<PAGE>
As filed with the Securities and Exchange Commission on August 19, 1997
=============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
SCHEDULE 13E-4
ISSUER TENDER OFFER STATEMENT
(PURSUANT TO SECTION 13(E)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934)
-----------------
TELE-COMMUNICATIONS, INC.
(NAME OF ISSUER)
TELE-COMMUNICATIONS, INC.
(NAME OF PERSON(S) FILING STATEMENT)
TELE-COMMUNICATIONS, INC. SERIES A LIBERTY MEDIA GROUP COMMON STOCK AND
TELE-COMMUNICATIONS, INC. SERIES B LIBERTY MEDIA GROUP COMMON STOCK
(TITLE OF CLASS OF SECURITIES)
87924V507 (SERIES A)
87924V606 (SERIES B)
(CUSIP NUMBER OF CLASS OF SECURITIES)
----------------
STEPHEN M. BRETT, ESQ.
TELE-COMMUNICATIONS, INC.
TERRACE TOWER II
5619 DTC PARKWAY
ENGLEWOOD, COLORADO 80111-3000
(303) 267-5500
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF PERSON AUTHORIZED TO RECEIVE
NOTICES AND COMMUNICATIONS ON BEHALF
OF THE PERSON(S) FILING STATEMENT)
-----------------
COPY TO:
ELIZABETH M. MARKOWSKI, ESQ.
BAKER & BOTTS, L.L.P.
599 LEXINGTON AVENUE
NEW YORK, NEW YORK 10022-6030
(212) 705-5000
------------------
AUGUST 19, 1997
(DATE TENDER OFFER FIRST PUBLISHED, SENT OR GIVEN TO SECURITY HOLDERS)
CALCULATION OF FILING FEE
<TABLE>
<CAPTION>
==============================================================================
TRANSACTION VALUATION/1/ AMOUNT OF FILING FEE
==============================================================================
<S> <C>
$270,000,000.00 $54,000.00
==============================================================================
</TABLE>
/1/For purposes of calculating the amount of the filing fee only. Based upon
$27 cash per share for 10,000,000 shares.
[ ] Check box if any part of the fee is offset as provided by Rule 0-11(a)(2)
and identify the filing with which the offsetting fee was previously paid.
Identify the previous filing by registration number, or the form or schedule
and the date of its filing.
Amount Previously Paid: N/A Filing Party: N/A
Form of Registration No.: N/A Date Filed: N/A
================================================================================
<PAGE>
ITEM 1. SECURITY AND ISSUER.
(a) The issuer of the securities to which this statement relates is Tele-
Communications, Inc., a Delaware corporation (the "Company"). The principal
executive offices of the Company are located at Terrace Tower II, 5619 DTC
Parkway, Englewood, Colorado 80111-3000.
(b) This statement relates to an offer by the Company to purchase shares of
its Tele-Communications, Inc. Series A Liberty Media Group Common Stock, par
value $1.00 per share (the "Series A Liberty Media Group Common Stock") and
shares of its Tele-Communications, Inc. Series B Liberty Media Group Common
Stock, par value $1.00 per share (the "Series B Liberty Media Group Common
Stock" and, together with the Series A Liberty Media Group Common Stock, the
"Liberty Media Group Common Stock"), up to an aggregate of 10,000,000 Shares, at
$27 per share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Company's Offer to Purchase, dated August 19, 1997
(the "Offer to Purchase"), and in the related Letter of Transmittal, which
together constitute the "Offer," copies of which are filed herewith as Exhibits
(a)(1) and (a)(2), respectively, and incorporated herein by reference.
Officers, directors and affiliates of the Company may participate in the
Offer on the same basis as the other stockholders of the Company. The Company
has been advised that none of its directors or executive officers intends to
tender any Shares pursuant to the Offer. The information set forth in the
sections of the Offer to Purchase captioned "INTRODUCTION," "THE OFFER--Section
1, Number of Shares; Proration," "THE OFFER--Section 2, Purpose of the Offer;
Certain Effects of the Offer" and "THE OFFER--Section 10, Interest of Directors
and Officers; Transactions and Arrangements Concerning Shares" is incorporated
herein by reference.
(c) The information set forth in the section of the Offer to Purchase
captioned "THE OFFER--Section 7, Price Range of Shares; Dividends" is
incorporated herein by reference.
(d) Not applicable.
ITEM 2. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The information set forth in the section of the Offer to Purchase
captioned "THE OFFER--Section 8, Source and Amount of Funds" is incorporated
herein by reference.
ITEM 3. PURPOSE OF THE TENDER OFFER AND PLANS OR PROPOSALS OF THE ISSUER OR
AFFILIATE.
The information with respect to the purposes of the Offer is set forth
in the section of the Offer to Purchase captioned "THE OFFER--Section 2, Purpose
of the Offer; Certain Effects of the Offer," which information is incorporated
herein by reference. The Shares acquired by the Company in the Offer will be
retired. The Company presently has no plans or proposals which relate to or
would result in any of the events listed in Items 3(a) through 3(j) of Schedule
13E-4, except as set forth below.
2
<PAGE>
(a) The information in the section of the Offer to Purchase captioned "THE
OFFER--Section 10, Interest of Directors and Officers; Transactions and
Arrangements Concerning Shares" is incorporated herein by reference.
(h) The information in the section of the Offer to Purchase captioned "THE
OFFER--Section 11, Effects of the Offer on the Market for Shares; Registration
under the Exchange Act" is incorporated herein by reference.
(i) The information in the section of the Offer to Purchase captioned "THE
OFFER--Section 11, Effects of the Offer on the Market for Shares; Registration
under the Exchange Act" is incorporated herein by reference.
ITEM 4. INTEREST IN SECURITIES OF THE ISSUER.
The information set forth in the section of the Offer to Purchase
captioned "THE OFFER--Section 10, Interest of Directors and Officers;
Transactions and Arrangements Concerning Shares" is incorporated herein by
reference.
ITEM 5. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO THE ISSUER'S SECURITIES.
None, except as discussed in Item 4 above.
ITEM 6. PERSONS RETAINED, EMPLOYED OR TO BE COMPENSATED.
The information set forth in the section of the Offer to Purchase
captioned "THE OFFER--Section 15, Fees and Expenses" is incorporated herein by
reference.
ITEM 7. FINANCIAL INFORMATION.
The information set forth in (i) the section of the Offer to Purchase
captioned "THE OFFER--Section 9, Certain Information Concerning the Company,"
(ii) the financial statements and notes related thereto contained on pages II-
50 through II-129 of the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996 and (iii) the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1997 is incorporated herein by reference.
ITEM 8. ADDITIONAL INFORMATION.
(a) Not applicable.
(b) The Company does not believe there are any material regulatory
approvals required in connection with the Offer.
(c) The information set forth in the section of the Offer to Purchase
captioned "THE OFFER--Section 11, Effects of the Offer on the Market for Shares;
Registration under the Exchange Act" is incorporated herein by reference.
(d) Not applicable.
3
<PAGE>
(e) The information in the materials filed herewith under Item 9 is
incorporated herein by reference.
ITEM 9. MATERIAL TO BE FILED AS EXHIBITS.
(a)(1) Form of Offer to Purchase, dated August 19, 1997.
(a)(2) Form of Letter of Transmittal (including Certification of Taxpayer
Identification Number on Substitute Form W-9 and
guidelines thereto).
(a)(3) Form of Notice of Guaranteed Delivery.
(a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(a)(6) Form of Summary Advertisement dated August 19, 1997.
(a)(7) Text of Press Release issued by the Company, dated August 19, 1997.
(b) Revolving Credit Agreement, dated as of August 15, 1997, by and
among Communication Capital Corp., the Banks party thereto, and The
Bank of New York, as Administrative Agent, Toronto Dominion (Texas),
Inc., as Syndication Agent, and Credit Lyonnais, as Documentation
Agent.
(c) Not applicable.
(d) Not applicable.
(e) Not applicable.
(f) Not applicable.
(g)(1) Pages II-50 through II-129 of the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996 (Incorporated
herein by reference to pages II-50 through II-129 of the Company's
Annual Report on Form 10-K for the fiscal year ended December 31,
1996 (Commission File No. 0-20421)).
(g)(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997 (Incorporated herein by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997
(Commission File No. 0-20421)).
4
<PAGE>
SIGNATURE
After due inquiry and to the best of the Company's knowledge and
belief, the undersigned certifies that the information set forth in this
Schedule 13E-4 is true, complete and correct.
Dated: August 19, 1997 TELE-COMMUNICATIONS, INC.
By: /s/ Robert R. Bennett
----------------------
Name: Robert R. Bennett
Title: Executive Vice President
5
<PAGE>
EXHIBIT INDEX
Exhibit
No.
-------
(a)(1) Form of Offer to Purchase, dated August 19, 1997.
(a)(2) Form of Letter of Transmittal (including Certification of Taxpayer
Identification Number on Substitute Form W-9 and guidelines
thereto).
(a)(3) Form of Notice of Guaranteed Delivery.
(a)(4) Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and Other Nominees.
(a)(5) Form of Letter to Clients for use by Brokers, Dealers, Commercial
Banks, Trust Companies and Other Nominees.
(a)(6) Form of Summary Advertisement dated August 19, 1997.
(a)(7) Text of Press Release issued by the Company, dated August 19, 1997.
(b) Revolving Credit Agreement, dated as of August 15, 1997, by and
among Communication Capital Corp., the Banks party thereto, and The
Bank of New York, as Administrative Agent, Toronto Dominion (Texas),
Inc., as Syndication Agent, and Credit Lyonnais, as Documentation
Agent.
(g)(1) Pages II-50 through II-129 of the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1996 (Incorporated
herein by reference to pages II-50 through II-129 of the Company's
Annual Report on Form 10-K for the fiscal year ended December 31,
1996 (Commission File No. 0-20421)).
(g)(2) The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997 (Incorporated herein by reference to the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30, 1997
(Commission File No. 0-20421)).
<PAGE>
OFFER TO PURCHASE FOR CASH
BY
TELE-COMMUNICATIONS, INC.
SHARES OF ITS
SERIES A LIBERTY MEDIA GROUP COMMON STOCK
AND
SERIES B LIBERTY MEDIA GROUP COMMON STOCK
UP TO 10,000,000 SHARES IN THE AGGREGATE
AT $27 NET PER SHARE
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00
P.M., NEW YORK CITY TIME, ON WEDNESDAY, SEPTEMBER 17, 1997, UNLESS THE
OFFER IS EXTENDED (SUCH DATE AS EXTENDED FROM TIME TO TIME, THE
"EXPIRATION DATE"). LIBERTY MEDIA GROUP COMMON STOCK TENDERED PURSUANT TO
THE OFFER MAY BE WITHDRAWN AT ANY TIME PRIOR TO 5:00 PM, NEW YORK CITY
TIME, ON THE EXPIRATION DATE.
Tele-Communications, Inc., a Delaware corporation (the "Company" or "TCI"),
hereby invites its stockholders to tender shares of Tele-Communications, Inc.
Series A Liberty Media Group Common Stock (the "Series A Liberty Media Group
Common Stock") and shares of Tele-Communications, Inc. Series B Liberty Media
Group Common Stock (the "Series B Liberty Media Group Common Stock" and,
together with the Series A Liberty Media Group Common Stock, the "Liberty
Media Group Common Stock") to the Company at $27 per Share (the "Purchase
Price"), net to the seller in cash, upon the terms and subject to the
conditions set forth herein and in the related Letter of Transmittal, which
together constitute the "Offer." All shares of Liberty Media Group Common
Stock validly tendered and not properly withdrawn prior to the Expiration Date
will be purchased at the Purchase Price, upon the terms and subject to the
conditions of the Offer, including the proration provisions. The Company
reserves the right, in its sole discretion, to purchase more than 10,000,000
shares of Liberty Media Group Common Stock in the aggregate pursuant to the
Offer. See Section 14.
The Offer is not conditioned on any minimum number of Shares being tendered.
The Offer is, however, subject to certain other conditions. See Section 6.
The Series A Liberty Media Group Common Stock and the Series B Liberty Media
Group Common Stock are traded on the National Market tier of The Nasdaq Stock
Market under the symbols "LBTYA" and "LBTYB", respectively. On August 18,
1997, the last trading day on The Nasdaq Stock Market prior to the
announcement of the terms of the Offer, the last sale prices per share for the
Series A Liberty Media Group Common Stock and the Series B Liberty Media Group
Common Stock were $23 13/16 and $25 1/4, respectively. See Section 7.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
STOCKHOLDERS AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING THEIR SHARES OF
SERIES A LIBERTY MEDIA GROUP COMMON STOCK OR SERIES B LIBERTY MEDIA GROUP
COMMON STOCK. EACH STOCKHOLDER MUST MAKE THE DECISION WHETHER TO TENDER SHARES
AND, IF SO, HOW MANY SHARES TO TENDER. THE COMPANY HAS BEEN ADVISED THAT NONE
OF ITS DIRECTORS OR EXECUTIVE OFFICERS INTENDS TO TENDER ANY SHARES PURSUANT
TO THE OFFER.
The Dealer Manager for the Offer is:
SALOMON BROTHERS INC
August 19, 1997
<PAGE>
IMPORTANT
Any stockholder wishing to tender all or any part of his or her shares of
Liberty Media Group Common Stock should either (a) complete and sign a Letter
of Transmittal (or a facsimile thereof) in accordance with the instructions in
the Letter of Transmittal and mail or deliver it with any required signature
guarantee and any other required documents to The Bank of New York (the
"Depositary"), and mail or deliver the stock certificates for such shares to
the Depositary (with all such other documents) or tender such shares pursuant
to the procedure for book-entry transfer set forth in Section 3, or (b)
request a broker, dealer, commercial bank, trust company or other nominee to
effect the transaction for such stockholder. Holders of shares registered in
the name of a broker, dealer, commercial bank, trust company or other nominee
should contact such person if they desire to tender their shares. Any
stockholder who desires to tender shares of Liberty Media Group Common Stock
and whose certificates for such shares cannot be delivered to the Depositary
or who cannot comply with the procedure for book-entry transfer or whose other
required documents cannot be delivered to the Depositary must, in any case, by
the Expiration Date tender such shares pursuant to the guaranteed delivery
procedure set forth in Section 3.
Questions and requests for assistance or for additional copies of this Offer
to Purchase, the Letter of Transmittal or the Notice of Guaranteed Delivery
may be directed to the Information Agent or to the Dealer Manager at their
respective addresses and telephone numbers set forth on the back cover of this
Offer to Purchase.
THE COMPANY HAS NOT AUTHORIZED ANY PERSON TO MAKE ANY RECOMMENDATION ON
BEHALF OF THE COMPANY AS TO WHETHER STOCKHOLDERS SHOULD TENDER OR REFRAIN FROM
TENDERING SHARES OF LIBERTY MEDIA GROUP COMMON STOCK PURSUANT TO THE OFFER.
THE COMPANY HAS NOT AUTHORIZED ANY PERSON TO GIVE ANY INFORMATION OR TO MAKE
ANY REPRESENTATION IN CONNECTION WITH THE OFFER OTHER THAN THOSE CONTAINED
HEREIN OR IN THE LETTER OF TRANSMITTAL. IF GIVEN OR MADE, ANY SUCH
RECOMMENDATION OR ANY SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED
UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY.
----------------
(ii)
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
- ------- ----
<S> <C>
SUMMARY................................................................... 1
INTRODUCTION.............................................................. 3
THE OFFER................................................................. 5
1. Number of Shares; Proration......................................... 5
2. Purpose of the Offer; Certain Effects of the Offer.................. 7
3. Procedures for Tendering Shares..................................... 8
4. Withdrawal Rights................................................... 11
5. Purchase of Shares and Payment of Purchase Price.................... 12
6. Certain Conditions of the Offer..................................... 13
7. Price Range of Shares; Dividends.................................... 14
8. Source and Amount of Funds.......................................... 15
9. Certain Information Concerning the Company.......................... 15
10. Interest of Directors and Officers; Transactions and Arrangements
Concerning Shares.................................................. 23
11. Effects of the Offer on the Market for Shares; Registration under
the Exchange Act................................................... 24
12. Certain Legal Matters; Regulatory Approvals......................... 25
13. Certain Federal Income Tax Consequences............................. 25
14. Extension of Offer; Termination; Amendment.......................... 27
15. Fees and Expenses................................................... 28
16. Miscellaneous....................................................... 29
</TABLE>
(iii)
<PAGE>
SUMMARY
THIS SUMMARY IS SOLELY FOR THE CONVENIENCE OF THE HOLDERS OF LIBERTY MEDIA
GROUP COMMON STOCK AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO THE FULL
TEXT AND MORE SPECIFIC DETAILS IN THIS OFFER TO PURCHASE. CAPITALIZED TERMS
USED IN THIS SUMMARY WITHOUT DEFINITION SHALL HAVE THE RESPECTIVE MEANINGS
ASCRIBED TO SUCH TERMS IN THIS OFFER TO PURCHASE.
The Company.............. Tele-Communications, Inc., a Delaware
corporation.
The Shares............... Shares of Series A Liberty Media Group Common
Stock and Series B Liberty Media Group Common
Stock.
Purchase Price........... $27 per Share, net to the seller in cash.
Number of Shares
Sought.................. 10,000,000 shares of Liberty Media Group Common
Stock in the aggregate (or such lesser number of
shares as are validly tendered and not properly
withdrawn). The Company reserves the right, in
its sole discretion, to purchase more than
10,000,000 shares pursuant to the Offer. See
Section 14.
How to Tender Shares..... See Section 3. Call the Information Agent, the
Dealer Manager or consult your broker for
assistance.
Brokerage Commissions.... None.
Stock Transfer Tax....... None, if payment is made to the registered
holder.
Expiration and Proration
Dates................... Wednesday, September 17, 1997, at 5:00 P.M., New
York City time, unless extended by the Company.
Payment Date............. As soon as practicable after the termination of
the Offer.
Position of the Company
and its Directors....... Neither the Company nor its Board of Directors
makes any recommendation to any stockholder as to
whether to tender or refrain from tendering
shares of Liberty Media Group Common Stock. The
Company has been advised that none of its
directors or executive officers intends to tender
any shares of Liberty Media Group Common Stock
pursuant to the Offer.
Proration................ If more than 10,000,000 Shares have been validly
tendered and not properly withdrawn prior to the
Expiration Date, the purchase of Shares will be
subject to proration. After the purchase of Odd
Lots as described below, Shares will be purchased
on a pro rata basis. Proration of Shares will be
based on the ratio of the number of Shares to be
purchased by the Company pursuant to the Offer
(less Odd Lots purchased) to the total number of
Shares validly tendered by all stockholders and
not properly withdrawn (less Odd Lots). This
ratio will be applied to all Shares validly
tendered and not properly withdrawn by each
stockholder (other than Odd Lot Holders) to
determine the number of Shares that will be
purchased from each stockholder pursuant to the
Offer. Preliminary results of proration will be
announced by press release as promptly as
practicable after the Expiration Date.
1
<PAGE>
Odd Lots................. There will be no proration of shares of Liberty
Media Group Common Stock tendered by any
stockholder owning beneficially or of record less
than 100 shares of Liberty Media Group Common
Stock and who validly tenders all such Shares
(and does not properly withdraw any of them)
prior to the Expiration Date and who completes
the "Odd Lots" item in the Letter of Transmittal.
See Section 1.
Withdrawal Rights........ Tendered shares may be withdrawn at any time
until 5:00 P.M., New York City time, on
Wednesday, September 17, 1997, unless the Offer
is extended by the Company, and, unless
previously accepted for payment by the Company
pursuant to the Offer, after 12:00 Midnight, New
York City time, on Wednesday, October 15, 1997.
See Section 4.
2
<PAGE>
To the Holders of Series A Liberty Media Group Common Stock and the Holders
of Series B Liberty Media Group Common Stock of Tele-Communications, Inc.:
INTRODUCTION
THIS OFFER TO PURCHASE, INCLUDING THE DISCUSSIONS BELOW AND IN SECTION 2,
CONTAINS FORWARD-LOOKING STATEMENTS WHICH INVOLVE RISKS AND UNCERTAINTIES. THE
COMPANY'S ACTUAL RESULTS MAY DIFFER MATERIALLY FROM THE ANTICIPATED RESULTS
DISCUSSED IN THE FORWARD-LOOKING STATEMENTS. FACTORS THAT MIGHT CAUSE SUCH A
DIFFERENCE INCLUDE, BUT ARE NOT LIMITED TO, THE MATTERS DISCUSSED BELOW AS
WELL AS THE FACTORS DESCRIBED UNDER THE CAPTION "FORWARD-LOOKING STATEMENTS"
IN THE COMPANY'S 1996 SHAREHOLDER REPORT.
The Company invites the holders of its Series A Liberty Media Group Common
Stock and Series B Liberty Media Group Common Stock to tender shares of
Liberty Media Group Common Stock (Series A and/or Series B) (the "Shares"), at
$27 per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth herein and in the related Letter of Transmittal, which
together constitute the "Offer." All Shares validly tendered and not properly
withdrawn prior to the Expiration Date (as defined below) will be purchased at
the Purchase Price, upon the terms and subject to the conditions of the Offer,
including the proration provisions. Shares not purchased because of proration
will be returned. The Company reserves the right, in its sole discretion, to
purchase more than 10,000,000 Shares pursuant to the Offer. See Section 14.
THIS OFFER IS NOT CONDITIONED UPON THE TENDER OF ANY MINIMUM NUMBER OF
SHARES BUT IS SUBJECT TO CERTAIN OTHER CONDITIONS. SEE SECTION 6.
THE BOARD OF DIRECTORS OF THE COMPANY HAS APPROVED THE MAKING OF THE OFFER.
HOWEVER, NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY
RECOMMENDATION TO STOCKHOLDERS AS TO WHETHER TO TENDER OR REFRAIN FROM
TENDERING THEIR SHARES. EACH STOCKHOLDER MUST MAKE THE DECISION WHETHER TO
TENDER SHARES AND, IF SO, HOW MANY SHARES TO TENDER. THE COMPANY HAS BEEN
ADVISED THAT NONE OF ITS DIRECTORS OR EXECUTIVE OFFICERS INTENDS TO TENDER ANY
SHARES PURSUANT TO THE OFFER.
Upon the terms and subject to the conditions of the Offer, if at the
expiration of the Offer more than 10,000,000 Shares are validly tendered and
not properly withdrawn, the Company will buy Shares first from all Odd Lot
Holders (as defined in Section 1) who validly tender all their Shares (and do
not properly withdraw them prior to the Expiration Date) and then on a pro
rata basis from all other stockholders who validly tender their Shares (and do
not properly withdraw them prior to the Expiration Date). See Section 1. All
Shares not purchased pursuant to the Offer, including because of proration,
will be returned at the Company's expense to the stockholders who tendered
such Shares.
The Purchase Price will be paid net to the tendering stockholder in cash for
all Shares purchased. Tendering stockholders will not be obligated to pay
brokerage commissions, solicitation fees or, subject to Instruction 6 of the
Letter of Transmittal, stock transfer taxes on the purchase of Shares by the
Company. HOWEVER, ANY TENDERING STOCKHOLDER OR OTHER PAYEE WHO FAILS TO
COMPLETE, SIGN AND RETURN TO THE DEPOSITARY THE SUBSTITUTE IRS FORM W-9 THAT
IS INCLUDED IN THE LETTER OF TRANSMITTAL MAY BE SUBJECT TO REQUIRED BACKUP
FEDERAL INCOME TAX WITHHOLDING OF 31% OF THE GROSS PROCEEDS PAYABLE TO SUCH
STOCKHOLDER OR OTHER PAYEE PURSUANT TO THE OFFER. SEE SECTION 3. The Company
will pay all fees and expenses of Salomon Brothers Inc ("Salomon" or the
"Dealer Manager"), The Bank of New York (the "Depositary") and D.F. King &
Co., Inc. (the "Information Agent") incurred in connection with the Offer. See
Section 15.
The Series A Liberty Media Group Common Stock and Series B Liberty Media
Group Common Stock are series of the Company's common stock, par value $1.00
per share (the "Common Stock"). TCI currently has two other authorized series
of Common Stock of which shares are outstanding: Tele-
3
<PAGE>
Communications, Inc. Series A TCI Group Common Stock (the "Series A TCI Group
Common Stock") and Tele-Communications, Inc. Series B TCI Group Common Stock
(the "Series B TCI Group Common Stock" and, together with the Series A TCI
Group Common Stock, the "TCI Group Common Stock"). The Company is soliciting
the approval of its stockholders at the 1997 annual meeting of stockholders to
be held on August 28, 1997 of certain amendments (the "Charter Amendments") to
the Company's Restated Certificate of Incorporation, including amendments that
would redesignate two authorized but unissued series of Common Stock as the
Tele-Communications, Inc. Series A TCI Ventures Group Common Stock (the
"Series A TCI Ventures Group Common Stock") and the Tele-Communications, Inc.
Series B TCI Ventures Group Common Stock (the "Series B TCI Ventures Group
Common Stock" and, together with the Series A TCI Ventures Group Common Stock,
the "TCI Ventures Group Common Stock").
The Liberty Media Group Common Stock is intended to reflect the separate
performance of the Liberty Media Group, which is presently comprised of the
Company's businesses and investments in entities that are engaged in the
production, acquisition and distribution through all available formats and
media of branded entertainment, educational and informational programming and
software, including multimedia products, and its investments in entities
engaged in electronic retailing, direct marketing, advertising sales relating
to programming services, infomercials and transaction processing, and the
operation of UHF television stations. If the Charter Amendments become
effective, the TCI Ventures Group Common Stock will be intended to reflect the
separate performance of the TCI Ventures Group, which includes TCI's principal
international assets and substantially all of TCI's non-cable and non-
programming assets. The TCI Group Common Stock is intended to reflect the
separate performance of the TCI Group, which, if the Charter Amendments become
effective, will be comprised of the Company's domestic distribution and
communications businesses (other than the investments attributed to the TCI
Ventures Group), and any other businesses and assets of the Company not
attributed to either the Liberty Media Group or the TCI Ventures Group.
The Offer is part of the Company's previously announced plan to buy back up
to 55,500,000 shares of Liberty Media Group Common Stock, of which 7,277,202
shares of Series A Liberty Media Group Common Stock and 2,278,125 shares of
Series B Liberty Media Group Common Stock have been repurchased since such
announcement was made on August 15, 1996. The Board of Directors has
determined that the financial condition and outlook of the Liberty Media Group
and the Company and current market conditions, including recent trading prices
of the Shares, make this an attractive time to repurchase a significant
portion of the outstanding Shares, taking into account the increased interest
expense associated with the borrowing required in connection with the Offer.
In the view of the Board of Directors, the Offer represents an acceleration of
what would otherwise have been a continuing share repurchase program and
prudent use of the Liberty Media Group's financial resources that should
benefit the Company and its stockholders over the long term. In particular,
the Board of Directors believes that the purchase of Shares at this time is
consistent with the Company's long-term corporate goal of seeking to increase
stockholder value. In addition, the Offer will afford those stockholders who
desire liquidity an opportunity to sell all or a portion of their Shares
without the usual transaction costs associated with open market sales.
In approving the Offer, the Board of Directors took into account that the
purchase of 10,000,000 Shares would represent approximately 4.1% of the shares
of Liberty Media Group Common Stock outstanding as of July 31, 1997 (excluding
shares held in treasury) at an aggregate cost of approximately $270,000,000
(excluding estimated expenses). This expenditure by the Company will be
financed through cash on hand and proceeds of borrowings. See Section 8. The
financial impact of the purchase of the Shares pursuant to the Offer will be
attributed solely to the Liberty Media Group.
In deciding to approve the Offer, the Board of Directors also took into
account the expected financial impact of the Offer on the Liberty Media Group,
including the increased debt of the Liberty Media Group as a result of the
Offer and the resulting increased interest expense. The Company believes that
the Liberty Media Group's cash, liquid investments and access to credit
facilities following
4
<PAGE>
completion of the Offer, together with its anticipated cash flow from
operations, distributed earnings from investments and asset dispositions, are
adequate for the needs of the Liberty Media Group for the foreseeable future.
See Section 2.
As of July 31, 1997, 223,083,080 shares of Series A Liberty Media Group
Common Stock and 21,175,465 shares of Series B Liberty Media Group Common
Stock were issued and outstanding (exclusive of shares held in treasury) and
31,840,874 shares of Series A Liberty Media Group Common Stock were reserved
for issuance upon conversion, exchange or exercise of outstanding convertible
or exchangeable securities (other than the Series B Liberty Media Group Common
Stock) and options. In addition, one share of Series A Liberty Media Group
Common Stock is reserved for issuance upon conversion of each outstanding
share of Series B Liberty Media Group Common Stock. The 10,000,000 Shares that
the Company is offering to purchase pursuant to the Offer represent
approximately 4.1% of the shares of Liberty Media Group Common Stock
outstanding as of July 31, 1997. The shares of Series A Liberty Media Group
Common Stock and Series B Liberty Media Group Common Stock are traded on the
National Market tier of The Nasdaq Stock Market under the symbols "LBTYA" and
"LBTYB", respectively. On August 18, 1997, the last trading day on The Nasdaq
Stock Market prior to the announcement of the terms of the Offer, the last
sale prices of the Series A Liberty Media Group Common Stock and the Series B
Liberty Media Group Common Stock as reported by Nasdaq were $23 13/16 and $25
1/4 per share, respectively. STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET
QUOTATIONS FOR THE SHARES. See Section 7.
THE OFFER
1. NUMBER OF SHARES; PRORATION.
Upon the terms and subject to the conditions of the Offer, the Company will
purchase up to 10,000,000 Shares as are validly tendered (and not properly
withdrawn in accordance with Section 4) prior to the Expiration Date (as
defined below) at $27 per Share, net to the seller in cash. The term
"Expiration Date" means 5:00 P.M., New York City time, on Wednesday, September
17, 1997, unless and until the Company, in its sole discretion, shall have
extended the period of time during which the Offer will remain open, in which
event the term "Expiration Date" shall refer to the latest time and date at
which the Offer, as so extended by the Company, shall expire. See Section 14
for a description of the Company's right to extend, delay, terminate or amend
the Offer. The Company reserves the right to purchase more than 10,000,000
Shares pursuant to the Offer. In accordance with applicable regulations of the
Securities and Exchange Commission (the "SEC"), the Company may purchase
pursuant to the Offer an additional amount of Shares not to exceed 2% of the
outstanding Shares without amending or extending the Offer. See Section 14. In
the event of an over-subscription of the Offer as described below, Shares
validly tendered and not properly withdrawn prior to the Expiration Date will
be subject to proration, except for Odd Lots as explained below. The proration
period also expires on the Expiration Date.
THE OFFER IS NOT CONDITIONED UPON THE TENDER OF ANY MINIMUM NUMBER OF
SHARES, BUT IS SUBJECT TO CERTAIN OTHER CONDITIONS. SEE SECTION 6.
All Shares not purchased pursuant to the Offer, including Shares not
purchased because of proration, will be returned to the tendering stockholders
at the Company's expense as promptly as practicable following the Expiration
Date.
This Offer to Purchase and the related Letter of Transmittal will be mailed
to record holders of Shares and will be furnished to brokers, banks and
similar persons whose names, or the names of whose nominees, appear on the
Company's stockholder list or, if applicable, who are listed as participants
in a clearing agency's security position listing for subsequent transmittal to
beneficial owners of Shares.
5
<PAGE>
Priority of Purchasers. Upon the terms and subject to the conditions of the
Offer, if 10,000,000 or fewer Shares have been validly tendered and not
properly withdrawn prior to the Expiration Date, the Company will purchase all
such Shares. Upon the terms and subject to the conditions of the Offer, if
more than 10,000,000 Shares have been validly tendered and not properly
withdrawn prior to the Expiration Date, the Company will purchase validly
tendered Shares in the following order of priority:
(a) first, all Shares validly tendered and not properly withdrawn prior to
the Expiration Date by any Odd Lot Holder (as defined below) who:
(1) tenders all Shares owned beneficially or of record by such Odd Lot
Holder (tenders of less than all Shares owned by such stockholder will not
qualify for this preference); and
(2) completes the item captioned "Odd Lots" on the Letter of Transmittal
and, if applicable, on the Notice of Guaranteed Delivery; and
(b) then, after purchase of all of the foregoing Shares, all other Shares
validly tendered and not properly withdrawn prior to the Expiration Date, on a
pro rata basis (with appropriate adjustments to avoid purchases of fractional
shares) as described below.
Odd Lots. For purposes of the Offer, the term "Odd Lots" shall mean all
Shares validly tendered and not properly withdrawn prior to the Expiration
Date by any person (an "Odd Lot Holder") who owned, beneficially or of record,
an aggregate of fewer than 100 Shares (and so certified in the appropriate
place on the Letter of Transmittal and, if applicable, on the Notice of
Guaranteed Delivery). In order to qualify for this preference, an Odd Lot
Holder must tender all such Shares in accordance with the procedures described
in Section 3. As set forth above, Odd Lots will be accepted for payment before
proration, if any, of the purchase of other tendered Shares. This preference
is not available to partial tenders or to beneficial or record holders of an
aggregate of 100 or more Shares, even if such holders have separate accounts
or certificates representing fewer than 100 Shares. By accepting the Offer, an
Odd Lot Holder would not only avoid the payment of brokerage commissions but
also would avoid any applicable odd lot discounts in a sale of such holder's
Shares. Any stockholder wishing to tender all of such stockholder's Shares
pursuant to this Section should complete the item captioned "Odd Lots" on the
Letter of Transmittal and, if applicable, on the Notice of Guaranteed
Delivery.
