<PAGE>
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1997
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 33-72468
33-72468-01
THE HELICON GROUP, L.P.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 4841 22-3248703
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
incorporation or organization) Classification Code Number)
</TABLE>
HELICON CAPITAL CORP.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
Delaware 4841 22-3248702
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer Identification No.)
incorporation or organization) Classification Code Number)
</TABLE>
630 Palisade Avenue
Englewood Cliffs, New Jersey 07632
(201) 568-7720
(Address, including Zip Code and telephone number,
including area code, of registrants' principal executive offices)
Indicate by check mark whether the Registrants: (1) have filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrants were required to file such reports), and (2) have been subject to
such filing requirements for the past 90 days.
Yes X No
--- ---
The number of shares outstanding of the common stock of Helicon Capital Corp.,
as of November 12, 1997: 100.
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
INDEX
<TABLE>
<CAPTION>
PART I. FINANCIAL INFORMATION PAGE
---------
<S> <C>
Unaudited Condensed Consolidated Balance Sheets as at December 31, 1996 and
September 30, 1997............................................................... 3
Unaudited Condensed Consolidated Statements of Operations for the three-month and
nine-month periods ended September 30, 1996 and 1997............................. 4
Unaudited Condensed Consolidated Statement of Changes in Partners' Deficit for the
nine-month period ended September 30, 1997....................................... 5
Unaudited Condensed Consolidated Statements of Cash Flows for the nine-month period
ended September 30, 1996 and 1997................................................ 6
Notes to Unaudited Condensed Consolidated Financial Statements..................... 7 and 9
Management's Discussion and Analysis of Financial Condition and Results of
Operations....................................................................... 10--16
PART II. OTHER INFORMATION
Exhibits and Reports on Form 8-K................................................... 17
Signature Page..................................................................... 18
</TABLE>
2
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
SEPTEMBER 30, 1997
DECEMBER 31, 1996(a) (UNAUDITED)
-------------------- ------------------
<S> <C> <C>
ASSETS
Cash and cash equivalents............................................... $ 5,751,189 $ 5,774,035
Receivables from subscribers............................................ 795,568 888,046
Prepaid expenses and other assets....................................... 959,916 1,699,129
Property, plant and equipment, net...................................... 28,887,133 35,526,326
Intangible assets and deferred costs, net............................... 21,751,852 31,963,110
-------------------- ------------------
Total assets...................................................... $ 58,145,658 $ 75,850,646
-------------------- ------------------
-------------------- ------------------
LIABILITIES AND PARTNERS' DEFICIT
Liabilities:
Accounts payable.................................................... $ 2,907,235 $ 2,431,020
Accrued expenses.................................................... 518,625 559,976
Subscriptions received in advanced.................................. 371,464 408,269
Accrued interest.................................................... 2,155,526 5,270,832
Due to principal owner.............................................. 5,000,000 5,000,000
Senior secured notes................................................ 115,000,000 115,000,000
Loans payable to bank............................................... 1,497,223 20,279,028
Other notes payable................................................. 2,885,044 3,037,770
Due to affiliates................................................... 406,304 97,424
-------------------- ------------------
Total liabilities................................................. 130,741,421 152,084,319
-------------------- ------------------
Partners' deficit:
Accumulated partners' deficit....................................... (72,594,763) (76,232,673)
Less capital contribution receivable................................ (1,000) (1,000)
-------------------- ------------------
Total partners' deficit........................................... (72,595,763) (76,233,673)
-------------------- ------------------
Total liabilities and partners' deficit........................... $ 58,145,658 $ 75,850,646
-------------------- ------------------
-------------------- ------------------
</TABLE>
- ------------------------
(a) Balance Sheet at December 31, 1996 has been derived from Audited
Consolidated Financial Statements at that date.
See accompanying notes to unaudited condensed consolidated financial statements.
3
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
Unaudited Condensed Consolidated Statements of Operations
Three-Month and Nine-Month Periods Ended September 30, 1996 and 1997
<TABLE>
<CAPTION>
THREE NINE
MONTHS MONTHS
ENDED ENDED
SEPTEMBER SEPTEMBER
30, 30,
---------------------------- ----------------------------
1996 1997 1996 1997
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Revenues............................................. $ 9,440,447 $ 11,120,491 $ 28,312,621 $ 31,816,821
------------- ------------- ------------- -------------
Operating Expenses:
Operating expenses................................. 2,553,745 3,156,855 7,697,801 8,985,707
General and administrative expenses................ 1,521,675 1,662,219 4,464,092 4,849,817
Marketing expenses................................. 243,523 363,412 797,806 1,001,283
Depreciation and amortization...................... 2,516,575 3,084,267 7,423,568 8,187,073
Management fee charged by affiliate................ 471,985 556,019 1,415,593 1,590,837
Corporate and other expenses....................... 87,871 106,063 249,798 301,625
------------- ------------- ------------- -------------
Total operating expenses....................... 7,395,374 8,928,835 22,048,658 24,916,342
------------- ------------- ------------- -------------
Operating income............................... 2,045,073 2,191,656 6,263,963 6,900,479
Interest expense..................................... (3,379,126) (3,860,069) (10,109,798) (10,634,895)
Interest income...................................... 57,743 27,438 158,774 96,506
------------- ------------- ------------- -------------
Net loss....................................... $ (1,276,310) $ (1,640,975) $ (3,687,061) $ (3,637,910)
------------- ------------- ------------- -------------
------------- ------------- ------------- -------------
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
4
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
Unaudited Condensed Consolidated Statement of Changes in Partners' Deficit
Nine-Month Period Ended September 30, 1997
<TABLE>
<CAPTION>
ACCUMULATED PARTNERS'
DEFICIT
---------------------------
<S> <C> <C> <C> <C>
CAPITAL
GENERAL LIMITED CONTRIBUTION
PARTNERS PARTNERS RECEIVABLE TOTAL
----------- -------------- ------------ -------------
Balance at December 31, 1996........................... $ (359,419) $ (72,235,344) $ (1,000) $ (72,595,763)
Net Loss............................................... (36,379) (3,601,531) -- (3,637,910)
----------- -------------- ------------ -------------
Balance at September 30, 1997.......................... $ (395,798) $ (75,836,875) $ (1,000) $ (76,233,673)
----------- -------------- ------------ -------------
----------- -------------- ------------ -------------
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
5
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
Unaudited Condensed Consolidated Statements of Cash Flows
Nine- Month Period Ended September 30, 1996 and 1997
<TABLE>
<CAPTION>
1996 1997
------------- -------------
<S> <C> <C>
Cash flows from operating activities:
Net loss.......................................................................... $ (3,687,061) $ (3,637,910)
------------- -------------
Adjustments to reconcile net loss to net cash provided by operating activities:
Depreciation and amortization................................................... 7,423,568 8,187,073
(Gain) loss on sale of equipment................................................ (16,575) 2,310
Interest on other notes payable added
to principal.................................................................... 168,328 185,160
Financing costs incurred........................................................ -- (400,000)
Amortization of debt discount and deferred financing costs...................... 1,596,964 30,000
Change in operating assets and liabilities:
Decrease (increase) in receivables from subscribers........................... 210,762 (92,478)
Increase in prepaid expenses and other assets................................. (270,145) (739,213)
Decrease in accounts payable and accrued expenses............................. (731,746) (490,075)
Increase in subscriptions received in advance................................. 88,362 36,805
Increase in accrued interest.................................................. 2,545,057 3,115,306
------------- -------------
Total adjustments........................................................... 11,014,575 9,834,888
------------- -------------
Net cash provided by operating activities................................... 7,327,514 6,196,978
------------- -------------
Cash flows from investing activities:
Purchases of property, plant and equipment........................................ (3,134,827) (2,935,814)
Proceeds from sales of equipment.................................................. 18,147 19,891
Cash paid for net assets of cable television systems acquired..................... -- (21,239,843)
Cash paid for net assets of internet business acquired............................ (40,000) --
Increase in intangible assets and defferred costs................................. (30,405) (27,933)
------------- -------------
Net cash used in investing activities....................................... (3,187,085) (24,183,699)
------------- -------------
Cash flows from financing activities:
Proceeds from bank loans.......................................................... 400,000 20,285,000
Repayment of bank loans........................................................... (544,444) (1,503,194)
Repayment of other notes payable.................................................. (347,626) (686,489)
Advances to affiliates............................................................ (1,021,580) (1,138,926)
Repayments of advances to affiliates.............................................. 1,180,450 1,053,176
------------- -------------
Net cash (used) provided by financing activities............................ (333,200) 18,009,567
------------- -------------
Net increase in cash and cash equivalents................................... 3,807,229 22,846
Cash and cash equivalents at beginning of period.................................... 3,984,816 4,751,189
------------- -------------
Cash and cash equivalents at end of period.......................................... $ 7,792,045 $ 4,774,035
------------- -------------
------------- -------------
Supplemental cash flow information:
Interest paid..................................................................... $ 5,799,449 $ 7,304,429
------------- -------------
------------- -------------
Other non-cash items:
Acquisition of property, plant and equipment through issuance of other notes
payable....................................................................... $ 467,573 $ 654,053
------------- -------------
------------- -------------
Net assets of internet business transferred to affiliate through an intercompany
loan.......................................................................... -- $ 223,130
------------- -------------
------------- -------------
</TABLE>
See accompanying notes to unaudited condensed consolidated financial statements.
6
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1996 AND 1997
(1) ORGANIZATION AND NATURE OF BUSINESS
The Helicon Group, L.P. (the "Partnership" or the "Company") was organized
as a limited partnership on August 10, 1993 under the laws of the State of
Delaware to consolidate the ownership interests of Helicon Group Ltd.
("Helicon"); Terrebonne Cablevision, L.P., Roxboro Cablevision Associates,
L.P., and Vermont Cablevision Associates, L.P. (collectively, the
"Predecessor Companies") in connection with a roll-up plan completed on
November 3, 1993 (the "roll-up"). As a result of the roll-up, the
Partnership acquired substantially all of the operating assets and
agreements of all the cable television systems which were previously owned
by the Predecessor Companies and the stockholders and the partners of the
Predecessor Companies became limited partners of the Partnership. The
Company operates under the name of "Helicon Cable Communications". The
general partner of the Company is Baum Investments, Inc., a Delaware
Corporation, which is 100% owned by Mr. Baum. On April 8, 1996, the Company
became 99% owned by Helicon Partners I, L.P. ("HPI") and 1% owned by Baum
Investments, Inc., the general partner. The Company is managed by Helicon
Corp., an affiliated management company.
The Partnership operates cable television systems located in Pennsylvania,
West Virginia, North Carolina, Louisiana, Vermont and New Hampshire.
(2) BASIS OF PRESENTATION
In the opinion of management, the accompanying unaudited condensed
consolidated financial statements of the Partnership and its wholly owned
incorporated entity, Helicon Capital Corp. ("HCC"), reflect all adjustments,
consisting of normal recurring accruals, necessary to present fairly the
Partnership's Consolidated financial position as at September 30, 1997, and
their results of operations for the three month and nine month periods ended
September 30, 1996 and 1997 and cash flows for the nine month periods ended
September 30, 1996 and 1997. Information included in the condensed
consolidated balance sheet at December 31, 1996 has been derived from the
audited consolidated balance sheet in the Partnership's and HCC's Annual
Report on Form 10-K for the year ended December 31, 1996 (the "1996 Form
10-K") filed with the Securities and Exchange Commission. The unaudited
consolidated financial statements and these notes have been condensed;
therefore, they do not contain all of the disclosures required by generally
accepted accounting principles and should be read in conjunction with the
consolidated financial statements and the other information in the 1996 Form
10-K.
HCC had nominal assets as of September 30, 1997 and had no operations from
the date of incorporation to September 30, 1997. All intercompany accounts
have been eliminated in consolidation. The results of operations for the
nine month periods ended September 30, 1996 and 1997 are not necessarily
indicative of the results for a full year.
7
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1996 AND 1997
3) ACQUISITIONS
On March 22, 1996, the Partnership acquired the net assets of a telephone
dial-up internet access provider, serving approximately 350 customers in and
around the area of Uniontown, Pennsylvania. The aggregate purchase price was
$40,000.
On April 8, 1996, the Company acquired a 1% interest in HPI Acquisition Co.,
LLC ("HPIAC"), a Delaware limited liability company for $1,000. The balance
of HPIAC is owned by HPI. HPIAC was formed to acquire interests in cable
television systems and related businesses. The Company's 1% interest in
HPIAC's net loss to date is not material.
On January 31, 1997, the Partnership acquired a cable television system,
serving approximately 823 subscribers in the West Virginia counties of Wirt
and Wood. The aggregate purchase price was $1,053,457 and was allocated to
the net assets acquired which included property and equipment and intangible
assets.
On June 26, 1997, the Partnership acquired the net assets of a cable
television system serving approximately 11,000 subscribers in the North
Carolina communities of Watauga County, Blowing Rock, Beech Mountain and the
town of Boone. The aggregate purchase price was $20,186,386 and was
allocated to the net assets acquired which included, property, equipment and
intangible assets. The Company utilized its available cash and the proceeds
from a new credit facility it entered into with Banque Paribas consisting of
$20,000,000 senior secured term loan facility to complete the acquisition
(see Loans Payable--Banks below).
4) LOANS PAYABLE--BANKS
On June 26, 1997, the Company entered into a $20,000,000 senior secured
credit facility with Banque Paribas (the 1997 Credit Facility). The facility
is non-amortizing and is due November 1, 2000. Borrowings under the facility
financed the acquistion of certain cable television assets in North Carolina
(see acquistion note above). Interest on the $20,000,000 outstanding are
payable at specified margins over either LIBOR or the rate of interest
publicly announced in New York City by The Chase Manhattan Bank from time to
time as its prime commercial lending rate. The margins vary based on the
Company's total leverage ratio, as defined, at the time of an advance.
Currently interest is payable at LIBOR plus 2.75%.
The 1997 Credit Facility is secured by a first perfected security interest
in all of the assets of the Company and a pledge of all equity interests of
the Company. The credit agreement contains various restrictive covenants
that include the achievement of certain financial ratios relating to
interest, fixed charges, leverage, limitations on capital expenditures,
incurrence or guarantee of indebtedness, transactions with affiliates and
distributions to members. In addition, management fees accrue at 5% of gross
revenues.
On June 23, 1997, the 1994 Credit Facility was repaid in full and the 1994
Credit Facility was terminated.
8
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1996 AND 1997
5) OTHER EVENTS
On April 1, 1997, the Company transferred the net assets of the telephone
dial-up internet access provider business to HPI. The transfer was recorded
at the carrying value of those assets at that date of $223,130 and the
Company made an intercompany loan due on demand to HPI in this amount.
9
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
SEPTEMBER 30, 1996 AND 1997
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
GENERAL
The Helicon Group, L.P. (the "Partnership") incurred a net loss for the
three and nine months ended September 30, 1996 and 1997, respectively. The
principal items contributing to the Partnership's net losses are the high level
of expenses relating to depreciation, amortization and interest. These expenses
are the result of capital expenditures related to continued expansion and
rebuilding of the systems, the Partnership's acquisitions and its financing
activities. The Partnership believes that recurring net losses are common for
cable television companies and expects that such net losses will continue. The
Partnership believes that available working capital and cash flows generated
from operations will be sufficient to meet its operating needs and future
commitments. See "Liquidity and Capital Resources" below.
RECENT CABLE REGULATORY DEVELOPMENTS.
The Telecommunications Act of 1996, Public law 104-104, enacted on February
8, 1996 ("1996 Act") instituted sweeping changes in the telecommunications
industries and has significantly increased the potential for competition to
cable television, especially from telephone and electric utilities. The Act
terminated the 1982 federal court consent decree (the "Modified Final Judgment")
that settled the 1974 antitrust suit against AT&T and eliminated the 1984 Cable
Act codification of the FCC telephone cable/ cross-ownership regulations. As a
result, long-distance telephone companies such as AT&T, MCI and Sprint are
eligible to provide local exchange service, and the local exchange carriers,
including the seven Regional Bell Operating Companies, GTE and the smaller
independent telephone carriers, are eligible to provide long-distance service
provided certain pre-conditions are met.
The 1996 Act also permits telephone companies to compete directly with cable
operators by repealing the telephone company-cable television cross-ownership
ban, thereby allowing direct ownership of franchised cable systems. Further, the
FCC's "video dialtone" regulations have been replaced with a more lenient "open
video system" or "OVS" concept. This will allow local exchange carriers
("LEC's"), including the Regional Bell Operating Companies, to compete with
cable both inside and outside their telephone service areas either as common
carrier OVS provider or as a fully franchised cable operator.
The Company anticipates that, over time, it will become subject to
increasing competition from telephone companies, either directly as franchised
operators or as OVS providers. It may also face increasing competition from
electric utilities which have also been permitted to provide telecommunications
services by the 1996 Act. This may have a material, but as yet undetermined,
impact on the Company's operations.
Although the 1996 Act eliminates the telephone/cable cross-ownership
restrictions, it also contains a general prohibition on LEC acquisitions of
cable systems. Cable operators are likewise generally prohibited from acquiring
LEC systems, and joint ventures between cable operators and LEC's are also
banned. There are certain exceptions for cable systems in rural areas and
telephone exchanges and for small telephone companies.
10
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
SEPTEMBER 30, 1996 AND 1997
Under the 1996 Act the Company qualifies for small cable operator status
that effectively removes it from rate regulation. The 1996 Act defines "small
cable operators", as those with fewer than approximately 600,000 subscribers and
less than $250 million gross annual revenues and defines "small cable systems"
as those with less than 50,000 subscribers in the rate regulated franchise area.
Where a system had only one tier of "basic" service as of December 31, 1994, it
is immediately rate deregulated. Where it had a "basic" tier and an upper "CPS"
tier, the CPS tier is immediately rate deregulated. The Company has a CPS tier
only on its Vermont system where the rates are governed by a Social Contract
entered into among the Company and the State of Vermont. The 1996 Act does not
disturb existing or pending rate inquiries. In April 1997 the FCC declared the
Company to be a "small cable operator" under the foregoing standards thereby
deregulating rates for all but the Vermont system's broadcast basic level of
service .
The 1996 Act amends the requirement that cable rates be uniform throughout a
franchise area to exempt situations where the cable operator faces "effective
competition," and by permitting bulk discounts to multiple dwelling units.
However, the FCC retains jurisdiction to investigate complaints of "predatory
pricing". The 1996 Act eliminates the requirement instituted in the 1992 Cable
Act that cable systems must be held for three years prior to sale. The
definition of "cable system" is amended so that competitive providers of video
services will be regulated as a definitional "cable system" only if they use
public rights-of-way. This frees many SMATV and MMDS providers of cable service
from the FCC's cable regulations and restrictions. In addition to the
elimination of the telephone/cable cross-ownership restrictions, the 1996 Act
eliminates the broadcast network/cable cross-ownership restrictions, but leaves
in place FCC regulations prohibiting cross-ownership between local television
stations and cable systems. The FCC is empowered to adopt rules to ensure
carriage, channel positioning and non-discriminatory treatment of non-affiliated
broadcast stations by cable systems affiliated with a broadcast network. The
MMDS/cable cross-ownership restrictions are eliminated for cable operators
subject to effective competition. In October 1997 the FCC revised its inside
wiring rules to permit, under certain circumstances, competitive SMATV and MMDS
services to take over the cable operator's wiring inside the common areas of a
Multiple Dwelling Unit. The Company is unable at this time to assess the impact
of these regulations on its operations.
The 1996 Act requires cable operators, upon subscriber request, to fully
scramble or block at no charge the audio and video portion of any channel not
specifically subscribed to by a household. Further, cable operators are
obligated to fully scramble or block both the audio and video of all sexually
explicit programming. If the cable operator cannot fully scramble or block its
signal, it must restrain distribution to those "safe harbor" hours of the day
when children are unlikely to view the programming. The FCC has adopted an
interim "safe harbor" of 10:00 PM to 6:00 AM pending judicial review of that
provision of the Act. Under the "safe harbor" approach, operators may continue
carrying channels primarily dedicated to sexually explicit adult programming,
even if they were not fully scrambled, as long as the indecent, sexually
explicit programming was limited to the designated late night hours. The
Delaware Federal District Court's Temporary Restraining Order, issued
immediately following passage of the Act, was set aside by the Third Circuit
Court of Appeals, which decision was upheld by the U.S. Supreme Court. While
review of the provision will continue in the courts, operators must, in the
meantime, comply with the scrambling or "safe harbor" requirements.
11
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
SEPTEMBER 30, 1996 AND 1997
The 1996 Act introduces several changes to the regulation of cable pole
attachments that could have an effect on the Company. The FCC is directed to
establish a new formula for poles used by cable operators which will result in
higher pole rental rates. Any increases pursuant to this formula may not begin
for 5 years and will be phased in over a 5 year period thereafter. This new FCC
formula does not apply in states which certify they regulate pole rents. The
1996 Act also requires pole owners to impute pole rentals to themselves if they
offer telecommunications or cable services. Additionally, cable operators need
not pay for future "makeready" on poles currently used if the makeready is
required to accommodate the attachments of another user, including the pole
owner.
Many provisions of the 1996 Act are still the subject of numerous FCC
proceedings looking toward the implementation or clarification of the statutory
dictates. The Company is unable at this time to assess the impact of those
regulations on its operations.
On March 31, 1997, the U.S. Supreme Court issued a decision upholding the
requirement that cable television systems carry all local television broadcast
stations (the "must carry" rules). Contrary to the expectations of most court
observers, the Supreme Court did not find those rules to be an infringement of
cable operators' First Amendment rights. Because those rules require that the
Company set aside as much as one-third of its channel capacity for carriage of
local television broadcast stations, they could have an impact on the Company's
ability to carry new cable programming.
In February 1997, the FCC released its Second Report and Order implementing
revisions to its "Commercial Leased Access" rules for cable television
operators. The FCC has adopted a revised rate formula and implemented other
rules that will facilitate the mandatory leasing of as much as ten to fifteen
percent of a cable operator's channels by unaffiliated commercial entities. The
Company cannot at this time determine the impact on its operations of these
rules.
RESULTS OF OPERATIONS
NINE MONTHS ENDED SEPTEMBER 30, 1997 COMPARED TO NINE MONTHS ENDED SEPTEMBER
30, 1996.
REVENUES. Revenues increased $3,504,200 or 12.4% to $31,816,821.
Approximately 30% of the increase in revenues was attributed to the June 26,
1997 acquisition of a cable television system in North Carolina. The balance of
the increase was primarily due to higher basic service and new program service
rates and strong growth in advertising revenue. Excluding the effects of the
North Carolina acquisition, the average monthly cable revenue per basic
subscriber increased from $35.88 in the 1996 period to $38.95 in the 1997
period. The $3.07 increase reflected primarily i) an increase of $1.65 in basic
revenues; ii) an increase of $.57 due to the new program services; iii) an
increase of $0.74 in advertising revenue; iv) a increase of $.07 in premium
subscription revenue; and v) an increase of $.04 in other services.
12
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
SEPTEMBER 30, 1996 AND 1997
OPERATING, MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES. Operating,
marketing, general and administrative expenses increased $1,877,108 or 14.5% to
$14,836,807. Approximately 30% of the increase in expenses was attributed to the
North Carolina cable television system acquisition and approximately 25%
reflected additional expenses for new and expanded programming services. The
balance of the increase in expenses was consistent with the growth in revenues,
coupled with general cost increases. As a percentage of revenues, operating,
marketing, general and administrative expenses increased from 45.8% to 46.6% in
the 1997 period.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization expenses
increased $763,505 or 10.3% to $8,187,073, primarily as a result of $387,980
higher depreciation charges relating to the North Carolina acquisition and
ongoing capital expenditures in the other cable systems; and, $375,525 higher
amortization expense largely attributed to the North Carolina acquisition.
MANAGEMENT FEE CHARGED BY AFFILIATE. Management fee expenses increased
$175,244 or 12.4% to $1,590,837 consistent with the increase in revenues.
CORPORATE AND OTHER EXPENSES. Corporate and other expenses increased
$51,827 or 20.7% to $301,625.
OPERATING INCOME. Operating income for the nine months ended September 30,
1997 increased $636,516 or 10.2% to $6,900,479 from the $6,263,963 operating
income in the comparable 1996 period. The improvement in operating results was
due to increased profits on higher revenues.
INTEREST EXPENSE. Interest expense increased $525,097 or 5.2% to
$10,634,895. Approximately 85% of the increase in interest expense is associated
with the debt for the North Carolina acquisition. The balance of the increase
was primarily due to higher cash interest expense on the Senior Secured Notes,
which after November 1, 1996, pay interest at the rate of 11% per annum, offset
in part by the absence of non-cash interest expense attributed to the original
issue discount on the Senior Secured Notes which became fully amortized on
November 1, 1996 and lower interest expense on the 1994 Credit Facility which
was repaid on June 26, 1997.
INTEREST INCOME. Interest income decreased $62,268 or 39.2% to $96,506
primarily due to lower average cash balances.
Three Months Ended September 30, 1997 Compared to Three Months Ended
September 30, 1996.
REVENUES. Revenues increased $1,680,044 or 17.8% to $11,120,491.
Approximately 64% of the increase in revenues was attributed to the June 26,
1997 acquisition of a cable television system in North Carolina. The balance
of the increase was primarily due to higher basic service and new program
service rates and strong growth in advertising revenue. Excluding the effects
of the North Carolina acquisition, the average monthly cable revenue per
basic subscriber increased from $35.91 in the 1996 period to $38.27 in the
1997 period. The $2.36 increase reflected primarily i) an increase of $1.41
in basic revenues; ii) an increase of $.54 due to the new program services;
iii) an increase of $.20 in advertising revenue; iv) a increase of $.10 in
premium subscription revenue; and v) an increase of $.11 in other services.
13
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
SEPTEMBER 30, 1996 AND 1997
OPERATING, MARKETING, GENERAL AND ADMINISTRATIVE EXPENSES. Operating,
marketing, general and administrative expenses increased $863,543 or 20.0% to
$5,182,486. Approximately 64% of the increase in expenses was attributed to the
North Carolina cable television system acquisition, and approximately 18.0%
reflected additional expenses for new and expanded programming services. The
balance of the increase in expenses was consistent with the growth in revenues,
coupled with general cost increases. As a percentage of revenues, operating,
marketing, general and administrative expenses increased from 45.7% in the 1996
period to 46.6% in the 1997 period.
DEPRECIATION AND AMORTIZATION. Depreciation and amortization expenses
increased $567,692 or 22.6% to $3,084,267 primarily as a result of $262,957
higher depreciation charges relating to the North Carolina acquisition and
ongoing capital expenditures in the other cable systems; and, $304,735 higher
amortization expense largely attributed to the North Carolina acquisition.
MANAGEMENT FEE CHARGED BY AFFILIATE. Management fee expenses increased
$84,034 or 17.8% to $556,019 consistent with the increase in revenues.
CORPORATE AND OTHER EXPENSES. Corporate and other expenses increased
$18,192 or 20.7% to $106,063.
OPERATING INCOME. Operating income for the three months ended September 30,
1997 increased $146,583 or 7.2% to $2,191,656 from the $2,045,073 operating
income in the comparable 1996 period. The improvement in operating results was
due to increased profits on higher revenues.
INTEREST EXPENSE. Interest expense increased $480,943 or 14.2% to
$3,860,069 primarily due to interest expense associated with the debt for the
North Carolina acquisition, higher cash interest expense on the Senior Secured
Notes, which after November 1, 1996, pay interest at the rate of 11% per annum,
offset in part by the absence of non-cash interest expense attributed to the
original issue discount on the Senior Secured Notes which became fully amortized
on November 1, 1996 and lower interest expense on the 1994 Credit Facility which
was repaid June 26, 1997.
INTEREST INCOME. Interest income decreased $30,305 or 52.5% to $27,438
primarily due to lower average cash balances.
14
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
SEPTEMBER 30, 1996 AND 1997
LIQUIDITY AND CAPITAL RESOURCES
The cable television business requires substantial financing for
construction, expansion and maintenance of the cable plant as well as for
acquisitions. The Company has historically financed its capital needs and
acquisitions through long-term debt and, to a lesser extent, through cash
provided from operating activities. The general availability of bank financing
has been variable over recent years. In 1993, the Company refinanced its 1992
Credit Facility by issuing $115,000,000 aggregate principal amounts 11% Senior
Secured Notes due 2003. In 1994, the Company utilized its available cash and
also entered into a credit facility with another bank consisting of $2,500,000
three year term loan facility, under which none was outstanding at September 30,
1997 and a $2,500,000 one-year line of credit facility with a bank bearing
interest at Prime Plus 1.5%, none of which was outstanding at September 30,
1997, secured by all the assets of the Company (the "1994 Credit Facility"). On
February 23, 1996, the 1994 Credit Facility was amended to include an additional
loan facility of $318,000 and extended to May 31, 1996. On June 28, 1996, the
term loan of the 1994 Credit Facility was extended to May 31, 1997. On June 23,
1997, all balances outstanding under the 1994 Credit Facility were repaid in
full and the 1994 Credit Facility was terminated. On June 26, 1997, the Company
entered into a new credit facility (the 1997 Credit Facility) with a new bank
consisting of $20,000,000 senior secured term loan facility due November 1,
2000, bearing interest at LIBOR plus 2.75%, under which $20,000,000 was
outstanding at September 30, 1997, secured by all the assets of the Company. The
proceeds of the 1997 Credit Facility was used to acquire certain cable
television assets in North Carolina. On February 24, 1997, the Company entered
into a $285,000 loan agreement with a new bank, under which $279,028 was
outstanding at September 30, 1997. The proceeds of this new loan were used to
construct the Company's new office building in Vermont which secures the loan.
(See Credit Agreements of the Company, below).
The Company operates at low and sometimes negative working capital levels.
This is primarily due to account payable balances which often include
significant amounts for capital expenditures. Such payables are paid when due
from available cash balances, including cash generated from operations up to the
date of payment.
Cash flows provided by operating activities amounted to $7,327,514 and
$6,196,978 for the nine months ended September 30, 1996 and 1997, respectively.
The decline in cash generated from operations in the 1997 period compared to the
1996 period resulted primarily from higher cash interest expense on the 1997
Credit Facility and the Senior Secured Notes, the absence of the 1996
amortization of debt discount (non cash interest), the payment of financing
costs on the 1997 Credit Facility, offset in part by increased revenues that
were in excess of the increases in cash operating costs.
Net cash used in investing activities amounted to $3,187,085 and $24,183,699
for the nine months ended September 30, 1996 and 1997, respectively, and
included the following:
- - In the 1996 period, the Partnership incurred $3,134,827 in capital
expenditures related to the expansion and rebuilding of the Systems, paid
$40,000 in connection with the acquisition of equipment and intangibles of an
internet access provider and incurred $30,405 in other deferred costs.
15
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
SEPTEMBER 30, 1996 AND 1997
- - In the 1997 period, the Partnership incurred $2,935,814 in capital
expenditures related to the expansion and rebuilding of the Systems, paid
$21,239,843 in connection with the acquisition of property, plant and
equipment and intangibles of a cable television system and incurred $27,933 in
other deferred costs.
Net cash used by financing activities amounted to $333,200 for the nine
months ended September 30, 1996 compared to $18,009,567 cash provided by
financing activities for the nine months ended September 30, 1997, which
included the following:
- - In the 1996 and 1997 period, the Partnership borrowed $400,000 and
$20,285,000, respectively, and made principal repayments of $544,444 and
$1,503,194 respectively, under its bank credit facilities.
- - In the 1996 and 1997 period, the Partnership made repayments of notes payable
in the amounts of $347,626 and $686,489, respectively, which represented
principal repayments under the Partnership's equipment credit facilities.
- - Advances to other affiliates and repayments of such advances result from
management fees and other reimbursable expenses.
CREDIT AGREEMENTS OF THE PARTNERSHIP. On September 30, 1997, the
Partnership had cash, cash equivalents and certificates of deposits aggregating
and totaling $5,774,035 and the following credit arrangements: (i) $115,000,000
aggregate principal amount of 11% Senior Secured Notes due 2003; (ii) the new
1997 Credit Facility with a bank which consisted of a $20,000,000 senior secured
term loan facility due November 1, 2000, all of which was outstanding, bearing
interest at LIBOR plus 2.75%, secured by all the assets of the Company; (iii)
$2,036,764 10% Note due August 20, 2000 to Simmons Communications Partnership,
L.P.; (iv) $5,000,000 principal amount in favor of the principal owner pursuant
to a Prime Plus 2% Subordinated Note which has no due date and may only be
repaid, subject to the passage of certain limiting tests prior to repayment of
the Notes; (v) $285,000 loan facility from a bank, of which $279,028 was
outstanding, bearing interest at Prime Plus 1.0% due March 1, 2012, used to
finance the Partnership's new office building in Vermont; and (vi) $1,001,006 of
certain other equipment credit facilities with various due dates not exceeding
four years.
The Partnership believes that available working capital and cash flows
generated from operations will be sufficient to allow it to meet its planned
capital expenditures and meet its debt obligations and cover its other short and
long-term liquidity needs. Also, while the Partnership presently sees no reason
to do so, it could adjust scheduled capital expenditures if the Partnership's
liquidity position so warrants.
INFLATION
Certain of the Partnership's expenses, such as those for wages and benefits,
for equipment repair and replacement, and for billing and marketing, increase
with general inflation. However, the Partnership does not believe that its
financial results have been, or will be, adversely affected by inflation,
provided that it is able to increase its service rates periodically.
16
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
SEPTEMBER 30, 1996 AND 1997
ITEM 6 EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibit 10.1 Loan Agreement dated as of June 26, 1997 by and among the
Company, Banque Paribas, and the other lenders party thereto.
Exhibit 10.2 Subsidiary Guaranty and Security Agreement dated as of
June 26, 1997 by and among the Company, HCC and Banque Paribas.
Exhibit 10.3 Intercreditor Agreement dated as of June 26,1997 among Banque
Paribas as agent under the credit agreement, Fleet National Bank, HCC and the
Company.
(b) A Report on Form 8-KA was filed on September 10, 1997 reporting an event
under Item 2 on Form 8-K.
17
<PAGE>
THE HELICON GROUP, L.P. AND WHOLLY OWNED
INCORPORATED ENTITY
SEPTEMBER 30, 1996 AND 1997
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrants have duly caused this Report to be signed on their behalf by the
undersigned, thereunto duly authorized.
<TABLE>
<S> <C>
Dated: November 12, 1997 THE HELICON GROUP, L.P.
(Registrant)
By: /s/ HERBERT J. ROBERTS
---------------------------------
Name: Herbert J. Roberts
Title: Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
HELICON CAPITAL CORP.
Name: Herbert J. Roberts
Dated: November 12, 1997 By: /s/ HERBERT J. ROBERTS
---------------------------------
Name: Herbert J. Roberts
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
</TABLE>
18
<PAGE>
Exhibit 10.1
CREDIT AGREEMENT
by and among
THE HELICON GROUP, L.P.,
THE LENDERS PARTY HERETO,
AND
BANQUE PARIBAS, AS AGENT
________________
$20,000,000
________________
Dated as of June 26, 1997
<PAGE>
CREDIT AGREEMENT, dated as of June 26, 1997, by and among THE HELICON
GROUP, L.P., a Delaware limited partnership (the "Borrower"), the lenders party
hereto (together with their respective assigns, the "Lenders", each a "Lender"),
and BANQUE PARIBAS, as agent for the Lenders (in such capacity, the "Agent").
