchanged in the Exchange
Offer and entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act, (b) the date on
which such Senior Note has been effectively registered under the Act and
disposed of in accordance with a Shelf Registration Statement and (c) the date
on which such Senior Note is distributed to the public pursuant to Rule 144
under the Act or by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including delivery of
the Prospectus contained therein).
Underwritten Registration or Underwritten Offering: A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
Section 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to
the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
Section 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Company shall (i) use its reasonable efforts to
cause to be filed with the Commission as soon as practicable after the Closing
Date, but in no event later than 90 days after the Closing Date, a Registration
Statement under the Act relating to the Exchange Notes and the Exchange Offer,
(ii) use its best efforts to cause such Registration Statement to become
effective no later than 180 days after the Closing Date, (iii) in connection
with the foregoing, file (A) all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration Statement to
become effective, (B) if applicable, a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Act and (C) cause all
necessary filings in connection with the registration and qualification of the
Exchange Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Registration Statement, commence the Exchange Offer. The
Exchange Offer Registration Statement shall be on the appropriate form
permitting registration of the Exchange Notes to be offered in exchange for the
Transfer Restricted Securities and to permit resales of Notes held by
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall cause the Exchange Offer Registration Statement
to be effective continuously and shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 business days. The Company shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws. No securities other than the Notes, shall be included in the Exchange
Offer Registration Statement. The Company shall use its best efforts to cause
the Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 30 business days thereafter.
<PAGE>
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Senior Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Senior Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Act and may be required,
therefore, to deliver a prospectus meeting the requirements of the Act in
connection with any sales of the Exchange Notes received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer
or disclose the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in policy after the
date of this Agreement.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Notes acquired by Broker-Dealers for
their own accounts as a result of market-making activities or other trading
activities, and to ensure that such Registration Statement conforms with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of one year from
the date on which the Exchange Offer Registration Statement is declared
effective.
The Company shall promptly provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request, at any time
during such one year period in order to facilitate such sales.
Section 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file an
Exchange Offer Registration Statement or permitted to Consummate the Exchange
Offer, in either case, because the Exchange Offer is not permitted by applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with) or (ii) if any Holder of Transfer Restricted Securities
shall notify the Company within 20 business days of the Consummation of the
Exchange Offer (A) that such Holder is prohibited by applicable law or
Commission policy from participating in the Exchange Offer, or (B) that such
Holder may not resell the Exchange Notes acquired by it in the Exchange Offer to
the public without delivering a prospectus and that the Prospectus contained in
the Exchange Offer Registration Statement is not appropriate or available for
such resales by such Holder, or (iii) if any Holder of Transfer Restricted
Securities is a Broker-Dealer and holds Senior Notes acquired directly from the
Company or an affiliate of the Company and shall so notify the Company, then the
Company shall
(x) cause to be filed a shelf registration statement pursuant
to Rule 415 under the Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "Shelf Registration
Statement") on or prior to the earliest to occur of (1) the 30th day
after the date on which the Company is notified by the Commission or
otherwise determines that it is not required to file the Exchange Offer
Registration Statement or permitted to Consummate the Exchange Offer,
(2) the 30th day after the date on which the Company receives notice
from a Holder of Transfer Restricted Securities as contemplated by
clauses (ii) or (iii) above, and (3) the 60th day after the Closing
Date (such earliest date being the "Shelf Filing Deadline"), which
<PAGE>
Shelf Registration Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) use its best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the
90th day after the Shelf Filing Deadline.
The Company shall use its best efforts to keep such Shelf Registration
Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for resales of Notes by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 4(a), and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, until
the second anniversary of the Closing Date or such shorter period that will
terminate when all the Notes covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or become eligible for
resale pursuant to Rule 144 without volume or other restrictions.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
Section 5. LIQUIDATED DAMAGES
If (i) the Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) such Registration Statement has not been declared effective
by the Commission on or prior to the date specified for such effectiveness in
this Agreement (the "Effectiveness Target Date"), (iii) the Exchange Offer has
not been Consummated within 30 business days after the Effectiveness Target Date
with respect to the Exchange Offer Registration Statement or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself immediately declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Company hereby agrees to pay
liquidated damages to each Holder of Transfer Restricted Securities with respect
to the first 90-day period immediately following the occurrence of such
Registration Default, in an amount equal to 0.25% per annum on the principal
amount of Transfer Restricted Securities held by such Holder for the period that
the Registration Default continues. The amount of the liquidated damages shall
increase by an additional 0.25 % per annum for each subsequent 90 day period
until all Registration Defaults have been cured, up to a maximum amount of
liquidated damages of 2.0% per annum on the principal amount of Transfer
Restricted Securities. All accrued liquidated damages shall be paid to Record
Holders by the Company by wire transfer of immediately available funds or by
federal funds check on each Damages Payment Date, as provided in the Indenture.
Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the accrual of liquidated damages with respect
to such Transfer Restricted Securities will cease.
<PAGE>
All obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such Security shall have
been satisfied in full.
Section 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company shall comply with all of the provisions of Section
6(c) below, shall use its best efforts to effect such exchange to permit the
sale of Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof and shall comply with all of
the following provisions:
(i) If in the reasonable opinion of counsel to the Company
there is a question as to whether the Exchange Offer is permitted by
applicable law, the Company hereby agrees to seek a no-action letter or
other favorable decision from the Commission allowing the Company to
Consummate an Exchange Offer for such Senior Notes. The Company hereby
agrees to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially unreasonable
action to effect a change of Commission policy. The Company hereby
agrees, however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursue a resolution (which need not be
favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position the Commission
enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (including any no-action
letter obtained pursuant to clause (i) above), and (2) must comply with
the registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Senior Notes acquired by such Holder directly from the
Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall, provide a supplemental
letter to the Commission stating (A) that the Company is registering
the Exchange Offer in reliance on the position of the Commission
<PAGE>
enunciated in Exxon Capital Holdings Corporation (available May 13,
1988), Morgan Stanley and Co., Inc. (available June 5, 1991) and, if
applicable, any no-action letter obtained pursuant to clause (i) above
and (B) including a representation that the Company has not entered
into any arrangement or understanding with any Person to distribute the
Exchange Notes to be received in the Exchange Offer and that, to the
best of the Company's information and belief, each Holder participating
in the Exchange Offer is acquiring the Exchange Notes in its ordinary
course of business and has no arrangement or understanding with any
Person to participate in the distribution of the Exchange Notes
received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof, and pursuant
thereto the Company will as expeditiously as possible prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
for the period specified in Section 3 or 4 of this Agreement, as
applicable; upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement, in the case of
clause (A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use its best efforts to cause such
amendment to be declared effective and such Registration Statement and
the related Prospectus to become usable for its intended purpose(s) as
soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as applicable or
such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause
the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Act in a timely manner; and comply with
the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
<PAGE>
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of
the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening
of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company shall use its best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish to each of the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review of such Holders and underwriter(s), if any, for a
period of at least five business days, and the Company will not file
any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including
all such documents incorporated by reference) to which a selling Holder
of Transfer Restricted Securities covered by such Registration
Statement or the underwriter(s), if any, shall reasonably object within
five business days after the receipt thereof. A selling Holder or
underwriter if any, shall be deemed to have reasonably objected to such
filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s), if any, make the Company's representatives available
for discussion of such document and other customary due diligence
matters, and include such information in such document prior to the
filing thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriters, all
financial and other records, pertinent corporate documents and
properties of the Company and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
such Holders, underwriter, attorney or accountant in connection with
such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
<PAGE>
underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Notes covered thereby or the underwriter(s), if
any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company
hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xi) enter into such agreements (including an underwriting
agreement), and make such representations and warranties, and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement,
all to such extent as may be requested by the Initial Purchaser or by
any Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any Registration
Statement contemplated by this Agreement; and whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company shall:
(A) furnish to the Initial Purchaser, each selling
Holder and each underwriter, if any, in such substance and
scope as they may request and as are customarily made by
issuers to underwriters in primary underwritten offerings, (i)
upon the date of the Consummation of the Exchange Offer, (ii)
if applicable, the effectiveness of the Shelf Registration
Statement and (iii) upon the filing of any amendment or
supplement to any Registration Statement:
(1) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, signed by (y) the President or any
Vice President and (z) a principal financial or
accounting officer of the Company confirming, as of
the date thereof, the matters set forth in paragraphs
(i) and (j) of Section 7 of the Purchase Agreement
and such other matters as such parties may reasonably
request;
(2) an opinion, dated the date of
<PAGE>
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for the Company, covering
the matters set forth in paragraphs (d), (e), (f) and
(g) of Section 7 of the Purchase Agreement and such
other matters as such parties may reasonably request,
and in any event including a statement to the effect
that such counsel has participated in conferences
with officers and other representatives of the
Company's representatives of the independent public
accountants for the Company and the Initial
Purchaser's representatives and the Initial
Purchaser's counsel in connection with the
preparation of such Registration Statement and the
related Prospectus and have considered the matters
required to be stated therein and the statements
contained therein, although such counsel has not
independently verified the accuracy, completeness or
fairness of such statements; and that such counsel
advises that, on the basis of the foregoing (relying
as to materiality to a certain extent upon facts
provided to such counsel by officers and other
representatives of the Company and without
independent check or verification), no facts came to
such counsel's attention that caused such counsel to
believe that the applicable Registration Statement,
at the time such Registration Statement or any
post-effective amendment thereto became effective,
and, in the case of the Exchange Offer Registration
Statement, as of the date of Consummation, contained
an untrue statement of a material fact or omitted to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the
case of the opinion dated the date of Consummation of
the Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order
to make the statements therein, in light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and
other financial data included in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) customary comfort letters, dated as of
the date of Consummation of the Exchange Offer or the
date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Company's
independent accountant, Deloitte & Touche LLP, in the
customary form and covering matters of the type
customarily covered in comfort letters by
underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 7(i) of
the Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this clause
(xi), if any.
<PAGE>
If at any time the representations and warranties of the Company
contemplated in clause (A)(1) above cease to be true and correct, the Company
shall so advise the Initial Purchaser and the underwriters(s), if any, and each
selling Holder promptly and, if requested by such Persons, shall confirm such
advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and its respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or underwriter(s) may request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by any
Registration Statement; provided, however, that the Company shall not
be required to register or qualify to transact business where it is not
now so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii) shall issue, upon the request of any Holder of Senior
Notes covered by the Shelf Registration Statement, Exchange Notes,
having an aggregate principal amount equal to the aggregate principal
amount of Senior Notes surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such Exchange Notes to
be registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the Senior
Notes held by such Holder shall be surrendered to the Company for
cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any,
may request at least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii)
above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustees under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with The Depository Trust Company;
(xviii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
<PAGE>
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its reasonable best efforts
to cause such Registration Statement to become effective and approved
by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to consummate
the disposition of such Transfer Restricted Securities;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration
Statement;
(xx) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its best
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on
which similar securities issued by the Company is then listed if
requested by the Holders of a majority in aggregate principal amount of
Senior Notes or the managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof,
or until it is advised in writing (the "Advice") by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If so
directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice.
<PAGE>
Section 7. REGISTRATION EXPENSES
(a) All expenses associated with and incident to the Company's
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses (including
filings made by the Initial Purchaser or any Holder with the NASD and reasonable
counsel fees and disbursements in connection therewith (and, if applicable, the
fees and expenses of any "qualified independent underwriter" and its counsel
that may be required by the rules and regulations of the NASD)); (ii) all
reasonable fees and disbursements of compliance with federal securities and
state Blue Sky or securities laws (including all fees and expenses of counsel to
the underwriter(s) in connection with compliance with state Blue Sky or
securities laws); (iii) all expenses of printing (including printing
certificates for the Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company and, subject to Section
7(b) below, the Holders of Transfer Restricted Securities; (v) all application
and filing fees, if any, in connection with listing the Notes on a national
securities exchange or automated quotation system pursuant to the requirements
hereof; (vi) all fees and expenses of the Trustee under the Indenture to the
extent provided in the Indenture and of any escrow agent, custodian or exchange
agent; and (vii) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company shall, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company shall reimburse the
Initial Purchaser and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Latham & Watkins or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
Section 8. INDEMNIFICATION
(a) Indemnification by the Company. Upon any registration of Transfer
Restricted Securities or Broker-Dealer Transfer Restricted Securities, as
applicable, pursuant to Sections 3 and 4 hereof, and in consideration of the
agreements of the Initial Purchaser contained herein, and as an inducement to
the Initial Purchaser to purchase the Notes, the Company shall and hereby agrees
to, (i) indemnify and hold harmless each Holder of Transfer Restricted
Securities and Broker-Dealer Transfer Restricted Securities, as applicable, to
be included in such registration and each person who participates as a placement
or sales agent or as an underwriter in any offering or sale of such Transfer
Restricted Securities or Broker-Dealer Transfer Restricted Securities, as
applicable, against any losses, claims, damages or liabilities, joint or
several, to which such Holder, agent or underwriter may become subject under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement under which such Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities, as applicable, were registered under the Act, or
any preliminary, final or summary Prospectus contained therein or furnished by
<PAGE>
the Company to any such Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) reimburse such
Holder, such agent and such underwriter for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable under (i) above to any such person in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, or preliminary, final or
summary Prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such person
expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company may require, as a condition to including any Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Securities, as applicable, in
any Registration Statement filed pursuant to Sections 3 and 4 hereof and to
entering into any underwriting agreement, if any, with respect thereto, that the
Company shall have received an undertaking reasonably satisfactory to them from
the Holders of such Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, and from each underwriter named in any
such underwriting agreement, if any, severally and not jointly, to (i) indemnify
and hold harmless the Company, and, in the case of a Shelf Registration
Statement, all other Holders of Transfer Restricted Securities, against any
losses, claims, damages or liabilities to which the Company, or such other
Holders of Transfer Restricted Securities or Broker-Dealer Transfer Restricted
Securities, as applicable, may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement, or any
preliminary, final or summary Prospectus contained therein or furnished by the
Company to any such Holder, agent or underwriter if any, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Holder or
underwriter expressly for use therein, and (ii) reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that no such Holder shall be required to undertake
liability to any person under this Section 8(b) for any amounts in excess of the
dollar amount of the proceeds to be received by such Holder from the sale of
such Holder's Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 8, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 8(a) or 8(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
<PAGE>
the defense thereof other than reasonable costs of investigation.
Notwithstanding the foregoing, any indemnified party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless the indemnified party shall have been advised by
counsel that representation of the indemnified party by counsel provided by the
indemnifying party would be inappropriate due to actual or potential conflicting
interests between the indemnifying party and the indemnified party, including
situations in which there are one or more legal defenses available to the
indemnified party that are different from or additional to those available to
the indemnifying party; provided, however, that the indemnifying party shall
not, in connection with any one such action or proceeding or separate but
substantially similar actions or proceedings arising out of the same general
allegations, be liable for the fees and expenses of more than one separate firm
of attorneys at any time for all indemnified parties, except to the extent that
local counsel, in addition to its regular counsel, is required in order to
effectively defend against such action or proceeding. The indemnifying party
shall not be required to indemnify any indemnified party for any amount paid or
payable by such indemnified party in the settlement of any action, proceeding or
investigation without the written consent of the indemnifying party, which
consent shall not be unreasonably withheld. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 8(a) or Section 8(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. It is understood that
contribution under this subsection (d) is unavailable to indemnified parties to
the same extent that indemnification is unavailable under the proviso at the end
of subsection (a) above. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 8(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Holder shall be required to contribute any
<PAGE>
amount in excess of the amount by which the dollar amount of the proceeds
received by such Holder from the sale of any Transfer Restricted Securities
(after deducting any fees, discounts and commissions applicable thereto) or
Broker-Dealer Transfer Restricted Securities, as applicable, exceeds the amount
of any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Transfer Restricted Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Holders'
and any underwriters' obligations in this Section 8(d) to contribute shall be
several in proportion to the principal amount of Transfer Restricted Securities
or Broker-Dealer Transfer Restricted Securities, as applicable, registered or
underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
each Holder, agent and underwriter and each person, if any, who controls any
Holder, agent or underwriter within the meaning of the Act; and the obligations
of the Holders and any underwriters contemplated by this Section 8 shall be in
addition to any liability which the respective Holder or underwriter may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company (including any person who, with his consent,
is named in any Registration Statement as about to become a director of the
Company) and to each person, if any, who controls the Company within the meaning
of the Act.
Section 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
Section 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
Section 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
<PAGE>
Section 12. MISCELLANEOUS
(a) Remedies. The Company agrees that monetary damages (including the
liquidated damages contemplated hereby) would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not Previously
entered into any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
(c) Adjustments Affecting the Notes. The Company shall not take any
action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate the
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company:
Adelphia Communications Corporation
Main at Water Street
Coudersport, PA 16915
Telecopier No.: (814) 274-7098
Attention: Tim Rigas
With a copy to:
Buchanan Ingersoll Professional Corporation
1 Oxford Center
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
<PAGE>
Telecopier No.: (412) 562-1041
Attention: Carl Rothenberger
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in Separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the Notes, the
Indenture and the Purchase Agreement is intended by the parties as a final
expression of their agreement and intended to he a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Adelphia Communications Corporation
By:
Name:
Title:
Barclays Capital Inc.
By:
Name:
Title:
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Adelphia Communications Corporation
By:/s/ James R. Brown
Name: James R. Brown
Title: Vice President
Barclays Capital Inc.
By: Michael Bloom
Name: Michael Bloom
Title: Director
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
EXHIBIT 4.03
ADELPHIA COMMUNICATIONS CORPORATION
Up to $700,000,000
$100,000,000 7 1/2% Senior Notes Due 2004
$300,000,000 7 3/4% Senior Notes due 2009
INDENTURE
Dated as of January 13, 1999
BANK OF MONTREAL TRUST COMPANY, Trustee
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<CAPTION>
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
<S> <C>
310(a)(1)-----------------------------------------------------------------------------------7.10
(a)(2---------------------------------------------------------------------------------7.10
(a)(3)-----------------------------------------------------------------------------N.A.
(a)(4)-----------------------------------------------------------------------------N.A.
(b)-----------------------------------------------------------------------------------7.08;7.10;11.02
(b)(1)--------------------------------------------------------------------------------7.10
(b)(9)--------------------------------------------------------------------------------7.10
(c)------------------------------------------------------------------------------- N.A.
311(a)--------------------------------------------------------------------------------------7.11
(b)-----------------------------------------------------------------------------------7.11
(c)--------------------------------------------------------------------------------N.A.
312(a)--------------------------------------------------------------------------------------2.05
(b)----------------------------------------------------------------------------------11.03
(c)----------------------------------------------------------------------------------11.03
313(a)--------------------------------------------------------------------------------------7.06
(b)(1)--------------------------------------------------------------------------------7.06
(b)(2)--------------------------------------------------------------------------------7.06
(c)-----------------------------------------------------------------------------------7.06, 11.02
(d)-----------------------------------------------------------------------------------7.06
314(a)--------------------------------------------------------------------------------------4.02;11.02
(b)--------------------------------------------------------------------------------N.A.
(c)(1)-------------------------------------------------------------------------------11.04;11.05
(c)(2)-------------------------------------------------------------------------------11.04;11.05
(c)(3)-----------------------------------------------------------------------------N.A.
(d)--------------------------------------------------------------------------------N.A.
(e)----------------------------------------------------------------------------------11.05
(f)--------------------------------------------------------------------------------N.A.