The Company also reserves the right, but will not be obligated, to purchase
all Shares validly tendered by any stockholder who tendered all Shares owned,
beneficially or of record, and who, as a result of proration, would then own,
beneficially or of record, an aggregate of fewer than 100 Shares. If the
Company exercises this right, it will increase the number of Shares that it is
offering to purchase by the number of Shares purchased through the exercise of
such right.
Proration. In the event that proration of tendered Shares is required, the
Company will determine the proration factor as soon as practicable following
the Expiration Date. Proration for each stockholder tendering Shares, other
than Odd Lot Holders, shall be based on the number of Shares tendered by such
stockholder and the proration factor, which will take into account the total
number of Shares tendered by all stockholders, other than Odd Lot Holders.
Because of the difficulty in determining the number of Shares validly tendered
(including Shares tendered by guaranteed delivery procedures, as described in
Section 3) and not properly withdrawn, and because of the odd lot procedure,
the Company does not expect that it will be able to announce the final
proration factor or commence payment for any Shares purchased pursuant to the
Offer until approximately five Nasdaq trading days after the Expiration Date.
The preliminary results of any proration will be announced by press release as
promptly as practicable after the Expiration Date. Stockholders may obtain
such preliminary information from the Information Agent or the Dealer Manager
and may be able to obtain such information from their brokers.
6
<PAGE>
As described in Section 13, the number of Shares that the Company will
purchase from a stockholder may affect the United States federal income tax
consequences to the stockholder of such purchase and therefore may be relevant
to a stockholder's decision whether to tender Shares. The Letter of
Transmittal affords each tendering stockholder the opportunity to designate
the order of priority in which Shares tendered are to be purchased in the
event of proration.
2. PURPOSE OF THE OFFER; CERTAIN EFFECTS OF THE OFFER.
The Offer is part of the Company's previously announced plan to buy back up
to 55,500,000 shares of Liberty Media Group Common Stock, of which 7,277,202
shares of Series A Liberty Media Group Common Stock and 2,278,125 shares of
Series B Liberty Media Group Common Stock have been repurchased since such
announcement was made on August 15, 1996. The Board of Directors has
determined that the financial condition and outlook of the Company and the
Liberty Media Group and current market conditions, including recent trading
prices of the Shares, make this an attractive time to repurchase a significant
portion of the outstanding Shares, taking into account the increased interest
expense associated with the borrowing required in connection with the Offer.
In the view of the Board of Directors, the Offer represents an acceleration of
what would otherwise have been a continuing share repurchase program and a
prudent use of the Liberty Media Group's financial resources that should
benefit the Company and the holders of Liberty Media Group Common Stock over
the long term. In particular, the Board of Directors believes that the
purchase of Shares at this time is consistent with the Company's long term
corporate goal of seeking to increase stockholder value. During 1997, the
Company purchased an aggregate of 7,471,995 million Shares at an average
purchase price per Share of $24.90. Pursuant to SEC rules, the Company and its
affiliates will not repurchase any Shares, other than pursuant to the Offer,
until at least ten business days after the Expiration Date.
The Offer provides stockholders who are considering a sale of all or a
portion of their Shares with the opportunity to sell those Shares for cash
without the usual transaction costs associated with market sales. In addition,
stockholders owning fewer than 100 Shares whose Shares are purchased pursuant
to the Offer not only will avoid the payment of brokerage commissions but also
will avoid any applicable odd lot discounts payable on a sale of their Shares.
Stockholders who determine not to accept the Offer will realize a
proportionate increase in their relative equity interest in the Company,
subject to the Company's right to issue additional Shares and other equity
securities in the future.
In approving the Offer, the Board of Directors took into account that the
purchase of 10,000,000 Shares would represent approximately 4.1% of its Shares
outstanding as of July 31, 1997 at an aggregate cost of approximately
$270,000,000 (excluding estimated expenses). This expenditure by the Company
will be financed through cash on hand and proceeds of borrowings.
The Board of Directors also took into account the expected financial impact
of the Offer on the Liberty Media Group, including the increased debt of the
Liberty Media Group as a result of the Offer and the resulting increased
interest expense. The Company believes that the Liberty Media Group's cash,
liquid investments and access to credit facilities following completion of the
Offer, together with its anticipated cash flow from operations, distributed
earnings from investments and asset dispositions, are adequate for the needs
of the Liberty Media Group for the foreseeable future. However, the Company's
actual experience may differ from the expectations set forth in the preceding
sentence. Future events, such as unexpected operating losses or capital or
other expenditures, might have the effect of reducing the available cash
balances of the Liberty Media Group or might reduce or eliminate the
availability of external financial resources.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
ANY STOCKHOLDER AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING ANY OR ALL
OF SUCH STOCKHOLDER'S SHARES AND NEITHER HAS AUTHORIZED ANY PERSON TO MAKE ANY
SUCH RECOMMENDATION. STOCKHOLDERS ARE URGED TO EVALUATE CAREFULLY ALL
INFORMATION IN THE OFFER, CONSULT THEIR OWN
7
<PAGE>
INVESTMENT AND TAX ADVISORS AND MAKE THEIR OWN DECISIONS WHETHER TO TENDER
SHARES AND, IF SO, HOW MANY SHARES TO TENDER.
The Company has been advised that none of its directors or executive
officers intends to tender any Shares pursuant to the Offer. See Section 10.
The Company may in the future purchase additional Shares on the open market,
in private transactions, through tender offers or otherwise, subject to the
approval of the Board of Directors. Any such purchase may be on the same terms
or on terms which are more or less favorable to stockholders than the terms of
the Offer. However, SEC rules under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prohibit the Company and its affiliates from
purchasing any Shares, other than pursuant to the Offer, until at least ten
business days after the Expiration Date. Any possible future purchases by the
Company will depend on many factors, including the market price of the Shares,
the results of the Offer, the Company's business and financial position and
general economic and market conditions.
Shares the Company acquires pursuant to the Offer will be retired and will
be available for the Company to issue without further stockholder action
(except as required by applicable law or the rules of The Nasdaq Stock Market)
for any proper corporate purpose.
3. PROCEDURES FOR TENDERING SHARES.
Proper Tender of Shares. For Shares to be validly tendered pursuant to the
Offer, either (a) the certificates for such Shares or confirmation of book-
entry transfer of such Shares into the Depositary's account at one of the
Book-Entry Transfer Facilities (as defined below), together with a properly
completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof) including any required signature guarantees (or, in the
case of book-entry transfer, an Agent's Message (as defined below)), and any
other documents required by the Letter of Transmittal, must be received prior
to 5:00 P.M., New York City time, on the Expiration Date by the Depositary at
one of its addresses set forth on the back cover of this Offer to Purchase or
(b) the tendering stockholder must comply with the guaranteed delivery
procedure set forth below.
In addition, Odd Lot Holders who tender all their Shares must complete the
item captioned "Odd Lots" on the Letter of Transmittal and, if applicable, on
the Notice of Guaranteed Delivery, in order to qualify for the preferential
treatment available to Odd Lot Holders as set forth in Section 1.
Signature Guarantees and Method of Delivery. No signature guarantee is
required (i) if the Letter of Transmittal is signed by the registered holder
of the Shares (which term, for purposes of this Section 3, shall include any
participant in The Depository Trust Company or Philadelphia Depository Trust
Company (the "Book-Entry Transfer Facilities") whose name appears on a
security position listing as the owner of the Shares) tendered therewith and
such holder has not completed either the box entitled "Special Payment
Instructions" or the box entitled "Special Delivery Instructions" on the
Letter of Transmittal; or (ii) if Shares are tendered for the account of a
member firm of a registered national securities exchange, a member of the
National Association of Securities Dealers, Inc. or a commercial bank or trust
company (not a savings bank or a savings and loan association) having an
office, branch or agency in the United States (each such entity being
hereinafter referred to as an "Eligible Institution"). See Instruction 1 of
the Letter of Transmittal. If a certificate for Shares is registered in the
name of a person other than the person executing a Letter of Transmittal, or
if payment is to be issued, or Shares not purchased or tendered are to be
issued, in the name of a person other than the registered holder, then the
certificate must be endorsed or accompanied by an appropriate stock power, in
either case, signed exactly as the name of the registered holder appears on
the certificate, with the signatures on the certificate or stock power
guaranteed by an Eligible Institution.
In all cases, payment for Shares tendered and accepted for payment pursuant
to the Offer will be made only after timely receipt by the Depositary of
certificates for such Shares or confirmation of book-entry transfer of such
Shares into the Depositary's account at one of the Book-Entry Transfer
Facilities, together with a properly completed and duly executed Letter of
Transmittal (or manually signed
8
<PAGE>
facsimile thereof), or, in the case of book-entry transfer of tendered Shares,
an Agent's Message, and any other documents required by the Letter of
Transmittal. The term "Agent's Message" means a message, transmitted by a
Book-Entry Transfer Facility to, and received by, the Depositary, which states
that such Book-Entry Transfer Facility has received an express acknowledgment
from the participant in such Book-Entry Transfer Facility tendering the
Shares, that such participant has received and agrees to be bound by the terms
of the Letter of Transmittal and that the Company may enforce such agreement
against such participant.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES FOR SHARES,
THE LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS, IS AT THE ELECTION
AND RISK OF THE TENDERING STOCKHOLDER. IF DELIVERY IS BY MAIL, THEN REGISTERED
MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED.
If any Shares validly tendered and not properly withdrawn are not purchased,
or if less than all Shares evidenced by a stockholder's certificates are
tendered, certificates for unpurchased Shares will be returned as promptly as
practicable after the expiration or termination of the Offer or, in the case
of Shares tendered by book-entry transfer at a Book-Entry Transfer Facility,
such Shares will be credited to the appropriate account maintained by the
tendering stockholder at the appropriate Book-Entry Transfer Facility, in each
case without expense to such stockholder.
Book-Entry Delivery. The Depositary will establish an account with respect
to the Shares for purposes of the Offer at each of the Book-Entry Transfer
Facilities promptly after the date of this Offer to Purchase, and any
financial institution that is a participant in a Book-Entry Transfer
Facility's system may make book-entry delivery of the Shares by causing such
facility to transfer Shares into the Depositary's account in accordance with
the Book-Entry Transfer Facility's procedures for transfer. Although delivery
of Shares may be effected through a book-entry transfer into the Depositary's
account at one of the Book-Entry Transfer Facilities, either (i) a properly
completed and duly executed Letter of Transmittal (or a manually signed
facsimile thereof) with any required signature guarantees, or an Agent's
Message, and any other documents required by the Letter of Transmittal, must,
in any case, be transmitted to and received by the Depositary at one of its
addresses set forth on the back cover of this Offer to Purchase prior to the
Expiration Date, or (ii) the guaranteed delivery procedure described below
must be followed. DELIVERY OF DOCUMENTS TO ONE OF THE BOOK-ENTRY TRANSFER
FACILITIES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
Backup Federal Income Tax Withholding. Under the federal income tax backup
withholding rules, unless an exemption applies under the applicable law and
regulations, 31% of the gross proceeds payable to a stockholder or other payee
pursuant to the Offer must be withheld and remitted to the United States
Treasury, unless the stockholder or other payee provides his or her taxpayer
identification number (employer identification number or social security
number) to the Depositary and certifies that such number is correct.
Therefore, each tendering stockholder should complete and sign the Substitute
IRS Form W-9 included as part of the Letter of Transmittal so as to provide
the information and certification necessary to avoid backup withholding,
unless such stockholder otherwise establishes to the satisfaction of the
Depositary that he or she is not subject to backup withholding. Certain
stockholders (including, among others, all corporations and certain foreign
stockholders (in addition to foreign corporations)) are not subject to these
backup withholding and reporting requirements. In order for a foreign
stockholder to qualify as an exempt recipient, that stockholder must submit an
IRS Form W-8 or a Substitute IRS Form W-8, signed under penalties of perjury,
attesting to that stockholder's exempt status. Such statements can be obtained
from the Depositary. See Instruction 12 of the Letter of Transmittal.
TO PREVENT BACKUP FEDERAL INCOME TAX WITHHOLDING EQUAL TO 31% OF THE GROSS
PAYMENTS MADE TO STOCKHOLDERS FOR SHARES PURCHASED PURSUANT TO THE OFFER, EACH
STOCKHOLDER WHO DOES NOT OTHERWISE ESTABLISH AN EXEMPTION FROM SUCH
WITHHOLDING MUST PROVIDE THE DEPOSITARY WITH THE STOCKHOLDER'S CORRECT
TAXPAYER IDENTIFICATION NUMBER AND PROVIDE CERTAIN OTHER INFORMATION BY
COMPLETING THE SUBSTITUTE IRS FORM W-9 INCLUDED IN THE LETTER OF TRANSMITTAL.
9
<PAGE>
For a discussion of certain federal income tax consequences to tendering
stockholders, see Section 13.
Withholding for Foreign Stockholders. Even if a foreign stockholder has
provided the required certification to avoid backup withholding, the
Depositary will withhold federal income taxes equal to 30% of the gross
payments payable to a foreign stockholder or his or her agent unless the
Depositary determines that a reduced rate of withholding is available pursuant
to a tax treaty or that an exemption from withholding is applicable because
such gross proceeds are effectively connected with the conduct of a trade or
business within the United States. For this purpose, a foreign stockholder is
any stockholder that is not (i) a citizen or resident of the United States,
(ii) a corporation, partnership, or other entity created or organized in or
under the laws of the United States, any State or any political subdivision
thereof, (iii) an estate the income of which is subject to United States
federal income taxation regardless of the source of such income, or (iv) any
trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
fiduciaries have the authority to control all substantial decisions relating
to the trust. In order to obtain a reduced rate of withholding pursuant to a
tax treaty, a foreign stockholder must deliver to the Depositary before the
payment a properly completed and executed IRS Form 1001. In order to obtain an
exemption from withholding on the grounds that the gross proceeds paid
pursuant to the Offer are effectively connected with the conduct of a trade or
business within the United States, a foreign stockholder must deliver to the
Depositary a properly completed and executed IRS Form 4224. The Depositary
will determine a stockholder's status as a foreign stockholder and eligibility
for a reduced rate of, or exemption from, withholding by reference to any
outstanding certificates or statements concerning eligibility for a reduced
rate of, or exemption from, withholding (e.g., IRS Form 1001 or IRS Form 4224)
unless facts and circumstances indicate that such reliance is not warranted. A
foreign stockholder may be eligible to obtain a refund of all or a portion of
any tax withheld if such stockholder meets the "complete termination,"
"substantially disproportionate" or "not essentially equivalent to a dividend"
test described in Section 13 or is otherwise able to establish that no tax or
a reduced amount of tax is due. Backup withholding generally will not apply to
amounts subject to the 30% or a treaty-reduced rate of withholding. Foreign
stockholders are urged to consult their own tax advisors regarding the
application of federal income tax withholding, including eligibility for a
withholding tax reduction or exemption and the refund procedure. See
Instruction 13 of the Letter of Transmittal.
Guaranteed Delivery. If a stockholder desires to tender Shares pursuant to
the Offer and such stockholder's Share certificates cannot be delivered to the
Depositary prior to the Expiration Date (or the procedures for book-entry
transfer cannot be completed on a timely basis) or if time will not permit all
required documents to reach the Depositary prior to the Expiration Date, such
Shares may nevertheless be tendered, provided that all of the following
conditions are satisfied:
(a) such tender is made by or through an Eligible Institution;
(b) the Depositary receives by hand, mail, telegram or facsimile
transmission, prior to the Expiration Date, a properly completed and duly
executed Notice of Guaranteed Delivery substantially in the form the
Company has provided with this Offer to Purchase, including (where
required) a signature guarantee by an Eligible Institution; and
(c) the certificates for all tendered Shares, in proper form for
transfer, or confirmation of book-entry transfer of such Shares into the
Depositary's account at one of the Book-Entry Transfer Facilities as
described above, together with a properly completed and duly executed
Letter of Transmittal (or a manually signed facsimile thereof) with any
required signature guarantees (or, in the case of book-entry transfer, an
Agent's Message) and any other documents required by the Letter of
Transmittal, are received by the Depositary within three Nasdaq trading
days after the date of receipt by the Depositary of such Notice of
Guaranteed Delivery.
Determination of Validity; Rejection of Shares; Waiver of Defects; No
Obligation to Give Notice of Defects. All questions as to the number of Shares
to be accepted and the validity, form, eligibility
10
<PAGE>
(including time of receipt) and acceptance of any tender of Shares will be
determined by the Company, in its sole discretion, and its determination shall
be final and binding on all parties. The Company reserves the absolute right
to reject any or all tenders of any Shares that it determines are not in
appropriate form or the acceptance for payment of or payments for which may be
unlawful. The Company also reserves the absolute right to waive any of the
conditions of the Offer or any defect or irregularity in any tender with
respect to any particular Shares or any particular stockholder. No tender of
Shares will be deemed to have been properly made until all defects or
irregularities have been cured by the tendering stockholder or waived by the
Company. None of the Company, the Dealer Manager, the Depositary, the
Information Agent or any other person shall be obligated to give notice of any
defects or irregularities in tenders, nor shall any of them incur any
liability for failure to give any such notice.
Tendering Stockholder's Representation and Warranty; Company's Acceptance
Constitutes an Agreement. A tender of Shares pursuant to any of the procedures
described above will constitute the tendering stockholder's acceptance of the
terms and conditions of the Offer, as well as the tendering stockholder's
representation and warranty to the Company that (a) such stockholder has a net
long position in the Shares being tendered within the meaning of Rule 14e-4
promulgated by the Commission under the Exchange Act and (b) the tender of
such Shares complies with Rule 14e-4. It is a violation of Rule 14e-4 for a
person, directly or indirectly, to tender Shares for such person's own account
unless, at the time of tender and at the end of the proration period or period
during which Shares are accepted by lot (including any extensions thereof),
the person so tendering (i) has a net long position equal to or greater than
the amount of (x) Shares tendered or (y) other securities convertible into or
exchangeable or exercisable for the Shares tendered and will acquire such
Shares for tender by conversion, exchange or exercise and (ii) will deliver or
cause to be delivered such Shares in accordance with the terms of the Offer.
Rule 14e-4 provides a similar restriction applicable to the tender or
guarantee of a tender on behalf of another person. The Company's acceptance
for payment of Shares tendered pursuant to the Offer will constitute a binding
agreement between the tendering stockholder and the Company upon the terms and
subject to the conditions of the Offer.
4. WITHDRAWAL RIGHTS.
Except as otherwise provided in this Section 4, tenders of Shares pursuant
to the Offer are irrevocable. Shares tendered pursuant to the Offer may be
withdrawn at any time prior to the Expiration Date and, unless theretofore
accepted for payment by the Company pursuant to the Offer, may also be
withdrawn at any time after 12:00 Midnight, New York City time, on Wednesday,
October 15, 1997.
For a withdrawal to be effective, a notice of withdrawal must be in written,
telegraphic or facsimile transmission form and must be received in a timely
manner by the Depositary at one of its addresses set forth on the back cover
of this Offer to Purchase. Any such notice of withdrawal must specify the name
of the tendering stockholder, the name of the registered holder, if different
from that of the person who tendered such Shares, the number of Shares
tendered and the number of Shares to be withdrawn. If the certificates for
Shares to be withdrawn have been delivered or otherwise identified to the
Depositary, then, prior to the release of such certificates, the tendering
stockholder must also submit the serial numbers shown on the particular
certificates for Shares to be withdrawn and the signature on the notice of
withdrawal must be guaranteed by an Eligible Institution (except in the case
of Shares tendered by an Eligible Institution). If Shares have been tendered
pursuant to the procedure for book-entry tender set forth in Section 3, the
notice of withdrawal also must specify the name and the number of the account
at the applicable Book-Entry Transfer Facility to be credited with the
withdrawn Shares and otherwise comply with the procedures of such facility.
None of the Company, the Dealer Manager, the Depositary, the Information Agent
or any other person shall be obligated to give notice of any defects or
irregularities in any notice of withdrawal nor shall any of them incur
liability for failure to give any such notice. All questions as to the form
and validity (including time of receipt) of notices of withdrawal will be
determined by the Company, in its sole discretion, which determination shall
be final and binding.
11
<PAGE>
Withdrawals may not be rescinded and any Shares withdrawn will thereafter be
deemed not validly tendered for purposes of the Offer unless such withdrawn
Shares are validly retendered prior to the Expiration Date by again following
one of the procedures described in Section 3.
If the Company extends the Offer, is delayed in its purchase of Shares or is
unable to purchase Shares pursuant to the Offer for any reason, then, without
prejudice to the Company's rights under the Offer, the Depositary may, subject
to applicable law, retain tendered Shares on behalf of the Company, and such
Shares may not be withdrawn except to the extent tendering stockholders are
entitled to withdrawal rights as described in this Section 4.
5. PURCHASE OF SHARES AND PAYMENT OF PURCHASE PRICE.
Upon the terms and subject to the conditions of the Offer, as promptly as
practicable following the Expiration Date, the Company will accept for payment
and pay for (and thereby purchase) Shares validly tendered and not properly
withdrawn prior to the Expiration Date. For purposes of the Offer, the Company
will be deemed to have accepted for payment (and therefore purchased) Shares
that are validly tendered and not properly withdrawn (subject to the proration
provisions of the Offer) only when, as and if it gives oral or written notice
to the Depositary of its acceptance of such Shares for payment pursuant to the
Offer.
The Company will pay for Shares purchased pursuant to the Offer by
depositing the aggregate Purchase Price therefor with the Depositary, which
will act as agent for tendering stockholders for the purpose of receiving
payment from the Company and transmitting payment to the tendering
stockholders.
In the event of proration, the Company will determine the proration factor
and pay for those tendered Shares accepted for payment as soon as practicable
after the Expiration Date; however, the Company does not expect to be able to
announce the final results of any proration and commence payment for Shares
purchased until approximately five Nasdaq trading days after the Expiration
Date. Certificates for all Shares tendered and not purchased, including Shares
not purchased due to proration, will be returned (or, in the case of Shares
tendered by book-entry transfer, will be credited to the account maintained
with the Book-Entry Transfer Facility by the participant therein who so
delivered such Shares) to the tendering stockholder as promptly as practicable
after the Expiration Date without expense to the tendering stockholder. Under
no circumstances will interest on the Purchase Price be paid by the Company by
reason of any delay in making payment. In addition, if certain events occur,
the Company may not be obligated to purchase Shares pursuant to the Offer. See
Section 6.
The Company will pay all stock transfer taxes, if any, payable on the
transfer to it of Shares purchased pursuant to the Offer. If, however, payment
of the Purchase Price is to be made to, or (in the circumstances permitted by
the Offer) if unpurchased Shares are to be registered in the name of, any
person other than the registered holder, or if tendered certificates are
registered in the name of any person other than the person signing the Letter
of Transmittal, the amount of all stock transfer taxes, if any (whether
imposed on the registered holder or such other person), payable on account of
the transfer to such person will be deducted from the Purchase Price unless
satisfactory evidence of the payment of the stock transfer taxes, or exemption
therefrom, is submitted. See Instruction 6 of the Letter of Transmittal.
ANY TENDERING STOCKHOLDER OR OTHER PAYEE WHO FAILS TO COMPLETE FULLY, SIGN
AND RETURN TO THE DEPOSITARY THE SUBSTITUTE IRS FORM W-9 INCLUDED IN THE
LETTER OF TRANSMITTAL MAY BE SUBJECT TO REQUIRED BACKUP FEDERAL INCOME TAX
WITHHOLDING OF 31% OF THE GROSS PROCEEDS PAID TO SUCH STOCKHOLDER OR OTHER
PAYEE PURSUANT TO THE OFFER. SEE SECTION 3. ALSO SEE SECTION 3 REGARDING
FEDERAL INCOME TAX CONSEQUENCES FOR FOREIGN STOCKHOLDERS.
12
<PAGE>
6. CERTAIN CONDITIONS OF THE OFFER.
Notwithstanding any other provision of the Offer, the Company shall not be
required to accept for payment, purchase or pay for any Shares tendered, and
may terminate or amend the Offer or may postpone the acceptance for payment
of, or the purchase of and the payment for Shares tendered, subject to the
rules under the Exchange Act, if at any time on or after August 18, 1997 and
prior to the time of payment for any such Shares (whether any Shares have
theretofore been accepted for payment, purchased or paid for pursuant to the
Offer) any of the following events shall have occurred (or shall have been
determined by the Company to have occurred) that, in the Company's judgment in
any such case and regardless of the circumstances giving rise thereto
(including any action or omission to act by the Company), makes it inadvisable
to proceed with the Offer or with such acceptance for payment or payment:
(a) there shall have been threatened, instituted or pending any action or
proceeding by any government or governmental, regulatory or administrative
agency, authority or tribunal or any other person, domestic or foreign,
before any court, authority, agency or tribunal that directly or indirectly
(i) challenges the making of the Offer, the acquisition of some or all of
the Shares pursuant to the Offer or otherwise relates in any manner to the
Offer, or (ii) in the Company's sole judgment, could materially and
adversely affect the business, condition (financial or other), income,
operations or prospects of the Company and its subsidiaries, taken as a
whole, or the Liberty Media Group as a whole, or otherwise materially
impair in any way the contemplated future conduct of the business of the
Company or any of its subsidiaries or materially impair the contemplated
benefits of the Offer to the Company;
(b) there shall have been any action threatened, pending or taken, or
approval withheld, or any statute, rule, regulation, judgment, order or
injunction threatened, proposed, sought, promulgated, enacted, entered,
amended, enforced or deemed to be applicable to the Offer or the Company or
any of its subsidiaries, by any court or any authority, agency or tribunal
that, in the Company's sole judgment, would or might directly or indirectly
(i) make the acceptance for payment of, or payment for, some or all of the
Shares illegal or otherwise restrict or prohibit consummation of the Offer;
(ii) delay or restrict the ability of the Company, or render the Company
unable, to accept for payment or pay for some or all of the Shares; (iii)
materially impair the contemplated benefits of the Offer to the Company; or
(iv) materially and adversely affect the business, condition (financial or
other), income, operations or prospects of the Company and its
subsidiaries, taken as a whole, or the Liberty Media Group as a whole, or
otherwise materially impair in any way the contemplated future conduct of
the business of the Company or any of its subsidiaries;
(c) there shall have occurred (i) any general suspension of trading in,
or limitation on prices for, securities on any national securities exchange
or in the over-the-counter market; (ii) the declaration of a banking
moratorium or any suspension of payments in respect of banks in the United
States; (iii) the commencement of a war, armed hostilities or other
international or national calamity directly or indirectly involving the
United States; (iv) any limitation (whether or not mandatory) by any
governmental regulatory or administrative agency or authority on, or any
event that, in the Company's sole judgment, might affect, the extension of
credit by banks or other lending institutions in the United States; (v) any
significant decrease in the market price of the Shares or any change in the
general political, market, economic or financial conditions in the United
States or abroad that could, in the sole judgment of the Company, have a
material adverse effect on the business, operations or prospects of the
Company or the Liberty Media Group or the trading in the Shares; (vi) in
the case of any of the foregoing existing at the time of the commencement
of the Offer, a material acceleration or worsening thereof; or (vii) any
decline in either the Dow Jones Industrial Average or the Standard and
Poor's Index of 500 Industrial Companies by an amount in excess of 10%
measured from the close of business on August 18, 1997;
13
<PAGE>
(d) a tender or exchange offer with respect to some or all of the Shares
(other than the Offer), or a merger or acquisition proposal for the
Company, shall have been proposed, announced or made by another person or
shall have been publicly disclosed, or the Company shall have learned after
the date of this Offer that (i) any person or "group" (within the meaning
of Section 13(d)(3) of the Exchange Act) shall have acquired or proposed to
acquire beneficial ownership of more than 5% of the outstanding Shares, or
any new group shall have been formed that beneficially owns more than 5% of
the outstanding Shares; or
(e) any change or changes shall have occurred in the business, financial
condition, assets, income, operations, prospects or stock ownership of the
Company or its subsidiaries that, in the Company's sole judgment, is or may
be material to the Company or its subsidiaries.
The foregoing conditions are for the sole benefit of the Company and may be
asserted by the Company regardless of the circumstances (including any action
or inaction by the Company) giving rise to any such condition, and may be
waived by the Company, in whole or in part, at any time and from time to time
in its sole discretion. The Company's failure at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right and each
such right shall be deemed an ongoing right which may be asserted at any time
and from time to time. Any determination by the Company concerning the events
described above will be final and binding.
7. PRICE RANGE OF SHARES; DIVIDENDS.
The Series A Liberty Media Group Common Stock and Series B Liberty Media
Group Common Stock are listed and traded on the National Market tier of The
Nasdaq Stock Market under the symbols "LBTYA" and "LBTYB", respectively.
Shares of Liberty Media Group Common Stock were first issued in a distribution
to holders of TCI Group Common Stock on August 10, 1995 (the "Liberty Media
Group Distribution"). On January 13, 1997, the Company distributed one share
of Series A Liberty Media Group Common Stock for every two shares of Series A
Liberty Media Group Common Stock, and one share of Series A Liberty Media
Group Common Stock for every two shares of Series B Liberty Media Group Common
Stock (the "Liberty Media Group Stock Dividend") then owned by holders of
Liberty Media Group Common Stock. The table below sets forth the range of high
and low sale prices in United States dollars of shares of Liberty Media Group
Common Stock for the periods indicated as furnished by Nasdaq. Sale prices
have been adjusted to give effect to the Liberty Media Group Stock Dividend.
The prices have been rounded up to the nearest eighth, and do not include
retail markups, markdowns, or commissions.
<TABLE>
<CAPTION>
SERIES A SERIES B
------------- -------------
HIGH LOW HIGH LOW
------ ------ ------ ------
<S> <C> <C> <C> <C>
1995:
Third quarter (from the Liberty Media Group
Distribution through September 30, 1995)......... 18 3/4 15 3/4 19 3/4 16 1/4
Fourth Quarter.................................... 18 3/4 15 1/4 19 3/8 16
1996:
First quarter..................................... 19 1/2 17 1/8 20 3/4 17 3/8
Second quarter.................................... 20 3/4 17 1/4 21 18
Third quarter..................................... 19 5/8 13 3/4 19 7/8 15 3/8
Fourth quarter.................................... 19 7/8 14 3/4 19 1/2 15 3/4
1997:
First quarter..................................... 23 3/4 17 7/8 23 1/4 18 1/2
Second quarter.................................... 27 18 5/8 26 3/4 18 1/2
Third quarter (through August 18, 1997)........... 26 3/4 23 3/4 27 24 1/4
</TABLE>
On August 18, 1997, the last trading day on The Nasdaq Stock Market prior to
the announcement of the terms of the Offer, the last sale prices per share for
the Series A Liberty Media Group Common
14
<PAGE>
Stock and Series B Liberty Media Group Common Stock were $23 13/16 and $25
1/4, respectively. STOCKHOLDERS ARE URGED TO OBTAIN CURRENT MARKET QUOTATIONS
FOR THE SHARES. The Company has never paid cash dividends on its Common Stock
and has no current intention of doing so.
8. SOURCE AND AMOUNT OF FUNDS.
The Company estimates that the total amount of funds required to purchase
10,000,000 Shares pursuant to the Offer (excluding amounts required to pay
fees and expenses related to the Offer) will be approximately $270,000,000. It
is anticipated that the Company will fund the purchase of Shares pursuant to
the Offer and the payment of related fees and expenses with approximately
$150,000,000 of cash on hand and the remainder with proceeds of borrowings.
Such borrowings will be provided under an existing revolving credit facility
provided to a subsidiary of the Company (the "Borrowing Sub") by a syndicate
of financial institutions, with The Bank of New York acting as administrative
agent (the "Subsidiary Credit Facility"). A copy of the Subsidiary Credit
Facility has been filed as Exhibit (b) to the Issuer Tender Offer Statement on
Schedule 13E-4 (the "Schedule 13E-4") of which this Offer to Purchase forms a
part, and the discussion of the Subsidiary Credit Facility contained herein is
qualified in its entirety by reference to the provisions of the Subsidiary
Credit Facility. A copy of the Schedule 13E-4 may be obtained from the SEC in
the manner provided in Section 9 under the heading "Additional Information."
The Subsidiary Credit Facility expires on August 15, 1999 and provides for a
revolving line of credit of up to $500 million. Borrowings are secured by a
pledge of 21,928,253 shares of Series LMCN-V Common Stock of Time Warner Inc.
owned by the Borrowing Sub. As of August 18, 1997, there were no outstanding
borrowings under the Subsidiary Credit Facility.
Borrowings under the Subsidiary Credit Facility will bear interest at a
floating rate based on either (at the Borrowing Sub's option) (i) the greater
of the prime rate or the Federal Funds rate plus one-half of one percent per
annum (the "Base Rate") or (ii) at the London Interbank Offered Rate (the
"LIBOR Rate"), in each case plus the applicable margin as described below. The
applicable margin (a) ranges from 0% to 0.125% for Base Rate loans, and (b)
ranges from 0.5% to 1.125% for LIBOR Rate loans, depending, in each case, on
the ratio of the outstanding amount of loans to the value of the pledged
collateral.
The Subsidiary Credit Facility includes representations and warranties,
covenants, events of default and other terms customary to financings of that
type, applicable in each case to the Borrower Sub and its immediate parent
corporation.