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1. Definitions
As used in this Agreement, terms defined in the preamble have the
meanings therein indicated, and the following terms have the following
meanings:
"ABR Advances": the Loans (or any portions thereof), at such time as
they (or such portions) are made and/or being maintained at a rate of interest
based upon the Alternate Base Rate.
"Accountants": KPMG Peat Marwick LLP (or any successor thereto), or
such other firm of certified public accountants of recognized national standing
selected by the Borrower and reasonably satisfactory to the Agent.
"Acquisition": with respect to any Person, the purchase or other
acquisition by such Person, by any means whatsoever (including through a
merger, dividend or otherwise and whether in a single transaction or in a
series of related transactions), of (i) any Capital Stock of any other Person
if, immediately thereafter, such other Person would be either a Subsidiary of
such Person or otherwise under the control of such Person, (ii) any business,
going concern or division or segment of any other Person, or (iii) any
Property of any other Person other than in the ordinary course of business,
provided, how ever, that no acquisition of a CATV System or all or substantially
all of the assets of such other Person shall be deemed to be in the ordinary
course of business.
"Advance": an ABR Advance or a Eurodollar Advance, as the case may be.
"Affected Advance": as defined in Section 3.7.
<PAGE>
"Affiliate": as to any Person, any other Person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, control of a Person shall mean
the power, direct or indirect, (i) to vote 10% or more of the securities or
other interests having ordinary voting power for the election of directors or
other managing Persons thereof or (ii) to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Affiliate Note": the note, dated as of August 20, 1992, in the
original principal amount of $5,000,000 issued by Helicon Group Ltd. to Theodore
Baum, as the same may be amended, supplemented or otherwise modified in
accordance with Section 7.11.
"Aggregate Commitment Amount": at any time, the sum at such time of
the Commitment Amounts of all Lenders.
"Aggregate Credit Exposure": at any time, the sum at such time of the
outstanding principal balance of the Loans of all Lenders.
"Agreement": this Credit Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Alternate Base Rate": on any date, a rate of interest per annum equal
to the higher of (i) the Federal Funds Rate in effect on such date plus 1/2 of
1% or (ii) the Prime Rate in effect on such date.
"Annualized Operating Cash Flow": as at any date of determination
thereof, Operating Cash Flow for the most recently ended fiscal quarter times
four.
"Applicable Lending Office": in respect of any Lender, (i) in the case
of such Lender's ABR Advances, its Domestic Lending Office and (ii) in the case
of such Lender's Eurodollar Advances, its Eurodollar Lending Office.
"Applicable Margin": with respect to the unpaid principal balance of
ABR Advances and Eurodollar Advances, in each case at all times during the
period that the applicable Pricing Level set forth below is in effect, the
percentage set forth below next to such Pricing Level under the applicable
column:
<PAGE>
Applicable Margin (Type of Advance)
----------------------------------
Pricing Level ABR Eurodollar
---------------- ------ ------------
Pricing Level I 1.75% 2.75%
Pricing Level II 1.50% 2.50%
Pricing Level III 1.25% 2.25%
Pricing Level IV 1.00% 2.00%
Pricing Level V 0.75% 1.75%
Pricing Level VI 0.50% 1.50%
Pricing Level VII 0.25% 1.25%.
Changes in the Applicable Margin resulting from a change in a Pricing
Level shall be based upon the Compliance Certificate most recently delivered
pursuant to Section 6.1(c) and shall become effective on the date such
Compliance Certificate is delivered to the Agent and the Lenders.
Notwithstanding anything to the contrary contained in this definition, (i) if,
at any time and from time to time, the Borrower shall be in Default of its
obligations under Section 6.1(c), Pricing Level I shall apply until such Default
is cured, and (ii) during the period commencing on the Effective Date and ending
on the date of delivery thereafter of the first Compliance Certificate pursuant
to Section 6.1(c), Pricing Level I shall apply.
"Approved Bank": any bank whose (or whose parent company's) unsecured
non-credit supported short-term commercial paper rating from (i) Standard &
Poor's is at least A-1 or the equivalent thereof or (ii) Moody's is at least P-1
or the equivalent thereof.
"Assignment and Acceptance Agreement": an assignment and acceptance
agreement executed by an assignor and an assignee, substantially in the form
of Exhibit H.
"Authorized Signatory": as to (i) any Person that is a corporation,
the chairman of the board, the president, any vice president, the chief
financial officer or any other officer (acceptable to the Agent) thereof and
(ii) any Person that is not a corporation, the general partner or other managing
Person (acceptable to the Agent) thereof.
"Benefitted Lender": as defined in Section 10.11(a).
<PAGE>
"Booth Acquisition": the acquisition by the Borrower of the Booth
Business pursuant to and in accordance with the Booth Acquisition Documents.
"Booth Acquisition Documents": collectively, (i) the Asset Purchase
Agreement, dated as of November 21, 1996, among HPI Acquisition Co., LLC, Booth
Communications Carolinas Assets, Inc., Booth Communications Carolinas, Inc. and
Booth American Company, pursuant to which the Borrower shall acquire the Booth
Assets, and (ii) the bills of sale, the assignment and assumption agreement and
all other documents executed in connection therewith, as each may be amended,
supplemented or otherwise modified in accordance with Section 7.11.
"Booth Assets": the cable television and related assets for the towns
of Beech Mountain, Blowing Rock and Boone and the county of Watauga, North
Carolina, being acquired by the Borrower in the Booth Acquisition.
"Booth Business": Booth's business of operating the Booth Assets,
which is to be transferred to, and assumed by, the Borrower on the Effective
Date pursuant to the Booth Acquisition Documents.
"Borrower Security Agreement": the Borrower Security Agreement, by and
between the Borrower and the Agent, substan
tially in the form of Exhibit F, as the same may be amended, supplemented or
otherwise modified from time to time.
"Borrowing Date": the Business Day on which the Lenders make the Loans
to the Borrower, such Business Day to be during the Commitment Period.
"Borrowing Request": the request for the Loans in the form of Exhibit
C.
"BP": Banque Paribas.
"Business Day": (i) for all purposes other than as set forth in
clause (ii) below, any day other than a Saturday, a Sunday or a day on which
commercial banks located in New York City are authorized or required by law
or other governmental action to close, and (ii) with respect to all notices
and determinations in connection with, and payments of principal and
interest on, Eurodollar Advances, any day which is a
<PAGE>
Business Day described in clause (i) above and which is also a day on which
eurodollar funding between banks may be carried on in London, England.
"Capital Expenditures" without duplication, any expenditures for any
purchase or other acquisition of any asset which would be classified as a fixed
or capital asset on a Consolidated balance sheet of the Borrower and its
Subsidiaries prepared in accordance with GAAP, excluding (i) the cost of assets
acquired with Capital Lease Obligations, (ii) expenditures of insurance proceeds
to rebuild or replace any asset after a casualty loss, and (iii) leasehold
improvement expenditures for which the Borrower or a Subsidiary is reimbursed
promptly by the lessor.
"Capital Lease Obligations": with respect to any Person, obligations
of such Person with respect to leases which are required to be capitalized for
financial reporting purposes in accordance with GAAP.
"Capital Stock": as to any Person, all shares, interests,
partnership interests, limited liability company interests, participations,
rights in or other equivalents (however designated) of such Person's equity
(however designated) and any rights, warrants or options exchangeable for or
convertible into such shares, interests, participations, rights or other
equity.
"Cash Equivalents": (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States of America is pledged in full support thereof) having
maturities of not more than six months from the date of acquisition, (ii)
Dollar denominated time deposits, certificates of deposit and bankers
acceptances of (x) any Lender or (y) any Approved Bank, in any such case with
maturities of not more than six months from the date of acquisition, (iii)
commercial paper issued by any Approved Bank or by the parent company of any
Approved Bank and commercial paper issued by, or guaranteed by, any
industrial or financial company with an unsecured non-credit supported
short-term commercial paper rating of at least A-1 or the equivalent by
Standard & Poor's or at least P-1 or the equivalent by Moody's, or guaranteed
by any industrial or financial company with a long term unsecured non-credit
supported senior debt rating of at least A or A- 2, or the equivalent, by
Standard & Poor's or Moody's, as the case may be, and in each
<PAGE>
case maturing within six months after the date of acquisition, (iv)
marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof maturing within six months from the date of acquisition
thereof and, at the time of acquisition, having one of the two highest
ratings obtainable from either Standard & Poor's or Moody's and (v)
investments in money market funds substantially all the assets of which are
comprised of securities of the types described in clauses (i) through (iv)
above.
"CATV Franchise": collectively, (i) any franchise, license, permit,
wire agreement or easement granted by any political jurisdiction or unit or
other franchising authority pursuant to which a Person has the right to operate
a CATV System, (ii) any pole attachment agreement or underground conduit use
agreement entered into in connection with the operation of any CATV System, and
(iii) any legislation, regulation, bill, ordinance, agreement or other
instrument or document setting forth all of any part of the terms of any FCC
License or franchise, license, permit, wire agreement or easement described in
clause (i) of this definition.
"CATV System": a system owned by the Borrower or any Subsidiary which
transmits audio, video, digital or other signals or information by cable,
optical, antennae, microwave, or satellite means, to Persons who pay to receive
such transmis
sions.
"Change in Control": Theodore B. Baum shall cease to own, free and
clear of all Liens or other encumbrances (other than Liens in favor of the Agent
on behalf of the Lenders), at least 50.1% of the voting control of the Borrower
either directly or, through another Person, indirectly.
"Code": the Internal Revenue Code of 1986, as amended from time to
time, or any successor thereto, and the rules and regulations issued thereunder,
as from time to time in effect.
"Collateral": the Property in which a security interest is granted
under the Collateral Documents.
"Collateral Documents": collectively, (i) upon the execution and
delivery thereof, the Borrower Security Agreement, the Parent Security
Agreement, the Subordination
<PAGE>
Agreement and the Subsidiary Guaranty and (ii) all documents executed or
delivered in connection with any of the foregoing.
"Commitment": in respect of any Lender, such Lender's undertaking on
the Borrowing Date to make a Loan, subject to the terms and conditions hereof,
in a principal amount equal to the Commitment Amount of such Lender.
"Commitment Amount": with respect to any Lender, the amount set forth
adjacent to its name under the heading "Commitment Amount" in Exhibit A.
"Commitment Percentage": as to any Lender in respect of such Lender's
Commitment, the percentage equal to such Lender's Commitment Amount divided by
the Aggregate Commitment Amount (or, if no Commitments then exist, the
percentage equal to such Lender's Credit Exposure divided by the Aggregate
Credit Exposure).
"Commitment Period": the period from the Effective Date until the
Commitment Termination Date.
"Commitment Termination Date": the earlier of 5:00 p.m. on the
Effective Date or such other date upon which the Commitments shall have been
terminated in accordance herewith.
"Communication Act": the Communications Act of 1934, as amended and in
effect from time to time.
"Compliance Certificate": a certificate substantially in the form of
Exhibit E.
"Condemnation": as defined in Section 8.1(o).
"Consolidated": the Borrower and its Subsidiaries on a consolidated
basis.
"Contingent Obligation": as to any Person ( a "secondary obligor"),
any obligation of such secondary obligor (i) guaranteeing or in effect
guaranteeing any return on any investment made by another Person, or (ii)
guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend or
other obligation (a "primary obligation") of any other Person (a "primary
obligor") in any manner, whether directly or indirectly, including any
obligation of such secondary obligor, whether contingent, (a) to purchase any
primary obligation or
<PAGE>
any Property constituting direct or indirect security therefor, (b) to
advance or supply funds (A) for the purchase or payment of any primary
obligation or (B) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of a
primary obligor, (c) to purchase Property, securities or services primarily
for the purpose of assuring the beneficiary of any primary obligation of the
ability of a primary obligor to make payment of a primary obligation, (d)
otherwise to assure or hold harmless the beneficiary of a primary obligation
against loss in respect thereof, and (e) in respect of the liabilities of any
partnership in which a secondary obligor is a general partner, except to the
extent that such liabilities of such partnership are nonrecourse to such
secondary obligor and its separate Property, provided, however, that the term
"Contingent Obligation" shall not include the indorsement of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation of a Person shall be deemed to be an amount equal to
the stated or determinable amount of a primary obligation in respect of which
such Contingent Obligation is made or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
such Person in good faith.
"Control Person": as defined in Section 3.4.
"Conversion Date": the date on which: (i) a Eurodollar Advance is
converted to an ABR Advance, (ii) an ABR Advance is converted to a Eurodollar
Advance or (iii) a Eurodollar Advance is converted to a new Eurodollar Advance.
"Copyright Act": Title 17 of the United States Code, as amended and in
effect from time to time.
"Credit Exposure": with respect to any Lender as of any date, the
outstanding principal balance of such Lender's Loan.
"Credit Party": the Borrower and each other party (other than the
Agent and the Lenders) to a Loan Document.
"Cumulative Leakage Index": the permitted index or range of radiation
leakage computed in accordance with the rules of the FCC and applicable to the
CATV Systems.
"Default": any event or condition which constitutes an Event of
Default or which, with the giving of notice, the
<PAGE>
lapse of time, or any other condition, would, unless cured or waived, become an
Event of Default.
"Disposition": with respect to any Person, any sale, sale- leaseback,
assignment, transfer or other disposition by such Person, by any means, of (i)
the Capital Stock of any other Person, (ii) any Operating Entity of such Person,
or (iii) any other Property of such Person other than in the ordinary course of
business (other than inventory, except to the extent subject to a bulk sale),
provided that a Disposition shall not include the sale, assignment, transfer or
other disposition of any Operating Entity pursuant to clause (ii) above or
Property sold, assigned, transferred or otherwise disposed of other than in the
ordinary course of business pursuant to clause (iii) above if (a) the fair
market value thereof is less than $250,000 and, when aggregated with all other
sales, assignments, transfers and other dispositions made by such Person
pursuant to clauses (ii) and (iii) above within the same fiscal year which are
in excess of $100,000, is less than $1,000,000, and provided further that a
Disposition shall include the sale, assignment, transfer or disposition of a
CATV System or all or substantially all of the Property of such Person.
"Dollars" and "$": lawful currency of the United States.
"Domestic Lending Office": in respect of (i) any Lender listed on
the signature pages hereof, initially, the office or offices of such Lender
designated as such on Schedule 1.1; thereafter, such other office of such
Lender, through which it shall be making or maintaining ABR Advances, as
reported by such Lender to the Agent and the Borrower and (ii) in the case of
any other Lender, initially, the office or offices of such Lender designated
as such on Schedule 2 of the Assignment and Acceptance Agreement or other
document pursuant to which it became a Lender; thereafter, such other office
of such Lender, through which it shall be making or maintaining Domestic
Advances, as reported by such Lender to the Agent and the Borrower.
"Effective Date": June 26, 1997.
"Eligible Assignee": a Lender, any affiliate of a Lender and any other
bank, insurance company, pension fund, mutual fund or other financial
institution.
<PAGE>
"Employee Benefit Plan": an employee benefit plan within the meaning
of Section 3(3) of ERISA maintained, sponsored or contributed to by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Environmental Laws": any and all federal, state and local laws
relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, materials or
pollutants or industrial hygiene, and including (i) the Comprehensive
Environmental Response, Compensation and Liability Act, as amended, 42 USCA
Section 9601 et seq.; (ii) the Resource Conservation and Recovery Act of 1976,
as amended, 42 USCA Section 6901 et seq.; (iii) the Toxic Substance Control Act,
as amended, 15 USCA Section 2601 et seq.; (iv) the Water Pollution Control Act,
as amended, 33 USCA Section 1251 et seq.; (v) the Clean Air Act, as amended, 42
USCA Section 7401 et seq.; (vi) the Hazardous Materials Transportation
Authorization Act of 1994, as amended, 49 USCA Section 5101 et seq. and (vii)
all rules, regulations, judgments, decrees, injunctions and restrictions
thereunder and any analogous state law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"ERISA Affiliate": when used with respect to an Employee Benefit
Plan, ERISA, the PBGC or a provision of the Code pertaining to employee
benefit plans, any Person which is a member of any group of organizations
within the meaning of Sections 414(b) or (c) of the Code (or, solely for
purposes of potential liability under Section 302(c)(11) of ERISA and Section
412(c)(11) of the Code and the lien created under Section 302(f) of ERISA and
Section 412(n) of the Code, Sections 414(m) or (o) of the Code) of which the
Borrower or any of its Subsidiaries is a member.
"Eurodollar Advances": collectively, the Loans (or any portions
thereof), at such time as they (or such portions) are made and/or being
maintained at a rate of interest based upon the Eurodollar Rate.
"Eurodollar Lending Office": in respect of (i) any Lender listed on
the signature pages hereof, initially, the office or offices of such Lender
designated as such on Schedule 1.1; thereafter, such other office of such
Lender, through which it shall be making or maintaining Eurodollar
<PAGE>
Advances, as reported by such Lender to the Agent and the Borrower and (ii) in
the case of any other Lender, initially, the office or offices of such Lender
designated as such on Schedule 2 of the Assignment and Acceptance Agreement or
other document pursuant to which it became a Lender; thereafter, such other
office of such Lender, through which it shall be making or maintaining
Eurodollar Advances, as reported by such Lender to the Agent and the Borrower.
"Eurodollar Rate": with respect to each Eurodollar Advance, a rate of
interest per annum, as determined by the Agent, equal to: (a) the offered
quotation to first-class banks in the New York interbank eurodollar market by
the Agent for Dollar deposits of amounts in immediately available funds
comparable to the outstanding principal amount of the Eurodollar Advance of the
Agent for which an interest rate is then being determined with maturities
comparable to the Interest Period applicable to such Eurodollar Advance
determined as of 10:00 A.M. (New York time) on the date which is two Business
Days prior to the commencement of such Interest Period, divided (and rounded
upward to the next whole multiple of 1/16 of 1%) by (b) a percentage equal to
100% minus the then stated maximum rate of all reserve requirements (including,
without limitation, any marginal, emergency, supplemental, special or other
reserves) applicable to any member bank of the Federal Reserve System in respect
of eurocurrency funding or liabilities as defined in Regulation D of the Board
of Governors of the Federal Reserve System (or any successor category of
liabilities under said Regulation D).
"Event of Default": as defined in Section 8.1.
"FCC": the Federal Communications Commission or any other regulatory
body which succeeds to the functions of the Federal Communications Commission.
"FCC License": any community antenna relay service, broadcast
auxiliary license, business radio, microwave or special safety radio service
license issued by the FCC pursuant to the Communications Act.
"Federal Funds Rate": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to
the weighted average of the rates on overnight federal funds transactions with
members of
<PAGE>
the Federal Reserve System arranged by federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (i) if the day for which such rate is to be
determined is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
of the quotations for such day on such transactions received by the Agent from
three federal funds brokers of recognized standing selected by the Agent.
"Fees": all fees payable by the Borrower to the Agent or the Lenders
in connection with this Agreement.
"Financial Officer": as to any Person, the chief financial officer of
such Person or such other officer as shall be satisfactory to the Agent.
"Financial Statements": as defined in Section 4.13(a).
"Fixed Charge Coverage Ratio": at any date of determination thereof,
the ratio of (i)(a) Operating Cash Flow, minus (b) the sum of (1) Capital
Expenditures (limited to maintenance Capital Expenditures calculated as the
greater of (x) the actual maintenance Capital Expenditures or (y) $35 per
subscriber for the average number of basic subscribers during the period
tested), (2) Management Fees paid and (3) cash taxes, all calculated for the
four fiscal quarter period ending on such date or, if such date is not the last
day of a fiscal quarter, for the immediately preceding four fiscal quarter
period, to (ii) the aggregate amount of payments of interest, scheduled
principal payments, permitted distributions and fees (excluding any one-time
structuring and closing fees) required to be made during such four consecutive
fiscal quarters, all calculated for the Borrower and its Subsidiaries on a
Consolidated basis; provided that, until four consecutive fiscal quarters ending
after the date of this Agreement have elapsed, the Fixed Charge Coverage Ratio
shall be calculated solely from the number of consecutive fiscal quarters ended
after the date of this Agreement as of the date of determination. The $35 per
subscriber Capital Expenditure amount set forth in the preceding sentence will
be prorated on a quarterly basis for the first three consecutive fiscal quarters
ending after the date of this Agreement.
<PAGE>
"GAAP": generally accepted accounting principles as in effect from
time to time, applied in a manner consistent with that used in preparing the
financial statements referred to in Section 4.13(a).
"Governmental Authority": any foreign, federal, state, municipal or
other government, or any department, commission, board, bureau, agency, public
authority or instrumentality thereof, or any court or arbitrator.
"Hazardous Substance": any hazardous or toxic substance, material or
waste, including (i) those substances, materials, and wastes listed in the
United States Department of Transportation Hazardous Materials Table (49 CFR
172.101) or by the Environmental Protection Agency as hazardous substances
(40 CFR Part 302) and amendments thereto and replacements thereof and (ii)
any substance, pollutant or material defined as, or designated in, any
Environmental Law as a "hazardous substance," "toxic substance," "hazardous
material," "hazardous waste," "restricted hazardous waste," "pollutant,"
"toxic pollutant" or words of similar import.
"Highest Lawful Rate": as to any Lender, the maximum rate of interest,
if any, that at any time or from time to time may be contracted for, taken,
charged or received by such Lender on the Note held by it, or which may be owing
to such Lender pursuant to the Loan Documents under the laws applicable to such
Lender and this transaction.
"HSR Act": the Hart-Scott-Rodino Antitrust Improve
ments Act of 1976, as amended.
"Indebtedness": as to any Person, at a particular time, all items
which constitute, without duplication, (i) indebtedness for borrowed money, (ii)
indebtedness in respect of the deferred purchase price of Property (other than
trade payables incurred in the ordinary course of business), (iii) indebtedness
evidenced by notes, bonds, debentures or similar instruments, (iv) obligations
with respect to any conditional sale or title retention agreement, (v)
indebtedness arising under acceptance facilities and the amount available to be
drawn under all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder to the extent such Person shall
not have reimbursed the issuer in respect of the issuer's payment thereof, (vi)
all liabilities secured by any Lien on any Property owned by
<PAGE>
such Person even though such Person has not assumed or otherwise become
liable for the payment thereof (other than carriers', warehousemen's,
mechanics', repairmen's or other like non-consensual statutory Liens arising
in the ordinary course of business), (vii) Capital Lease Obligations, (viii)
all obligations of such Person in respect of Capital Stock subject to
mandatory purchase or redemption or purchase or redemption at the option of
the holder thereof, in whole or in part, and (ix) all Contingent Obligations
of such Person in respect of any of the foregoing.
"Indemnified Liabilities": as defined in Section 10.5.
"Indemnified Person": as defined in Section 10.8.
"Indemnified Tax": as defined in Section 3.8(a).
"Indemnified Tax Person": as defined in Section 3.8(a).
"Intercompany Indebtedness": loans which are (i) made by the Borrower
to direct or indirect wholly-owned Subsidiaries or (ii) made by direct or
indirect wholly-owned Subsidiaries to the Borrower or to other direct or
indirect wholly-owned Subsid
iaries of the Borrower.
"Interest Coverage Ratio": at any date of determination thereof, the
ratio of Operating Cash Flow to interest expense and fees (excluding any
one-time structuring and closing fees) on Total Debt, all calculated for the
four fiscal quarter period ending on such date, or, if such date is not the last
day of a fiscal quarter, for the most recently ended four consecutive fiscal
quarters; provided that, until four consecutive fiscal quarters ending after the
date of this Agreement have elapsed, the Interest Coverage Ratio shall be
calculated solely from the number of consecutive fiscal quarters ended after the
date of this Agreement as of the date of determination.
"Interest Payment Date": (i) as to any ABR Advance, the last day of
each March, June, September and December commencing on the first of such days
to occur after such ABR Advance is made or any Eurodollar Advance is
converted to an ABR Advance, (ii) as to any Eurodollar Advance as to which
the Borrower has selected an Interest Period of one, two or three months, the
last day of such Interest Period, (iii) as to any
<PAGE>
Eurodollar Advance as to which the Borrower has selected an Interest Period of
six months, the last day of each three month interval occurring during such
Interest Period and the last day of such Interest Period; and (iv) as to all
Advances, the Maturity Date.
"Interest Period": with respect to any Eurodollar Advance requested
by the Borrower, the period commencing on, as the case may be, the Borrowing
Date or Conversion Date with respect to such Eurodollar Advance and ending
one, two, three or six months thereafter, as selected by the Borrower in its
irrevocable Borrowing Request or its irrevocable Notice of Conversion,
provided, however, that (i) if any Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Business Day and
(ii) any Interest Period which begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month. Interest Periods shall be subject to the
provisions of Section 3.3.
"Investments": as defined in Section 7.5.
"Leverage Ratio": at any date of determination, the ratio of (i) Total
Debt to (ii) Annualized Operating Cash Flow.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including any conditional sale or other title retention agreement and any
capital or financing lease having substantially the same economic effect as
any of the foregoing.
"Loan" and "Loans": as defined in Section 2.1.
"Loan Documents": collectively, this Agreement, the Notes, the
Collateral Documents, the Intercreditor Agreement (as defined in the Senior
Indenture) and all other agreements, instruments and documents executed or
delivered in connection herewith, in each case as amended, supplemented or
otherwise modified from time to time.
<PAGE>
"Management Agreement": the management agreement dated November 2,
1993 by and between the Borrower and Helicon Corp., as the same may be amended,
supplemented or otherwise modified from time to time in accordance with Section
7.11.
"Management Fees": all salaries, costs and other expenses from time
to time directly or indirectly paid or payable under the Management Agreement by
the Borrower or any other Subsidiary to any Person for managerial services.
"Managing Person": with respect to any Person that is (i) a
corporation, its board of directors, (ii) a limited liability company, its board
of control, managing member or members, (iii) a limited partnership, its general
partner, (iv) a general partnership or a limited liability partnership, its
managing partner or executive committee or (v) any other Person, the managing
body thereof or other Person analogous to the foregoing.
"Margin Stock": any "margin stock", as defined in Regulation U of the
Board of Governors of the Federal Reserve System, as amended, supplemented or
otherwise modified from time to time.
"Material Adverse Change": a material adverse change in (i) the
financial condition, operations, business, prospects or Property of the Borrower
or any of its Subsidiaries, (ii) the ability of any Credit Party to perform any
of its obligations under any of the Loan Documents to which it is a party or
(iii) the ability of the Agent or any Lender to enforce any of the Loan
Documents.
"Material Adverse Effect": a material adverse effect on (i) the
financial condition, operations, business, prospects or Property of the Borrower
or any of its Subsidiaries, (ii) the ability of any Credit Party to perform its
obligations under any of the Loan Documents to which it is a party or (iii) the
ability of the Agent or any Lender to enforce any of the Loan Documents.
"Material Agreements": collectively, the Management Agreement, the
Booth Acquisition Documents, the Affiliate Note and the Senior Indenture
Documents, as each may be amended, supplemented or otherwise modified from
time to time in accordance with Section 7.11.
<PAGE>
"Maturity Date": November 1, 2000, or such earlier date on which the
Notes shall become due and payable, whether by acceleration or otherwise.
"Moody's": Moody's Investors Service, Inc., or any successor thereto.
"Multiemployer Plan": a Pension Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": net cash proceeds realized upon (i) the sale,
transfer, or other disposition of assets, (ii) the sale or series of sales or
issuance of any Capital Stock, or (iii) the issuance of new Indebtedness, in
each case after the payment of all expenses (including, with respect to clauses
(ii) and (iii), underwriting discounts and commissions) and taxes related to
such transaction and the net proceeds of the liquidation (at any time) of
securities received as consideration from such transaction.
"Net Mark-to-Market Exposure": with respect to any Person, as of any
date of determination, the excess (if any) of all unrealized losses over all
unrealized profits of such Person arising from Rate Hedging Agreements.
"Unrealized losses" means the fair market value of the cost to such Person of
replacing such Rate Hedging Agreement as of the date of determination (assuming
the Rate Hedging Agreement were to be terminated as of that date), and
"unrealized profits" means the fair market value of the gain to such Person of
replacing such Rate Hedging Agreement as of the date of determination (assuming
such Rate Hedging Agreement were to be terminated as of that date).
"Note" and "Notes": as defined in Section 2.2.
"Notice of Conversion": a notice substantially in the form of Exhibit
D.
"Operating Cash Flow": for any period of determination thereof, the
sum of (i) pre-tax income or deficit, as the case may be (excluding
extraordinary gains and losses), (ii) interest expense, (iii) Management Fees
expense and (iv) depreciation and amortization, all calculated for the Borrower
and its Subsidiaries on a Consolidated basis for such period after giving effect
to any acquisitions and disposition of assets of the Borrower and its
Subsidiaries made during such period as if made on the first day of such period.
<PAGE>
"Operating Entity": any Person or any business or operating unit of a
Person which is, or could be, operated separate and apart from (i) the other
businesses and operations of such Person, or (ii) any other line of business or
business segment.
"Organizational Documents": as to any Person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of such
Person, (ii) a limited liability company, the limited liability company
agreement or similar agreement of such Person, (iii) a partnership, the
partnership agreement or similar agreement of such Person, or (iv) any other
form of entity or organization, the organizational documents analogous to the
foregoing.
"Other Taxes": as defined in Section 3.8(c).
"Parent": Helicon Partners I, L.P., a Delaware limited partnership.
"Parent Security Agreement": the Security Agreement, by and among
the Parent, the Borrower and the Agent, substantially in the form of Exhibit
G, as the same may be amended, supplemented or otherwise modified from time
to time.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA, or any Governmental Authority succeeding to
the functions thereof.
"Pension Plan": at any date of determination, any Employee Benefit
Plan (including a Multiemployer Plan), the funding requirements of which (under
Section 302 of ERISA or Section 412 of the Code) are, or at any time within the
six years immediately preceding such date, were in whole or in part, the
responsibility of the Borrower, any of its Subsidiaries or any ERISA Affiliate.
"Permitted Acquisition": an Acquisition permitted by Section 7.3.
"Permitted Lien": a Lien permitted to exist under Section 7.2.
"Person": any individual, firm, partnership, limited liability
company, joint venture, corporation, association,
<PAGE>
business enterprise, joint stock company, unincorporated association, trust,
Governmental Authority or any other entity, whether acting in an individual,
fiduciary, or other capacity, and for the purpose of the definition of "ERISA
Affiliate", a trade or business.
"Pricing Level": Pricing Level I, Pricing Level II, Pricing Level III,
Pricing Level IV, Pricing Level V, Pricing Level VI or Pricing Level VII, as
applicable.
"Pricing Level I": the applicable Pricing Level at any time when the
Leverage Ratio is greater than or equal to 6.0:1.00.
"Pricing Level II": the applicable Pricing Level at any time when the
Leverage Ratio is greater than or equal to 5.5:1.00 but less than 6.0:1.00.
"Pricing Level III": the applicable Pricing Level at any time when the
Leverage Ratio is greater than or equal to 5.0:1.00 but less than 5.5:1.00.
"Pricing Level IV": the applicable Pricing Level at any time when the
Leverage Ratio is greater than or equal to 4.5:1.00 but less than 5.0:1.00.
"Pricing Level V": the applicable Pricing Level at any time when the
Leverage Ratio is greater than or equal to 4.0:1.00 but less than 4.5:1.00.
"Pricing Level VI": the applicable Pricing Level at any time when the
Leverage Ratio is less than 3.5:1.00 but less than 4.0:1.00.
"Pricing Level VII": the applicable Pricing Level at any time when
the Leverage Ratio is less than 3.5:1.00.
"Prime Rate": a rate of interest per annum equal to the rate of
interest announced by The Chase Manhattan Bank from time to time as its prime
lending rate, such rate to be adjusted automatically (without notice) on the
effective date of any change in such announced rate.
"Pro-Forma Financial Statements": as defined in Section 4.13(b).
"Prohibited Transaction": a transaction which is
<PAGE>
prohibited under Section 4975 of the Code or Section 406 of ERISA and not
exempt under Section 4975 of the Code or Section 408 of ERISA.
"Property": all types of real, personal, tangible, intangible or
mixed property.
"Rate Hedging Agreement": an agreement, device or arrangement
providing for payments which are related to fluctuations of interest rates,
exchange rates or forward rates, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts and warrants.
"Rate Hedging Obligations": with respect to any Person, any and all
obligations of such Person, whether absolute or contingent and howsoever and
whensoever created, arising, evidenced or acquired (including all renewals,
extensions and modifications thereof and substitutions therefor), under (i) any
and all Rate Hedging Agreements, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Hedging Agreements.
"Rate Protection Lenders": collectively, the Lenders and any
affiliates of the Lenders that from time to time enter or have entered into Rate
Hedging Agreements with the Borrower.
"Real Property": all real property owned or leased by the Borrower or
any of its Subsidiaries.
"Regulatory Change": (i) the introduction or phasing in of any law,
rule or regulation after the Effective Date, (ii) the issuance or
promulgation after the Effective Date of any directive, guideline or request
from any Governmental Authority (whether or not having the force of law), or
(iii) any change after the Effective Date in the interpretation of any
existing law, rule, regulation, directive, guideline or request by any
Governmental Authority charged with the administration thereof.
"Required Lenders": (i) at any time prior to the Borrowing Date,
Lenders having Commitment Amounts greater than or equal to 66.7% of the
Aggregate Commitment Amount, and (ii) at all other times, Lenders having Loans
outstanding in an
<PAGE>
amount greater than or equal to 66.7% of the Aggregate Credit Exposure; provided
that if there shall exist only two Lenders, Required Lenders shall mean both
Lenders.
"Restricted Payment": as to any Person (i) any dividend or other
distribution, direct or indirect, on account of any shares of Capital Stock
in such Person now or hereafter outstanding (other than a dividend payable
solely in shares of such Capital Stock to the holders of such shares), (ii)
any redemption, retirement, sinking fund or similar payment, purchase or
other acquisition, direct or indirect, of any shares of any class of Capital
Stock in such Person now or hereafter outstanding and (iii) any management or
similar fees (including the Management Fees) payable to any Person other than
the Borrower or a wholly-owned Subsidiary of the Borrower.
"Senior Indenture": the Indenture dated as of October 15, 1993
between the Borrower and Helicon Capital Corp. and Shawmut Bank Connecticut,
National Association, as trustee, as the same may be amended, modified or
otherwise supplemented in accordance with Section 7.11.
"Senior Indenture Documents": the Senior Indenture, the Senior
Indenture Notes and all security agreements, pledges and other agreements and
documents executed and delivered in connection therewith, as the same may be
amended, modified or supplemented in accordance with Section 7.11.
"Senior Indenture Notes": the notes issued pursuant to the Senior
Indenture, as the same may be amended, modified or supplemented in accordance
with Section 7.11.
"SEC": the Securities and Exchange Commission or any Governmental
Authority succeeding to the functions thereof.