315(a)--------------------------------------------------------------------------------------7.01;7.02
(b)-----------------------------------------------------------------------------------7.05;11.02
(c)-----------------------------------------------------------------------------------7.01
(d)-----------------------------------------------------------------------------------6.05;7.01;7.02
(e)-----------------------------------------------------------------------------------6.11
316(a) (last sentence)---------------------------------------------------------------------11.06
(a)(1)(A)-----------------------------------------------------------------------------6.05
(a)(1)(B)-----------------------------------------------------------------------------6.04
(a)(2)--------------------------------------------------------------------------------8.02
(b)-----------------------------------------------------------------------------------6.07
317(a)(1)-----------------------------------------------------------------------------------6.08
(a)(2)--------------------------------------------------------------------------------6.09
(b)-----------------------------------------------------------------------------------2.04
318(a)-------------------------------------------------------------------------------------11.01
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of the Indenture.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
<S> <C>
Section 1.01. Definitions.....................................................................................1
Section 1.02. Other Definitions..............................................................................10
Section 1.03. Incorporation by Reference of Trust Indenture..................................................11
Section 1.04. Rules of Construction..........................................................................11
Section 1.05. Acts of Holders................................................................................12
ARTICLE 2
THE NOTES
Section 2.01. Form and Dating................................................................................12
Section 2.02. Execution and Authentication...................................................................14
Section 2.03. Registrar and Paying Agent.....................................................................14
Section 2.04. Paying Agent to Hold Money in Trust............................................................15
Section 2.05. Holder Lists...................................................................................15
Section 2.06. Transfer and Exchange..........................................................................15
Section 2.07. Replacement Notes..............................................................................20
Section 2.08. Outstanding Notes..............................................................................21
Section 2.09. Treasury Notes.................................................................................21
Section 2.10. Temporary Notes................................................................................21
Section 2.11. Cancellation...................................................................................21
Section 2.12. Defaulted Interest.............................................................................22
ARTICLE 3
CHANGE OF CONTROL OFFER
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes...............................................................................24
Section 4.02. SEC Reports....................................................................................24
Section 4.03. Waiver of Stay, Extension or Usury Laws........................................................24
Section 4.04. Limitation on Transactions with Affiliates.....................................................25
Section 4.05. Limitation on Indebtedness.....................................................................25
Section 4.06. Limitation on Restricted Payments..............................................................25
Section 4.07. Reports to Holders.............................................................................26
Section 4.08. Notice of Defaults Or Events of Default........................................................26
Section 4.09. Compliance Certificates........................................................................26
Section 4.10. Covenant to Secure Notes Equally...............................................................26
Section 4.11. Limitation on Investment in Affiliates and Unrestricted Subsidiaries...........................27
Section 4.12. Limitation on Sale of Assets...................................................................27
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Mergers and Consolidations.....................................................................27
Section 5.02. Successor Person Substituted...................................................................28
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default..............................................................................28
Section 6.02. Acceleration...................................................................................30
Section 6.03. Other Remedies.................................................................................30
Section 6.04. Waiver of Past Defaults and Events of Default..................................................31
Section 6.05. Control by Majority............................................................................31
Section 6.06. Limitation on Suits............................................................................31
Section 6.07. Rights of Holders to Receive Payment...........................................................32
Section 6.08. Collection Suit by Trustee.....................................................................32
Section 6.09. Trustee May File Proofs of Claim...............................................................32
Section 6.10. Priorities.....................................................................................33
Section 6.11. Undertaking for Costs..........................................................................33
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee..............................................................................33
Section 7.02. Rights of Trustee..............................................................................34
Section 7.03. Individual Rights of Trustee...................................................................35
Section 7.04. Trustee's Disclaimer...........................................................................35
Section 7.05. Notice of Defaults.............................................................................35
Section 7.06. Reports by Trustee to Holders..................................................................35
Section 7.07. Compensation and Indemnity.....................................................................36
Section 7.08. Replacement of Trustee.........................................................................36
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.......................................37
Section 7.10. Eligibility; Disqualification..................................................................37
Section 7.11. Preferential Collection of Claims Against Company..............................................38
Section 7.12. Paying Agents..................................................................................38
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.....................................................................38
Section 8.02. With Consent of Holders........................................................................39
Section 8.03. Compliance with Trust Indenture Act............................................................40
Section 8.04. Revocation and Effect of Consents..............................................................40
Section 8.05. Notation on or Exchange of Notes...............................................................40
Section 8.06. Trustee to Sign Amendments, etc................................................................41
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE: UNCLAIMED MONEYS
Section 9.01. Satisfaction and Discharge of Indenture........................................................41
Section 9.02. Funds Deposited for Payment of Notes...........................................................42
Section 9.03. Moneys Held by Paying Agent....................................................................42
Section 9.04. Moneys Held by Trustee.........................................................................42
Section 9.05. Reinstatement..................................................................................43
ARTICLE 10
DEFEASANCE AND COVENANT DEFEASANCE
Section 10.01. Applicability of Article; Company Option to Effect Defeasance..................................43
Section 10.02. Defeasance and Discharge.......................................................................43
Section 10.03. Covenant Defeasance............................................................................44
Section 10.04. Conditions to Defeasance or Covenant Defeasance................................................44
Section 10.05. Deposited Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions.......................................................................45
Section 10.06. Reinstatement..................................................................................46
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls...................................................................46
Section 11.02. Notices........................................................................................46
Section 11.03. Communications by Holders with Other Holders...................................................47
Section 11.04. Certificate and Opinion as to Conditions.......................................................47
Section 11.05. Statements Required in Certificate and Opinion.................................................48
Section 11.06. When Treasury Notes Disregarded................................................................48
Section 11.07. Rules by Trustee and Agents....................................................................48
Section 11.08. Business Days; Legal Holidays..................................................................49
Section 11.09. Governing Law..................................................................................49
Section 11.10. No Adverse Interpretation of Other Agreements..................................................49
Section 11.11. No Recourse against Others.....................................................................49
Section 11.12. Successors.....................................................................................49
Section 11.13. Multiple Counterparts..........................................................................50
Section 11.14. Table of Contents, Headings, etc...............................................................50
Section 11.15. Separability...................................................................................50
</TABLE>
<PAGE>
EXHIBITS
Exhibit A FORM OF NOTES
Exhibit B FORM OF CERTIFICATES OF EXCHANGE OR TRANSFER
<PAGE>
THIS INDENTURE, dated as of January 13, 1999, is by and
between ADELPHIA COMMUNICATIONS CORPORATION, a Delaware corporation (the
"Company"), and BANK OF MONTREAL TRUST COMPANY, a trust company organized under
the laws of the State of New York (the "Trustee").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions
"144A Global Note" means a permanent global note that contains
the paragraph referred to in footnote 1 and the additional schedule referred to
in footnote 2 to the form of the Note attached hereto as Exhibit A, and that is
deposited with and registered in the name of the Depository.
"2004 Notes" means the 7 1/2% Senior Notes Due 2004 that are
issued under this Indenture, as amended or supplemented from time to time
pursuant to this Indenture.
"2009 Notes" means the 7 3/4% Senior Notes Due 2009 that are
issued under this Indenture, as amended or supplemented from time to time
pursuant to this Indenture.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.05 hereof.
"Affiliate" means a Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is under
common control with, the Company, (ii) which beneficially owns or holds 10% or
more of any class of the voting Capital Stock of the Company, or (iii) of which
10% or more of the voting Capital Stock is beneficially owned or held by the
Company, a Restricted Subsidiary or an Unrestricted Subsidiary of the Company.
Without a limitation, an Affiliate also includes any director or executive
officer of the Company. As used herein, "Affiliate" shall not include a
Restricted Subsidiary.
"Agent" means any Registrar, Paying Agent, co-registrar or
agent for service of notices and demands. See Section 2.03 hereof.
"Agent Members" means members of, or participants in, the
Depository.
"Aggregate Excess Restricted Investments" means for any fiscal
quarter the aggregate of Excess Restricted Investments with respect to the
Restricted Investments in all of the Unrestricted Subsidiaries and Affiliates of
the Company.
"Allowable Securities" means (i) cash equivalents, (ii) common
or preferred Capital Stock in a Person which (x) has Investment Grade Senior
Debt or (y) whose ratio of Indebtedness plus Preferred Stock to Annualized Pro
Forma EBITDA is less than 7.75:1, or (iii) debt securities issued by a Person
which (x) has Investment Grade Senior Debt or (y) whose Leverage Ratio is less
than 7.75:1, provided that the securities in (ii)(y) and (iii)(y) above shall
only be deemed to be Allowable Securities if the principal business of the
Person is owning and operating cable television systems.
<PAGE>
"Annualized Pro Forma EBITDA" means, with respect to any
Person, (i) such Person's Pro Forma EBITDA for the latest fiscal quarter
multiplied by four, minus (ii) in the case of the Company only, the Company's
Aggregate Excess Restricted Investments for such fiscal quarter.
"Asset Sale" means the sale, transfer or other disposition
(other than to the Company or any of its Restricted Subsidiaries) in any single
transaction or series of related transactions of (a) any Capital Stock of or
other equity interest in any Restricted Subsidiary, (b) all or substantially all
of the assets of the Company or of any Restricted Subsidiary or (c) all or
substantially all of the assets of a Company System or part thereof serving at
least 5,000 basic subscribers, a division, line of business or comparable
business segment of the Company or any Restricted Subsidiary.
"Applicable Procedures" means the procedures of the
Depository.
"Board of Directors" means the Board of Directors of the
Company or any committee authorized to act therefor.
"Board Resolution" means a copy of a resolution certified
pursuant to an Officers' Certificate to have been duly adopted by the Board of
Directors and to be in full force and effect, and delivered to the Trustee.
"Capital Stock" means, with respect to any Person, any and all
shares or other equivalents (however designated) of corporate stock, partnership
interests or any other participation, right or other interest in the nature of
any equity interest in such Person or any option, warrant or other security
convertible into any of the foregoing.
"Capital Stock Sale Proceeds" means the aggregate net sale
proceeds (including the fair market value of property, other than cash, as
determined by an independent appraisal firm) received by the Company from the
issue or sale (other than to a Subsidiary) by the Company of any class of its
Capital Stock on or after January 1, 1993 (including Capital Stock of the
Company issued after January 1, 1993 upon conversion of or in exchange for other
securities of the Company).
"Capitalized Lease Obligations" means Indebtedness represented
by obligations under a lease that is required to be capitalized for financial
reporting purposes in accordance with GAAP and the amount of such Indebtedness
shall be the capitalized amount of such obligations determined in accordance
with GAAP.
"Cedel" means Cedel Bank, S.A.
"Change of Control" means such time as (i) (a) a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act),
other than the Rigas Family and its Affiliates, becomes the "beneficial owner"
(as defined in Rule 13d-3 under the Exchange Act) of more than 35% of the total
voting power required to elect or designate for election a majority of the
Company's Board of Directors and attaching to the then outstanding voting
Capital Stock of the Company and (b) the Rigas Family, together with its
Affiliates, is not at such time the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act) of more than 35% of the total voting power required to
elect or designate for election a majority of the Company's Board of Directors
and attaching to the then outstanding voting Capital Stock of the Company, or
(ii) during any period of two consecutive calendar years, individuals who at the
beginning of such period constituted the Company's Board of Directors (together
with any new directors whose election by the Company's Board of Directors or
whose nomination for election by the Company's stockholders was approved by a
<PAGE>
vote of at least two-thirds of the directors then still in office who either
were directors at the beginning of such period or whose election or nomination
for election was previously so approved or approved by the Rigas Family and its
Affiliates at a time when they had the right or ability by voting right,
contract or otherwise to elect or designate for election a majority of the
Company's Board of Directors) cease for any reason to constitute a majority of
the directors then in office.
"Change of Control Triggering Event" means the occurrence of
both a Change of Control and a Rating Decline.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5 of
this Indenture and thereafter means the successor and any other obligor on the
Notes.
"Company Request" means any written request signed in the name
of the Company by the Chairman, the President or a Vice President of the Company
and attested to by a Secretary or an Assistant Secretary or the Treasurer or an
Assistant Treasurer of the Company.
"Consolidated Fixed Charge Ratio" means, for any Person, for
any period, the ratio of (i) Annualized Pro Forma EBITDA to (ii) Consolidated
Interest Expense for such period multiplied by four.
"Consolidated Interest Expense" means, for any Person, for any
period, the amount of interest in respect of Indebtedness (including
amortization of original issue discount, amortization of debt issuance costs,
and non-cash interest payments on any Indebtedness and the interest portion of
any deferred payment obligation and after taking into account the effect of
elections made under any Interest Rate Agreement, however denominated, with
respect to such Indebtedness), the amount of Redeemable Dividends and the
interest component of rentals in respect of any Capitalized Lease Obligation
paid, accrued or scheduled to be paid or accrued by such Person during such
period, determined on a consolidated basis in accordance with GAAP. For purposes
of this definition, interest on a Capitalized Lease Obligation shall be deemed
to accrue at an interest rate reasonably determined by such Person to be the
rate of interest implicit in such Capitalized Lease Obligation in accordance
with GAAP consistently applied.
"Corporate Trust Office" means the office of the Trustee at
which at any particular time its corporate trust business shall be principally
administered, which office at the date of execution of this Indenture is located
at 88 Pine Street, New York, New York 10005.
"Cumulative Credit" means the sum of (i) Capital Stock Sale
Proceeds plus (ii) cumulative EBITDA of the Company from and after January 1,
1993 to the end of the fiscal quarter immediately preceding the date of a
proposed Restricted Payment, or, if such cumulative EBITDA for such period is
negative, minus the amount by which such cumulative EBITDA is less than zero.
"Cumulative Interest Expense" means the aggregate amount of
Consolidated Interest Expense paid, accrued or scheduled to be paid or accrued
by the Company from January 1, 1993 to the end of the fiscal quarter immediately
preceding a proposed Restricted Payment, determined on a consolidated basis in
accordance with GAAP.
<PAGE>
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Definitive Notes" means Notes that are in the form of the
Notes attached hereto as Exhibit A, that do not include the information called
for by footnotes 1 and 2 thereof.
"Depository" means The Depository Trust Company and its
successors.
"EBITDA" means, for any Person, for any period, an amount
equal to (A) the sum of (i) consolidated net income for such period (exclusive
of any gain or loss realized in such period upon an Asset Sale), plus (ii) the
provision for taxes for such period based on income or profits to the extent
such income or profits were included in computing consolidated net income and
any provision for taxes utilized in computing net loss under clause (i) hereof,
plus (iii) Consolidated Interest Expense for such period, plus (iv) depreciation
for such period on a consolidated basis, plus (v) amortization of intangibles
for such period on a consolidated basis, plus (vi) any other non-cash items
reducing consolidated net income for such period, minus (B) all non-cash items
increasing consolidated net income for such period, all for such Person and its
Subsidiaries determined in accordance with GAAP consistently applied, except
that with respect to the Company, each of the foregoing items shall be
determined on a consolidated basis with respect to the Company and its
Restricted Subsidiaries only.
"Excess Restricted Investment" means, with respect to any
particular Unrestricted Subsidiary or Affiliate of the Company for a fiscal
quarter, the lesser of the amounts described in the following clauses (i) and
(ii), or if such amounts are equal, such amount:
(i) the aggregate amount of any Restricted
Investments (other than the Initial
Investment) made by the Company or any
Restricted Subsidiary with respect to such
Unrestricted Subsidiary or Affiliate and
during the twelve-month period ending on the
last day of such fiscal quarter;
(ii) cash income received during such quarter by
the Company with respect to its Restricted
Investments in such Unrestricted Subsidiary
or Affiliate multiplied by four;
and provided that cash income from a particular Restricted Investment shall be
included only (x) if cash income has been received by the Company with respect
to such Restricted Investment during each of the previous two fiscal quarters,
or (y) if the cash income derived from such Restricted Investment is
attributable to Allowable Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Offer" means the Exchange Offer as defined in the
Registration Rights Agreement.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"GAAP" means generally accepted accounting principles as in
effect in the United States from time to time.
<PAGE>
"Global Notes" means, individually and collectively, the 144A
Global Note and the Regulation S Global Note, substantially in the form of
Exhibit A hereto.
"Holder" or "Noteholder" means the Person in whose name a
Note is registered on the Registrar's books.
"Indebtedness" is defined to mean (without duplication), with
respect to any Person, any indebtedness, secured or unsecured, contingent or
otherwise, which is for borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such Person or only to a portion
thereof), or evidenced by bonds, notes, debentures or similar instruments or
representing the balance deferred and unpaid of the purchase price of any
property (excluding, without limitation, any balances that constitute subscriber
advance payments and deposits, accounts payable or trade payables, and other
accrued liabilities arising in the ordinary course of business) if and to the
extent any of the foregoing indebtedness would appear as a liability upon a
balance sheet of such Person prepared in accordance with GAAP, and shall also
include, to the extent not otherwise included, (i) any Capitalized Lease
Obligations, (ii) obligations secured by a lien to which the property or assets
owned or held by such Person is subject, whether or not the obligation or
obligations secured thereby shall have been assumed, (iii) guaranties of items
of other Persons which would be included within this definition for such other
Persons (whether or not such items would appear upon the balance sheet of the
guarantor), (iv) in the case of the Company, Preferred Stock of its Restricted
Subsidiaries and (v) obligations of any such Person under any Interest Rate
Agreement applicable to any of the foregoing. Notwithstanding the foregoing,
Indebtedness shall not include any interest or accrued interest until due and
payable.
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Initial Investment" means the Restricted Investment in a
Person made by the Company or a Restricted Subsidiary that first results in such
Person becoming an Unrestricted Subsidiary or Affiliate of the Company, except
that in the case of Olympus, "Initial Investment" shall mean any Restricted
Investment made in Olympus since February 22, 1994, but only to the extent that
such Restricted Investment when aggregated with the other Restricted Investments
made in Olympus since such date does not exceed $25,000,000.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Rate Agreement" means, for any Person, any interest
rate swap agreement, interest rate cap agreement, interest rate collar agreement
or other similar agreement designed to protect the party indicated therein
against fluctuations in interest rates.
"Investment Grade Senior Debt" means, with respect to any
Person, Indebtedness of such Person which has been rated with an investment
grade rating by Moody's or Standard & Poor's Corporation.
"Leverage Ratio" is defined as the ratio of (i) the
outstanding Indebtedness of a Person and its Subsidiaries (or in the case of the
Company, its Restricted Subsidiaries) divided by (ii) the Annualized Pro Forma
EBITDA of such Person.
<PAGE>
"Lien" means with respect to any property or assets of the
Company (it being understood that for the purposes of this definition property
or assets of the Company do not include property or assets of any Subsidiary of
the Company) any mortgage or deed of trust, pledge, hypothecation, assignment,
deposit arrangement, security interest, lien, charge, easement (other than any
easement not materially impairing usefulness or marketability), encumbrance,
preference, priority, or other security agreement or preferential arrangement of
any kind or nature whatsoever on or with respect to such property or assets
(including without limitation, any Capitalized Lease Obligation, conditional
sale, or other title retention agreement having substantially the same economic
effect as any of the foregoing) except for (i) liens for taxes, assessments or
governmental charges or levies on property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are being contested in
good faith and by appropriate proceedings; (ii) liens imposed by law such as
carriers', warehousemen's and mechanics' liens and other similar liens arising
in the ordinary course of business which secure payment of obligations not more
than sixty (60) days past due or are being contested in good faith and by
appropriate proceedings; (iii) other liens incidental to the conduct of its
business or the ownership of its property and assets which were not incurred in
connection with the borrowing of money or the obtaining of advances or credit
and which do not in the aggregate materially detract from the value of its
property or assets or materially impair the use thereof in the operation of its
business; (iv) utility easements, building restrictions and such other
encumbrances or charges against real property as are of a nature generally
existing with respect to properties of a similar character; or (v) liens arising
upon entry of a confession of judgment in Pennsylvania courts in connection with
borrowings not in excess of $1,000,000 in the aggregate.
"Notes" means, individually and collectively, the 2004 Notes
and 2009 Notes that are issued under this Indenture, as amended or supplemented
from time to time pursuant to this Indenture.
"Officer" means the Chairman of the Board, the President, any
Vice President, the Chief Financial Officer, the Treasurer, the Secretary or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two
Officers. See Sections 11.04 and 11.05 hereof.
"Olympus" means Olympus Communications, L.P., a Delaware
limited partnership.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee. See Sections 11.04 and 11.05 hereof.