The Company expects to repay the borrowings used to purchase the Shares
pursuant to the Offer through, depending on business and market conditions,
public or private offerings of securities, additional bank borrowings,
internally generated funds or other financings, or such combination of the
foregoing as the Company may deem appropriate. See Section 9, "Summary
Unaudited Pro Forma Financial Data," for further information concerning the
assumed cost of funds for the Offer.
9. CERTAIN INFORMATION CONCERNING THE COMPANY.
TCI, through its subsidiaries and affiliates, is principally engaged in the
construction, acquisition, ownership and operation of cable television systems
and the provision of satellite-delivered video entertainment, information and
home shopping programming services to various video distribution media,
principally cable television systems. The Company also has investments in
cable and telecommunications operations and television programming in certain
international markets, as well as investments in companies and joint ventures
involved in developing and providing programming for new television and
telecommunications technologies. TCI is currently organized based upon four
lines
15
<PAGE>
of business: Domestic Cable and Communications; Programming; International
Cable and Programming; and Technology/Venture Capital. Within the Domestic
Cable and Communications line of business, TCI operates three strategic
business units: Cable, Telephony and Internet. If the Charter Amendments
become effective, the Company's principal international assets and
substantially all of its non-cable and non-programming assets, including its
internet and telephony businesses, will be attributed to the TCI Ventures
Group. See "INTRODUCTION." The Liberty Media Group will continue to be
comprised of the Company's programming and related interests and the TCI Group
will be comprised of the Company's domestic distribution and communications
business (other than the investments attributed to the TCI Ventures Group),
and any other businesses and assets of the Company not attributed to either
the Liberty Media Group or the TCI Ventures Group.
The Company was incorporated in Delaware in 1994. The Company and its
predecessors have been engaged in the cable television business since the
early 1950s.
16
<PAGE>
Certain Financial Information
Summary Historical Financial Information
TELE-COMMUNICATIONS, INC. AND SUBSIDIARIES
The table below sets forth summary historical consolidated financial
information of the Company and its subsidiaries. The historical financial
information as of and for the years ended December 31, 1996 and 1995 has been
derived from, and should be read in conjunction with, the audited consolidated
financial statements of the Company as reported in the Company's Annual Report
on Form 10-K for the year ended December 31, 1996, which financial statements
are incorporated herein by reference. The historical financial information as
of and for the six months ended June 30, 1997 and 1996 has been derived from,
and should be read in conjunction with, the unaudited consolidated financial
statements of the Company as reported in each of the Company's quarterly
reports on Form 10-Q for the periods ended June 30, 1997 (incorporated herein
by reference) and June 30, 1996. The summary historical financial information
is qualified in its entirety by reference to the aforementioned financial
statements and the related notes thereto from which it has been derived.
Copies of reports may be inspected or obtained from the SEC in the manner
specified in "Additional Information" below.
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
------------------ --------------
1997 1996 1996 1995
-------- -------- ------ ------
AMOUNTS IN MILLIONS,
EXCEPT PER SHARE DATA
<S> <C> <C> <C> <C>
Balance Sheet Data:
Cash and cash equivalents................. $ 406 334 394 118
Total assets.............................. $ 30,960 27,316 30,244 25,577
Total debt................................ $ 14,743 13,334 14,926 13,211
Stockholders' equity...................... $ 4,372 4,520 4,253 4,550
Shares outstanding (net of shares held in
treasury and held by subsidiaries):
TCI Group Common Stock.................. 683 669 664 656
Liberty Media Group Common Stock(1)..... 249 251 249 246
Book value per common share:
TCI Group Common Stock.................. $ 2.84 4.28 2.81 4.47
Liberty Media Group Common Stock........ $ 9.76 6.61 9.63 6.56
Ratio of earnings to fixed charges(2)..... -- -- 1.44x --
<CAPTION>
SIX MONTHS ENDED YEAR ENDED
JUNE 30, DECEMBER 31,
------------------ --------------
1997 1996 1996 1995
-------- -------- ------ ------
AMOUNTS IN MILLIONS,
EXCEPT PER SHARE DATA
<S> <C> <C> <C> <C>
Statement of Operations Data:
Revenue................................... $ 3,714 3,809 8,022 6,506
Net earnings (loss)....................... $ (212) (308) 278 (171)
Net earnings (loss) attributable to common
shareholders:
TCI Class A and Class B common stock.... $ -- -- -- (71)
TCI Group Common Stock.................. $ (255) (345) (813) (107)
Liberty Media Group Common Stock........ $ 22 19 1,056 (27)
-------- ------- ------ ------
$ (233) (326) 243 (205)
======== ======= ====== ======
Primary earnings (loss) per common and
common equivalent share:
TCI Class A and Class B common stock.... $ -- -- -- (.11)
TCI Group Common Stock.................. $ (.37) (.52) (1.22) (.16)
Liberty Media Group Common Stock........ $ .09 .08 3.97 (.11)
Fully diluted earnings (loss) per common
and common equivalent share:
TCI Class A and Class B common stock.... $ -- -- -- (.11)
TCI Group Common Stock.................. $ (.37) (.52) (1.22) (.16)
Liberty Media Group Common Stock........ $ .09 .08 3.88 (.11)
</TABLE>
(footnotes on following page)
17
<PAGE>
- --------
(1) Effective January 13, 1997, the Company issued a stock dividend to holders
of Liberty Media Group Common Stock consisting of one share of Series A
Liberty Media Group Common Stock for every two shares of Series A Liberty
Media Group Common Stock owned and one share of Series A Liberty Media
Group Common Stock for every two shares of Series B Liberty Media Group
Common Stock owned. All Liberty Media Group share amounts have been
adjusted to give effect to the Liberty Media Group Stock Dividend.
(2) The ratio of earnings to fixed charges of the Company was 1.44 for the
year ended December 31, 1996. The ratio of earnings to fixed charges of
the Company was less than 1.00 for the year ended December 31, 1995, and
for the six months ended June 30, 1997 and 1996; thus, earnings available
for fixed charges were inadequate to cover fixed charges for such periods.
The amounts of the coverage deficiencies were $246 million for the year
ended December 31, 1995, and $161 million and $380 million for the six
months ended June 30, 1997 and 1996, respectively. For the ratio
calculations, earnings available for fixed charges consists of earnings
(losses) before income taxes plus fixed charges (minus capitalized
interest), distributions from and losses of less than 50%-owned affiliates
with debt not guaranteed by the Company (net of earnings not distributed
of less than 50%-owned affiliates), minority interests in earnings
(losses) of consolidated subsidiaries, the elimination of preferred stock
dividend requirements of consolidated subsidiaries to 50%-owned
affiliates, and preferred stock dividend requirements of 50%-owned
affiliates, other than dividends payable to the Company. Fixed charges
consist of (i) interest (including capitalized interest) on debt,
including interest of less than 50%-owned affiliates with debt guaranteed
by the Company, (ii) the elimination of interest of consolidated
subsidiaries to 50%-owned affiliates, (iii) the Company's proportionate
share of interest of 50%-owned affiliates, (iv) that portion of rental
expense the Company believes to be representative of interest (one-third
of rental expense), (v) amortization of debt expense, (vi) that portion of
minority interests in earnings (losses) of consolidated subsidiaries that
represent the amount of pretax earnings that would be required to cover
preferred stock dividend requirements of consolidated subsidiaries, (vii)
that portion of minority interests in earnings (losses) of consolidated
subsidiaries that represents dividend requirements on Company-obligated
mandatorily redeemable preferred securities of subsidiary trusts holding
solely subordinated debt securities of a subsidiary, (viii) the amount of
pretax earnings that would be required to cover preferred stock dividend
requirements of the Company, (ix) the elimination of preferred stock
dividend requirements of consolidated subsidiaries to 50%-owned
affiliates, and (x) the preferred stock dividend requirements of 50%-owned
affiliates, other than dividends payable to the Company. The Company has
guaranteed the debt of certain less than 50%-owned affiliates and certain
other entities in which it has an interest. Fixed charges of $8 million
relating to such guarantees for each of the years ended December 31, 1996
and 1995 and fixed charges of $10 million and $6 million relating to such
guarantees for the six months ended June 30, 1997 and 1996, respectively,
have not been included in fixed charges.
18
<PAGE>
"LIBERTY MEDIA GROUP"
The table below sets forth summary historical combined financial information
of the Liberty Media Group. The historical financial information as of and for
the years ended December 31, 1996 and 1995 has been derived from, and should
be read in conjunction with, the audited combined financial statements of the
Liberty Media Group as reported in the Company's Annual Report on Form 10-K
for the year ended December 31, 1996, which financial statements are
incorporated herein by reference. The historical financial information as of
and for the six months ended June 30, 1997 and 1996 have been derived from,
and should be read in conjunction with, the unaudited combined financial
statements of the Liberty Media Group as reported in each of the Company's
quarterly reports on Form 10-Q for the periods ended June 30, 1997
(incorporated herein by reference) and June 30, 1996. The summary historical
financial information is qualified in its entirety by reference to the
aforementioned financial statements and the related notes thereto from which
it has been derived. Copies of reports may be inspected or obtained from the
Commission in the manner specified in "Additional Information" below.
<TABLE>
<CAPTION>
JUNE 30, DECEMBER 31,
-------------------- -------------------
1997 1996 1996 1995
---------- --------- --------- ---------
AMOUNTS IN THOUSANDS,
EXCEPT PER SHARE DATA
<S> <C> <C> <C> <C>
Combined Balance Sheet Data:
Cash and cash equivalents.......... $ 359,641 324,437 317,359 41,225
Total assets....................... $3,418,591 2,330,568 3,058,952 2,517,636
Total debt......................... $ -- 122,359 1,620 250,990
Combined equity.................... $2,434,879 1,657,700 2,397,170 1,613,429
Book value per common share........ $ 9.76 6.90 9.63 6.56
<CAPTION>
SIX MONTHS ENDED YEAR ENDED
JUNE 30, DECEMBER 31,
-------------------- -------------------
1997 1996 1996 1995
---------- --------- --------- ---------
AMOUNTS IN THOUSANDS,
EXCEPT PER SHARE DATA
<S> <C> <C> <C> <C>
Combined Statement of Operations
Data:
Revenue............................ $ 119,031 742,349 1,339,359 1,440,846
Net earnings (loss)................ $ 22,153 18,830 1,056,396 (56,332)
Earnings (loss) attributable to
common shareholders............... $ 22,153 18,830 1,056,396 (56,332)
Primary earnings (loss) per common
and common equivalent share....... $ .09 .08 3.97 (.11)
Fully diluted earnings (loss) per
common and common equivalent
share............................. $ .09 .08 3.88 (.11)
</TABLE>
19
<PAGE>
Summary Unaudited Pro Forma Financial Data
TELE-COMMUNICATIONS, INC. AND SUBSIDIARIES
The following summary unaudited condensed pro forma financial information
gives effect to the purchase of 10 million Shares pursuant to the Offer as if
it had occurred on January 1, 1996 with respect to statement of operations
data and on December 31, 1996 and June 30, 1997 with respect to balance sheet
data. The Summary Unaudited Consolidated Pro Forma Financial Data should be
read in conjunction with the summary historical financial information of the
Company and does not purport to be indicative of the results that would
actually have been obtained had the purchase of the Shares pursuant to the
Offer been completed at the dates indicated or that may be obtained in the
future.
<TABLE>
<CAPTION>
JUNE 30, 1997 DECEMBER 31, 1996
------------------- -------------------
HISTORICAL PROFORMA HISTORICAL PROFORMA
---------- -------- ---------- --------
AMOUNTS IN MILLIONS,
EXCEPT PER SHARE DATA
<S> <C> <C> <C> <C>
Balance Sheet Data:
Cash and cash equivalents(1)......... $ 406 256 394 244
Total assets......................... $30,960 30,810 30,244 30,094
Total debt(2)........................ $14,743 14,863 14,926 15,046
Stockholders' equity................. $ 4,372 4,102 4,253 3,983
Shares outstanding (net of shares
held in treasury and held by
subsidiaries):
TCI Group Common Stock............. 683 683 664 664
Liberty Media Group Common
Stock(3).......................... 249 239 249 239
Book value per common share:
TCI Group Common Stock............. $ 2.84 2.84 2.81 2.81
Liberty Media Group Common Stock... $ 9.76 9.04 9.63 8.90
Ratio of earnings to fixed
charges(4).......................... -- -- 1.44x 1.43x
<CAPTION>
SIX MONTHS ENDED YEAR ENDED
JUNE 30, 1997 DECEMBER 31, 1996
------------------- -------------------
HISTORICAL PROFORMA HISTORICAL PROFORMA
---------- -------- ---------- --------
AMOUNTS IN MILLIONS,
EXCEPT PER SHARE DATA
<S> <C> <C> <C> <C>
Statement of Operations Data:
Revenue.............................. $ 3,714 3,714 8,022 8,022
Net earnings (loss)(5)............... $ (212) (217) 278 267
Earnings (loss) attributable to
common shareholders:
TCI Group Common Stock............. $ (255) (255) (813) (813)
Liberty Media Group Common Stock... $ 22 17 1,056 1,046
------- ------ ------ ------
$ (233) (238) 243 233
======= ====== ====== ======
Primary earnings (loss) per common
and common equivalent share:
TCI Group Common Stock............. $ (.37) (.37) (1.22) (1.22)
Liberty Media Group Common
Stock(6).......................... $ .09 .07 3.97 4.08
Fully diluted earnings (loss) per
common and common equivalent share:
TCI Group Common Stock............. $ (.37) (.37) (1.22) (1.22)
Liberty Media Group Common
Stock(6).......................... $ .09 .07 3.88 3.97
</TABLE>
- --------
(1) Assumes the use of $150 million cash on hand as a portion of the aggregate
Purchase Price.
(2) Assumes borrowings under the Subsidiary Credit Facility of $120 million to
be used as the remainder of the aggregate Purchase Price.
(footnotes continued on following page)
20
<PAGE>
(3) Assumes the repurchase of 10 million shares of Liberty Media Group Common
Stock in the Offer.
(4) The ratio of earnings to fixed charges of the Company was 1.44 and 1.43
for the year ended December 31, 1996 on a historical and pro forma basis,
respectively. The ratio of earnings to fixed charges of the Company was
less than 1.00 for the six months ended June 30, 1997 on a historical and
a pro forma basis; thus, earnings available for fixed charges were
inadequate to cover fixed charges for such periods. The amounts of the
coverage deficiencies were $161 million and $169 million for the six
months ended June 30, 1997, on a historical and pro forma basis,
respectively. For the ratio calculations, earnings available for fixed
charges consists of earnings (losses) before income taxes plus fixed
charges (minus capitalized interest), distributions from and losses of
less than 50%-owned affiliates with debt not guaranteed by the Company
(net of earnings not distributed of less than 50%-owned affiliates),
minority interests in earnings (losses) of consolidated subsidiaries, the
elimination of preferred stock dividend requirements of consolidated
subsidiaries to 50%-owned affiliates, and preferred stock dividend
requirements of 50%-owned affiliates, other than dividends payable to the
Company. Fixed charges consist of (i) interest (including capitalized
interest) on debt, including interest of less than 50%-owned affiliates
with debt guaranteed by the Company, (ii) the elimination of interest of
consolidated subsidiaries to 50%-owned affiliates, (iii) the Company's
proportionate share of interest of 50%-owned affiliates, (iv) that portion
of rental expense the Company believes to be representative of interest
(one-third of rental expense), (v) amortization of debt expense, (vi) that
portion of minority interests in earnings (losses) of consolidated
subsidiaries that represent the amount of pretax earnings that would be
required to cover preferred stock dividend requirements of consolidated
subsidiaries, (vii) that portion of minority interests in earnings
(losses) of consolidated subsidiaries that represents dividend
requirements on Company-obligated mandatorily redeemable preferred
securities of subsidiary trusts holding solely subordinated debt
securities of a subsidiary, (viii) the amount of pretax earnings that
would be required to cover preferred stock dividend requirements of the
Company, (ix) the elimination of preferred stock dividend requirements of
consolidated subsidiaries to 50%-owned affiliates, and (x) the preferred
stock dividend requirements of 50%-owned affiliates, other than dividends
payable to the Company. The Company has guaranteed the debt of certain
less than 50%-owned affiliates and certain other entities in which it has
an interest. Fixed charges of $8 million relating to such guarantees for
the year ended December 31, 1996 on a historical and a pro forma basis and
fixed charges of $10 million relating to such guarantees for the six
months ended June 30, 1997 on a historical and a pro forma basis have not
been included in fixed charges.
(5) Assumes the elimination of interest income earned on the cash balances
utilized as a portion of the aggregate Purchase Price. Additionally
assumes interest expense incurred on assumed borrowings under the
Subsidiary Credit Facility. Solely for the purpose of this condensed pro
forma financial information, interest expense is calculated at the assumed
rate of 6.9% per annum. A change in the interest rate of 1/4% would impact
interest expense by $300,000 per annum on assumed borrowings of $120
million. Income tax benefit on the elimination of the interest income and
the interest expense is assumed at the statutory rate.
(6) Pro forma earnings per common and common equivalent share was calculated
utilizing the weighted average shares as reported in the historical
financial statements, adjusted for the assumed repurchase of 10 million
shares of Liberty Media Group Common Stock in the Offer.
21
<PAGE>
"LIBERTY MEDIA GROUP"
The following summary unaudited condensed pro forma financial information
gives effect to the purchase of the 10 million Shares pursuant to the Offer as
if it had occurred on January 1, 1996 with respect to combined statement of
operations data and on December 31, 1996 and June 30, 1997 with respect to
combined balance sheet data. The Summary Unaudited Pro Forma Financial Data
should be read in conjunction with the summary historical financial
information of the Liberty Media Group and does not purport to be indicative
of the results that would actually have been obtained had the purchase of the
Shares pursuant to the Offer been completed at the dates indicated or that may
be obtained in the future.
<TABLE>
<CAPTION>
JUNE 30, 1997 DECEMBER 31, 1996
-------------------- --------------------
HISTORICAL PROFORMA HISTORICAL PROFORMA
---------- --------- ---------- ---------
AMOUNTS IN THOUSANDS,
EXCEPT PER SHARE DATA
<S> <C> <C> <C> <C>
Combined Balance Sheet Data:
Cash and cash equivalents(1)....... $ 359,641 209,641 317,359 167,359
Total assets....................... $3,418,591 3,268,591 3,058,952 2,908,952
Total debt(2)...................... $ -- 120,000 1,620 121,620
Combined equity.................... $2,434,879 2,164,879 2,397,170 2,127,170
Book value per common share........ $ 9.76 9.04 9.63 8.90
<CAPTION>
SIX MONTHS ENDED YEAR ENDED
JUNE 30, DECEMBER 31,
-------------------- --------------------
HISTORICAL PROFORMA HISTORICAL PROFORMA
---------- --------- ---------- ---------
AMOUNTS IN THOUSANDS,
EXCEPT PER SHARE DATA
<S> <C> <C> <C> <C>
Combined Statement of Operations
Data:
Revenue............................ $ 119,031 119,031 1,339,359 1,339,359
Net earnings(3).................... $ 22,153 16,671 1,056,396 1,046,030
Earnings attributable to common
shareholders...................... $ 22,153 16,671 1,056,396 1,046,030
Primary earnings per common and
common equivalent share(4)........ $ .09 .07 3.97 4.08
Fully diluted earnings per common
and common equivalent share(4).... $ .09 .07 3.88 3.97
</TABLE>
- --------
(1) Assumes the use of $150 million cash on hand as a portion of the aggregate
Purchase Price.
(2) Assumes borrowings under the Subsidiary Credit Facility of $120 million to
be used as the remainder of the aggregate Purchase Price.
(3) Assumes the elimination of interest income earned on the cash balances
utilized as a portion of the aggregate Purchase Price. Additionally
assumes interest expense incurred on assumed borrowings under the
Subsidiary Credit Facility. Solely for the purpose of this pro forma
financial information, interest expense is calculated at the assumed rate
of 6.9% per annum. A change in the interest rate of 1/4% would impact
interest expense by $300,000 per annum on assumed borrowings of $120
million. Income tax benefit on the elimination of the interest income and
the interest expense is assumed at the statutory rate.
(4) Pro forma earnings per common and common equivalent share was calculated
utilizing the weighted average shares as reported in the historical
financial statements, adjusted for the assumed repurchase of 10 million
shares of Liberty Media Group Common Stock in the Offer.
Additional Information
The Company is subject to the informational filing requirements of the
Exchange Act and, in accordance therewith, is obligated to file reports and
other information with the SEC relating to its business, financial condition
and other matters. Information, as of particular dates, concerning the
Company's directors and officers, their remuneration, options granted to them,
the principal holders of
22
<PAGE>
the Company's securities and any material interest of such persons in
transactions with the Company is required to be disclosed in proxy statements
distributed to the Company's stockholders and filed with the SEC. Such
reports, proxy statements and other information can be inspected and copied at
the public reference facilities maintained by the SEC at 450 Fifth Street,
N.W., Room 2120, Washington, D.C. 20549; at its regional offices located at
500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511; and 7 World
Trade Center, New York, New York 10048. Copies of such material may also be
obtained by mail, upon payment of the SEC's customary charges, from the Public
Reference Section of the SEC at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549. The SEC also maintains a Web site on the World Wide
Web at http://www.sec.gov that contains reports, proxy and information
statements and other information regarding registrants that file
electronically with the SEC.
10. INTEREST OF DIRECTORS AND OFFICERS; TRANSACTIONS AND ARRANGEMENTS
CONCERNING SHARES.
As of July 31, 1997, the Company had 223,083,080 shares of Series A Liberty
Media Group Common Stock and 21,175,465 shares of Series B Liberty Media Group
Common Stock issued and outstanding (exclusive of treasury shares). Further,
31,840,874 shares of Series A Liberty Media Group Common Stock were reserved
for issuance upon conversion, exercise or exchange of outstanding convertible
and exchangeable securities (other than the Series B Liberty Media Group
Common Stock) or options. In addition, one share of Series A Liberty Media
Group Common Stock is reserved for issuance upon conversion of each share of
Series B Liberty Media Group Common Stock issued and outstanding. Each of the
Company's executive officers and directors has advised the Company that he
does not intend to tender any Shares pursuant to the Offer.
Except as set forth below, since June 24, 1997, neither the Company, nor any
subsidiary of the Company nor, to the best of the Company's knowledge, any of
the Company's directors or executive officers, nor any affiliates of any of
the foregoing, participated in any transactions involving the Shares.
On July 24, 1997, the Company purchased 146,625 shares of Series A Liberty
Media Group Common Stock from Mrs. Leslie Malone, the wife of Dr. John Malone,
the Chairman of the Board and Chief Executive Officer of the Company, for a
purchase price of $25.81 per share.
On July 31, 1997, the Company consummated the acquisition of all of the
capital stock of Kearns-Tribune Corporation ("Kearns-Tribune") by merger (the
"Kearns-Tribune Merger"), in consideration of the issuance of an aggregate of
47,186,232 shares of Series A TCI Group Common Stock. Kearns-Tribune's assets
at the closing of the Kearns-Tribune Merger included 4,436,245 shares of
Series A Liberty Media Group Common Stock and 2,278,125 shares of Series B
Liberty Media Group Common Stock, as well as other securities of the Company.
Immediately following the consummation of the Kearns-Tribune Merger, the
Liberty Media Group purchased from the TCI Group all 6,714,370 shares of
Liberty Media Group Common Stock acquired by the Company in the Kearns-Tribune
Merger for a purchase price of $25.00 per share. The purchase price was based
upon the average of the closing sale prices of the Series A Liberty Media
Group Common Stock on each of the twenty consecutive trading days ending on
July 28, 1997.
On April 18, 1997, Dr. Malone and Kearns-Tribune entered into an agreement
(the "KT-Malone Agreement") pursuant to which Dr. Malone was given the right
to acquire from Kearns-Tribune, immediately prior to the consummation of the
Kearns-Tribune Merger, up to 9,112,500 shares of Series B TCI Group Common
Stock and up to 2,278,125 shares of Series B Liberty Media Group Common Stock
in exchange for equal numbers of shares of Series A TCI Group Common Stock and
Series A Liberty Media Group Common Stock, respectively.
On July 23, 1997, in consideration of Dr. Malone's agreement to forego the
exercise of his rights under the KT-Malone Agreement, the Company agreed (the
"TCI-Malone Agreement") that Dr. Malone would have the right to acquire
directly from the Company, at any time and from time to time prior to July 30,
1998, up to 9,112,500 shares of Series B TCI Group Common Stock and up to
2,278,125 shares of Series B Liberty Media Group Common Stock in exchange for
equal numbers of shares of Series A TCI Group Common Stock and Series A
Liberty Media Group Common Stock, respectively. On July 24, 1997, pursuant to
the TCI-Malone Agreement, Dr. Malone acquired from the Company an aggregate of
7,296,324 shares of Series B TCI Group Common Stock and 2,278,125 shares of
Series
23
<PAGE>
B Liberty Media Group Common Stock, in exchange for a like number of shares of
Series A TCI Group Common Stock and Series A Liberty Media Group Common Stock,
respectively, held by Dr. Malone. Effective on the closing of the Kearns-
Tribune Merger, Dr. Malone and the Company agreed to terminate his right to
acquire the balance of the shares of Series B TCI Group Common Stock under the
TCI-Malone Agreement.
In May 1997, Mr. Jerome H. Kern, a director of the Company, exercised in
full stock appreciation rights granted in tandem with options with respect to
562,500 shares of Series A Liberty Media Group Common Stock with an exercise
price of $11.16 per share. Pursuant to such exercise, Mr. Kern received
100,000 shares of Series A Liberty Media Group Common Stock and $4,013,125 in
cash. The certificates evidencing such shares were issued in July 1997. On
July 23, 1997, the Board of Directors of the Company approved the grant to Mr.
Kern of options to acquire 562,500 shares of Series A Liberty Media Group
Common Stock at an exercise price of $22.25 per share. Also on July 23, 1997,
the Board of Directors approved the grant to certain executive officers and
key employees of the Company of options (and tandem stock appreciation rights)
to acquire an aggregate of 1,363,334 shares of Series A Liberty Media Group
Common Stock at an exercise price of $25.125 per share.
On July 1, 1997, the Company purchased on the open market 24,000 shares of
Series A Liberty Media Group Common Stock for $23.94 per share. On July 9,
1997, the Company purchased an additional 25,000 shares of Series A Liberty
Media Group Common Stock on the open market for an average price of $24.85 per
share.
Except for outstanding options to purchase Shares granted from time to time
to certain employees (including executive officers) of the Company pursuant to
the Company's stock option plans and except as otherwise described herein,
neither the Company nor, to the best of the Company's knowledge, any of its
affiliates, directors (including a nominee) or executive officers, is a party
to any contract, arrangement, understanding or relationship with any other
person relating, directly or indirectly, to the Offer with respect to any
securities of the Company including, but not limited to, any contract,
arrangement, understanding or relationship concerning the transfer or the
voting of any such securities, joint ventures, loan or option arrangements,
puts or calls, guaranties of loans, guaranties against loss or the giving or
withholding of proxies, consents or authorizations.
11. EFFECTS OF THE OFFER ON THE MARKET FOR SHARES; REGISTRATION UNDER THE
EXCHANGE ACT.
The Company's purchase of Shares pursuant to the Offer will reduce the
number of Shares that might otherwise be traded publicly and may reduce the
number of stockholders. Nonetheless, the Company anticipates that there will
be a sufficient number of Shares outstanding and publicly traded following
consummation of the Offer to ensure a continued trading market for the Shares.
Based upon published guidelines of The Nasdaq Stock Market, the Company does
not believe that its purchase of Shares pursuant to the Offer will cause the
Company's remaining Shares to be delisted from the National Market tier of The
Nasdaq Stock Market.
The Shares are currently "margin securities" under the rules of the Federal
Reserve Board. This has the effect, among other things, of allowing brokers to
extend credit to their customers using such Shares as collateral. The Company
believes that, following the purchase of Shares pursuant to the Offer, the
Shares will continue to be "margin securities" for purposes of the Federal
Reserve Board's margin regulations.
The Shares are registered under the Exchange Act, which requires, among
other things, that the Company furnish certain information to its stockholders
and the SEC and comply with the SEC's proxy rules in connection with meetings
of the Company's stockholders. The Company believes that its purchase of
Shares pursuant to the Offer will not result in the Shares becoming eligible
for deregistration under the Exchange Act.
24
<PAGE>
12. CERTAIN LEGAL MATTERS; REGULATORY APPROVALS.
The Company is not aware of any license or regulatory permit that appears to
be material to the Company's business that might be adversely affected by the
Company's acquisition of Shares as contemplated herein or of any approval or
other action by any government or governmental, administrative or regulatory
authority or agency, domestic or foreign, that would be required for the
acquisition or ownership of Shares by the Company as contemplated herein.
Should any such approval or other action be required, the Company presently
contemplates that such approval or other action will be sought. The Company is
unable to predict whether it may determine that it is required to delay the
acceptance for payment of or payment for Shares tendered pursuant to the Offer
pending the outcome of any such matter. There can be no assurance that any
such approval or other action, if needed, would be obtained or would be
obtained without substantial conditions or that the failure to obtain any such
approval or other action might not result in adverse consequences to the
Company's business. The Company's obligations under the Offer to accept for
payment and pay for Shares are subject to certain conditions. See Section 6.
13. CERTAIN FEDERAL INCOME TAX CONSEQUENCES.
The following summary describes certain United States federal income tax
consequences relevant to the Offer. The discussion contained in this summary
is based upon the Internal Revenue Code of 1986, as amended to the date hereof
(the "Code"), existing and proposed Treasury regulations promulgated
thereunder, administrative pronouncements and judicial decisions, changes to
which could materially affect the tax consequences described herein and could
be made on a retroactive basis.
This summary discusses only Shares held as capital assets, within the
meaning of Section 1221 of the Code, and does not address all of the tax
consequences that may be relevant to particular stockholders in light of their
personal circumstances, or to certain types of stockholders (such as certain
financial institutions, dealers in securities or commodities, insurance
companies, tax-exempt organizations or persons who hold Shares as a position
in a straddle). In particular, the discussion of the consequences of an
exchange of Shares for cash pursuant to the Offer applies only to a United
States stockholder (herein, a "Holder"). For purposes of this summary, a
"United States stockholder" is (i) a citizen or resident of the United States,
(ii) a corporation, partnership or other entity created or organized in or
under the laws of the United States, any State or any political subdivision
thereof, (iii) an estate the income of which is subject to United States
federal income taxation regardless of source, or (iv) any trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States fiduciaries have the
authority to control all substantial decisions relating to the trust. This
discussion does not address the tax consequences to foreign stockholders who
will be subject to United States federal income tax on a net basis on the
proceeds of their exchange of Shares pursuant to the Offer because such income
is effectively connected with the conduct of a trade or business within the
United States. Such stockholders are generally taxed in a manner similar to
United States stockholders; however, certain special rules apply. Foreign
stockholders who are not subject to U.S. federal income tax on a net basis
should see Section 3 for a discussion of the applicable U.S. withholding rules
and the potential for obtaining a refund of all or a portion of the tax
withheld. The summary may not be applicable with respect to Shares acquired as
compensation (including Shares acquired upon the exercise of options or which
were or are subject to forfeiture restrictions). The summary also does not
address the state, local or foreign tax consequences of participating in the
Offer. Each Holder should consult such Holder's tax advisor as to the
particular consequences to him or her of participation in the Offer.
Consequences to Tendering Stockholders of Exchange of Shares for Cash
Pursuant to the Offer. An exchange of Shares for cash in the Offer by a Holder
will be a taxable transaction for United States federal income tax purposes.
As a consequence of the exchange, the Holder will, depending on such Holder's
particular circumstances, be treated either as recognizing gain or loss from
the disposition of the Shares or as receiving a dividend distribution from the
Company.
25
<PAGE>
Under Section 302 of the Code, a Holder will recognize gain or loss from the
disposition of Shares exchanged for cash if the exchange (i) results in a
"complete termination" of all such Holder's equity interest in the Company,
(ii) results in a "substantially disproportionate" redemption with respect to
such Holder or (iii) is "not essentially equivalent to a dividend" with
respect to such Holder. In applying each of the Section 302 tests, a Holder is
in general deemed to own constructively the Shares actually owned by certain
related individuals and entities. For example, an individual Holder is
generally considered to own the Shares owned directly or indirectly by or for
his or her spouse and his or her children, grandchildren and parents. In
addition, a Holder is considered to own a proportionate number of the Shares
owned by trusts or estates in which the Holder has a beneficial interest, by
partnerships in which the Holder is a partner, and by corporations in which
the Holder owns, directly or indirectly, 50% or more in value of the stock.
Similarly, Shares directly or indirectly owned by beneficiaries of estates or
trusts, by partners of partnerships and, under certain circumstances, by
stockholders of corporations may be considered owned by these entities. A
Holder will generally also be deemed to own Shares which the Holder has the
right to acquire by exercise of an option.