"Solvent": with respect to any Person on a particular date, the
condition that on such date, (i) the fair value of the Property of such
Person is greater than the total amount of liabilities, including contingent
liabilities, of such Person, (ii) the present fair salable value of the
assets of such Person is not less than the amount that will be required to
pay the probable liability of such Person on its debts as they become
absolute and matured, (iii) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability
to pay as such debts and liabilities mature, and (iv) such Person is not
<PAGE>
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's Property would constitute an unreasonably
small amount of capital. For purposes of this definition, the amount of any
contingent liability at any time shall be computed as the amount that, in light
of all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability after
taking into account probable payments by co-obligors.
"Special Counsel": Emmet, Marvin & Martin, LLP, special counsel to
the Agent, or such other counsel as the Agent shall select from time to time.
"Subordination Agreement": the Subordination Agree ment, by and
among Helicon Corp., the Borrower and the Agent, substantially in the form of
Exhibit H, as the same may be amended, supplemented or otherwise modified
from time to time.
"Standard & Poor's": Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., or any successor thereto.
"Subsidiary": as to any Person, any corporation, association,
partnership, limited liability company, joint venture or other business
entity of which such Person or any Subsidiary of such Person, directly or
indirectly, either (i) in respect of a corporation, owns or controls more
than 50% of the outstanding Capital Stock having ordinary voting power to
elect a majority of the Managing Person, irrespective of whether a class or
classes shall or might have voting power by reason of the happening of any
contingency, or (ii) in respect of an association, partnership, limited
liability company, joint venture or other business entity, is entitled to
share in more than 50% of the profits and losses, however determined.
"Subsidiary Guaranty": the Subsidiary Guaranty and Security Agreement,
by and among the Subsidiaries party thereto and the Agent, substantially in the
form of Exhibit I, as the same may be amended, supplemented or otherwise
modified from time to time.
"Substantial Portion": with respect to the Property of the Borrower
and its Subsidiaries, Property which (i) represents more than 10% of the
Consolidated assets of the
<PAGE>
Borrower and its Subsidiaries as would be shown in the Consolidated financial
statements of the Borrower and its Subsidiaries as at the beginning of the
twelve-month period ending with the month in which such determination is made,
or (ii) is responsible for more than 10% of the Consolidated net sales or of the
Consolidated net income of the Borrower and its Subsidiaries as reflected in the
financial statements referred to in clause (i) above.
"Syndication Period": the period commencing on the Effective Date and
ending on the day which is three months after the Effective Date.
"Taxes": as defined in Section 3.8(a).
"Tax on the Income": as defined in Section 3.8(a).
"Total Debt": the sum of, without duplication, all Indebtedness, Net
Mark-to-Market Exposure and obligations under non- compete agreements of the
Borrower and its Subsidiaries on a Consolidated basis.
"Transaction Documents": collectively, the Loan Documents and the
Booth Acquisition Documents.
"Type": with respect to any Loan, the character of such Loan as an ABR
Advance or a Eurodollar Advance, each of which constitutes a type of loan.
"United States": the United States of America (including the States
thereof and the District of Columbia).
"Upstream Transfers": as defined in Section 7.14.
"U.S. Person": a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under any
laws of the United States, or any estate or trust that is subject to United
States federal income taxation regardless of the source of its income.
1.2. Principles of Construction
(a) All terms defined in a Loan Document shall have the meanings
given such terms therein when used in the other Loan Documents or any
certificate, opinion or other document made or delivered pursuant thereto,
unless otherwise defined therein.
<PAGE>
(b) As used in the Loan Documents and in any certificate, opinion
or other document made or delivered pursuant thereto, accounting terms not
defined in Section 1.1, and accounting terms partly defined in Section 1.1,
to the extent not defined, shall have the respective meanings given to them
under GAAP. If at any time any change in GAAP would affect the computation
of any financial ratio or requirement set forth in this Agreement, the Agent,
the Lenders and the Borrower shall negotiate in good faith to amend such
ratio or requirement to reflect such change in GAAP (subject to the approval
of the Required Lenders), provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP prior to
such change therein and (ii) the Borrower shall provide to the Agent and the
Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after
giving effect to such change in GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and
similar words when used in a Loan Document shall refer to such Loan Document
as a whole and not to any particular provision thereof, and Section, schedule
and exhibit references contained therein shall refer to Sections thereof or
schedules or exhibits thereto unless otherwise expressly provided therein.
(d) The phrase "may not" is prohibitive and not permissive.
(e) Unless the context otherwise requires, words in the singular
number include the plural, and words in the plural include the singular.
(f) Unless specifically provided in a Loan Document to the contrary,
any reference to a time shall refer to such time in New York.
(g) Unless specifically provided in a Loan Document to the contrary,
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each means "to but excluding".
(h) References in any Loan Document to a fiscal pe-
<PAGE>
riod shall refer to that fiscal period of the Borrower.
(i) The words "include" and "including", when used in each Loan
Document, shall mean that the same shall be included "without limitation",
unless otherwise expressly provided therein.
2. AMOUNT AND TERMS OF LOANS
2.1. Loans
Subject to the terms and conditions hereof, each Lender severally
(and not jointly) agrees to make a single term loan in the amount of its
Commitment ("Loan" and, collectively with the Loans of all other Lenders, the
"Loans") to the Borrower on the Borrowing Date. Subject to the provisions of
Sections 2.3 and 3.3, at the option of the Borrower, the Loans may be made as
one or more (i) ABR Advances, (ii) Eurodollar Advances or (iii) any
combination thereof.
2.2. Notes
The Loan made by each Lender shall be evidenced by a promissory note
of the Borrower, substantially in the form of Exhibit B, with appropriate
insertions therein as to date and principal amount (each, as indorsed or
modified from time to time, including any substitutions and replacements
thereof, a "Note" and, collectively with the Notes of all other Lenders, the
"Notes"), payable to the order of such Lender for the account of its Applicable
Lending Office, dated the Borrowing Date, and in the stated principal amount
equal to such Lender's Loan. The outstanding principal balance of the Loans
shall be due and payable on the Maturity Date.
2.3. Procedure for Borrowing
(a) The Borrower may borrow under the Commitments on any Business
Day during the Commitment Period, provided that the Borrower shall notify the
Agent by the delivery of a Borrowing Request no later than: 11:00 a.m., three
Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Advances, or 11:00 a.m., one Business Day prior to the requested
Borrowing Date, in the case of ABR Advances, specifying (A) the requested
Borrowing Date, (B) whether such borrowing is to consist of one or more
Eurodollar Advances, ABR Advances, or a combination thereof and (C) if the
<PAGE>
borrowing is to consist of one or more Eurodollar Advances, the length of the
Interest Period for each such Eurodollar Advance. Each Eurodollar Advance to be
made on the Borrowing Date shall equal no less than $1,000,000 or such amount
plus a whole multiple of $1,000,000 in excess thereof.
(b) Upon receipt of the Borrowing Request, the Agent shall promptly
notify each Lender thereof. Subject to its receipt of the notice referred to
in the preceding sentence, each Lender will make the amount of its Loan
available to the Agent for the account of the Borrower at the office
specified by the Agent not later than 12:00 noon on the relevant Borrowing
Date requested by the Borrower, in immediately available funds. The amounts
so made available to the Agent on the Borrowing Date will then, subject to
the satisfaction of the terms and conditions of this Agreement, as determined
by the Agent, be made available on such date to the Borrower by the Agent in
accordance with the written instructions of the Borrower.
2.4. Prepayments of the Loans
(a) Voluntary Prepayments. The Borrower may, at its option, prepay
the Loans without premium or penalty (but subject to Section 3.3), in full at
any time or in part from time to time by notifying the Agent in writing at least
three Business Days prior to the proposed prepayment date, specifying whether
the Loans to be prepaid consist of ABR Advances, Eurodollar Advances, or a
combination thereof, the amount to be prepaid and the date of prepayment. Each
such notice shall be irrevocable and the amount specified in each such notice
shall be due and payable on the date specified, together with accrued interest
to the date of such payment on the amount prepaid. Upon receipt of such notice,
the Agent shall promptly notify each Lender thereof. Each partial prepayment of
the Loans pursuant to this subsection shall be in an aggregate principal amount
of $1,000,000 or such amount plus a whole multiple of $1,000,000 in excess
thereof, or, if less, the outstanding principal balance of the Loans. After
giving effect to any partial prepayment with respect to Eurodollar Advances
which were made (whether as the result of a borrowing or a conversion) on the
same date and which had the same Interest Period, the outstanding principal
balance of such Eurodollar Advances shall exceed (subject to Section 3.3)
$1,000,000 or such amount plus a whole multiple of $1,000,000 in excess thereof.
<PAGE>
(b) Mandatory Prepayments of Loans. The Borrower shall prepay the
Loans, upon receipt by the Borrower or any of its Subsidiaries of Net Cash
Proceeds, as follows:
(i) 100% of such Net Cash Proceeds derived from the Disposition
of all or any part of the Booth Assets; and
(ii) the pro rata amount (based upon the relative outstanding
principal amounts of the Loans and the Senior Indenture Notes) of the Net Cash
Proceeds derived from (A) the Disposition of any Property (other than the Booth
Assets), (B) any issuance by the Borrower or any Subsidiary of Indebtedness or
Capital Stock or (C) receipt by the Borrower or any Subsidiary of insurance or
condemnation proceeds required to be applied to the prepayment of the Loans
pursuant to Section 6.5(b); provided that to the extent that for any reason the
Borrower shall not be required to prepay or redeem the Senior Indenture Notes
with any such Net Cash Proceeds, the Borrower shall also prepay the Loans with
such Net Cash Proceeds.
In addition, upon the Borrower making any payment or prepayment of
principal on the Affiliate Note, the Borrower shall simultaneously prepay the
Loans in an equal amount.
(c) In General. Simultaneously with each prepayment of the Loans, the
Borrower shall prepay all accrued interest on the amount prepaid through the
date of prepayment. Unless otherwise specified by the Borrower, each prepayment
of Loans shall first be applied to ABR Advances. If any prepayment is made in
respect of any Eurodollar Advance, in whole or in part, prior to the last day of
the applicable Interest Period, the Borrower agrees to indemnify the Lenders in
accordance with Section 3.3.
2.5. Use of Proceeds
The Borrower agrees that the proceeds of the Loans shall be used
solely to effect the Booth Acquisition and to pay related transaction expenses.
Notwithstanding anything to the contrary contained in any Loan Document, the
Borrower agrees that no part of the proceeds of any Loan will be used, directly
or indirectly, to purchase, acquire or carry any Margin Stock or for a purpose
that violates any law, including the provisions of Regulations G, T, U or X of
the Board of Governors of the Federal Reserve System, as amended.
<PAGE>
2.6. Payments
(a) Each payment, including each prepayment, of principal and
interest on the Loans shall be made by the Borrower prior to 1:00 p.m. on the
date such payment is due to the Agent for the account of the applicable
Lenders at the Agent's office specified in Section 10.2, in each case in
lawful money of the United States, in immediately available funds and without
set-off or counterclaim. As between the Borrower and the Lenders, any
payment by the Borrower to the Agent for the account of the Lenders shall be
deemed to be payment by the Borrower to the Lenders. The failure of the
Borrower to make any such payment by such time shall not constitute a
Default, provided that such payment is made on such due date, but any such
payment made after 1:00 p.m. on such due date shall be deemed to have been
made on the next Business Day for the purpose of calculating interest on
amounts outstanding on the Loans. Promptly upon receipt thereof by the
Agent, each payment of principal and interest on the Loans shall be remitted
by the Agent in like funds as received to each Lender pro rata according to
the aggregate outstanding principal balance of the Loans.
(b) If any payment hereunder or under the Notes shall be due and
payable on a day which is not a Business Day, the due date thereof (except as
otherwise provided in the definition of Interest Period) shall be extended to
the next Business Day and (except with respect to payments in respect of the
Fees) interest shall be payable at the applicable rate specified herein during
such extension, provided, however that if such next Business Day is after the
Maturity Date, any such payment shall be due on the immediately preceding
Business Day.
3. INTEREST, FEES, YIELD PROTECTIONS, ETC.
3.1. Interest Rate and Payment Dates
(a) Prior to Maturity. Except as otherwise provided in Section 3.1(b)
and 3.1(c), prior to the Maturity Date, the Loans shall bear interest on the
outstanding principal balance thereof at the applicable interest rate or rates
per annum set forth below:
ADVANCES RATE
<PAGE>
Each ABR Advance Alternate Base Rate plus the Applicable
Margin.
Each Eurodollar Advance Eurodollar Rate for the applicable Interest
Period plus the Applicable Margin.
(b) Late Charges. Upon the occurrence and during the continuance of
an Event of Default, the unpaid principal balance of the Loans shall bear
interest, payable on demand, at a rate per annum (whether before or after the
entry of a judgment thereon) equal to 2% plus the rate which would otherwise
be applicable under Section 3.1(a), and any overdue interest or other amount
payable under the Loan Documents shall bear interest, payable on demand, at a
rate per annum (whether before or after the entry of a judgment thereon)
equal to the Alternate Base Rate plus the Applicable Margin applicable to ABR
Advances plus 2%.
(c) In General. Interest on (i) ABR Advances to the extent based on
the Prime Rate shall be calculated on the basis of a 365/366-day year (as the
case may be), and (ii) ABR Advances to the extent based on the Federal Funds
Rate and on Eurodollar Advances shall be calculated on the basis of a 360-day
year, in each case, for the actual number of days elapsed. Except as
otherwise provided in Section 3.1(b), interest shall be payable in arrears on
each Interest Payment Date and upon each payment (including prepayment) of
the Loans. Any change in the interest rate on the Loans resulting from a
change in the Alternate Base Rate or reserve requirements shall become
effective as of the opening of business on the day on which such change shall
become effective. Each determination of the Alternate Base Rate or a
Eurodollar Rate by the Agent pursuant to this Agreement shall be conclusive
and binding on all parties hereto absent manifest error. The Borrower
acknowledges that to the extent interest payable on ABR Advances is based on
the Prime Rate, such rate is only one of the bases for computing interest on
loans made by the Lenders, and by basing interest payable on ABR Advances on
the Prime Rate, the Lenders have not committed to charge, and the Borrower
has not in any way bargained for, interest based on a lower or the lowest
rate at which the Lenders may now or in the future make loans to other
borrowers.
3.2. Conversions
<PAGE>
(a) The Borrower may elect from time to time to convert one or more
Eurodollar Advances to ABR Advances by giving the Agent at least three
Business Days' prior irrevocable notice of such election, specifying the
amount to be converted, provided, that any such conversion of Eurodollar
Advances shall only be made on the last day of the Interest Period applicable
thereto. In addition, the Borrower may elect from time to time to convert
(i) ABR Advances to Eurodollar Advances and (ii) Eurodollar Advances to new
Eurodollar Advances by selecting a new Interest Period therefor, in each case
by giving the Agent at least three Business Days' prior irrevocable notice of
such election, in the case of a conversion to Eurodollar Advances, specifying
the amount to be so converted and the initial Interest Period relating
thereto, provided that any such con version of ABR Advances to Eurodollar
Advances shall only be made on a Business Day and any such conversion of
Eurodollar Advances to new Eurodollar Advances shall only be made on the last
day of the Interest Period applicable to the Eurodollar Advances which are to
be converted to such new Eurodollar Advances. Each such notice shall be
irrevocable and shall be given by the delivery by telecopy of a Notice of
Conversion (confirmed promptly, and in any event within three Business Days,
by the delivery to the Agent of a Notice of Conversion manually signed by the
Borrower). The Agent shall promptly provide the Lenders with notice of each
such election. Advances may be converted pursuant to this Section in whole
or in part, provided that the amount to be converted to each Eurodollar
Advance, when aggregated with any Eurodollar Advance to be made on such date
in accordance with Section 2.3 and having the same Interest Period as such
first Eurodollar Advance, shall equal no less than $1,000,000 or such amount
plus a whole multiple of $1,000,000 in excess thereof.
(b) Notwithstanding anything in this Agreement to the contrary, upon
the occurrence and during the continuance of a Default or an Event of Default,
the Borrower shall have no right to elect to convert any existing ABR Advance to
a new Eurodollar Advance or to convert any existing Eurodollar Advance to a new
Eurodollar Advance. In such event, all ABR Advances shall be automatically
continued as ABR Advances and all Eurodollar Advances shall be automatically
converted to ABR Advances on the last day of the Interest Period applicable to
such Eurodollar Advance.
(c) Each conversion shall be effected by each
<PAGE>
Lender by applying the proceeds of its new ABR Advance or Eurodollar Advance,
as the case may be, to its Advances (or portion thereof) being converted (it
being understood that any such conversion shall not constitute a borrowing for
purposes of Section 4 or 5).
3.3. Concerning Interest Periods - Break Funding Indemnification
Notwithstanding any other provision of any Loan Document:
(a) If the Borrower shall have failed to elect a Eurodollar
Advance under Section 2.3 or 3.2, as the case may be, in connection with the
borrowing of the Loans or expiration of an Interest Period with respect to
any existing Eurodollar Advance, the amount of the Loans subject to such
borrowing or such existing Eurodollar Advance shall thereafter be an ABR
Advance until such time, if any, as the Borrower shall elect a new Eurodollar
Advance pursuant to Section 3.2.
(b) No Interest Period selected in respect of the conversion of
any Eurodollar Advance shall end after the Maturity Date.
(c) The Borrower shall not be permitted to have more than five
Eurodollar Advances outstanding at any one time, it being agreed that each
borrowing of a Eurodollar Advance pursuant to a single Borrowing Request or
conversion to a Eurodollar Advance pursuant to a single Notice of Conversion
shall constitute the making of one Eurodollar Advance for the purpose of
calculating such limitation.
(d) Notwithstanding anything herein to the contrary, during the
Syndication Period, the Borrower may only select Interest Periods of not greater
than one month, all of which shall commence on the same date and end on the same
date.
(e) If (i) the Borrower shall fail for any reason to borrow or
convert an Advance after it shall have given notice to do so in which it
shall have requested a Eurodollar Advance pursuant to Section 2.3 or 3.2,
(ii) a Eurodollar Advance shall be terminated for any reason prior to the
last day of the Interest Period applicable thereto, or (iii) any payment of
the principal amount of a Eurodollar Advance is made by the Borrower for any
reason on a date which
<PAGE>
is prior to the last day of the Interest Period applicable thereto, the Borrower
agrees to indemnify each Lender against, and to pay on demand directly to such
Lender the amount (calculated by such Lender using any method chosen by such
Lender which is customarily used by such Lender for such purpose) equal to any
loss or expense suffered by such Lender as a result of such failure to borrow or
convert, or such termination or payment, including any loss, cost or expense
suffered by such Lender in liquidating or employing deposits acquired to fund or
maintain the funding of such Eurodollar Advance, or redeploying funds prepaid or
repaid, in amounts which correspond to such Eurodollar Advance, and any internal
processing charge customarily charged by such Lender in connection therewith.
3.4. Capital Adequacy
If the amount of capital required or expected to be maintained by
any Lender or any Person directly or indirectly owning or controlling such
Lender (each a "Control Person"), shall be affected by the occurrence of a
Regulatory Change and such Lender shall have determined that such Regulatory
Change shall have had or will thereafter have the effect of reducing (i) the
rate of return on such Lender's or such Control Person's capital, or (ii) the
asset value to such Lender or such Control Person of the Loan made or
maintained by such Lender, in either case to a level below that which such
Lender or such Control Person could have achieved or would thereafter be able
to achieve but for such Regulatory Change (after taking into account such
Lender's or such Control Person's policies regarding capital adequacy) by an
amount deemed by such Lender to be material to such Lender or Control Person,
then, within ten days after demand by such Lender, the Borrower shall pay to
such Lender or such Control Person such additional amount or amounts as shall
be sufficient to compensate such Lender or such Control Person, as the case
may be, for such reduction.
3.5. Reimbursement for Increased Costs
If any Lender or the Agent shall determine that a Regulatory Change:
(a) does or shall subject it to any Taxes of any kind whatsoever
with respect to any Eurodollar Advances or its obligations under this Agreement
to make Eurodollar Advances, or change the basis of taxation of payments to it
of
<PAGE>
principal, interest or any other amount payable hereunder in respect of its
Eurodollar Advances, or impose on the Agent or such Lender any other condition,
including any Taxes required to be withheld from any amounts payable under the
Loan Documents (except for imposition of, or change in the rate of, Tax on the
Income of such Lender), or
(b) does or shall impose, modify or make applicable any
reserve, special deposit, compulsory loan, assessment, increased cost or
similar requirement against assets held by, or deposits of, or advances or
loans by, or other credit extended by, or any other acquisition of funds by,
any office of such Lender in respect of its Eurodollar Advances which is not
other wise included in the determination of a Eurodollar Rate; and the result
of any of the foregoing is to increase the cost to such Lender of making,
renewing, converting or maintaining its Eurodollar Advances or its commitment
to make such Eurodollar Advances, or to reduce any amount receivable
hereunder in respect of its Eurodollar Advances, or increase the cost to the
Agent of performing its functions hereunder, then, in any such case, the
Borrower shall pay such Lender or the Agent, as the case may be, within ten
days after demand therefor, such additional amounts as is sufficient to
compensate such Lender or the Agent, as the case may be, for such additional
cost or reduction in such amount receivable which such Lender deems to be
material as determined by such Lender or the Agent, as the case may be;
provided, however, that nothing in this Section shall require the Borrower to
indemnify the Lenders or the Agent, as the case may be, with respect to
withholding Taxes for which the Borrower has no obligation under Section 3.8.
No failure by any Lender or the Agent to demand, and no delay in demanding,
compensation for any increased cost shall constitute a waiver of its right to
demand such compensation at any time. A statement setting forth the
calculations of any additional amounts payable pursuant to this Section
submitted by a Lender or the Agent, as the case may be, to the Borrower shall
be conclusive absent manifest error.
3.6. Illegality of Funding
Notwithstanding any other provision hereof, if any Lender shall
reasonably determine that any law, regulation, treaty or directive, or any
change therein or in the interpretation or application thereof, shall make it
unlawful for such
<PAGE>
Lender to make or maintain any Eurodollar Advance as contemplated by this
Agreement, such Lender shall promptly notify the Borrower and the Agent
thereof, and (i) the commitment of such Lender to make such Eurodollar
Advances or convert ABR Advances to Eurodollar Advances shall forthwith be
suspended, (ii) such Lender shall fund its portion of each requested
Eurodollar Advance as an ABR Advance and (iii) such Lender's Loans then
outstanding as such Eurodollar Advances, if any, shall be converted
automatically to ABR Advances on the last day of the then current Interest
Period applicable thereto or at such earlier time as may be required by law.
If the commitment of any Lender with respect to Eurodollar Advances is
suspended pursuant to this Section and such Lender shall have obtained actual
knowledge that it is once again legal for such Lender to make or maintain
Eurodollar Advances, such Lender shall promptly notify the Agent and the
Borrower thereof and, upon receipt of such notice by each of the Agent and
the Borrower, such Lender's commitment to make or maintain Eurodollar
Advances shall be reinstated.
3.7. Substituted Interest Rate
In the event that (i) the Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that by
reason of circumstances affecting the interbank eurodollar market either
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate applicable pursuant to Section 3.1 or (ii) any Lender shall have
notified the Agent that they have determined (which determination shall be
conclusive and binding on the Borrower) that the applicable Eurodollar Rate
will not adequately and fairly reflect the cost to such Lender of maintaining
or funding loans bearing interest based on such Eurodollar Rate, with respect
to any portion of the Loans that the Borrower has requested be made as
Eurodollar Advances or Eurodollar Advances that will result from the
requested conversion of any portion of the Advances into or of Eurodollar
Advances (each, an "Affected Advance"), the Agent shall promptly notify the
Borrower and the Lenders (by telephone or otherwise, to be promptly confirmed
in writing) of such determination, on or, to the extent practicable, prior to
the requested Borrowing Date or Conversion Date for such Affected Advances.
If the Agent shall give such notice, (a) any Affected Advances shall be made
as ABR Advances, (b) the Advances (or any portion thereof) that were to have
been converted to Affected Advances shall be converted to ABR Advances and
(c) any outstanding Affected Advances shall be converted, on the last day of
<PAGE>
the then current Interest Period with respect thereto, to ABR Advances.
Until any notice under clauses (i) or (ii), as the case may be, of this
Section has been withdrawn by the Agent (by notice to the Borrower promptly
upon either (x) the Agent having determined that such circumstances affecting
the interbank eurodollar no longer exist and that adequate and reasonable
means do exist for determining the Eurodollar Rate pursuant to Section 3.1 or
(y) the Agent having been notified by all Lenders that circumstances no
longer render the Advances (or any portion thereof) Affected Advances, no
further Eurodollar Advances shall be required to be made by the Lenders, nor
shall the Borrower have the right to convert all or any portion of the Loans
to or as Eurodollar Advances.
3.8. Taxes
(a) Payments to be Free and Clear. All payments by each Credit
Party under the Loan Documents to or for the account of the Agent or any
Lender (each, an "Indemnified Tax Person") shall be made free and clear of,
and without any deduction or withholding for or on account of, any and all
present or future income, stamp or other taxes, levies, imposts, duties,
fees, assessments, deductions, withholdings, or other charges of whatever
nature, now or hereafter imposed, levied, collected, withheld, or assessed by
any jurisdiction, or by any department, agency, state or other political
subdivision thereof or therein (collectively, "Taxes"), excluding as to any
Indemnified Tax Person, (i) a Tax on the Income imposed on such Indemnified
Tax Person and (ii) any interest, fees, additions to tax or penalties for
late payment thereof (each such nonexcluded Tax, an "Indemnified Tax"). For
purposes hereof, "Tax on the Income" shall mean, as to any Person, a Tax
imposed by one of the following jurisdictions or by any political subdivision
or taxing authority thereof: (i) the United States, (ii) the jurisdiction in
which such Person is organized, (iii) the jurisdiction in which such Person's
principal office is located, or (iv) in the case of each Lender, any
jurisdiction in which such Lender's Applicable Lending Office is located;
which Tax is an income tax or franchise tax imposed on all or part of the net
income or net profits of such Person or which Tax represents interest, fees,
or penalties for late payment of such an income tax or franchise tax.
(b) Grossing Up of Payments. If any Credit Party or any other Person
is required by any law, rule, regulation, order, directive, treaty or guideline
to make any deduction or withholding (which deduction or withholding would
constitute
<PAGE>
an Indemnified Tax) from any amount required to be paid by any Credit Party
to or on behalf of an Indemnified Tax Person under any Loan Document (i) such
Credit Party shall pay such Indemnified Tax before the date on which
penalties attach thereto, such payment to be made for its own account (if the
liability to pay is imposed on such Credit Party) or on behalf of and in the
name of such Indemnified Tax Person (if the liability is imposed on such
Indemnified Tax Person), and (ii) the sum payable to such Indemnified Tax
Person shall be increased as may be necessary so that after making all
required deductions and withholdings (including deductions and withholdings
applicable to additional sums payable under this Section) such Indemnified
Tax Person receives an amount equal to the sum it would have received had no
such deductions or withholdings been made.
(c) Other Taxes. Each Credit Party agrees to pay any current or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or from the
execution, delivery or registration of, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, the Loan
Documents or otherwise with respect to, the Loan Documents (collectively, the
"Other Taxes").
(d) Evidence of Payment. Within 30 days after request therefor by
the Agent in connection with any payment of Indemnified Taxes or Other Taxes,
each Credit Party will furnish to the Agent the original or a certified copy
of an official receipt from the jurisdiction to which payment is made
evidencing payment thereof or, if unavailable, a certificate from a Financial
Officer that states that such payment has been made and that sets forth the
date and amount of such payment.
(e) U.S. Tax Certificates. Each Indemnified Tax Person that is
organized under the laws of any jurisdiction other than the United States or any
political subdivision thereof that is exempt from United States federal
withholding tax, or that is subject to such tax at a reduced rate under an
applicable treaty, with respect to payments under the Loan Documents shall
deliver to the Agent for transmission to the Borrower, on or prior to the
Effective Date (in the case of each Indemnified Tax Person listed on the
signature pages hereof) or on the effective date of the Assignment and
Acceptance Agreement or other document pursuant to which it becomes an
Indemnified Tax Person (in the case of each other
<PAGE>
Indemnified Tax Person), and at such other times as the Borrower or the Agent
may reasonably request Internal Revenue Form 4224 or Form 1001 or other
certificate or document required under United States law to establish
entitlement to such exemption or reduced rate. No Credit Party shall be
required to pay any additional amount to any such Indemnified Tax Person
under subsection (b) above if such Indemnified Tax Person shall have failed
to satisfy the requirements of the immediately preceding sentence; provided
that if such Indemnified Tax Person shall have satisfied such requirements on
the Effective Date (in the case of each Indemnified Tax Person listed on the
signature pages hereof) or on the effective date of the Assignment and
Acceptance Agreement or other document pursuant to which it became an
Indemnified Tax Person (in the case of each other Indemnified Tax Person),
nothing in this subsection shall relieve any Credit Party of its obligation
to pay any additional amounts pursuant to subsection (b) in the event that,
as a result of any change in applicable law or treaty, such Indemnified Tax
Person is no longer properly entitled to deliver certificates, documents or
other evidence at a subsequent date establishing the fact that such
Indemnified Tax Person is no longer entitled to such exemption or reduced
rate.
3.9. Option to Fund
Each Lender has indicated that, if the Borrower requests a
Eurodollar Advance, such Lender may wish to purchase one or more deposits in
order to fund or maintain its funding of its Commitment Percentage of such
Eurodollar Advance during the Interest Period with respect thereto; it being
understood that the provisions of this Agreement relating to such funding are
included only for the purpose of determining the rate of interest to be paid
in respect of such Eurodollar Advance and any amounts owing under Sections
3.3, 3.5 and 3.6. Each Lender shall be entitled to fund and maintain its
funding of all or any part of each Eurodollar Advance in any manner it sees
fit, but all such determinations hereunder shall be made as if each Lender
had actually funded and maintained its Commitment Percentage of each
Eurodollar Advance during the applicable Interest Period through the purchase
of deposits in an amount equal to its Commitment Percentage of such
Eurodollar Advance having a maturity corresponding to such Interest Period.
Any Lender may fund its Commitment Percentage of each Eurodollar Advance from
or for the account of any branch or office of such Lender as such Lender may
choose from time to time.
<PAGE>
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lenders to enter into this Agreement
and to make the Loans, the Borrower makes the following representations and
warranties to the Agent and each Lender:
4.1. Subsidiaries; Capitalization
As of the Effective Date, the Borrower has only the Subsidiaries set
forth on, and the authorized, issued and outstanding Capital Stock of the
Borrower and each such Subsidiary is as set forth on, Schedule 4.1. Except
as set forth on Schedule 4.1, the shares of, or partnership or other
interests in, each Subsidiary of the Borrower are owned beneficially and of
record by the Borrower or another Subsidiary of the Borrower, are free and
clear of all Liens and are duly authorized, validly issued, fully paid and
nonassessable. Except as set forth on Schedule 4.1, (i) neither the Borrower
nor any of its Subsidiaries has issued any securities convertible into, or
options or warrants for, any common or preferred equity securities thereof,
(ii) there are no agreements, voting trusts or understandings binding upon
the Borrower or any of its Subsidiaries with respect to the voting securities
of the Borrower or any of its Subsidiaries or affecting in any manner the
sale, pledge, assignment or other disposition thereof, including any right
of first refusal, option, redemption, call or other right with respect
thereto, whether similar or dissimilar to any of the foregoing, and (iii) all
of the outstanding Capital Stock of each Subsidiary of the Borrower is owned
by the Borrower or another Subsidiary of the Borrower. The outstanding
Capital Stock of the Borrower is owned by the Parent, as the limited partner
(99% partnership interest), and Baum Investments, Inc., as the general
partner (1% partnership interest).
4.2. Existence and Power
Each of the Borrower and each of its Subsidiaries is duly organized
or formed and validly existing in good standing under the laws of the
jurisdiction of its incorporation or formation, has all requisite power and
authority to own its Property and to carry on its business as now conducted,
and is in good standing and authorized to do business in each juris-
<PAGE>
diction in which the nature of the business conducted therein or the Property
owned by it therein makes such qualification necessary, except where such
failure to qualify could not reasonably be expected to have a Material Adverse
Effect.
4.3. Authority and Execution
Each of the Borrower and each of its Subsidiaries has full legal power
and authority to enter into, execute, deliver and perform the terms of the Loan
Documents to which it is a party all of which have been duly authorized by all
proper and necessary corporate, partnership or other applicable action and are
in full compliance with its Organizational Documents. The Borrower and each of
its Subsidiaries has duly executed and delivered the Loan Documents to which it
is a party.
4.4. Binding Agreement
The Loan Documents (other than the Notes) constitute, and the Notes,
when issued and delivered pursuant hereto for value received, will
constitute, the valid and legally binding obligations of each Credit Party,
in each case, to the extent it is a party thereto, enforceable in accordance
with their respective terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization or other similar laws
affecting the enforcement of creditors' rights generally.
4.5. Litigation
Except as set forth on Schedule 4.5, there are no actions, suits or
proceedings at law or in equity or by or before any Governmental Authority
(whether purportedly on behalf of the Borrower, any of its Subsidiaries or
any other Credit Party) pending or, to the knowledge of the Borrower,
threatened against the Borrower, any of its Subsidiaries or any other Credit
Party or maintained by the Borrower, any of its Subsidiaries or any other
Credit Party or which may affect the Property of the Borrower, any of its
Subsidiaries or any other Credit Party or any of their respective Properties
or rights, which (i) could reasonably be expected to have a Material Adverse
Effect, (ii) call into question the validity or enforceability of, or
otherwise seek to invalidate, any Loan Document, (iii) might, individually or
in the aggregate, materially and adversely affect any of the transactions
contemplated by any Loan Document or (iv) seek to prevent or
<PAGE>
delay the consummation of the Booth Acquisition.
4.6. Required Consents
(a) Except for information filings required to be made in the
ordinary course of business which are not a condition to the performance by
the Borrower or any of its Subsidiaries under the Loan Documents to which it
is a party, no consent, authorization or approval of, filing with, notice to,
or exemption by, stockholders or holders of any other equity interest, any
Governmental Authority or any other Person is required to authorize, or is
required in connection with the execution, delivery or performance of the
Loan Documents to which the Borrower or any of its Subsidiaries is a party or
is required as a condition to the validity or enforceability of the Loan
Documents to which any of the same is a party. The Borrower has obtained all
necessary approvals and consents of, and has filed or caused to be filed all
reports, applications, documents, instruments and information required to be
filed pursuant to all applicable laws, rules, regulations and requests of,
all Governmental Authorities in connection with its borrowing hereunder. The
execution and delivery of the Loan Documents does not constitute the
transfer, assignment or disposition in any manner, voluntarily or
involuntarily, directly or indirectly, of any license issued as of the
Effective Date by the FCC in connection with the operation of any CATV System
of the Borrower and its Subsidiaries, or the transfer of control of any
Credit Party, within the meaning of Section 310(d) of the Communications Act.
(b) No consent, authorization or approval of, filing with, notice
to, or exemption by, stockholders or holders of any other equity interest,
any Governmental Authority or any other Person is required to authorize, or
is required in connection with the execution, delivery and performance of the
Booth Acquisition Documents or is required as a condition to the validity or
enforceability thereof, except for those which have been obtained, made or
given.