"Permitted Investments" means, for any Person, Restricted
Investments made on or after February 22, 1994 consisting of (i) advances for
less than one year issued in the ordinary course of business for working capital
purposes or for the purchase of property, plant and equipment in an amount not
to exceed $5,000,000 in the aggregate outstanding, (ii) with respect to a
Restricted Investment in Olympus, $25,000,000 plus the aggregate amount of cash
income received by the Company from Olympus, minus the aggregate amount of all
Restricted Investments made since February 22, 1994 with respect to Olympus,
(iii) $20,000,000 plus the cash proceeds from the sale or redemption of, or
income from, any Restricted Investments made on or after January 1, 1993, minus
the aggregate amount of all Restricted Investments (excluding Restricted
Investments made with respect to Olympus) since January 1, 1993, (iv) non-cash
Restricted Investments made with the non-cash proceeds from the sale or
redemption of, or income from, any Restricted Investments, or (v) an amount
which, at the time of such Restricted Investment, does not exceed the amount of
<PAGE>
Restricted Payments that could then be made by the Company and its Restricted
Subsidiaries under Section 4.06; provided further that no Restricted Investments
may be made under (ii), (iii), (iv) or (v) unless pro forma for such Restricted
Investment the Company could incur $1 of debt under the first paragraph of
Section 4.05.
"Permitted Refinancing Indebtedness" means any renewals,
extensions, substitutions, refinancings or replacements of any Indebtedness,
including any successive extensions, renewals, substitutions, refinancings or
replacements so long as (i) the aggregate amount of Indebtedness represented
thereby is not increased by such renewal, extension, substitution, refinancing
or replacement, (ii) in the case of Indebtedness of the Company, the average
life and the date such Indebtedness is scheduled to mature is not shortened and
(iii) in the case of Indebtedness of the Company, the new Indebtedness shall not
be senior in right of payment to the Indebtedness that is being extended,
renewed, substituted, refinanced or replaced.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government (including any agency or political subdivision thereof).
"Preferred Stock" means any Capital Stock of a Person, however
designated, which entitles the holder thereof to a preference with respect to
dividends, distributions or liquidation proceeds of such Person over the holders
of other Capital Stock issued by such Person.
"Pro Forma EBITDA" means for any Person, for any period, the
EBITDA of such Person, as determined on a consolidated basis in accordance with
GAAP consistently applied after giving effect to the following: (i) if, during
or after such period, such Person or any of its Subsidiaries shall have made any
Asset Sale, Pro Forma EBITDA of such Person and its Subsidiaries for such period
shall be reduced by an amount equal to the Pro Forma EBITDA (if positive)
directly attributable to the assets which are the subject of such Asset Sale for
the period or increased by an amount equal to the Pro Forma EBITDA (if negative)
directly attributable thereto for such period and (ii) if, during or after such
period, such Person or any of its Subsidiaries completes an acquisition of any
Person or business which immediately after such acquisition is a Subsidiary of
such Person or whose assets are held directly by such Person or a Subsidiary of
such Person, Pro Forma EBITDA shall be computed so as to give pro forma effect
to the acquisition of such Person or business; and provided further that with
respect to the Company, all of the foregoing references to "Subsidiary" or
"Subsidiaries" shall be deemed to refer only to a "Restricted Subsidiary" or
"Restricted Subsidiaries" of the Company.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Rating Date" means the date which is 90 days prior to the
earlier of (i) a Change of Control and (ii) public notice of the occurrence of a
Change of Control or of the intention of the Company to effect a Change of
Control.
"Rating Decline" means the occurrence of the following on, or
within 90 days after, the date of public notice of the occurrence of a Change of
Control or of the intention by the Company to effect a Change of Control (which
period shall be extended so long as the rating of the Notes is under publicly
announced consideration for possible downgrade by Moody's or Standard & Poor's
Corporation): (a) in the event the Notes are rated by either Moody's or Standard
& Poor's on the Rating Date as Investment Grade Senior Debt, the rating of the
<PAGE>
Notes by both Moody's and Standard & Poor's shall be below Investment Grade
Senior Debt; or (b) in the event the Notes are rated below Investment Grade
Senior Debt by both Moody's and Standard & Poor's on the Rating Date, the rating
of the Notes by either Moody's or Standard & Poor's shall be decreased by one or
more gradations (including gradations within rating categories as well as
between rating categories).
"Redeemable Dividend" means, for any dividend with regard to
Redeemable Stock, the quotient of the dividend divided by the difference between
one and the maximum statutory federal income tax rate (expressed as a decimal
number between 1 and 0) then applicable to the issuer of such Redeemable Stock.
"Redeemable Stock" means with respect to any Person, any
Capital Stock that by its terms or otherwise is required to be redeemed or is
redeemable at the option of the holder at any time prior to the maturity of the
Notes.
"Registration Rights Agreement" means the Note Registration
Rights Agreement, dated as of January 13, 1999, by and between the Company and
Salomon Smith Barney Inc., Credit Suisse First Boston Corporation, Goldman,
Sachs & Co., Lehman Brothers Inc., and NationsBanc Montgomery Securities LLC.
"Regulation S" means Regulation S promulgated under the
Securities Act.
"Regulation S Global Note" means a permanent global note that
contains the paragraph referred to in footnote 1 and the additional schedule
referred to in footnote 2 to the form of the Note attached hereto as Exhibit A,
and that is deposited with or on behalf of the Depositary and registered in the
name of the Depositary or its nominee, issued in a denomination equal to the
outstanding principal amount of the Notes initially sold in reliance on Rule 903
of Regulation S.
"Restricted Investment" means any advance, loan, account
receivable (other than an account receivable arising in the ordinary course of
business), or other extension of credit (excluding, however, accrued and unpaid
interest in respect of any advance, loan or other extension of credit) or any
capital contribution to (by means of transfers of property to others, payments
for property or services for the account or use of others, or otherwise), any
purchase or ownership of any stocks, bonds, notes, debentures or other
securities (including, without limitation, any interests in any partnership or
joint venture) of, or any bank accounts with or guarantee of any Indebtedness or
other obligations of, any Unrestricted Subsidiary or Affiliate of the Company.
"Restricted Payment" means (i) any dividend or distribution
(whether made in cash, property or securities), on or with respect to any shares
of Capital Stock of the Company or Capital Stock of any Subsidiary which is
consolidated with the Company in accordance with GAAP consistently applied,
except for any dividend or distribution which is made solely to the Company or
another Subsidiary or dividends or distributions payable solely in shares of
Common Stock of the Company, or (ii) any redemption, repurchase, retirement or
other direct or indirect acquisition of (a) Indebtedness of the Company which is
subordinate in right of payment to the Notes, except by exchange for or out of
the proceeds of the substantially concurrent issuance of Permitted Refinancing
Indebtedness or from proceeds of a sale of Capital Stock by the Company, or (b)
shares of Capital Stock of the Company or any warrants, rights or options to
<PAGE>
directly or indirectly purchase or acquire any such Capital Stock of the Company
or any securities exchangeable for or convertible into any such shares, other
than options issued or shares purchased or granted under the Company's Stock
Option Plan of 1986 or the Company's Restricted Stock Bonus Plan, from any
employee of the Company or any of its Subsidiaries who, together with any Person
that, directly or indirectly, controls (other than by virtue of being directly
or indirectly the employer of such employee), is controlled by or is under
common control with such employee, owns less than 1% of the outstanding Capital
Stock of the Company, except for the purchase, redemption, retirement or other
acquisition of any shares of the Company's Capital Stock by exchange for, or out
of the proceeds of the substantially concurrent sale of, other shares of its
Capital Stock other than any capital stock which, by its terms (or by the terms
of any security into which it is convertible or for which it is exchangeable),
or upon the happening of any event, matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or redeemable at the option
of the holder thereof, in whole or in part, on or prior to January 15, 2004
(with respect to the 2004 Notes) or January 15, 2009 (with respect to the 2009
Notes).
"Restricted Subsidiary" means (a) any Subsidiary of the
Company, whether existing on or after the date of this Indenture, unless such
Subsidiary is an Unrestricted Subsidiary or shall have been classified as an
Unrestricted Subsidiary by a resolution adopted by the Board of Directors of the
Company and (b) an Unrestricted Subsidiary which is reclassified as a Restricted
Subsidiary by a resolution adopted by the Board of Directors of the Company,
provided that on and after the date of such reclassification such Unrestricted
Subsidiary shall not incur Indebtedness other than that permitted to be incurred
by a Restricted Subsidiary under the provisions of this Indenture.
"Rigas Family" means collectively John J. Rigas and members of
his immediate family, any of their respective spouses, estates, lineal
descendants, heirs, executors, personal representatives, administrators, trusts
for any of their benefit and charitable foundations to which shares of the
Company's Capital Stock beneficially owned by any of the foregoing have been
transferred.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"SEC" means the United States Securities and Exchange
Commission as constituted from time to time or any successor performing
substantially the same functions.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Notes" and "Series B Notes" mean the Notes as
described and in the forms contemplated herein, and as authenticated and issued
under this Indenture.
"Subsidiary" of any specified Person means any corporation,
partnership, joint venture, association or other business entity, whether now
existing or hereafter organized or acquired, (i) in the case of a corporation,
of which more than 50% of the total voting power of the Capital Stock entitled
(without regard to the occurrence of any contingency) to vote in the election of
directors, officers or trustees thereof is held by such first-named Person or
any of its Subsidiaries; or (ii) in the case of a partnership, joint venture,
association or other business entity, with respect to which such Person or any
of its Subsidiaries has the power to direct or cause the direction of the
management and policies of such entity by contract or otherwise if in accordance
with GAAP such entity is consolidated with the first-named Person for financial
statement purposes.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code SS
77aaa-77bbbb) as in effect on the date of this Indenture (except as provided in
Section 8.03 hereof).
<PAGE>
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Trust Officer" means any officer or assistant officer of the
Trustee.
"U.S. Government Obligations" means (a) securities that are
direct obligations of the United States of America for the payment of which its
full faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any such
U.S. Government Obligation or a specific payment of principal of or interest on
any such U.S. Government Obligation held by such custodian for the account of
the holder of such depository receipt; provided, that (except as required by
law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or a specific payment of
principal or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt.
"Unrestricted Subsidiary" means (a) any Subsidiary of an
Unrestricted Subsidiary, (b) any Subsidiary of the Company which is classified
after the date of this Indenture as an Unrestricted Subsidiary by a resolution
adopted by the Board of Directors of the Company and (c) any subsidiary which as
of the date of the Indenture has been declared an Unrestricted Subsidiary by a
resolution adopted by the Board of Directors of the Company (such Unrestricted
Subsidiaries being Hyperion Telecommunications, Inc., Global Cablevision, Inc.,
Orchard Park Cablevision, Inc. and Global Acquisition Partners, L.P. on the date
hereof); provided that a Subsidiary organized or acquired after the date of this
Indenture may be so classified as an Unrestricted Subsidiary only if immediately
after the date of such classification, any investment by the Company and its
Restricted Subsidiaries in any such Subsidiary made at the time of the
organization or acquisition of such Subsidiary would be a Restricted Investment
permissible under this Indenture. The Trustee shall be given prompt notice by
the Company of each resolution adopted by its Board of Directors under this
provision, together with a copy of each such resolution adopted.
Section 1.02. Other Definitions.
The definitions of the following terms may be found in the sections indicated as
follows:
<TABLE>
<CAPTION>
Term Defined in Section
<S> <C>
"Act".................................................................1.05
"Bankruptcy Law"......................................................6.01
"Business Day"........................................................11.08
"Certificated Notes"..................................................2.01
"Change of Control Offer".............................................3.00
"Change of Control Purchase Price"....................................3.00
"Covenant Defeasance".................................................10.03
"Custodian"...........................................................6.01
"Defeasance"..........................................................10.02
"DTC".................................................................2.03
"Event of Default"....................................................6.01
"Legal Holiday".......................................................11.08
"Paying Agent"........................................................2.03
"Proposed Change of Control Response Date"............................3.00
"Reclassification"....................................................4.12
"Registrar"...........................................................2.03
</TABLE>
<PAGE>
Section 1.03 Incorporation by Reference of Trust Indenture
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"Commission" means the SEC.
"indenture securities" means the Notes.
"indenture noteholder" means a Noteholder.
"indenture to be qualified" means this
Indenture.
"indenture trustee" or "institutional
trustee" means the Trustee.
"obligor" means the Company or any other
obligor on the indenture securities.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings therein assigned to them.
Section 1.04 Rules of ConstructionSection
Unless the context otherwise requires:
(1) a term has the meaning assigned to it
herein, whether defined expressly or by reference;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural,
and in the plural include the singular; and
(5) words used herein implying any gender shall apply
to every gender.
<PAGE>
Section 1.05 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing an agent therefor shall be sufficient for any purpose of
this Indenture and (subject to Section 7.01 hereof) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument may be proved by the affidavit of a witness of such execution or
by a certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the register of
Notes maintained by the Registrar pursuant to Section 2.03 hereof.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the Holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
ARTICLE 2
THE NOTES
Section 2.01 Form and Dating.
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A attached hereto. The Notes may
have notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of $1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall
constitute, and are hereby expressly made, a part of this Indenture and the
Company and the Trustee, by their execution and delivery of this Indenture,
expressly agree to such terms and provisions and to be bound thereby.
(a) Global Notes. Notes shall be issued initially in the form
of the Global Notes, which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Depository at its New York office, and
registered in the name of the Depository or a nominee of the Depository, duly
<PAGE>
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Global Notes may from time to
time be increased or decreased by adjustments made on the records of the Trustee
and the Depository or its nominee as hereinafter provided.
The Global Notes shall represent such of the outstanding Notes
as shall be specified therein and shall provide that it shall represent the
aggregate amount of outstanding Notes from time to time endorsed thereon and
that the aggregate amount of outstanding Notes represented thereby may from time
to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of the Global Notes to reflect the amount of any
increase or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the Note Custodian (as hereinafter defined), at
the direction of the Trustee, in accordance with instructions given by the
Holder thereof as required by Section 2.06 hereof.
Except as set forth in Section 2.06 hereof, the Global Notes
may be transferred, in whole and not in part, only to another nominee of the
Depository or to a successor of the Depository or its nominee.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply
only to the Global Notes deposited with or on behalf of the Depository.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(b), authenticate and deliver the Global Notes that (i)
shall be registered in the name of the Depository or the nominee of the
Depository and (ii) shall be delivered by the Trustee to the Depository or
pursuant to the Depository's instructions or held by the Note Custodian.
Agent Members shall have no rights either under this Indenture
with respect to any Global Notes held on their behalf by the Depository or by
the Note Custodian or under such Global Notes, and the Depository may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Notes for all purposes whatsoever. Notwithstanding
the foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and its Agent Members, the operation of
customary practices of such Depository governing the exercise of the rights of
an owner of a beneficial interest in the Global Notes.
(c) Definitive Notes. Notes issued in certificated form shall
be substantially in the form of Exhibit A attached hereto (but without including
the text referred to in footnotes 1 and 2 thereto). Except as provided in
Section 2.06, owners of beneficial interests in the Global Notes will not be
entitled to receive physical delivery of certificated Securities.
(d) Euroclear and Cedel Procedures Applicable. The provisions
of the "Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Cedel Bank"
and "Customer Handbook" of Cedel Bank shall be applicable to transfers of
beneficial interests in the Regulation S Global Notes that are held by
Participants through Euroclear or Cedel Bank.
<PAGE>
Section 2.02 Execution and Authentication.
An Officer shall sign the Notes for the Company by manual or
facsimile signature. If an Officer whose signature is on a Note no longer holds
that office at the time a Note is authenticated, the Note shall nevertheless be
valid. A Note shall not be valid until authenticated by the manual signature of
the Trustee. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed
by an Officer, authenticate Series A Notes for original issue up to the
aggregate principal amount stated in paragraph 4 of the Notes. The Trustee
shall, upon a written order of the Company signed by an Officer, authenticate
Series B Notes for original issue up to the aggregate principal amount of Series
A Notes exchanged in the Exchange Offer or otherwise exchanged for Series A
Notes pursuant to the terms of the Registration Rights Agreement. The aggregate
principal amount of Notes outstanding at any time may not exceed such amounts
except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Notes. An authenticating agent may authenticate
Notes whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
Section 2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may
be presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company
("DTC") to act as Depository with respect to the Global Notes.
The Company initially appoints the Trustee to act as the
Registrar and Paying Agent respect to the Global Notes.
Section 2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal, premium or Liquidated Damages, if any, or interest on the
Notes, and will notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
<PAGE>
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
Section 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of all Holders and shall otherwise comply with TIA SS 312(a). If the
Trustee is not the Registrar, the Company shall furnish to the Trustee at least
seven Business Days before each interest payment date and at such other times as
the Trustee may request in writing, a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA SS 312(a).
Section 2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. The transfer and
exchange of beneficial interests in the Global Notes shall be effected through
the Depository, in accordance with this Indenture and the procedures of the
Depository therefor, which shall include restrictions on transfer comparable to
those set forth herein to the extent required by the Securities Act. Beneficial
interests in the Global Notes may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the Global Notes in accordance
with the transfer restrictions set forth in the legend in subsection (g) of this
Section 2.06.
(b) Transfer and Exchange of Definitive Notes. When
Definitive Notes are presented by a Holder to the Registrar with a request:
(x) to register the transfer of the Definitive
Notes; or
(y) to exchange such Definitive Notes for an
equal principal amount of Definitive Notes
of other authorized denominations, the
Registrar shall register the transfer or
make the exchange as requested if its
requirements for such transactions are met;
provided, however, that the Definitive Notes
presented or surrendered for register of
transfer or exchange:
(i) shall be duly endorsed or
accompanied by a written instruction
of transfer in form satisfactory to
the Registrar duly executed by such
Holder or by his attorney, duly
authorized in writing; and
(ii) in the case of a Definitive Note
that is a Transfer Restricted
Security, such request shall be
accompanied by the following
additional information and
documents, as applicable:
(A) if such Transfer Restricted
Security is being delivered
to the Registrar by a
Holder for registration in
the name of such Holder,
<PAGE>
without transfer, a
certification to that
effect from such Holder (in
substantially the form of
Exhibit B-1 hereto);
(B) if such Transfer Restricted
Security is being
transferred to a QIB in
accordance with Rule 144A
under the Securities Act or
pursuant to an exemption
from registration in
accordance with Rule 144
under the Securities Act or
pursuant to an effective
registration statement
under the Securities Act, a
certification to that
effect from such Holder (in
substantially the form of
Exhibit B-1 hereto);
(C) if such Transfer Restricted
Security is being
transferred to a non-U.S.
Person in an offshore
transaction inaccordance
with Rule 903 or Rule 904
under the Securities Act, a
certification to that
effect from such Holder (in
substantially the form of
Exhibit B-1 hereto); or
(D) if such Transfer Restricted
Security is being
transferred in reliance on
another exemption from the
registration requirements
of the Securities Act, a
certification to that
effect from such Holder (in
substantially the form of
Exhibit B-1 hereto) and an
Opinion of Counsel from
such Holder or the
transferee reasonably
acceptable to the Company
and to the Registrar to the
effect that such transfer
is in compliance with the
Securities Act.
(c) Intentionally omitted.
(d) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (f) of this Section 2.06), the Global Notes may not be
transferred as a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another nominee of the
Depository or by the Depository or any such nominee to a successor Depository or
a nominee of such successor Depository.
(e) Intentionally omitted.
(f) Authentication of Definitive Notes in Absence of
Depository. If at any time:
(i) the Depository for the Notes
notifies the Company that the
Depository is unwilling or unable to
continue as Depository for the
Global Notes and a successor
Depository for the Global Notes is
not appointed by the Company within
90 days after delivery of such
notice; or
<PAGE>
(ii) the Company at its sole discretion,
notifies the Trustee in writing that
it elects to cause the issuance of
Definitive Notes under this
Indenture,
then the Company shall execute, and the Trustee shall, upon receipt of an
authentication order in accordance with Section 2.02 hereof, authenticate and
deliver, Definitive Notes in an aggregate principal amount equal to the
principal amount of the Global Notes in exchange for such Global Notes.