A Holder that exchanges all Shares actually or constructively owned by such
Holder for cash pursuant to the Offer will be regarded as having completely
terminated such Holder's equity interest in the Company. A Holder that
exchanges all Shares actually owned for cash pursuant to the Offer, but is not
treated as having disposed of all Shares constructively owned pursuant to the
Offer because of the application of the family attribution rules described
above, may nevertheless be able to qualify his or her exchange as a "complete
termination" of his or her interest in the Company if certain technical
requirements are met. Among other requirements, a Holder must include a
statement with his or her 1997 federal income tax return notifying the
Internal Revenue Service (the "IRS") that he or she has elected to waive the
family attribution rules and agreeing to provide certain information in the
future, and must not have any interest in the Company immediately after the
disposition (including an interest as an officer, director or employee), other
than an interest as a creditor. A Holder wishing to satisfy the "complete
termination" test through waiver of the family attribution rules should
consult his or her tax advisor. An exchange of Shares for cash will be a
"substantially disproportionate" redemption with respect to a Holder if (i)
the percentage of the voting power in the Company owned by such Holder
immediately after the exchange is less than 80% of the percentage of the
voting power in the Company owned by such Holder immediately before the
exchange and (ii) the percentage, of the fair market value of the outstanding
common stock of the Company, owned by such Holder immediately after the
exchange is less than 80% of the percentage, of the fair market value of the
then outstanding common stock of the Company, owned by such Holder immediately
before the exchange. If an exchange of Shares for cash fails to satisfy the
"substantially disproportionate" test, the Holder may nonetheless satisfy the
"not essentially equivalent to a dividend" test. A Holder who wishes to
satisfy (or avoid) the "not essentially equivalent to a dividend" test is
urged to consult such Holder's tax advisor because this test will be met only
if the reduction in such Holder's proportionate interest in the Company
constitutes a "meaningful reduction" given such Holder's particular facts and
circumstances. The IRS has indicated in published rulings that any reduction
in the percentage interest of a stockholder whose relative stock interest in a
publicly held corporation is minimal (an interest of less than 1% should
satisfy this requirement) and who exercises no control over corporate affairs
should constitute such a "meaningful reduction." If a Holder sells Shares to
persons other than the Company at or about the time such Holder also sells
shares to the Company pursuant to the Offer, and the various sales effected by
the Holder are part of an overall plan to reduce or terminate such Holder's
proportionate interest in the Company, then the sales to persons other than
the Company may, for federal income tax purposes, be integrated with the
Holder's sale of Shares pursuant to the Offer and, if integrated, may be taken
into account in determining whether the Holder satisfies any of the three
tests described above. A Holder should consult his or her tax advisor
regarding the treatment of other exchanges of Shares for cash which may be
integrated with such Holder's sale of Shares to the Company pursuant to the
Offer.
26
<PAGE>
If a Holder is treated as recognizing gain or loss from the disposition of
Shares for cash, such gain or loss will be equal to the difference between the
amount of cash received and such Holder's tax basis in the Shares exchanged
therefor. Any such gain or loss will be capital gain or loss. Capital gain
could be taxed at a rate lower than ordinary income for certain noncorporate
taxpayers. Different tax rates may be applicable to such taxpayers based upon
the period that the Shares were held (for one year or less, for more than one
year but not more than eighteen months or for more than eighteen months). The
distinction between capital gain or loss and ordinary income is also relevant
for purposes of, among other things, the limitation on the deductibility of
capital losses. Gain or loss must be determined separately for each block of
Shares (that is, Shares acquired at the same cost in a single transaction)
that is exchanged for cash. A Holder may be able to designate (generally
through such Holder's broker) which blocks of Shares are tendered pursuant to
the Offer if less than all of such Holder's Shares are tendered, and the order
in which different blocks would be exchanged for cash, in the event of
proration pursuant to the Offer. Each Holder should consult such Holder's tax
advisor concerning the mechanics and desirability of such a designation.
If a Holder is not treated under the Section 302 tests as recognizing gain
or loss from the disposition of Shares exchanged for cash, the entire amount
of cash received by such Holder in such exchange will be treated as a dividend
to the extent of the Company's current and accumulated earnings and profits
(which the Company believes it has). Such a dividend will be includable in the
Holder's gross income as ordinary income in its entirety, without reduction
for the tax basis of the Shares exchanged, and no loss will be recognized. The
Holder's tax basis in the Shares exchanged, however, will be added to such
Holder's tax basis in the remaining Shares that such Holder owns. To the
extent that cash received in exchange for Shares is treated as a dividend to a
corporate Holder, (i) it generally will be eligible for a dividends-received
deduction equal to 70% of the dividend (subject to holding period restrictions
and applicable limitations for Shares with respect to which such Holder has
incurred indebtedness) and (ii) it will be subject to the "extraordinary
dividend" provisions of the Code. A corporate Holder should consult its tax
advisor concerning the availability of the dividends-received deduction and
the application of the "extraordinary dividend" provisions of the Code.
The Company cannot predict whether or the extent to which the Offer will be
oversubscribed. If the Offer is oversubscribed, proration of tenders pursuant
to the Offer will cause the Company to accept fewer Shares than are tendered.
Therefore, a Holder can be given no assurance that a sufficient number of such
Holder's Shares will be purchased pursuant to the Offer to ensure that such
purchase will be treated as a sale or exchange, rather than as a dividend, for
federal income tax purposes pursuant to the rules discussed above.
Consequences to Stockholders Who Do Not Tender Pursuant to the
Offer. Stockholders who do not accept the Company's Offer to tender their
Shares will not incur any tax liability as a result of the consummation of the
Offer.
See Section 3 with respect to the application of federal income tax
withholding to payments made to foreign stockholders and backup withholding.
THE TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL INFORMATION ONLY.
EACH STOCKHOLDER IS URGED TO CONSULT SUCH HOLDER'S OWN TAX ADVISOR TO
DETERMINE THE PARTICULAR TAX CONSEQUENCES TO HIM OR HER OF THE OFFER,
INCLUDING THE APPLICABILITY AND EFFECT OF STATE, LOCAL AND FOREIGN TAX LAWS.
14. EXTENSION OF OFFER; TERMINATION; AMENDMENT.
The Company expressly reserves the right, in its sole discretion, at any
time and from time to time, and regardless of whether or not any of the events
set forth in Section 6 shall have occurred or shall be deemed by the Company
to have occurred, to extend the period of time during which the Offer is open
and thereby delay acceptance for payment of, and payment for, any Shares by
giving oral or
27
<PAGE>
written notice of such extension to the Depositary and making a public
announcement thereof. The Company also expressly reserves the right, in its
sole discretion, to terminate the Offer and not accept for payment or pay for
any Shares not theretofore accepted for payment or paid for or, subject to
applicable law, to postpone payment for Shares upon the occurrence of any of
the conditions specified in Section 6 hereof by giving oral or written notice
of such termination or postponement to the Depositary and making a public
announcement thereof. The Company's reservation of the right to delay payment
for Shares which it has accepted for payment is limited by rules promulgated
under the Exchange Act, which require that the Company must pay the
consideration offered or return the Shares tendered promptly after termination
or withdrawal of a tender offer. Subject to compliance with applicable law,
the Company further reserves the right, in its sole discretion, and regardless
of whether any of the events set forth in Section 6 shall have occurred or
shall be deemed by the Company to have occurred, to amend the Offer in any
respect (including, without limitation, by decreasing or increasing the
consideration offered in the Offer to holders of Shares or by decreasing or
increasing the number of Shares being sought in the Offer). Amendments to the
Offer may be made at any time and from time to time by public announcement
thereof, with such announcement, in the case of an extension, to be issued no
later than 9:00 a.m., New York City time, on the next business day after the
last previously scheduled or announced Expiration Date. Any public
announcement made pursuant to the Offer will be disseminated promptly to
stockholders in a manner reasonably designed to inform stockholders of such
change. Without limiting the manner in which the Company may choose to make a
public announcement, except as required by applicable law, the Company shall
have no obligation to publish, advertise or otherwise communicate any such
public announcement other than by making a release to the Dow Jones News
Service.
If the Company materially changes the terms of the Offer or the information
concerning the Offer, or if it waives a material condition of the Offer, the
Company will extend the Offer to the extent required by rules promulgated
under the Exchange Act. These rules require that the minimum period during
which an offer must remain open following material changes in the terms of
such offer or information concerning such offer (other than a change in price
or a change in percentage of securities sought) will depend on the facts and
circumstances, including the relative materiality of such terms or
information. If (i) the Company increases or decreases the Purchase Price
provided in the Offer, the number of Shares being sought in the Offer or the
Dealer Manager's fees and, in the event of an increase in the number of Shares
being sought, such increase exceeds 2% of the outstanding Shares, and (ii) the
Offer is scheduled to expire at any time earlier than the expiration of a
period ending on the tenth business day from, and including, the date that
such notice of an increase or decrease is first published, sent or given in
the manner specified in this Section 14, then in each case the Offer will be
extended until the expiration of such period of ten business days.
15. FEES AND EXPENSES.
The Company has retained Salomon Brothers Inc to act as its financial
advisor, as well as the Dealer Manager, in connection with the Offer. Salomon
will receive a fee of $0.03 per Share for each Share purchased by the Company
pursuant to the Offer, up to a maximum of $500,000, for its services as Dealer
Manager. The Company also has agreed to reimburse Salomon for certain out-of-
pocket expenses incurred in connection with the Offer, and to indemnify
Salomon against certain liabilities in connection with the Offer, including
liabilities under the federal securities laws. Salomon has been retained by
the Company to render, and in the past has rendered, various investment
banking and other advisory services to the Company, for which it has received
and will continue to receive compensation, and may render similar services to
the Company in the future.
The Company has retained D.F. King & Co., Inc. to act as Information Agent
and The Bank of New York to act as Depositary in connection with the Offer.
The Information Agent may contact holders of Shares by mail, telephone,
telegraph and personal interviews and may request brokers, dealers and
28
<PAGE>
other nominee stockholders to forward materials relating to the Offer to
beneficial owners. The Information Agent and the Depositary will each receive
reasonable and customary compensation for their respective services, will be
reimbursed by the Company for certain reasonable out-of-pocket expenses and
will be indemnified against certain liabilities in connection with the Offer,
including certain liabilities under the federal securities laws. The Bank of
New York acts as depositary for funds of, makes loans to, and performs other
services (including stock transfer services) for the Company in the normal
course of business and can be expected to render similar services to the
Company in the future.
No fees or commissions will be payable to brokers, dealers or other persons
(other than fees to the Dealer Manager, the Information Agent and the
Depositary as described above) for soliciting tenders of Shares pursuant to
the Offer. The Company, however, upon request, will reimburse brokers, dealers
and commercial banks for customary mailing and handling expenses incurred by
such persons in forwarding the Offer and related materials to the beneficial
owners of Shares held by any such person as a nominee or in a fiduciary
capacity. No broker, dealer, commercial bank or trust company has been
authorized to act as the agent of the Company, the Dealer Manager, the
Information Agent or the Depositary for purposes of the Offer. The Company
will pay or cause to be paid all stock transfer taxes, if any, on its purchase
of Shares except as otherwise provided in Instruction 6 in the Letter of
Transmittal.
16. MISCELLANEOUS.
The Company is not aware of any jurisdiction where the making of the Offer
is not in compliance with applicable law. If the Company becomes aware of any
jurisdiction where the making of the Offer is not in compliance with any valid
applicable law, the Company will make a good faith effort to comply with such
law. If, after such good faith effort, the Company cannot comply with such
law, the Offer will not be made to (nor will tenders be accepted from or on
behalf of) the holders of Shares residing in such jurisdiction. In any
jurisdiction the securities or blue sky laws of which require the Offer to be
made by a licensed broker or dealer, the Offer is being made on the Company's
behalf by the Dealer Manager or one or more registered brokers or dealers
licensed under the laws of such jurisdiction.
Pursuant to Rule 13e-4 of the General Rules and Regulations under the
Exchange Act, the Company has filed with the SEC an Issuer Tender Offer
Statement on Schedule 13E-4 which contains additional information with respect
to the Offer. Such Schedule 13E-4, including the exhibits and any amendments
thereto, may be examined, and copies may be obtained, at the same places and
in the same manner as is set forth in Section 9 with respect to information
concerning the Company.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATION ON BEHALF OF THE COMPANY OR THE DEALER MANAGER IN CONNECTION
WITH THE OFFER OTHER THAN THOSE CONTAINED IN THIS OFFER TO PURCHASE OR IN THE
RELATED LETTER OF TRANSMITTAL. IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR THE DEALER MANAGER.
Tele-Communications, Inc.
August 19, 1997
29
<PAGE>
Facsimile copies of the Letter of Transmittal will be accepted from Eligible
Institutions. The Letter of Transmittal and certificates for Shares and any
other required documents should be sent or delivered by each stockholder or
his or her broker, dealer, commercial bank, trust company or nominee to the
Depositary at one of its addresses set forth below.
The Depositary for the Offer is:
THE BANK OF NEW YORK
By Hand or Overnight
By Mail: Facsimile Transmission: Courier:
Tender & Exchange (For Eligible Institutions Only) Tender & Exchange
Department Tender & Exchange Department Department
P.O. Box 11248 (212) 815-6213 101 Barclay Street
Church Street Station Receive and Deliver Window
New York, NY 10286-1248 New York, NY 10286-1248
Confirmation of Facsimile
Transmission Only:
(800) 507-9357
Any questions or requests for assistance or additional copies of the Offer
to Purchase, the Letter of Transmittal or the Notice of Guaranteed Delivery
may be directed to the Information Agent at the telephone numbers and location
listed below. Stockholders may also contact their local broker, dealer,
commercial bank, trust company or nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005-4495
(212) 269-5500 (call collect)
or
CALL TOLL FREE (800) 848-3410
The Dealer Manager for the Offer is:
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
(212) 783-2947
August 19, 1997
<PAGE>
LETTER OF TRANSMITTAL
TO TENDER SHARES OF
SERIES A LIBERTY MEDIA GROUP COMMON STOCK
AND
SERIES B LIBERTY MEDIA GROUP COMMON STOCK
OF
TELE-COMMUNICATIONS, INC.
PURSUANT TO THE OFFER TO PURCHASE
DATED AUGUST 19, 1997
- -------------------------------------------------------------------------------
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON WEDNESDAY, SEPTEMBER 17, 1997,
UNLESS THE OFFER IS EXTENDED.
- -------------------------------------------------------------------------------
TO: THE BANK OF NEW YORK, Depositary
By Mail: By Facsimile Transmission By Hand or Overnight
Tender & Exchange (for Eligible Institutions only): Courier:
Department Tender & Exchange Department Tender & Exchange
P.O. Box 11248 Fax: (212) 815-6213 Department
Church Street Station 101 Barclay Street
New York, New York Confirm by Telephone: Receive & Deliver Window
10286-1248 (800) 507-9357 New York, New York
10286-1248
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TO A NUMBER OTHER THAN AS SET
FORTH ABOVE DOES NOT CONSTITUTE A VALID DELIVERY.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
DESCRIPTION OF SHARES TENDERED
(SEE INSTRUCTIONS 3 AND 4)
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------
NAME(S) AND ADDRESS(ES) OF REGISTERED HOLDER(S)
(PLEASE FILL IN EXACTLY AS APPEARS CERTIFICATE(S) TENDERED
ON CERTIFICATE(S).) (ATTACH SIGNED ADDITIONAL LIST, IF NECESSARY.)
- ---------------------------------------------------------------------------------------------------
NUMBER OF SHARES
CERTIFICATE REPRESENTED BY NUMBER OF SHARES
NUMBER(S)* CERTIFICATE(S)* TENDERED**
<S> <C> <C> <C>
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
------------------------------------------------------------
TOTAL SHARES TENDERED
</TABLE>
- -------------------------------------------------------------------------------
Indicate in this box the order (by certificate number) in which Shares are
to be purchased in event of proration. (Attach signed additional list, if
necessary.)*** See Instruction 8.
1st: 2nd: 3rd: 4th: 5th:
- -------------------------------------------------------------------------------
* Need not be completed if Shares are tendered by book-entry transfer.
** If you desire to tender fewer than all Shares evidenced by any
certificates listed above, please indicate in this column the number of
Shares you wish to tender. Otherwise, all Shares evidenced by such
certificates will be deemed to have been tendered. See Instruction 4.
*** In the event less than all Shares tendered are purchased due to proration,
Shares will be selected for purchase by the Depositary, unless you
designate otherwise.
<PAGE>
NOTE: SIGNATURE MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
This Letter of Transmittal is to be used only if (a) certificates for Shares
(as defined below) are to be forwarded herewith or (b) a tender of Shares is
to be made by book-entry transfer to the account maintained by The Bank of New
York (the "Depositary") at The Depository Trust Company or Philadelphia
Depository Trust Company (collectively, the "Book-Entry Transfer Facilities")
pursuant to Section 3 of the Offer to Purchase. See Instruction 2.
Stockholders who desire to tender Shares pursuant to the Offer (as defined
below) and who cannot deliver their certificates for their Shares (or who are
unable to comply with the procedures for book-entry transfer on a timely
basis) and all other documents required by this Letter of Transmittal to the
Depositary at or before the Expiration Date may tender their Shares according
to the guaranteed delivery procedures set forth in Section 3 of the Offer to
Purchase. See Instruction 2. Delivery of documents to one of the Book-Entry
Transfer Facilities does not constitute delivery to the Depositary.
- -------------------------------------------------------------------------------
[_]CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO
AN ACCOUNT MAINTAINED BY THE DEPOSITARY WITH ONE OF THE BOOK-ENTRY TRANSFER
FACILITIES AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
----------------------------------------------
Check Box of Applicable Book-Entry Transfer Facility if Delivered by Book-
Entry Transfer:
[_]The Depository Trust Company [_]Philadelphia Depository Trust
Company
Account Number: Transaction Code Number:
--------------- -------------
[_]CHECK HERE IF CERTIFICATES FOR TENDERED SHARES ARE BEING DELIVERED PURSUANT
TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND
COMPLETE THE FOLLOWING:
Name(s) of Registered Owner(s):
--------------------------------------------
Date of Execution of Notice of Guaranteed Delivery:
------------------------
Name of Institution that Guaranteed Delivery:
------------------------------
Window Ticket Number (if available):
---------------------------------------
Check Box of Applicable Book-Entry Transfer Facility if Delivered by Book-
Entry Transfer:
[_]The Depository Trust Company [_]Philadelphia Depository Trust
Company
Account Number: Transaction Code Number:
--------------- -------------
- -------------------------------------------------------------------------------
ODD LOTS
(SEE INSTRUCTION 7)
This section is to be completed ONLY if Shares are being tendered by or on
behalf of a person owning beneficially or of record an aggregate of fewer than
100 Shares. The undersigned either (check one box):
[_]is the beneficial or record owner of an aggregate of fewer than 100
Shares, all of which are being tendered; or
[_]is a broker, dealer, commercial bank, trust company or other nominee
that (a) is tendering for the beneficial owner(s) thereof Shares with
respect to which it is the record holder, and (b) believes, based upon
representations made to it by such beneficial owner(s), that each such
person is the beneficial owner of an aggregate of fewer than 100 Shares
and is tendering all of such Shares;
and, in either case, hereby represents that the above indicated information is
true and correct as to the undersigned.
2
<PAGE>
Ladies and Gentlemen:
The undersigned hereby tenders to Tele-Communications, Inc., a Delaware
corporation (the "Company"), the above described shares of Tele-
Communications, Inc. Series A Liberty Media Group Common Stock, par value
$1.00 per share, and/or Tele-Communications, Inc. Series B Liberty Media Group
Common Stock, par value $1.00 per share (collectively, the "Shares"), at $27
per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Company's Offer to Purchase, dated August 19, 1997
(the "Offer to Purchase"), and in this Letter of Transmittal (collectively,
the "Offer"), the receipt of which is hereby acknowledged. Terms used herein
and not otherwise defined shall have the meanings ascribed thereto in the
Offer to Purchase.
Subject to and effective upon acceptance for payment of the Shares tendered
hereby upon the terms and subject to the conditions of the Offer (including,
if the Offer is extended or amended, the terms and conditions of such
extension or amendment), the undersigned hereby sells, assigns and transfers
to, or upon the order of, the Company all right, title and interest in and to
all the Shares that are being tendered hereby and orders the registration of
all such Shares if tendered by book-entry transfer and hereby irrevocably
constitutes and appoints the Depositary as the true and lawful agent and
attorney-in-fact of the undersigned (with full knowledge that said Depositary
also acts as the agent of the Company) with respect to such Shares with full
power of substitution (such power of attorney being deemed to be an
irrevocable power coupled with an interest) to:
(a) deliver certificate(s) for such Shares or transfer ownership of such
Shares on the account books maintained by either of the Book-Entry
Transfer Facilities, together in either such case with all accompanying
evidences of transfer and authenticity, to, or upon the order of, the
Company upon receipt by the Depositary, as the undersigned's agent, of
the aggregate Purchase Price (as defined below) with respect to such
Shares;
(b) present certificates for such Shares for cancellation and transfer on
the Company's books; and
(c) receive all benefits and otherwise exercise all rights of beneficial
ownership of such Shares, subject to the next paragraph, all in
accordance with the terms of the Offer.
The undersigned hereby represents and warrants to the Company that:
(a) the undersigned understands that tenders of Shares pursuant to any one
of the procedures described in Section 3 of the Offer to Purchase and
in the Instructions hereto will constitute the undersigned's acceptance
of the terms and conditions of the Offer, including the undersigned's
representation and warranty that:
(i) the undersigned has a net long position in Shares or equivalent
securities at least equal to the Shares tendered within the meaning
of Rule 14e-4 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and
(ii) such tender of Shares complies with Rule 14e-4;
(b) when and to the extent the Company accepts such Shares for purchase,
the Company will acquire good, marketable and unencumbered title to
them, free and clear of all security interests, liens, charges,
encumbrances, conditional sales agreements or other obligations
relating to their sale or transfer, and not subject to any adverse
claim;
(c) on request, the undersigned will execute and deliver any additional
documents the Depositary or the Company deems necessary or desirable to
complete the assignment, transfer and purchase of the Shares tendered
hereby; and
(d) the undersigned has read and agrees to all of the terms of the Offer.
The name(s) and address(es) of the registered holder(s) should be printed
above, if they are not already printed above, exactly as they appear on the
certificates representing Shares tendered hereby. The certificate numbers, the
number of Shares represented by each certificate and the number of Shares
represented by each certificate that the undersigned wishes to tender should
be set forth in the appropriate boxes above.
3
<PAGE>
The undersigned understands that the Company seeks to purchase 10,000,000
Shares in the aggregate at $27 per Share, net to the seller in cash (the
"Purchase Price"). The undersigned also understands that Shares validly
tendered and not properly withdrawn prior to the Expiration Date will be
purchased at the Purchase Price, upon the terms and subject to the conditions
of the Offer, including its proration provisions, and that the Company will
return all other Shares not purchased pursuant to the Offer, including Shares
not purchased because of proration.
The undersigned waives any right to receive notice of the acceptance for
payment of Shares tendered hereby.
The undersigned recognizes that, under certain circumstances set forth in
the Offer to Purchase, the Company may terminate or amend the Offer or may
postpone the acceptance for payment of, or the payment for, Shares tendered or
may accept for payment fewer than all of the Shares tendered hereby. In any
such event, the undersigned understands that certificate(s) for any Shares not
tendered or not purchased will be returned to the undersigned at the address
indicated above, unless otherwise indicated under "Special Payment
Instructions" or "Special Delivery Instructions" below.
The undersigned recognizes that the Company has no obligation, pursuant to
the "Special Payment Instructions," to transfer any certificate for Shares
from the name of its registered holder, or to order the registration or
transfer of Shares tendered by book-entry transfer, if the Company purchases
none of the Shares represented by such certificate or tendered by such book-
entry transfer.
The undersigned understands that acceptance of Shares by the Company for
payment will constitute a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the Offer.
The check for the aggregate Purchase Price for such of the Shares tendered
hereby as are purchased will be issued to the order of the undersigned and
mailed to the address indicated above, unless otherwise indicated under
"Special Payment Instructions" or "Special Delivery Instructions" below.
All authorities conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned, and any
obligation of the undersigned hereunder shall be binding upon the heirs,
personal representatives, executors, administrators, successors, assigns,
trustees in bankruptcy and legal representatives of the undersigned. Except as
stated in the Offer to Purchase, this tender is irrevocable.
4
<PAGE>
- ----------------------------------- ------------------------------------
SPECIAL PAYMENT INSTRUCTIONS (SEE SPECIAL DELIVERY INSTRUCTIONS
INSTRUCTIONS 1, 4, 5, 6 AND 9) (SEE INSTRUCTIONS 1, 4, 5, 6 AND 9)
To be completed ONLY if certifi- To be completed ONLY if certifi-
cates for Shares not tendered or cates for Shares not tendered or
not purchased and/or any check not purchased and/or any check
for the aggregate Purchase Price for the aggregate Purchase Price
of Shares purchased are to be is- of Shares purchased, issued in
sued in the name of someone other the name of the undersigned, are
than the undersigned. to be mailed to someone other
than the undersigned or to the
Issue: undersigned at an address other
than that shown above.
[_] Check to:
[_] Certificates to: Mail:
Name(s): [_] Check to:
------------------------- [_] Certificates to:
(PLEASE PRINT)
Name(s):
-------------------------
Address: (PLEASE PRINT)
-------------------------
---------------------------------- Address:
(ZIP CODE) -------------------------
---------------------------------- ----------------------------------
(TAXPAYER IDENTIFICATION OR
SOCIAL SECURITY NUMBER)
----------------------------------
(ZIP CODE)
- --------------------------------------------------------------------------------
5
<PAGE>
- --------------------------------------------------------------------------------
PLEASE SIGN HERE
(TO BE COMPLETED BY ALL STOCKHOLDERS)
(PLEASE COMPLETE AND RETURN THE ATTACHED SUBSTITUTE IRS FORM W-
9.)
[ARROW (Must be signed by the registered holder(s) exactly as [ARROW
APPEAR name(s) appear(s) on certificate(s) or on a security APPEAR
HERE] position listing or by person(s) authorized to become HERE]
registered holder(s) by certificate(s) and documents
transmitted with this Letter of Transmittal. If signature
is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation or another
person acting in a fiduciary or representative capacity,
please set forth full title. See Instruction 5.)
X X
--------------------------------------------------------------
X X
--------------------------------------------------------------
SIGNATURE(S) OF OWNER(S)
Dated: , 1997
--------------------
Name(s):
--------------------------------------------------------
(PLEASE PRINT)
Capacity (full title):
-----------------------------------------
Address:
--------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code(s) and Telephone Number(s):
--------------------------
GUARANTEE OF SIGNATURE(S)
(SEE INSTRUCTIONS 1 AND 5)
Name of Firm:
--------------------------------------------------
Authorized Signature:
------------------------------------------
Name:
----------------------------------------------------------
(PLEASE PRINT)
Title:
---------------------------------------------------------
Address:
-------------------------------------------------------
(INCLUDE ZIP CODE)
Area Code(s) and Telephone Number(s):
--------------------------
Dated: , 1997
--------------------
- --------------------------------------------------------------------------------
6
<PAGE>
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE OFFER
1. GUARANTEE OF SIGNATURES. No signature guarantee is required if either:
(a) this Letter of Transmittal is signed by the registered holder of the
Shares (which term, for purposes of this document, shall include any
participant in a Book-Entry Transfer Facility whose name appears on a
security position listing as the owner of such Shares) exactly as the name
of the registered holder appears on the certificate tendered with this
Letter of Transmittal and payment and delivery are to be made directly to
such owner unless such owner has completed either the box entitled "Special
Payment Instructions" or "Special Delivery Instructions" above; or
(b) such Shares are tendered for the account of a member firm of a
registered national securities exchange, a member of the National
Association of Securities Dealers, Inc. or a commercial bank or trust
company (not a savings bank or savings and loan association) having an
office, branch or agency in the United States or by any other "eligible
guarantor institution" as defined in Rule 17Ad-15 under the Exchange Act
(each such entity, an "Eligible Institution").
IN ALL OTHER CASES, AN ELIGIBLE INSTITUTION MUST GUARANTEE ALL SIGNATURES ON
THIS LETTER OF TRANSMITTAL. SEE INSTRUCTION 5.
2. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES; GUARANTEED DELIVERY
PROCEDURES. This Letter of Transmittal is to be used only if certificates for
Shares are delivered herewith to the Depositary (or such certificates will be
delivered pursuant to a Notice of Guaranteed Delivery previously sent to the
Depositary) or if a tender of Shares is being made pursuant to the procedure
for tender by book-entry transfer set forth in Section 3 of the Offer to
Purchase. Certificates for all physically tendered Shares or confirmation of a
book-entry transfer into the Depositary's account at a Book-Entry Transfer
Facility of Shares ("Book-Entry Confirmation"), as the case may be, together
in each case with (i) a properly completed and duly executed Letter of
Transmittal (or a manually signed facsimile thereof), together with any
required signature guarantees or, in the case of book-entry transfer of
tendered Shares, an Agent's Message (as defined below), and (ii) any other
documents required by this Letter of Transmittal, should be received by the
Depositary at one of the addresses set forth herein prior to 5:00 p.m., New
York City time, on the Expiration Date. The term "Agent's Message" means a
message, transmitted by a Book-Entry Transfer Facility to, and received by,
the Depositary forming a part of a Book-Entry Confirmation, which states that
such Book-Entry Transfer Facility has received an express acknowledgment from
the participant in such Book-Entry Transfer Facility tendering the Shares,
that such participant has received and agrees to be bound by the terms of this
Letter of Transmittal and that the Company may enforce such agreement against
such participant. DELIVERY OF DOCUMENTS TO ONE OF THE BOOK-ENTRY TRANSFER
FACILITIES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
Stockholders whose certificates are not immediately available or who cannot
deliver certificates for their Shares and all other required documents to the
Depositary before the Expiration Date, or whose Shares cannot be delivered on
a timely basis pursuant to the procedures for book-entry transfer, may tender
their Shares by or through any Eligible Institution by properly completing and
duly executing and delivering a Notice of Guaranteed Delivery pursuant to the
guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase.
Pursuant to such procedure, certificates for all physically tendered Shares in
proper form for sale or a Book-Entry Confirmation, as the case may be,
together with a properly completed and duly executed Letter of Transmittal (or
manually signed facsimile thereof) with any required signature guarantees or,
in the case of book-entry transfer of tendered Shares, an Agent's Message, and
all other documents required by this Letter of Transmittal must be received by
the Depositary within three Nasdaq trading days after the date of execution of
such Notice of Guaranteed Delivery, all as provided in Section 3 of the Offer
to Purchase. If certificates for Shares are forwarded separately to the
Depositary, a properly completed and duly executed Letter of Transmittal must
accompany each such delivery.
7
<PAGE>
The Notice of Guaranteed Delivery may be delivered by hand or transmitted by
telegram, facsimile transmission or mail to the Depositary and must include a
signature guarantee by an Eligible Institution in the form set forth in such
Notice. For Shares to be validly tendered pursuant to the guaranteed delivery
procedure, the Depositary must receive the Notice of Guaranteed Delivery on or
before the Expiration Date.
THE METHOD OF DELIVERY OF ALL DOCUMENTS, INCLUDING CERTIFICATES FOR SHARES,
IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER AND, EXCEPT AS
OTHERWISE PROVIDED IN THIS LETTER OF TRANSMITTAL, THE DELIVERY WILL BE DEEMED
MADE ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY. IF DELIVERY IS BY MAIL,
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, IS
RECOMMENDED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY
RECEIPT.
The Company will not accept any alternative, conditional or contingent
tenders, nor will it purchase any fractional Shares, except as expressly
provided in the Offer to Purchase.
3. INADEQUATE SPACE. If the space provided under the item "Description of
Shares Tendered," is inadequate, the certificate numbers and/or the number of
Shares should be listed on a separate SIGNED schedule and attached to this
Letter of Transmittal.
4. PARTIAL TENDERS AND UNPURCHASED SHARES. (Not applicable to stockholders
who tender by book-entry transfer.) If fewer than all of the Shares evidenced
by any certificate are to be tendered, fill in the number of Shares that are
to be tendered in the column entitled "Number of Shares Tendered," under the
item "Description of Shares Tendered." In such case, if any tendered Shares
are purchased, a new certificate for the remainder of the Shares (including
any Shares not purchased) evidenced by the old certificate(s) will be issued
and sent to the registered holder(s), unless otherwise specified above under
either "Special Payment Instructions" or "Special Delivery Instructions," as
soon as practicable after the Expiration Date. Unless otherwise indicated, all
Shares represented by the certificate(s) listed and delivered to the
Depositary will be deemed to have been tendered.
5. SIGNATURES ON LETTER OF TRANSMITTAL, STOCK POWERS AND ENDORSEMENTS.
(a) If this Letter of Transmittal is signed by the registered holder(s)
of the Shares tendered hereby, the signatures must correspond exactly with
the name(s) as written on the face of the certificates without any change
whatsoever.
(b) If the Shares are registered in the names of two or more joint
holders, each such holder must sign this Letter of Transmittal.
(c) If any tendered Shares are registered in different names on several
certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal (or manually signed facsimiles thereof) as
there are different registrations of certificates.
(d) When this Letter of Transmittal is signed by the registered holder(s)
of the Shares listed and transmitted hereby, no endorsement(s) of
certificate(s) representing such Shares or separate stock power(s) are
required unless payment is to be issued or the certificate(s) for Shares
not tendered or not purchased are to be issued in the name of a person
other than the registered holder(s). If this Letter of Transmittal is
signed by a person other than the registered holder(s) of the
certificate(s) listed, or if payment is to be issued or the certificate(s)
for Shares not tendered or not purchased are to be issued in the name of a
person other than the registered holder(s), the certificate(s) must be
endorsed or accompanied by appropriate stock power(s), in either case
signed exactly as the name(s) of the registered holder(s) appears on the
certificate(s), and the signature(s) on such certificate(s) or stock
power(s) must be guaranteed by an Eligible Institution. See Instruction 1.