4.7. Absence of Defaults; No Conflicting Agreements
(a) Neither the Borrower, any of its Subsidiaries nor any other
Credit Party is in default under any mortgage, indenture, contract or agreement
to which it is a party or by which it or any of its Property is bound, the
effect of which default could reasonably be expected to have a Material
<PAGE>
Adverse Effect. The execution, delivery or carrying out of the terms of the
Transaction Documents will not constitute a default under, or result in the
creation or imposition of, or obligation to create, any Lien (other than a
Lien on the Booth Assets in accordance with the Senior Indenture Documents)
upon any Property of the Borrower or any of its Subsidiaries or result in a
breach of or require the mandatory repayment of or other acceleration of
payment under or pursuant to the terms of any such mortgage, indenture,
contract or agreement.
(b) Neither the Borrower, any of its Subsidiaries nor any other
Credit Party is in default with respect to any judgment, order, writ,
injunction, decree or decision of any Governmental Authority which default could
reasonably be expected to have a Material Adverse Effect.
4.8. Compliance with Applicable Laws
The Borrower and each of its Subsidiaries is complying in all material
respects with all statutes, regulations, rules and orders of all Governmental
Authorities which are applicable to the Borrower or such Subsidiary, a violation
of which could reasonably be expected to have a Material Adverse Effect.
4.9. Taxes
Each of the Borrower and each of its Subsidiaries has filed or
caused to be filed all tax returns required to be filed and has paid, or has
made adequate provision for the payment of, all taxes shown to be due and
payable on said returns or in any assessments made against it (other than
those being contested as required under Section 6.4) which would be material
to the Borrower or any of its Subsidiaries, and no tax Liens have been filed
with respect thereto. The charges, accruals and reserves on the books of the
Borrower and each of its Subsidiaries with respect to all taxes are, to the
best knowledge of the Borrower, adequate for the payment of such taxes, and
the Borrower knows of no unpaid assessment which is due and payable against
the Borrower or any of its Subsidiaries or any claims being asserted which
could reasonably be expected to have a Material Adverse Effect, except such
thereof as are being contested as required under Section 6.4, and for which
adequate reserves have been set aside in accordance with GAAP.
4.10. Governmental Regulations
<PAGE>
Neither the Borrower, any of its Subsidiaries nor any Person
controlled by, controlling, or under common control with, the Borrower or any
of its Subsidiaries, is subject to regulation under the Public Utility
Holding Company Act of 1935, as amended, the Federal Power Act, as amended,
or the Investment Company Act of 1940, as amended, or is subject to any
statute or regulation which prohibits or restricts the incurrence of
Indebtedness, including statutes or regulations relative to common or
contract carriers or to the sale of electricity, gas, steam, water,
telephone, telegraph or other public utility services.
4.11. Federal Reserve Regulations; Use of Loan Proceeds
Neither the Borrower nor any of its Subsidiaries is engaged
principally, or as one of its important activities, in the business of extending
credit for the purpose of purchasing or carrying any Margin Stock. No part of
the proceeds of the Loans has been or will be used, directly or indirectly, to
purchase, acquire or carry any Margin Stock or for a purpose which violates any
law, rule or regulation of any Governmental Authority, including, without
limitation, the provisions of Regulations G, T, U or X of the Board of Governors
of the Federal Reserve System, as amended. Anything in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to or on
behalf of the Borrower in violation of any limitation or prohibition provided by
any applicable law, regulation or statute, including Regulation U of the Board
of Governors of the Federal Reserve System. Margin Stock constitutes less than
25% of the value of the assets of the Borrower and the Borrower and its
Subsidiaries on a Consolidated basis.
4.12. Plans
Neither the Borrower, any Subsidiary nor any ERISA Affiliate has any
Pension Plan or any Employee Benefit Plan that provides for post- retirement
benefits. Each Employee Benefit Plan is in compliance with ERISA and the Code,
where applicable, in all material respects. Each Employee Benefit Plan which is
a group health plan within the meaning of Section 5000(b)(1) of the Code is in
material compliance with the continuation of health care coverage requirements
of Section 4980B of the Code.
<PAGE>
4.13. Financial Statements
(a) The Borrower has heretofore delivered to the Agent and the
Lenders copies of the (i) audited Consolidated Balance Sheets of the Borrower
as of December 31, 1996 and the related Consolidated Statements of Profit and
Loss and Reconciliation of Surplus and Cash Flows for the fiscal year then
ended, (ii) the unaudited Consolidated Balance Sheet of the Borrower as of
March 31, 1997, and the related Consolidated Statements of Profit and Loss
and Reconciliation of Surplus and Cash Flows for the fiscal quarter then
ended and (iii) the unaudited Consolidated Balance Sheet of the Borrower as
of April 30, 1997, and the related Consolidated Statements of Profit and Loss
and Reconciliation of Surplus and Cash Flows for the month then ended (with
the related notes and schedules, the "Financial Statements"). The Financial
Statements fairly present the Consolidated financial condition and results of
the operations of the Borrower and its Subsidiaries as of the dates and for
the periods indicated therein (subject, in the case of such unaudited
statements, to normal year-end adjustments) and have been prepared in
conformity with GAAP. Except as reflected in the Financial Statements or in
the notes thereto, neither the Borrower nor any of its Subsidiaries has any
obligation or liability of any kind (whether fixed, accrued, Contingent,
unmatured or otherwise) which, in accordance with GAAP, should have been
shown on the Financial Statements and was not. Since the date of the
Financial Statements, the Borrower and each of its Subsidiaries has conducted
its business only in the ordinary course and there has been no Material
Adverse Change.
(b) The Borrower has heretofore delivered to the Agent and the
Lenders copies of the pro-forma Consolidated Balance Sheet of the Borrower as
of June 30, 1997 and the related pro/forma Consolidated Statements of Profit
and Loss and Reconciliation of Surplus and Cash Flows for the fiscal quarter
then ended (the "Pro-Forma Financial Statements"). The Pro-Forma Financial
Statements have been prepared on a pro-forma basis after giving effect to the
consummation of the Booth Acquisition and the making of the Loans and fairly
present the Consolidated pro-forma financial condition and pro-forma results
of the operations of the Borrower and its Subsidiaries as of the date and for
the period indicated therein (subject, to normal year-end adjustments) and
have been prepared in conformity with GAAP. Except as reflected in the
Pro-Forma Financial Statements, neither the Borrower nor any of its
Subsidiaries has any obligation or liability of any
<PAGE>
kind (whether fixed, accrued, Contingent, unmatured or otherwise) which, in
accordance with GAAP, should have been shown on the Pro-Forma Financial
Statements and was not. Since the date of the Pro-Forma Financial
Statements, the Borrower and each of its Subsidiaries has conducted its
business only in the ordinary course and there has been no Material Adverse
Change.
4.14. Property
Each of the Borrower and each of its Subsidiaries has good and
marketable title to, or a valid leasehold interest in, all of its real Property,
and is the owner of, or has a valid lease of, all personal property, in each
case which is material to the Borrower and its Subsidiaries, taken as a whole,
subject to no Liens, except Permitted Liens. All leases of Property to the
Borrower or any of its Subsidiaries are in full force and effect, the Borrower
or such Subsidiary, as the case may be, enjoys quiet and undisturbed possession
under all leases of real property and neither the Borrower nor any of its
Subsidiaries is in default beyond any applicable grace period of any provision
thereof, the effect of which could reasonably be expected to have a Material
Adverse Effect.
4.15. Authorizations
Each of the Borrower and each of its Subsidiaries possesses or has
the right to use all franchises, licenses and other rights as are material
and necessary for the conduct of its business (including, without limitation,
those necessary to the operation of the CATV Systems), and with respect to
which it is in compliance, with no known conflict with the valid rights of
others which could reasonably be expected to have a Material Adverse Effect.
No event has occurred which permits or, to the best knowledge of the
Borrower, after notice or the lapse of time or both, or any other condition,
could reasonably be expected to permit, the revocation or termination of any
such franchise, license or other right which revocation or termination could
reasonably be expected to have a Material Adverse Effect.
4.16. Environmental Matters
(a) No Hazardous Substances have been generated or manufactured on,
transported to or from, treated at, stored at or discharged from any Real
Property in violation of any Envi-
<PAGE>
ronmental Laws; no Hazardous Substances have been discharged into subsurface
waters under any Real Property in violation of any Environmental Laws; no
Hazardous Substances have been discharged from any Real Property on or into
Property or waters (including subsurface waters) adjacent to any Real
Property in violation of any Environmental Laws; and there are not now, nor
ever have been, on any Real Property any underground or above ground storage
tanks regulated under any Environmental Laws, which in any case under this
Section 4.16(a) could reasonably be expected to have a Material Adverse
Effect.
(b) Neither the Borrower nor any of its Subsidiaries (i) has
received notice (written or oral) or otherwise learned of any claim, demand,
suit, action, proceeding, event, condition, report, directive, Lien,
violation, non-compliance or investigation indicating or concerning any
potential or actual liability (including potential liability for enforcement,
investigatory costs, cleanup costs, government response costs, removal costs,
remedial costs, natural resources damages, Property damages, personal
injuries or penalties) arising in connection with: (x) any non-compliance
with or violation of the requirements of any applicable Environmental Laws,
or (y) the presence of any Hazardous Substance on any Real Property (or any
Real Property previously owned by the Borrower or any of its Subsidiaries) or
the release or threatened release of any Hazardous Substance into the
environment, (ii) has any threatened or actual liability in connection with
the presence of any Hazardous Substance on any Real Property (or any Real
Property previously owned by the Borrower or any of its Subsidiaries) or the
release or threatened release of any Hazardous Substance into the
environment, (iii) has received notice of any federal or state investigation
evaluating whether any remedial action is needed to respond to the presence
of any Hazardous Substance on any Real Property (or any Real Property
previously owned by the Borrower or any of its Subsidiaries) or a release or
threatened release of any Hazardous Substance into the environment for which
the Borrower or any of its Subsidiaries is or may be liable, or (iv) has
received notice that the Borrower or any of its Subsidiaries is or may be
liable to any Person under any Environmental Law.
4.17. Solvency
Immediately before and after giving effect to the making of the Loans
and consummation of the Booth Acquisition, the Borrower and each of its
Subsidiaries is and will be Sol-
<PAGE>
vent.
4.18. Absence of Certain Restrictions
No indenture, certificate of designation for preferred stock,
agreement or instrument to which the Borrower or any of its Subsidiaries is a
party (other than this Agreement), prohibits or limits in any way, directly or
indirectly the ability of any Subsidiary of the Borrower to make Restricted
Payments or repay any Indebtedness to the Borrower or to another Subsidiary of
the Borrower.
4.19. Status as Pari Passu Indebtedness
The Indebtedness of the Borrower and the Subsidiaries under the Loan
Documents constitutes "Pari Passu Indebtedness" under and as defined in the
Senior Indenture.
4.20. No Misrepresentation
No representation or warranty contained in any Loan Document and no
certificate or report from time to time furnished by the Borrower or any of
its Subsidiaries in connection with the transactions contemplated thereby,
contains or will contain a misstatement of material fact or omits or will
omit to state a material fact required to be stated in order to make the
statements therein contained not misleading in the light of the circumstances
under which made, provided that any projections or pro-forma financial
information contained therein are based upon good faith estimates and
assumptions believed by the Borrower to be reasonable at the time made, it
being recognized by the Agent and the Lenders that such projections as to
future events are not to be viewed as facts, and that actual results during
the period or periods covered thereby may differ from the projected results.
4.21. FCC and Copyright Matters.
Each of the Borrower and its Subsidiaries (a) has duly and timely
filed all cable television registration statements and other filings that are
required to be filed by the Borrower and each of its Subsidiaries under the
Communications Act, the failure to file of which could reasonably be expected
to have a Material Adverse Effect, and (b) is complying in all material
respects with the Communications Act, including, without limitation, the
rules, regulations and published policies of the FCC relating to the
transmission of
<PAGE>
television, cable and microwave signals, a violation of which could reasonably
be expected to have a Material Adverse Effect. Neither the Borrower nor any of
its Subsidiaries has any knowledge that it has not recorded or deposited with
and paid to the United States Copyright Office, the Register of Copyrights and
the Copyright Royalty Tribunal all material notices, statements of account,
royalty fees and other documents and instruments required under the Copyright
Act, and, to the knowledge of the Borrower, neither the Borrower nor any of its
Subsidiaries is liable in any material respect to any Person for copyright
infringement under the Copyright Act as a result of its business operations.
Each of the Borrower and its Subsidiaries has filed or caused to be filed with
the FCC all reports, applications, documents, instruments and information
required to be filed pursuant to all FCC rules, regulations and requests the
failure to file of which could reasonably be expected to have a Material Adverse
Effect.
5. CONDITIONS TO LOANS
5.1. Evidence of Action
The Agent shall have received a certificate, dated the Borrowing
Date, of the Secretary or Assistant Secretary or other analogous counterpart
of each Credit Party (i) attaching a true and complete copy of the
resolutions of its Managing Person and of all documents evidencing all
necessary corporate, partnership or similar action (in form and substance
satisfactory to the Agent) taken by it to authorize the Transaction Documents
to which it is a party and the transactions contemplated thereby, (ii)
attaching a true and complete copy of its Organizational Documents, (iii)
setting forth the incumbency of its officer or officers or other analogous
counterpart who may sign the Loan Documents, including therein a signature
specimen of such officer or officers and (iv) if available, attaching a
certificate of good standing of the Secretary of State of the jurisdiction of
its formation and of each other jurisdiction in which it is qualified to do
business, except, in the case of such other jurisdiction, when the failure to
be in good standing in such jurisdiction would not have a Material Adverse
Effect.
5.2. This Agreement
The Agent shall have received counterparts of this
<PAGE>
Agreement, duly executed by an Authorized Signatory of the Borrower and each of
the other parties hereto.
5.3. Notes
The Agent shall have
received the Notes, duly executed by an Authorized Signatory of the Borrower.
5.4. Absence of Litigation
There shall be no injunction, writ, preliminary restraining order or
other order of any nature issued by any Governmental Authority in any respect
affecting the transactions provided for in the Transaction Documents and no
action or proceeding by or before any Governmental Authority has been
commenced and is pending or, to the knowledge of the Borrower, threatened,
seeking to prevent or delay the transactions contemplated by the Transaction
Documents or challenging any other terms and provisions hereof or thereof or
seeking any damages in connection therewith, and the Agent shall have
received a certificate, in all respects satisfactory to the Agent, of an
Authorized Signatory of the Borrower to the foregoing effects.
5.5. Approvals and Consents
All approvals and consents of all Persons required to be obtained in
connection with the consummation of the transactions contemplated by the
Transaction Documents shall have been obtained and shall be in full force and
effect (except for those approvals and consents which in the aggregate are not
material to the consummation of the Booth Acquisition and will not adversely
affect in any material respect the Borrower's ability to conduct the Booth
Business or the Operating Cash Flow derived therefrom), and all required notices
have been given and all required waiting periods shall have expired, including
under the HSR Act, and the Agent shall have received a certificate, in all
respects satisfactory to the Agent, of an Authorized Signatory of the Borrower
to the foregoing effects.
5.6. Absence of Material Adverse Change
No material adverse change in the business, assets, liabilities,
financial condition or results of operations of the Booth Business has occurred
and the Agent shall have
<PAGE>
received a certificate, in all respects satisfactory to
the Agent, of an Authorized Signatory of the Borrower to the foregoing effect.
5.7. Financial Officer's Certificate
The Agent shall have received a certificate of a Financial Officer of
the Borrower, dated the Borrowing Date, in all respects satisfactory to the
Agent certifying that, after giving effect to the (i) consummation of the Booth
Acquisition and (ii) the making of the Loans on the Borrowing Date, the Borrower
and each of its Subsidiaries is Solvent.
5.8. Opinion of Counsel to the Parent, the Borrower and its Subsidiaries
The Agent shall have received an opinion of Richard A. Hainbach,
Esq., general counsel of the Parent, the Borrower and its Subsidiaries,
addressed to the Agent and the Lenders (and permitting Special Counsel to
rely thereon), and dated the Borrowing Date, substantially in the form of
Exhibit J. It is understood that such opinion is being delivered to the
Agent and the Lenders upon the direction of the Parent, the Borrower and its
Subsidiaries and that the Agent and the Lenders may and will rely on such
opinion.
5.9. Opinion of Special Counsel
The Agent shall have received an opinion of Special Counsel, addressed
to the Agent and the Lenders and dated the Borrowing Date substantially in the
form of Exhibit K.
5.10. Borrower Security Agreement
The Agent shall have received the Borrower Security Agreement, duly
executed by an Authorized Signatory of the Borrower and dated the Borrowing
Date, together with the following:
(a) one or more share certificates, representing all of the
issued and outstanding Capital Stock of each Subsidiary of the Borrower,
together with, in the case of corporate Stock, one undated stock power, executed
in blank by an Authorized Signatory of the Borrower and bearing a signature
guarantee in all respects satisfactory to the Agent, in respect of each such
certificate;
<PAGE>
(b) Transaction Statements in the form of Annex A to the
Borrower Security Agreement, executed by an Authorized Signatory of the
Borrower, with respect to each Uncertificated Security (defined therein) owned
by the Borrower constituting Collateral thereunder;
(c) Instruments constituting Collateral, duly indorsed in blank
by an Authorized Signatory of the Borrower;
(d) Grants of Security Interest in Patents and Trademarks in the
form of Annexes B-1 and B-2 to the Borrower Security Agreement;
(e) such UCC Financing Statements, executed by the Borrower,
as shall be reasonably requested by the Agent in order to perfect the
security interest in any collateral security granted under the Borrower
Security Agreement; and
(f) such other documents as the Agent may require in
connection with the perfection of its security interests therein.
5.11. Subsidiary Guaranty
The Agent shall have received the Subsidiary Guaranty, duly executed
by an Authorized Signatory of each Subsidiary of the Borrower, together with the
following:
(a) one or more share certificates, representing all of the
issued and outstanding Capital Stock of each Subsidiary owned by each such
Subsidiary, together with, in the case of corporate Stock, one undated stock
power, executed in blank by an Authorized Signatory of such Subsidiary and
bearing a signature guarantee in all respects satisfactory to the Agent, in
respect of each such certificate,
(b) Transaction Statements in the form of Annex A to the
Subsidiary Guaranty, executed by an Authorized Signatory of each Subsidiary
Guarantor, with respect to each Uncertificated Security (defined therein)
owned by such Subsidiary constituting Collateral thereunder;
(c) Instruments constituting Collateral, duly indorsed in blank
by an Authorized Signatory of the Subsidiary which is the owner thereof;
<PAGE>
(d) Grants of Security Interest in Patents and Trademarks in the
form of Annexes B-1 and B-2 to the Subsidiary Guaranty;
(e) such UCC Financing Statements, executed by an Authorized
Signatory of each Subsidiary Guarantor, as shall be reasonably requested by the
Agent in order to perfect the security interest in any collateral security
granted under the Subsidiary Guaranty; and
(f) such other documents as the Agent may require in
connection with the perfection of its security interests therein.
5.12. Parent Security Agreement
The Agent shall have received the Parent Security Agreement, duly
executed by an Authorized Signatory of each of the Parent and the Borrower,
dated the Borrowing Date, together with the following:
(a) Transaction Statements in the form of Annex A to the Parent
Security Agreement, executed by an Authorized Signatory of the Parent, with
respect to each Uncertificated Security (defined therein) owned by the Parent
constituting Col
lateral thereunder;
(b) such UCC Financing Statements, executed by an Authorized
Signatory of the Parent, as shall be reasonably requested by the Agent in order
to perfect the security interest in any collateral security granted under the
Parent Security Agreement; and
(c) such other documents as the Agent may require in connection
with the perfection of its security interests therein.
5.13. Subordination Agreement
The Agent shall have received the Subordination Agreement, duly
executed by an Authorized Signatory of Helicon Corp. and the Borrower.
5.14. Search Reports and Related Documents
<PAGE>
The Agent shall have received (i) UCC, tax and judgment lien, patent
and trademark search reports in all respects satisfactory to the Agent with
respect to each applicable public office where Liens are or may be filed
disclosing that there are no Liens of record in such official's office
covering any Property of the Borrower, any of its Subsidiaries or the Parent
or showing the Borrower, any of its Subsidiaries or the Parent as debtor
thereunder (other than Permitted Liens) and (ii) a certificate of the
Borrower signed by an Authorized Signatory thereof, dated the Borrowing Date,
certifying that, upon the making of Loans on the Borrowing Date, there will
exist no Liens on any Property of the Borrower, any of its Subsidiaries or
the Parent other than Permitted Liens.
5.15. Booth Acquisition; Certificate
(a) The Booth Acquisition shall have been consummated.
(b) The Agent shall have received a certificate of an Authorized
Signatory of the Borrower, in all respects satisfactory to the Agent and dated
the Borrowing Date, (i) attaching a true and complete copy of each of the fully
executed Booth Acquisition Documents, (ii) certifying that (A) each thereof is
in full force and effect and (B) the Booth Acquisition has been consummated in
accordance with the Booth Acquisition Documents without any waiver or
modification of any of the conditions thereto (except for a waiver or
modification with respect to approvals and consents which in the aggregate are
not material to the consummation of the Booth Acquisition and will not adversely
affect in any material respect the Borrower's ability to conduct the Booth
Business or the Operating Cash Flow derived therefrom) and (iii) certifying that
the total acquisition cost of the Booth Acquisition is not greater than
$20,000,000.
5.16. Pro-Forma Compliance Certificate
The Agent shall have received a certificate of a Financial Officer of
the Borrower, in all respects reasonably satisfactory to the Agent, dated the
Borrowing Date, attaching a pro-forma Compliance Certificate (after giving
effect to the making of the Loans and the consummation of the Booth Acquisition
and based upon the Pro-Forma Financial Statements).
<PAGE>
5.17. Material Agreements
The Agent shall have received a fully executed copy of each of the
Material Agreements, in each case certified to be a true and complete copy
thereof by an Authorized Signatory of the Borrower, each of which shall be in
form and substance satisfactory to the Agent.
5.18. Property, Public Liability and Other Insurance
The Agent shall have received a certificate of all insurance
maintained by the Borrower and its Subsidiaries in form and substance
reasonably satisfactory to the Agent, together with the endorsements required
by Section 6.5.
5.19. Fees
All fees payable to the Agent and the Lenders on the Borrowing Date
shall have been paid.
5.20. Fees and Expenses of Special Counsel
The fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of the Loan Documents shall have been paid.
5.21. Compliance
On the Borrowing Date and after giving effect to the making of the
Loans (i) there shall exist no Default or Event of Default, (ii) the
representations and warranties contained in the Loan Documents shall be true
and correct with the same effect as though such representations and
warranties had been made on the Borrowing Date, (iii) each Credit Party shall
be in compliance with all of the terms, covenants and conditions of the Loan
Documents to which it is a party and (iv) the Agent shall have received a
certificate from a Financial Officer of the Borrower to such effect.
5.22. Subscriber Reports
A subscriber report in respect of each CATV System by region as of the
most recent month-end prior to the date of this Agreement, if any.
5.23. Required Filings and Approvals
<PAGE>
Evidence satisfactory to the Agent and its counsel that all filings
and registrations with, and all material approvals, orders, authorizations,
franchises, consents, licenses, certificates and permits (including, without
limitation, all CATV Franchises and FCC Licenses) from, all Governmental
Authorities (including the FCC), and all other Persons which are or may be
required prerequisites to the validity, enforceability or non-voidability of the
Transaction Documents, the consummation of the Booth Acquisition and the grant
of the security interests pursuant to the Collateral Documents have been made or
obtained, and the Agent shall have received a certificate from an Authorized
Signatory of the Borrower to the foregoing effect.
5.24. Cumulative Leakage Index
Copies of the most recent Cumulative Leakage Index reports for the
Borrower (including with respect to the Booth Assets), if available, together
with such other reports on environmental matters as the Agent may reasonably
request, each of which shall be in form and substance satisfactory to the Agent
and the Lenders.
5.25. Projections
The Agent shall have received such projections and other financial
information as it shall have requested with respect to the Borrower and the
Booth Acquisition.
5.26. Intercreditor Agreement
The Agent shall have received a copy of the Intercreditor Agreement
(as defined in the Senior Indenture), duly executed by all parties thereto.
5.27. Fleet Debt
The Indebtedness evidenced by the Loan Agreement, dated as of December
19, 1994, between the Borrower and Helicon Capital Corp. and Fleet Bank shall
have been repaid in full, all Liens securing such Indebtedness shall have been
released and the Intercreditor Agreement, dated as of December 19, 1994, among
Fleet Bank, Shawmut Bank Connecticut, National Association, as trustee under the
Senior Indenture, the Borrower and Helicon Capital Corp. shall have been
terminated, and the Agent shall have received a certificate from an Authorized
Signatory of the Borrower to the foregoing effect.
<PAGE>
5.28. Borrowing Request
The Agent shall have received a Borrowing Request, duly executed by an
Authorized Signatory of the Borrower.
5.29. Loan Closings
All documents required by the provisions of the Loan Documents to be
executed or delivered to the Agent or any Lender on or before the Borrowing Date
shall have been so executed and delivered on or before the Borrowing Date.
5.30. Other Documents
Each of the Agent and the Lenders shall have received such other
documents, each in form and substance reasonably satisfactory to it, as it shall
reasonably require in connection with the making of the Loans on the Borrowing
Date.
6. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any Loan
remains outstanding and unpaid, or any other amount is owing under any Loan
Document to any Lender or the Agent, the Borrower shall:
6.1. Financial Statements and Information
Maintain, and cause each of its Subsidiaries to maintain, a standard
system of accounting in accordance with GAAP, and furnish or cause to be
furnished to the Agent and each Lender:
(a) As soon as available, but in any event within 90 days
after the end of each fiscal year, a copy of its Consolidated Balance Sheet
as at the end of such fiscal year, together with the related Consolidated
Statements of Profit and Loss and Reconciliation of Surplus and Cash Flows as
of and through the end of such fiscal year, setting forth in each case in
comparative form the figures for the preceding fiscal year. The Consolidated
Balance Sheets and Consolidated Statements of Profit and Loss and
Reconciliation of Surplus and Cash Flows shall be audited and certified
without qualification by the Accountants, which certification shall
<PAGE>
(i) state that the examination by such Accountants in connection with such
Consolidated financial statements has been made in accordance with generally
accepted auditing standards and, accordingly, included such tests of the
accounting records and such other auditing procedures as were considered
necessary in the circumstances, and (ii) include the opinion of such
Accountants that such Consolidated financial statements have been prepared in
accordance with GAAP in a manner consistent with prior fiscal periods, except
as otherwise specified in such opinion. Notwithstanding the foregoing, the
Borrower may satisfy its obligation to furnish the annual Consolidated
financial statements referred to above with respect to any fiscal year by
furnishing copies of the Borrower's annual report on Form 10-K in respect of
such fiscal year, together with the financial statements required to be
attached thereto, provided the Borrower is required to file such annual
report on Form 10-K with the SEC and such filing is actually made.
(b) As soon as available, but in any event within 45 days after
the end of each of the first three fiscal quarters of each fiscal year, a copy
of the Consolidated Balance Sheet of the Borrower as at the end of each such
quarterly period, together with the related Consolidated Statements of Profit
and Loss and Reconciliation of Surplus and Cash Flows for such period and for
the elapsed portion of the fiscal year through such date, setting forth in each
case in comparative form the figures for the corresponding periods of the
preceding fiscal year, certified by a Financial Officer of the Borrower, as
being complete and correct in all material respects and as presenting fairly the
Consolidated financial condition and the Consolidated results of operations of
the Borrower and its Subsidiaries. Notwithstanding the foregoing, the Borrower
may satisfy its obligation to furnish the quarterly Consolidated financial
statements referred to above with respect to any fiscal quarter by furnishing
copies of the Borrower's quarterly report on Form 10-Q in respect of such fiscal
quarter, together with the financial statements required to be attached thereto,
provided the Borrower is required to file such quarterly report on Form 10-Q
with the SEC and such filing is actually made.
(c) Within 45 days after the end of each of the first three
fiscal quarters (90 days after the end of the last fiscal quarter), a Compliance
Certificate, certified by a Financial Officer of the Borrower.
(d) Within 30 days after the close of each
<PAGE>
month, for the Borrower and its Subsidiaries on a Consolidated basis, monthly
operating statistics for such month including Consolidated profit and loss
statements for such month and for the period from the beginning of the current
fiscal year to the end of such month and subscriber reports and a balance sheet
as of the end of such month, all in form and substance satisfactory to the Agent
and certified by a Financial Officer of the Borrower.
(e) As soon as available and in any event within 60 days after
the first day of each fiscal year of the Borrower, a copy of the plan and
forecast (including a projected Consolidated income statement and funds flow
statement) of the Borrower for such fiscal year.
(f) Promptly upon the request of the Agent or any Lender, copies
of all material amendments or renewals of material franchises, licenses,
consents, approvals and authorizations granted or issued by any Governmental
Authority, necessary and appropriate to operate the CATV Systems and of any
other material communications between the Borrower or any Subsidiary and the FCC
or any other Governmental Authority having jurisdiction over the Borrower or
such Subsidiary.
(g) Such other information as the Agent or any Lender may
reasonably request from time to time.
6.2. Certificates; Other Information
Furnish to the Agent and each Lender:
(a) Prompt written notice if: (i) any Indebtedness of the
Borrower or any of its Subsidiaries in an aggregate amount in excess of
$500,000 is declared or shall become due and payable prior to its stated
maturity, or is called and not paid when due, (ii) a default shall have
occurred under, or the holder or obligee of, any note (other than the Notes),
certificate, security or other evidence of Indebtedness, with respect to any
other Indebtedness of the Borrower or any of its Subsidiaries has the right
to declare Indebtedness $500,000 due and payable prior to its stated maturity
or (iii) there shall occur and be continuing a Default or an Event of Default;
(b) Prompt written notice of: (i) any citation, summons,
subpoena, order to show cause or other document
<PAGE>
naming the Borrower or any of its Subsidiaries a party to any proceeding
before any Governmental Authority which could reasonably be expected to have
a Material Adverse Effect or which calls into question the validity or
enforceability of any of the Loan Documents, and include with such notice a
copy of such citation, summons, subpoena, order to show cause or other
document, (ii) any lapse or other termination of any material license,
permit, franchise or other authorization issued to the Borrower or any of its
Subsidiaries by any Person or Governmental Authority, and (iii) any refusal
by any Person or Governmental Authority to renew or extend any such material
license, permit, franchise or other authorization, which lapse, termination,
refusal or dispute could reasonably be expected to have a Material Adverse
Effect;
(c) Promptly upon becoming available, copies of all (i)
registration statements, regular, periodic or special reports, schedules and
other material which the Borrower or any of its Subsidiaries may now or
hereafter be required to file with or deliver to any securities exchange or the
SEC, and (ii) material news releases and annual reports relating to the Borrower
or any of its Subsidiaries;
(d) Prompt written notice in the event that the Borrower, any
of its Subsidiaries or any ERISA Affiliate knows, or has reason to know, that
(i) the Borrower, any of its Subsidiaries or any ERISA Affiliate has engaged
in a Prohibited Transaction with respect to an Employee Benefit Plan or (ii)
the assessment of a civil penalty under Section 502(c) of ERISA, together
with a certificate of a Financial Officer of the Borrower setting forth the
details of such event and the action which the Borrower, such Subsidiary or
such ERISA Affiliate proposes to take with respect thereto, together with a
copy of all notices and filings with respect thereto.
(e) Prompt written notice of any order, notice, claim or
proceeding received by, or brought against, the Borrower or any of its
Subsidiaries, or with respect to any of the Real Property, under any
Environmental Law.
(f) In the event that the Agent shall have a reasonable basis
for believing that Hazardous Substances may be on, at, under or around any Real
Property in violation of any applicable Environmental Law, conduct and complete
(at the Borrower's expense) all investigations, studies, samplings and testings
relative to such Hazardous Substances as the Agent
<PAGE>
may reasonably request.
(g) Such other information as the Agent or any Lender shall
reasonably request from time to time.
6.3. Notice of Default, Etc.
Promptly notify the Agent, and will cause each Subsidiary to promptly
notify the Agent, of the occurrence of (a) any Default or Event of Default and
of any other development, financial or otherwise, which could reasonably be
expected to have a Material Adverse Effect; (b) the receipt by the Borrower or
any Subsidiary of any notice from any Governmental Authority of the expiration
without renewal, termination, material modification or suspension of, or
institution of any proceedings to terminate, materially modify, or suspend, any
CATV Franchise, FCC License or other license granted by any Governmental
Authority now or hereafter held by the Borrower or any Subsidiary the lack of
which could reasonably be expected to have a Material Adverse Effect; or (c) any
state or local statute, regulation or ordinance or judicial or administrative
order, or any federal judicial or administrative order specifically addressed to
the Borrower or any Subsidiary, limiting or controlling the operations of the
Borrower or any Subsidiary which has been issued or adopted hereafter and which
could reasonably be expected to have a Material Adverse Effect.
6.4. Taxes
Pay and discharge when due, and cause each of its Subsidiaries so to
do, all Taxes upon or with respect to the Borrower or such Subsidiary and all
Taxes upon the income, profits and Property of the Borrower and its
Subsidiaries, which if unpaid, could reasonably be expected to have a
Material Adverse Effect or become a Lien on Property of the Borrower or such
Subsidiary (other than a Lien described in Section 7.2(i)), unless and to the
extent only that such Taxes shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such
Subsidiary and provided that any such contested Tax, shall not constitute, or
create, a Lien on any Property of the Borrower or such Subsidiary senior to
the Liens, if any, granted to the Agent and the Lenders by the Collateral
Documents on such Property, and, provided further, that the Borrower shall
give the Agent prompt notice of such contest and that such reserve or other
appropriate provision as shall be required by the Ac-
<PAGE>
countants in accordance with GAAP shall have been made therefor.
6.5. Insurance
(a) Maintain, and cause each of its Subsidiaries to maintain,
insurance with financially sound insurance carriers on such of its Property,
against at least such risks, and in at least such amounts, as are usually
insured against by similar businesses, including public liability (bodily injury
and property damage), fidelity and workers' compensation with deductibles which
are customary for companies engaged in similar businesses, and which, in the
case of property insurance, shall be against all risks; and file with the Agent
within ten days after request therefor a detailed list of such insurance then in
effect, stating the names of the carriers thereof, the policy numbers, the
insureds thereunder, the amounts of insurance, dates of expiration thereof, and
the Property and risks covered thereby, together with a certificate of the
Financial Officer (or such other officer as shall be acceptable to the Agent) of
the Borrower certifying that in the opinion of such officer such insurance is
adequate in nature and amount, complies with the obligations of the Borrower
under this Section, and is in full force and effect.