(g) Legends.
(i) Except as permitted by the following
paragraphs (ii) and (iii), each Note
certificate evidencing the Global
Notes and Definitive Notes (and all
Notes issued in exchange therefor or
substitution thereof) shall bear
legends in substantially the
following form:
THIS NOTE HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF,
U.S. PERSONS, EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF,
THE HOLDER AGREES THAT (1) IT WILL
NOT PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") THAT
IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS NOTE AND
THE LAST DATE ON WHICH THE COMPANY,
OR ANY AFFILIATE OF THE COMPANY, WAS
THE OWNER OF THIS NOTE (OR ANY
PREDECESSOR OF THIS NOTE), RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED
STATES TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE ACT, (C) INSIDE THE UNITED
STATES TO AN ACCREDITED INVESTOR
THAT, PRIOR TO SUCH TRANSFER,
FURNISHES (OR HAS FURNISHED ON ITS
BEHALF BY A U.S. BROKER-DEALER) TO
THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM THE TRUSTEE), (D)
OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN COMPLIANCE
WITH RULE 904 UNDER THE ACT, (E)
PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144
UNDER THE ACT (IF AVAILABLE) OR (F)
PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT
<PAGE>
AND (2) WILL GIVE TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND, IN CONNECTION WITH
ANY TRANSFER OF THIS NOTE PRIOR TO
THE RESALE RESTRICTION TERMINATION
DATE. IF THE PROPOSED TRANSFEREE IS
AN ACCREDITED INVESTOR, THE HOLDER,
PRIOR TO SUCH TRANSFER, WILL BE
REQUIRED TO FURNISH TO THE TRUSTEE
AND THE COMPANY SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION
AS EITHER OF THEM MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM OR IN A
TRANSACTION NOT SUBJECT TO THE
REGISTRATION REQUIREMENTS OF THE
ACT, AS USED HEREIN. THE TERMS
"OFFSHORE TRANSACTION," "UNITED
STATES" and "U.S. PERSON" HAVE THE
MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE ACT.
(ii) Upon any sale or transfer of a
Transfer Restricted Security
(including any Transfer Restricted
Security represented by the Global
Notes) pursuant to Rule 144 under
the Securities Act, Regulation S
under the Securities Act or pursuant
to an effective registration
statement under the Securities Act:
(A) in the case of any
Transfer Restricted
Security that is a
Definitive Note, the
Registrar shall permit the
Holder thereof to exchange
such Transfer Restricted
Security for a Definitive
Note that does not bear the
legend set forth in (i)
above and rescind any
restriction on the transfer
of such Transfer Restricted
Security upon receipt of a
certification from the
transferring holder
substantially in the form
of Exhibit C hereto, and;
(B) in the case of any Transfer
Restricted Security
represented by the Global
Notes, such Transfer
Restricted Security shall
not be required to bear the
legend set forth in (i)
above, but shall continue
to be subject to the
provisions of Section
2.06(a) and (b) hereof.
(iii) Upon any sale or transfer of
a Transfer Restricted Security
(including any Transfer Restricted
Security represented by the Global
Notes) in reliance on any exemption
from the registration requirements
of the Securities Act (other than
exemptions pursuant to Rule 144A or
Rule 144 under the Securities Act or
Regulation S under the Securities
<PAGE>
Act) in which the Holder or the
transferee provides an Opinion of
Counsel to the Company and the
Registrar in form and substance
reasonably acceptable to the Company
and the Registrar (which Opinion of
Counsel shall also state that the
transfer restrictions contained in
the legend are no longer
applicable):
(A) in the case of any Transfer
Restricted Security that is
a Definitive Note, the
Registrar shall permit the
Holder thereof to exchange
such Transfer Restricted
Security for a Definitive
Note that does not bear the
legend set forth in (i)
above and rescind any
restriction on the transfer
of such Transfer Restricted
Security; and
(B) in the case of any Transfer
Restricted Security
represented by the Global
Notes, such Transfer
Restricted Security shall
not be required to bear the
legend set forth in (i)
above, but shall continue
to be subject to the
provisions of Section
2.06(a) and (b) hereof.
(iv) Notwithstanding the foregoing,
upon consummation of the Exchange
Offer in accordance with the
Registration Rights Agreement, the
Company shall issue and, upon
receipt of an authentication order
in accordance with Section 2.02
hereof, the Trustee shall
authenticate Series B Notes in
exchange for Series A Notes accepted
for exchange in the Exchange Offer,
which Series B Notes shall not bear
the legend set forth in (i) above,
and the Registrar shall rescind any
restriction on the transfer of such
Series B Notes, in each case unless
the Holder of such Series A Notes is
either (A) a broker-dealer, (B) a
Person participating in the
distribution of the Series A Notes
or (C) a Person who is an affiliate
(as defined in Rule 144A) of the
Company.
(h) Cancellation and/or Adjustment of the Global Notes. At
such time as all beneficial interests in the Global Notes have been exchanged
for Definitive Notes, redeemed, repurchased or canceled, the Global Notes shall
be returned to or retained and canceled by the Trustee in accordance with
Section 2.11 hereof. At any time prior to such cancellation, if any beneficial
interest in the Global Notes is exchanged for Definitive Notes, redeemed,
repurchased or canceled, the principal amount of Notes represented by the Global
Notes shall be reduced accordingly and an endorsement shall be made on the
Global Notes, by the Trustee or the Note Custodian, at the direction of the
Trustee, to reflect such reduction.
(i) General Provisions Relating to Transfers and
Exchanges.
<PAGE>
(i) To permit registrations of transfers
and exchanges, the Company shall
execute and the Trustee shall
authenticate Definitive Notes and
the Global Notes at the Registrar's
request.
(ii) No service charge shall be made to a
Holder for any registration of
transfer or exchange, but the
Company may require payment of a sum
sufficient to cover any transfer tax
or similar governmental charge
payable in connection therewith
(other than any such transfer taxes
or similar governmental charge
payable upon exchange or transfer
pursuant to Sections 2.10 and 8.05
hereto).
(iii) All Definitive Notes and the Global
Notes issued upon any registration
of transfer or exchange of
Definitive Notes or the Global Notes
shall be the valid obligations of
the Company, evidencing the same
debt, and entitled to the same
benefits under this Indenture, as
the Definitive Notes or the Global
Notes surrendered upon such
registration of transfer or
exchange.
(iv) Prior to due presentment for the
registration of a transfer of any
Note, the Trustee, any Agent and the
Company may deem and treat the
Person in whose name any Note is
registered as the absolute owner of
such Note for the purpose of
receiving payment of principal of
and interest on such Notes, and
neither the Trustee, any Agent nor
the Company shall be affected by
notice to the contrary.
(v) The Trustee shall authenticate
Definitive Notes and the Global
Notes in accordance with the
provisions of Section 2.02 hereof.
Section 2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee, or the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, the Company shall issue and the Trustee
shall authenticate a replacement if the Trustee's requirements are met. If
required by the Trustee or the Company, an indemnity bond must be supplied by
the Holder that is sufficient in the judgment of the Trustee and the Company to
protect the Company, the Trustee, any Agent and any authenticating agent from
any loss that any of them may suffer if a Note is replaced. The Company may
charge for any expenses in replacing a Note.
Every replacement Note is an additional obligation of the
Company and shall be entitled to all of the benefits of this Indenture equally
and proportionately with all other Notes duly issued hereunder.
Section 2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, and those described in this Section as not outstanding.
Except as set forth in Section 2.09 hereof, a Note does not cease to be
outstanding because the Company or an Affiliate of the Company holds the Note.
<PAGE>
If a Note is replaced pursuant to Section 2.07 hereof, it
ceases to be outstanding unless the Trustee receives proof satisfactory to it
that the replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or
an Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
Section 2.09 Treasury Notes.
In determining whether the Holders of the required principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Company, shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes that a Trustee knows are so owned shall
be so disregarded.
Section 2.10 Temporary Notes.
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes upon a written order
of the Company signed by an Officer. Temporary Notes shall be substantially in
the form of definitive Notes but may have variations that the Company considers
appropriate for temporary Notes and as shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the
benefits of this Indenture.
Section 2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
cancelled Notes (subject to the record retention requirement of the Exchange Act
in accordance with its standard disposition policies in effect from time to
time). Certification of the destruction of all cancelled Notes shall be
delivered to the Company. The Company may not issue new Notes to replace Notes
that it has paid or that have been delivered to the Trustee for cancellation.
Section 2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
<PAGE>
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
ARTICLE 3
CHANGE OF CONTROL OFFER
Within 50 days of (i) the proposed occurrence of a Change of
Control or (ii) the occurrence of a Change of Control Triggering Event, the
Company shall notify the Trustee in writing of such proposed occurrence or
occurrence, as the case may be, and shall make an offer to purchase (the "Change
of Control Offer") the Notes at a purchase price equal to 100% of the principal
amount thereof plus any accrued and unpaid interest thereon to the Change of
Control Payment Date (as hereinafter defined) (the "Change of Control Purchase
Price") in accordance with the procedures set forth in this covenant.
Within 50 days of (i) the proposed occurrence of a Change of
Control or (ii) the occurrence of a Change of Control Triggering Event, the
Company also shall (a) cause a notice of the Change of Control Offer to be sent
at least once to the Dow Jones News Service or similar business news service in
the United States and (b) send by first-class mail, postage prepaid, to the
Trustee and to each holder of the Notes, at his address appearing in the
register of the Notes maintained by the Registrar, a notice stating:
(1) that the Change of Control Offer is being made
pursuant to this covenant and that all Notes tendered will be
accepted for payment, provided that a Change of Control
Triggering Event has occurred and otherwise subject to the
terms and conditions set forth herein;
(2) the Change of Control Purchase Price and the
purchase date (which shall be a Business Day no earlier than
50 days from the date such notice is mailed and no later than
15 days after the date of the corresponding Change of Control
Triggering Event) (the "Change of Control Payment Date");
(3) that any Note not tendered will continue to
accrue interest;
(4) that, unless the Company defaults in the payment
of the Change of Control Purchase Price, any Notes accepted
for payment pursuant to the Change of Control Offer shall
cease to accrue interest after the Change of Control Payment
Date;
(5) that holders accepting the offer to have their
Notes purchased pursuant to a Change of Control Offer will be
required to surrender the Notes to the Paying Agent at the
address specified in the notice prior to the close of business
on the Business Day preceding the Change of Control Payment
Date;
<PAGE>
(6) that holders will be entitled to withdraw their
acceptance if the Paying Agent receives, not later than the
close of business on the third Business Day preceding the
Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the holder,
the principal amount of the Notes delivered for purchase, and
a statement that such holder is withdrawing his election to
have such Notes purchased;
(7) that holders whose Notes are being purchased only
in part will be issued new Notes equal in principal amount to
the unpurchased portion of the Notes surrendered, provided
that each Note purchased and each such new Note issued shall
be in an original principal amount in denominations of $1,000
and integral multiples thereof; and
(8) any other procedures that a holder must follow to
accept a Change of Control Offer or effect withdrawal of such
acceptance.
Notwithstanding any other provision of this Article 3, in the
case of a notice of a Change of Control Offer that is being furnished by the
Company with respect to a proposed Change of Control that has not yet actually
occurred, the Company may specify in such notice that holders of the Notes shall
be required to notify the Company, by a date not earlier than the date (the
"Proposed Change of Control Response Date") which is 30 days from the date of
such notice, as to whether such holders will tender their Notes for payment
pursuant to the Change of Control Offer and to notify the Company of the
principal amount of such Notes to be so tendered (with the failure of any holder
to so notify the Company within such 30-day period to be deemed an election of
such holder not to accept such Change of Control Offer). In such event, the
Company shall have the option, to be exercised by a subsequent written notice to
be sent, no later than 15 days after the Proposed Change of Control Response
Date, to the same Persons to whom the original notice of the Change of Control
Offer was sent, to cancel or otherwise effect the termination of the proposed
Change of Control and to rescind the related Change of Control Offer, in which
case the then outstanding Change of Control Offer shall be deemed to be null and
void and of no further effect.
On the Change of Control Payment Date, the Company shall (a)
accept for payment Notes or portions thereof tendered pursuant to the Change of
Control Offer, (b) deposit with the Paying Agent money sufficient to pay the
purchase price of all Notes or portions thereof so tendered and (c) deliver or
cause to be delivered to the Trustee Notes so accepted together with an
Officers' Certificate stating the Notes or portions thereof tendered to the
Company. The Paying Agent shall promptly mail to each holder of Notes so
accepted payment in an amount equal to the purchase price for such Notes, and
the Trustee shall promptly authenticate and mail to such holder a new Note equal
in principal amount to any unpurchased portion of the Notes surrendered;
provided that each such new Note shall be issued in an original principal amount
in denominations of $1,000 and integral multiples thereof.
There shall be no purchase of any Notes pursuant to this
covenant if there has occurred (prior to, on or after, as the case may be, the
tender of such Notes pursuant to the Change of Control Offer, by the holders of
such Notes) and is continuing an Event of Default. The Paying Agent will
promptly return to the respective holders thereof any Notes (a) the tender of
which has been withdrawn in compliance with this Indenture or (b) held by it
during the continuance of an Event of Default (other than a default in the
payment of the Change of Control Purchase Price with respect to such Notes).
<PAGE>
In the event that the Company is required to make a Change of
Control Offer, the Company will comply with all applicable tender offer rules
including Rule 14e-1 under the Exchange Act, to the extent applicable.
ARTICLE 4
COVENANTS
Section 4.01 Payment of Notes.
The Company shall pay the principal of and all interest on the
Notes on the dates and in the manner provided in the Notes and this Indenture.
An installment of principal or interest shall be considered paid on the date it
is due if the Trustee or Paying Agent holds on that date money designated for
and sufficient to pay such installment.
The Company will pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law) and on overdue
interest, to the extent lawful, at the rate borne by the Notes.
Section 4.02 SEC Reports.
The Company shall file with the Trustee, within 15 days after
it files with the SEC, copies of the annual reports and of the other
information, documents and reports (or copies of such portions of any of the
foregoing as the SEC may by rules and regulations prescribe), if any, which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended. The Company shall also comply with
the other provisions of TIA S 314(a).
Section 4.03 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead (as a defense or
otherwise) or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law or any usury law or other law which would prohibit
or forgive the Company from paying all or any portion of the principal of and/or
interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 4.04 Limitation on Transactions with Affiliates.
The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any transaction with any Affiliate upon terms which
would be any less favorable than those obtainable by the Company or a Restricted
Subsidiary in a comparable arm's-length transaction with a Person which is not
an Affiliate. The Company shall not, and shall not permit any Restricted
Subsidiary to, engage in any transaction (or series of related transactions)
involving in the aggregate $1,000,000 or more with any Affiliate except for (i)
the making of any Restricted Payment, (ii) any transaction or series of
<PAGE>
transactions between the Company and one or more of its Restricted Subsidiaries
or between two or more of its Restricted Subsidiaries (provided that no more
than 5% of the equity interest in any of its Restricted Subsidiaries is owned by
an Affiliate), and (iii) the payment of compensation (including, without
limitation, amounts paid pursuant to employee benefit plans) for the personal
services of officers, directors and employees of the Company or any of its
Restricted Subsidiaries, so long as the Board of Directors of the Company in
good faith shall have approved the terms thereof and deemed the services
theretofore or thereafter to be performed for such compensation or fees to be
fair consideration therefor; and provided further that for any Asset Sale, or a
sale, transfer or other disposition (other than to the Company or any of its
Restricted Subsidiaries) of an interest in a Restricted Investment, involving an
amount greater than $25,000,000, such Asset Sale or transfer of interest in a
Restricted Investment is for fair value as determined by an opinion of a
nationally recognized investment banking firm filed with the Trustee.
Notwithstanding the foregoing, this provision shall not prohibit any such
transaction which is determined by the independent members of the Board of
Directors of the Company, in their reasonable, good faith judgment (as evidenced
by a Board Resolution filed with the Trustee) to be (a) in the best interests of
the Company or such Restricted Subsidiary, and (b) upon terms which would be
obtainable by the Company or a Restricted Subsidiary in a comparable
arm's-length transaction with a Person which is not an Affiliate.
Section 4.05 Limitation on Indebtedness
The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create, incur, issue, assume or become
liable for, contingently or otherwise (collectively an "incurrence"), any
Indebtedness unless, after giving effect to such incurrence on a pro forma
basis, Indebtedness of the Company and its Restricted Subsidiaries, on a
consolidated basis, shall not be more than the product of the Annualized Pro
Forma EBITDA for the latest fiscal quarter preceding such incurrence for which
financial statements are available, multiplied by 8.75.
Notwithstanding the above, this provision will not limit the
incurrence of Indebtedness which is incurred by the Company or its Restricted
Subsidiaries for working capital purposes or capital expenditures with respect
to plant, property and equipment of the Company and its Restricted Subsidiaries
in an aggregate amount not to exceed $50,000,000. Further, this provision will
not limit Permitted Refinancing Indebtedness, subject to the provisions of
Section 4.06.
Section 4.06 Limitation on Restricted Payments
So long as any of the Notes remain outstanding, the Company
shall not make, and shall not permit any Restricted Subsidiary to make, any
Restricted Payment if (a) at the time of such proposed Restricted Payment, a
Default or Event of Default shall have occurred and be continuing or shall occur
as a consequence of such Restricted Payment, or (b) immediately after giving
effect to any such Restricted Payment, the aggregate of all Restricted Payments
which shall have been made on or after January 1, 1993 (the amount of any
Restricted Payment, if other than cash, to be based upon fair market value as
determined in good faith by the Company's Board of Directors whose determination
shall be conclusive) would exceed an amount equal to the greater of (i) the sum
of $5,000,000 or (ii) the difference between (a) the Cumulative Credit and (b)
the sum of the aggregate amount of all Restricted Payments, and all Permitted
Investments made pursuant to clause (v) of the definition of "Permitted
Investments," made on or after January 1, 1993 plus 1.2 times Cumulative
Interest Expense.
<PAGE>
Section 4.07 Reports to HoldersSection
The Company will send to the Trustee and to Noteholders,
within 15 days after the filing thereof with the SEC, copies of its annual
reports on Form 10-K, its Quarterly Reports on Form 10-Q and its Current Reports
on Form 8-K; provided, however, that notwithstanding any event which results in
the Company being relieved of its obligation to file information, documents and
reports with the SEC pursuant to Sections 13 or 15(d) of the Exchange Act, the
Company shall nevertheless continue, so long as any Note remains outstanding and
unpaid, (i) to file with the SEC (at such time as it would be required to file
such reports under the Exchange Act), and to send to the Trustee and Noteholders
(within 15 days thereafter), quarterly and annual reports and information,
documents and other reports substantially equivalent to those it would have been
obligated to file if it had remained subject to such sections of the Exchange
Act, and (ii) so long as the Notes have not been registered pursuant to the
Registration Rights Agreement, upon the request of a Noteholder, to provide
information required to be delivered under Rule 144A(d)(4) under the Securities
Act to such Noteholder and its prospective purchasers designated by such
Noteholder.
Section 4.08 Notice of Defaults Or Events of Default
In the event that any Default or Event of Default shall occur
and be continuing, the Company will, within 10 days of the occurrence thereof,
give written notice of such Default or Event of Default to the Trustee.
Section 4.09 Compliance Certificates
Compliance Certificates.
The Company shall deliver to the Trustee on or before 105 days
after the end of its fiscal year and on or before 50 days after the end of its
second fiscal quarter in each year an Officers' Certificate stating whether or
not the signers know of any Default or Event of Default. If they do know of such
a Default or Event of Default, the certificate shall describe such Default or
Event of Default and the efforts to remedy or obtain a waiver of the same. The
certificate must comply with Section 11.04 hereof.