(e) If this Letter of Transmittal or any certificate(s) or stock power(s)
are signed by trustees, executors, administrators, guardians, attorneys-in-
fact, officers of corporations or others acting in a fiduciary or
8
<PAGE>
representative capacity, such persons should so indicate when signing and
must submit proper evidence satisfactory to the Company of their authority
so to act.
Tendering shareholders must follow all of the signature requirements
contained in this Instruction 5 in order to make a valid tender of Shares.
6. STOCK TRANSFER TAXES. Except as provided in this Instruction 6, no stock
transfer tax stamps or funds to cover such stamps need accompany this Letter
of Transmittal. The Company will pay or cause to be paid any stock transfer
taxes payable on the transfer to it of Shares purchased pursuant to the Offer.
If, however:
(a) payment of the aggregate Purchase Price for Shares tendered hereby
and accepted for purchase is to be issued in the name of any person other
than the registered holder(s);
(b) Shares not tendered or not accepted for purchase are to be registered
in the name of any person(s) other than the registered holder(s); or
(c) tendered certificates are registered in the name(s) of any person(s)
other than the person(s) signing this Letter of Transmittal;
then the Depositary will deduct from such aggregate Purchase Price the amount
of any stock transfer taxes (whether imposed on the registered holder, such
other person or otherwise) payable on account of the transfer to such person,
unless satisfactory evidence of the payment of such taxes or any exemption
therefrom is submitted.
7. ODD LOTS. As described in Section 1 of the Offer to Purchase, if the
Company is to purchase fewer than all Shares validly tendered and not properly
withdrawn before the Expiration Date, the Shares purchased first will consist
of all Shares validly tendered and not properly withdrawn prior to the
Expiration Date by any stockholder who owns beneficially or of record an
aggregate of fewer than 100 Shares (an "Odd Lot Holder"). This preference will
not be available unless the item captioned "Odd Lots" is completed.
8. ORDER OF PURCHASE IN EVENT OF PRORATION. As described in Section 1 of the
Offer to Purchase, stockholders may designate the order in which their Shares
are to be purchased in the event of proration. The order of purchase may have
an effect on the federal income tax treatment of the Purchase Price for the
Shares purchased. See Sections 1 and 13 of the Offer to Purchase.
9. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If certificate(s) for Shares
not tendered or not purchased and/or check(s) are to be issued in the name of
a person other than the signer of the Letter of Transmittal or if such
certificates and/or checks are to be sent to someone other than the person
signing the Letter of Transmittal or to the signer at a different address, the
above items "Special Payment Instructions" and/or "Special Delivery
Instructions" should be completed as applicable and signatures must be
guaranteed as described in Instruction 1.
10. IRREGULARITIES. All questions as to the number of Shares to be accepted
and the validity, form, eligibility (including time of receipt) and acceptance
for payment of any tender of Shares will be determined by the Company in its
sole discretion, which determinations shall be final and binding on all
parties. The Company
reserves the absolute right to reject any or all tenders of Shares it
determines not to be in proper form or the acceptance of which or payment for
which may, in the opinion of the Company's counsel, be unlawful. The Company
also reserves the absolute right to waive any of the conditions of the Offer
and any defect or irregularity in the tender of any particular Shares, and the
Company's interpretation of the terms of the Offer (including these
instructions) will be final and binding on all parties. No tender of Shares
will be deemed to be validly made until all defects and irregularities have
been cured or waived. Unless waived, any defects or irregularities in
connection with tenders must be cured within such time as the Company shall
determine. None of the Company, the Dealer Manager, the Depositary, the
Information Agent or any other person is or will be obligated to give notice
of any defects or irregularities in tenders and none of them will incur any
liability for failure to give any such notice.
9
<PAGE>
11. QUESTIONS AND REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES. Questions
and requests for assistance or additional copies of the Offer to Purchase, the
Notice of Guaranteed Delivery and this Letter of Transmittal may be directed
to the Information Agent at its address and telephone numbers set forth on the
back cover of this Letter of Transmittal or from your broker, dealer,
commercial bank, trust company or other nominee.
12. IRS FORM W-9 AND IRS FORM W-8. Under the federal income tax backup
withholding rules, unless an exemption applies under the applicable law and
regulations, 31% of the gross proceeds payable to a stockholder or other payee
pursuant to the Offer must be withheld and remitted to the United States
Treasury, unless the stockholder or other payee provides his or her taxpayer
identification number (employer identification number or social security
number) to the Depositary and certifies that such number is correct.
Therefore, each tendering stockholder should complete and sign the Substitute
IRS Form W-9 included as part of the Letter of Transmittal so as to provide
the information and certification necessary to avoid backup withholding,
unless such stockholder otherwise establishes to the satisfaction of the
Depositary that he or she is not subject to backup withholding. Certain
stockholders (including, among others, all corporations and certain foreign
stockholders (in addition to foreign corporations)) are not subject to these
backup withholding and reporting requirements. As more fully described in
Instruction 13, in order for a foreign stockholder to qualify as an exempt
recipient, that stockholder must submit an IRS Form W-8 or a Substitute IRS
Form W-8, signed under penalties of perjury, attesting to that stockholder's
exempt status. Such statements can be obtained from the Depositary.
13. WITHHOLDING FOR FOREIGN STOCKHOLDERS. Even if a foreign stockholder has
provided the required certification to avoid backup withholding, the
Depositary will withhold federal income taxes equal to 30% of the gross
payments payable to a foreign stockholder or his or her agent unless the
Depositary determines that a reduced rate of withholding is available pursuant
to a tax treaty or that an exemption from withholding is applicable because
such gross proceeds are effectively connected with the conduct of a trade or
business within the United States. For this purpose, a foreign stockholder is
any stockholder that is not (i) a citizen or resident of the United States,
(ii) a corporation, partnership or other entity created or organized in or
under the laws of the United States, any State or any political subdivision
thereof, (iii) an estate the income of which is subject to United States
federal income taxation regardless of the source of such income, or (iv) any
trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
fiduciaries have the authority to control all substantial decisions relating
to the trust. In order to obtain a reduced rate of withholding pursuant to a
tax treaty, a foreign stockholder must deliver to the Depositary before the
payment a properly completed and executed IRS Form 1001. In order to obtain an
exemption from withholding on the grounds that the gross proceeds paid
pursuant to the Offer are effectively connected with the conduct of a trade or
business within the United States, a foreign stockholder must deliver to the
Depositary a properly completed and executed IRS Form 4224. The Depositary
will determine a stockholder's status as a foreign stockholder and eligibility
for a reduced rate of, or exemption from, withholding by reference to any
outstanding certificates or statements concerning eligibility for a reduced
rate of, or exemption from, withholding (e.g., IRS Form 1001 or IRS Form 4224)
unless facts and circumstances indicate that such reliance is not warranted. A
foreign stockholder may be eligible to obtain a refund of all or a portion of
any tax withheld if such stockholder meets the "complete termination,"
"substantially disproportionate" or "not essentially equivalent to a dividend"
tests described in Section 13 of the Offer to Purchase or is otherwise able to
establish that no tax or a reduced amount of tax is due. Backup withholding
generally will not apply to amounts subject to the 30% or a treaty-reduced
rate of withholding. Foreign stockholders are urged to consult their own tax
advisors regarding the application of federal income tax withholding,
including eligibility for a withholding tax reduction or exemption, and the
refund procedure.
IMPORTANT: THIS LETTER OF TRANSMITTAL, OR A MANUALLY SIGNED FACSIMILE HEREOF
(TOGETHER WITH CERTIFICATES FOR THE SHARES BEING TENDERED AND ALL OTHER
REQUIRED DOCUMENTS), OR A NOTICE OF GUARANTEED DELIVERY MUST BE RECEIVED BY
THE DEPOSITARY PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
STOCKHOLDERS ARE ENCOURAGED TO COMPLETE THE SUBSTITUTE IRS FORM W-9 AS PART OF
THEIR LETTER OF TRANSMITTAL.
10
<PAGE>
TO BE COMPLETED BY ALL STOCKHOLDERS TENDERING SHARES
(SEE INSTRUCTION 12)
PAYER'S NAME: THE BANK OF NEW YORK
- --------------------------------------------------------------------------------
PAYER'S REQUEST FOR TAXPAYER IDENTIFICATION NUMBER
AND CERTIFICATION
--------------------------------------------------------
SUBSTITUTE PLEASE PROVIDE YOUR
TAXPAYER IDENTIFICATION -----------------------
NUMBER ("TIN") IN THE BOX (Social Security No. or
AT RIGHT AND CERTIFY BY Employer
SIGNING AND DATING BELOW Identification No.)
--------------------------------------------------------
FORM W-9 Please check this box if you have applied for and are
awaiting receipt of your TIN [_]
DEPARTMENT OF --------------------------------------------------------
THE TREASURY FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING: If you are
INTERNAL exempt from Backup Withholding for any of the reasons
REVENUE provided on the instructions accompanying this
SERVICE Substitute Form W-9, write "EXEMPT" in the space
provided: . If you are exempt from backup
withholding, you should still complete this form to
PAYER'S REQUEST avoid possible erroneous backup withholding. Enter
FOR TAXPAYER your correct TIN in the box provided, write "EXEMPT"
IDENTIFICATION in the space provided and sign and date the form. If
NUMBER AND you are a nonresident alien or foreign entity not
CERTIFICATION FOR subject to backup withholding, give the requester a
PAYEES EXEMPT completed Form W-8, Certificate of Foreign Status.
FROM BACKUP
WITHHOLDING (SEE
GUIDELINES FOR
CERTIFICATION OF CERTIFICATION--Under penalties of perjury, I certify
TAXPAYER that:
IDENTIFICATION
NUMBER ON (1) The number shown on this form is my correct TIN
SUBSTITUTE FORM (or I am waiting for a TIN to be issued to me),
W-9) and
(2) I am not subject to backup withholding either
because: (a) I am exempt from backup withholding,
or (b) I have not been notified by the Internal
Revenue Service ("IRS") that I am subject to
backup withholding as a result of a failure to
report all interest or dividends, or (c) the IRS
has notified me that I am no longer subject to
backup withholding.
You must cross out item (2) above if you have been
notified by the IRS that you are currently subject to
backup withholding because you have failed to report
all interest and dividends on your tax return. For
real estate transactions, item (2) does not apply.
For mortgage interest paid, acquisition or
abandonment of secured property, cancellation of
debt, contributions to an individual retirement
arrangement and generally, payments other than
interest and dividends, you are not required to sign
the Certification, but you must provide your correct
TIN in the box provided.
The Internal Revenue Services does not require your
consent to any provision of this document other than
the certificates required to avoid backup
withholding.
--------------------------------------------------------
PRINT YOUR NAME:
-------------------------------------
ADDRESS:
---------------------------------------------
SIGNATURE: DATE:
------------------------ ------------
- --------------------------------------------------------------------------------
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP
WITHHOLDING OF 31% ON ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER.
FOR ADDITIONAL DETAILS, PLEASE REVIEW THE ENCLOSED GUIDELINES FOR
CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9.
IF YOU CHECK THE ABOVE BOX OF THIS SUBSTITUTE FORM W-9 INDICATING THAT YOU
ARE AWAITING RECEIPT OF YOUR TAXPAYER IDENTIFICATION NUMBER, YOU MUST SIGN
AND DATE THE FOLLOWING CERTIFICATION.
- --------------------------------------------------------------------------------
CERTIFICATION OF PAYEE AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a Taxpayer Identification Number
has not been issued to me, and that I mailed or delivered an application to
receive a Taxpayer Identification Number to the appropriate IRS Center or
Social Security Administration Office (or I intend to mail or deliver an
application in the near future). I understand that if I do not provide a
Taxpayer Identification Number within 60 days, 31% of all reportable payments
made to me thereafter will be withheld until I provide a number.
---------------------------------- ----------------------------------
Signature Date
- --------------------------------------------------------------------------------
11
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
GUIDELINES FOR DETERMINING THE PROPER IDENTIFICATION NUMBER TO GIVE THE
PAYER.-- Social Security numbers have nine digits separated by two hyphens:
i.e. 000-00-0000. Employer identification numbers have nine digits separated
by only one hyphen: i.e., 00-0000000. The table below will help determine the
number to give the payer.
<TABLE>
<CAPTION>
- -------------------------------------------- ---------------------------------------------
GIVE THE GIVE THE EMPLOYER
SOCIAL SECURITY IDENTIFICATION
FOR THIS TYPE OF ACCOUNT: NUMBER OF-- FOR THIS TYPE OF ACCOUNT: NUMBER OF--
- ----------------------------------------------- ---------------------------------------------
<S> <C> <C> <C>
1. An individual account The individual 6. A valid trust, estate, The legal
2. Two or more individuals The actual owner or pension trust entity(4)
(joint account) of the account 7. Corporate The corporation
or, if combined 8. Association, club, The organization
funds, the first religious, charitable
individual on and educational or
the account(1) other tax-exempt
3. Custodian account of a The minor(2) organization
minor (Uniform Gift to 9. Partnership The partnership
Minors Act) 10. A broker or registered The broker or
4.a. The usual revocable The grantor- nominee nominee
savings trust (grantor trustee(1) 11. Account with the The public
is also trustee) Department of entity
b. So-called trust account The actual Agriculture in the
that is not a legal or owner(1) name of a public
valid trust under state entity (such as a
law state or local
5. Sole proprietorship The owner(3) government, school
district, or prison)
that receives
agricultural program
payments
- -------------------------------------------- ---------------------------------------------
</TABLE>
- -----------------------------------
(1) List first and circle the name of the person whose number you furnish. If
only one person on a joint account has a Social Security number, that
person's number must be furnished.
(2) Circle the minor's name, and furnish the minor's Social Security number.
(3) You must show your individual name, but you may also enter your business
or "doing business as" name. You may use either your Social Security
number or employer identification number (if you have one).
(4) List first and circle the name of the legal trust, estate, or pension
trust. (Do not furnish the TIN of the personal representative or trustee
unless the legal entity itself is not designated in the account title.)
NOTE: If no name is circled when there is more than one name, the number will
be considered to be that of the first name listed.
<PAGE>
GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION
NUMBER ON SUBSTITUTE FORM W-9
PAGE 2
OBTAINING A NUMBER
The Tax Identification Number ("TIN") provided in the Substitute Form W-9
should be that of the tendering stockholder even when such stockholder has
indicated in "Special Payment Instructions" in the Letter of Transmittal that
a certificate for Shares not tendered or not purchased and/or any check for
the aggregate Purchase Price of Shares should be issued in a name other than
that in which the certificate surrendered in exchange therefor is registered.
For a joint account, only the person whose TIN is furnished should sign the
Substitute Form W-9.
TAXPAYER IDENTIFICATION NUMBER
You must enter your TIN in the appropriate box. If you are a resident alien
and do not have and are not eligible to get a Social Security number ("SSN"),
your TIN is your IRS individual taxpayer identification number ("ITIN"). Enter
it in the box provided. If you are a sole proprietor and you have an employer
identification number ("EIN"), you may enter either your SSN or EIN. However,
using your EIN may result in unnecessary notices to the requestor.
HOW TO GET A TIN:
If you do not have a TIN, apply for one immediately. To apply for an SSN, get
FORM SS-5 from your local Social Security Administration office. Get FORM W-7
to apply for an ITIN or FORM SS-4 to apply for an EIN. You can get FORMS W-7
and SS-4 from the IRS by calling 1-800-TAX-FORM (1-800-829-3676).
If you do not have a TIN, write "Applied For" in the space for the TIN, sign
and date form and give it to the requestor. For interest and dividend
payments, you will generally have 60 days to get a TIN and give it to the
requestor. Other payments are subject to backup withholding.
NOTE: Writing "Applied For" means that you have already applied for a TIN OR
that you intend to apply for one soon.
PAYEES EXEMPT FROM BACKUP WITHHOLDING
The following is a list of payees exempt from backup withholding and for which
no information reporting is required with respect to dividend income.
(1) A corporation.
(2) An organization exempt from tax under section 501(a), or an individual
retirement plan, or a custodial account under section 403(b)(7), if the
account satisfies the requirements of section 401(f)(2).
(3) The United States or any of its agencies or instrumentalities.
(4) A State, the District of Columbia, a possession of the United States, or
any of their political subdivisions or instrumentalities.
(5) A foreign government or any of its political subdivisions, agencies or
instrumentalities.
(6) An international organization or any of its agencies or
instrumentalities.
(7) A foreign central bank of issue.
(8) A dealer in securities or commodities required to register in the U.S.,
the District of Columbia or a possession of the U.S.
(9) A real estate investment trust.
(10) An entity registered at all times during the tax year under the
Investment Company Act of 1940.
(11) A common trust fund operated by a bank under section 584(a).
(12) A financial institution.
(13) A middleman known in the investment community as a nominee or listed in
the most recent publication of the American Society of Corporate
Secretaries, Inc., Nominee List.
(14) A trust exempt from tax under section 664 or described in section 4947.
Payments of dividends generally not subject to backup withholding also include
the following:
. Payments to nonresident aliens subject to withholding under section 1441.
. Payments to partnerships not engaged in a trade or business in the U.S.
and that have at least one nonresident partner.
Payments that are not subject to information reporting are also not subject to
backup withholding. For details, see sections 6041, 6041A(a), 6042, 6044,
6045, 6049, 6050A and 6050N, and the regulations under such sections.
If you are a nonresident alien or a foreign entity not subject to backup
withholding, give the payer a completed Form W-8 Certificate of Foreign
Status.
PRIVACY ACT NOTICE
Section 6109 requires certain recipients of dividend, interest or other
payment to give taxpayer identification numbers to payers who must report the
payments to the IRS. The IRS uses the numbers for identification purposes and
to help verify the accuracy of your tax return. The IRS may also provide this
information to the Department of Justice for civil and criminal litigation and
to cities, states and the District of Columbia to carry out their tax laws.
Payers must be given the numbers whether or not recipients are required to
file tax returns. Payers must generally withhold 31% of taxable interest,
dividends and certain other payments to a payee who does not furnish a
taxpayer identification number to a payer. Certain penalties may also apply.
PENALTIES
(1) PENALTY FOR FAILURE TO FURNISH TAXPAYER IDENTIFICATION NUMBER.-- If you
fail to furnish your taxpayer identification number to a requestor, you
are subject to a penalty of $50 for each such failure unless your failure
is due to reasonable cause and not to willful neglect.
(2) CIVIL PENALTY FOR FALSE INFORMATION WITH RESPECT TO WITHHOLDING.--If you
make a false statement with no reasonable basis which results in no
backup withholding, you are subject to a penalty of $500.
(3) CRIMINAL PENALTY FOR FALSIFYING INFORMATION--Wilfully falsifying
certifications or affirmations may subject you to criminal penalties,
including fines and/or imprisonment.
(4) MISUSE OF TINS--If the requestor discloses or uses TINs in violation of
Federal law, the requestor may be subject to civil and criminal
penalties.
FOR ADDITIONAL INFORMATION CONTACT YOUR TAX CONSULTANT OR THE INTERNAL REVENUE
SERVICE.
<PAGE>
THE INFORMATION AGENT FOR THE OFFER IS:
D.F. KING & CO., INC.
77 Water Street
New York, New York 10005-4495
(212) 269-5550 (call collect)
or
CALL TOLL FREE (800) 848-3410
THE DEALER MANAGER FOR THE OFFER IS:
SALOMON BROTHERS INC
Seven World Trade Center
New York, New York 10048
(212) 783-2947
<PAGE>
TELE-COMMUNICATIONS, INC.
FORM OF NOTICE OF GUARANTEED DELIVERY
FOR TENDER OF SHARES OF
SERIES A LIBERTY MEDIA GROUP COMMON STOCK
AND
SERIES B LIBERTY MEDIA GROUP COMMON STOCK
(NOT TO BE USED FOR SIGNATURE GUARANTEES)
This form of Notice of Guaranteed Delivery or one substantially equivalent
hereto must be used to tender shares of Tele-Communications, Inc. Series A
Liberty Media Group Common Stock, par value $1.00 per share ("Series A Liberty
Media Group Common Stock"), and/or Tele-Communications, Inc. Series B Liberty
Media Group Common Stock, par value $1.00 per share ("Series B Liberty Media
Group Common Stock" and, together with the Series A Liberty Media Group Common
Stock, the "Shares"), to Tele-Communications, Inc., a Delaware corporation
(the "Company"), pursuant to the offer described in the Offer to Purchase of
the Company, dated August 19, 1997 (the "Offer to Purchase"), and the related
Letter of Transmittal, which together constitute the "Offer," if certificates
for Shares are not immediately available, if the procedure for book-entry
transfer cannot be completed on a timely basis, or if time will not permit all
other required documents to reach the Depositary (as defined below) on or
prior to 5:00 p.m., New York City time, on Wednesday, September 17, 1997,
unless the Offer is extended (such date as extended from time to time, the
"Expiration Date"). This Notice of Guaranteed Delivery may be delivered by
hand, mail, telegram or facsimile transmission to the Depositary prior to the
Expiration Date. See Section 3 of the Offer to Purchase.
THE DEPOSITARY FOR THE OFFER IS:
THE BANK OF NEW YORK
BY FACSIMILE BY HAND OR OVERNIGHT
BY MAIL: TRANSMISSION: COURIER:
Tender & Exchange (for Eligible Tender & Exchange
Department Institutions only) Department
P.O. Box 11248 Tender & Exchange 101 Barclay Street
Church Street Station Department Receive and Deliver
New York, New York (212) 815-6213 Window
10286-1248 New York, New York
Confirmation of 10286-1248
Facsimile
Transmission ONLY:
(800) 507-9357
DELIVERY OF THIS INSTRUMENT TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR
TRANSMISSION OF INSTRUCTIONS VIA A FACSIMILE TO A NUMBER OTHER THAN AS SET
FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY.
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON WEDNESDAY, SEPTEMBER 17, 1997, UNLESS THE OFFER IS
EXTENDED.
This form of Notice of Guaranteed Delivery is not to be used to guarantee
signatures. If a signature on a Letter of Transmittal is required to be
guaranteed by an Eligible Institution (as defined in the Offer to Purchase)
under the instructions to the Letter of Transmittal, such signature guarantee
must appear in the applicable space provided in the signature box of the
Letter of Transmittal.
<PAGE>
Ladies and Gentlemen:
The undersigned, upon the terms and subject to the conditions set forth in
the Offer to Purchase of Tele- Communications, Inc., a Delaware corporation
(the "Company"), dated August 19, 1997, and the related Letter of Transmittal,
which together constitute the "Offer," receipt of which is hereby
acknowledged, hereby tenders to the Company the shares of Tele-Communications,
Inc. Series A Liberty Media Group Common Stock, par value $1.00 per share (the
"Series A Liberty Media Group Common Stock"), and/or Tele-Communications, Inc.
Series B Liberty Media Group Common Stock, par value $1.00 per share (the
"Series B Liberty Media Group Common Stock" and, together with the Series A
Liberty Media Common Stock, the "Shares"), listed below pursuant to the
guaranteed delivery procedures set forth in Section 3 of the Offer to
Purchase.
THE BOXES BELOW MUST BE COMPLETED
Number of Shares of Series A Liberty Media Group Common Stock Tendered:
--------
Number of Shares of Series B Liberty Media Group Common Stock Tendered:
--------
IDENTIFICATION OF SHARES TO BE TENDERED
<TABLE>
<CAPTION>
STOCK CERTIFICATE NUMBER OF SHARES SERIES OF SHARES REPRESENTED
NUMBER (IF AVAILABLE) TO BE TENDERED BY SUCH CERTIFICATE
--------------------- ---------------- --------------------------------
<S> <C> <C> <C>
---------- ---------- [_] Series A [_] Series B
---------- ---------- [_] Series A [_] Series B
---------- ---------- [_] Series A [_] Series B
---------- ---------- [_] Series A [_] Series B
---------- ---------- [_] Series A [_] Series B
</TABLE>
BOOK-ENTRY TRANSFER
If Shares will be tendered by book-entry transfer, please identify the
transferring institution and the account number:
Transferring Institution:
-------------------------------------
Account Number:
-----------------------------------------------
2
<PAGE>
ODD LOTS
This section is to be completed ONLY if the Shares are being tendered
by or on behalf of a person owning beneficially or of record an
aggregate of fewer than 100 Shares. The undersigned either (check one
box):
[_]is the beneficial or record owner of an aggregate of fewer than 100
Shares, all of which are being tendered; or
[_]is a broker, dealer, commercial bank, trust company, or other
nominee that (a) is tendering for the beneficial owner(s) thereof
Shares with respect to which it is the record holder, and (b)
believes, based upon representations made to it by such beneficial
owner(s), that each such person is the beneficial owner of an
aggregate of fewer than 100 Shares and is tendering all of such
Shares.
Dated: , 1997
-----------------------
Signature(s): Address(es):
------------------------
- ------------------------------------- -------------------------------------
- ------------------------------------- -------------------------------------
Name(s) of Record Holder(s): (Zip Code)
Area Code and
Telephone Number(s):
- ------------------------------------- ----------------
- ------------------------------------- -------------------------------------
Please Print
-------------------------------------
Social Security or Taxpayer ID Number(s):
- -------------------------------------
- -------------------------------------
3
<PAGE>
GUARANTEED DELIVERY
(Not to be used for signature guarantees)
The undersigned, a member firm of a registered national securities exchange,
a member of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company (not a savings bank or savings and loan
association) having an office, branch or agency in the United States, hereby
guarantees that the Depositary will receive (i) certificates for such number
of Shares as indicated above, in proper form for transfer, or a book-entry
confirmation of the book-entry transfer of such Shares into the Depositary's
account at one of the Book-Entry Transfer Facilities, (ii) a properly
completed and duly executed Letter of Transmittal (or manually signed
facsimile thereof), with any required signature guarantees, or in the case of
book-entry transfer of tendered Shares, an Agent's Message, and (iii) any
other documents required by the Letter of Transmittal, all within three Nasdaq
trading days after the date of execution of this Notice of Guaranteed Delivery
set forth below (each of such capitalized terms, as defined in the Offer to
Purchase).
- ------------------------------------- -------------------------------------
Name of Firm
Address
- ------------------------------------- -------------------------------------
Authorized Signature
Zip Code
- ------------------------------------- -------------------------------------
Name (Please Print)
Area Code and Telephone No.
Dated: , 1997
- ------------------------------------- -----------------------
Title
NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS FORM; SUCH CERTIFICATES
SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.
4
<PAGE>
TELE-COMMUNICATIONS, INC.
OFFER TO PURCHASE FOR CASH
SHARES OF ITS SERIES A LIBERTY MEDIA GROUP COMMON STOCK
AND
SERIES B LIBERTY MEDIA GROUP COMMON STOCK
UP TO 10,000,000 SHARES IN THE AGGREGATE
AT $27 NET PER SHARE
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON WEDNESDAY, SEPTEMBER 17, 1997, UNLESS THE OFFER IS
EXTENDED.
August 19, 1997
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
Tele-Communications, Inc., a Delaware corporation (the "Company"), has
appointed us to act as Dealer Manager in connection with its offer to purchase
shares of its Tele-Communications, Inc. Series A Liberty Media Group Common
Stock, par value $1.00 per share, and shares of its Tele-Communications, Inc.
Series B Liberty Media Group Common Stock, par value $1.00 per share
(collectively, the "Shares"), up to 10,000,000 Shares in the aggregate, at $27
per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in its Offer to Purchase, dated August 19, 1997 (the
"Offer to Purchase"), and in the related Letter of Transmittal, which together
constitute the "Offer." Terms used herein and not otherwise defined shall have
the meanings ascribed thereto in the Offer to Purchase.
THE OFFER IS NOT CONDITIONED ON ANY MINIMUM NUMBER OF SHARES BEING TENDERED.
THE OFFER IS, HOWEVER, SUBJECT TO CERTAIN OTHER CONDITIONS. SEE SECTION 6 OF
THE OFFER TO PURCHASE.
For your information and for forwarding to your clients for whom you hold
Shares registered in your name or in the name of your nominee, we are
enclosing the following documents:
1.The Offer to Purchase, dated August 19, 1997;
2.The Letter of Transmittal for your use and for the information of your
clients (including a Substitute IRS Form W-9);
3.The Form of Notice of Guaranteed Delivery to be used to accept the
Offer if the certificates representing Shares and all other required
documents cannot be delivered to The Bank of New York (the "Depositary") by
5:00 p.m., New York City time, on the Expiration Date, or if the procedures
for book-entry transfer cannot be completed on a timely basis;
4.A letter that may be sent to your clients for whose accounts you hold
Shares registered in your name or in the name of your nominee, with space
provided for obtaining such clients' instructions with regard to the Offer;
5.Guidelines for Certification of Taxpayer Identification Number on
Substitute Form W-9 providing information relating to backup federal income
tax withholding (included in the Letter of Transmittal); and
6. A return envelope addressed to the Depositary.
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. THE OFFER,
PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON WEDNESDAY, SEPTEMBER 17, 1997, UNLESS THE OFFER IS EXTENDED.
No fees or commissions will be payable to brokers, dealers or other persons
for soliciting tenders of Shares pursuant to the Offer other than fees paid to
the Dealer Manager, the Depositary or D.F. King & Co., Inc. (the "Information
Agent") as described in the Offer to Purchase. The Company will,
<PAGE>
however, upon request, reimburse brokers, dealers and commercial banks for
customary mailing and handling expenses incurred by such persons in forwarding
the Offer and related materials to the beneficial owners of Shares held by such
persons as a nominee or in a fiduciary capacity. The Company will pay or cause
to be paid any stock transfer taxes applicable to its purchase of Shares,
except as otherwise provided in Instruction 6 of the Letter of Transmittal.
In order to take advantage of the Offer, a duly executed and properly
completed Letter of Transmittal (or, in the case of book-entry transfer, an
Agent's Message) and any other documents required by the Letter of Transmittal
should be sent to the Depositary with either certificate(s) representing the
tendered Shares or confirmation of their book-entry transfer into the
Depositary's account at one of the Book-Entry Transfer Facilities, all in
accordance with the instructions set forth in the Letter of Transmittal and the
Offer to Purchase.
As described in Section 3 of the Offer to Purchase, tenders may be made
without the concurrent deposit of stock certificates or concurrent compliance
with the procedure for book-entry transfer, if such tenders are made by or
through a broker or dealer which is a member firm of a registered national
securities exchange, a member of the National Association of Securities
Dealers, Inc. or a commercial bank or trust company (not a savings bank or
savings and loan association) having an office, branch or agency in the United
States. Certificates for Shares so tendered or a confirmation of a book-entry
transfer of such Shares into the Depositary's account at one of the Book-Entry
Transfer Facilities, together with a properly completed and duly executed
Letter of Transmittal, or, in the case of book-entry transfer, an Agent's
Message, and any other documents required by the Letter of Transmittal, must be
received by the Depositary within three Nasdaq trading days after timely
receipt by the Depositary of a properly completed and duly executed Notice of
Guaranteed Delivery.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
STOCKHOLDERS AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING THEIR SHARES OF
SERIES A LIBERTY MEDIA GROUP COMMON STOCK OR SERIES B LIBERTY MEDIA GROUP
COMMON STOCK. EACH STOCKHOLDER MUST MAKE THE DECISION WHETHER TO TENDER SHARES
AND, IF SO, HOW MANY SHARES TO TENDER. THE COMPANY HAS BEEN ADVISED THAT NONE
OF ITS DIRECTORS OR EXECUTIVE OFFICERS INTENDS TO TENDER ANY SHARES PURSUANT TO
THE OFFER.
Any questions or requests for additional copies of the enclosed material may
be directed to the Information Agent at its address and telephone number set
forth on the back cover of the enclosed Offer to Purchase.
Very truly yours,
Salomon Brothers Inc
Enclosures
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL CONSTITUTE YOU OR
ANY OTHER PERSON AS AN AGENT OF THE COMPANY OR ANY OF ITS AFFILIATES, THE
DEALER MANAGER, THE INFORMATION AGENT OR THE DEPOSITARY, OR AUTHORIZE YOU OR
ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF
THEM IN CONNECTION WITH THE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH
AND THE STATEMENTS CONTAINED THEREIN.
2
<PAGE>
TELE-COMMUNICATIONS, INC.
OFFER TO PURCHASE FOR CASH
SHARES OF ITS SERIES A LIBERTY MEDIA GROUP COMMON STOCK
AND
SERIES B LIBERTY MEDIA GROUP COMMON STOCK
UP TO 10,000,000 SHARES IN THE AGGREGATE
AT $27 NET PER SHARE
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON WEDNESDAY, SEPTEMBER 17, 1997, UNLESS THE OFFER IS
EXTENDED.
August 19, 1997
To Our Clients:
Enclosed for your consideration is the Offer to Purchase (the "Offer to
Purchase") of Tele-Communications, Inc., a Delaware corporation (the
"Company"), dated August 19, 1997, and the related Letter of Transmittal,
which together constitute the "Offer," relating to the Company's offer to
purchase shares of its Tele-Communications, Inc. Series A Liberty Media Group
Common Stock, par value $1.00 per share, and shares of its Tele-
Communications, Inc. Series B Liberty Media Group Common Stock, par value
$1.00 per share (collectively, the "Shares"), up to 10,000,000 Shares in the
aggregate, at $27 per Share, net to the seller in cash, upon the terms and
subject to the conditions set forth in the Offer. Also enclosed herewith is
certain other material related to the Offer. Terms used herein and not
otherwise defined shall have the meanings ascribed thereto in the Offer to
Purchase.