(b) Insurance Covering Collateral. Promptly upon request therefor,
deliver or cause to be delivered to the Agent originals or duplicate originals
of all such policies of insurance. All such insurance policies in respect of
property insurance shall contain a standard loss payable clause and shall be
endorsed to provide that, in respect of the interests of the Agent and the
Lenders: (i) the Agent shall be an additional insured, (ii) 30 days' prior
written notice of any cancellation, reduction of amounts payable, or any changes
and amendments shall be given to the Agent, and (iii) the Agent shall have the
right, but not the obligation, to pay any premiums due or to acquire other such
insurance upon the failure of the Borrower or such Subsidiary to pay the same or
to so insure. All property insurance policies shall name the Agent as a co-
loss payee in respect of each claim relating to the Collateral and resulting in
a payment under any such insurance policy exceeding $500,000. Provided that no
Default or Event of Default shall exist, the Agent agrees, promptly upon its
receipt thereof, to pay over to the Borrower the proceeds of such payment to
enable the Borrower to repair, restore or replace the Property subject to such
claim. To the extent that the Borrower elects not to repair, restore or replace
such
<PAGE>
Property, such proceeds, together with any Condemnation proceeds which the
Borrower or any Subsidiary may receive, shall be immediately applied to the
prepayment of the Loans in accordance with Section 2.4(b). If a Default or
Event of Default shall then exist, the Agent shall (i) hold the proceeds of such
payment as Collateral until such Default or Event of Default shall no longer
exist and then pay over the same to the Borrower to enable the Borrower to
repair, restore or replace or cause to be repaired, restored or replaced the
Property subject to the claim which resulted in such payment or (ii) hold such
proceeds as Collateral and apply the same to the obligations of the Borrower
under the Loan Documents in such order, in such amounts and at such times as the
Agent, with the consent of Required Lenders, shall decide.
(c) Concurrent Insurance. Neither the Borrower nor any of its
Subsidiaries shall take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained
pursuant to subsection (b) above unless the Borrower shall have given the
Agent prior written notice thereof and caused the insurance policy to name
the Agent as an additional insured and a co-loss payee thereunder and to be
endorsed in the manner required by subsection (b) above.
6.6. Performance of Obligations
Pay and discharge when due, and cause each of its Subsidiaries so to
do, all lawful Indebtedness, obligations and claims for labor, materials and
supplies or otherwise which, if unpaid, might (i) have a Material Adverse
Effect, or (ii) become a Lien upon Property of the Borrower or any of its
Subsidiaries other than a Permitted Lien, unless and to the extent only that
the validity of such Indebtedness, obligation or claim shall be contested in
good faith and by appropriate proceedings diligently conducted and that any
such contested Indebtedness, obligations or claims shall not constitute, or
create, a Lien on any Property of the Borrower or any of its Subsidiaries
senior to the Lien, if any, granted to the Agent under the Collateral
Documents on such Property, and provided that the Borrower shall give the
Agent prompt notice of any such contest and that such reserve or other
appropriate provision as shall be required by the Accountants in accordance
with GAAP shall have been made therefor.
6.7. Condition of Property
<PAGE>
At all times, maintain, protect and keep in good repair, working order
and condition (ordinary wear and tear excepted), and cause each of its
Subsidiaries so to do, all Property necessary to the operation of the Borrower's
or such Subsidiary's business.
6.8. Observance of Legal Requirements
Observe and comply in all respects, and cause each of its
Subsidiaries so to do, with all laws, ordinances, orders, judgments, rules,
regulations, certifications, franchises, permits, licenses, directions and
requirements of all Governmental Authorities, which now or at any time
hereafter may be applicable to it, a violation of which could reasonably be
expected to have a Material Adverse Effect, except such thereof as shall be
contested in good faith and by appropriate proceedings diligently conducted
by it, provided that the Bor rower shall give the Agent prompt notice of such
contest and that such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have been made
therefor.
6.9. Inspection of Property; Books and Records; Discussions
At all reasonable times, upon reasonable prior notice, permit
representatives of the Agent and each Lender to visit the offices of the
Borrower and each of its Subsidiaries, to examine the books and records thereof
and Accountants' reports relating thereto, and to make copies or extracts
therefrom, to discuss the affairs of the Borrower and each such Subsidiary with
the respective officers thereof, and to examine and inspect the Property of the
Borrower and each such Subsidiary and to meet and discuss the affairs of the
Borrower and each such Subsidiary with the Accountants.
6.10. Authorizations
Maintain, and cause each of its Subsidiaries to maintain, in full
force and effect, all material licenses, franchises, permits, licenses,
authorizations and other rights as are necessary for the conduct of its
business.
6.11. Financial Covenants
(a) Interest Coverage Ratio. Maintain as of the last day of each
fiscal quarter during each period set forth
<PAGE>
below, an Interest Coverage Ratio of not less than the applicable ratio set
forth below for such period:
Period Ratio
-------- -------
Effective Date through
December 31, 1998 1.50:1.00
January 1, 1999 and
thereafter 1.75:1.00.
(b) Fixed Charge Coverage Ratio. Maintain as of the last day of each
fiscal quarter a Fixed Charge Coverage Ratio of not less than 1.05:1.00.
(c) Leverage Ratio. Maintain at all times during each period set
forth below, a Leverage Ratio of not more than the applicable ratio set forth
below for such period:
Period Ratio
-------- -------
Effective Date through
December 31, 1998 6.25:1.00
January 1, 1999 through
June 30, 1999 5.85:1.00
July 1, 1999 through
December 31, 1999 5:50:1.00
January 1, 2000 and
thereafter 5.00:1.00.
6.12. Additional Subsidiaries
At any time after the Effective Date upon which a Person shall have
become a Subsidiary of the Borrower, (i) cause such Subsidiary to become a
party to the Subsidiary Guaranty, in accordance with the terms thereof, on
and as of such date and to deliver or cause to be delivered to the Agent,
simultaneously with the execution and delivery of the same, (A) a
certificate, dated the date such Subsidiary shall have become a party to the
Subsidiary Guaranty, executed by such Subsidiary and substantially in the
form of, and with substantially the same attachments as, the certificate
which would have been required under Section 5.1 if such Subsidiary
<PAGE>
had become a party to the Subsidiary Guaranty on or before the Borrowing
Date, (B) if requested by the Agent, an opinion of counsel to such
Subsidiary, covering the same matters with respect to such Subsidiary as were
covered by the opinions delivered pursuant to Section 5.8, in form and
substance satisfactory to the Agent, (C) such certificates, stock powers,
instruments, Grants of Security Interest, Transaction Statements, UCC
Financing Statements and UCC, tax and judgment lien searches which would have
been required under Section 5.11 and 5.13 if such Subsidiary had become a
party to the Subsidiary Guaranty on the Borrowing Date, (ii) deliver such
certificates, stock powers and other documents as may by required by the
applicable Collateral Documents and such other documents as the Agent shall
request.
6.13. Interest Rate Protection Arrangements
At all times, maintain at least 66.7% of the outstanding principal
amount of the sum of the Senior Indenture Notes and the Notes at a fixed rate of
interest (not subject to any Rate Protection Agreements providing for a floating
or changing interest rate) or at a floating or changing interest rate (subject
to Rate Protection Agreements providing for a fixed interest rate or interest
rate cap satisfactory to the Agent).
6.14. Conduct of Business, Maintenance of Licenses.
(i) Carry on and conduct its business, and cause each Subsidiary so to
do, in the ordinary course in substantially the same manner and in substantially
the same fields of enterprise as it is presently conducted; (ii) do all things
necessary, and cause each Subsidiary so to do, to remain duly organized, validly
existing and in good standing as a domestic limited liability company,
partnership, or corporation in its jurisdiction of organization and maintain all
requisite authority to conduct its business in each jurisdiction in which the
failure to maintain such authority could reasonably be expected to
have a Material Adverse Effect; (iii) preserve the tax status of the Borrower as
a limited partnership under the Code and other applicable law; and (iv) do all
things necessary, and cause each Subsidiary so to do, to renew, extend and
continue in effect all permits, licenses and authorizations which may at any
time and from time to time be necessary to operate the CATV Systems in
compliance with all applicable laws and regulations, the failure to comply with
which could reasonably be expected to
<PAGE>
have a Material Adverse Effect.
7. NEGATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any Loan
remains outstanding and unpaid, or any other amount is owing under any Loan
Document to any Lender or the Agent, the Borrower shall not, directly or
indirectly:
7.1. Indebtedness
Create, incur, assume or suffer to exist any liability for
Indebtedness, or permit any of its Subsidiaries so to do, except (i)
Indebtedness due under the Loan Documents, (ii) Indebtedness of the Borrower
under the Senior Indenture Notes, (iii) Indebtedness of the Borrower under the
Affiliate Note, (iv) Indebtedness of the Borrower in the outstanding principal
amount of $1,851,604 (as of 12/31/96, with interest thereon for the period from
1/01/97 through 12/31/97 to be capitalized and added to such principal amount),
payable to Simmons Communications Company, L.P., incurred in connection with the
Borrower's acquisition of certain Vermont cable television systems, and
Indebtedness of the Borrower in the outstanding principal amount of $281,292 (as
of June 1, 1997), payable to Passumpsic Savings Bank secured by the Borrower's
office building in Danville, Vermont and (v) additional Indebtedness of the
Borrower under Capital Lease Obligations and purchase money Indebtedness in the
aggregate outstanding principal amount not exceeding $1,500,000.
7.2. Liens
Create, incur, assume or suffer to exist any Lien upon any of its
Property, whether now owned or hereafter acquired, or permit any of its
Subsidiaries so to do, except (i) Liens for Taxes in the ordinary course of
business which are not delinquent or which are being contested in accordance
with Section 6.4, provided that enforcement of such Liens is stayed pending such
contest, (ii) Liens in connection with workers' compensation, unemployment
insurance or other social security obligations (but not ERISA), (iii) deposits
or pledges to secure bids, tenders, contracts (other than contracts for the
payment of money), leases, statutory obligations, surety and appeal bonds and
other obligations of like nature arising in the ordinary course of business,
(iv) zoning ordinances, easements, rights of way, minor defects, irregularities,
and other
<PAGE>
similar restrictions affecting real Property which do not adversely af fect
the value of such real Property or the financial condition of the Borrower or
such Subsidiary or impair its use for the operation of the business of the
Borrower or such Subsidiary, (v) Liens arising by operation of law such as
mechanics', materialmen's, carriers', warehousemen's liens incurred in the
ordinary course of business which are not delinquent or which are being
contested in accordance with Section 6.6, provided that enforcement of such
Liens is stayed pending such contest, (vi) Liens arising out of judgments or
decrees which are being contested in accordance with Section 6.6, provided
that enforcement of such Liens is stayed pending such contest, (vii) Liens in
favor of the Agent and the Lenders under the Loan Documents, (viii) Liens
described on Schedule 7.2 securing Indebtedness permitted by Section 7.1(ii)
and (iv) and (ix) Liens securing Indebtedness permitted by Section 7.1(v),
provided that such Liens attach only to the Property financed with the
applicable Capital Lease Obligations or purchase money Indebtedness permitted
by such Section 7.1(v), and provided further that any intercreditor agreement
required to be entered into pursuant to the Senior Indenture with respect to
such Capital Lease Obligations or purchase money Indebtedness shall be in all
respects satisfactory to the Agent.
7.3. Merger, Consolidations and Acquisitions
Consolidate with, be acquired by, merge into or with any Person, make
any Acquisition or enter into any binding agreement to do any of the foregoing
which is not contingent on obtaining the consent of the Required Lenders, or
permit any of its Subsidiaries so to do, except:
(a) Capital Expenditures permitted by Section 7.7; and
(b) Investments permitted by Section 7.5.
7.4. Dispositions
Make any Disposition, or permit any of its Subsidiaries so to do,
except:
(a) Dispositions of any Investments permitted under Section
7.5(a);
<PAGE>
(b) Dispositions of notes receivable or accounts receivable,
with or without recourse in the ordinary course of business and on terms and
conditions customary in the Borrower's or such Subsidiary's business; and
(c) Dispositions of Property which, in the reasonable opinion
of the Borrower or such Subsidiary, is not material and is either obsolete or
no longer useful in the conduct of its business, provided that the Borrower
shall prepay the Loans with the Net Cash Proceeds derived from such
disposition in accordance with Section 2.4(b).
7.5. Investments, Loans, Etc.
At any time, directly or indirectly, purchase or otherwise hold,
own, acquire or invest in the Capital Stock of, evidence of indebtedness or
other obligation or security issued by, any other Person, or make any loan or
advance to, or enter into any arrangement for the purpose of providing funds
or credit to, or make any Acquisition (other than a Permitted Acquisition),
or become a partner or joint venturer in any partnership or joint venture, or
make any other investment (whether in cash or other Property) in any other
Person, or make any commitment or otherwise to agree to do any of the
foregoing (all of which are sometimes referred to herein as "Investments"),
or permit any of its Subsidiaries so to do, or except:
(a) Investments in Cash Equivalents;
(b) Investments existing on the Effective Date as set forth on
Schedule 7.5;
(c) normal business banking accounts and short-term
certificates of deposit and time deposits in, or issued by, federally insured
institutions in amounts not exceeding the limits of such insurance; and
(d) Investments by the Borrower or any Subsidiary in
Intercompany Indebtedness permitted under Section 7.1, provided that any such
Intercompany Indebtedness shall be evidenced by a promissory note and such
note shall be pledged to the Agent under the applicable Collateral Document.
7.6. Restricted Payments
Declare or pay any Restricted Payments payable in
<PAGE>
cash or otherwise or apply any of its Property thereto or set apart any sum
therefor, or permit any of its Subsidiaries so to do, except that: (i) a wholly-
owned Subsidiary may declare and pay Restricted Payments to another wholly-owned
Subsidiary or to the Borrower and (ii) provided that no Default or Event of
Default has occurred and is then continuing or would occur giving effect
thereto, the Borrower may in any fiscal year pay Management Fees in cash in
arrears in an aggregate amount not in excess of 5% of Consolidated revenues for
such fiscal year; provided that any Management Fees which may not be paid
pursuant hereto shall be deferred to a date after the payment in full of all
Obligations and shall be subordinated pursuant to the subordination provisions
of the Subordination Agreement. Notwithstanding anything to the contrary
contained herein, no Management Fees shall be payable to any Person other than
Helicon Corp., and no Management Fees may be paid if a Default or Event of
Default shall exist.
7.7. Capital Expenditures.
Make any Capital Expenditures, or incur any obligation to make Capital
Expenditures, or permit any of its Subsidiaries so to do, in an aggregate
Consolidated amount in excess of $8,500,000 in any fiscal year. Capital
Expenditures shall be calculated on a noncumulative basis so that amounts not
expended in a fiscal year may not be carried over and expended in any subsequent
fiscal year.
7.8. Business and Name Changes
Change in any material respect the nature of the business of the
Borrower and its Subsidiaries as conducted on the Effective Date, or alter or
modify its name, structure or status, or change its fiscal year from that in
effect on the Effective Date, or permit any of its Subsidiaries so to do.
7.9. ERISA
Establish or contribute, or permit any of its Subsidiaries or any
ERISA Affiliates so to do, to any Pension Plan or any Employee Benefit Plan
that provides for post-retirement benefits.
7.10. Prepayments of Indebtedness
Prepay or obligate itself to prepay (whether by payment, purchase,
defeasance or otherwise), in whole or in
<PAGE>
part, any Indebtedness (other than the Indebtedness under the Loan Documents),
or permit any of its Subsidiaries so to do, except (i) for mandatory prepayments
of the Senior Indenture Notes, provided that the Borrower shall make a
simultaneous prepayment of the Loans on a pro rata basis in accordance with the
relative outstanding principal amount of the Loans and the Senior Indenture
Notes, and (ii) the Borrower may prepay the Affiliate Note in an amount not
exceeding $3,000,000, provided that the Borrower shall make a simultaneous
prepayment of the Loans in an equal amount and immediately before and after
giving effect thereto no Default or Event of Default shall exist.
7.11. Amendments, Etc. of Certain Agreements
Enter into or agree to any amendment, modification or waiver of any
term or condition of (i) its Organizational Documents in any way which could
reasonably be expected to have a Material Adverse Effect, or permit any of
its Subsidiaries so to do, or (ii) any of the Material Agreements (except for
modifications and waivers of the Booth Acquisition Documents to the extent
contemplated by Section 5.15(b)).
7.12. Transactions with Affiliates
Become a party to any transaction with an Affiliate unless the
Borrower's Managing Person shall have determined that the terms and conditions
relating thereto are as favorable to the Borrower as those which would be
obtainable at the time in a comparable arms-length transaction with a Person
other than an Affiliate, or permit any of its Subsidiaries so to do.
7.13. Issuance of Additional Capital Stock
Issue any additional Capital Stock, or permit any Subsidiary so do do,
except that the Borrower may issue additional Capital Stock (other than Capital
Stock subject to mandatory redemption (or redemption at the option of the holder
thereof), mandatory dividends or other mandatory distributions in whole or in
part), provided that (i) no Default or Event of Default shall exist immediately
before or after giving effect thereto, (ii) simultaneously therewith such
Capital Stock shall be pledged by the Parent to the Agent pursuant to the Parent
Security Agreement and (iii) the Borrower shall prepay the Loans with the Net
Cash Proceeds
<PAGE>
derived therefrom in accordance with Section 2.4(b).
7.14. Limitation on Upstream Transfers by Subsidiaries
Permit or cause any of its Subsidiaries to enter into or agree, or
otherwise be or become subject, to any agreement, contract or other arrangement
(other than this Agreement) with any Person pursuant to the terms of which such
Subsidiary is or would be prohibited or restricted from declaring or paying any
cash dividends or distributions on any class of its Capital Stock owned directly
or indirectly by the Borrower or any of the other Subsidiaries or from making
any loans or other advances to the Borrower (herein referred to as "Upstream
Transfers").
7.15. Limitation on Negative Pledges
Enter into any agreement, other than (i) this Agreement and (ii) the
Senior Indenture Documents, or permit any of its Subsidiaries so to do, which
prohibits or limits the ability of the Borrower or such Subsidiary to create,
incur, assume or suffer to exist any Lien upon any of its Property or revenues,
whether now owned or hereafter acquired.
7.16. Additional Subsidiaries
Create or otherwise acquire any Subsidiary on or after the Effective
Date.
8. DEFAULT
8.1. Events of Default
The following shall each constitute an "Event of Default" hereunder:
(a) The failure of the Borrower to make any payment of principal
on any Note when due and payable; or
(b) The failure of the Borrower to make any payment of
interest, Fees, expenses or other amounts payable under any Loan Document or
otherwise to the Agent with respect to the loan facilities established
hereunder within three Business Days of the date when due and payable; or
<PAGE>
(c) The failure of the Borrower to observe or perform any
covenant or agreement contained in Sections 2.5, 6.5, 6.11, 6.12 or Section 7;
or
(d) The failure of any Credit Party to observe or perform any
other term, covenant, or agreement contained in any Loan Document and such
failure shall have continued unremedied for a period of 30 days after such
Credit Party shall have obtained knowledge thereof; or
(e) Any representation or warranty made by any Credit Party (or
by an officer thereof on its behalf) in any Loan Document or in any certificate,
report, opinion (other than an opinion of counsel) or other document delivered
or to be delivered pursuant thereto, shall prove to have been incorrect or
misleading (whether because of misstatement or omission) in any material respect
when made; or
(f) Liabilities and/or other obligations of the Borrower
(other than its obligations hereunder), any of its Subsidiaries or any other
Credit Party, whether as principal, guarantor, surety or other obligor, for
the payment of any Indebtedness in an aggregate amount in excess of
$1,000,000 (i) shall become or shall be declared to be due and payable prior
to the expressed maturity thereof, or (ii) shall not be paid when due or
within any grace period for the payment thereof, (iii) any holder of any such
obligation shall have the right to declare such obligation due and payable
prior to the expressed maturity thereof or (iv) as a consequence of the
occurrence or continuation of any event or condition, the Borrower, any of
its Subsidiaries or any other Credit Party, has become obligated to purchase,
repay or post cash collateral in respect of any Indebtedness before its
regularly scheduled maturity date;
(g) Any license, franchise, permit, right, approval or
agreement of the Borrower, any of its Subsidiaries or any other Credit Party,
is not renewed, or is suspended, revoked or terminated and the non-renewal,
suspension, revocation or termination thereof would have a Material Adverse
Effect; or
(h) The Borrower, any of its Subsidiaries or any other Credit
Party, shall (i) suspend or discontinue its business, (ii) make an assignment
for the benefit of creditors, (iii) generally not be paying its debts as such
debts
<PAGE>
become due, (iv) admit in writing its inability to pay its debts as they
become due, (v) file a voluntary petition in bankruptcy, (vi) become
insolvent (however such insolvency shall be evidenced), (vii) file any
petition or answer seeking for itself any reorganization, arrangement,
composition, readjustment of debt, liquidation or dissolution or similar
relief under any present or future statute, law or regulation of any
jurisdiction, (viii) petition or apply to any tribunal for any receiver,
custodian or any trustee for any substantial part of its Property, (ix) be
the subject of any such proceeding filed against it which remains undismissed
for a period of 45 days, (x) file any answer admitting or not contesting the
material allegations of any such petition filed against it or any order,
judgment or decree approving such petition in any such proceeding, (xi) seek,
approve, consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, sequestrator, custodian, liquidator, or
fiscal agent for it, or any substantial part of its Property, or an order is
entered appointing any such trustee, receiver, custodian, liquidator or
fiscal agent and such order remains in effect for 45 days, or (xii) take any
formal action for the purpose of effecting any of the foregoing or looking to
the liquidation or dissolution of the Borrower, such Subsidiary or such other
Credit Party; or
(i) An order for relief is entered under the bankruptcy or
insolvency laws of any jurisdiction or any other decree or order is entered
by a court having jurisdiction (i) adjudging the Borrower, any of its
Subsidiaries or any other Credit Party, bankrupt or insolvent, (ii) approving
as properly filed a petition seeking reorganization, liquidation,
arrangement, adjustment or composition of or in respect of the Borrower, any
of its Subsidiaries or any other Credit Party, under the bankruptcy or
insolvency laws of any jurisdiction, (iii) appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator (or other similar official) of the
Borrower, any of its Subsidiaries or any other Credit Party, or of any
substantial part of the Property of any thereof, or (iv) ordering the winding
up or liquidation of the affairs of the Borrower, any of its Subsidiaries or
any other Credit Party, and any such decree or order continues unstayed and
in effect for a period of 45 days; or
(j) Judgments or decrees against the Borrower, any of its
Subsidiaries or any other Credit Party, aggregating in excess of $250,000,
which are not being appropriately contested in good faith, shall remain
unpaid, unstayed on ap-
<PAGE>
peal, undischarged, unbonded or undismissed for a period of 30 days; or
(k) Any Loan Document shall cease, for any reason, to be in
full force and effect, or any Credit Party shall so assert in writing or
shall disavow any of its obligations under any Loan Document, or any "Event
of Default" shall have occurred under, and as such term is defined in, any
Loan Document; or
(l) The occurrence of a Change of Control; or
(m) (i) any Person shall engage in any Prohibited Transaction
involving any Employee Benefit Plan; (ii) the assessment of a civil penalty with
respect to any Employee Benefit Plan under Section 502(c) of ERISA; or (iii) any
other event or condition shall occur or exist with respect to an Employee
Benefit Plan which in the case of clauses (i) through (iii) would, individually
or in the aggregate, have a Material Adverse Effect; or
(n) (i) Any license, authorization, consent or permit
(including, without limitation, any CATV Franchise or FCC License) necessary for
the ownership or essential for the operation by the Borrower or any Subsidiary
of any CATV System shall expire, and on or prior to such expiration, the same
shall not have been renewed or replaced by another license, authorization,
consent or permit authorizing substantially the same operations of such CATV
System; or (ii) any license, authorization, consent or permit (including,
without limitation, any CATV Franchise or FCC License) necessary for the
ownership or essential for the operation of any CATV System shall be cancelled,
revoked, terminated, rescinded, annulled, suspended or modified in a materially
adverse respect, or shall no longer be in full force and effect, or the grant or
the effectiveness thereof shall have been stayed, vacated, reversed or set
aside, and such action shall be no longer subject to further administrative or
judicial review; or (iii) the FCC shall have issued any hearing designation
order in any non-comparative license renewal proceeding or any license
revocation proceeding involving any license necessary for the ownership or
essential for the operation of any CATV Systems; or (iv) in any comparative
(multiple applicant) license renewal proceeding involving any license necessary
for the ownership or essential for the operation of any CATV System, any
administrative law judge of the FCC (or successor to the functions of an
administrative law judge of the FCC)
<PAGE>
shall have issued an initial decision to the effect that the Borrower or any
Subsidiary lacks the qualifications to own or operate such CATV System, and such
initial decision shall not have been timely appealed or shall otherwise have
become an order that is final and no longer subject to further administrative or
judicial review, (provided, however, that none of the foregoing events described
in clause (i), (ii), (iii) or (iv) of this Section 8.1(n) shall constitute a
Default if, assuming the final and non-appealable loss by the Borrower or any
Subsidiary of any such license, authorization, consent or permit at the
conclusion of all legal proceedings incident thereto, such loss would not have a
Material Adverse Effect); or (v) any CATV System shall fail for any period of
five consecutive calendar days to operate and the revenue stream derived from
the particular CATV System failing to so operate is material to the revenue
stream of the Borrower and the Subsidiaries taken as a whole; or
(o) Any court, government or governmental agency shall condemn,
seize or otherwise appropriate, or take custody or control of (each a
"Condemnation"), all or any portion of the Property of the Borrower and its
Subsidiaries which, when taken together with all other Property of the Borrower
and its Subsidiaries so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in which any
such Condemnation occurs, constitutes a Substantial Portion; or
(p) The Borrower or any of its Subsidiaries shall be the subject
to any proceeding or investigation pertaining to the release by the Borrower or
any of its Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment, or any violation of any federal, state or local
environmental, health or safety law or regulation (including, without
limitation, those relating to the Cumulative Leakage Index), which, in either
case, could reasonably be expected to have a Material Adverse Effect; or
(q) Nonpayment by the Borrower of any Rate Hedging Obligation
when due or the breach by the Borrower of any term, provision or condition
contained in any Rate Hedging Agreement beyond any applicable grace period for
such breach; or
(r) Twenty-five percent (25%) or more of the value of any class
of equity interests in the Borrower shall
<PAGE>
be held by "benefit plan investors" within the meaning of 29 C.F.R. Section
2510.3-101(f).
8.2. Contract Remedies
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (i) if such event is an Event of
Default specified in clause (h) or (i) above, the Commitments of all of the
Lenders shall immediately and automatically terminate and the Loans, all
accrued and unpaid interest thereon and all other amounts owing under the
Loan Documents shall immediately become due and payable, and (ii) if such
event is any other Event of Default, any or all of the following actions may
be taken: (A) with the consent of the Required Lenders, the Agent may, and
upon the direction of the Required Lenders shall, by notice to the Borrower,
declare the Commitments of all of the Lenders terminated forthwith, whereupon
such Commitments shall immediately terminate, and (B) with the consent of the
Required Lenders, the Agent may, and upon the direction of the Required
Lenders shall, by notice of default to the Borrower, declare the Loans, all
accrued and unpaid interest thereon and all other amounts owing under the
Loan Documents to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as otherwise provided in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived. Each of the Borrower and the other Credit Parties
hereby further expressly waives and covenants not to assert any appraisement,
valuation, stay, extension, redemption or similar laws, now or at any time
hereafter in force which might delay, prevent or otherwise impede the
performance or enforcement of any Loan Document.
(b) In the event that the Commitments of all the Lenders shall have
been terminated or the Loans, all accrued and unpaid interest thereon and all
other amounts owing under the Loan Documents shall have been declared due and
payable pursuant to the provisions of this Section, any funds received by the
Agent and the Lenders from or on behalf of the Borrower shall be applied by
the Agent and the Lenders in liquidation of the Loans and the other
obligations of the Borrower under the Loan Documents in the following manner
and order: (i) first, to the payment of interest on, and then the principal
portion of, any Loans which the Agent may have advanced on behalf of any
Lender for which the Agent has not then been reimbursed by such Lender or the
Borrower; (ii) second, to the payment of any fees or expenses due the Agent
from the
<PAGE>
Borrower, (iii) third, to reimburse the Agent and the Lenders for any
expenses (to the extent not paid pursuant to clause (ii) above) due from the
Borrower pursuant to the provisions of Section 10.5; (iv) fourth, to the
payment of accrued Fees and all other fees, expenses and amounts due under
the Loan Documents (other than principal and interest on the Loans), (v)
fifth, to the payment pro rata according to the outstanding principal balance
of the Loans, of interest due on the Loans of each Lender; (vi) sixth, to the
payment, pro rata according to the outstanding principal balance of the
Loans, of principal outstanding on the Loans; and (vii) seventh, to the
payment of any other amounts owing to the Agent and the Lenders under any
Loan Document.
(c) Notwithstanding any other provision of the Loan Documents, it is
the intention of the parties hereto that the security interests and Liens of the
Agent in and on the Collateral shall in all relevant aspects be subject to and
governed by the Communications Act or any successor statute or statutes thereto
and the respective rules and regulations thereunder, as well as any other
federal, state, or other law applicable to or having jurisdiction over the
Borrower's or any Subsidiary's industry or the Borrower or any Subsidiary, and
that nothing in this Agreement shall be construed to diminish the control
exercised by the Borrower except in accordance with the provisions of such
statutory requirements and rules and regulations and the terms and conditions of
this Agreement. In connection with any exercise by the Agent or any Lender of
its right and remedies under the Collateral Documents, it may be necessary to
obtain the prior consent or approval of certain Persons, including but not
limited to the FCC and other applicable governmental authorities. Upon the
exercise by the Agent or the Lenders of any power, right, privilege or remedy
pursuant to any Collateral Document which requires any consent, approval,
registration, qualification or authorization of any Person, the Borrower will
execute and deliver, or will cause the execution and delivery of, all
applications, certificates, instruments, and other documents and papers that the
Agent or the Lenders may be required to obtain for such consent, approval,
registration, qualification or authorization. Without limiting the generality
of the foregoing, the Borrower will use its best efforts to obtain from the
appropriate Persons the necessary consents and approvals, if any, for the
effectuation of any sale or sales of Franchises (as defined in the Collateral
Documents) upon the occurrence and during the continuance of a Default; and for
the exercise of any other right or remedy of the Agent and
<PAGE>
Lenders under any Collateral Document. The Agent and the Lenders will cooperate
with the Borrower in preparing the filing with any Persons of all requisite
applications required to be obtained by the Borrower under this Section.
9. THE AGENT
9.1. Appointment
Each Lender hereby irrevocably designates and appoints BP as the
Agent of such Lender under the Loan Documents and each Lender hereby
irrevocably authorizes the Agent to take such action on its behalf under the
provisions of the Loan Documents and to exercise such powers and perform such
duties as are expressly delegated to the Agent by the terms of the Loan
Documents, together with such other powers as are reasonably incidental
thereto. The duties of the Agent shall be mechanical and administrative in
nature, and, notwithstanding any provision to the contrary elsewhere in any
Loan Document, the Agent shall not have any duties or responsibilities other
than those expressly set forth therein, or any fiduciary relationship with,
or fiduciary duty to, any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into the
Loan Documents or otherwise exist against the Agent.
9.2. Delegation of Duties
The Agent may execute any of its duties under the Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to rely upon, and
shall be fully protected in, and shall not be under any liability for, relying
upon, the advice of counsel concerning all matters pertaining to such duties.
9.3. Exculpatory Provisions
Neither the Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates shall be (A) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with the Loan Documents (except the Agent for its own gross
negligence or willful misconduct), or (B) responsible in any manner to any of
the Lenders for any recitals, statements, representations or warranties made
by the Borrower or any other Credit Party or any officer thereof contained in
the Loan Documents
<PAGE>
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Agent under or in connection with, the
Loan Documents or for the value, validity, effectiveness, genuineness,
perfection, enforceability or sufficiency of any of the Loan Documents or for
any failure of the Borrower or any other Credit Party or any other Person to
perform its obligations thereunder. The Agent shall not be under any
obligation any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, the Loan
Documents, or to inspect the Property, books or records of the Borrower or
any other Credit Party. The Lenders acknowledge that the Agent shall not be
under any duty to take any discretionary action permitted under the Loan
Documents unless the Agent shall be instructed in writing to do so by
Required Lenders and such instructions shall be binding on all Lenders and
all holders of the Notes; provided, however, that the Agent shall not be
required to take any action which exposes the Agent to personal liability or
is contrary to law or any provision of the Loan Documents. The Agent shall
not be under any liability or responsibility whatsoever, as Agent, to the
Borrower or any other Credit Party or any other Person as a consequence of
any failure or delay in performance, or any breach, by any Lender of any of
its obligations under any of the Loan Documents.
9.4. Reliance by Agent
The Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate,
affidavit, opinion, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by a proper
Person or Persons and upon advice and statements of legal counsel (including
counsel to the Borrower or any other Credit Party), independent accountants
and other experts selected by the Agent. The Agent may treat each Lender or
the Person designated in the last notice filed with it under this Section, as
the holder of all of the interests of such Lender in its Loans and Note until
written notice of transfer, signed by such Lender (or the Person designated
in the last notice filed with the Agent) and by the Person designated in such
written notice of transfer, in form and substance satisfactory to the Agent,
shall have been filed with the Agent. The Agent shall not be under any duty
to examine or pass upon the validity, effectiveness, enforceability
<PAGE>
or genuineness of the Loan Documents or any instrument, document or
communication furnished pursuant thereto or in connection therewith, and the
Agent shall be entitled to assume that the same are valid, effective and
genuine, have been signed or sent by the proper parties and are what they
purport to be. The Agent shall be fully justified in failing or refusing to
take any action under the Loan Documents unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under the Loan Documents in accordance with a request or direction of
the Required Lenders, and such request or direction and any action taken or
failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Notes.
9.5. Notice of Default
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default unless the Agent has received
written notice thereof from a Lender or the Borrower. In the event that the
Agent receives such a notice, the Agent shall promptly give notice thereof to
the Lenders and the Borrower.
9.6. Non-Reliance on Agent and Other Lenders
Each Lender expressly acknowledges that neither the Agent nor any of
its respective officers, directors, employees, agents, attorneys-in-fact or
affiliates has made any representations or warranties to it and that no act
by the Agent hereinafter, including any review of the affairs of the Borrower
or any other Credit Party, shall be deemed to constitute any representation
or warranty by the Agent to any Lender. Each Lender represents to the Agent
that it has, independently and without reliance upon the Agent or any Lender,
and based on such documents and information as it has deemed appropriate made
its own evaluation of and investigation into the business, operations,
Property, financial and other condition and creditworthiness of the Borrower
or any other Credit Party and the value and Lien status of any collateral
security and made its own decision to enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon the
Agent or any Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
evaluations and decisions in taking or not taking action under any Loan
Document,
<PAGE>
and to make such investigation as it deems necessary to inform itself as to
the business, operations, Property, financial and other condition and
creditworthiness of the Borrower or any other Credit Party and the value and
Lien status of any collateral security. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, operations, Property, financial and other condition or
creditworthiness of the Borrower or any other Credit Party which at any time
may come into the possession of the Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.7. Indemnification
Each Lender agrees to indemnify and hold harmless the Agent in its
capacity as such (to the extent not promptly reimbursed by the Borrower and
without limiting the obligation of the Borrower to do so), pro rata according
to the aggregate of the outstanding principal balance of the Loans (or at any
time when no Loans are outstanding, according to its Commitment Percentage),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever including any amounts paid to the Lenders (through the Agent)
by the Borrower or any other Credit Party pursuant to the terms of the Loan
Documents, that are subsequently rescinded or avoided, or must otherwise be
restored or returned) which may at any time (including at any time following
the payment of the Loans and Notes) be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of the Loan Documents
or any other documents contemplated by or referred to therein or the
transactions contemplated thereby or any action taken or omitted to be taken
by the Agent under or in connection with any of the foregoing; provided,
however, that no Lender shall be liable for the payment of any portion of
such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements to the extent resulting
solely from the finally adjudicated gross negligence or willful misconduct of
the Agent. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its pro rata share of any unpaid
fees owing to the Agent, and any costs and expenses (including reasonable
fees and expenses of counsel) payable by the Borrower under Section 10.5, to
the extent that the Agent has not been paid such fees or has not been
reimbursed for
<PAGE>
such costs and expenses, by the Borrower. The failure of any Lender to
reimburse the Agent promptly upon demand for its pro rata share of any amount
required to be paid by the Lenders to the Agent as provided in this Section
shall not relieve any other Lender of its obligation hereunder to reimburse
the Agent for its pro rata share of such amount, but no Lender shall be
responsible for the failure of other Lender to reimburse the Agent for such
other Lender's pro rata share of such amount. The agreements in this Section
shall survive the termination of the Commitments of all of the Lenders and
the payment of all amounts payable under the Loan Documents.