Section 4.10 Covenant to Secure Notes Equally
Except for Liens created or assumed by the Company
in connection with the acquisition
of real property or equipment to be used by the Company in the operation of its
business which do not secure Indebtedness in excess of the purchase price of
such real property or equipment, the Company covenants that, if it shall create
or assume any Lien upon any of its property or assets, whether now owned or
hereafter acquired, it will make or cause to be made effective provisions
whereby the Notes will be secured by such Lien equally and ratably with all
other Indebtedness of the Company secured by such Lien as long as any such other
Indebtedness of the Company shall be so secured. The restriction imposed by this
Section 4.10 shall not apply with respect to a Lien, including a pledge of
Capital Stock of a Subsidiary or an Affiliate, to secure Indebtedness which is
an obligation of such Subsidiary or Affiliate and not an obligation of the
Company.
<PAGE>
Section 4.11 Limitation on Investment in Affiliates and Unrestricted
Subsidiaries.
After the date of this Indenture, the Company may not, nor
will the Company allow any Restricted Subsidiary to, make a Restricted
Investment other than by way of Permitted Investments unless pro forma for such
Restricted Investment the Leverage Ratio of the Company does not exceed 7.75:1.
Section 4.12 Limitation on Sale of Assets
Neither the Company nor any Restricted Subsidiary of the
Company shall sell an asset (including Capital Stock of Restricted Subsidiaries)
or reclassify a Restricted Subsidiary existing on the date of this Indenture as
an Unrestricted Subsidiary (a "Reclassification") unless (a) in the case of an
asset sale, (i) at least 75% of the net proceeds received by the Company or such
Restricted Subsidiary is in cash, cash equivalents or common or preferred
Capital Stock or debt securities issued by a Person which has Investment Grade
Senior Debt and (ii) cash proceeds from the asset sale are used to reduce debt
and such debt reduction results in the Company's Leverage Ratio being lower pro
forma after such asset sale than prior to such asset sale, or (b) in the case of
an asset sale or Reclassification, pro forma for such asset sale or
Reclassification the Indebtedness of the Company and its Restricted
Subsidiaries, on a consolidated basis, shall not be more than 7.75 multiplied by
Annualized Pro Forma EBITDA, provided that in no case under either clause (a) or
(b) shall the Company undertake an asset sale or Reclassification, if pro forma
for such an asset sale or Reclassification the Company and its Restricted
Subsidiaries would be the owners of fewer than 75% of the cable systems
(measured on the basis of basis subscribers as of February 22, 1994) owned by
the Company and its Restricted Subsidiaries as of February 22, 1994, provided
however, that the Company and its Restricted Subsidiaries may sell additional
assets of up to 10% of assets held as of February 22, 1994 if the consideration
received from such sale is (i) cash which is used within 12 months to purchase
additional systems of equivalent value or (ii) other cable systems of equivalent
value.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01 Mergers and Consolidations.
The Company may not consolidate with, merge with or into, or
transfer all or substantially all of its assets (as an entirety or substantially
as an entirety in one transaction or a series of related transactions), to any
Person unless: (i) the Company shall be the continuing Person, or the Person (if
other than the Company) formed by such consolidation or into which the Company
is merged or to which the properties and assets of the Company are transferred
shall be a corporation organized and existing under the laws of the United
States or any State thereof or the District of Columbia and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee, in
form satisfactory to the Trustee, all of the obligations of the Company under
the Notes and this Indenture, and the obligations under this Indenture shall
remain in full force and effect; (ii) immediately before and immediately after
giving effect to such transaction, no Default or Event of Default shall have
occurred and be continuing; and (iii) immediately after giving effect to such
transaction on a pro forma basis for the most recent quarter, the pro forma
Consolidated Fixed Charge Ratio of the surviving entity shall be at least 1:1;
provided that, if the Consolidated Fixed Charge Ratio of the Company for the
most recent quarter preceding such transaction is within the range set forth in
Column A below, then the pro forma Consolidated Fixed Charge Ratio of the
<PAGE>
surviving entity after giving effect to such transaction shall be at least equal
to the greater of the percentage of the Consolidated Fixed Charge Ratio of the
Company for the most recent quarter preceding such transaction set forth in
Column B below or the ratio set forth in Column C below:
<TABLE>
<CAPTION>
A B C
<S> <C> <C>
1.1111:1 to 1.4999:1 90% 1.00:1
1.5 and higher 80% 1.35:1
</TABLE>
and provided, further, that if the pro forma Consolidated Fixed Charge Ratio of
the surviving entity is 2:1 or more, the calculation in the preceding proviso
shall be inapplicable and such transaction shall be deemed to have complied with
the requirements of such proviso.
In connection with any consolidation, merger or transfer
contemplated by this Section 5.01, the Company shall deliver, or cause to be
delivered, to the Trustee, in form and substance reasonably satisfactory to the
Trustee, an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and the supplemental indenture in respect
thereto comply with this Section 5.01 and that all conditions precedent herein
provided for relating to such transaction or transactions have been complied
with.
Section 5.02. Successor Person Substituted
Upon any consolidation or merger, or any transfer of all or
substantially all of the assets of the Company in accordance with Section 5.01
above, the successor corporation formed by such consolidation or into which the
Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor corporation had been
named as the Company herein, and thereafter the predecessor corporation shall be
relieved of all obligations and covenants under this Indenture and the Notes.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs with respect to a series of Notes
if:
(1) the Company defaults in the payment of any
principal of such series of Notes when the same becomes due
and payable at maturity, upon acceleration or otherwise;
(2) the Company defaults in the payment of any
interest on such series of Notes when the same becomes due and
payable and the default continues for a period of 30 days;
<PAGE>
(3) the Company defaults in the observance or
performance of any other covenant in such series of Notes or
this Indenture for 60 days after written notice from the
Trustee or the Holders of not less than 25% in aggregate
principal amount of such series of Notes then outstanding;
(4) the Company fails to pay when due principal,
interest or premium aggregating $10,000,000 or more with
respect to any Indebtedness of the Company or any Restricted
Subsidiary, or the acceleration of any such Indebtedness which
default shall not be cured or waived, or such acceleration
shall not be rescinded or annulled, within ten days after
written notice as provided in this Indenture;
(5) a court of competent jurisdiction enters a final
judgment or judgments for the payment of money in excess of
$10,000,000 against the Company or any Restricted Subsidiary
and such judgment remains undischarged for a period of 60
consecutive days during which a stay of enforcement of such
judgment shall not be in effect;
(6) the Company, or any Restricted Subsidiary with
liabilities of greater than $10,000,000 under GAAP as of the
date of the event described in this clause (6), pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an
order for relief against it
in an involuntary case,
(C) consents to the appointment
of a Custodian of it or for
all or substantially all of
its property, or
(D) makes a general assignment
for the benefit of its
creditors;
(7) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) is for relief against the
Company, or any Restricted
Subsidiary with liabilities
of greater than $10,000,000
under GAAP as of the
effective date of such
order or decree, in an
involuntary case,
(B) appoints a Custodian of the
Company, or any Restricted
Subsidiary with liabilities
of greater than $10,000,000
under GAAP as of the
effective date of such
order or decree, or for all
or substantially all of its
property, or
(C) orders the liquidation of
the Company, or any
Restricted Subsidiary with
liabilities of greater than
$10,000,000 under GAAP as
of the effective date of
such order or decree, and
the order or decree remains
<PAGE>
unstayed and in effect for
60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or State law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
A Default under clauses (3) and (4) is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of a series of Notes notifies the Company and the
Trustee, of the Default and the Company does not cure the Default within (a) 60
days after receipt of such notice in the case of a Default under clause (3) and
(b) 10 days after receipt of such notice in the case of a Default under clause
(4). The notice must specify the Default, demand that it be remedied and state
that the notice is a "Notice of Default." If the Holders of at least 25% in
principal amount of a series of outstanding Notes request the Trustee to give
such notice on their behalf, the Trustee shall do so.
Subject to Section 7.05 hereof, the Trustee may withhold
notice to the Holders of a series of Notes of any default (except in payment of
principal or interest on the Notes) if the Trustee considers it to be in the
best interest of the Holders of such series of Notes to do so.
Section 6.02. Acceleration
If an Event of Default (other than an Event of Default
resulting from certain events of bankruptcy, insolvency or reorganization)
occurs and is continuing, the Trustee by notice to the Company, or the Holders
of not less than 25% in aggregate principal amount of a series of Notes affected
thereby then outstanding may declare to be immediately due and payable the
principal amount of all such series of Notes then outstanding plus accrued but
unpaid interest to the date of acceleration; provided, however, that after such
acceleration but before a judgment or decree based on such acceleration is
obtained by the Trustee, the Holders of a majority in aggregate principal amount
of such series of outstanding Notes by written notice to the Trustee and the
Company may rescind and annul such acceleration and its consequences if all
existing Events of Default, other than the nonpayment of accelerated principal
or interest, have been cured or waived. In case an Event of Default specified in
Section 6.01(6) or (7) occurs, such amount with respect to all of the Notes
shall be due and payable immediately without any declaration or other act on the
part of the Trustee or the Holders of the Notes.
Section 6.03. Other Remedies
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of and interest on the Notes or to enforce the performance
of any provision of the Notes or this Indenture and may take any necessary
action requested of it as Trustee to settle, compromise, adjust or otherwise
conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
<PAGE>
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 6.04. Waiver of Past Defaults and Events of Default
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of
a majority in principal amount of a series of Notes affected thereby then
outstanding have the right to waive any existing default or compliance with any
provision of this Indenture or such series of Notes and to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee, subject to certain limitations specified in this Indenture.
Section 6.05. Control by Majority
The Holders of a majority in principal amount of a series of
Notes then outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee by this Indenture. The Trustee, however, may
refuse to follow any direction that conflicts with law or this Indenture or that
the Trustee determines may be unduly prejudicial to the rights of another
Noteholder of such series of Notes not taking part in such direction, and the
Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, determines that the action so directed may
not lawfully be taken or if the Trustee in good faith shall, by a Trust Officer,
determine that the proceedings so directed would involve it in personal
liability; provided that the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction.
Section 6.06. Limitation on Suits
Subject to Section 6.07 below, a Noteholder of a series of
Notes may not institute any proceeding or pursue any remedy with respect to this
Indenture or such series of Notes unless:
(1) the Holder gives to the Trustee written
notice of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate
principal amount of such series of Notes then outstanding make
a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity reasonably satisfactory to the Trustee against any
loss, liability or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of
indemnity; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60 day
period by the Holders of a majority in aggregate principal
amount of such series of Notes then outstanding.
<PAGE>
A Noteholder of a series of Notes may not use this Indenture
to prejudice the rights of another Noteholder of such series of Notes or to
obtain a preference or priority over another Noteholder.
Section 6.07. Rights of Holders to Receive Payment
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of and interest on
the Note on or after the respective due dates expressed in the Note, or to bring
suit for the enforcement of any such payment on or after such respective dates,
is absolute and unconditional and shall not be impaired or affected without the
consent of the Holder.
Section 6.08. Collection Suit by Trustee
If an Event of Default in payment of principal or interest
specified in Section 6.01(1) or (2) hereof occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company or any other obligor on the Notes for the whole amount of unpaid
principal and accrued interest remaining unpaid, together with interest on
overdue principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate then
borne by the Notes, and such further amounts as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction of its charges and expenses to the extent that any such charges and
expenses are not paid out of the estate in any such proceedings and any
Custodian in any such judicial proceeding is hereby authorized by each
Noteholder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee or any predecessor trustee
under Section 7.07 hereof.
To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee or any predecessor Trustee under Section 7.07
hereof out of the estate in any such proceeding shall be denied for any reason,
payment of the same shall be secured by a lien on, and shall be paid out of, any
and all distributions, dividends, monies, securities and other properties which
the Holders of the Notes may be entitled to receive in such proceeding whether
in liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to authorize
or consent to or accept or adopt on behalf of any Noteholder any plan of
<PAGE>
reorganization, arrangement, adjustment or composition affecting the Notes or
the rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Noteholder in any such proceedings.
Section 6.10. Priorities
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
FIRST: to the Trustee or any predecessor trustee
for amounts due under Sections 6.09 and 7.07 hereof;
SECOND: to Noteholders for amounts due and unpaid
on the Notes for principal and interest as to each, ratably, without
preference or priority of any kind, according to the amounts due
and payable on the Notes; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07 hereof or a suit by Holders of more than 10% in
principal amount of the Notes then outstanding.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee
(a) If an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent man would exercise or use under the same circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of
Default:
(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others.
<PAGE>
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
The Trustee, however, shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act, or its own
willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section 7.01.
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
6.05 hereof.
(4) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties
hereunder or in the exercise of any of its rights or powers if
it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so
provided, paragraphs (a), (b) and (c) of this Section 7.01 shall govern every
provision of this Indenture that in any way relates to the Trustee.
(e) The Trustee may refuse to perform any duty
or exercise any right or power unless it receives indemnity reasonably
satisfactory to it against any loss, liability, expense or fee.
(f) The Trustee shall not be liable for interest
on any money received by it except as the Trustee may agree with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
Section 7.02. Rights of Trustee
Subject to Section 7.01 hereof:
(1) The Trustee may rely on any document reasonably
believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting,
it may require an Officers' Certificate or an Opinion of
Counsel, or both, which shall conform to the provisions of
Section 11.05 hereof. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on
such Certificate or Opinion.
<PAGE>
(3) The Trustee may act through agents and shall not
be responsible for the misconduct or negligence of any agent
appointed with due care.
(4) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it reasonably
believes to be authorized or within its rights or powers.
(5) The Trustee may consult with counsel, and the
advice or opinion of such counsel as to matters of law shall
be full and complete authorization and protection in respect
of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of
such counsel.
Section 7.03. Individual Rights of Trustee
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, shall be subject to
Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Company's use of the proceeds from the sale of Notes and it shall not be
responsible for any statement in the Notes other than its certificate of
authentication.
Section 7.05. Notice of Defaults
If a Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Noteholder notice of the Default
within 90 days after it occurs. Except in the case of a Default in payment of
the principal of or interest on any Note the Trustee may withhold the notice if
and so long as the board of directors of the Trustee, the executive committee or
any trust committee of such board and/or its Trust Officers in good faith
determine(s) that withholding the notice is in the interests of the Noteholders.
Section 7.06. Reports by Trustee to Holders
Within 60 days after May 15 of any year, commencing the May 15
following the date of this Indenture, the Trustee shall mail to each Noteholder
a brief report dated as of such May 15 that complies with TIA SS 313(a) (but if
no event described in TIA SS 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA SS 313(b)(2).
Reports pursuant to this Section shall be transmitted by mail:
<PAGE>
(1) to all registered Holders of Notes, as the
names and addresses of such Holders appear on the Registrar's
books;
(2) to such Holders of Notes as have, within the two
years preceding such transmission, filed their names and
addresses with the Trustee for that purpose; and
(3) except in the case of reports pursuant to TIA SS
313(b), to each Noteholder whose name and address is preserved
at the time by the Trustee, as provided in Section 2.05.
A copy of each report at the time of its mailing to
Noteholders shall be filed with the SEC and each stock exchange on which the
Notes are listed. The Company shall notify the Trustee when the Notes are listed
on any stock exchange.
Section 7.07. Compensation and Indemnity
The Company shall pay to the Trustee from time to time
reasonable compensation for its services hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust). The Company shall reimburse the Trustee upon request for all
reasonable disbursements, expenses and advances incurred or made by it in
connection with its duties under this Indenture, including the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it
harmless against, any loss, liability or reasonable expense incurred by it in
connection with the performance of its duties under this Indenture including the
reasonable costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers or duties
hereunder (including, without limitation, settlement costs). The Trustee shall
notify the Company promptly of any claim asserted against the Trustee for which
it may seek indemnity.
The Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by the Trustee through its
negligence or bad faith. To secure the Company's payment obligations in Sections
6.09 and 7.07, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee except such money or property held in
trust to pay principal of and interest on particular Notes.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(6) or (7) hereof occurs, the expenses
and the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law. However, in the event that such
expenses of administration are disallowed by a final judgment of a court of
competent jurisdiction, the expenses thereby, and all other unreimbursed
expenses of the Trustee, shall constitute a general unsecured claim of the
Trustee against the estate.
For purposes of this Section 7.07, the term "Trustee" shall
include any trustee appointed pursuant to Article 10.
<PAGE>
Section 7.08. Replacement of Trustee
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of a series of outstanding Notes may
remove the Trustee by notifying the removed Trustee and may appoint a successor
Trustee with the Company's written consent. Subject to the provisions of Section
6.11, any Noteholder who has been a bona fide holder of Notes for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee, and the
appointment of a successor, if the Trustee fails, after written notice therefor
by such Holder, to comply with the provisions of clause (i) of TIA 310(b). The
Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section
7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or other public officer takes
charge of the Trustee or its property;
(4) the Trustee otherwise becomes incapable of
acting; or
(5) a successor corporation becomes successor
Trustee pursuant to Section 7.09 below.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
If a successor Trustee does not take office within 45 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in principal amount of a series of
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the retiring Trustee shall transfer all property held by it as
Trustee to the successor Trustee, the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Noteholder.
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets to, another
corporation, subject to Section 7.10 hereof, the successor corporation without
any further act shall be the successor Trustee.
<PAGE>
Section 7.10. Eligibility; Disqualification
This Indenture shall always have a Trustee who satisfies the
requirements of TIA SS 310(a)(1) and (2) in every respect. The Trustee shall
have a combined capital and surplus of at least $5,000,000 as set forth in its
most recent published annual report of condition. The Trustee shall comply with
TIA SS 310(b), including the provision in SS 310(b)(1).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA 311(a), excluding
any creditor relationship listed in TIA 311(b). A Trustee who has resigned or
been removed shall be subject to TIA 311(a) to the extent indicated therein.
Section 7.12. Paying Agents
The Company shall cause each Paying Agent other than the
Trustee to execute and deliver to it and the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section
7.12:
(A) that it will hold all sums
held by it as agent for the
payment of principal of or
interest on, the Notes
(whether such sums have
been paid to it by the
Company or by any obligor
on the Notes) in trust for
the benefit of Holders of
the Notes;
(B) that it will at any time
during the continuance of
any Event of Default, upon
written request from the
Trustee, deliver to the
Trustee all sums so held in
trust by it; and
(C) that it will give the
Trustee written notice
within three (3) Business
Days of any failure of the
Company (or by any obligor
on the Notes) in the
payment of any installment
of the principal of or
interest on, the Notes when
the same shall be due and
payable.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
The Company and the Trustee may amend or supplement this
Indenture with respect to one or both series of Notes without notice to or
consent of any Noteholder:
<PAGE>
(1) to comply with Section 5.01 hereof;
(2) to convey, transfer, assign, mortgage or pledge
any property to the Trustee and otherwise to comply with
Section 4.10 hereof;
(3) to provide for uncertificated Notes in addition
to or in place of certificated Notes;
(4) to issue up to $300,000,000 in aggregate
principal amount of additional Notes pursuant to this
Indenture; or
(5) to cure any ambiguity, defect or inconsistency,
or to make any other change that does not materially and
adversely affect the rights of any Noteholder.
The Trustee is hereby authorized to join with the Company in
the execution of any supplemental indenture authorized or permitted by the terms
of this Indenture and to make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into any such supplemental indenture which adversely affects
its own rights, duties or immunities under this Indenture.