If, prior to the Expiration Date, more than 10,000,000 Shares (or such
greater number of Shares as the Company may elect to purchase) are validly
tendered and not properly withdrawn, the Company will, upon the terms and
subject to the conditions of the Offer, accept Shares for purchase (a) first,
from Odd Lot Holders whose Shares are validly tendered and not properly
withdrawn; and (b) then, on a pro rata basis from all other stockholders whose
Shares are validly tendered and not properly withdrawn. See Sections 1 and 3
of the Offer to Purchase.
WE ARE THE OWNER OF RECORD OF SHARES HELD FOR YOUR ACCOUNT. AS SUCH, WE ARE
THE ONLY ONES WHO CAN TENDER YOUR SHARES, AND THEN ONLY PURSUANT TO YOUR
INSTRUCTIONS. WE ARE SENDING YOU THE LETTER OF TRANSMITTAL FOR YOUR
INFORMATION ONLY; YOU CANNOT USE THE LETTER OF TRANSMITTAL TO TENDER SHARES WE
HOLD FOR YOUR ACCOUNT.
Please instruct us as to whether you wish us to tender any or all of the
Shares we hold for your account upon the terms and subject to the conditions
of the Offer.
We call your attention to the following:
1. The tender price is $27 per Share, as indicated in the attached
Instruction Form, net to you in cash.
2. The Offer is extended for up to 10,000,000 Shares. The Offer is not
conditioned upon any minimum number of Shares being tendered. The Offer is,
however, subject to certain other conditions set forth in the Offer to
Purchase.
3. The Offer, proration period and withdrawal rights will expire at 5:00
p.m., New York City time, on Wednesday, September 17, 1997, unless the
Offer is extended. Your Instruction Form should be forwarded to us in ample
time to permit us to submit a tender on your behalf on or before the
Expiration Date of the Offer.
<PAGE>
4. Tendering stockholders will not be obligated to pay any brokerage
commissions, solicitation fees, or, subject to Instruction 6 of the Letter
of Transmittal, stock transfer taxes on the Company's purchase of Shares
pursuant to the Offer.
5. If you hold beneficially or of record an aggregate of fewer than 100
Shares, and you instruct us to tender on your behalf all such Shares prior
to the Expiration Date and complete the item captioned "Odd Lots" in the
attached Instruction Form, the Company, upon the terms and subject to the
conditions of the Offer, will accept all such Shares for purchase before
proration, if any, of the purchase of other Shares validly tendered and not
properly withdrawn prior to the Expiration Date.
6. As described in Section 1 of the Offer to Purchase, if more than
10,000,000 Shares have been validly tendered and not properly withdrawn
prior to the Expiration Date, the Company will purchase validly tendered
Shares in the following order of priority:
(a) first, all Shares validly tendered and not properly withdrawn
prior to the Expiration Date by any Odd Lot Holder who:
(1) tenders all Shares owned beneficially or of record by such Odd
Lot Holder (tenders of less than all Shares owned by such a
stockholder will not qualify for this preference); and
(2) completes the item captioned "Odd Lots" on the Letter of
Transmittal and, if applicable, on the Notice of Guaranteed
Delivery; and
(b) then, after purchase of all of the foregoing Shares, all other
Shares validly tendered and not properly withdrawn prior to the
Expiration Date, on a pro rata basis (with appropriate adjustments to
avoid purchases of fractional Shares) as described in Section 1 of the
Offer to Purchase.
The Offer is being made to all holders of Shares. The Company is not aware
of any jurisdiction where the making of the Offer is not in compliance with
applicable law. If the Company becomes aware of any jurisdiction where making
the Offer is not in compliance with any valid applicable law, the Company will
make a good faith effort to comply with such law. If, after such good faith
effort, the Company cannot comply with such law, the Offer will not be made to
(nor will tenders be accepted from or on behalf of) the holders of Shares
residing in such jurisdiction. In any jurisdiction the securities or blue sky
laws of which require the Offer to be made by a licensed broker or dealer, the
Offer is being made on the Company's behalf by Salomon Brothers Inc or one or
more registered brokers or dealers licensed under the laws of such
jurisdiction.
If you wish to have us tender any or all of your Shares, please so instruct
us by completing, executing, detaching and returning to us the attached
Instruction Form. An envelope to return your Instruction Form to us is
enclosed. If you authorize us to tender your Shares, we will tender all such
Shares unless you specify otherwise on the attached Instruction Form. YOUR
INSTRUCTION FORM SHOULD BE FORWARDED TO US IN AMPLE TIME TO PERMIT US TO
SUBMIT A TENDER ON YOUR BEHALF ON OR BEFORE THE EXPIRATION DATE OF THE OFFER.
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M.,
NEW YORK CITY TIME, ON WEDNESDAY, SEPTEMBER 17, 1997, UNLESS THE OFFER IS
EXTENDED.
2
<PAGE>
INSTRUCTION FORM
TELE-COMMUNICATIONS, INC.
OFFER TO PURCHASE FOR CASH
SHARES OF ITS SERIES A LIBERTY MEDIA GROUP COMMON STOCK
AND
SERIES B LIBERTY MEDIA GROUP COMMON STOCK
UP TO 10,000,000 SHARES IN THE AGGREGATE
AT $27 NET PER SHARE
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer
to Purchase, dated August 19, 1997, and the related Letter of Transmittal,
which together constitute the "Offer," relating to the offer by Tele-
Communications, Inc., a Delaware corporation (the "Company"), to purchase
shares of its Tele-Communications, Inc. Series A Liberty Media Group Common
Stock, par value $1.00 per share, and shares of its Tele-Communications, Inc.
Series B Liberty Media Group Common Stock, par value $1.00 per share
(collectively, the "Shares"), up to 10,000,000 Shares in the aggregate, at $27
per Share, net to the seller in cash, upon the terms and subject to the
conditions set forth in the Offer.
Please tender to the Company, on (our) (my) behalf, the number of Shares
indicated below, which are beneficially owned by (us) (me) and registered in
your name, upon the terms and subject to the conditions contained in the
Offer.
- --------------------------------------------------------------------------------
NUMBER OF SHARES TO BE TENDERED*
Number of Shares of Series A Liberty Media Group Common Stock Tendered:
---------
Number of Shares of Series B Liberty Media Group Common Stock Tendered:
---------
* Unless otherwise indicated, it will be assumed that all Shares held by us for
your account are to be tendered.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ODD LOTS
[_] By checking this box the undersigned represents that the undersigned owns,
beneficially or of record, an aggregate of fewer than 100 Shares and is
tendering all of such Shares.
-------------------------------------------------------------------------------
THE METHOD OF DELIVERY OF THIS DOCUMENT IS AT THE OPTION AND RISK OF THE
TENDERING STOCKHOLDER. IF DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN
RECEIPT REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, SUFFICIENT
TIME SHOULD BE ALLOWED TO ASSURE DELIVERY.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
STOCKHOLDERS AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING THEIR SHARES OF
SERIES A LIBERTY MEDIA GROUP COMMON STOCK OR SERIES B LIBERTY MEDIA GROUP
COMMON STOCK. EACH STOCKHOLDER MUST MAKE THE DECISION WHETHER TO TENDER SHARES
AND, IF SO, HOW MANY SHARES TO TENDER. THE COMPANY HAS BEEN ADVISED THAT NONE
OF ITS DIRECTORS OR EXECUTIVE OFFICERS INTENDS TO TENDER ANY SHARES PURSUANT
TO THE OFFER.
Dated: , 1997
-------------------------
Signature(s): Address(es):
-------------------------
- -------------------------------------
-------------------------------------
- ------------------------------------- (Zip Code)
Name(s): Area Code and
Telephone Number(s):
- ------------------------------------- -----------------
- ------------------------------------- -------------------------------------
Please Print
Social Security or Taxpayer ID Number(s):
- -------------------------------------
- -------------------------------------
3
<PAGE>
================================================================================
This announcement is neither an offer to purchase nor a solicitation of an offer
to sell Shares. The Offer is made solely by the Offer to Purchase and the
related Letter of Transmittal which are being mailed to holders of shares of
Tele-Communications, Inc. Series A Liberty Media Group Common Stock and
Tele-Communications, Inc. Series B Liberty Media Group Common Stock on or about
August 19, 1997. This Offer is not being made to, and tenders will not be
accepted from or on behalf of, such holders in any jurisdiction where the making
of the Offer would not be in compliance with the laws of such jurisdiction. In
those jurisdictions whose laws require the Offer to be made by a licensed broker
or dealer, the Offer shall be deemed to be made on behalf of the Company by
Salomon Brothers Inc, or one or more registered brokers or dealers licensed
under the laws of such jurisdiction.
NOTICE OF OFFER TO PURCHASE FOR CASH
BY
TELE-COMMUNICATIONS, INC.
SHARES OF ITS
SERIES A LIBERTY MEDIA GROUP COMMON STOCK
AND
SERIES B LIBERTY MEDIA GROUP COMMON STOCK
UP TO 10,000,000 SHARES IN THE AGGREGATE
AT $27 NET PER SHARE
Tele-Communications, Inc., a Delaware corporation (the "Company"), invites
its stockholders to tender shares of Tele-Communications, Inc. Series A Liberty
Media Group Common Stock, par value $1.00 per share (the "Series A Liberty Media
Group Common Stock"), and shares of Tele-Communications, Inc. Series B Liberty
Media Group Common Stock, par value $1.00 per share (the "Series B Liberty Media
Group Common Stock" and, together with the Series A Liberty Media Group Common
Stock, the "Liberty Media Group Common Stock" or the "Shares"), up to 10,000,000
Shares in the aggregate, at $27 per Share, net to the seller in cash, upon the
terms and subject to the conditions set forth in the Company's Offer to
Purchase, dated August 19, 1997 (the "Offer to Purchase"), and in the related
Letter of Transmittal, which together constitute the "Offer." The Company
reserves the right, in its sole discretion, to purchase more than 10,000,000
Shares in the aggregate pursuant to the Offer.
The Company expressly reserves the right, in its sole discretion, at any
time and from time to time to extend the period of time during which the Offer
is open and thereby delay acceptance for payment of, and payment for, any Shares
by giving oral or written notice of such extension to The Bank of New York (the
"Depositary") and making a public announcement thereof. The term "Expiration
Date" means 5:00 p.m., New York City time, on Wednesday, September 17, 1997,
unless and until the Company, in its sole discretion, shall have extended the
period of time during which the Offer will remain open, in which event the term
"Expiration Date" shall refer to the latest time and date at which the Offer, as
so extended by the Company, shall expire.
-----------------------------------------------------------------
THE OFFER, PRORATION PERIOD AND WITHDRAWAL RIGHTS WILL EXPIRE AT
5:00 P.M., NEW YORK CITY TIME, ON WEDNESDAY, SEPTEMBER 17, 1997,
UNLESS THE OFFER IS EXTENDED.
-----------------------------------------------------------------
The Offer is not conditioned on any minimum number of Shares being
tendered. The Offer is, however, subject to certain other conditions set forth
in the Offer to Purchase.
Upon the terms and subject to the conditions of the Offer, the Company will
purchase up to 10,000,000 Shares as are validly tendered (and not properly
withdrawn in accordance with the Offer to Purchase) at $27 per Share, net to the
seller in cash.
As described in the Offer to Purchase, if more than 10,000,000 Shares have
been validly tendered and not properly withdrawn prior to the Expiration Date,
the Company will purchase validly tendered Shares on the following basis: (a)
first, all Shares validly tendered and not properly withdrawn prior to the
Expiration Date by any Odd Lot Holder (as defined in the Offer to Purchase) who:
(1) tenders all Shares owned, beneficially or of record, by such Odd Lot Holder
(tenders of less than all Shares owned by such a stockholder will not qualify
for this preference); and (2) completes the item captioned "Odd Lots" on the
Letter of Transmittal and, if applicable, on the Notice of Guaranteed Delivery;
and (b) then, after purchase of all of the foregoing Shares, all other Shares
validly tendered and not properly withdrawn prior to the Expiration Date, on a
pro rata basis (with appropriate adjustments to avoid purchases of fractional
Shares) as described in the Offer to Purchase. The Company also reserves the
right, but will not be obligated, to purchase all Shares tendered by any
stockholder who tendered all Shares owned, beneficially or of record, by such
stockholder and who, as a result of proration, would then own, beneficially or
of record, an aggregate of fewer than 100 Shares. If the Company exercises this
right, it will increase the number of Shares that it is offering to purchase by
the number of Shares purchased through the exercise of such right.
<PAGE>
For purposes of the Offer, the Company will be deemed to have accepted for
payment (and therefore purchased) Shares that are validly tendered and not
properly withdrawn (subject to the proration provisions of the Offer) only when,
as and if it gives oral or written notice to the Depositary of its acceptance of
such Shares for payment pursuant to the Offer. In all cases, payment for Shares
tendered and accepted for payment pursuant to the Offer will be made only after
timely receipt by the Depositary of certificates for such Shares or confirmation
of book-entry transfer of such Shares into the Depositary's account at a
Book-Entry Transfer Facility (as defined in the Offer to Purchase), a properly
completed and duly executed Letter of Transmittal (or manually signed facsimile
thereof) or, in the case of book-entry transfer of tendered Shares, an Agent's
Message (as defined in the Offer to Purchase), and any other documents required
by the Letter of Transmittal.
Shares tendered pursuant to the Offer may be withdrawn at any time prior to
the Expiration Date and, unless theretofore accepted for payment by the Company
pursuant to the Offer, may also be withdrawn at any time after 12:00 Midnight,
New York City time, on Wednesday, October 15, 1997. For a withdrawal to be
effective, a notice of withdrawal must be in written, telegraphic or facsimile
transmission form and must be received in a timely manner by the Depositary at
one of its addresses set forth on the back cover of the Offer to Purchase. Any
such notice of withdrawal must specify the name of the tendering stockholder,
the name of the registered holder, if different from that of the person who
tendered such Shares, the number of Shares tendered and the number of Shares to
be withdrawn. If the certificates for Shares to be withdrawn have been delivered
or otherwise identified to the Depositary, then, prior to the release of such
certificates, the tendering stockholder must also submit the serial numbers
shown on the particular certificates for Shares to be withdrawn and the
signature on the notice of withdrawal must be guaranteed by an Eligible
Institution (as defined in the Offer to Purchase) (except in the case of Shares
tendered by an Eligible Institution). If Shares have been tendered pursuant to
the procedure for book-entry transfer set forth in the Offer to Purchase, the
notice of withdrawal also must specify the name and the number of the account at
the applicable Book-Entry Transfer Facility to be credited with the withdrawn
Shares and otherwise comply with the procedures of such facility.
The Offer is part of the Company's previously announced plan to buy back up
to 55,500,000 shares of Liberty Media Group Common Stock, of which 7,277,202
shares of Series A Liberty Media Group Common Stock and 2,278,125 shares of
Series B Liberty Media Group Common Stock have been repurchased since such
announcement was made on August 15, 1996. The Board of Directors has determined
that the financial condition and outlook of the Company and the businesses that
comprise the Liberty Media Group and current market conditions, including recent
trading prices of the Shares, make this an attractive time to repurchase a
significant portion of the outstanding Shares, taking into account the increased
interest expense associated with the borrowing required in connection with the
Offer. In the view of the Board of Directors, the Offer represents an
acceleration of what would otherwise have been a continuing Share repurchase
program and a prudent use of the Liberty Media Group's financial resources that
should benefit the Company and the holders of Liberty Media Group Common Stock
over the long term. In particular, the Board of Directors believes that the
purchase of Shares at this time is consistent with the Company's long-term
corporate goal of seeking to increase stockholder value.
The Offer provides stockholders who are considering a sale of all or a
portion of their Shares with the opportunity, upon the terms and subject to the
conditions of the Offer, to sell those Shares for cash without the usual
transaction costs associated with market sales. In addition, stockholders owning
fewer than 100 Shares whose Shares are purchased pursuant to the Offer not only
will avoid the payment of brokerage commissions but also will avoid any
applicable Odd Lot discounts payable on a sale of their Shares. Stockholders who
determine not to accept the Offer will realize a proportionate increase in their
relative equity interest in the Company, subject to the Company's right to issue
additional Shares and other equity securities in the future.
NEITHER THE COMPANY NOR ITS BOARD OF DIRECTORS MAKES ANY RECOMMENDATION TO
STOCKHOLDERS AS TO WHETHER TO TENDER OR REFRAIN FROM TENDERING THEIR SHARES OF
SERIES A LIBERTY MEDIA GROUP COMMON STOCK OR SERIES B LIBERTY MEDIA GROUP COMMON
STOCK. EACH STOCKHOLDER MUST MAKE THE DECISION WHETHER TO TENDER SHARES AND, IF
SO, HOW MANY SHARES TO TENDER. THE COMPANY HAS BEEN ADVISED THAT NONE OF ITS
DIRECTORS OR EXECUTIVE OFFICERS INTENDS TO TENDER ANY SHARES PURSUANT TO THE
OFFER.
THE OFFER TO PURCHASE AND THE LETTER OF TRANSMITTAL CONTAIN IMPORTANT
INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY TENDERS ARE MADE. The
information required to be disclosed by Rule 13e-4(d)(1) under the Securities
Exchange Act of 1934, as amended, is contained in the Offer to Purchase and is
incorporated herein by reference. The Offer to Purchase and the related Letter
of Transmittal are being mailed to record holders of Shares and are being
furnished to brokers, banks and similar persons whose names, or the names of
whose nominees, appear on the Company's stockholder list or, if applicable, who
are listed as participants in a clearing agency's security position listing for
subsequent transmittal to beneficial owners of Shares.
Any questions or requests for assistance or additional copies of the Offer
to Purchase, the Letter of Transmittal or the Notice of Guaranteed Delivery may
be directed to the Information Agent at its address and telephone numbers listed
below. Stockholders may also contact their local broker, dealer, commercial
bank, trust company or nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
<PAGE>
D. F. KING & CO., INC.
77 Water Street
New York, NY 10005
(212) 269-5500 (call collect)
or Call Toll Free (800) 848-3410
The Dealer Manager for the Offer is:
SALOMON BROTHERS INC
Seven World Trade Center
New York, NY 10048
(212) 783-2947
August 19, 1997
================================================================================
<PAGE>
Exhibit (a)(7)
LIBERTY MEDIA GROUP
FOR IMMEDIATE RELEASE
August 18, 1997
LIBERTY MEDIA GROUP REPORTS QUARTER-END RESULTS AND ANNOUNCES
COMMENCEMENT OF ISSUER TENDER OFFER FOR UP TO 10 MILLION SHARES
Englewood, Colorado .... Liberty Media Group ("Liberty"), a unit of
Tele-Communications, Inc. ("TCI") today reported its financial results for the
quarter ended June 30, 1997. These results are included with the TCI Form 10-Q
filed with the Securities and Exchange Commission ("SEC") on August 13, 1997.
CONSOLIDATED RESULTS
- --------------------
A significant portion of Liberty's activities are conducted through its
interests in entities that are not consolidated subsidiaries. These entities
include Time Warner Inc. ("Time Warner") (NYSE:TWX), Discovery Communications,
Inc. ("DCI"), all of Liberty's sports businesses, QVC Inc. ("QVC"), HSN, Inc.
("HSNI") (NASDAQ:HSNI) (after December 20, 1996), BET Holdings, Inc. (NYSE:BTV),
Courtroom Television Network, E! Entertainment Television, Inc. ("E!
Entertainment") and International Family Entertainment ("IFE") (NYSE:FAM). The
financial information reported in this section of the release does not include
the results of these non-consolidated entities, except as they affect Liberty's
interest in the earnings of affiliates.
For the quarter ended June 30, 1997, Liberty reported total revenues of $60
million compared to $322 million reported for the same period in 1996. Liberty's
operating income before depreciation, amortization and charges related to
phantom rights and stock appreciation rights ("cash flow") was $13 million for
the second quarter of 1997 compared to $38 million for the same period in 1996.
Liberty posted net earnings in the second quarter of 1997 of $7 million compared
to net earnings of $4 million for the same period in 1996.
The decrease in revenue and cash flow compared to the second quarter of 1996 is
attributable to the following transactions which occurred during fiscal year
1996. Following the formation of the Fox/Liberty Networks LLC ("Fox/Liberty
Sports") joint venture in April 1996, Liberty's regional sports businesses are
no longer consolidated with the financial results of Liberty. Further, Home
Shopping Network, Inc. ("HSN") operations are no longer consolidated with the
financial results of Liberty as of December 20, 1996 as a result of the mergers
of HSN and Savoy Pictures Entertainment, Inc. ("Savoy") with Silver King
Communications, Inc. ("Silver King") (the "Silver King Mergers"). Finally, Intro
Television's operations were discontinued as of January 1, 1997.
- 1 -
<PAGE>
ATTRIBUTED FINANCIAL REPORT
- ---------------------------
Due to the significant number of non-consolidated affiliates included in the
assets attributed to Liberty, Liberty's combined statements of operations are
not necessarily indicative of the underlying results of all the businesses in
which Liberty owns an economic interest. As a supplement to the combined
statements of operations, the following is a presentation of Liberty's results
by business segment, based on its attributable interest in the performance of
its affiliated companies.
The attached attributed statements of operations represent the aggregation of
(i) Liberty's economic percentage ownership interest in each of its affiliates
that is accounted for either as a consolidated subsidiary or an equity affiliate
as of the end of each period multiplied by (ii) the individual income statement
of the respective affiliate. This aggregation is then subdivided into Liberty's
five principal business segments. Investments accounted for under the cost
method are excluded from the statements. The largest of these cost investments
are Time Warner, IFE, and E! Entertainment. Because of acquisitions and other
transactional activity, not all of the affiliates included in the June 30, 1997
statement are included in the prior period statements.
AGGREGATE ATTRIBUTED RESULTS
- ----------------------------
NOTE: The following attributed statements of operations were not prepared in
accordance with generally accepted accounting principles, and are intended
solely to provide additional information to investors. They should be reviewed
in conjunction with Liberty's combined financial statements included in the TCI
Form 10-Q referenced above. All references to revenue, expenses and cash flow
are on an attributed basis, calculated as described above. Liberty's economic
interest in its equity affiliates does not represent control of such entities.
Accordingly, Liberty could not, among other things, cause any such affiliate to
distribute to Liberty its attributed share of the revenue or earnings of such
affiliate.
- --------------------------------------------------------------------------------
Liberty Media Group
Attributed Statement of Operations
(unaudited)
<TABLE>
<CAPTION>
Three months ended
Q2 '97 Q2 '96
------ ------
amounts in millions
<S> <C> <C>
Revenue $ 640 543
Operating expenses (573) (472)
-------------- ---------------
Cash flow 67 71
-------------- ---------------
Phantom rights and
stock appreciation rights (14) (6)
Depreciation & amortization (25) (23)
-------------- ---------------
Operating income 28 42
-------------- ---------------
Interest expense (15) (15)
Other, net (4) (18)
-------------- ---------------
Earnings before income tax $ 9 9
============== ===============
</TABLE>
- --------------------------------------------------------------------------------
- 2 -
<PAGE>
Movie Services
- --------------
- --------------------------------------------------------------------------------
MOVIES
<TABLE>
<CAPTION>
Three months ended
Q2 '97 Q2 '96
------ ------
amounts in millions
<S> <C> <C>
Revenue $ 74 40
Operating expenses (79) (44)
-------------- --------------
Cash flow (deficit) (5) (4)
-------------- --------------
Phantom stock appreciation rights - (6)
Depreciation & amortization (1) (1)
-------------- --------------
Operating loss (6) (11)
-------------- --------------
Interest expense - -
Other, net - -
-------------- --------------
Loss before income tax $ (6) (11)
============== ==============
</TABLE>
- --------------------------------------------------------------------------------
The principal businesses in the Movie Services segment are Encore and STARZ!. In
the second quarter of 1997, Encore's revenue was 38% higher than in the same
period of 1996 as revenue from TCI, cable affiliates other than TCI, and DBS
grew by 34%, 138%, and 15%, respectively. Most of the increase was attributable
to growth in the number of subscription units of Encore's services. The share of
total revenue generated by TCI declined from 27% in the second quarter of 1996
to 26% in the second quarter of 1997. The share of total revenue generated by
cable affiliates other than TCI increased during the same period from 7% to 12%.
Compared to the second quarter of 1996, Encore's cash flow decreased by 87%.
Operating expenses increased by 114%, in large part due to a national consumer
awareness campaign which was initiated in the second quarter of 1997. In
addition, programming expenses increased by 19% due to purchases of more current
film rights and the hiring of additional personnel to increase the quality of
interstitial programming shown between feature presentations.
STARZ! revenue for the second quarter of 1997 increased by 158% compared to the
second quarter of 1996. Approximately 58% of this increase was due to
contractual increases in payments from TCI. The remaining increase was due to a
1.9 million increase in subscribers from DBS, TVRO and cable affiliates other
than TCI. For the second quarter of 1997, revenue from cable affiliates other
than TCI represented 11% of total STARZ! revenue compared to 4% for the same
period last year.
As expected, STARZ! continues to generate a substantial cash flow deficit;
however, the cash flow deficit was reduced by 58% compared to the second quarter
of 1996. The reduction in the cash flow deficit is mainly due to the
aforementioned revenue increases, offset by a 38% increase in expenses,
principally related to the commencement of a national consumer awareness
campaign.
During July 1997, Liberty, TCI and JJS Communications Inc. completed the
previously announced combination of Encore and STARZ! businesses (the
"Encore/STARZ! Combination") into Encore Media Group ("EMG"). As a result of the
transaction, EMG is owned 80% by Liberty and 20% by TCI Group. In the second
quarter of 1996, assuming the Encore/STARZ! Combination had been completed prior
to the second quarter of 1996, pro forma attributed Movie Services revenue,
operating expenses and cash flow deficit in that period would have been $38
million, $51 million and $13 million, respectively. In the second quarter of
1997, pro forma attributed revenue, operating expenses and cash flow deficit
would have been $71 million, $77 million, and $6 million, respectively.
- 3 -
<PAGE>
Movie Services' attributed debt equaled $135 million as of June 30, 1997,
substantially all of which ($124 million) consisted of preferred contributions
to STARZ! by a member of the TCI Group. Such debt was contributed to EMG in the
Encore/STARZ! Combination.
Entertainment and Information Services
- --------------------------------------
- --------------------------------------------------------------------------------
ENTERTAINMENT & INFORMATION
<TABLE>
<CAPTION>
Three months ended
Q2 '97 Q2 '96
------ ------
amounts in millions
<S> <C> <C>
Revenue $ 121 93
Operating expenses (103) (72)
------------ -----------
Cash flow 18 21
------------ -----------
Depreciation & amortization (4) (2)
------------ -----------
Operating income 14 19
------------ -----------
Interest expense (4) (3)
Other, net - (5)
------------ -----------
Earnings before income tax $ 10 11
============ ===========
</TABLE>
- --------------------------------------------------------------------------------
DCI comprised approximately 83% of the revenue of this segment for the quarter
ended June 30, 1997. Its revenue during the quarter increased by 43% from the
same period last year. In the second quarter comparison, Discovery Channel
("TDC") revenue grew by 20%, The Learning Channel ("TLC") by 36%, DCI's
international businesses by 46% and revenue from other businesses by 314%. The
increase from other businesses was mainly due to the acquisition of The Nature
Company which occurred at the end of the second quarter of 1996. As of June 30,
1997, TDC and TLC subscribers increased by 5% and 21%, respectively, compared to
June 30, 1996.
TDC revenue growth over the second quarter of 1996 consisted of a 24% increase
in affiliate revenue and a 22% increase in advertising revenue offset by a
decrease in other revenue. The increase in TDC's affiliate revenue was due
mainly to a 19% increase in average per subscriber affiliate fees combined with
the increase in subscribers. TDC's advertising revenue increase was attributable
mainly to increases in TDC's average unit advertising rate, ratings, the
percentage of total ad inventory sold, and subscribers compared to the second
quarter of 1996. Average prime time and total day household ratings increased by
5% and 8%, respectively, compared to the same period last year.
At TLC, advertising and affiliate revenue increased by 41% and 32%,
respectively, compared to the second quarter of 1996. The increase in TLC's
affiliate revenue was due mainly to a 14% increase in average per subscriber
affiliate fees combined with the increase in subscribers compared to the second
quarter of 1996. TLC's advertising revenue increase resulted from increases in
TLC's average unit advertising rate, ratings, the percentage of total ad
inventory sold, and subscribers compared to the second quarter of 1996. Average
prime time and total day household ratings increased by 34% and 21%,
respectively, compared to the same period last year.
DCI cash flow for the second quarter of 1997 decreased by 5% compared to the
second quarter of 1996, principally because of costs associated with launching
new services (primarily Animal Planet), continuing investments in international
services, and the losses associated with The Nature Company. These cash flow
decreases were offset by 18% and 9% year-to-year increases in TDC and TLC cash
flow, respectively.
Entertainment and Information Services' attributed debt equaled $234 million as
of June 30, 1997.
- 4 -
<PAGE>
Electronic Retailing Services
- -----------------------------
- --------------------------------------------------------------------------------
ELECTRONIC RETAILING
<TABLE>
<CAPTION>
Three months ended
Q2 '97 Q2 '96
------ ------
amounts in millions
<S> <C> <C>
Revenue $ 296 274
Operating expenses (249) (239)
--------- ----------
Cash flow 47 35
--------- ----------
Depreciation & amortization (19) (13)
--------- ----------
Operating income 28 22
--------- ----------
Interest expense (8) (8)
Other, net 1 1
--------- ----------
Earnings before income tax $ 21 15
========= ==========
</TABLE>
- --------------------------------------------------------------------------------
The 1997 second quarter results reflect Liberty's reduced attributed ownership
of HSNI subsequent to the Silver King Mergers. The 1996 second quarter results
are stated at Liberty's 41.5% actual attributed ownership of HSN during that
period. For the second quarter of 1997, HSNI's home shopping and broadcasting
results are included in the Electronic Retailing Services segment based on
Liberty's effective attributed ownership of 36.5% on a fully diluted basis at
the end of the second quarter. Revenue for this segment increased by 8%, and
cash flow increased by 35% compared to the second quarter of 1996.
At QVC, revenue increased by 15%, gross profit margin increased by 16%, and cash
flow increased by 13%. QVC's gross profit margin percentage equaled
approximately 40% during the second quarter of 1997, the same margin percentage
realized during the second quarter of 1996. The increase in QVC's net sales was
primarily attributable to the effects of a 7% increase in the average number of
homes receiving QVC services in the United States and the United Kingdom
combined with a 2% increase in sales per home. QVC's second quarter results
reflect the electronic retailer's expansion into international markets, balanced
against upfront costs associated with the launch of the QVC service in Germany.
Excluding the impact of the start-up in the German market, QVC's second quarter
of 1997 cash flow grew by 23% compared to the same period last year. For
additional information, see Comcast Corporation's August 11, 1997 press release.
At HSNI, revenue decreased by 4%, gross profit margin increased by 11%, and cash
flow increased by 128%. The decrease in attributed revenue at HSNI is due to the
aforementioned change in Liberty's attributed ownership in the entities that
constitute HSNI. Assuming the mergers with HSN and Savoy occurred on January 1,
1996, HSNI pro forma results for the second quarter of 1997 would have been as
follows: revenue at HSNI increased by 3%, gross profit margin increased by 12%
and cash flow increased by 39%. HSNI's gross profit margin percentage equaled
41% for the second quarter of 1997 compared to 38% for the same quarter of 1996.
These results exclude the operating results of the Savoy motion picture business
and include preliminary purchase accounting adjustments. For additional
information, see HSNI's July 31, 1997 press release.
Electronic Retailing Services' attributed debt equaled $480 million as of June
30, 1997.
- 5 -
<PAGE>
Satellite
- --------------------------------------------------------------------------------
SATELLITE
<TABLE>
<CAPTION>
Three months ended
Q2 '97 Q2 '96
------ ------
amounts in millions
<S> <C> <C>
Revenue $ 57 54
Operating expenses (42) (42)
---------- ----------
Cash flow 15 12
---------- ----------
Depreciation & amortization - (1)
---------- ----------
Operating income 15 11
---------- ----------
Other, net - (1)
---------- ----------
Earnings before income tax $ 15 10
========== ==========
</TABLE>
- --------------------------------------------------------------------------------
The Satellite segment consists of Liberty's interests in the Superstar/Netlink
joint venture and Netlink Wholesale (together, the "TVRO" business) and Southern
Satellite Systems, Inc. ("Southern"). Satellite segment revenue increased by 7%,
and cash flow increased by 28% compared to the second quarter of 1996.
Compared to the second quarter of 1996, TVRO revenue grew by 8% and Southern's
revenue increased by 1%. Cash flow increased by 55% for TVRO and increased by 3%
for Southern's operations. TVRO revenue increased mainly due to increases in
retail and wholesale TVRO rates, Satellite Master Antenna Television ("SMATV")
revenue, and Pay-Per-View revenue compared to the second quarter of 1996. TVRO
second quarter cash flow increased mainly due to the increase in revenue
combined with operating expense efficiencies achieved by the Superstar/Netlink
joint venture. Southern's second quarter cash flow increased slightly mainly due
to higher satellite transmission revenue offset by lower subscriber revenue
compared to the same period in 1996, resulting primarily from acquisitions of
smaller cable operators by larger cable operators who benefit from larger volume
discounts charged by Southern.