9.8. Agent in Its Individual Capacity
BP and its affiliates may make secured or unsecured loans to, accept
deposits from, issue letters of credit for the account of, act as trustee
under indentures of, and generally engage in any kind of business with, the
Borrower or any other Credit Party as though BP were not Agent hereunder.
With re spect to the Commitment made or renewed by BP and the Note issued to
BP, BP shall have the same rights and powers under the Loan Documents as any
Lender and may exercise the same as though it were not the Agent, and the
terms "Lender" and "Lenders" shall in each case include BP.
9.9. Successor Agent
If at any time the Agent deems it advisable, in its sole discretion,
it may submit to each of the Lenders a written notice of its resignation as
Agent under the Loan Documents, such resignation to be effective upon the
earlier of (i) the written acceptance of the duties of the Agent under the
Loan Documents by a successor Agent and (ii) on the 30th day after the date
of such notice. Upon any such resignation, the Required Lenders shall have
the right to appoint from among the Lenders a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and
accepted such appointment in writing within 30 days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which successor Agent shall
be a commercial bank organized under the laws of the United States or any
State thereof and having a combined capital, surplus, and undivided profits
of at least $100,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed
to and become vested with all the rights, powers, privileges and duties of
the retiring
<PAGE>
Agent, and the retiring Agent's rights, powers, privileges and duties as
Agent under the Loan Documents shall be terminated. The Borrower, the other
Credit Parties and the Lenders shall execute such documents as shall be
necessary to effect such appointment. After any retiring Agent's resignation
as Agent, the provisions of the Loan Documents shall inure to its benefit as
to any actions taken or omitted to be taken by it, and any amounts owing to
it, while it was Agent under the Loan Documents. If at any time there shall
not be a duly appointed and acting Agent, the Borrower agrees to make each
payment due under the Loan Documents directly and the Lenders entitled
thereto during such time.
10. OTHER PROVISIONS
10.1. Amendments and Waivers
Notwithstanding anything to the contrary contained in any Loan
Document, with the written consent of the Required Lenders, the Agent and the
appropriate parties to the Loan Documents (other than the Lenders) may, from
time to time, enter into written amendments, supplements or modifications
thereof and, with the consent of the Required Lenders, the Agent on behalf of
the Lenders, may execute and deliver to any such parties a written instrument
waiving or consenting to the departure from, on such terms and conditions as
the Agent may specify in such instrument, any of the requirements of the Loan
Documents or any Default or Event of Default and its consequences; provided,
however, that no such amendment, supplement, modification, waiver or consent
shall:
(a) without the consent of all of the Lenders (i) increase the
Commitment Amount of any Lender, (ii) extend the Commitment Period, (iii)
reduce the rate, or extend the time of payment of, interest on any Loan or
any Note, (iv) reduce the amount, or extend the time of payment of any
installment or other payment of principal on any Loan or any Note, (v)
decrease or forgive the principal amount of any Loan or any Note, (vi)
consent to any assignment or delegation by the Borrower of any of its rights
or obligations under any Loan Document, (vii) release all or any of the
obligations of any Credit Party under the Loan Documents (other than in
<PAGE>
connection with (A) a Disposition by or of such Credit Party permitted by
Section 7.4 or (B) any release specifically provided for in the Loan
Documents), (viii) release any Collateral or any security interest therein
(other than in connection with (A) a Disposition permitted under Section 7.4
or (B) any release specifically provided for in the Loan Documents), (ix)
change the provisions of Section 3.3, 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 8.1(a),
this Section 10.1 or Section 10.7(a), (x) change the definition of "Required
Lenders", (xi) change the several nature of the Lenders' obligations, or
(xii) change any provision governing the sharing of payments and liabilities
among the Lenders; and
(b) without the written consent of the Agent, amend, modify or waive
any provision of Section 9 or otherwise change any of the rights or obligations
of the Agent under any Loan Document.
Any such amendment, supplement, modification, waiver or consent
shall apply equally to the Agent and each of the Lenders and shall be binding
upon the parties to the applicable Loan Document, the Lenders, the Agent and
all future holders of the Notes. In the case of any waiver, the parties to
the applicable Loan Document, the Lenders and the Agent shall be restored to
their former position and rights hereunder and under the outstanding Notes
and other Loan Documents to the extent provided for in such waiver, and any
Default or Event of Default waived shall not extend to any subsequent or
other Default or Event of Default, or impair any right consequent thereon.
Notwithstanding anything to the contrary contained in any Loan Document, the
Agent may, at any time and from time to time without the consent of any one
or more of the Lenders, release any Collateral or any security interest
therein in connection with (A) any disposition of such Collateral permitted
by Section 7.4 or (B) any release specifically provided for in the Loan
Documents.
10.2. Notices
All notices, requests and demands to or upon the respective parties to
the Loan Documents to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been duly given or made when
delivered by hand, one Business Day after having been sent by overnight courier
service, or three Business Days after having been deposited in the mail,
first-class postage prepaid, or, in the case of notice by telecopy, when sent,
addressed as follows in the case of the Borrower or the Agent, addressed to the
Domestic Lending Office, in the case of each Lender, or addressed to such other
addresses as to which the Agent may be
<PAGE>
hereafter notified by the respective parties thereto or any future holders of
the Notes:
The Borrower:
The Helicon Group, L.P.
630 Palisades Avenue
Englewood, New Jersey 07632
Attention: Herbert J. Roberts,
Senior VP, CFO and Treasurer
Telephone: (201) 568-7720
Facsimile: (201) 568-6228
with a copy, in the case of notice of the occurrence of an Event of
Default, to:
The Helicon Group, L.P.
630 Palisades Avenue
Englewood, New Jersey 07632
Attention: General Counsel
Telephone: (201) 568-7720
Facsimile: (201) 568-6228
The Agent:
Notices
Banque Paribas
787 Seventh Avenue
New York, New York 10019
Attention: Philippe Vuarchex
Telephone: (212) 841-2226
Facsimile: (212) 841-2369
except that any notice, request or demand by the Borrower to or upon the Agent
or the Lenders pursuant to Sections 2.3 or 3.3 shall not be effective until
received. Any party to a Loan Document may rely on signatures of the parties
thereto which are transmitted by telecopy or other electronic means as fully as
if originally signed.
All payments to the Agent shall be made to:
Banque Paribas
<PAGE>
787 Seventh Avenue
New York, New York 10019
or to such other office as the Agent shall from time to time designate.
10.3. No Waiver; Cumulative Remedies
No failure to exercise and no delay in exercising, on the part of the
Agent or any Lender, any right, remedy, power or privilege under any Loan
Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege under any Loan Document
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege. The rights, remedies, powers and privileges
under the Loan Documents are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
10.4. Survival of Representations and Warranties and Certain
Obligations
(a) All representations and warranties made under the Loan Documents
and in any document, certificate or statement delivered pursuant thereto or in
connection therewith shall survive the execution and delivery of the Loan
Documents.
(b) The obligations of the Borrower under Sections 3.3, 3.4, 3.5,
3.6, 3.7, 3.8, 3.9, 10.5 and 10.8 shall survive the termination of the
Commitments of all of the Lenders and the payment of the Loans and all other
amounts payable under the Loan Documents.
10.5. Expenses
The Borrower agrees, promptly upon presentation of a statement or
invoice therefor, and whether any Loan is made (i) to pay or reimburse the
Agent for all their respective out-of-pocket costs and expenses reasonably
incurred in connection with the development, preparation, execution and
syndication of, the Loan Documents and any amendment, supplement or
modification thereto (whether or not executed or effective), any documents
prepared in connection therewith and the consummation of the transactions
contemplated thereby, including the reasonable fees and disbursements of
Special Counsel, (ii) to pay or reimburse each of the Agent and the
<PAGE>
Lenders for all of its costs and expenses, including reasonable fees and
disbursements of counsel, incurred in connection with (A) any Default or
Event of Default and any enforcement or collection proceedings resulting
therefrom or in connection with the negotiation of any restructuring or
"work-out" (whether consummated or not) of the obligations of any Credit
Party under any of the Loan Documents and (B) the enforcement of this Section
and (iii) to pay, indemnify, and hold each of the Lenders, and the Agent
harmless from and against, any and all recording and filing fees and any and
all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other similar taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect
of, the Loan Documents and any such other documents, and (iv) to pay,
indemnify and hold each of the Lenders and the Agent and each of its
officers, directors and employees harmless from and against any and all other
liabilities, obligations, claims, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including reasonable counsel fees and disbursements) with respect
to the enforcement and performance of the Loan Documents, the use of the
proceeds of the Loans and the enforcement and performance of the provisions
of any subordination agreement involving the Agent and the Lenders (all the
foregoing, collectively, the "Indemnified Liabilities") and, if and to the
extent that the foregoing indemnity may be unenforceable for any reason, the
Borrower agrees to make the maximum payment not prohibited under applicable
law; provided, however, that the Borrower shall have no obligation to pay
Indemnified Liabilities to the Agent or any Lender arising from the finally
adjudicated gross negligence or willful misconduct of the Agent or such
Lender or claims between one indemnified party and another indemnified party.
The agreements in this Section shall survive the termination of the
Commitments of all of the Lenders and the payment of all amounts payable
under the Loan Documents.
10.6. Lending Offices
(a) Each Lender shall have the right at any time and from time to
time to transfer its Loans to a different office, provided that such Lender
shall promptly notify the Agent and the Borrower of any such change of office.
Such office shall thereupon become such Lender's Domestic Lending
<PAGE>
Office or Eurodollar Lending Office, as the case may be, provided, however, that
no Lender shall be entitled to receive any greater amount under Sections 3.3,
3.4, 3.5 and 3.8 as a result of a transfer of any such Loans to a different
office of such Lender than it would be entitled to immediately prior thereto
unless such claim would have arisen even if such transfer had not occurred.
(b) Each Lender agrees that, upon the occurrence of any event giving
rise to any increased cost or indemnity under Sections 3.3, 3.4, 3.5 and 3.8
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event, provided
that such designation is made on such terms that such Lender and its lending
office suffer no economic, legal or regulatory disadvantage, with the object of
avoiding the consequence of the event giving rise to the operation of any such
Section. Nothing in this Section shall affect or postpone any of the
obligations of the Borrower or the right of any Lender provided in Sections 3.3,
3.4, 3.5 and 3.8.
10.7. Assignments and Participations
(a) The Loan Documents shall be binding upon and inure to the benefit
of the Borrower, the Lenders, the Agent, all future holders of the Notes, and
their respective successors and assigns, except that neither the Borrower nor
any other Credit Party may assign, delegate or transfer any of its rights or
obligations under the Loan Documents without the prior written consent of the
Agent and each Lender.
(b) Each Lender shall have the right at any time, upon written notice
to the Agent of its intent to do so, to sell, assign, transfer or negotiate all
or any part of its rights and obligations under the Loan Documents to one or
more of its affiliates, to one or more of the other Lenders (or to affiliates of
such other Lenders) or, with the prior written consent of the Agent (which
consent shall not be unreasonably withheld) to sell, assign, transfer or
negotiate all or any part of its rights and obligations under the Loan Documents
to any Eligible Assignee, provided that (i) each such sale, assignment, transfer
or negotiation (other than sales, assignments, transfers or negotiations (x) to
its affiliates or (y) its entire interest) shall be in a minimum amount of
$2,500,000 and whole multiples of $500,000 in excess thereof
<PAGE>
and (ii) in the case of each Lender other than BP, it shall pay a fee to the
Agent in the amount of $3,500. For each assignment, the parties to such
assignment shall execute and deliver to the Agent for its acceptance an
Assignment and Acceptance Agreement. Upon such execution, delivery, acceptance
and the recording thereof by the Agent, from and after the effective date
specified in such Assignment and Acceptance Agreement, the assignee thereunder
shall be a party hereto and, to the extent provided in such Assignment and
Acceptance Agreement, the assignor Lender thereunder shall be released from its
obligations under the Loan Documents. The Borrower agrees upon written request
of the Agent and at the Borrower's expense to execute and deliver (1) to such
assignee, a Note, dated the Borrowing Date, in a principal amount equal to the
portion of the Loan assigned to such assignee and (2) to such assignor Lender if
it did not assign its entire interest, a Note, dated the Borrowing Date, in a
principal amount equal to the balance of such assignor Lender's Loan, if any,
and each assignor Lender shall cancel and return to the Borrower its existing
Note. Upon any such sale, assignment or other transfer prior to the Borrowing
Date, the Commitment Amounts, if applicable, set forth in Exhibit A shall be
adjusted accordingly by the Agent and a new Exhibit A shall be distributed by
the Agent.
(c) Each Lender may, with the prior written consent of the Agent
(which consent shall not be unreasonably withheld), grant participations in
all or any part of its rights under the Loan Documents to one or more
Eligible Assignees, provided that (i) its obligations under the Loan
Documents shall remain unchanged, (ii) it shall remain solely responsible to
the other parties to the Loan Documents for the performance of such
obligations, (iii) the Borrower, the Agent and the Lenders, as applicable,
shall continue to deal solely and directly with it in connection with its
rights and obligations under the Loan Documents, (iv) no sub-participations
shall be permitted and (v) the voting rights of any holder of any
participation shall be limited to the matters described in Section 10.1(a).
The Borrower acknowledges and agrees that any such participant shall for
purposes of Sections 3.3, 3.4, 3.5, 3.6, 3.7, 3.8 and 3.9, be deemed to be a
"Lender"; provided, however, the Borrower shall not, at any time, be
obligated to pay any participant in any interest of any Lender hereunder any
sum in excess of the sum which the Borrower would have been obligated to pay
to such Lender in respect of such interest had such Lender not sold such
participation.
<PAGE>
(d) If any (i) assignment is made pursuant to subsection (b) above
or (ii) any participation is granted pursuant to subsection (c) above, to any
Person that is not a U.S. Person, such Person shall furnish such
certificates, documents or other evidence to the Borrower and the Agent in
the case of clause (i), and to the Borrower and Lender which sold such
participation, as the case may be, in the case of clause (ii), as shall be
required by Section 3.8(e).
(e) No Lender shall, as between and among the Borrower, the Agent
and such Lender, as the case may be, be relieved of any of its obligations
under the Loan Documents as a result of any sale, assignment, transfer or
negotiation of, or granting of participations in, all or any part of rights
and obligations under the Loan Documents, except that it shall be relieved of
its obligations to the extent of any such sale, assignment, transfer, or
negotiation of all or any part of its rights and obligations under the Loan
Documents pursuant to subsection (b) above.
(f) Notwithstanding anything to the contrary contained in this
Section, each Lender may at any time or from time to time assign all or any
portion of its rights under the Loan Documents to a Federal Reserve Bank,
provided that any such assignment shall not release such assignor from its
obligations thereunder.
10.8. Indemnity
The Borrower agrees to defend, protect, indemnify, and hold harmless
the Agent, each of the Lenders, each of their respective Affiliates and each
of the respective officers, directors, employees and agents of each of the
foregoing (each an "Indemnified Person" and, collectively, the "Indemnified
Persons") from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, claims, costs, expenses and
disbursements of any kind or nature whatsoever (including the fees and
disbursements of counsel to such Indemnified Persons in connection with any
investigative, administrative or judicial proceeding, whether direct,
indirect or consequential and whether based on any federal or state laws or
other statutory regulations, including securities and commercial laws and
regulations, under common law or at equitable cause, or on contract or
otherwise, including any liabilities and costs under Environmental Laws,
Federal, state or local health or
<PAGE>
safety laws, regulations, or common law principles, arising from or in
connection with the past, present or future operations of the Borrower, any
other Credit Party, or their respective predecessors in interest, or the
past, present or future environmental condition of the Property of the
Borrower or any of its Subsidiaries, the presence of asbestos-containing
materials at any such Property, or the release or threatened release of any
Hazardous Substance into the environment from any such Property) in any
manner relating to or arising out of the Loan Documents, any commitment
letter or fee letter executed and delivered by the Borrower or any of its
Subsidiaries and/or the Agent, the capitalization of the Borrower or any of
its Subsidiaries, the Commitments, the making of, management of and
participation in the Loans, or the use or intended use of the proceeds of the
Loans hereunder, provided that the Borrower shall have no obligation under
this Section to an Indemnified Person with respect to any of the foregoing to
the extent found in a final judgment of a court having jurisdiction to have
resulted primarily out of the gross negligence or wilful misconduct of such
Indemnified Person. The indemnity set forth herein shall be in addition to
any other obligations or liabilities of the Borrower to each Indemnified
Person under the Loan Documents or at common law or otherwise, and shall
survive any termination of the Loan Documents, the expiration of the
Commitments of all of the Lenders and the payment of all Indebtedness and
other obligations of the Credit Parties under the Loan Documents.
10.9. Limitation of Liability
No claim may be made by the Borrower, any of its Subsidiaries, any
other Credit Party, any Lender or other Person against the Agent, any Lender,
or any directors, officers, employees, agents or Affiliates of any of them
for any special, indirect, consequential or punitive damages in respect of
any claim for breach of contract or any other theory of liability arising out
of or related to the transactions contemplated by any Loan Document, or any
act, omission or event occurring in connection therewith, and each of the
Borrower, its Subsidiaries, such other Credit Party, any such Lender or other
Person hereby waives, releases and agrees not to sue upon any claim for any
such damages, whether or not accrued and whether or not known or suspected to
exist in its favor.
10.10. Counterparts
<PAGE>
Each Loan Document (other than the Notes) may be executed by one or
more of the parties thereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the
same document. It shall not be necessary in making proof of any Loan
Document to produce or account for more than one counterpart signed by the
party to be charged. A counterpart of any Loan Document or to any document
evidencing, and of any an amendment, modification, consent or waiver to or of
any Loan Document transmitted by telecopy shall be deemed to be an originally
executed counterpart. A set of the copies of the Loan Documents signed by
all the parties thereto shall be deposited with each of the Borrower and the
Agent. Any party to a Loan Document may rely upon the signatures of any
other party thereto which are transmitted by telecopy or other electronic
means to the same extent as if originally signed.
10.11. Adjustments; Set-off
(a) If any Lender (a "Benefitted Lender"), shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of its Loans or its Notes in excess of its
pro rata share of payments then due and payable on account of the Loans and
the Notes received by all the Lenders, then such Benefitted Lender shall
forthwith purchase, without recourse, for cash, from the other Lenders such
participations in their Loans and Notes as shall be necessary to cause such
Benefitted Lender to share such excess payment ratably with each of them,
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such Benefitted Lender, such purchase from such
other Lenders shall be rescinded, and each such other Lender shall repay to
such Benefitted Lender the purchase price to the extent of such recovery,
together with an amount equal to such other Lender's pro rata share
(according to the proportion of (i) the amount of such other Lender's
required repayment to (ii) the total amount so recovered from such Benefitted
Lender) of any interest or other amount paid or payable by such Benefitted
Lender in respect of the total amount so recovered. The Borrower agrees that
such Benefitted Lender so purchasing a participation from such other Lenders
pursuant to this subsection (a) may exercise such rights to payment
(including the right of set-off) with respect to such participation as fully
as such Benefitted Lender were the direct creditor of the Borrower in the
amount of such participation.
<PAGE>
(b) In addition to any rights and remedies of the Lenders provided
by law, upon the occurrence of an Event of Default and the acceleration of
the obligations owing in connection with the Loan Documents, or at any time
upon the occurrence and during the continuance of an Event of Default, under
Sections 8.1(a) or (b), each of the Lenders shall have the right, without
prior notice to the Borrower or any other Credit Party, any such notice being
expressly waived by the Borrower and each other Credit Party to the extent
not prohibited by applicable law, to set-off and apply against any
indebtedness, whether matured or unmatured, of the Borrower or such other
Credit Party, as the case may be, to such Lender any amount owing from such
Lender to the Borrower or such other Credit Party, as the case may be, at, or
at any time after, the happening of any of the above-mentioned events. To
the extent not prohibited by applicable law, the aforesaid right of set-off
may be exercised by such Lender against the Borrower or such other Credit
Party, as the case may be, or against any trustee in bankruptcy, custodian,
debtor in possession, assignee for the benefit of creditors, receiver, or
execution, judgment or attachment creditor of the Borrower or such other
Credit Party, as the case may be, or against anyone else claiming through or
against the Borrower or such other Credit Party, as the case may be, or such
trustee in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of set-off shall not have
been exercised by such Lender prior to the making, filing or issuance, or
service upon such Lender of, or of notice of, any such petition, assignment
for the benefit of creditors, appointment or application for the appointment
of a receiver, or issuance of execution, subpoena, order or warrant. Each of
the Lenders agrees promptly to notify the Borrower and the Agent after any
such set-off and application made by such Lender provided that the failure to
give such notice shall not affect the validity of such set-off and
application.
10.12. Governmental and Regulatory Authorities.
It is the intention of the parties hereto that the security interests
and liens of the Agent in and on the Collateral shall in all relevant aspects be
subject to and governed by the Communications Act, the Cable Communications
Policy Act of 1984 and the Cable Television Consumer Protection and Competition
Act of 1992 (as each such act may be in effect from, time to time) or any
successor statute or
<PAGE>
statutes thereto and the respective rules and regulations thereunder, as well as
any other federal, state, or other law applicable to or having jurisdiction over
the cable television industry or the Borrower or any Subsidiary, and that
nothing in this Agreement shall be construed to diminish the control exercised
by the Borrower except in accordance with the provisions of such statutory
requirements and rules and regulations and the terms and conditions of this
Agreement. Upon the Agent's request, the Borrower agrees that it will use its
best efforts promptly to obtain any and all governmental, regulatory, utility,
or telephone company consents, approvals, or authorizations, if any, as may be
required to be obtained from the FCC and any other governmental authority or
utility or telephone company under the terms of any franchise, license, or
similar operating right held by the Borrower or any Subsidiary and included in
or affecting the Collateral.
10.13. Construction
Each party to a Loan Document represents that it has been represented
by counsel in connection with the Loan Documents and the transactions
contemplated thereby and that the principle that agreements are to be construed
against the party drafting the same shall be inapplicable.
10.14. Governing Law
The Loan Documents and the rights and obligations of the parties
thereunder shall be governed by, and construed and interpreted in accordance
with, the internal laws of the State of New York, without regard to principles
of conflict of laws, but including Section 5-1401 of the General Obligations
Law.
10.15. Headings Descriptive
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
10.16. Severability
Every provision of the Loan Documents is intended to be severable, and
if any term or provision thereof shall be invalid, illegal or unenforceable for
any reason, the validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired thereby, and any
invalidity, illegality or unenforceability in any jurisdiction
<PAGE>
shall not affect the validity, legality or enforceability of any such term or
provision in any other jurisdiction.
10.17. Integration
All exhibits to a Loan Document shall be deemed to be a part thereof.
Except for agreements between the Agent and the Borrower with respect to certain
fees, the Loan Documents embody the entire agreement and understanding among the
Borrower, the Agent and the Lenders with respect to the subject matter thereof
and supersede all prior agreements and understandings among the Borrower, the
Agent and the Lenders with respect to the subject matter thereof.
10.18. Consent to Jurisdiction
Each party to a Loan Document hereby irrevocably submits to the
jurisdiction of any New York State or Federal court sitting in the City of New
York over any suit, action or proceeding arising out of or relating to the Loan
Documents. Each party to a Loan Document hereby irrevocably waives, to the
fullest extent permitted or not prohibited by law, any objection which it may
now or hereafter have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit, action or
proceeding brought in such a court has been brought in an inconvenient forum.
Each Credit Party hereby agrees that a final judgment in any such suit, action
or proceeding brought in such a court, after all appropriate appeals, shall be
conclusive and binding upon it.
10.19. Service of Process
Each party to a Loan Document hereby irrevocably consents to the
service of process in any suit, action or proceeding by sending the same by
first class mail, return receipt requested or by overnight courier service, to
the address of such party set forth in Section 10.2 of the applicable Loan
Document executed by such party. Each party to a Loan Document hereby agrees
that any such service (i) shall be deemed in every respect effective service of
process upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
10.20. No Limitation on Service or Suit
<PAGE>
Nothing in the Loan Documents or any modification, waiver, consent or
amendment thereto shall affect the right of the Agent or any Lender to serve
process in any manner permitted by law or limit the right of the Agent or any
Lender to bring proceedings against any Credit Party in the courts of any
jurisdiction or jurisdictions in which such Credit Party may be served.
10.21. WAIVER OF TRIAL BY JURY
EACH OF THE AGENT, THE LENDERS AND THE CREDIT PARTIES HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREIN.
FURTHER, EACH CREDIT PARTY HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT
OF THE AGENT OR THE LENDERS, OR COUNSEL TO THE AGENT OR THE LENDERS, HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE AGENT OR THE LENDERS WOULD NOT,
IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY
TRIAL PROVISION. EACH CREDIT PARTY ACKNOWLEDGES THAT THE AGENT AND THE
LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, INTER ALIA, THE
PROVISIONS OF THIS SECTION.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Credit
Agreement to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
THE HELICON GROUP, L.P.
By: Baum Investments, Inc., its
General Partner
By: -------------
Name: ------------
Title: -----------
BANQUE PARIBAS,
Individually and as Agent
By: --------------
Name: ------------
Title: -----------
By: --------------
Name: ------------
Title: -----------
<PAGE>
Exhibit 10.2
SUBSIDIARY GUARANTY AND SECURITY AGREEMENT
SUBSIDIARY GUARANTY AND SECURITY AGREEMENT (as the same may be
amended, supplemented or otherwise modified from time to time, this
"Agreement"), dated as of June 26, 1997, by and among HELICON CAPITAL CORP., a
Delaware corporation (the "Current Guarantor"), such other Persons which from
time to time may become party hereto (the "Additional Guarantors", and
collectively with the Current Guarantor, the "Guarantors"), THE HELICON GROUP,
L.P., a Delaware limited partnership (the "Borrower"), and BANQUE PARIBAS, as
agent for the Lenders and the Rate Protection Lenders (in such capacity, the
"Agent").
RECITALS
I. Reference is made to the Credit Agreement, dated as of the date
hereof, by and among the Borrower, the Lenders party thereto and Banque Paribas,
as Agent (as the same may be amended, supplemented or otherwise modified from
time to time, the "Credit Agreement").
II. It is a condition precedent to the making of the Loans and all other
extensions of credit under the Credit Agreement that the Guarantors shall have
executed and delivered this Agreement.
III. Each Guarantor is a Subsidiary of the Borrower and, as such, expects
to derive substantial benefit from the Credit Agreement and the transactions
contemplated thereby and, in furtherance thereof, has agreed to execute and
deliver this Agreement.
Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantors, the Borrower and
the Agent hereby agree as follows:
1. Defined Terms
(a) Capitalized terms used herein which are not otherwise defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
1
<PAGE>
(b) When used in this Agreement, the following capitalized terms
shall have the respective meanings ascribed thereto as follows:
"Baum Notes": the note, dated as of August 20, 1992, in the
original principal amount of $5,000,000 issued by Helicon Group Ltd. to Theodore
Baum.
"Borrower Obligations": all of the obligations and liabilities of
the Borrower under the Loan Documents and under each Rate Hedging Agreement
entered into by the Borrower with a Rate Protection Lender, in each case whether
fixed, contingent, now existing or hereafter arising, created, assumed, incurred
or acquired, and whether before or after the occurrence of any Insolvency Event,
as such obligations and liabilities may be amended, increased, modified,
renewed, refinanced, refunded or extended by the Agent, the Lenders and the Rate
Protection Lenders from time to time, and including (i) any obligation or
liability in respect of any breach of any representation or warranty, and (ii)
all post-petition interest and funding losses, whether or not allowed as a claim
in any proceeding arising in connection with an Insolvency Event.
"Collateral": as defined in Section 4.
"Collateral Account": as defined in the Senior Indenture.
"Consideration": as of any date of determination and with respect
to each Guarantor, an amount equal to the lesser of (i) the total "value"
(within the meaning of Section 548 of the Bankruptcy Code as in effect on the
date hereof) given, directly or indirectly, to such Guarantor during the period
commencing on the date such Guarantor became a party to this Agreement and
ending on such date of determination, in exchange for its execution and delivery
of this Agreement, and (ii) the amount of "fair consideration" (within the
meaning of Article 10 of the New York Debtor Creditor Law as in effect on the
date hereof) given, directly or indirectly, to such Guarantor during the period
commencing on the date such Guarantor became a party to this Agreement and
ending on such date of determination in exchange for its execution and delivery
of this Agreement.
"Copyright Collateral": all Copyrights,
2
<PAGE>
whether now owned or hereafter acquired by any Guarantor, including each
Copyright identified in Schedule 5(l) hereto.
"Copyrights": all copyrights, copyright registrations and
applications for copyright registrations, including, without limitation, all
renewals and extensions thereof, the right to recover for all past, present and
future infringements thereof, and all other rights of any kind whatsoever
accruing thereunder or pertaining thereto.
"Equity Interest": (i) with respect to a corporation, the capital
stock thereof, (ii) with respect to a partnership, a partnership interest
therein, all rights of a partner in such partnership, whether arising under the
partnership agreement of such partnership or otherwise; (iii) with respect to a
limited liability company, a membership interest therein, all rights of a member
of such limited liability company, whether arising under the limited liability
company agreement of such limited liability company or otherwise; (iv) with
respect to any other firm, association, trust, business enterprise or other
entity which is similar to any other Person listed in clauses (i), (ii) and
(iii), and this clause (iv), of this definition, any equity interest therein,
any interest therein which entitles the holder thereof to share in the revenue,
income, earnings or losses thereof or to vote or otherwise participate in any
election of one or more members of the Managing Person thereof, and (v) all
warrants and options in respect of any of the foregoing and all other securities
which are convertible or exchangeable therefor.
"Event of Default": as defined in Section 8.
"Financing Statements": the UCC financing statements executed by
the Guarantor and delivered pursuant to Section 5 of the Credit Agreement.
"Franchise": with respect to any Person, a franchise, license,
authorization or right to construct, own, operate, promote, extend and/or
otherwise exploit any cable television system operated or to be operated by such
Person granted by any state, county, city, town, village or other local
government authority or by the FCC.
"Grants of Security Interests": collectively, the Grant of
Security Interest (Patents) and the Grant of Security Interest (Trademarks), in
the form of Annexes C-1 and C-2 hereto, respectively, in each case appropriately
completed
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and signed by the Guarantor.
"Guarantor Obligations": with respect to each Guarantor, all of
the obligations and liabilities of such Guarantor hereunder, whether fixed,
contingent, now existing or hereafter arising, created, assumed, incurred or
acquired.
"Insolvency Event": any Event of Default under Section 8.1(h) or
(i) of the Credit Agreement.
"Intellectual Property": with respect to any Guarantor, all
Copyright Collateral, all Patent Collateral and all Trademark Collateral,
together with (i) all inventions, processes, production methods, proprietary
information, know-how and trade secrets; (ii) all licenses or user or other
agreements granted to such Guarantor with respect to any of the foregoing, in
each case whether now or hereafter owned or used including, without limitation,
the licenses or other agreements with respect to the Copyright Collateral, the
Patent Collateral or the Trademark Collateral, listed in Schedule 5(l) hereto;
(iii) all information, customer lists, identification of suppliers, data, plans,
blueprints, specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards, processing
standards, performance standards, catalogs, computer and automatic machinery
software and programs; (iv) all field repair data, sales data and other
information relating to sales or service of products now or hereafter
manufactured; (v) all accounting information and all media in which or on which
any information or knowledge or data or records may be recorded or stored and
all computer programs used for the compilation or printout of such information,
knowledge, records or data; (vi) all licenses, consents, permits, variances,
certifications and approvals of governmental agencies now or hereafter held by
such Guarantor; and (vii) all causes of action, claims and warranties now or
hereafter owned or acquired by such Guarantor in respect of any of the items
listed above. Notwithstanding the foregoing, Intellectual Property shall not
include any Franchise, any network affiliation, programming or other similar
contract, any agreement for the transmission and delivery of programming or any
pole rental lease.
"Motor Vehicles": shall mean motor vehicles, tractors, trailers
and other like property, whether or not the title thereto is governed by a
certificate of title or ownership and including fuel, tires and spare parts
therefor.
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"Net Worth": as of any date and with respect to each Guarantor,
the lesser of the following:
(a)(i) all of such Guarantor's "property, at a fair
valuation" (within the meaning of Section 101(32) of the Bankruptcy Code as
in effect on the date hereof) on such date, minus (ii) the sum of such
Guarantor's "debts" (within the meaning of Section 101(12) of the
Bankruptcy Code as in effect on the date hereof) on such date other than
such Guarantor's liability hereunder, and
(b)(i) the "fair salable value of the assets" (within the
meaning of Article 10 of the New York Debtor Creditor Law as in effect on
the date hereof) of such Guarantor on such date, minus (ii) "the amount
that will be required to pay such Guarantor's probable liability on its
existing debts as they become absolute and matured" (as such phrase would
be construed under Article 10 of the New York Debtor Creditor Law as in
effect on the date hereof) on such date other than such Guarantor's
liability hereunder.
"NYUCC": the UCC as in effect in the State of New York on the
date hereof.
"Office Location": as defined in Section 5(c).
"Patent Collateral": all Patents, whether now owned or hereafter
acquired by any Guarantor, including each Patent identified in Schedule 5(l).
"Patents": all patents and patent applications, including,
without limitation, the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties, damages and
payments now or hereafter due and/or payable under and with respect thereto,
including, without limitation, damages and payments for past or future
infringements thereof, the right to sue for past, present and future
infringements thereof, and all rights corresponding thereto throughout the
world.
"Proceeds": as defined in the NYUCC, together with (i) all
dividends, distributions and income on and in
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respect of all of the Securities and Instruments and all other rights and
benefits in respect thereof, and (ii) with respect to the Patents and
Trademarks, all renewals thereof, all proceeds of infringement suits, all rights
to sue for infringement, all license royalties, all reissues, divisions,
continuations, extensions and continuations-in-part thereof.
"Registrations": (i) patents issued under the laws of the United
States of America, (ii) patent applications filed with the United States Patent
and Trademark Office, and (iii) all registered trademarks.
"Senior Indenture": the Indenture dated as of October 15, 1993
between the Borrower and Helicon Capital Corp. and the Trustee, as the same may
be amended, modified or otherwise supplemented in accordance with Section 7.11
of the Credit Agreement.