Section 8.02. With Consent of Holders
The Company and the Trustee may modify or supplement this
Indenture with respect to a series of Notes with the written consent of the
Holders of at least one-half in principal amount of an outstanding series of
Notes without notice to any Noteholder. The Holders of a majority in aggregate
principal amount of an outstanding series of Notes may waive compliance in a
particular instance by the Company with any provision of this Indenture with
respect to a series of Notes without notice to any Noteholder. Subject to
Section 8.04, without the consent of each Noteholder affected, however, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may not:
(1) reduce the amount of Notes whose Holders must
consent to an amendment, supplement or waiver to this
Indenture or the Notes;
(2) reduce the rate of or change the time for
payment of interest on any Note;
(3) reduce the principal of or change the stated
maturity of any Note;
(4) change the amount or time of any payment required
by the Notes or provide for the redemption of the Notes prior
to maturity;
(5) waive a default in the payment of the principal
of, interest on, or redemption payment with respect to, any
Note;
(6) make any Note payable in money other than that
stated in the Note or change the place of payment from New
York, New York; or
(7) make any changes in Sections 6.04, 6.07 hereof
or this sentence of Section 8.02.
<PAGE>
After an amendment, supplement or waiver under this Section
8.02 becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of the Noteholders
as aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture, in which case the Trustee
may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Section 8.03. Compliance with Trust Indenture Act
Every amendment to or supplement of this Indenture or the
Notes shall comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion thereof, and of any Note issued upon the transfer thereof or in
exchange therefor or in place thereof, even if notation of the consent is not
made on any such Note. Any such Holder or subsequent Holder, however, may revoke
the consent as to his Note or portion of a Note, if the Trustee receives the
notice of revocation before the date the amendment, supplement, waiver or other
action becomes effective.
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement, or waiver. If a record date is fixed, then,
notwithstanding the preceding paragraph, those Persons who were Holders at such
record date (or their duly designated proxies), and only such Persons, shall be
entitled to consent to such amendment, supplement, or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No such consent shall be valid or effective for more
than 90 days after such record date unless the consent of the requisite number
of Holders has been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described in
any of clauses (1) through (7) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note.
<PAGE>
Section 8.05. Notation on or Exchange of Notes
If an amendment, supplement, or waiver changes the terms of a
Note, the Trustee may request the Holder of the Note to deliver it to the
Trustee. In such case, the Trustee shall place an appropriate notation on the
Note about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the Note shall
issue and the Trustee shall authenticate a new security that reflects the
changed terms.
Section 8.06. Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article 8 if the amendment, supplement or waiver
does not adversely affect the rights, duties, liabilities or immunities of the
Trustee. If it does, the Trustee may, but need not, sign it. In signing or
refusing to sign such amendment, supplement or waiver the Trustee shall be
entitled to receive and, subject to Section 7.01 hereof, shall be fully
protected in relying upon an Officers' Certificate and an Opinion of Counsel
stating that such amendment, supplement or waiver is authorized or permitted by
this Indenture. The Company may not sign an amendment or supplement until the
Board of Directors approves it.
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE: UNCLAIMED MONEYS
Section 9.01. Satisfaction and Discharge of IndentureSection
If at any time
(a) either
(i) there shall have been canceled by the
Trustee or delivered to the Trustee for
cancellation all Notes theretofore
authenticated and delivered (other than any
Notes that are asserted to have been
destroyed, lost or stolen and that shall
have been replaced as provided in Section
2.07 hereof, or paid, or Notes for whose
payment money has theretofore been deposited
in trust with the Trustee); or
(ii) all such Notes not theretofore canceled by
the Trustee or delivered to the Trustee for
cancellation shall have become due and
payable, or are by their terms to become due
and payable within one (1) year, and the
Company has deposited or caused to be
deposited with the Trustee as trust funds
the entire amount sufficient to pay at
maturity the principal of and accrued
interest on all such Notes not theretofore
canceled by the Trustee or delivered to the
Trustee for cancellation; and
(b) the Company has paid or caused to be paid
all other sums payable hereunder by the Company; and
<PAGE>
(c) the Company has delivered to the Trustee an
Officers' Certificate stating that all conditions precedent provided for herein
relating to the satisfaction and discharge of this Indenture have been complied
with; and
(d) the Company has delivered to the Trustee
an Opinion of Counsel stating that the documents and other items that have been
or are therewith delivered to the Trustee conform to the requirements of this
Indenture, and that, upon the basis of a Company Request and the accompanying
documents and items specified in this Section 9.01, all conditions precedent
provided for herein relating to the satisfaction and discharge of this Indenture
have been complied with, then, upon Company Request, this Indenture and the
rights and interests hereby created shall cease to be of further effect (except
as to any surviving rights of registration of transfer or exchange of Notes),
and the Trustee, at the cost and expense of the Company, shall, subject to
Section 9.05 hereof, execute and deliver proper instruments acknowledging
satisfaction and discharge of this Indenture.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company in Sections 2.03, 2.04, 2.05, 2.06,
2.07, 4.01, 6.09, 7.07, 7.08, 9.04 and 9.05 shall survive until the Notes are no
longer outstanding. Thereafter, the Company's obligations to the Trustee under
Sections 7.07, 9.04 and 9.05 hereof shall survive.
Section 9.02. Funds Deposited for Payment of Notes
All moneys deposited with the Trustee pursuant to Section 9.01
hereof shall be held in trust and shall be available for payment when the Notes
become due and payable in accordance with their terms, either directly or
through any Paying Agent, to the Holders of the particular Notes for the payment
of which such moneys have been deposited with the Trustee.
Section 9.03. Moneys Held by Paying Agent
In connection with the satisfaction and discharge of this
Indenture, all moneys then held by any Paying Agent under the provisions of this
Indenture shall, upon demand of the Company, be paid to the Trustee, or if
sufficient moneys have been deposited pursuant to Section 9.01 hereof, to the
Company, and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
Section 9.04. Moneys Held by Trustee
Any moneys deposited with the Trustee or any Paying Agent or
then held by the Company in trust for the payment of the principal of or
interest on any Note that are not applied but remain unclaimed by the Holder of
such Note for two (2) years after the date upon which the principal of or
interest on such Note shall have respectively become due and payable shall be
repaid to the Company upon Company Request, or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Note entitled to
receive such payment shall thereafter, as an unsecured general creditor, look
only to the Company for the payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease; provided, however, that the
Trustee or any such Paying Agent, before being required to make any such
repayment, may, at the expense of the Company, either mail to each Noteholder
affected, at the address shown in the register of the Notes maintained by the
<PAGE>
Registrar pursuant to Section 2.03 hereof, or cause to be published once a week
for two successive weeks, in a newspaper published in the English language,
customarily published each Business Day and of general circulation in the City
of New York, New York, a notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such mailing or publication, any unclaimed balance of such moneys then
remaining will be repaid to the Company. After payment to the Company,
Noteholders entitled to the money must look only to the Company for payment as
general creditors unless applicable abandoned property law designates another
person.
Section 9.05. Reinstatement
If the Trustee or Paying Agent is unable to apply any money in
accordance with Section 9.01 hereof by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Notes shall be revived and reinstated
as though no deposit had occurred pursuant to this Article 9 until such time as
the Trustee or Paying Agent is permitted to apply all such money in accordance
with Section 9.01; provided, however, that if the Company has made any payment
of principal of or interest on any Notes because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
ARTICLE 10
DEFEASANCE AND COVENANT DEFEASANCE
Section 10.01. Applicability of Article; Company Option to Effect Defeasance
The Company may at its option by a Board Resolution at any
time, with respect to the Notes elect to have Section 10.02 or Section 10.03
hereof be applied to an outstanding series of Notes upon compliance with the
conditions set forth below in this Article 10.
Section 10.02. Defeasance and Discharge
Upon the Company's exercise of the option described in Section
10.01 above applicable to this Section with respect to such series of Notes, the
Company shall be deemed to have been discharged from its obligations with
respect to such series of Notes on the date the conditions set forth in Section
10.04 below are satisfied (hereinafter, "Defeasance"). For this purpose, such
Defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such series of Notes and to have
satisfied all its other obligations under such series of Notes and this
Indenture insofar as such series of Notes are concerned (and the Trustee, at the
expense of the Company, shall, subject to Section 10.06 hereof, execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of any outstanding series of Notes to receive solely from the trust
funds described in Section 10.04 hereof and as more fully set forth in such
Section, payments in respect of the principal of and interest on such series of
Notes when such payments are due, (B) the Company's obligations with respect to
such series of Notes under Sections 2.03, 2.04, 2.05, 2.06, 2.07 and 2.08
hereof, (C) the rights, powers, trusts, duties, and immunities of the Trustee
<PAGE>
hereunder (including claims of, or payments to, the Trustee under or pursuant to
Section 7.07 hereof) and (D) this Article 10. Subject to compliance with this
Article 10, the Company may exercise its option under this Section 10.02 with
respect to such series of Notes notwithstanding the prior exercise of its option
under Section 10.03 below with respect to the Notes.
Section 10.03. Covenant Defeasance
Upon the Company's exercise of the option in Section 10.01
above applicable to this Section with respect to such series of Notes, the
Company shall be released from its obligations under Article III, Sections 4.04,
4.05, 4.06, 4.10, 4.11 and 4.12, and clause (iii) of Section 5.01 hereof with
respect to any outstanding series of Notes on and after the date the conditions
set forth in Section 10.04 below are satisfied (hereinafter, "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section or portion
thereof, whether directly or indirectly by reason of any reference elsewhere
herein to any such specified Section or portion thereof or by reason of any
reference in any such specified Section or portion thereof to any other
provision herein or in any other document, but the remainder of this Indenture
and the Notes shall be unaffected thereby.
Section 10.04. Conditions to Defeasance or Covenant Defeasance
The following shall be the conditions to application of
Section 10.02 or Section 10.03 above to any outstanding series of Notes:
(1) the Company shall irrevocably have deposited or
caused to be deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10 hereof who shall
agree to comply with the provisions of this Article 10
applicable to it) as funds in trust for the purpose of making
the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of each
series of Notes, (A) money in an amount, or (B) U.S.
Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with
their terms will provide, not later than the due date of any
payment, money in an amount, or (C) a combination thereof,
sufficient, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of and
accrued interest on any outstanding series of Notes at the
maturity date of such principal or interest;
(2) no Event of Default or Default with respect to
such series of Notes shall have occurred and be continuing on
the date of such deposit, or shall have occurred and be
continuing at any time during the period ending on the 91st
day after the date of such deposit or, if longer, ending on
the day following the expiration of the longest preference
period under any Bankruptcy Law applicable to the Company in
respect of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration
of such period);
<PAGE>
(3) such Defeasance or Covenant Defeasance shall not
cause the Trustee to have a conflicting interest for purposes
of the TIA with respect to any securities of the Company;
(4) such Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute default
under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound;
(5) in the case of an election under Section 10.02
above, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that the Company has received from,
or there has been published by, the Internal Revenue Service a
ruling to the effect that, and such opinion shall confirm
that, the Holders of the outstanding Notes or persons in their
positions will not recognize income, gain or loss for Federal
income tax purposes as a result of such Defeasance and will be
subject to Federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if
such Defeasance had not occurred;
(6) in the case of an election under Section 10.03
hereof, the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of the
outstanding Notes will not recognize income, gain or loss for
Federal income tax purposes as a result of such Covenant
Defeasance and will be subject to Federal income tax on the
same amount, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not
occurred;
(7) the Company shall have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for relating to
either the Defeasance under Section 10.02 above or the
Covenant Defeasance under Section 10.03 above (as the case may
be) have been complied with; and
(8) the Company shall have delivered to the Trustee
an Officers' Certificate stating its intention to effect a
Defeasance pursuant to the provisions of this Article 10 at
least sixty (60) days prior to such Defeasance.
Section 10.05. Deposited Money and U.S. Government Obligations to be Held
in Trust; Other Miscellaneous Provisions
All money and U.S. Government Obligations (including the
proceeds thereof) deposited with the Trustee pursuant to Section 10.04 in
respect of any outstanding series of Notes shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of such Notes, of all sums due and to become due
thereon in respect of principal and accrued interest, but such money need not be
segregated from other funds except to the extent required by law.
<PAGE>
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the U.S. Government
Obligations deposited pursuant to Section 10.04 above or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of any outstanding series
of Notes.
Anything in this Article 10 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 10.04 above which, in the opinion of a nationally-recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Defeasance or Covenant
Defeasance.
Section 10.06. Reinstatement
If the Trustee or Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 10.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Notes shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article 10 until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with Section 10.01;
provided, however, that if the Company has made any payment of principal of or
accrued interest on any Notes because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or Paying Agent.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
Section 11.02. Notices
Any notice or communication shall be given in writing
and delivered in person, sent by telex or telephone facsimile, delivered by
commercial courier service or mailed by first-class mail, postage prepaid,
addressed as follows:
If to the Company:
Adelphia Communications Corporation
Main at Water Street
Coudersport, Pennsylvania 16195
Attention: Colin Higgin, Esq.
<PAGE>
Copy to:
Buchanan Ingersoll Professional Corporation
1 Oxford Center
301 Grant Street, 20th Floor
Pittsburgh, Pennsylvania 15219
Attention: Carl E. Rothenberger, Jr., Esq.
If to the Trustee:
Bank of Montreal Trust Company
Wall Street Plaza
88 Pine Street, 19th Floor
New York, New York 10005
Attention: Corporate Trust Department
Such notices or communications shall be effective when
received and shall be sufficiently given if so given within the time prescribed
in this Indenture.
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Noteholder shall be
mailed to him by first class mail, postage prepaid, at his address shown on the
register kept by the Registrar. Any notice or communication shall also be so
mailed to any Person described in TIA SS 313(c), to the extent required by the
TIA.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication to a Noteholder is mailed in the
manner provided above, it shall be deemed duly given, whether or not the
addressee receives it.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice as
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
Section 11.03. Communications by Holders with Other HoldersSection
11.03.Communications by Holders with Other HoldersSection 11.03.Communications
by Holders with Other Holders
Noteholders may communicate pursuant to TIA SS 312(b) with
other Noteholders with respect to their rights under this Indenture or the
Notes. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA SS 312(c).
Section 11.04. Certificate and Opinion as to Conditions...
Upon any request or application by the Company to
the Trustee to take any action under this Indenture, the Company shall furnish
to the Trustee:
<PAGE>
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.05 below) stating that, in
the opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
(2) an Opinion of Counsel (which shall include the
statements set forth in Section 11.05 below) stating that, in
the opinion of such counsel, all such conditions precedent
have been complied with.
Section 11.05. Statements Required in Certificate and Opinion
Each certificate and opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA SS 314(a)(4)) shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person,
it or he has made such examination or investigation as is
necessary to enable it or him to express an informed opinion
as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether or not, in the opinion
of such Person, such covenant or condition has been complied
with.
Section 11.06. When Treasury Notes Disregarded.
In determining whether the Holders of the required aggregate
principal amount of a series of Notes have concurred in any direction, waiver or
consent, such series of Notes owned by the Company or any other obligor on such
series of Notes or by any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company or
such obligor shall be disregarded, except that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction, waiver
or consent, only such series of Notes which the Trustee knows are so owned shall
be so disregarded. Such series of Notes so owned which have been pledged in good
faith shall not be disregarded if the pledgee establishes to the satisfaction of
the Trustee the pledgee's right so to act with respect to such series of Notes
and that the pledgee is not the Company or any other obligor upon such series of
Notes or any person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or such obligor.
<PAGE>
Section 11.07. Rules by Trustee and Agents
The Trustee may make reasonable rules for action by or
meetings of Noteholders. The Registrar and Paying Agent may make reasonable
rules for their functions.
Section 11.08. Business Days; Legal Holidays
A "Business Day" is a day that is not a Legal Holiday. A
"Legal Holiday" is a Saturday, a Sunday, a federally-recognized holiday or a day
on which banking institutions are not required to be open in the State of New
York. If a payment date is a Legal Holiday at a place of payment, payment may be
made at that place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
Section 11.09. Governing Law
The laws of the State of New York shall govern this Indenture
and the Notes without regard to principles of conflicts of law.
Section 11.10. No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another indenture,
loan, security or debt agreement of the Company or any Subsidiary. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 11.11. No Recourse against Others
No recourse for the payment of the principal of or accrued
interest on any of the Notes, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental indenture, or
in any of the Notes, or because of the creation of any Indebtedness represented
thereby, shall be had against any stockholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation or
against the property or assets of any such stockholder, officer, employee or
director, either directly or through the Company or any successor corporation,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the Notes are solely obligations of the
Company, and that no such personal liability whatever shall attach to, or is or
shall be incurred by, any stockholder, officer, employee or director of the
Company or any successor corporation because of the creation of the indebtedness
hereby authorized, or under or by reason of the obligations, covenants or
agreements contained in this Indenture or the Notes or implied therefrom, and
that any and all such personal liability of, and any and all claims against
every stockholder, officer, employee and director, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issuance of the Notes. It is understood that this
limitation on recourse is made expressly for the benefit of any such
shareholder, employee, officer or director and may be enforced by any of them.
<PAGE>
Section 11.12. Successors
All agreements of the Company in this Indenture and the Notes
shall bind its successor. All agreements of the Trustee, any additional trustee
and any Paying Agents in this Indenture shall bind its successor.
Section 11.13. Multiple Counterparts
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 11.14. Table of Contents, Headings, etc.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 11.15. Separability
Each provision of this Indenture shall be considered
separable and, if for any reason any provision which is not essential to the
effectuation of the basic purpose of this Indenture or the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
[The rest of this page has been intentionally left blank.]
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed,
and attested, all as of the date and year first written above.
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ Daniel R. Milliard_____
Name: Daniel R. Milliard
Title: Senior Vice President
WITNESS:
__/s/ Ronald W. Schuler_____
Name: Ronald W. Schuler
BANK OF MONTREAL TRUST COMPANY, as Trustee
By: __/s/ Peter Morse__
Name: Peter Morse
Title: Vice President
WITNESS:
_/s/ Estelle Redding___
Name: Estelle Redding
<PAGE>
EXHIBIT A
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
[Face of Note]
__% Senior Notes due 200_
CUSIP No. ____________ $___,000,000
ADELPHIA COMMUNICATIONS CORPORATION
promises to pay to Cede & Co. or registered assigns, the principal sum
of ___________ Dollars on ________ __, 200_.
Interest Payment Dates:
Record Dates:
Dated:
ADELPHIA COMMUNICATIONS CORPORATION
By
Name:
Title:
(SEAL)
This is one of the Notes referred to in the within-mentioned Indenture:
BANK OF MONTREAL TRUST COMPANY,
as Trustee
By:
Authorized Signature
<PAGE>
[Back of Note]
__% Senior Notes due 200_
Unless and until it is exchanged in whole or in part for Notes
in definitive form, this Note may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the Depository to
the Depository or another nominee of the Depository or by the Depository or any
such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as may be requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), AND, ACCORDINGLY, MAY NOT
BE OFFERED OR SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE
ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH
BELOW. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES THAT (1)
IT WILL NOT PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") THAT IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE OF THIS NOTE AND THE LAST DATE ON WHICH THE
COMPANY, OR ANY AFFILIATE OF THE COMPANY, WAS THE OWNER OF
THIS NOTE (OR ANY PREDECESSOR OF THIS NOTE), RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A
UNDER THE ACT, (C) INSIDE THE UNITED STATES TO AN ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES (OR HAS
FURNISHED ON ITS BEHALF BY A U.S. BROKER-DEALER) TO THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THIS
NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE
TRUSTEE), (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH RULE 904 UNDER THE ACT, (E)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE ACT (IF AVAILABLE) OR (F) PURSUANT TO AN
<PAGE>
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND (2) WILL
GIVE TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND, IN CONNECTION WITH
ANY TRANSFER OF THIS NOTE PRIOR TO THE RESALE RESTRICTION
TERMINATION DATE. IF THE PROPOSED TRANSFEREE IS AN ACCREDITED
INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, WILL BE
REQUIRED TO FURNISH TO THE TRUSTEE AND THE COMPANY SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS EITHER
OF THEM MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER
IS BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A
TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF
THE ACT, AS USED HEREIN. THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO
THEM BY REGULATION S UNDER THE ACT.