The Satellite segment had no attributed debt outstanding as of June 30, 1997.
Sports Services
- ---------------
- --------------------------------------------------------------------------------
SPORTS
<TABLE>
<CAPTION>
Three months ended
Q2 '97 Q2 '96
------ ------
amounts in millions
<S> <C> <C>
Revenue $ 92 82
Operating expenses (98) (73)
--------- ---------
Cash flow (deficit) (6) 9
--------- ---------
Depreciation & amortization (1) (5)
--------- ---------
Operating income (loss) (7) 4
--------- ---------
Interest expense (3) (1)
Other, net (1) (8)
--------- ---------
Loss before income tax $ (11) (5)
========= =========
</TABLE>
- --------------------------------------------------------------------------------
Because of the number of transactions consummated which affect the year-to-year
comparisons, including the creation of the new joint venture in April 1996 with
The News Corporation Limited (which resulted in the reduction of Liberty's
attributable interest in its sports businesses by 50% in the case of domestic
sports businesses and by 75% in the case of the international sports businesses)
and the buyout of minority interests in certain of the assets, the results of
the different time periods are not directly comparable. Therefore, in the
interest of comparability, the following presents the results of the Sports
Services as though
- 6 -
<PAGE>
Liberty's percentage ownership in each asset was constant for all the periods at
the level in effect as of June 30, 1997.
The following table segregates the pro forma attributed revenue and cash flow by
business unit operated within the Sports Services segment:
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
Q2 '97 Q2 '96
------ ------
amounts in millions
<S> <C> <C>
Revenue
Regional Networks $ 66 54
Developing Networks 20 16
International 6 3
Corporate - 1
---------- ----------
Total 92 74
---------- ----------
Cash Flow (Deficit)
Regional Networks 9 16
Developing Networks (7) (1)
International (4) (3)
Corporate (4) (2)
---------- ----------
Total $ (6) 10
========== ==========
</TABLE>
- -------------------------------------------------------------------------------
Compared to the second quarter of 1996, revenue of the Regional Networks
increased by 21% as a result of a 10% increase in cable affiliate revenue, a 41%
increase in DBS revenue and a 31% increase in advertising revenue. During the
same period, expenses increased by 48%, principally because of costs associated
with launching new networks and a 53% increase in costs related to the
acquisition of new rights and the renewal of existing sports rights contracts.
Production and distribution costs increased by 45% due to more games being shown
and higher per game costs while selling, general and administrative costs
increased by 3% compared to the second quarter of last year. As a result, cash
flow for the second quarter of 1997 equaled $9 million. Excluding revenue and
costs associated with the new regional networks, cash flow of the Regional
Networks was $1 million less than the second quarter of 1996.
Revenue from Developing Networks in the second quarter of 1997 grew by 31%
mainly due to a 30% increase at FX compared to the second quarter of 1996.
Expenses from Developing Networks increased by 69% and were attributable to a
13% increase at FX and a 179% increase in the investment in Fox Sports Net
programming that is distributed to affiliated regional sports networks. The cash
flow deficit from Developing Networks increased by $6 million as the increase in
network programming expenses more than offset a $2 million increase in cash flow
at FX compared to the second quarter of 1996.
On June 23, 1997, Fox/Liberty Sports and Cablevision Systems Corporation's
("Cablevision")(ASE:CVC) Rainbow Media Holdings, Inc. ("Rainbow") announced the
formation of a national and a regional sports programming venture (the "Rainbow
Venture"). At that time, definitive documents were signed; however, consummation
of the Rainbow Venture is subject to certain third party approvals and is not
expected to occur until late in the third or early fourth quarter of 1997.
Assuming all approvals are obtained, Fox/Liberty Sports will contribute $850
million for a 40% equity interest in a new joint venture which will own
Rainbow's regional sports networks in several cities. In addition, Fox/Liberty
Sports will contribute the Fox Sports Net business to a new national joint
venture that will be owned equally with Rainbow.
- 7 -
<PAGE>
In August 1997, Fox/Liberty Sports arranged $750 million of public debt and an
$800 million bank credit facility to repay existing debt, finance the Rainbow
transaction and working capital requirements of the business.
Giving effect to the Rainbow Ventures as if they occurred beginning the second
quarter of 1997, pro forma Sports Services attributed revenue, cash flow and
debt would be $121 million, $4 million and $585 million, respectively.
Sport Services' attributed debt equaled $160 million as of June 30, 1997.
Corporate and Other
- -------------------
- --------------------------------------------------------------------------------
OTHER
<TABLE>
<CAPTION>
Three months ended
Q2 '97 Q2 '96
------ ------
amounts in millions
<S> <C> <C>
Revenue $ - -
Operating expenses (2) (2)
----------- ----------
Cash flow (deficit) (2) (2)
----------- ----------
Stock appreciation rights (14) -
Depreciation & amortization - (1)
----------- ----------
Operating loss (16) (3)
----------- ----------
Interest expense - (3)
Other, net (4) (5)
----------- ----------
Loss before income tax $ (20) (11)
=========== ==========
</TABLE>
- --------------------------------------------------------------------------------
COMMENCEMENT OF ISSUER TENDER OFFER
- -----------------------------------
TCI today commenced a tender offer ("Offer") to purchase up to an aggregate of
10 million shares of its Liberty Media Group Series A and Series B Common Stock
at a price of $27 per share. The Offer will remain open until 5 p.m. New York
City time on September 17, 1997, unless extended by TCI. The Offer is part of a
previously announced plan to buy back up to 55,500,000 shares of Liberty Media
Group Common Stock ("Shares") of which 9,555,327 have been repurchased since
such announcement was made on August 15, 1996. During 1997 an aggregate of
7,471,995 Shares have been repurchased at an average purchase price per share of
$24.90. The 10,000,000 Shares sought to be repurchased in the Offer represent
approximately 4.1% of the Shares outstanding as of July 31, 1997.
The Offer provides stockholders who are considering a sale of all or a portion
of their shares of Liberty Media Group common stock with the opportunity to sell
those shares for cash (at a 13% premium to the market price immediately prior to
the announcement of the tender offer) without the usual transaction costs
associated with market sales. Payment for tendered Shares and the costs and
expenses of the Offer, will be from cash on hand and currently available credit
facilities of Liberty Media Group. Salomon Brothers Inc has been retained to act
as Dealer Manager in connection with the Offer.
The official Offer to Purchase and Letter of Transmittal will be mailed to
existing shareholders, or to their brokers or nominees, on or about Wednesday,
August 20, 1997. Further information regarding the tender offer can be obtained
from the information agent, D.F. King & Co., Inc. at its toll free number (800)
848-3410.
- 8 -
<PAGE>
RECENT EVENTS
- -------------
TBS Superstation Conversion to Basic Cable Network/ Southern Satellite Option
- -----------------------------------------------------------------------------
On July 31, 1997, Turner Broadcasting System, Inc., a division of Time Warner,
announced that it will convert the TBS Superstation to a copyright-paid cable
network on December 31, 1997. It is expected that in connection with such
conversion, Time Warner will trigger its option to purchase Southern's business.
Assuming exercise of the option, the purchase price would be $213,333,333,
payable on closing of the exercise of the option in a form of consideration to
be mutually agreed upon.
Fox Kids Worldwide Inc. ("FKW") Acquires IFE Securities
- -------------------------------------------------------
On August 1, 1997, Liberty IFE, Inc., a subsidiary of Liberty, contributed its
shares of IFE Class C Common Stock and $23 million principal amount of IFE 6%
convertible secured notes due 2004, convertible into IFE Class C Common Stock,
to FKW in exchange for $345 million of a new series of 30 year, nonconvertible,
9% preferred stock of FKW.
Liberty Media Group Series A and Series B Common Stock are series of
Tele-Communications, Inc. Common Stock and are traded on the Nasdaq National
Market under the symbols LBTYA and LBTYB, respectively.
Contact: Vivian Carr (303) 721-5406
Attachments: Liberty Media Group Combined Balance Sheets
Liberty Media Group Combined Statements of Operations
- 9 -
<PAGE>
"LIBERTY MEDIA GROUP"
(a combination of certain assets)
Combined Balance Sheets
(unaudited)
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
---------- ------------
Assets amounts in thousands
- ------
<S> <C> <C>
Cash and cash equivalents $ 359,641 317,359
Trade and other receivables, net 22,914 24,796
Prepaid program rights 32,031 32,063
Committed film inventory 18,643 20,092
Investments in affiliates, accounted for under the
equity method, and related receivables 561,332 545,121
Investment in Time Warner, Inc. 2,322,541 2,016,799
Other investments, at cost, and related receivables
82,092 81,537
Property and equipment, at cost:
Land 39 39
Support equipment and buildings 18,461 17,756
---------- ---------
18,500 17,795
Less accumulated depreciation 9,062 7,846
---------- ---------
9,438 9,949
---------- ---------
Other assets, at cost, net of amortization 9,959 11,236
---------- ---------
$3,418,591 3,058,952
========== =========
</TABLE>
(continued)
- 10 -
<PAGE>
"LIBERTY MEDIA GROUP"
(a combination of certain assets)
Combined Balance Sheets, continued
(unaudited)
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
--------- ------------
Liabilities and Combined Equity amounts in thousands
- -------------------------------
<S> <C> <C>
Accounts payable and accrued liabilities $ 27,234 19,397
Accrued compensation relating to phantom rights 22,334 17,758
Program rights payable 34,299 33,700
Deferred revenue 7,684 6,166
Deferred option premium 305,742 --
Debt -- 1,620
Deferred income taxes 573,485 582,089
---------- ---------
Total liabilities 970,778 660,730
---------- ---------
Minority interests in equity of consolidated
subsidiaries 12,934 1,052
Combined equity:
Combined equity 2,365,972 2,355,021
Due to TCI Group 68,855 42,149
Unrealized gains on available-for-sale securities,
net of taxes 52 --
---------- ---------
2,434,879 2,397,170
---------- ---------
Commitments and contingencies
$3,418,591 3,058,952
========== =========
</TABLE>
- 11 -
<PAGE>
"LIBERTY MEDIA GROUP"
(a combination of certain assets)
Combined Statements of Operations
(unaudited)
<TABLE>
<CAPTION>
Three months ended Six months ended
June 30, June 30,
------------------- -------------------
1997 1996 1997 1996
------ ------ ------ ------
amounts in thousands
<S> <C> <C> <C> <C>
Revenue:
Programming services:
From TCI Group $ 24,127 28,000 46,638 56,870
From others 35,545 49,732 72,393 185,878
Net sales from electronic retailing
services -- 243,988 -- 499,601
--------- --------- --------- ---------
59,672 321,720 119,031 742,349
--------- --------- --------- ---------
Cost of sales, operating costs and
expenses:
Cost of sales -- 151,679 -- 316,491
Operating 19,903 60,575 39,429 179,885
Selling, general and administrative 24,768 66,191 37,232 157,350
Charges by TCI Group 2,354 5,550 4,433 11,321
Compensation relating to phantom rights
and stock appreciation rights 14,466 7,119 20,040 5,711
Depreciation 611 3,962 1,216 9,057
Amortization 165 9,424 339 22,870
--------- --------- --------- ---------
62,267 304,500 102,689 702,685
--------- --------- --------- ---------
Operating income (loss) (2,595) 17,220 16,342 39,664
Other income (expense):
Interest expense (306) (6,022) (611) (12,501)
Dividend and interest income,
primarily from affiliates 8,212 2,206 19,247 4,371
Share of earnings of affiliates, net 5,739 4,456 12,975 12,755
Minority interests in earnings of
consolidated subsidiaries (2,295) (2,873) (11,909) (6,357)
Gain (loss) on disposition of assets 581 (8,035) 581 (6,300)
Loss on early extinguishment of debt (320) -- (320) --
Other, net 6 1,610 115 3,782
--------- --------- --------- ---------
11,617 (8,658) 20,078 (4,250)
--------- --------- --------- ---------
Earnings before income taxes 9,022 8,562 36,420 35,414
Income tax expense (2,481) (4,573) (14,267) (16,584)
--------- --------- --------- ---------
Net earnings $ 6,541 3,989 22,153 18,830
========= ========= ========= =========
Earnings per common share $ .03 .02 .09 .08
========= ========= ========= =========
</TABLE>
- 12 -
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
REVOLVING CREDIT AGREEMENT
dated as of August 15, 1997
by and among
COMMUNICATION CAPITAL CORP.,
the BANKS party hereto,
and
THE BANK OF NEW YORK, as Administrative Agent,
TORONTO DOMINION (TEXAS), INC., as Syndication Agent, and
CREDIT LYONNAIS, as Documentation Agent
with
BNY CAPITAL MARKETS, INC.,
TORONTO DOMINION (TEXAS), INC.,
CREDIT LYONNAIS, and
MELLON BANK, N.A.,
as Arranging Agents
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C>
ARTICLE 1. DEFINITIONS; CONSTRUCTION ........................................................................... 1
1.1 Certain Definitions. .................................................................................. 1
1.2 Construction. ......................................................................................... 14
1.3 Accounting Principles. ................................................................................ 14
ARTICLE 2. THE CREDITS. ........................................................................................ 15
2.1 Revolving Credit Loans. ............................................................................... 15
2.2 Revolving Credit Note. ................................................................................ 15
2.3 Loan/Value Percentage. ................................................................................ 16
2.4 Making of Revolving Credit Loans. ..................................................................... 16
2.5 Commitment Fee. ....................................................................................... 18
2.6 Reduction of the Current Commitments. ................................................................. 18
2.7 Interest Rates; etc. .................................................................................. 18
2.8 Failure of Borrower to Give Notice. ................................................................... 22
2.9 Prepayments. .......................................................................................... 22
2.10 Interest Payment Dates. .............................................................................. 22
2.11 Payments. ............................................................................................ 22
2.12 Additional Compensation in Certain Circumstances. .................................................... 23
2.13 Funding by Branch, Subsidiary or Affiliate. .......................................................... 26
2.14 Taxes and Duties; Counterclaims. ..................................................................... 27
2.15 Tax Forms. ........................................................................................... 28
ARTICLE 3. REPRESENTATIONS AND WARRANTIES. ..................................................................... 28
3.1 Organization and Qualification. ....................................................................... 28
3.2 Authority and Authorization. .......................................................................... 28
3.3 Execution and Binding Effect. ......................................................................... 29
3.4 Authorizations and Filings. ........................................................................... 29
3.5 Absence of Conflicts. ................................................................................. 29
3.6 No Event of Default; Compliance with Instruments. ..................................................... 31
3.7 Litigation. ........................................................................................... 31
3.8 Subsidiaries. ......................................................................................... 31
3.9 Pension Related Matters. .............................................................................. 31
3.10 Contracts. ........................................................................................... 31
3.11 Taxes. ............................................................................................... 32
3.12 Power To Carry On Business. .......................................................................... 32
3.13 Compliance with Laws. ................................................................................ 32
3.14 Ownership and Control. ............................................................................... 32
3.15 Status of Shares. .................................................................................... 33
3.16 Accurate and Complete Disclosure. .................................................................... 34
3.17 Investment Company. .................................................................................. 34
3.18 Public Utility Holding Company. ...................................................................... 34
3.19 Business. ............................................................................................ 34
3.20 Proceeds. ............................................................................................ 35
</TABLE>
- 1 -
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
3.21 Solvency. ............................................................................................ 35
3.22 TWI Agreements and TWI Stock Documents. .............................................................. 35
3.23 Financial Statements. ................................................................................ 35
ARTICLE 4. CONDITIONS OF LENDING AND PLEDGING ADDITIONAL
SHARES .............................................................................................. 36
4.1 Revolving Credit Loans Which Are Not Rollover Loans. .................................................. 36
4.2 Initial Loans. ........................................................................................ 38
4.3 Pledge of Additional Shares. .......................................................................... 40
ARTICLE 5. AFFIRMATIVE COVENANTS ............................................................................... 41
5.1 Reporting and Information Requirements. ............................................................... 42
5.2 Preservation of Existence and Franchises. ............................................................. 44
5.3 Insurance. ............................................................................................ 44
5.4 Payment of Taxes and Other Potential Charges and
Priority Claims; Payment of Other Current
Liabilities. .......................................................................................... 45
5.5 Financial Accounting Practices. ....................................................................... 45
5.6 Compliance with Laws. ................................................................................. 45
5.7 Use of Proceeds. ...................................................................................... 46
5.8 Government Authorizations, etc. ....................................................................... 46
5.9 Balances. ............................................................................................. 46
ARTICLE 6. NEGATIVE COVENANTS .................................................................................. 46
6.1 Covenant With Respect to Pledged Securities; Liens. ................................................... 46
6.2 Indebtedness. ......................................................................................... 47
6.3 Guarantees. ........................................................................................... 48
6.4 Loans and Investments. ................................................................................ 49
6.5 Dividends and Related Distributions. .................................................................. 49
6.6 Sale-Leasebacks. ...................................................................................... 50
6.7 Leases. ............................................................................................... 50
6.8 Merger. ............................................................................................... 50
6.9 Self-Dealing. ......................................................................................... 50
6.10 Continuation of or Change In Business. ............................................................... 50
6.11 TWI Agreements and TWI Stock Documents. .............................................................. 50
6.12 Regulation U. ........................................................................................ 51
ARTICLE 7. DEFAULTS ............................................................................................ 51
7.1 Events of Default. .................................................................................... 51
7.2 Consequences of an Event of Default. .................................................................. 55
7.3 Set-Off. .............................................................................................. 55
7.4 Equalization Among the Banks. ......................................................................... 56
7.5 Application of Payments. .............................................................................. 56
ARTICLE 8. THE AGENT ........................................................................................... 57
8.1 Appointment. .......................................................................................... 57
8.2 Delegation of Duties. ................................................................................. 57
8.3 Nature of Duties; Independent Credit Investigation. ................................................... 57
8.4 Actions in Discretion of Administrative Agent;
</TABLE>
- 2 -
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Instructions from Required Banks; Default. ............................................................ 58
8.5 Exculpatory Provisions. ............................................................................... 58
8.6 Reimbursement and Indemnification. .................................................................... 59
8.7 Reliance by Administrative Agent. ..................................................................... 59
8.8 BNY in its Individual Capacity. ....................................................................... 59
8.9 Holders of Revolving Credit Notes. .................................................................... 60
8.10 Related Documents. ................................................................................... 60
8.11 Pro Rata Interest in Collateral. ..................................................................... 60
8.12 Financing Statements. ................................................................................ 60
8.13 Successor Administrative Agent. ...................................................................... 60
8.14 Syndication Agent and Documentation Agent. ........................................................... 61
ARTICLE 9. MISCELLANEOUS ....................................................................................... 61
9.1 Holidays. ............................................................................................. 61
9.2 Reliance on Facsimiles. ............................................................................... 61
9.3 Amendments or Waivers. ................................................................................ 61
9.4 No Implied Waiver; Cumulative Remedies. ............................................................... 62
9.5 Notices. .............................................................................................. 63
9.6 Expenses; Taxes; Attorneys' Fees. ..................................................................... 63
9.7 Severability. ......................................................................................... 64
9.8 Governing Law. ........................................................................................ 64
9.9 Prior Understandings. ................................................................................. 64
9.10 Duration; Survival. .................................................................................. 64
9.11 Counterparts; When Effective. ........................................................................ 65
9.12 Assignments and Participations; Successors and
Assigns. ............................................................................................. 65
9.13 Confidential Information. ............................................................................ 67
9.14 Covered Securities. .................................................................................. 68
9.15 JURISDICTION; WAIVER OF JURY TRIAL. .................................................................. 68
</TABLE>
<TABLE>
<CAPTION>
EXHIBITS
--------
<S> <C>
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Borrowing Certificate
Exhibit C-1 Form of Borrower Pledge Agreement
Exhibit C-2 Form of Parent Agreement
Exhibit C-3 Form of Parent Subsidiary Agreement
Exhibit D Form of Parent Note
Exhibit E Form of Note Pledge Agreement
Exhibit F-1 Form of Opinion of Special Counsel for the Borrower
Exhibit F-2 Form of Opinion of FCC Counsel for the Borrower
Exhibit F-3 Form of Opinion of Corporate Counsel for the Borrower
Exhibit G Form of Borrower Financial Condition Certificate
Exhibit H Form of Parent Financial Condition Certificate
Exhibit I List of Commitments
Exhibit J Form of Payment Notice
</TABLE>
- 3 -
<PAGE>
Exhibit K Form of Assignment and Acceptance
- 4 -
<PAGE>
REVOLVING CREDIT AGREEMENT
- ----------------------------------------------------
THIS AGREEMENT, dated as of August 15, 1997, by and among COMMUNICATION
CAPITAL CORP., a Delaware corporation (the "Borrower"), the Banks party hereto
--------
(hereinafter, together with their permitted assignees, sometimes referred to
collectively as the "Banks" and individually as a "Bank"), and THE BANK OF NEW
----- ----
YORK, as Administrative Agent for the Banks hereunder (in such capacity, the
"Administrative Agent"), TORONTO DOMINION (TEXAS), INC., as Syndication Agent
--------------------
(in such capacity, the "Syndication Agent") and CREDIT LYONNAIS, as
-----------------
Documentation Agent (in such capacity, the "Documentation Agent").
-------------------
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower has requested the Banks to extend credit to the
Borrower to enable it to borrow at any time and from time to time before the
Expiration Date (as hereinafter defined) not in excess of $500,000,000 principal
amount at any time outstanding; and
WHEREAS, the Banks are willing to extend such credit to the Borrower on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE 1. DEFINITIONS; CONSTRUCTION
-------------------------
1.1 Certain Definitions.
-------------------
In addition to other words and terms defined elsewhere in this
Agreement, as used herein the following words and terms shall have the following
meanings, respectively, unless the context hereof otherwise clearly requires:
"Acquired Company" shall mean (i) TWI and (ii) any other corporation
----------------
(other than TCI and its Subsidiaries and LMC and its Subsidiaries) which (A) is
publicly-held and is a reporting company under Section 13 or 15 of the
Securities Exchange Act of 1934, as amended, (B) has shares of its capital stock
listed and traded on the New York Stock Exchange, the American
- 1 -
<PAGE>
Stock Exchange or NASDAQ and (C) is engaged principally in the media business.
"Administrative Agent" shall have the meaning assigned to that term
--------------------
in the preamble hereof or any successor Administrative Agent appointed in
accordance with Section 8.13.
"Affiliate" of any person shall mean any other person who controls,
---------
is controlled by or is under common control with, such person. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of a person, whether
through the ownership of voting securities, by contract or otherwise.
"Agreement" shall mean this Revolving Credit Agreement, as amended,
---------
modified or supplemented from time to time.
"Applicable Margin" shall have the meaning assigned to that term in
-----------------
Section 2.7(a)(iii).
"Assignment and Acceptance" shall mean the Assignment and Acceptance
-------------------------
in the form of Exhibit K hereto.
"Authorized Signer" shall mean (i) the President, Vice President,
-----------------
Treasurer, Assistant Treasurer or Chief Financial Officer of the Borrower, and
(ii) each person identified as an "Authorized Signatory" in a certificate, as
amended from time to time, signed on behalf of any of the officers listed in the
preceding clause (i).
"Bank" and "Banks" shall have the respective meanings assigned to
---- -----
these terms in the preamble hereof.
"Base Rate" shall mean, as determined by the Administrative Agent on
---------
a daily basis (such determination to be conclusive absent manifest error), a
rate per annum equal to the higher of (i) the Prime Rate in effect on such day
or (ii) the Federal Funds Effective Rate in effect on such day plus .50 of 1%
per annum, such rate to change automatically from time to time effective as of
the effective date of each change in the Prime Rate or the Federal Funds
Effective Rate, as the case may be. All interest based on the Base Rate shall be
calculated on the basis of a 365/366 day year for the actual number of days
elapsed.
"Base Rate Loan" shall mean at any time any Loan bearing interest at
--------------
such time under the Base Rate Option or with reference to the Base Rate under
Section 2.7(d). If no Base Rate Loan is specified, "Base Rate Loan" shall refer
to all Base Rate Loans outstanding at such time.
"Base Rate Option" shall mean the option granted to the Borrower
----------------
pursuant to Section 2.7(a)(i) to have interest on all or a portion of the
outstanding principal balance of the Loans computed with reference to the Base
Rate.
"BNY" shall mean The Bank of New York.
---
"BNY Interest Reserve Investment Accounts" shall mean each account
----------------------------------------
established
- 2 -
<PAGE>
and maintained at the Office of the Administrative Agent in the name of the
Pledgor, but under the sole dominion and control of the Administrative Agent.
"Borrower" shall have the meaning assigned to that term in
--------
the preamble hereof.
"Borrower Pledge Agreement" shall mean a pledge agreement executed
-------------------------
and delivered by the Borrower in substantially the form of Exhibit C-1 hereto,
as the same may be amended, modified or supplemented from time to time.
"Borrowing Certificate" shall mean a certificate in the form of
---------------------
Exhibit B hereto, with the blanks appropriately completed.
"Business Day" shall mean any day other than a Saturday, Sunday,
------------
public holiday under the laws of the State of New York or other day on which
banking institutions are authorized or obligated to close in New York, New York.
"Capitalized Lease" shall mean at any time any lease which, in
-----------------
accordance with GAAP, is required to be capitalized on the balance sheet of the
lessee at such time.
"Capitalized Lease Obligation" of any person at any time shall mean
----------------------------
the aggregate amount which, in accordance with GAAP, is required to be reported
as a liability on the balance sheet of such person at such time as lessee under
a Capitalized Lease.
"Certificate of Designation" shall mean the Certificate of the Voting
--------------------------
Powers, Designations, Preferences and Relative, Participating, Optional or Other
Special Rights, and Qualifications, Limitations or Restrictions Thereof, of
Series LMCN-V Common Stock of TWI, as filed with the Delaware Secretary of State
on October 10, 1996, as amended, modified or supplemented.
"Closing Date" shall mean the date of the first Revolving Credit Loan
------------
hereunder.
"Code" means the Internal Revenue Code of 1986, as amended and any
----
successor statute of similar import, and regulations thereunder, in each case as
in effect from time to time. References to sections of the Code shall be
construed to also refer to any successor sections.
"Collateral" shall have the meaning assigned to that term in Section
----------
8.11.
- 3 -
<PAGE>
"Commitment" shall have the meaning assigned to that term in
----------
Section 2.1(a).
"Communications Act" shall mean the Communications Act of
------------------
1934, as amended by the Cable Communications Policy Act of 1984, and all rules
and regulations thereunder, in each case as from time to time in effect.
"Consolidated Group" shall mean, with respect to any person
------------------
and at any time, all corporations with whom such person at such time files or
has filed consolidated tax returns.
"Consolidated Subsidiaries" of a person at any particular
-------------------------
time shall mean those Subsidiaries whose accounts are or should be consolidated
with those of such person in accordance with GAAP.
"Controlled Group Member" means any trade or business
-----------------------
(whether or not incorporated) which together with the Borrower, the Parent or a
Parent Subsidiary is treated as a single employer under Section 4001(a)(14) or
4001(b)(1)) of ERISA or Section 414(b), (c), (m) or (o) of the Code.
"Corresponding Source of Funds" shall mean the proceeds of
-----------------------------
hypothetical receipts by a Notional Euro-Rate Funding Office or by a Bank
through a Notional Euro-Rate Funding Office of one or more Dollar deposits in
the London interbank eurodollar market at the beginning of the Euro-Rate
Interest Period corresponding to any Euro-Rate Loan, having maturities
approximately equal to such Euro-Rate Interest Period and in an aggregate amount
approximately equal to the principal amount of such Euro-Rate Loan.
"Credit Exposure" shall mean, with respect to any Bank, at
---------------
any time, the Current Commitment or, if no Current Commitment is in effect, the
outstanding Loans, of such Bank at such time.
"Current Commitment" shall have the meaning assigned to that
------------------
term in Section 2.1(a).
"Determination Date" shall have the meaning assigned to that
------------------
term in Section 5.9.
"Documentation Agent" shall have the meaning assigned to that
-------------------
term in the preamble hereof.
"Dollar", "Dollars" and the symbol "$" shall mean lawful
------ -------
money of the United States of America.
"Dreyfus Interest Reserve Investment Account" shall mean the
-------------------------------------------
account established and maintained at the offices of Dreyfus Service Corporation
at 202 Park Avenue, New York, New York, in the name of the Pledgor, but under
the sole dominion and control of the Administrative Agent.
"Effective Date" shall mean the date the Administrative Agent
--------------
and all Banks have executed and delivered this Agreement.
- 4 -
<PAGE>
"Eligible Assignee" shall mean (i) a commercial bank
-----------------
organized under the laws of the United States, or any State thereof, and having
total assets in excess of $1,000,000,000; (ii) a commercial bank organized under
the laws of any other country, or a political subdivision of any such country,
having total assets in excess of $1,000,000,000 or the equivalent thereof; or
(iii) any other entity which is engaged in making, purchasing or otherwise
investing in commercial loans in the ordinary course of its business and which
has been approved by the Borrower.
"ERISA" means the Employee Retirement Income Security Act of
-----
1974, as amended, and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to sections
of ERISA shall be construed to also refer to any successor sections.
"Euro-Bid Rate" shall mean, with respect to a Euro-Rate Loan
-------------
for the relevant Euro-Rate Interest Period, the rate per annum determined by the
Administrative Agent as follows:
(a) the Administrative Agent shall obtain the bid
quotation(s) that appear on the Reuter's Screen for Dollar deposits
for a period comparable to such Euro-Bid Interest Period. If at least
two such bid quotations appear on the Reuter's Screen, the Euro-Bid
Rate shall be the arithmetic average (rounded up to the nearest
1/16th of 1%) of such bid quotations, as determined by the
Administrative Agent;
(b) if the Reuter's Screen is not available or has been
discontinued, the Euro-Bid Rate shall be the rate per annum equal to
the arithmetic average (rounded as aforesaid) of the per annum bid
rates for deposits in Dollars given by the Administrative Agent in
the London Interbank Market at 11:00 a.m., London time, on the date
of determination in the approximate amount of the Administrative
Agent's relevant Euro-Rate Loan and having a maturity approximately
equal to the relevant Euro-Rate Interest Period; and
(c) if the Administrative Agent is not able to obtain
quotations for the determination of the Euro-Bid Rate pursuant to
subsection (a) or (b) above, the Euro-Bid Rate shall be the rate per
annum which the Administrative Agent in good faith determines to be
the arithmetic average (rounded as aforesaid) of bid quotations for
Dollar deposits in an amount comparable to the Administrative Agent's
share of the relevant amount in respect of which the Euro-Bid Rate is
being determined for a period comparable to the relevant Euro-Rate
Interest Period that leading banks in New York City selected by the
Administrative Agent are quoting at 11:00 a.m., New York City time,
on the date of
- 5 -
<PAGE>
determination in the New York Interbank Market to major international
banks.
Each determination by the Administrative Agent of the Euro-Bid Rate shall be
conclusive in the absence of manifest error. All interest based on the Euro-Bid
Rate shall be calculated on the basis of a 360-day year for the actual number of
days elapsed.
"Euro-Rate" shall mean, with respect to a Euro-Rate Loan for
---------
the relevant Euro-Rate Interest Period, the rate per annum determined by the
Administrative Agent as follows:
(a) on the Euro-Rate Determination Date relating to
such Euro-Rate Interest Period, the Administrative Agent shall obtain
the offered quotation(s) that appear on the Reuter's Screen for
Dollar deposits for a period comparable to such Euro-Rate Interest
Period. If at least two such offered quotations appear on the
Reuter's Screen, the Euro-Rate shall be the arithmetic average
(rounded up to the nearest 1/16th of 1%) of such offered quotations,
as determined by the Administrative Agent;
(b) if the Reuter's Screen is not available or has been
discontinued, the Euro-Rate shall be the rate per annum equal to
the arithmetic average (rounded as aforesaid) of the per annum rates
at which deposits in Dollars are offered to the Administrative Agent
in the London Interbank Market at 11:00 a.m., London time, on the
Euro-Rate Determination Date in the approximate amount of the Admin-
istrative Agent's relevant Euro-Rate Loan and having a maturity
approximately equal to the relevant Euro-Rate Interest Period; and
(c) if the Administrative Agent is not able to obtain
quotations for the determination of the Euro-Rate pursuant to
subsection (a) or (b) above, the Euro-Rate shall be the rate per
annum which the Administrative Agent in good faith determines to be
the arithmetic average (rounded as aforesaid) of the offered
quotations for Dollar deposits in an amount comparable to the
Administrative Agent's share of the relevant amount in respect of
which the Euro-Rate is being determined for a period comparable to
the relevant Euro-Rate Interest Period that leading banks in New York
City selected by the Administrative Agent are quoting at 11:00 a.m.,
New York City Time, on the Euro-Rate Determination Date in the New
York Interbank Market to major international banks.
Each determination by the Administrative Agent of the Euro-Rate shall be
conclusive in the absence of manifest error. All interest based on the Euro-Rate
shall be calculated on the basis of a 360-day year for the actual number of days
elapsed.
"Euro-Rate Determination Date" shall mean with, respect to
----------------------------
any Euro-Rate Loans, the date which is two London Business Days prior to the
first day of the Euro-Rate Interest Period applicable to such Euro-Rate Loans.
"Euro-Rate Interest Period" shall have the meaning assigned
-------------------------
to that term in Section 2.7(b).