"Supplement": a Supplement to this Agreement, duly completed, in
the form of Annex A hereto.
"Trademark Collateral": all Trademarks, whether now owned or
hereafter acquired by any Guarantor, including each Trademark identified in
Schedule 5(l) hereto. Notwithstanding the foregoing, the Trademark Collateral
does not and shall not include any Trademark which would be rendered invalid,
abandoned, void or unenforceable by reason of its being included as part of the
Trademark Collateral.
"Trademarks": all trade names, trademarks and service marks,
logos, trademark and service mark registrations, and applications for trademark
and service mark registrations, including, without limitation, all renewals of
trademark and service mark registrations, all rights corresponding thereto
throughout the world, the right to recover for all past, present and future
infringements thereof, all other rights of any kind whatsoever accruing
thereunder or pertaining thereto, together, in each case, with the product lines
and goodwill of the business connected with the use of, and symbolized by, each
such trade name, trademark and service mark.
"Transaction Statement": a transaction statement in the form of
Annex B hereto.
"Trustee": Fleet National Bank (formerly known as Shawmut Bank
Connecticut, National Association), as Trustee
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under the Senior Indenture, its successors and assigns.
"UCC": with respect to any jurisdiction, Articles 1, 8 and 9 of
the Uniform Commercial Code as from time to time in effect in such jurisdiction.
(c) When used in this Agreement, the following capitalized terms
shall have the respective meanings ascribed thereto in the NYUCC: "Certificated
Security", "Issuer", "Secured Party", "Security", "Security Interest" and
"Uncertificated Security".
2. Guaranty
(a) Subject to Section 2(b) hereof, each Guarantor hereby absolutely,
irrevocably and unconditionally guarantees the full and prompt payment when due
(whether at stated maturity, by acceleration or otherwise) of the Borrower
Obligations. This Agreement constitutes a guaranty of payment and neither the
Agent nor any Lender shall have any obligation to enforce any Loan Document or
any Rate Hedging Agreement or exercise any right or remedy with respect to any
collateral security thereunder by any action, including making or perfecting any
claim against any Person or any collateral security for any of the Borrower
Obligations, prior to being entitled to the benefits of this Agreement. The
Agent may, at its option, proceed against the Guarantors, or any one or more of
them, in the first instance, to enforce the Guarantor Obligations without first
proceeding against the Borrower or any other Person, and without first resorting
to any other rights or remedies, as the Agent may deem advisable. In
furtherance hereof, if the Agent or any Lender is prevented by law from
collecting or otherwise hindered from collecting or otherwise enforcing any
Borrower Obligation in accordance with its terms, the Agent or such Lender, as
the case may be, shall be entitled to receive hereunder from the Guarantors
after demand therefor, the sums which would have been otherwise due had such
collection or enforcement not been prevented or hindered.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the maximum liability of each Guarantor hereunder shall not, as of
any date of determination, exceed the lesser of (i) the highest amount that is
valid and enforceable against such Guarantor under principles of New York State
contract law, and (ii) the sum of (A) all Consideration received by such
Guarantor as of such date of determination,
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plus (B) 95% of the Net Worth of such Guarantor on such date of determination.
(c) Each Guarantor agrees that the Guarantor Obligations may at any
time and from time to time exceed the maximum liability of such Guarantor
hereunder without impairing this Agreement or affecting the rights and remedies
of the Agent or any Lender hereunder.
3. Absolute Obligation
No Guarantor shall be released from liability hereunder unless and
until either (a) the Credit Agreement shall have been terminated and the
Borrower shall have paid in full in cash the outstanding principal balance of
the Loans, together with all accrued interest thereon and all other sums then
due and owing under the Loan Documents and the Rate Hedging Agreements, or (b)
the Guarantor Obligations of such Guarantor shall have been paid in full in
cash. Each Guarantor acknowledges and agrees that (i) neither the Agent nor any
Lender has made any representation or warranty to such Guarantor with respect to
the Borrower, its Subsidiaries, any Loan Document, any Rate Hedging Agreement,
or any agreement, instrument or document executed or delivered in connection
therewith, or any other matter whatsoever, and (ii) such Guarantor shall be
liable hereunder, and such liability shall not be affected or impaired,
irrespective of (A) the validity or enforceability of any Loan Document, any
Rate Hedging Agreement, or any agreement, instrument or document executed or
delivered in connection therewith, or the collectability of any of the Borrower
Obligations, (B) the preference or priority ranking with respect to any of the
Borrower Obligations, (C) the existence, validity, enforceability or perfection
of any security interest or collateral security under any Loan Document, or any
Rate Hedging Agreement, or the release, exchange, substitution or loss or
impairment of any such security interest or collateral security, (D) any
failure, delay, neglect or omission by the Agent or any Lender to realize upon,
enforce or protect any direct or indirect collateral security, indebtedness,
liability or obligation, any Loan Document, any Rate Hedging Agreement, or any
agreement, instrument or document executed or delivered in connection therewith,
or any of
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the Borrower Obligations, (E) the existence or exercise of any right of set- off
by the Agent or any Lender, (F) the existence, validity or enforceability of any
other guaranty with respect to any of the Borrower Obligations, the liability of
any other Person in respect of any of the Borrower Obligations, or the release
of any such Person or any other guarantor of any of the Borrower Obligations,
(G) any act or omission of the Agent or any Lender in connection with the
administration of any Loan Document, any Rate Hedging Agreement, or any of the
Borrower Obligations, (H) the bankruptcy, insolvency, reorganization or
receivership of, or any other proceeding for the relief of debtors commenced by
or against, any Person, (I) the disaffirmance or rejection, or the purported
disaffirmance or purported rejection, of any of the Borrower Obligations, any
Loan Document, any Rate Hedging Agreement, or any agreement, instrument or
document executed or delivered in connection therewith, in any bankruptcy,
insolvency, reorganization or receivership, or any other proceeding for the
relief of debtor, relating to any Person, (J) any law, regulation or decree now
or hereafter in effect which might in any manner affect any of the terms or
provisions of any Loan Document, any Rate Hedging Agreement, or any agreement,
instrument or document executed or delivered in connection therewith or any of
the Borrower Obligations, or which might cause or permit to be invoked any
alteration in the time, amount, manner or payment or performance of any of the
Borrower's obligations and liabilities (including the Borrower Obligations), (K)
the merger or consolidation of the Borrower into or with any Person, (L) the
sale by the Borrower of all or any part of its assets, (M) the fact that at any
time and from time to time none of the Borrower Obligations may be outstanding
or owing to the Agent or any Lender, (N) any amendment or modification of, or
supplement to, any Loan Document or any Rate Hedging Agreement or (O) any other
reason or circumstance which might otherwise constitute a defense available to
or a discharge of the Borrower in respect of its obligations or liabilities
(including the Borrower Obligations) or of such Guarantor in respect of any of
the Guarantor Obligations (other than by the performance in full thereof).
4. Grant of Security Interest
To secure the prompt and complete payment, observance and performance
of the Guarantor Obligations, each Guarantor hereby grants to the Agent, for its
benefit and the ratable benefit of the Lenders and the Rate Protection Lenders,
a Security Interest in and to all of such Guarantor's right, title and interest
in and to the following:
(a) the shares of common stock evidenced by the certificates
identified in Schedule 4(e) hereto and all other shares of capital stock of
whatever class of any Subsidiary,
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now or hereafter owned by such Guarantor, in each case together with the
certificates evidencing the same (collectively, the "Pledged Stock");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or return
of capital upon or in respect of the Pledged Stock, or resulting from a
split-up, revision, reclassification or other like change of the Pledged Stock
or otherwise received in exchange therefor, and any subscription, warrants,
rights or options issued to the holders of, or otherwise in respect of, the
Pledged Stock;
(c) without affecting the obligations of such Guarantor under any
provision prohibiting such action under any of the Loan Documents, in the event
of any consolidation or merger in which any issuer of Stock Collateral is not
the surviving corporation, all shares of each class of the capital stock owned
by such Guarantor of the successor corporation formed by or resulting from such
consolidation or merger (the Pledged Stock, together with all other
certificates, shares, securities, properties or moneys as may from time to time
be pledged hereunder pursuant to clause (a) or (b) above and this clause (c)
being herein collectively called the "Stock Collateral";
(d) the general or limited partnership interest identified on
Schedule 4(e) hereto and all other partnership interest of whatever type of any
Subsidiary, now or hereafter owned by such Guarantor (collectively, the "Pledged
Partnership Interest");
(e) all partnership interests, securities, moneys or property
representing a distribution or return of capital upon or in respect of the
Pledged Partnership Interest, or resulting from a revision, reclassification or
other like change of the Pledged Partnership Interest or otherwise received in
exchange therefor, and any subscription, warrants, rights or options issued to
the holders of, or otherwise in respect of, the Pledged Partnership Interest;
(f) without affecting the obligations of such Guarantor under any
provision prohibiting such action under any of the Loan Documents, in the event
of any consolidation or merger, or a like combination in which any issuer of
Partnership Collateral is not the surviving entity, all partnership interests
owned by such Guarantor of the successor
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entity formed by or resulting from such consolidation or merger or a like
combination (the Pledged Partnership Interest, together with all other
partnership interests, securities, properties or moneys as may from time to time
be pledged hereunder pursuant to clause (d) or (e) above and this clause (f)
being herein collectively called the "Partnership Collateral");
(g) all accounts and general intangibles (each as defined in the
NYUCC) of such Guarantor constituting any right to the payment of money,
including (but not limited to) all moneys due and to become due to such
Guarantor in respect of any loans or advances due to such Guarantor in respect
of any loans or advances or for Inventory or Equipment or other good sold or
leased or for services rendered, all moneys due and to become due to such
Guarantor under any guarantee (including a letter of credit) of the purchase
price of Inventory or Equipment sold by such Guarantor and all tax refunds (such
accounts, general intangibles and moneys due and to become due being herein
collectively called "Accounts");
(h) all instruments, chattel paper and letters of credit (each as
defined in the NYUCC) of such Guarantor evidencing, representing, arising from
or existing in respect of, relating to, securing or otherwise supporting the
payment of, any of the Accounts, including (but no limited to) promissory notes,
drafts, bills or exchange and trade acceptances (herein collectively called
"Instruments");
(i) all inventory (as defined in the NYUCC) of such Guarantor,
including spare parts (other than for Motor Vehicles), all goods obtained by
such Guarantor in exchange for such inventory, and any products made or
processed from such inventory including all substances, if any, commingled
therewith or added thereto (herein collectively called "Inventory");
(j) all other accounts and general intangibles (each as defined in
the NYUCC) of such Guarantor not constituting Accounts;
(k) all equipment (as defined in the NYUCC) owned by such Guarantor,
including all furniture, fixtures, office supplies, machinery, head-ends,
cameras and other studio equipment, amplifiers, transmitters, converters and
similar equipment, cables, antennae, earth stations, connections, towers and
associated equipment, all other tangible personal
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property used in the operation of any cable television systems or franchises
(herein collectively called "Equipment");
(l) each contract and other agreement of such Guarantor relating to
the sale or other disposition of Inventory or Equipment;
(m) all documents of title (as defined in the NYUCC) or other
receipts of such Guarantor covering, evidencing or representing Inventory or
Equipment (herein collectively called "Documents");
(n) all rights, claims and benefits of such Guarantor against any
Person arising out of, relating to or in connection with Inventory or Equipment
purchased by such Guarantor, including, without limitation, any such rights,
claims or benefits against any Person storing or transporting such Inventory or
Equipment;
(o) the balance from time to time in the Collateral Account;
(p) to the extent permitted by the terms thereof, (i) all Franchises,
including, without limitation, each of the Franchises described in Part A of
Schedule 4(p) attached hereto; (ii) all other franchises, licenses,
authorizations or rights to construct, own, operate, promote, extend and/or
otherwise exploit any cable television system operated or to be operated by such
Guarantor granted by the state, county, city, town, village or other local
government authority and other governmental licenses, franchises, permits,
operating rights and other rights; (iii) all construction, engineering,
management and related or similar contracts or binding commitments or
understandings, with respect to the construction, installation and operation of
cable television systems, including, without limitation, each of the contracts
and agreements described in Part B of Schedule 4(p) attached hereto; (iv) all
network affiliation, programing, retransmission and other similar contracts and
agreements with licensed common carriers or others for the transmission or
retransmission and delivery of programming to subscribers or others (including,
without limitation, the non-cancelable assignment and sublease of all such
contracts and agreements made by Helicon Corp. for the benefit of a Guarantor),
including, without limitation, each of the contracts and agreements described in
Part C of Schedule 4(p) attached hereto; (v) to the extent permitted by the
terms thereof, all
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leases of property, whether real, personal or mixed, including, without
limitation, the leases described in Part D of Schedule 4(p) attached hereto;
(vi) all pole rental leases and similar agreements, including, without
limitation, the agreements described in Part E of Schedule 4(p) hereto, to the
extent permitted by the terms thereof; and (vii) all contracts, agreements and
understandings with subscribers and all subscribers, customer and vendor lists;
(q) all other tangible and intangible property of such Guarantor,
including, without limitation, all Proceeds, products, accessions, rents,
profits, income, benefits, substitutions and replacements of and to any of the
property of such Guarantor described in the preceding clauses of this Section 4
(including, without limitation, any proceeds of insurance thereof (subject to
the right to use such proceeds for repair or replacement specified in Section
6.5(b) of the Credit Agreement and, to the extent related to any property
described in said clauses or such Proceeds, products and accessions, all books,
correspondence, credit files, records, invoices and other papers, including
without limitation all tapes, cards, computer runs and other papers and
documents in the possession or under the control of such Guarantor or any
computer bureau or service company from time to time acting for such Guarantor;
provided that, notwithstanding the foregoing to the contrary, the Security
Interest granted herein shall not include Motor Vehicles or agreements that by
their terms cannot be assigned after the use by such Guarantor of its reasonable
best efforts to obtain consent to assignment;
(all of the foregoing, collectively, the "Collateral").
5. Representations and Warranties
Each Guarantor hereby represents and warrants to the Agent as follows:
(a) Binding Obligation. This Agreement constitutes the valid and
binding obligation of such Guarantor, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws related to or affecting
the enforcement of creditors' rights generally.
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(b) Solvency. Such Guarantor (if the Current Guarantor, both
immediately before and after giving effect to this Agreement and to all
Indebtedness incurred by the Borrower in connection with the Loan Documents or,
if an Additional Guarantor, immediately before and after giving effect to this
Agreement) (i) is not insolvent, (ii) is not engaged, and is not about to
engage, in any business or transaction, for which it has unreasonably small
capital, and (iii) does not intend to incur, and does not believe that it would
incur, debts that would be beyond its ability to pay such debts as they mature,
in each case referred to above within the meaning of both the Bankruptcy Code
and Article 10 of New York Debtor Credit Law, each as in effect on the date
hereof.
(c) Chief Executive Office. As of the date hereof, such
Guarantor's place of business or, if such Guarantor has more than one place of
business, its chief executive office, is, and has been continuously for the
immediately preceding 5 month period, located (the "Office Location") at, (i) if
such Guarantor is the Current Guarantor, the address set forth in Section 12, or
(ii) if such Guarantor is an Additional Guarantor, the address therefor set
forth on Schedule 5(c) to the Supplement delivered by such Additional Guarantor.
Such Guarantor, (i) in the case of the Current Guarantor, has not changed its
legal name since its formation, and (ii) in the case of an Additional Guarantor,
has not changed its legal name during the 6 year period immediately preceding
the date it became a Guarantor hereunder, except as otherwise disclosed on the
Supplement delivered by such Additional Guarantor.
(d) Information. If such Guarantor is the Current Guarantor, all
of the information with respect to such Guarantor, or any of its Property, set
forth on each of the Schedules hereto is true, complete and correct as of the
date hereof. If such Guarantor is an Additional Guarantor, all of the
information with respect to such Guarantor, or any of its Property, set forth on
each of the Schedules to the Supplement delivered by such Additional Guarantor
is true, complete and correct as of the date of such Supplement. All of such
Guarantor's books, records and documents relating to its Guarantor Collateral
are in all material respects what they purport to be.
(e) Security Interest. This Agreement, together with the
delivery to the Agent of the Certificated
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Securities constituting Collateral and the continuous possession thereof by the
Agent in the State of New York, creates a continuing "enforceable" Security
Interest in the Collateral in favor of the Agent. Upon (i) the presentation for
filing of the Financing Statements at the respective offices listed thereon
together with the appropriate filing fee therefor, (ii) the delivery to the
Agent of the Instruments constituting the Collateral, (iii) the registration, in
accordance with Article 8 of the NYUCC, of the Security Interest granted hereby
on the books of each Person which is an Issuer of an Uncertificated Security
constituting the Collateral, and (iv) the filing of the Grants of Security
Interests in the United States Patent and Trademark Office with respect to
Patents, Registrations, and Trademarks, (A) such Security Interest shall be
perfected, and (B) assuming that the Agent has acted in "good faith and without
notice of any adverse claim" within the meaning of Article 8 of the NYUCC, the
Agent shall be a "bona fide purchaser", within the meaning of such Article, with
respect to the Collateral consisting of Securities.
(f) Absence of Liens. There are no Liens upon the Collateral
other than Permitted Liens.
(g) Equity Interests. With respect to the Current Guarantor, the
Equity Interests listed on Schedule 5(g) hereto constitute, as of the date
hereof, and with respect to each Additional Guarantor, the Equity Interests
listed on Schedule 5(g) to the Supplement delivered by such Additional Guarantor
constitute, as of the date of such Supplement, all of the Equity Interests in
each Subsidiary in which such Guarantor has any right, title or interest, and
each such Equity Interest issued by a corporate Issuer has been duly authorized,
validly issued and fully paid for, and is non-assessable.
(h) Chattel Paper, Documents and Instruments. With respect to
the Current Guarantor, the chattel paper, documents and instruments listed on
Schedule 5(h) hereto constitute, as of the date hereof, and with respect to each
Additional Guarantor, the chattel paper, documents and instruments listed on
Schedule 5(h) to the Supplement delivered by such Additional Guarantor
constitute, as of the date of such Supplement, all of the material chattel
paper, documents and instruments which constitute the Collateral, and, to the
best of such Guarantor's knowledge, all such Chattel Paper, Documents and
Instruments have been duly authorized, issued and delivered, and constitute the
legal, valid,
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binding and enforceable obligations of the respective makers thereof.
(i) Accounts. As of the date hereof, all records concerning any
Account constituting the Collateral are located at its Office Location, and no
such Account is evidenced by a promissory note or other instrument.
(j) Equipment and Inventory. Except for Equipment and Inventory
in transit with common carriers, such Guarantor has exclusive possession and
control of all Equipment and Inventory constituting the Collateral, all of which
is as of the date hereof and has been continuously for the 5 month period
immediately preceding the date hereof (or, in the case of an Additional
Guarantor, the date of the Supplement delivered by such Additional Guarantor),
located at one or more of the places listed on (i) if such Guarantor is the
Current Guarantor, Schedule 5(j) hereto hereto, and (ii) if such Guarantor is an
Additional Guarantor, Schedule 5(j) hereto to the Supplement delivered by such
Additional Guarantor.
(k) Franchises and Related Agreements. Parts (A) through (E) of
Schedule 4(p) hereto contain, as of the date hereof, a listing, that is true,
correct and complete in all material respects, of the items called for by the
headings contained in each such part in respect of (i) all CATV Franchises
issued in the name of or in which such Guarantor (or its immediate predecessor)
has an interest and (ii) all (A) construction, engineering, management and
related or similar contracts, agreements or binding commitments or
understandings, (B) network affiliation, programming and other similar contracts
and agreements with licensed common carriers or others for the transmission and
delivery of programming to subscribers or others, (C) leases of property,
whether real, personal or mixed, and (D) pole rental leases, to which such
Guarantor (or its immediate predecessor) is party or by which it or its
properties are bound or affected; provided that in the case of each of the
foregoing items that is owned by an immediate predecessor of such Guarantor and
that has not been transferred to such Guarantor because a consent necessary to
effect such transfer has not been obtained, such Guarantor shall describe all
such items in the appropriate parts of Schedule 4(p) hereto and shall designate
such items as lacking a consent to transfer, provided, further, that such
Guarantor shall use its best efforts to obtain all such consents, and provided,
further, that until all such consents have been obtained,
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such Guarantor shall give the Agent written notice, not less often than
quarterly, of which such consents have not been obtained.
(l) Intellectual Property. Schedule 5(l) hereto sets forth under
the name of each Guarantor a complete and correct list of all Copyrights,
Patents and Trademarks owned by such Guarantor on the date hereof; except
pursuant to licenses and other user agreements entered into by such Guarantor in
the ordinary course of business, which are listed in Schedule 5(l) hereto, such
Guarantor owns and possesses the right to use, and has done nothing to authorize
or enable any other Person to use, any Copyright, Patent or Trademark listed in
said Schedule 5(l), and all registrations listed in said Schedule 5(l) are valid
and in full force and effect; except as may be set forth in said Schedule 5(l),
such Guarantor owns and possesses the right to use all Copyrights, Patents and
Trademarks.
6. Covenants
Each Guarantor covenants with the Agent as follows:
(a) Chief Executive Office. Such Guarantor shall maintain its
place of business, or if it has more than one place of business, its chief
executive office, at the Office Location or at such other location in respect of
which (i) such Guarantor shall have provided the Agent with prior written notice
thereof, and (ii) UCC financing statements (or amendments thereto), in form and
substance reasonably satisfactory to the Agent, shall have been filed within two
months of such change.
(b) Further Assurances. Such Guarantor shall, at its own
expense, promptly execute and deliver all certificates, documents, instruments,
financing and continuation statements and amendments thereto, notices and other
agreements, and take all further action, that the Agent may reasonably request
from time to time, in order to perfect and protect the Security Interest granted
hereby or to enable the Agent to exercise and enforce its rights and remedies
hereunder with respect to the Collateral. Such Guarantor hereby irrevocably
appoints the Agent as such Guarantor's true and lawful attorney-in-fact, in the
name, place and stead of such Guarantor, to perform on behalf of such Guarantor
any and all obligations of such Guarantor under this Agreement, and such
Guarantor agrees that the power of attorney herein
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granted constitutes a power coupled with an interest, provided, however, that
the Agent shall have no obligation to perform any such obligation and such
performance shall be at the sole cost and expense of such Guarantor. If such
Guarantor fails to comply with any of its obligations hereunder, the Agent may
do so in such Guarantor's name or in the Agent's name, but at such Guarantor's
expense, and such Guarantor hereby agrees to reimburse the Agent in full for all
reasonable expenses, including reasonable attorney's fees, incurred by the Agent
in connection therewith.
(c) Information. Such Guarantor shall, at its own expense,
furnish to the Agent such information, reports, statements and schedules with
respect to the Collateral as the Agent may reasonably request from time to time.
(d) Defense of Collateral. Such Guarantor shall, at its own
expense, defend the Collateral against all claims of any kind or nature (other
than Permitted Liens, if any) of all Persons at any time claiming the same or
any interest therein adverse to the interests of the Agent, any Rate Protection
Lender or any Lender, and such Guarantor shall not cause, permit or suffer to
exist any Lien upon the Collateral other than Permitted Liens, if any.
(e) Uncertificated Securities. Such Guarantor shall cause each
Person which is an Issuer of an Uncertificated Security constituting the
Collateral (i) to register the Security Interest granted hereby upon the books
of such Person in accordance with Article 8 of the NYUCC, and (ii) to issue to
the Agent an initial Transaction Statement and issue to the Agent subsequent
Transaction Statements in accordance with Section 8-408 of the UCC in effect in
the State of New York.
(f) Delivery of Pledged Collateral. Each Certificated Security
representing an Equity Interest in a Person which is or shall become a
Subsidiary of the Borrower shall be promptly delivered to the Agent, to be held
by the Agent pursuant hereto, in suitable form for transfer by delivery or
accompanied by duly executed documents of transfer or assignment in blank, all
in form and substance satisfactory to the Agent. Such Guarantor agrees that
until so delivered, each such Certificated Security shall be held by such
Guarantor in trust for the benefit of the Agent and be segregated from the other
Property of such Guarantor.
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(g) Chattel Paper, Documents and Instruments. All of the
instruments, documents and chattel paper now or hereafter owned by or in the
possession of such Guarantor which constitute the Collateral (other than checks
received in the ordinary course of collection) shall be promptly delivered to
the Agent, to be held by the Agent pursuant hereto, in suitable form for
transfer by delivery or accompanied by duly executed documents of transfer or
assignment in blank, all in form and substance reasonably satisfactory to the
Agent. Such Guarantor agrees that, with respect to all items of the Collateral
which it is or shall hereafter be obligated to deliver to the Agent, until so
delivered such items shall be held by such Guarantor in trust for the benefit of
the Agent and be segregated from the other Property of such Guarantor.
(h) Accounts. Except as otherwise provided in this subsection,
such Guarantor shall continue to collect in accordance with its customary
practice, at its own expense, all amounts due or to become due to such Guarantor
in respect of such Guarantor's Accounts and, prior to the occurrence of an Event
of Default, such Guarantor shall have the right to adjust, settle or compromise
the amount or payment of any such Account, all in accordance with its customary
practices. In connection with such collections, such Guarantor may take and, at
the direction of the Agent at any time that an Event of Default shall have
occurred and be continuing shall take, such action as such Guarantor or the
Agent may reasonably deem necessary or advisable to enforce collection of such
Accounts.
(i) Equipment and Inventory. Such Guarantor shall keep the
Equipment and Inventory constituting the Collateral at the places listed on (i)
if such Guarantor is the Current Guarantor, Schedule 5(l) hereto, and (ii) if
such Guarantor is an Additional Guarantor, Schedule 5(l) to the Supplement
delivered by such Guarantor, and at such other places located within the United
States in respect of which (A) such Guarantor shall have provided the Agent with
prior written notice, and (B) UCC financing statements (or amendments thereto),
in form and substance satisfactory to the Agent, shall have been filed within
two months of such change. Such Guarantor shall promptly furnish to the Agent a
statement respecting any material loss or damage to any of the Equipment or
Inventory constituting the Collateral except to the extent that such loss or
damage shall be insured pursuant to policies required to be maintained pursuant
to the Credit Agreement.
(j) Mortgages. Within six months after the
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date hereof, and promptly upon acquisition of any interest in real estate
acquired after the date hereof, each Guarantor shall execute and file, and
deliver to the Agent evidence of the filing of and a copy of, a mortgage or
assignment, in form and substance satisfactory to the Agent, with respect to
such real estate (and any related fixtures) and, in connection therewith,
deliver to the Agent such title insurance policies, surveys, environmental
reports and other documents as the Agent shall reasonably require, provided that
such Guarantor shall not be required to execute a mortgage with respect to any
interest in real estate that in the judgement of the Board of Directors of the
Borrower, as evidenced by a resolution of its board of directors, is not
material to the operations of the CATV Systems, taken as a whole, and provided,
further, that such Guarantor shall not be required to assign any leasehold
estate if such estate is non- assignable by the terms of the applicable lease
after the use by such Guarantor of its reasonable best efforts to obtain consent
to the assignment. Any such mortgage with respect to property located in or
otherwise related to West Virginia shall contain, in addition to any other
provisions required by the Agent, the substance set forth in Section 19(b) of
this Agreement.
(k) Intellectual Property. Each Guarantor shall give to the
Agent prompt written notice thereof in the event that such Guarantor shall
obtain any right to any new Intellectual Property or to any reissue, division,
continuation, renewal, extension, or continuation-in-part of any Intellectual
Property. Each Guarantor shall prosecute diligently any applications of the
Intellectual Property constituting Collateral pending as of the date of this
Agreement or thereafter, and preserve and maintain all rights in applications of
Intellectual Property constituting Collateral consistent with past practice,
including the payment of all maintenance fees. Each Guarantor shall not abandon
any right to file an application or any pending application for any Intellectual
Property unless the failure so to do could not reasonably be expected to have a
Material Adverse Effect. Each Guarantor agrees that it will not enter into any
agreement, including a license agreement, with respect to any Intellectual
Property which is inconsistent with its past practices of licensing Intellectual
Property as the case may be.
7. Other Agreements of the Guarantors
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(a) No Duty to Preserve. Except as otherwise required by law,
each Guarantor agrees that, with respect to the Collateral, neither the Agent,
any Rate Protection Lender nor any Lender has any obligation to preserve rights
against prior or third parties.
(b) Agent's Duty With Respect to Collateral. Each Guarantor
agrees that the Agent's only duty with respect to the Collateral delivered to
the Agent shall be to use reasonable care in the custody and preservation of the
Collateral, and each Guarantor agrees that if the Agent accords the Collateral
substantially the same kind of care as the Agent accords its own Property, such
care shall conclusively be deemed reasonable. In the event that all or any part
of the Certificated Securities or Instruments constituting the Collateral are
lost, destroyed or wrongfully taken while such Certificated Securities or
Instruments are in the possession of the Agent, each Guarantor agrees that it
will use its best efforts to cause the delivery of new Certificated Securities
or Instruments in place of the lost, destroyed or wrongfully taken Certificated
Securities or Instruments upon request therefor by the Agent, without the
necessity of any indemnity bond or other security, other than the Agent's
agreement of indemnity upon usual and customary terms therefor. Anything herein
to the contrary notwithstanding, the Agent shall not be under any duty to send
notices, perform services, exercise any rights of collection, enforcement,
conversion or exchange, vote, pay for insurance, taxes or other charges or take
any action of any kind in connection with the management of the Collateral.
(c) Liability of Guarantors under Contracts and Agreements
Included in the Collateral. Anything herein to the contrary notwithstanding, (i)
each Guarantor shall remain liable under the contracts and agreements to which
it is a party and which is included in the Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (ii) the exercise by the
Agent, any Rate Protection Lender or any Lender of any of its rights hereunder
shall not release any Guarantor from any of its duties or obligations under any
such contract or agreement, (iii) neither the Agent, any Rate Protection Lender
nor any Lender shall have any obligation or liability, including indemnification
obligations, under any such contract or agreement by reason of this Agreement,
nor shall the Agent, any Rate Protection Lender or any Lender be obligated to
perform any of
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the obligations or duties of any Guarantor thereunder, to make any payment, to
make any inquiry as to the nature or sufficiency of any payment received by any
Guarantor or the sufficiency of any performance by any party under any such
contract or agreement or to take any action to collect or enforce any claim for
payment assigned hereunder, and (iv) neither the Agent, any Rate Protection
Lender nor any Lender shall be under any duty to send notices, perform services,
exercise any rights of collection, enforcement, conversion or exchange, vote,
pay for insurance, taxes or other charges or take any action of any kind in
connection with the management of the Collateral.
(d) Intellectual Property. (i) For the purpose of enabling the
Agent to exercise rights and remedies under Section 9 hereof at such time as the
Agent shall be lawfully entitled to exercise such rights and remedies, and for
no other purpose, each Guarantor hereby grants to the Agent, to the extent
assignable, an irrevocable, non-exclusive license (exercisable without payment
of royalty or other compensation to such Guarantor) to use, assign, license or
sublicense any of the Intellectual Property now owned or hereafter acquired by
such Guarantor, wherever the same may be located, including in such license
reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer programs used for the compilation or
printout thereof.
8. Events of Default
Each of the following shall constitute an "Event of Default":
(a) The failure of any Guarantor to observe or perform any term,
covenant or agreement contained in this Agreement and such failure shall have
continued unremedied for a period of 30 days after such Guarantor shall have
obtained knowledge thereof; or
(b) The occurrence and continuance of an Event of Default under, and
as such term is defined in, the Credit Agreement.
9. Remedies
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof,
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the Agent may:
(i) exercise any and all rights and remedies (A) granted to a
Secured Party by the UCC in effect in the State of New York or otherwise
allowed at law, and (B) otherwise provided by this Agreement, and
(ii) dispose of the Collateral as it may choose, so long as every
aspect of the disposition including the method, manner, time, place and
terms are commercially reasonable, and each Guarantor agrees that, without
limitation, the following are each commercially reasonable: (A) the Agent
shall not in any event be required to give more than 10 days' prior notice
to the Guarantors of any such disposition, (B) any place within the City of
New York or the Counties of Nassau, Suffolk, and Westchester may be
designated by the Agent for disposition, and (C) the Agent may adjourn any
public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(b) Each Guarantor acknowledges and agrees that the Agent may elect,
with respect to the offer or sale of any or all of the Equity Interests
constituting the Collateral, to conduct such offer and sale in such a manner as
to avoid the need for registration or qualification of such Equity Interests or
the offer and sale thereof under any Federal or state securities laws and that
the Agent is authorized to comply with any limitation or restriction in
connection with such sale as counsel may advise the Agent is reasonably
necessary in order to avoid any violation of applicable law, compliance with
such procedures as may restrict the number of prospective bidders and
purchasers, require that such prospective bidders and purchasers have certain
qualifications, and restrict such prospective bidders and purchasers to Persons
who will represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or resale of such Equity
Interests, or in order to obtain any required approval of the sale or of the
purchaser by any Governmental Authority. Each Guarantor further acknowledges
and agrees that any such transaction may be at prices and on terms less
favorable than those which may be obtained through a public sale and not subject
to such restrictions and agrees that, notwithstanding the foregoing, the Agent
is under no obligation to conduct any such public
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sale and may elect to impose any or all of the foregoing restrictions, or any
other restrictions which may be reasonably necessary in order to avoid any such
registration or qualification, at its sole discretion or with the consent or
direction of the Required Lenders, and that any such offer and sale so conducted
shall be deemed to have been made in a commercially reasonable manner.
(c) To the extent permitted by law, each Guarantor hereby expressly
waives and covenants not to assert any appraisement, valuation, stay, extension,
redemption or similar laws, now or at any time hereafter in force, which might
delay, prevent or otherwise impede the performance or enforcement of this
Agreement.
10. Voting
Notwithstanding anything to the contrary contained in this Agreement,
each Guarantor shall have the right to vote all Securities constituting its
Collateral and receive and retain all dividends and distributions thereon until
such time, if any, as an Event of Default shall have occurred and be continuing
and the Agent shall have notified such Guarantor that the Agent shall have
elected to terminate the rights of such Guarantor under this Section, at which
time the Agent shall then be vested with the right to vote all Securities
constituting the Collateral and receive and retain all dividends and
distributions thereon, until such time as such Event of Default is cured or
waived.
11. Termination
On any date upon which the Credit Agreement shall have been terminated
and the Obligations shall have been indefeasibly paid in full in cash, the Liens
granted hereby shall cease and the Agent shall, at the Guarantors' expense (A)
execute and deliver all UCC Termination Statements which the Guarantors shall
have reasonably requested, and (B) return to the Guarantors all their respective
Collateral which shall remain in the possession of the Agent at such time.
12. Notices
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand,
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one Business Day after having been sent by overnight courier service, or three
Business Days after having been deposited in the mail, first-class postage
prepaid, or, in the case of notice by telecopy, when sent, addressed, in the
case of Agent, to its address set forth in Section 10.2 of the Credit Agreement,
and in the case of each Guarantor, addressed as follows, or addressed to such
other addresses as to which any party hereto may notify the other parties hereto
in writing (except that a notice of change of address shall be deemed to be
effective only when actually received):
Helicon Capital Corp.