Capitalized terms used herein shall have the meanings assigned
to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Adelphia Communications Corporation, a Delaware
corporation (the "Company") promises to pay interest on the principal amount of
this Note at __% per annum from July 15, 1999 until January 15, 200_ and shall
pay the Liquidated Damages, if any, payable pursuant to Section 5 of the
Registration Rights Agreement referred to below. The Company shall pay interest
and Liquidated Damages, if any, semi-annually in arrears on January 15 and July
15 of each year, or if any such day is not a Business Day, on the next
succeeding Business Day (each an "Interest Payment Date"). Interest on the Notes
will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the date of issuance; provided that if there is no
existing Default in the payment of interest, and if this Note is authenticated
between a record date referred to on the face hereof and the next succeeding
Interest Payment Date, interest shall accrue from such next succeeding Interest
Payment Date; provided, further, that the first Interest Payment Date shall be
July 15, 1999. The Company shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue principal from time to
time on demand at a rate equal to the per annum rate on the Notes then in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages, if any, (without regard to any applicable grace periods)
from time to time on demand at the same rate to the extent lawful. Interest will
be computed on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT. The Company shall make payments in
respect of the Notes represented by the Global Notes (including principal,
interest and Liquidated Damages, if any) by wire transfer of immediately
available funds to the accounts specified by the Note Custodian. With respect to
Notes issued in definitive form, the Company shall make all payments of
principal, interest and Liquidated Damages, if any, by mailing a check to each
such Holder's registered address, provided that all payments with respect to
Notes having an aggregate principal amount of $100,000 or more, the Holders of
<PAGE>
which have given wire transfer instructions to the Company at least ten business
days prior to the applicable payment date, will be required to be made by wire
transfer of immediately available funds to the accounts specified by the Holders
thereof. The Notes represented by the Global Notes are expected to be eligible
to trade in DTC's Same-Day Funds Settlement System, and any permitted secondary
market trading activity in such notes will, therefore, be required by DTC to be
settled in immediately available funds. The Company expects that secondary
trading in the Definitive Notes also will be settled in immediately available
funds.
3. PAYING AGENT AND REGISTRAR. Initially, Bank of Montreal
Trust Company, the Trustee under the Indenture, will act as Paying Agent and
Registrar. The Notes may be presented for registration of transfer and exchange
at the offices of the Registrar. The Company may change any Paying Agent or
Registrar without notice to any Holder. The Company or any of its Subsidiaries
may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture
dated as of January 13, 1999 (the "Indenture") between the Company and the
Trustee. The terms of the Notes include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code SS 77aaa-77bbbb). The Notes are subject to all such terms,
and Holders are referred to the Indenture and such Act for a statement of such
terms. The Notes issued under the Indenture are senior unsecured obligations of
the Company limited to $700 million in aggregate principal amount.
5. MANDATORY REDEMPTION. Except as set forth in paragraph 6
below, the Company shall not be required to make mandatory redemption payments
with respect to the Notes.
6. REPURCHASE AT OPTION OF HOLDER. Within 50 days of (i) the
proposed occurrence of a Change of Control or (ii) the occurrence of Change of
Control Triggering Event, the Company shall be required to make an offer (a
"Change of Control Offer") to repurchase all or any part (equal to $1,000 or an
integral multiple thereof) of each Holder's Notes at a purchase price equal to
100% of the principal amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date of purchase, which date shall be
no later than 50 days from the date such notice is mailed (the "Change of
Control Payment Date"). Within 50 days of (i) the proposed occurrence of a
Change of Control or (ii) the occurrence of Change of Control Triggering Event,
the Company shall mail a notice to each Holder setting forth the procedures
governing the Change of Control Offer as required by the Indenture. Such right
to require the repurchase of Notes shall not continue after discharge of the
Company from its obligations with respect to the Notes. The board of directors
of the Company may not waive this provision.
7. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in
registered form without coupons in minimum denominations of $1,000 and integral
multiples of $1,000 in excess thereof. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture.
<PAGE>
8. PERSONS DEEMED OWNERS. The registered Holder of a Note may
be treated as its owner for all purposes.
9. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain
exceptions, the Indenture with respect to a series of Notes or a series of Notes
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of an outstanding series of Notes, and any existing
default or compliance with any provision of the Indenture with respect to a
series of Notes or a series of Notes may be waived with the consent of the
Holders of a majority in principal amount of an outstanding series of Notes.
Without the consent of any Holder of a series of Notes, the Indenture with
respect to a series of Notes or a series of Notes may be amended or supplemented
to cure any ambiguity, defect or inconsistency, to provide for uncertificated
Notes in addition to or in place of certificated Notes, to provide for the
assumption of the Company's obligations to Holders of a series of Notes in case
of a merger or consolidation, to issue up to $300,000,000 in aggregate principal
amount of additional Notes, to transfer, assign, mortgage or pledge any property
to the Trustee and otherwise comply with the covenant to secure Notes equally,
to make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, or to comply with the requirements of the SEC
in order to effect or maintain the qualification of the Indenture under the
Trust Indenture Act.
10. DEFAULTS AND REMEDIES. An Event of Default with respect to
a series of Notes occurs if: (i) the Company defaults in the payment when due of
any interest on, or Liquidated Damages with respect to, any such series of Notes
and such default continues for a period of 30 days; (ii) the Company defaults in
the payment of the principal of any such series of Notes at its maturity; (iii)
the Company fails to observe or perform any other covenant, representation,
warranty or other agreement in the Indenture or the Notes for 60 days after
written notice to the Company by the Trustee or the Holders of at least 25% in
principal amount of such series of Notes then outstanding; (iv) the Company
fails to pay when due principal, interest or premium aggregating $10,000,000 or
more with respect to any Indebtedness of the Company or any Restricted
Subsidiary, or the acceleration of any such Indebtedness which default shall not
be cured or waived, or such acceleration shall not be rescinded or annulled,
within 10 days after written notice; (v) a final judgment or final judgments for
the payment of money are entered by a court or courts of competent jurisdiction
against the Company or any of its Restricted Subsidiaries and such judgment or
judgments remain undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
judgments exceeds $10 million; or (vi) the Company or any Restricted Subsidiary
with liabilities of greater than $10,000,000 under GAAP as of the date of the
event described in this clause, pursuant to or within the meaning of Bankruptcy
Law: (a) commences a voluntary case, (b) consents to the entry of an order for
relief against it in an involuntary case, (c) consents to the appointment of a
Custodian of it or for all or substantially all of its property, or (d) makes a
general assignment for the benefit of its creditors, (vii) a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that: (a) is for
relief against the Company, or any Restricted Subsidiary with liabilities of
greater than $10,000,000 under GAAP as of the effective date of such order or
decree in an involuntary case, (b) appoints a custodian of the Company, or any
Restricted Subsidiary of Restricted Subsidiary with liabilities of greater than
$10,000,000 under GAAP as of the effective date of such order or decree or for
all or substantially all of its property or (c) orders the liquidation of the
Company, or any Restricted Subsidiary with liabilities greater than $10,000,000
<PAGE>
under GAAP as of the effective date of such order or decree; and the order or
decree remains unstayed and in effect for 60 consecutive days. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding series of Notes may declare all of such
Notes to be due and payable immediately. Notwithstanding the foregoing, in the
case an Event of Default specified in clauses (6) or (7) of Section 6.01 of the
Indenture occurs with respect to the Company, or a Restricted Subsidiary with
liabilities of greater than $10,000,000 under GAAP as of the effective date of
such order or decree, all outstanding series of Notes will become due and
payable without further action or notice. Holders of such series of Notes may
not enforce the Indenture with respect to such series of Notes or such series of
Notes except as provided in the Indenture. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding series of
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of such series of Notes notice of any continuing
Default or Event of Default (except a Default or Event of Default relating to
the payment of principal or interest) if it determines that withholding notice
is in their interest. The Holders of not less than a majority in aggregate
principal amount of the such series of Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default or Event of Default and its consequences under the Indenture, except a
continuing Default or Event of Default in the payment of the principal of and
Liquidated Damages, if any, or interest on, such series of Notes (provided,
however, that the Holders of a majority in aggregate principal amount of the
then outstanding series of Notes may rescind an acceleration and its
consequence, including any related payment default) or a default with respect to
any covenant or provision which cannot be modified or amended without the
consent of the Holder of each outstanding Note affected.
The Company is required to deliver to the Trustee annually a
statement regarding compliance with the Indenture, and the Company is required,
upon becoming aware of any Default or Event of Default, to deliver to the
Trustee a statement specifying such Default or Event of Default and what action
the Company is taking or proposes to take thereto.
11. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates, and may otherwise deal with
the Company or its Affiliates, as if it were not the Trustee.
12. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability including any rights against any general partner of the Company in its
capacity as general partner. The waiver and release are part of the
consideration for the issuance of the Notes.
13. AUTHENTICATION. This Note shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
<PAGE>
14. ABBREVIATIONS. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TENENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
15. ADDITIONAL RIGHTS OF HOLDERS OF TRANSFER RESTRICTED
SECURITIES. In addition to the rights provided to Holders of Notes under the
Indenture, Holders of Transfer Restricted Securities shall have all the rights
set forth in the Notes Registration Rights Agreement dated as of January 13,
1999, between the Company and the party named on the signature pages thereof
(the "Registration Rights Agreement").
16. CUSIP NUMBERS. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company has
caused CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP
numbers in notices of redemption as a convenience to Holders. No representation
is made as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company shall furnish to any Holder upon written request
and without charge a copy of the Indenture and/or the Registration Rights
Agreement. Requests may be made to:
Adelphia Communications Corporation
Main at Water Street
Coudersport, Pennsylvania 16915
Attention: Colin H. Higgin, Esq.
<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
(Insert assignee's soc. sec. or tax I.D. no.)
(Print or type assignee's name, address and zip code)
and irrevocably appoint to transfer this Note on the books of the Company. The
agent may substitute another to act for him.
Date: __________
Your Signature:
(Sign exactly as your name appears on the face of this Note)
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Article 3 of the Indenture, check the box below:
___Article 3
If you want to elect to have only part of the Note purchased
by the Company pursuant to Article 3 of the Indenture, state the amount you
elect to have purchased: $________
Date: __________ Your Signature:
(Sign exactly as your name appears on the Note)
Tax Identification No.:
<PAGE>
SCHEDULE OF EXCHANGES OF NOTES2
The following exchanges of a part of this Global Note for
other Notes have been made:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Principal Amount of Signature of
Amount of decrease Amount of increase in this Global Note authorized office
in Principal Amount Principal Amount of following such of Trustee or Note
Date of Exchange of this Global Note this Global Note decrease (or increase) Custodian
- -------------------------
<FN>
1 This paragraph should be included only if the Note is issued in global form.
2 This should be included only if the Note is issued in global form.
</FN>
</TABLE>
================================================================================
EXHIBIT 4.04
================================================================================
NOTE REGISTRATION RIGHTS AGREEMENT
Dated as of January 13, 1999
between
Adelphia Communications Corporation
and
Salomon Smith Barney Inc.
Credit Suisse First Boston Corporation
Goldman, Sachs & Co.
Lehman Brothers Inc.
NationsBanc Montgomery Securities LLC
================================================================================
<PAGE>
[REGISTRATION RIGHTS AGREEMENT]
This Note Registration Rights Agreement (this "Agreement") is made and
entered into as of January 13, 1999 between Adelphia Communications Corporation
(the "Company") and Salomon Smith Barney Inc., Credit Suisse First Boston
Corporation, Goldman, Sachs & Co., Lehman Brothers Inc. and NationsBanc
Montgomery Securities LLC (the "Initial Purchasers"), who have agreed to
purchase the 7 1/2% Senior Notes due 2004 (the "2004 Notes") and the 7 3/4%
Senior Notes due 2009 (the "2009 Notes") (the 2004 Notes and the 2009 Notes
being referred to collectively as the "Senior Notes") of the Company pursuant to
the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
January 6, 1999 (the "Purchase Agreement"), between the Company and the Initial
Purchasers. In order to induce the Initial Purchasers to purchase the Senior
Notes, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers set forth in Section 2 of the Purchase
Agreement.
The parties hereby agree as follows:
Section 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company
to the Registrar under the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Senior Notes that were
tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Senior Notes, each Interest
Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
<PAGE>
Exchange Notes: The $100,000,000 in aggregate principal amount of 7
1/2% Senior Notes due 2004 and the $300,000,000 in aggregate principal amount of
7 3/4% Senior Notes due 2009 of the Company to be issued pursuant to the
Indenture in the Exchange Offer.
Exchange Offer: The registration by the Company under the Act of the
Exchange Notes pursuant to one or more Registration Statements pursuant to which
the Company offers the Holders of all outstanding Transfer Restricted Securities
of each series of Senior Notes the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Notes of the
corresponding series in an aggregate principal amount equal to the aggregate
principal amount of the Transfer Restricted Securities tendered in such exchange
offer by such Holders.
Exchange Offer Registration Statement: The Registration Statements
relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers
propose to sell the Senior Notes to certain "qualified institutional buyers," as
such term is defined in Rule 144A under the Act and pursuant to Regulation S
under the Act.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of January 13, 1999, between the
Company and Bank of Montreal Trust Company, as trustee (the "Trustee"), pursuant
to which the Senior Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Senior Notes and the Exchange Notes.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such prospectus.
Record Holder: With respect to any Damages Payment Date relating to
Notes, each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall occur.
<PAGE>
Registrar: Means the Registrar of the Notes as defined in the
Indenture.
Registration Default: As defined in Section 5 hereof.
Registration Statements: Any registration statement of the Company
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the provisions of
this Agreement in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Senior Notes: As defined in the preamble hereto.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C.Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Senior Note, until the earliest to
occur of (a) the date on which such Senior Note is exchanged in the Exchange
Offer and entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act, (b) the date on
which such Senior Note has been effectively registered under the Act and
disposed of in accordance with a Shelf Registration Statement and (c) the date
on which such Senior Note is distributed to the public pursuant to Rule 144
under the Act or by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including delivery of
the Prospectus contained therein).
Underwritten Registration or Underwritten Offering: A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.
Section 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to
the benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
Section 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Company shall (i) use its reasonable efforts to
cause to be filed with the Commission as soon as practicable after the Closing
Date, but in no event later than 90 days after the Closing Date, one or more
<PAGE>
Registration Statements under the Act relating to the Exchange Notes and the
Exchange Offer, (ii) use its best efforts to cause such Registration Statement
to become effective no later than 180 days after the Closing Date, (iii) in
connection with the foregoing, file (A) all pre-effective amendments to such
Registration Statements as may be necessary in order to cause such Registration
Statements to become effective, (B) if applicable, a post-effective amendment to
such Registration Statements pursuant to Rule 430A under the Act and (C) cause
all necessary filings in connection with the registration and qualification of
the Exchange Notes to be made under the Blue Sky laws of such jurisdictions as
are necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Registration Statements, commence the Exchange Offer. The
Exchange Offer Registration Statements shall be on the appropriate form
permitting registration of the Exchange Notes to be offered in exchange for the
Transfer Restricted Securities and to permit resales of Notes held by
Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall cause the Exchange Offer Registration Statements
to be effective continuously and shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 business days. The Company shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws. No securities other than the Notes, shall be included in any Exchange
Offer Registration Statement. The Company shall use its best efforts to cause
the Exchange Offer to be Consummated on the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in no event
later than 30 business days thereafter.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statements that any Broker-Dealer who holds Senior Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Senior Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Act and may be required,
therefore, to deliver a prospectus meeting the requirements of the Act in
connection with any sales of the Exchange Notes received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any such Broker-Dealer
or disclose the amount of Notes held by any such Broker-Dealer except to the
extent required by the Commission as a result of a change in policy after the
date of this Agreement.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statements continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Notes acquired by Broker-Dealers for
their own accounts as a result of market-making activities or other trading
<PAGE>
activities, and to ensure that such Registration Statement conforms with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of one year from
the date on which the Exchange Offer Registration Statement is declared
effective.
The Company shall promptly provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request, at any time
during such one year period in order to facilitate such sales.
Section 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file an
Exchange Offer Registration Statement or permitted to Consummate an Exchange
Offer with respect to a series of Senior Notes, in either case, because the
Exchange Offer is not permitted by applicable law or Commission policy (after
the procedures set forth in Section 6(a) below have been complied with) or (ii)
if any Holder of Transfer Restricted Securities shall notify the Company within
20 business days of the Consummation of an Exchange Offer (A) that such Holder
is prohibited by applicable law or Commission policy from participating in the
Exchange Offer, or (B) that such Holder may not resell the Exchange Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and that the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or
(iii) if any Holder of Transfer Restricted Securities is a Broker-Dealer and
holds Senior Notes acquired directly from the Company or an affiliate of the
Company and shall so notify the Company, then the Company shall
(x) cause to be filed one or more shelf registration
statements pursuant to Rule 415 under the Act, which may be an
amendment to the Exchange Offer Registration Statement (in either
event, the "Shelf Registration Statement") on or prior to the earliest
to occur of (1) the 30th day after the date on which the Company is
notified by the Commission or otherwise determines that it is not
required to file the Exchange Offer Registration Statement or permitted
to Consummate the Exchange Offer, (2) the 30th day after the date on
which the Company receives notice from a Holder of Transfer Restricted
Securities as contemplated by clauses (ii) or (iii) above, and (3) the
60th day after the Closing Date (such earliest date being the "Shelf
Filing Deadline"), which Shelf Registration Statement shall provide for
resales of all Transfer Restricted Securities of the series affected by
the circumstances enumerated in Section 4(a)(i) through (iii), the
Holders of which shall have provided the information required pursuant
to Section 4(b) hereof; and
(y) use its best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the
90th day after the Shelf Filing Deadline.
The Company shall use its best efforts to keep such Shelf Registration
Statement continuously effective, supplemented and amended as required by the
provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for resales of Notes by the Holders of Transfer Restricted
Securities entitled to the benefit of this Section 4(a), and to ensure that it
<PAGE>
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, until
the second anniversary of the Closing Date or such shorter period that will
terminate when all the Notes covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement or become eligible for
resale pursuant to Rule 144 without volume or other restrictions.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading.
Section 5. LIQUIDATED DAMAGES
If (i) a Registration Statement required by this Agreement with respect
to a particular series of Senior Notes is not filed with the Commission on or
prior to the date specified for such filing in this Agreement, (ii) such
Registration Statement has not been declared effective by the Commission on or
prior to the date specified for such effectiveness in this Agreement (the
"Effectiveness Target Date"), (iii) an Exchange Offer with respect to a
particular series of Senior Notes has not been Consummated within 30 business
days after the Effectiveness Target Date with respect to the Exchange Offer
Registration Statement or (iv) any Registration Statement required by this
Agreement with respect to a particular series of Senior Notes is filed and
declared effective but shall thereafter cease to be effective or fail to be
usable for its intended purpose without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself immediately declared effective (each such event referred to
in clauses (i) through (iv), a "Registration Default"), the Company hereby
agrees to pay liquidated damages to each Holder of such series of Transfer
Restricted Securities with respect to the first 90-day period immediately
following the occurrence of such Registration Default, in an amount equal to
0.25% per annum on the principal amount of such series of Transfer Restricted
Securities held by such Holder for the period that the Registration Default
continues. The amount of the liquidated damages shall increase by an additional
0.25 % per annum for each subsequent 90 day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of 2.0%
per annum on the principal amount of such series of Transfer Restricted
Securities. All accrued liquidated damages shall be paid to Record Holders by
the Company by wire transfer of immediately available funds or by federal funds
check on each Damages Payment Date, as provided in the Indenture. Following the
cure of all Registration Defaults relating to any particular Transfer Restricted
Securities, the accrual of liquidated damages with respect to such Transfer
Restricted Securities will cease.
<PAGE>
All obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such Security shall have
been satisfied in full.