630 Palisades Avenue
Englewood, New Jersey 07632
Attention: Herbert J. Roberts,
Senior VP, CFO and Treasurer
Telephone: (201) 568-7720
Facsimile: (201) 568-6228
with a copy, in the case of notice of the occurrence of an Event of
Default, to:
Helicon Capital Corp.
630 Palisades Avenue
Englewood, New Jersey 07632
Attention: General Counsel
Telephone: (201) 568-7720
Facsimile: (201) 568-6228
Any party hereto may rely on signatures of the parties hereto which are
transmitted by telecopy or other electronic means as fully as if originally
signed.
13. Expenses
Each Guarantor agrees that it shall, upon demand, pay to the Agent any
and all reasonable out-of-pocket sums, costs and expenses which the Agent or any
Lender may pay or incur defending, protecting or enforcing this Agreement
(whether suit is instituted or not), including reasonable attorneys' fees and
disbursements. All sums, costs and expenses which are due and payable pursuant
to this Section shall bear interest, payable on demand, at the highest rate then
payable on the Borrower Obligations.
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14. Repayment in Bankruptcy, etc.
If, at any time or times subsequent to the payment of all or any part
of the Borrower Obligations or the Guarantor Obligations, the Agent or any
Lender shall be required to repay any amounts previously paid by or on behalf of
the Borrower or any Guarantor in reduction thereof by virtue of an order of any
court having jurisdiction in the premises, as a result of an adjudication that
such amounts constituted preferential payments or fraudulent conveyances, the
Guarantors unconditionally agree to pay to the Agent within 10 days after demand
a sum in cash equal to the amount of such repayment, together with interest on
such amount from the date of such repayment by the Agent or such Lender, as the
case may be, to the date of payment to the Agent at the applicable
after-maturity rate set forth in the Credit Agreement.
15. Additional Guarantors
Upon the execution and delivery to the Agent of a Supplement by any
Person, appropriately acknowledged, such Person shall be a Guarantor.
16. No Subrogation
Each Guarantor expressly waives any and all rights of subrogation,
reimbursement, indemnity, exoneration, contribution or any other claim which it
may now or hereafter have against the Borrower, any other Guarantor or any other
Person directly or contingently liable for the Obligations, or against or with
respect to the Borrower's or such other Guarantor's Property, arising from the
existence or performance of this Agreement until the Credit Agreement has been
terminated and the Borrower Obligations have been indefeasibly paid in full in
cash.
17. Miscellaneous
(a) Except as otherwise expressly provided in this Agreement, each
Guarantor hereby waives presentment, demand for payment, notice of default,
nonperformance and dishonor, protest and notice of protest of or in respect of
this Agreement, the other Loan Documents, each Rate Hedging Agreement, and the
Borrower Obligations, notice of acceptance of this Agreement and reliance
hereupon by the Agent and each Lender, and the incurrence of any of the Borrower
Obligations, notice
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of any sale of collateral security or any default of any sort.
(b) No Guarantor is relying upon the Agent or any Lender to provide
to such Guarantor any information concerning the Borrower or any of its
Subsidiaries, and each Guarantor has made arrangements satisfactory to such
Guarantor to obtain from the Borrower on a continuing basis such information
concerning the Borrower and its Subsidiaries as such Guarantor may desire.
(c) Each Guarantor agrees that any statement of account with respect
to the Borrower Obligations from the Agent or any Lender to the Borrower which
binds the Borrower shall also be binding upon such Guarantor, and that copies of
said statements of account maintained in the regular course of the Agent's or
such Lender's business, as the case may be, may be used in evidence against such
Guarantor in order to establish its Guarantor Obligations.
(d) Each Guarantor acknowledges that it has received a copy of the
Loan Documents and each Rate Hedging Agreement and has approved of the same. In
addition, such Guarantor acknowledges having read each Loan Document and each
such Rate Hedging Agreement and having had the advice of counsel in connection
with all matters concerning its execution and delivery of this Agreement.
(e) No Guarantor may assign any right, or delegate any duty, it may
have under this Agreement.
(f) This Agreement is the "Subsidiary Guaranty" under, and as such
term is defined in, the Credit Agreement, and is subject to, and should be
construed in accordance with, the provisions thereof. Each of the Agent and the
Guarantors acknowledges that certain provisions of the Credit Agreement,
Sections 1.1 (Definitions), 1.2 (Principles of Construction), 10.1 (Amendments
and Waivers), 10.2 (Notices), 10.3 (No Waiver; Cumulative Remedies), 10.4
(Survival of Representations and Warranties and Certain Obligations), 10.7
(Assignments and Participations), 10.9 (Limitation of Liability), 10.10
(Counterparts), 10.12 (Governmental and Regulatory Authorities), 10.13
(Construction), 10.14 (Governing Law), 10.15 (Headings Descriptive), 10.16
(Severability), 10.17 (Integration), 10.18 (Consent to Jurisdiction), 10.19
(Service of Process), 10.20 (No Limitation on Service or Suit) and 10.21 (WAIVER
OF TRIAL BY JURY) thereof, are made applicable
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to this Agreement and all such provisions are incorporated by reference herein
as if fully set forth herein.
18. Intercreditor Agreement. As between the Agent and the Trustee, this
Agreement is subject to the terms of the Intercreditor Agreement executed and
delivered pursuant to Section 5.26 of the Credit Agreement.
19. Approvals.
(a) In General. Any provisions contained herein to the contrary
notwithstanding, no action shall be taken hereunder by the Agent and/or Lenders
with respect to any item of the Collateral unless and until all applicable
requirements (if any) of any Federal or state or local laws, rules and
regulations of regulatory or governmental bodies applicable to or having
jurisdiction over the cable television industry, and all applicable conditions
(if any) of such item of Collateral that is a contract, Franchise, Franchise
agreement, license or similar operating right held by a Guarantor have been
satisfied with respect to such action and there have been obtained such
consents, approvals and authorizations (if any) as may be required to be
obtained from any Governmental Authority or other Person under the terms of any
Franchise, Franchise agreement, license or similar operating right held by such
Guarantor, or under any other contract to which such Guarantor is a party, that
is included in the Collateral. It is the intention of the parties hereto that
the Liens in favor of the Agent and the Lenders in the Collateral shall in all
relevant respects be subject to and governed by said statutes, rules and
regulations and that nothing in this Agreement shall be construed to diminish
the control exercised by a Guarantor except in accordance with the provisions of
such statutory requirements and rules and regulations. Each Guarantor agrees
that, upon request from time to time by the Agent, it shall use its reasonable
best efforts to obtain any governmental, regulatory or third party consents,
approvals or authorizations referred to in this Section 13(a). Upon the
exercise by the Agent and/or Lenders of any power, right, privilege or remedy
pursuant to this Agreement which requires any such consent, approval or
authorization or any other consent, approval authorization registration or
qualification of any Governmental Authority or other Person, each Guarantor
shall execute and delivery, or shall cause the execution and delivery of, all
applications, certificates, instruments and other documents and papers that the
Agent and/or Lenders may be required to obtain for such consent, approval,
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registration, qualification or authorization.
(b) Certain West Virginia Collateral. Notwithstanding anything to the
contrary in any Loan Document, a default or assignment under any agreements does
not constitute automatic transfer or any Franchise for any CATV System in the
State of West Virginia. The appropriate franchise authority's approval must be
sought before the transfer of any such Franchise in accordance with W. Va. Code
Section 5-18-15 and Rule Section 187-1-11, Series 1.
In the event of any act of default, the parties/petitioners agree to
notify the relevant franchise authorities in the State of West Virginia and West
Virginia Cable Television Advisory Board within seven (7) days of such; this
notification will give such franchise authorities and said Board the opportunity
to determine if such default would cause inadequate, unsafe or unreliable
service in violation of W. Va. Code Section 5-18-17.
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IN EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Subsidiary Guaranty
and Security Agreement to be duly executed on its behalf.
HELICON CAPITAL CORP.
By:_______________________________
Name:_____________________________
Title:____________________________
THE HELICON GROUP, L.P.
By: Baum Investments, Inc., its
General Partner
By:______________________________
Name:____________________________
Title:___________________________
BANQUE PARIBAS, as Agent
By:_____________________________
Name:___________________________
Title:__________________________
By:
Name:
Title:
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Exhibit 10.3
INTERCREDITOR AGREEMENT
Intercreditor Agreement (the "Agreement"), dated as of June 26, 1997, by
and among Banque Paribas, as Agent under the Credit Agreement referred to
below (as such Agent may be replaced from time to time under the terms of
such Credit Agreement, the "Agent"); Fleet National Bank (formerly known as
Shawmut Bank Connecticut, National Association), as Trustee under the
Indenture referred to below (as such Trustee may be replaced from time to
time under the terms of such Indenture, the "Trustee"); The Helicon Group,
L.P., a Delaware limited partnership (the "Company"); and Helicon Capital
Corp., a Delaware corporation ("HCC") (collectively the Company and HCC are
referred to as the "Obligors").
W I T N E S S E T H:
WHEREAS, the Company, the lenders party thereto from time to time,
including their respective successors and assigns (each a "Lender" and,
collectively, the "Lenders") and the Agent are parties to that certain Credit
Agreement of even date herewith (as amended, modified, extended, refinanced,
refunded or replaced from time to time, the "Credit Agreement");
WHEREAS, pursuant to the Credit Agreement, the Obligors, the Agent and
the Lenders have entered into the guaranties, security agreements, pledge
agreements, collateral agreements and other agreements set forth on Schedule
1 hereto (as such documents may be amended, modified, extended, refinanced,
refunded or replaced from time to time, the "Lender Security Agreements"),
pursuant to which the Obligors have granted security interests in certain
collateral to secure their obligations under the Credit Agreement and the
Lender Security Agreements;
WHEREAS, the Obligors and the Trustee have entered into an Indenture
(as amended, modified, extended, refinanced, refunded or replaced from time
to time, the "Indenture"), dated as of October 15, 1993, pursuant to which
the Obligors have issued 11% Series A Senior Secured Notes due 2003 and 11%
Series B Senior Secured Notes due 2003 in the aggregate principal amount not
to exceed $115,000,000 (collectively, the "Notes");
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WHEREAS, the Obligors and the Trustee have entered into the Security
Agreement, dated as of November 3, 1993 (the "Trustee Security Agreement"),
pledge agreements, collateral assignments and other agreements set forth on
Schedule 2 hereto (as such documents may be amended or modified from time to
time, collectively, including the Security Agreement, the "Trustee Security
Agreements"), in favor of the Trustee for the benefit of the holders of the
Notes, pursuant to which the Obligors have granted security interests in
certain collateral to secure their obligations under the Notes, the Indenture
and the Collateral Documents (as defined in the Indenture); and
WHEREAS, it is a condition precedent to the Lenders' making of loans
under the Credit Agreement that the Trustee enter into this Agreement and the
Indenture requires that the Agent enter into this Agreement;
NOW, THEREFORE, in consideration of the premises, covenants and
agreements contained herein, the parties hereto agree as follows:
Section 1. Definitions. Terms that are capitalized and not otherwise
defined herein shall be defined as such terms are defined in the Indenture as in
effect on the date hereof. As used herein, the following terms shall have the
following meanings:
"Bankruptcy Case" shall have the meaning ascribed to it in Section 7(a)
hereof.
"Bankruptcy Code" shall mean title 11 of the United States Code, as
amended, or any successor provision thereto.
"Lender Collateral" shall mean the "Collateral" as defined in each of the
Lender Security Agreements as such agreements are in effect on the date
hereof.
"Lender Obligations" shall mean, collectively, all the obligations of any
kind or nature owing by the Obligors under the Credit Agreement and the
Lender Security Agreements.
"Lender Reinstatement Distribution" shall have the meaning ascribed to
it in Section 7(d) hereof.
"Lender" and "Lenders" shall have the meanings ascribed to such terms in
the preamble hereof.
"Lender Security Agreements" shall have the meaning ascribed to it in
the preamble hereof.
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"Lender Security Interest" shall mean the liens and security interests
granted to the Lenders, at any time and from time to time, to secure the
Lender Obligations pursuant to the Lender Security Agreements.
"Note Obligations" shall mean the obligations of any kind owing by the
Obligors under the Notes, the Indenture and the Trustee Security Agreements.
"Securityholders" shall mean the holders, from time to time, of the Notes.
"Trustee Collateral" shall mean the "Collateral" as defined in each of the
Trustee Security Agreements, as such agreements are in effect on the date
hereof.
"Trustee Reinstatement Distribution" shall have the meaning ascribed to it
in Section 7(e) hereof.
"Trustee Security Agreement" and "Trustee Security Agreements" shall have
the respective meanings ascribed to such terms in the preamble hereof.
"Trustee Security Interest" shall mean the liens and security interests
granted to the Trustee, at any time and from time to time, to secure the Note
Obligations pursuant to the Trustee Security Agreements.
"UCC" shall mean the Uniform Commercial Code as in effect in the State of
New York on the date hereof.
Section 2. Scope of Security Interests.
The Obligors represent and warrant to the Agent and the Lenders that, as
of the date hereof, the Trustee Security Interest does not include any Lien
on or security interest in Receivables (whether arising before or after the
commencement of a Bankruptcy Case by or against the Person owning such
Receivables), cash from the sale of Inventory (as defined in the Trustee
Security Agreement) in the ordinary course of business, the Baum Notes (as
defined in the Trustee Security Agreement), Motor Vehicles (as defined in the
Trustee Security Agreement), and certain other assets as provided in the
Trustee Security Agreement, but does include books and records relating both
to the Lender Collateral and the Trustee Collateral. The Obligors represent
and warrant to the Trustee
-3-
<PAGE>
that the Lender Security Interest does include liens on and security
interests in the Trustee Collateral, which liens are permitted by the
Indenture, and liens on and security interests in Receivables, and in bank
accounts and deposits of the Obligors at the Lenders, and in substantially
all other property of the Obligors, whether now owned or hereafter acquired,
including without limitation books and records relating both to the Lender
Collateral and the Trustee Collateral.
Section 3. No Challenge.
(a) Neither the Trustee nor any Securityholder shall take any direct or
indirect action, or vote in any way, so as to challenge in a bankruptcy or
insolvency proceeding or otherwise (i) the validity, priority or
enforceability of the Lender Obligations or the Lender Security Interest,
(ii) the rights of the Agent or the Lenders set forth in any of the Lender
Security Agreements, or (iii) the validity or enforceability of any provision
of this Section 3(a).
(b) Neither the Agent nor any Lender shall take any direct or indirect
action, or vote in any way, so as to challenge in a bankruptcy or insolvency
proceeding or otherwise (i) the validity, priority or enforceability of the
Note Obligations or the Trustee Security Interest, (ii) the rights of the
Trustee or the Securityholders set forth in any of the Trustee Security
Agreements, or (iii) the validity or enforceability of any provision of this
Section 3(b).
(c) Nothing in this Section 3 shall be deemed to permit the Obligors or
any affiliates of either of the Obligors to enter into any transaction that
is prohibited by the terms of the Credit Agreement or the Indenture.
Section 4. Access to Books and Records. If the Trustee or the Agent obtains
possession of any of the Obligors' books and records relating to both Lender
Collateral and the Trustee Collateral (in connection with any enforcement of
their respective security interests or otherwise), then each of the Trustee and
the Agent shall, upon the other's request and at the other's expense, permit the
other to review and copy all such books and records. The Trustee grants the
Agent, and the Agent grants the Trustee, a nonexclusive license (to the extent
such a license is permitted to be granted) to use, at the other's expense and
during regular business hours, all of the Obligors' computer hardware and
software that the Trustee or the Agent may possess or have the right to use from
time to time in order to permit the other to exercise its rights under the
preceding sentence and under the Lender Security Agreements or the Trustee
Security Agreements, as the case may be. The foregoing license, being coupled
with an interest, shall be irrevocable and shall terminate when this Agreement
terminates.
-4-
<PAGE>
Section 5. Trustee's Waivers.
(a) The Trustee hereby waives any right it may have to require the Agent
or the Lenders to marshal the Lender Collateral of any Person or entity in
favor of the Trustee or the Securityholders.
(b) The Agent and the Lenders have entered into the Credit Agreement
and the Lender Security Agreements in reliance on this Agreement, and the
Trustee hereby waives notice of acceptance of the terms of this Agreement,
and notice of reliance by the Agent and the Lenders of this Agreement in
making any loans or extending any other financial accommodations to the
Company under the Credit Agreement and the Lender Security Agreements.
(c) The Trustee acknowledges that neither the Agent nor any Lender has
made any warranties or representations with respect to the due execution,
legality, validity, completeness or enforceability of any of the Credit
Agreement and the Lender Security Agreements, the collectability of the
Lender Obligations or any matter whatsoever related to the Lender Obligations
or the Lender Collateral (except as expressly set forth herein); provided
that such acknowledgment by the Trustee shall neither prejudice nor in any
way qualify its right, or the right of the Securityholders, to rely on
representations and warranties made or deemed to be made to them by the
Obligors or any of their respective affiliates concerning such matters.
(d) The Trustee agrees that neither the Agent nor any Lender shall have
any liability to the Trustee for, and the Trustee hereby waives any claim
that the Trustee may have at any time against the Agent or any Lender arising
out of any and all actions that the Agent or any Lender in good faith and in
a commercially reasonable manner, takes or omits to take with respect to (i)
the Credit Agreement or any of the Lender Security Agreements, (ii)
collection of the Lender Obligations or (iii) foreclosure upon and sale,
liquidation or other disposition, or valuations, use, protection or release,
of Lender Collateral (other than books and records constituting part of the
Lender Collateral and part of the Trustee Collateral) or any guaranty.
(e) The Trustee hereby waives promptness, diligence, notice of
acceptance, notice of modification of any of the terms of the Credit
Agreement and the Lender Security Agreements or the exercise of any rights
and remedies thereunder, except as required by law.
Section 6. Agent's Waivers.
(a) The Agent hereby waives any right it may have to require the Trustee
or the Securityholders to marshal the Trustee Collateral in favor of the
Agent or the Lenders.
(b) The Trustee, on behalf of the Securityholders, has entered into the
Indenture and the Trustee Security Agreements in reliance on this Agreement,
and the Securityholders have purchased and in the future shall purchase the
Notes in reliance on this Agreement, and the Agent hereby waives notice of
acceptance of the terms of this Agreement, and notice of reliance by the
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<PAGE>
Trustee and the Securityholders on this Agreement in entering into the
Indenture or purchasing the Notes, respectively.
(c) The Agent acknowledges that neither the Trustee nor any
Securityholder has made any warranties or representations with respect to the
due execution, legality, validity, completeness or enforceability of the
Indenture, the Notes or the Trustee Security Agreements or any matter
whatsoever related to the Notes or the Trustee Collateral (except as
expressly set forth herein); provided that such acknowledgment by the Agent
shall neither prejudice nor in any way qualify its right, or the right of the
Lenders, to rely on representations and warranties made or deemed to be made
to the Agent or the Lenders by the Obligors or any of their respective
affiliates concerning such matters.
(d) The Agent agrees that neither the Trustee nor any Securityholder shall
have any liability to the Agent for, and the Agent hereby waives any claim
that the Agent may have at any time against the Trustee or any Securityholder
arising out of, any and all actions that the Trustee or any Securityholder in
good faith and in a commercially reasonable manner, takes or omits to take
with respect to (i) the Indenture, the Notes or the Trustee Security
Agreements, (ii) collection of the Notes, or (iii) foreclosure upon and sale,
liquidation or other disposition, valuation, use, protection or release, of
the Trustee Collateral (other than books and records constituting part of the
Trustee Collateral and part of the Lender Collateral) or any guaranty.
(e) The Agent hereby waives promptness, diligence, notice of acceptance,
notice of modification or any of the terms of the Note Obligations, the
Indenture or the Trustee Security Agreements or the exercise of any rights
and remedies thereunder, except as required by law.
Section 7. Bankruptcy Issues.
(a) This Agreement shall be applicable both before and after the
commencement, whether voluntary or involuntary, of any case of either of the
Obligors under the Bankruptcy Code (a "Bankruptcy Case") and all references
herein shall be deemed to apply to any such Obligor as a debtor-in-
possession and to any trustee in bankruptcy for the estate of any such
Obligor.
(b) If:
(i) an Obligor or such Obligor's estate becomes the subject of a
Bankruptcy Case, and
(ii) the Lenders collectively desire to permit the use of their
cash collateral under Section 363 of the Bankruptcy Code or to provide
financing under Section 364 of the Bankruptcy Code, in either case secured
only by Receivables arising after the commencement of any such Bankruptcy
Case and in either case for the normal business purposes of the applicable
borrower; and
-6-
<PAGE>
(iii) in connection with any such
use of cash collateral or financing, the applicable borrower and each other
obligor under such cash collateral usage or financing arrangement (whether an
Obligor or any affiliate of such Obligor) grants to the Trustee and the
Agent, respectively, pursuant to court order, a first priority security
interest (subject to no other liens) in all of its personal property (other
than its Receivables) arising or acquired after the commencement of such
Bankruptcy Case that would have constituted Trustee Collateral and Lender
Collateral, respectively, but for the occurrence of such Bankruptcy Case;
then the Trustee agrees that (x) adequate notice of such financing to the
Trustee shall have been provided if (i) with respect to any motion seeking
emergency or preliminary authorization to use cash collateral or for
post-petition financing, the Trustee received notice, by telecopy, overnight
courier or hand delivery to the Trustee at its address set forth herein, two
(2) business days before the entry of any order approving such cash
collateral usage or financing and (ii) with respect to any other motions,
such notice as is required by law; (y) the Trustee shall not object to such
cash collateral usage or financing based on: (I) any claim that the Trustee's
liens and security interest are not adequately protected, (II) any objection
to the nature or scope of any adequate protection granted to the Lenders in
the form of replacement or additional liens on Receivables arising after the
commencement of such Bankruptcy Case, or (III) any proposed application of
pre-petition Receivables proceeds to the Lenders' pre-petition claims, and
(z) the Trustee shall not seek to have the automatic stay lifted with respect
to the Trustee Collateral for any of the reasons enumerated in the preceding
clause (y) so long as such cash collateral usage or financing has not been
terminated.
(c) Except to the extent specifically stated herein, this Agreement
shall not affect or limit the rights of the Trustee and the Securityholders,
or the Agent and the Lenders, in connection with (i) any use or proposed use
of cash collateral or debtor-in-possession financing or proposed
debtor-in-possession financing (including, without limitation, any right to
object in the form of, or any provision of, any cash collateral usage or
financing order, to the extent such objection is not expressly prohibited by
Section 7(b) hereof), (ii) any effort to seek adequate protection or relief
from the automatic stay or (iii) any Bankruptcy Case.
(d) Notwithstanding anything to the contrary contained in Section 11
hereof, if the Agent or any Lender is required under any bankruptcy or other
law to return to an Obligor, the estate in bankruptcy thereof, any third
party, or trustee, receiver or other representative of such Obligor, any
payment or
-7-
<PAGE>
distribution of assets, whether in cash, property, or securities, including,
without limitation, any Receivables, previously received by the Agent or such
Lender on account of the Lender Obligations (a "Lender Reinstatement
Distribution"), then to the extent permitted by law, this Agreement shall be
reinstated with respect to any such Lender Reinstatement Distribution.
Neither the Agent nor any Lender shall be required to contest its obligation
to return such Lender Reinstatement Distribution if the Agent or such Lender
elects for any reason not to contest such obligation.
(e) Notwithstanding anything to the contrary contained in Section 11
hereof, if the Trustee or any Securityholder is required under any bankruptcy
or other law to return to an Obligor, the estate in bankruptcy thereof, any
third party, or trustee, receiver or other representative of such Obligor,
any payment or distribution of assets, whether in cash, property, or
securities, including, without limitation, any Receivables, previously
received by the Trustee or such Securityholder on account of the Note
Obligations (a "Trustee Reinstatement Distribution"), then to the extent
permitted by law, this Agreement shall be reinstated with respect to any such
Trustee Reinstatement Distribution. Neither the Trustee nor any
Securityholder shall be required to contest its obligation to return such
Trustee Reinstatement Distribution if the Trustee or such Securityholder
elects for any reason not to contest such obligation.
Section 8. Representations and Warranties. Each of the parties hereto
represents and warrants to the other as follows:
(a) it has the corporate power and authority to execute, deliver and
perform this Agreement and has taken all necessary corporate actions to
authorize the execution, delivery and performance by it of this Agreement;
(b) no consent or authorization of, or filing with, any person
(including, without limitation, any governmental body, agency or official) is
required in connection with the execution, delivery or performance by it, or
the validity or enforceability against it, of this Agreement; and
(c) this Agreement has been duly executed and delivered by it and
constitutes a legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally and
subject, as to enforceability, to general principles of equity (regardless of
whether enforcement is sought in a proceeding in equity or at law).
Section 9. Absolute Nature of Obligations. The Agent and the Trustee each
agrees that the terms and conditions of this Agreement shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of, or any default or event of
default occurring under, the Credit Agreement, the Lender Security
Agreements, the Indenture, the Notes or the Trustee Security Agreements;
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<PAGE>
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Lender Obligations or the Note Obligations, or any
amendment or waiver of, or any consent to departure from, the Credit
Agreement, the Lender Security Agreements, the Indenture, the Notes or the
Trustee Security Agreements;
(c) any exchange, release or non-perfection of any "Collateral" (as
defined in the Credit Agreement) or any "Collateral" (as defined in the
Trustee Security Agreements) or any release or amendment or waiver of or
consent to departure from any guaranty, for all or any of the Lender
Obligations or Note Obligations; or
(d) any other circumstance that might otherwise constitute a defense
available to, or a discharge of, either Obligor or any guarantor.
Section 10. Proceeds upon Foreclosure, Bankruptcy, Receivership, Etc.
(a) If the Trustee forecloses upon any Trustee Collateral, it shall give
the Agent written notice of such foreclosure which shall specify the
collateral being foreclosed. If the Agent claims any such collateral being
foreclosed is also Lender Collateral, it shall notify the Trustee in writing
within 30 days of its receipt of the notice from the Trustee. In the event of
a dispute regarding such claim, the Trustee may petition any court of
competent jurisdiction to resolve such dispute. If the Trustee forecloses
upon any Trustee Collateral that also constitutes Lender Collateral (as
determined above) (any such Trustee Collateral that also constitutes Lender
Collateral is referred to in this subsection (a) as "Section 10A Common
Collateral"), or if the Trustee obtains any recovery in cash or otherwise
from Section 10A Common Collateral as a result of any sale, liquidation or
other disposition of Section 10A Common Collateral, including without
limitation any sale, liquidation or other disposition in connection with any
bankruptcy,
-9-
<PAGE>
receivership or similar event involving any of the Obligors, the net proceeds
so received upon such Section 10A Common Collateral after the payment of the
expenses of such foreclosure and fees and other amounts then payable to the
Trustee (in its capacity as Trustee and not on behalf of the Securityholders)
under the Indenture and the Collateral Documents shall be shared by the
Trustee and the Agent on an equal and ratable basis based upon the relative
outstanding principal amounts of Lender Obligations and Note Obligations, and
the Trustee shall pay to the Agent the Lenders' pro rata share. The Trustee
shall apply the amount retained by it as provided in the Indenture, and the
Agent shall apply the amount paid to it as provided in the Credit Agreement.
(b) If the Agent forecloses upon any Lender Collateral, it shall give the
Trustee written notice of such foreclosure which shall specify the collateral
being foreclosed. If the Trustee claims any such collateral being foreclosed
is also Trustee Collateral, it shall notify the Agent in writing within 30
days of its receipt of the notice from the Agent. In the event of a dispute
regarding such claim, the Agent may petition any court of competent
jurisdiction to resolve such dispute. If the Agent forecloses upon any Lender
Collateral that also constitutes Trustee Collateral (as determined above)
(any such Lender Collateral that also constitutes Trustee Collateral is
referred to in this subsection (b) as "Section 10B Common Collateral"), or if
the Agent obtains any recovery in cash or otherwise from Common Collateral as
a result of any sale, liquidation or other disposition of Section 10B Common
Collateral, including without limitation any sale, liquidation or other
disposition in connection with any bankruptcy, receivership or similar event
involving any of the Obligors, the net proceeds
-10-
<PAGE>
so received after the payment of the expenses of such foreclosure and fees
and other amounts then payable to the Agent (in its capacity as Agent and not
on behalf of the Lenders) under the Credit Agreement and the Lender Security
Agreements shall be shared by the Trustee and the Agent on an equal and
ratable basis based upon the relative outstanding principal amounts of Lender
Obligations and Note Obligations, and the Agent shall pay to the Trustee the
Trustee's pro rata share. The Agent shall apply the amount retained by it as
provided in the Credit Agreement, and the Trustee shall apply the amount paid
to it as provided in the Indenture.
Section 11. Possessory Security Interest.
(a) The Trustee hereby acknowledges that this Agreement constitutes
notice to the Trustee from the Agent of the Lender Security Interest in any
Lender Collateral in the possession of the Trustee, provided that this
Section shall not affect the obligation of the Trustee to make distributions
of principal and interest on the Note Obligations to the Securityholders in
accordance with the terms and conditions of the Indenture and subject to the
terms and conditions of this Agreement.
(b) The Agent hereby acknowledges that this Agreement constitutes notice
to the Agent from the Trustee of the Trustee Security Interest in any Trustee
Collateral in the possession of the Agent, provided that this Section shall
not affect the obligation of the Agent to make distributions of principal and
interest on the Lender Obligations to the Lenders in accordance with the
terms and conditions of the Credit Agreement and subject to the terms and
conditions of this Agreement.
Section 12. Termination. This Agreement shall remain in full force and
effect and be enforceable against each party hereto according to its terms
and shall terminate upon the indefeasible payment in full of the Lender
Obligations or the Note Obligations.
Section 13. Limitation of Liability. In exercising any of the rights
and remedies granted to them hereunder, the Agent and the Lenders on the one
hand, and the Trustee and the Securityholders on the other hand, shall have
no duty to collect any sums due in respect of the Note Obligations or the
Lender Obligations, respectively, or to enforce, protect or preserve any
rights pertaining thereto except as may be required by law.
Section 14. Miscellaneous.
(a) Notices. All notices, requests and other communications to any
party hereunder shall be given in writing and shall be given to such party in
person, by first-class mail (registered or certified, return receipt
requested), telex, telecopier or overnight air courier guaranteeing next day
delivery to the address set forth on the signature pages hereof or such other
address or facsimile number as such party may hereafter specify by notice to
each of the other parties hereto;
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<PAGE>
provided that no notices, requests or other communications may be given by
facsimile or similar teletransmission unless receipt is confirmed. Each such
notice, request or other communication shall be effective (i) if given by
mail, 72 hours after such communication is deposited in the mails with first
class postage prepaid, addressed as aforesaid, or (ii) if given by any other
means (including, without limitation, by air courier), when delivered at the
address or number specified.
(b) Governing Law; Severability. This Agreement shall be governed by,
and construed in accordance with, the internal laws (as opposed to conflict
of laws principles) of the State of New York. Wherever possible, each
provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but, if any provision of this
Agreement shall be prohibited or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity and
without invalidating the remaining provisions of this Agreement.
(c) 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. The Agent's successors shall include (i) any Person replacing
the Agent as Agent pursuant to the terms of the Credit Agreement and (ii) if
there is no agent under the Credit Agreement, then each holder of
Indebtedness under the Credit Agreement. The Trustee's successors shall
include any Person replacing the Trustee as Trustee pursuant to the terms of
the Indenture. Upon the request of any such successor Agent, the Trustee or
its successors shall enter into an intercreditor agreement with such
successor Agent that is identical in substance to this Agreement, with
appropriate conforming changes to reflect the identity of such successor
Agent. Upon the request of any such successor Trustee, the Agent or its
successors shall enter into an intercreditor agreement with such successor
Trustee that is identical in substance to this Agreement, with appropriate
conforming changes to reflect the identity of such successor Trustee.
(d) Amendments, Modifications and Waivers. No amendment, modification or
waiver of any provision of this Agreement shall be effective unless the same
shall be in writing and signed by each of the parties hereto or their
respective successors and assigns, and then such amendment, modification or
waiver shall be effective only in the specific instance and for the specific
purpose for which it is given. This Agreement may be modified to provide for
more than one Credit Agreement.
(e) Headings. The section headings contained in this Agreement are and
shall be without substantive meaning or content whatsoever and are not part
of this Agreement.
(f) Holders Bound. The Trustee is signing below as trustee for the
Securityholders and their successors and assigns and the Agent is signing
below as agent for the Lenders and their
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<PAGE>
successors and assigns.
-13-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized
representative as of the date first above written.
AGENT:
BANQUE PARIBAS, as Agent
By:
Name:
Title:
By:
Name:
Title:
Address: 787 Seventh Avenue
N.Y., N.Y. 10019
Attn: Philippe Vuarchex
Fax No.: (212) 841-2369
TRUSTEE:
FLEET NATIONAL BANK, as Trustee
By:
Name:
Title:
Address: 777 Main Street
Hartford, CT 06115
Attn: Corporate
Trust Administration
Fax No.: (860) 240-7920
THE HELICON GROUP, L.P.
By its general partner,
Baum Investments, Inc.
By:
Name:
Title:
630 Palisade Avenue
Englewood Cliffs, NJ 07632
HELICON CAPITAL CORP.
By:
Name:
Title:
630 Palisade Avenue
Englewood Cliffs, NJ 07632
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<PAGE>
Schedule 1
to
Intercreditor Agreement
dated as of June 26, 1997
Lender Security Agreements
1. Borrower Security Agreement, dated as of June 26, 1997, between The Helicon
Group, L.P. and Banque Paribas, as agent.
2. Subsidiary Guaranty and Security Agreement, dated as of June 26, 1997,
between Helicon Capital Corp. and Banque Paribas, as agent.
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<PAGE>
Schedule 2
to
Intercreditor Agreement
dated as of June 26, 1997
Trustee Security Agreements
1. Security Agreement dated as of November 3, 1993.
2. Cash Collateral Account Security, Pledge and Assignment Agreement dated
as of November 3, 1993.
-16-
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<CIK> 0000915767
<NAME> HELICON GROUP, L.P.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 5,774
<SECURITIES> 0
<RECEIVABLES> 888
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 8,361
<PP&E> 82,997
<DEPRECIATION> 47,471
<TOTAL-ASSETS> 75,851
<CURRENT-LIABILITIES> 8,670
<BONDS> 143,317
0
0
<COMMON> 0
<OTHER-SE> (76,234)
<TOTAL-LIABILITY-AND-EQUITY> 75,851
<SALES> 0
<TOTAL-REVENUES> 31,817
<CGS> 0
<TOTAL-COSTS> 24,916
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (10,635)
<INCOME-PRETAX> (3,638)
<INCOME-TAX> 0
<INCOME-CONTINUING> (3,638)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (3,638)
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<CIK> 0000915772
<NAME> HELICON CAPITAL CORP.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 1
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 1
<PP&E> 0
<DEPRECIATION> 0
<TOTAL-ASSETS> 1
<CURRENT-LIABILITIES> 0
<BONDS> 0
0
0
<COMMON> 0
<OTHER-SE> 1
<TOTAL-LIABILITY-AND-EQUITY> 1
<SALES> 0
<TOTAL-REVENUES> 0
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 0
<INCOME-PRETAX> 0
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 0
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