Section 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with an
Exchange Offer, the Company shall comply with all of the provisions of Section
6(c) below, shall use its best efforts to effect such exchange to permit the
sale of Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof and shall comply with all of
the following provisions:
(i) If in the reasonable opinion of counsel to the Company
there is a question as to whether the Exchange Offer is permitted by
applicable law, the Company hereby agrees to seek a no-action letter or
other favorable decision from the Commission allowing the Company to
Consummate an Exchange Offer for such Senior Notes. The Company hereby
agrees to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially unreasonable
action to effect a change of Commission policy. The Company hereby
agrees, however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon
which such counsel has concluded that such an Exchange Offer should be
permitted and (C) diligently pursue a resolution (which need not be
favorable) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Exchange Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate in the Company's preparations for the Exchange
Offer. Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Exchange Offer to
participate in a distribution of the securities to be acquired in the
exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position the Commission
enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (including any no-action
letter obtained pursuant to clause (i) above), and (2) must comply with
the registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a
<PAGE>
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K if the resales are of Exchange Notes obtained by such Holder in
exchange for Senior Notes acquired by such Holder directly from the
Company.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Company shall, provide a supplemental
letter to the Commission stating (A) that the Company is registering
the Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May 13,
1988), Morgan Stanley and Co., Inc. (available June 5, 1991) and, if
applicable, any no-action letter obtained pursuant to clause (i) above
and (B) including a representation that the Company has not entered
into any arrangement or understanding with any Person to distribute the
Exchange Notes to be received in the Exchange Offer and that, to the
best of the Company's information and belief, each Holder participating
in the Exchange Offer is acquiring the Exchange Notes in its ordinary
course of business and has no arrangement or understanding with any
Person to participate in the distribution of the Exchange Notes
received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with a Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof, and pursuant
thereto the Company will as expeditiously as possible prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
for the period specified in Section 3 or 4 of this Agreement, as
applicable; upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain a material misstatement or omission or (B) not to be effective
and usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company shall file promptly an
appropriate amendment to such Registration Statement, in the case of
clause (A), correcting any such misstatement or omission, and, in the
case of either clause (A) or (B), use its best efforts to cause such
amendment to be declared effective and such Registration Statement and
the related Prospectus to become usable for its intended purpose(s) as
soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement effective for the
<PAGE>
applicable period set forth in Section 3 or 4 hereof, as applicable or
such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause
the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Act in a timely manner; and comply with
the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of
the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the happening
of any event that makes any statement of a material fact made in the
Registration Statement, the Prospectus, any amendment or supplement
thereto, or any document incorporated by reference therein untrue, or
that requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company shall use its best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish to each of the selling Holders and each of the
underwriter(s), if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review of such Holders and underwriter(s), if any, for a
period of at least five business days, and the Company will not file
any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including
all such documents incorporated by reference) to which a selling Holder
of Transfer Restricted Securities covered by such Registration
Statement or the underwriter(s), if any, shall reasonably object within
five business days after the receipt thereof. A selling Holder or
underwriter if any, shall be deemed to have reasonably objected to such
filing if such Registration Statement, amendment, Prospectus or
<PAGE>
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and to the
underwriter(s), if any, make the Company's representatives available
for discussion of such document and other customary due diligence
matters, and include such information in such document prior to the
filing thereof as such selling Holders or underwriter(s), if any,
reasonably may request;
(vi) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant
retained by such selling Holders or any of the underwriters, all
financial and other records, pertinent corporate documents and
properties of the Company and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
such Holders, underwriter, attorney or accountant in connection with
such Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
(vii) if requested by any selling Holders or the
underwriter(s), if any, promptly incorporate in any Registration
Statement or Prospectus, pursuant to a supplement or post-effective
amendment if necessary, such information as such selling Holders and
underwriter(s), if any, may reasonably request to have included
therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities,
information with respect to the principal amount of Transfer Restricted
Securities being sold to such underwriter(s), the purchase price being
paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all
required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the
matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in aggregate
principal amount of Notes covered thereby or the underwriter(s), if
any;
(ix) furnish to each selling Holder and each of the
underwriter(s), if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by
reference);
(x) deliver to each selling Holder and each of the
underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company
hereby consents to the use of the Prospectus and any amendment or
supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of
<PAGE>
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(xi) enter into such agreements (including an underwriting
agreement), and make such representations and warranties, and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement,
all to such extent as may be requested by the Initial Purchasers or by
any Holder of Transfer Restricted Securities or underwriter in
connection with any sale or resale pursuant to any Registration
Statement contemplated by this Agreement; and whether or not an
underwriting agreement is entered into and whether or not the
registration is an Underwritten Registration, the Company shall:
(A) furnish to each Initial Purchaser, each selling
Holder and each underwriter, if any, in such substance and
scope as they may request and as are customarily made by
issuers to underwriters in primary underwritten offerings, (i)
upon the date of the Consummation of the Exchange Offer, (ii)
if applicable, the effectiveness of the Shelf Registration
Statement and (iii) upon the filing of any amendment or
supplement to any Registration Statement:
(1) a certificate, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, signed by (y) the President or any
Vice President and (z) a principal financial or
accounting officer of the Company confirming, as of
the date thereof, the matters set forth in paragraphs
(i) and (j) of Section 7 of the Purchase Agreement
and such other matters as such parties may reasonably
request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for the Company, covering
the matters set forth in paragraphs (d), (e), (f) and
(g) of Section 7 of the Purchase Agreement and such
other matters as such parties may reasonably request,
and in any event including a statement to the effect
that such counsel has participated in conferences
with officers and other representatives of the
Company's representatives of the independent public
accountants for the Company and the Initial
Purchasers' representatives and the Initial
Purchasers' counsel in connection with the
preparation of such Registration Statement and the
related Prospectus and have considered the matters
required to be stated therein and the statements
contained therein, although such counsel has not
independently verified the accuracy, completeness or
fairness of such statements; and that such counsel
advises that, on the basis of the foregoing (relying
as to materiality to a certain extent upon facts
provided to such counsel by officers and other
representatives of the Company and without
independent check or verification), no facts came to
such counsel's attention that caused such counsel to
believe that the applicable Registration Statement,
at the time such Registration Statement or any
<PAGE>
post-effective amendment thereto became effective,
and, in the case of the Exchange Offer Registration
Statement, as of the date of Consummation, contained
an untrue statement of a material fact or omitted to
state a material fact required to be stated therein
or necessary to make the statements therein not
misleading, or that the Prospectus contained in such
Registration Statement as of its date and, in the
case of the opinion dated the date of Consummation of
the Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order
to make the statements therein, in light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and
other financial data included in any Registration
Statement contemplated by this Agreement or the
related Prospectus; and
(3) customary comfort letters, dated as of
the date of Consummation of the Exchange Offer or the
date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Company's
independent accountant, Deloitte & Touche LLP, in the
customary form and covering matters of the type
customarily covered in comfort letters by
underwriters in connection with primary underwritten
offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 7(i) of
the Purchase Agreement, without exception;
(B) set forth in full or incorporate by reference in
the underwriting agreement, if any, the indemnification
provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as
may be reasonably requested by such parties to evidence
compliance with clause (A) above and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company pursuant to this clause
(xi), if any.
If at any time the representations and warranties of the Company
contemplated in clause (A)(1) above cease to be true and correct, the Company
shall so advise the Initial Purchasers and the underwriters(s), if any, and each
selling Holder promptly and, if requested by such Persons, shall confirm such
advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and its respective counsel in connection with the registration and
qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or underwriter(s) may request and do any and all other acts or
things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by any
<PAGE>
Registration Statement; provided, however, that the Company shall not
be required to register or qualify to transact business where it is not
now so qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to matters
and transactions relating to the Registration Statement, in any
jurisdiction where it is not now so subject;
(xiii) shall issue, upon the request of any Holder of Senior
Notes covered by the Shelf Registration Statement, Exchange Notes,
having an aggregate principal amount equal to the aggregate principal
amount of Senior Notes surrendered to the Company by such Holder in
exchange therefor or being sold by such Holder; such Exchange Notes to
be registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the Senior
Notes held by such Holder shall be surrendered to the Company for
cancellation;
(xiv) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities to
be sold and not bearing any restrictive legends; and enable such
Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any,
may request at least two business days prior to any sale of Transfer
Restricted Securities made by such underwriter(s);
(xv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with
or approved by such other governmental agencies or authorities as may
be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii)
above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement and provide the Trustees under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with The Depository Trust Company;
(xviii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter (including any "qualified independent
underwriter") that is required to be retained in accordance with the
rules and regulations of the NASD, and use its reasonable best efforts
to cause such Registration Statement to become effective and approved
by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to consummate
the disposition of such Transfer Restricted Securities;
(xix) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not be audited) for the twelve-month period (A) commencing
at the end of any fiscal quarter in which Transfer Restricted
Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration
Statement;
<PAGE>
(xx) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate
with the Trustee and the Holders of Notes to effect such changes to the
Indenture as may be required for such Indenture to be so qualified in
accordance with the terms of the TIA; and execute and use its best
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner;
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on
which similar securities issued by the Company is then listed if
requested by the Holders of a majority in aggregate principal amount of
Senior Notes or the managing underwriter(s), if any; and
(xxii) provide promptly to each Holder upon request each
document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof,
or until it is advised in writing (the "Advice") by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If so
directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice.
<PAGE>
Section 7. REGISTRATION EXPENSES
(a) All expenses associated with and incident to the Company's
performance of or compliance with this Agreement will be borne by the Company,
regardless of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses (including
filings made by the Initial Purchasers or any Holder with the NASD and
reasonable counsel fees and disbursements in connection therewith (and, if
applicable, the fees and expenses of any "qualified independent underwriter" and
its counsel that may be required by the rules and regulations of the NASD));
(ii) all reasonable fees and disbursements of compliance with federal securities
and state Blue Sky or securities laws (including all fees and expenses of
counsel to the underwriter(s) in connection with compliance with state Blue Sky
or securities laws); (iii) all expenses of printing (including printing
certificates for the Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company and, subject to Section
7(b) below, the Holders of Transfer Restricted Securities; (v) all application
and filing fees, if any, in connection with listing the Notes on a national
securities exchange or automated quotation system pursuant to the requirements
hereof; (vi) all fees and expenses of the Trustee under the Indenture to the
extent provided in the Indenture and of any escrow agent, custodian or exchange
agent; and (vii) all fees and disbursements of independent certified public
accountants of the Company (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company shall, in any event, bear its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and the
fees and expenses of any Person, including special experts, retained by the
Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company shall reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Latham & Watkins or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
Section 8. INDEMNIFICATION
(a) Indemnification by the Company. Upon any registration of Transfer
Restricted Securities or Broker-Dealer Transfer Restricted Securities, as
applicable, pursuant to Sections 3 and 4 hereof, and in consideration of the
agreements of the Initial Purchasers contained herein, and as an inducement to
the Initial Purchasers to purchase the Notes, the Company shall and hereby
agrees to, (i) indemnify and hold harmless each Holder of Transfer Restricted
Securities and Broker-Dealer Transfer Restricted Securities, as applicable, to
<PAGE>
be included in such registration and each person who participates as a placement
or sales agent or as an underwriter in any offering or sale of such Transfer
Restricted Securities or Broker-Dealer Transfer Restricted Securities, as
applicable, against any losses, claims, damages or liabilities, joint or
several, to which such Holder, agent or underwriter may become subject under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement under which such Transfer Restricted Securities or Broker-Dealer
Transfer Restricted Securities, as applicable, were registered under the Act, or
any preliminary, final or summary Prospectus contained therein or furnished by
the Company to any such Holder, agent or underwriter, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) reimburse such
Holder, such agent and such underwriter for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable under (i) above to any such person in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, or preliminary, final or
summary Prospectus, or amendment or supplement thereto, in reliance upon and in
conformity with written information furnished to the Company by such person
expressly for use therein.
(b) Indemnification by the Holders and any Agents and Underwriters. The
Company may require, as a condition to including any Transfer Restricted
Securities or Broker-Dealer Transfer Restricted Securities, as applicable, in
any Registration Statement filed pursuant to Sections 3 and 4 hereof and to
entering into any underwriting agreement, if any, with respect thereto, that the
Company shall have received an undertaking reasonably satisfactory to them from
the Holders of such Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, and from each underwriter named in any
such underwriting agreement, if any, severally and not jointly, to (i) indemnify
and hold harmless the Company, and, in the case of a Shelf Registration
Statement, all other Holders of Transfer Restricted Securities, against any
losses, claims, damages or liabilities to which the Company, or such other
Holders of Transfer Restricted Securities or Broker-Dealer Transfer Restricted
Securities, as applicable, may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such Registration Statement, or any
preliminary, final or summary Prospectus contained therein or furnished by the
Company to any such Holder, agent or underwriter if any, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Holder or
underwriter expressly for use therein, and (ii) reimburse the Company for any
legal or other expenses reasonably incurred by the Company in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that no such Holder shall be required to undertake
liability to any person under this Section 8(b) for any amounts in excess of the
dollar amount of the proceeds to be received by such Holder from the sale of
<PAGE>
such Holder's Transfer Restricted Securities or Broker-Dealer Transfer
Restricted Securities, as applicable, pursuant to such registration.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indemnification provisions of
or contemplated by this Section 8, notify such indemnifying party in writing of
the commencement of such action; but the omission so to notify the indemnifying
party shall not relieve it from any liability which it may have to any
indemnified party other than under the indemnification provisions of or
contemplated by Section 8(a) or 8(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, such indemnifying party shall not be liable to such
indemnified party for any legal expenses of other counsel or any other expenses,
in each case subsequently incurred by such indemnified party, in connection with
the defense thereof other than reasonable costs of investigation.
Notwithstanding the foregoing, any indemnified party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless the indemnified party shall have been advised by
counsel that representation of the indemnified party by counsel provided by the
indemnifying party would be inappropriate due to actual or potential conflicting
interests between the indemnifying party and the indemnified party, including
situations in which there are one or more legal defenses available to the
indemnified party that are different from or additional to those available to
the indemnifying party; provided, however, that the indemnifying party shall
not, in connection with any one such action or proceeding or separate but
substantially similar actions or proceedings arising out of the same general
allegations, be liable for the fees and expenses of more than one separate firm
of attorneys at any time for all indemnified parties, except to the extent that
local counsel, in addition to its regular counsel, is required in order to
effectively defend against such action or proceeding. The indemnifying party
shall not be required to indemnify any indemnified party for any amount paid or
payable by such indemnified party in the settlement of any action, proceeding or
investigation without the written consent of the indemnifying party, which
consent shall not be unreasonably withheld. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act by or on behalf of any indemnified party.
(d) Contribution. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 8(a) or Section 8(b) are
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, claims damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
<PAGE>
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the indemnifying party and the
indemnified party in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. It is understood that
contribution under this subsection (d) is unavailable to indemnified parties to
the same extent that indemnification is unavailable under the proviso at the end
of subsection (a) above. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 8(d) were determined by
pro rata allocation (even if the Holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 8(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such Holder from the sale of any Transfer Restricted Securities
(after deducting any fees, discounts and commissions applicable thereto) or
Broker-Dealer Transfer Restricted Securities, as applicable, exceeds the amount
of any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission, and no
underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Transfer Restricted Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The Holders'
and any underwriters' obligations in this Section 8(d) to contribute shall be
several in proportion to the principal amount of Transfer Restricted Securities
or Broker-Dealer Transfer Restricted Securities, as applicable, registered or
underwritten, as the case may be, by them and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer, director and partner of
each Holder, agent and underwriter and each person, if any, who controls any
Holder, agent or underwriter within the meaning of the Act; and the obligations
of the Holders and any underwriters contemplated by this Section 8 shall be in
addition to any liability which the respective Holder or underwriter may
otherwise have and shall extend, upon the same terms and conditions, to each
<PAGE>
officer and director of the Company (including any person who, with his consent,
is named in any Registration Statement as about to become a director of the
Company) and to each person, if any, who controls the Company within the meaning
of the Act.
Section 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
Section 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
Section 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; provided, that such investment bankers and managers must be
reasonably satisfactory to the Company.
Section 12. MISCELLANEOUS
(a) Remedies. The Company agrees that monetary damages (including the
liquidated damages contemplated hereby) would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not Previously
entered into any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
<PAGE>
(c) Adjustments Affecting the Notes. The Company shall not take any
action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate the
Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company:
Adelphia Communications Corporation
Main at Water Street
Coudersport, PA 16915
Telecopier No.: (814) 274-7098
Attention: Tim Rigas
With a copy to:
Buchanan Ingersoll Professional Corporation
1 Oxford Center
301 Grant Street, 20th Floor
Pittsburgh, PA 15219
Telecopier No.: (412) 562-1041
Attention: Carl Rothenberger
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
<PAGE>
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in Separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the Notes, the
Indenture and the Purchase Agreement is intended by the parties as a final
expression of their agreement and intended to he a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
[signature page follows]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ADELPHIA COMMUNICATIONS CORPORATION
By:/s/ Daniel R. Milliard
Name: Daniel R. Milliard
Title: Senior Vice President
SALOMON SMITH BARNEY INC.
By: /s/ Todd C. Alexander
Name: Todd C. Alexander
Title: Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By:/s/ Joseph A. Coneeny
Name: Joseph A. Coneeny
Title: Managing Director
GOLDMAN, SACHS & CO.
By:/s/ Goldman Sachs & Co.
Name:
Title:
LEHMAN BROTHERS INC.
By: /s/ Arlene Salmonson
Name: Arlene Salmonson
Title: Vice President
NATIONSBANC MONTGOMERY SECURITIES LLC
By:/s/ David G. James
Name: David G. James
Title: Principal
EXHIBIT 99.01
FOR IMMEDIATE RELEASE
January 21, 1999
Contact: Tim Rigas, Adelphia Communications Corporation, (814) 274-9830
ADELPHIA ACQUIRES VERTO COMMUNICATIONS CABLE SYSTEM
COUDERSPORT, PA, - Adelphia Communications Corporation (Adelphia) (NASDAQ:
ADLAC) today announced that Adelphia has completed the acquisition of Verto
Communications, Inc. and its cable system serving approximately 56,000
subscribers in the greater Scranton, Pennsylvania area. Adelphia issued
approximately 2.56 million shares of its Class A Common Stock and assumed
approximately $35 million of net liabilities of Verto in the transaction.
Following this transaction, Adelphia will provide service to approximately
100,000 cable television customers from one headend in Scranton, Pennsylvania.
Adelphia Communications Corporation is the seventh largest domestic cable
television operator, currently providing cable television service to
approximately 2.4 million customers.
Exhibit 99.02
FOR IMMEDIATE RELEASE
January 28, 1999
Contact: Tim Rigas, Adelphia Communications Corporation, (814) 274-9830
ADELPHIA ANNOUNCES REPURCHASE AGREEMENTS WITH
FPL GROUP, INC. ON ADELPHIA STOCK AND OLYMPUS INTERESTS
COUDERSPORT, PA, - Adelphia Communications Corporation (Adelphia) (NASDAQ:
ADLAC) today announced that Adelphia has reached an agreement to repurchase the
Adelphia stock owned by Telesat Cablevision, Inc., a subsidiary of FPL Group,
Inc. (NYSE: FPL) and to acquire the interests held by Telesat in Adelphia's
joint venture partnership, Olympus Communications, L.P.
Adelphia has agreed to purchase from Telesat the 1,091,524 shares of Adelphia
Class A Common Stock it owns, and the 20,000 shares of Adelphia Convertible
Preferred Stock it owns which are convertible into an additional 2,358,490
shares of Class A Common Stock, for a fully diluted total of 3,450,014 shares.
Adelphia and Telesat also agreed to a redemption of Telesat's interests in
Olympus by July 11, 1999. The transaction is subject to applicable approvals of
third parties or governmental authorities.
The aggregate purchase price for these transactions will be approximately
$257,213,000.
Adelphia Communications Corporation is the seventh largest domestic cable
television operator, currently providing cable television service to over 2.4
million customers.