"Euro-Rate Loan" shall mean at any time any Loan bearing
--------------
interest at such time under the Euro-Rate Option or at a rate calculated by
reference to the Euro-Rate under
- 6 -
<PAGE>
Section 2.7(d). If no Euro-Rate Loan is specified, "Euro-Rate Loan" shall refer
to all Euro-Rate Loans outstanding at such time.
"Euro-Rate Option" shall mean the option granted to the
----------------
Borrower pursuant to Section 2.7(a)(ii) to have interest on all or a portion of
the outstanding principal balance of Loans computed with reference to a
Euro-Rate.
"Event of Default" shall mean any of the Events of Default
----------------
described in Section 7.1.
"Existing Credit Agreement" shall mean the Revolving Credit
-------------------------
Agreement, dated as of November 26, 1991, by and among the Borrower, the banks
named therein and Mellon Bank, N.A., as agent, as amended, modified or
supplemented.
"Expiration Date" shall mean August 15, 2000.
---------------
"FCC" shall mean the Federal Communications Commission or any
---
other governmental agency, department or instrumentality succeeding to the
functions of said agency.
"Federal Funds Effective Rate" shall mean, for any period, a
----------------------------
fluctuating interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York or, if such rate
is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three federal funds brokers of recognized standing selected by it.
"Financial Condition Certificate" shall mean a certificate
-------------------------------
executed and delivered by the Chief Financial Officer, Vice President or
Assistant Treasurer of the Borrower in substantially the form of Exhibit G
hereto.
"Financial Statements" shall have the meaning assigned to
--------------------
that term in Section 3.23.
"GAAP" shall mean generally accepted accounting principles
----
(as such principles may change from time to time) applied on a consistent basis
(except for changes in application in which the Borrower's independent certified
public accountants concur), applied both to
- 7 -
<PAGE>
classification of items and amounts.
"Indebtedness" of a person shall mean:
------------
(a) all indebtedness or liability for or on account of
money borrowed by, or for or on account of deposits with or advances
to, such person;
(b) all obligations of such person evidenced by bonds,
debentures, notes or similar instruments;
(c) all indebtedness or liability for or on account of
the deferred purchase price of property or services purchased or
acquired by such person; and
(d) any amount secured by a Lien on property owned by
such person (whether or not assumed) and Capitalized Lease
Obligations of such person (without regard to any limitation of the
rights and remedies of the holder of such Lien or the lessor under
such Capitalized Lease to repossession or sale of such property).
"Interest Deficit" shall have the meaning assigned to that
----------------
term in Section 2.7(f).
"Interest Periods" shall have the meaning assigned to that
----------------
term in Section 2.7(b).
"Interest Reserve Investment Accounts" shall mean,
------------------------------------
collectively, the BNY Interest Reserve Investment Accounts and the Dreyfus
Interest Reserve Investment Account.
"Intermediate Holder" shall have the meaning assigned to that
-------------------
term in Section 3.14.
"IRS" shall mean the Internal Revenue Service or any
---
successor thereto.
"Law" shall mean any law (including, without limitation,
---
common law), constitution, statute, treaty, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Official Body.
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
----
security interest, charge or other encumbrance or security arrangement of any
nature whatsoever, including, but not limited to, any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease intended
as, or having the effect of, security.
"LMC" shall mean Liberty Media Corporation, a Delaware
---
corporation.
"LMC Agreement" shall mean the Second Amended and Restated
-------------
LMC Agreement, dated as of September 22, 1995, by and among Time Warner Inc., TW
Inc., Liberty Media Corporation and certain subsidiaries of Liberty Media
Corporation, as amended, modified or supplemented.
"LMC Registration Rights Agreement" shall mean the LMC
---------------------------------
Registration Rights Agreement, dated October 10, 1996, by and among TWI and
certain holders of its capital stock,
- 8 -
<PAGE>
including, without limitation, the Borrower and the Parent, as amended, modified
or supplemented.
"Loan" or "Loans" shall mean any and all loan or loans made
---- -----
by the Banks to the Borrower under this Agreement.
"Loan/Value Percentage" shall mean, on any date, the
---------------------
aggregate amount of outstanding Loans and Loans requested by the Borrower
pursuant to Section 2.4 as of such date as a percentage of the sum of:
(a) the "current market value" (as such term is defined
in Regulation U promulgated by the Board of Governors of the Federal
Reserve System) of all Pledged Securities that are "margin stock" as
defined in said Regulation U; and either
(b) an amount equal to the number of shares of TWI
Series LMCN-V Common Stock pledged pursuant to the Pledge Agreements
times the "current market value" of a share of TWI Common Stock
unless due to a change in circumstances occurring after the Effective
Date, the Required Banks have made a good faith determination (which
determination shall be conclusive) that the fair market value of a
share of TWI Series LMCN-V Common Stock does not equal the "current
market value" of a share of TWI Common Stock;
or
(c) if the Required Banks have made the determination
referred to in clause (b) above, the amount agreed upon by the
Required Banks and the Borrower as the fair market value of all
shares of TWI Series LMCN-V Common Stock pledged pursuant to the
Pledge Agreements;
provided, (i) unless and until an agreement among the Required Banks and the
- --------
Borrower is reached under clause (c) such shares of TWI Series LMCN-V Common
Stock shall not be included for purposes of calculating the Loan/Value
Percentage and (ii) if Pledged Securities (other than shares of TWI Series
LMCN-V Common Stock) of Acquired Companies or shares of TWI Common Stock cease
to be "margin stock" for purposes of Regulation U, the "current market value" of
such Pledged Securities of Acquired Companies or TWI Series LMCN-V Common Stock
shall not be included for purposes of calculating the Loan/Value Percentage.
- 9 -
<PAGE>
"London Business Day" shall mean a Business Day for dealing in
-------------------
deposits in Dollars by and among banks in the London interbank market.
"Maturity Date" shall have the meaning assigned to those terms in
-------------
Section 2.7(b).
"Merger Agreement" shall mean the Amended and Restated Agreement and
----------------
Plan of Merger, dated as of September 22, 1995, by and among Time Warner Inc.,
Turner Broadcasting System Inc. and certain subsidiaries of Time Warner Inc., as
amended, modified or supplemented.
"Multiemployer Plan" means any employee benefit plan which is a
------------------
"multiemployer plan" within the meaning of Section 4001(a)(3) of ERISA and to
which the Borrower, the Parent, a Parent Subsidiary or any Controlled Group
Member has or had an obligation to contribute within the preceding five (5)
years.
"Note Pledge Agreement" shall mean the Note Pledge Agreement, dated
---------------------
as of the date hereof, executed and delivered by the Borrower to the
Administrative Agent in substantially the form of Exhibit E hereto, as the same
may be amended, modified or supplemented from time to time.
"Notional Euro-Rate Funding Office" shall have the meaning assigned
---------------------------------
to that term in Section 2.13(a).
"Obligations" shall have the meaning assigned to that term in the
-----------
Pledge Agreements.
"Office", when used in connection with the Administrative Agent,
------
shall mean its office located at One Wall Street, New York, New York 10286, or
such other office or offices of the Administrative Agent or branch, subsidiary
or affiliate thereof as may be designated in writing from time to time by the
Administrative Agent to the Borrower and the Banks.
"Official Body" shall mean any government or political subdivision
-------------
or any agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator, in
each case whether foreign or domestic.
"Option" shall mean the Base Rate Option or the Euro-Rate Option, as
------
the case may be.
"Parent" shall mean TW Liberty, Inc., a Colorado corporation.
------
"Parent Agreement" shall mean the agreement executed and delivered by
----------------
the Parent, in substantially the form of Exhibit C-2 hereto, as the same may be
amended, modified or supplemented from time to time.
"Parent Financial Condition Certificate" shall mean a certificate
--------------------------------------
executed and delivered by the Chief Financial Officer, Vice President or
Assistant Treasurer of the Parent in substantially the form of Exhibit H hereto.
- 10 -
<PAGE>
"Parent Loans" shall mean loans made to Parent by the Borrower with
------------
proceeds of the Loans hereunder and evidenced by the Parent Note.
"Parent Note" shall mean a promissory note issued by Parent to the
-----------
Borrower in substantially the form of Exhibit D hereto.
"Parent Subsidiary" shall mean any wholly-owned direct or indirect
-----------------
Subsidiary of the Parent which is a party to a Parent Subsidiary Agreement which
shall not have been terminated in accordance with Section 5.2 thereof.
"Parent Subsidiary Agreement" shall mean an agreement executed and
---------------------------
delivered by a Parent Subsidiary, in substantially the form of Exhibit C-3
hereto, as the same may be amended, modified or supplemented from time to time.
"Payment Notice" shall have the meaning assigned to that term in
--------------
Section 2.11.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
----
established under Title IV of ERISA or any other governmental agency, department
or instrumentality succeeding to the functions of said corporation.
"Permitted Interest Reserve Investments" shall mean:
--------------------------------------
(i) with respect to the BNY Interest Reserve Investment
Accounts, any one or more of the following: (a) direct obligations of the
United States of America, or of any agency thereof, or obligations
guaranteed as to principal and interest by the United States of America, or
of any agency thereof, in either case maturing not more than one year from
the date of acquisition thereof, (b) interests in money market funds
operating under the guidelines set forth in Rule 2a-7 promulgated under the
Investment Company Act of 1940, as amended, which have a rating of AAAm or
Aaa by Standard & Poor's Rating Services, a Division of The McGraw Hill
Companies, Inc., or Moody's Investors Services, Inc., respectively, (c)
other money market deposits, certificates of deposit and time deposits
issued by any bank or trust company organized under the laws of the United
States of America or any state thereof and having capital, surplus and
undivided profits of at least $500,000,000, maturing not more than one year
from the date of acquisition thereof, (d) securities either rated or issued
by corporations that have a rating of A-1 or better or P-1 by Standard &
Poor's Rating Services, a Division of The McGraw Hill Companies, Inc., or
Moody's Investors Services, Inc., respectively, maturing not more than one
year
- 11 -
<PAGE>
from the date of acquisition thereof, and (d) fully collateralized
repurchase agreements with a term of not more than one year for securities
described in the preceding clause (a) and entered into with either
financial institutions satisfying the criteria described in the preceding
clause (c) or primary dealers in United States government securities, in
each case so long as such agreements (A) provide for the payment of
principal and interest (and not principal alone or interest alone) and (B)
are not subject to any contingency regarding the payment of principal or
interest, and
(ii) with respect to the Dreyfus Interest Reserve Investment
Account, interests in money market funds operating under the guidelines set
forth in Rule 2a-7 promulgated under the Investment Company Act of 1940, as
amended, which have a rating of AAAm or Aaa by Standard & Poor's Rating
Services, a Division of The McGraw Hill Companies, Inc., or Moody's
Investors Services, Inc., respectively.
"person" shall mean an individual, corporation, partnership, trust,
------
unincorporated association, joint venture, joint-stock company, government
(including, without limitation, political subdivisions), governmental authority
or agency, or any other entity.
"Plan" shall mean any employee pension benefit plan (other than a
----
Multiemployer Plan) to which Section 4021 of ERISA applies and (i) which is
maintained for employees of the Borrower, Parent, a Parent Subsidiary or any
Controlled Group Member; or (ii) to which the Borrower, Parent, a Parent
Subsidiary or any Controlled Group Member made, or was required to make,
contributions at any time within the preceding five (5) years.
"Pledge Agreements" shall mean the Borrower Pledge Agreement, the
-----------------
Note Pledge Agreement, the Parent Agreement and each Parent Subsidiary
Agreement.
"Pledged Acquired Company" shall mean an Acquired Company, the Shares
------------------------
of which have been pledged by the Borrower, the Parent or a Parent Subsidiary to
the Administrative Agent on behalf of the Banks pursuant to the Borrower Pledge
Agreement, the Parent Agreement or a Parent Subsidiary Agreement.
"Pledged Securities" shall mean all of the "Pledged Securities" as
------------------
defined under the Pledge Agreements.
"Potential Default" shall mean any event or condition which with
-----------------
notice, passage of time or a determination by the Required Banks, or any
combination of the foregoing, would constitute an Event of Default.
"Prime Rate" shall mean the prime commercial lending rate of BNY as
----------
publicly announced in New York City to be in effect from time to time, such rate
to be adjusted on and as of the effective date of any change in the Prime Rate.
The Prime Rate is only one of the bases for computing interest on loans made by
the Banks, and by basing interest on the unpaid principal amount of the Loans
not subject to a Euro-Rate Option on the Prime Rate, the Banks 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 Banks may now or in the future
make loans to other borrowers.
- 12 -
<PAGE>
"Qualified Affiliate" shall mean the Parent, any subsidiary of the
-------------------
Parent or any other Affiliate of the Parent which shall have executed and
delivered to the Administrative Agent an agreement in writing, in all respects
reasonably satisfactory to the Administrative Agent, to the effect that:
(i) such Affiliate shall, upon the request of the
Administrative Agent upon the occurrence and during the continuance of an
Event of Default, exercise its rights to demand registration of TWI capital
stock under Section 2 of the LMC Registration Rights Agreement, if and to
the extent required in order to enable the Administrative Agent to cause a
registration of TWI capital stock constituting Pledged Securities under
such Section, and
(ii) such Affiliate shall at all times be bound by Section
6.1(c) of this Agreement, Section 7.1(c) of the Parent Agreement and
Section 7.1(a)(iii) of each Parent Subsidiary Agreement with respect to all
TWI capital stock in which it shall have any right, title or interest as if
it were the Borrower, the Parent or such Parent Subsidiary, as the case may
be, and such TWI capital stock constituted Pledged Securities.
"Register" shall have the meaning assigned to that term in Section
--------
9.12(k).
"Related Documents" shall mean the Parent Note and the Pledge
-----------------
Agreements.
"Reportable Event" shall mean (i) a reportable event described in
----------------
Section 4043 of ERISA and regulations thereunder, (ii) a withdrawal by a
substantial employer from a Plan to which more than one employer contributes, as
referred to in Section 4062(e) of ERISA, (iii) with respect to a Multiemployer
Plan, a cessation of operations at a facility causing more than twenty percent
(20%) of Plan participants to be separated from employment, as referred to in
Section 4068(f) of ERISA or (iv) a failure to make a required installment or
other payment with respect to a Plan when due in accordance with Section 412 of
the Code or Section 302 of ERISA which causes the total unpaid balance of missed
installments and payments (including, without limitation, unpaid interest) to
exceed $750,000.
"Required Banks" shall mean, at any time when no Event of Default or
--------------
Potential Default has occurred and is continuing or exists, Banks having Current
Commitments equal to at least 51% of the Total Current Commitment and, at any
time when an Event of Default or Potential Default has occurred and is
continuing or exists, (i) Banks holding at least 51% of the unpaid principal
balance of all Revolving Credit Notes or (ii) if no Loan is outstanding, Banks
- 13 -
<PAGE>
having Current Commitments equal to at least 51% of the Total Current
Commitment.
"Reuter's Screen" shall mean the display designated at page "LIBO" on
---------------
the Reuter's Monitor Screen or such other display on the Reuter Monitor System
as may replace such page displaying the London interbank bid or offered rates,
as the case may be, as of 11:00 a.m., London time, on the date on which the
relevant determination is made.
"Revolving Credit Loans" shall have the meaning assigned to that term
----------------------
in Section 2.1(a).
"Revolving Credit Note" or "Revolving Credit Notes" shall mean the
--------------------- ----------------------
promissory notes of the Borrower executed and delivered under Sections 2.2 and
2.13, together with all extensions, renewals, replacements, refinancings or
refundings thereof in whole or part.
"Rollover Loan" shall mean any Loan made on the Maturity Date of any
-------------
preceding Loan (or on the date specified in a notice under Section 2.7(e)), with
the aggregate principal amount of such Rollover Loan being less than or equal to
the aggregate principal amount of such preceding Loan.
"Security Interest" shall have the meaning given in the Borrower
-----------------
Pledge Agreement, the Note Pledge Agreement, the Parent Agreement or a Parent
Subsidiary Agreement, as the context requires.
"Set of Loans" shall mean Loans made by the Banks on the same date
------------
having the same Interest Period and bearing interest at the same interest rate
Option.
"Shares" shall mean the shares of TWI Series LMCN-V Common Stock
------
pledged on the Closing Date under the Borrower Pledge Agreement or pledged
thereafter pursuant to the Pledge Agreements, and all shares of capital stock of
Acquired Companies pledged by the Parent, the Borrower or a Parent Subsidiary
after the Closing Date pursuant to the Pledge Agreements, together with all
stock or securities received in addition to (other than the capital stock of the
Borrower and each Parent Subsidiary) or in exchange for such shares.
"Standard Notice" shall mean an irrevocable notice provided to the
---------------
Administrative Agent on a Business Day which is:
(a) on or prior to the proposed Business Day for a Loan in
the case of selection of the Base Rate Option or prepayment of any Base
Rate Loan; and
(b) at least three London Business Days in advance in the
case of selection of the Euro-Rate Option or one London Business Day in
advance in the case of prepayment of any Euro-Rate Loan.
Standard Notice must be provided no later than (i) 12:00 noon, New York City
time, in the case of the preceding clause (a), and (ii) 1:00 p.m., New York City
time, in the case of the preceding clause (b), in each case on the last day
permitted for such notice.
- 14 -
<PAGE>
"Stockholders' Agreement" shall mean the Stockholders' Agreement,
-----------------------
dated October 10, 1996, by and among the Parent, Liberty Broadcasting, Inc., the
Borrower, Turner Outdoor Inc. and TWI, as amended, modified or supplemented.
"Subsidiary" of a person at any time shall mean any corporation of
----------
which a majority (by number of shares or number of votes) of any class of
outstanding capital stock normally entitled to vote for the election of one or
more directors (regardless of any contingency which does or may suspend or
dilute the voting rights of such class) is at such time owned directly or
indirectly by such person or one or more Subsidiaries of such person.
"Syndication Agent" shall have the meaning assigned to that term in
-----------------
the preamble hereof.
"Tax Sharing Agreement" shall mean the Tax Sharing Agreement, dated
---------------------
as of November 18, 1991, by and among TCIC and its Subsidiaries, as amended,
modified or supplemented.
"Taxes" shall have the meaning assigned to that term in Section 2.14.
-----
"TCI" shall mean Tele-Communications, Inc., a Delaware corporation.
---
"TCIC" shall mean TCI Communications, Inc., a Delaware corporation.
----
"Total Current Commitment" at any time shall mean the sum of the
------------------------
Current Commitments at such time.
"TWI" shall mean Time Warner Inc. (formerly known as TW Inc.), a
---
Delaware corporation.
"TWI Agreements" shall mean the LMC Agreement, the LMC Registration
--------------
Rights Agreement and the Stockholders' Agreement.
"TWI Common Stock" shall mean the Common Stock, par value $.01, of
----------------
TWI.
"TWI Series LMCN-V Common Stock" shall mean Series LMCN-V Common
------------------------------
Stock, par value $.01 per share, of TWI.
- 15 -
<PAGE>
"TWI Stock Documents" shall mean the Certificate of Designation and
-------------------
the Certificate of Incorporation of TWI.
"Zero-Rated Jurisdiction" shall mean any of the following countries
-----------------------
each of which has a treaty with the United States which, in general, as of the
date hereof, fully eliminates United States withholding tax on interest, subject
to compliance with treaty conditions: Austria, Denmark, Finland, France, Federal
Republic of Germany, Greece, Hungary, Iceland, Ireland, Luxembourg, Netherlands,
Norway, Poland, Sweden and the United Kingdom.
1.2 Construction.
------------
Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular, the singular the plural and the
part the whole and "or" has the inclusive meaning represented by the phrase
"and/or". References in this Agreement to "determination" by the Administrative
Agent or the Banks include good faith estimates by the Administrative Agent or
the Banks (in the case of quantitative determinations) and good faith beliefs by
the Administrative Agent or the Banks (in the case of qualitative
determinations). The words "hereof", "herein", "hereunder" and similar terms in
this Agreement refer to this Agreement as a whole and not to any particular
provision of this Agreement. The section and other headings contained in this
Agreement and the Table of Contents preceding this Agreement are for reference
purposes only and shall not control or affect the construction of this Agreement
or the interpretation thereof in any respect. Section, subsection and exhibit
references are to this Agreement unless otherwise specified.
1.3 Accounting Principles.
---------------------
Except as otherwise provided in this Agreement, all computations and
determinations as to accounting or financial matters and all financial
statements to be delivered pursuant to this Agreement shall be made and prepared
in accordance with GAAP (including, without limitation, principles of
consolidation where appropriate), and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP.
ARTICLE 2. THE CREDITS
-----------
2.1 Revolving Credit Loans.
----------------------
(a) The Commitments. Subject to the terms and conditions and
---------------
relying upon the representations and warranties herein set forth, each Bank
severally agrees (such agreement being herein called such Bank's "Commitment")
----------
to make loans, some of which may be Rollover Loans, to the Borrower (the
"Revolving Credit Loans") at any time or from time to time on or after the
----------------------
Effective Date and to but not including the Expiration Date in an aggregate
principal amount not exceeding at any one time outstanding such Bank's Current
Commitment at such time. Each Bank's "Current Commitment" at any time shall be
------------------
equal to the amount set forth opposite the name of such Bank on Exhibit I
hereto, as such amount may have been reduced under Section 2.6 at such time. The
Banks shall have no obligation to make Revolving Credit Loans hereunder on or
after the Expiration Date. The failure of any Bank to make a Revolving Credit
Loan shall not relieve
- 16 -
<PAGE>
any other Bank of its obligation to lend hereunder, but neither the
Administrative Agent nor any Bank shall be responsible for the failure of any
other Bank to make a Revolving Credit Loan. The failure of any Bank to comply
with the terms of this Agreement will not relieve any other Bank or the Borrower
of its obligations under this Agreement, the Revolving Credit Notes and the
Related Documents.
(b) Revolving Credit. Within the limits of time and amount
----------------
set forth in this Section 2.1, and subject to the provisions of this Agreement,
the Borrower may borrow, repay and reborrow hereunder.
2.2 Revolving Credit Note.
---------------------
(a) The obligations of the Borrower to repay the unpaid
principal amount of the Revolving Credit Loans made to it by each Bank and to
pay interest thereon shall be evidenced in part by a promissory note of the
Borrower, dated the Closing Date (a "Revolving Credit Note"), in substantially
---------------------
the form attached hereto as Exhibit A, payable to the order of such Bank with
the blanks appropriately filled. Each executed Revolving Credit Note shall be
delivered by the Borrower to the Administrative Agent on behalf of each Bank on
the Closing Date, and the Administrative Agent shall promptly send such
Revolving Credit Notes to the Banks.
(b) Each Bank is hereby irrevocably authorized by the
Borrower to enter on the schedule attached to its Revolving Credit Note(s) the
principal amount and interest rate or rates of each Loan made by it thereunder,
each payment thereon, and the other information provided for on such schedule;
provided, however, that the failure to make any such entry with respect to any
Loan shall not limit or otherwise affect the obligation of the Borrower to repay
the same and, in all events, the principal amount owing by the Borrower in
respect of each Bank's Revolving Credit Note(s) shall be the aggregate amount of
all Loans made by such Bank thereunder less all payments of principal thereon
made by the Borrower. Each Bank may attach one or more continuations to such
schedule as and when required. The aggregate unpaid principal balances of and
the interest rates applicable to the Loans set forth in the schedule attached to
each Revolving Credit Note shall be presumptive evidence of the principal
amounts owing and unpaid thereon and the interest rates applicable thereto,
absent manifest error.
(c) Upon surrender of any Revolving Credit Note at the office
designated by the Borrower by reason of the assignment by any Bank of any
Revolving Credit Note, Loan or Commitment or portion thereof in accordance with
the provisions of Section 9.12, the Borrower shall, at the cost of such Bank,
execute and deliver one or more new Revolving Credit Notes of like
- 17 -
<PAGE>
tenor and of a like aggregate principal amount in the name of the designated
holder or holders of such Revolving Credit Note, Loan or Commitment or portions
thereof. Upon receipt of written notice from any holder or other evidence
reasonably satisfactory to the Borrower of the loss, theft, destruction or
mutilation of any Revolving Credit Note held by such holder and, in the case of
any such loss, theft or destruction, upon receipt of an unsecured indemnity
agreement, or in the case of any such mutilation, upon surrender and
cancellation of any such Revolving Credit Note, the Borrower shall, at the cost
of such holder, make and deliver a new Revolving Credit Note, of like tenor, in
lieu of the lost, stolen, destroyed or mutilated Revolving Credit Note. Any such
new Revolving Credit Note or Revolving Credit Notes shall thereafter be
considered a Revolving Credit Note or Revolving Credit Notes under this
Agreement. Any such new Revolving Credit Note or Revolving Credit Notes shall
carry the rights to accrued and unpaid interest which were carried by the
Revolving Credit Note or Revolving Credit Notes so exchanged so that neither
gain nor loss of interest shall result from any such exchange.
2.3 Loan/Value Percentage.
---------------------
(a) Borrowings. Notwithstanding Section 2.1, the Banks shall
----------
not be required to make any Revolving Credit Loans (other than Rollover Loans),
if the Loan/Value Percentage on the date of such Revolving Credit Loans, and
after giving effect to such Revolving Credit Loans, would exceed 50%.
(b) Outstanding Loans. If the average Loan/Value Percentage
-----------------
is greater than 55% but less than or equal to 57.5% during any period of ten
consecutive Business Days, or if the Loan/Value Percentage exceeds 57.5% on any
day, then on such tenth consecutive Business Day or on the second Business Day
following the day the Loan/Value Percentage exceeds 55% or 57.5%, as the case
may be:
(i) the Borrower shall prepay Revolving Credit Loans in
an aggregate principal amount such that the Loan/Value Percentage
would not be greater than 50% on the date of such repayment; and/or
(ii) additional Shares shall be pledged in accordance
with the Pledge Agreements such that the Loan/Value Percentage would
not be greater than 50% on the date of such delivery.
A pledge of additional Shares shall not be deemed effective for purposes of this
Section until the conditions set forth in Section 4.3 have been satisfied.
2.4 Making of Revolving Credit Loans.
--------------------------------
(a) Notice. Whenever the Borrower desires that the Banks make
------
Revolving Credit Loans, the Borrower shall provide Standard Notice to the
Administrative Agent (which may be by telecopy or telephone in each case
promptly confirmed in writing, and which shall be irrevocable) setting forth the
following information:
(i) the date, which shall be a Business Day, on which
such Loans are to be made;
- 18 -
<PAGE>
(ii) the interest rate Option selected in accordance
with Section 2.7(a);
(iii) the Interest Period for such Loans selected in
accordance with Section 2.7(b); and
(iv) the principal amount of such Loans selected in
accordance with Section 2.7(c).
(b) Proceeds. The Administrative Agent shall advise each Bank
--------
of the information contained in such notice and its proportionate share of the
aggregate proposed borrowing promptly after receipt of such notice. Standard
Notice having been so provided, on the date specified in such Standard Notice
each Bank shall (i) if such Loan is a Rollover Loan, apply the proceeds of such
Rollover Loan against amounts due and payable hereunder or (ii) if such Loan is
not a Rollover Loan, make the proceeds of such Loan available to the Borrower at
the Administrative Agent's Office, no later than 12:00 o'clock noon, New York
City time, in funds immediately available at such Office.
(c) Funding by Administrative Agent. Unless the
-------------------------------
Administrative Agent shall have received prior notice from a Bank (which notice
shall be given promptly by telephone or telecopy, in each case to be promptly
confirmed in writing, provided that the failure to so confirm in writing shall
not invalidate any notice so given) that such Bank will not make available to
the Administrative Agent such Bank's proportionate share of the Loans requested
by the Borrower, and provided that the Administrative Agent shall have given
such Bank timely notice of the applicable request for Revolving Credit Loans in
accordance with Section 2.4(b), the Administrative Agent may assume that such
Bank has made its proportionate share available to the Administrative Agent on
the applicable borrowing date and the Administrative Agent in reliance upon such
assumption, may (but shall not be obligated to) make available to the Borrower
on such borrowing date an amount corresponding to such Bank's proportionate
share of the Loans made on such date. If and to the extent such Bank shall not
have so made such applicable percentage available to the Administrative Agent,
such Bank agrees to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, (i) for each day from the
date such amount is made available to the Borrower until the earlier to occur of
the date such amount is repaid to the Administrative Agent or the second
Business Day following the date such amount was made available to the Borrower
by the Administrative Agent, at a rate per annum equal to the Federal Funds
Effective Rate for such day and (ii) for each day thereafter until the date such
amount is repaid to the Administrative Agent, at a rate per annum equal to the
Federal Funds Effective Rate plus 1% for such day, and such Bank agrees to repay
to the Administrative Agent
- 19 -
<PAGE>
forthwith on demand such out of pocket administrative and investigative expenses
incurred by the Administrative Agent in connection with the Administrative
Agent's reasonable efforts to obtain such payments. If such Bank shall repay to
the Administrative Agent such corresponding amount, together with accrued
interest, such amount so repaid shall constitute such Bank's Loan for purposes
of this Agreement. In the event that, at any time when the conditions to
borrowing have been satisfied pursuant to Sections 4.1 and 4.2, as applicable, a
Bank for any reason fails or refuses to fund a Loan which it is obligated to
fund hereunder, and such failure or refusal shall have continued for five
Business Days, such non-funding Bank shall not be entitled (A) to vote regarding
any issue (other than an issue which requires the consent or approval of all of
the Banks) on which voting is required or advisable under this Agreement, any
Revolving Credit Note or any Related Document, (B) to receive any payment of
principal or interest from the Borrower in respect of the Loan or Loans which
such non-funding Bank failed or refused to fund, or (C) to receive any
commitment fee pursuant to Section 2.5 which has accrued after the date such
non-funding Bank failed or refused to fund until such time as (1) such non-
funding Bank has funded such Loan or (2) all of the other Banks who funded their
respective Loans have received their pro rata shares of all principal and
interest payable by the Borrower in respect of the Loan or Loans which such non-
funding Bank failed or refused to fund.
2.5 Commitment Fee.
--------------
The Borrower agrees to pay to the Administrative Agent, for
the account of each Bank, as consideration for each Bank's Commitment hereunder,
a commitment fee (calculated on a 360 day year for the actual number of days
elapsed) equal to (i) at all times when the Loan/Value Percentage is greater
than 30%, 0.25%, per annum and (ii) at all times when the Loan/Value Percentage
is equal to or less than 30%, 0.20% per annum, in each case on the unborrowed
amount of the Current Commitment of such Bank for each day from and including
the Effective Date to and excluding the Expiration Date. The commitment fee
shall be due and payable for the preceding period for which such fee has not
been paid (A) on the last day of each September, December, March and June after
the Effective Date to the Expiration Date, (B) on the date of each reduction of
the Total Current Commitment under Section 2.6 on the amount so reduced and (C)
on the Expiration Date. After any reduction of the Total Current Commitment
pursuant to Section 2.6, the commitment fee shall be calculated upon the Current
Commitments as so reduced.
2.6 Reduction of the Current Commitments.
------------------------------------
The Borrower may at any time or from time to time reduce the
Total Current Commitment to an amount (which may be zero) not less than the sum
of the unpaid principal amount of the Revolving Credit Loans then outstanding
plus the principal amount of all Revolving Credit Loans not yet made as to which
notice has been given by the Borrower under Section 2.4. Any partial reduction
of the Total Current Commitment shall be in an amount which is an integral
multiple of $1,000,000, shall be irrevocable and shall be applied ratably to
reduce the Current Commitments of the Banks. Reduction of the Total Current
Commitment shall be made by providing not less than one Business Day's notice
(which notice shall be irrevocable) to such effect to the Administrative Agent.
The Administrative Agent shall promptly advise each Bank of the date of any
termination of the Current Commitments and the date and amount of each such
reduction of the Current Commitments.
- 20 -
<PAGE>
2.7 Interest Rates; etc.
-------------------
(a) Optional Basis of Borrowing. Each Set of Loans shall bear
---------------------------
interest for each day until due on a single basis selected by the Borrower from
among the interest rate Options set forth below, it being understood that
subject to the provisions of this Agreement the Borrower may select different
Options to apply simultaneously to different Loans; provided, the total number
--------
of Sets of Loans outstanding shall not at any time exceed five, and provided
--------
further, after the occurrence and during the continuance of an Event of Default
- -------
(whether or not the Banks have otherwise exercised any rights under Article 7
hereof), the Borrower may not select the Euro-Rate Option to apply to any Loans.
(i) Base Rate Option: A rate per annum for each day
----------------
during a Base Rate Interest Period equal to the Base Rate for such
day plus the Applicable Margin.
(ii) Euro-Rate Option: A rate per annum for each day
----------------
during a Euro-Rate Interest Period equal to the Euro-Rate for such
Euro-Rate Interest Period plus the Applicable Margin. The
Administrative Agent shall give prompt notice to the Borrower and the
Banks of the Euro-Rate so determined, which determination shall be
conclusive if made in good faith.
(iii) Applicable Margin. The "Applicable Margin" for any
----------------- -----------------
day shall be the applicable percentage set forth in the table below
opposite the Loan/Value Percentage on the latest of (A) the first day
of the current calendar month, (B) the date of the most recent
Revolving Credit Loans (other than Rollover Loans), (C) the date of
the most recent prepayment of Revolving Credit Loans (other than a
repayment made with the proceeds of Rollover Loans), or (D) the date
of the most recent pledge of additional Shares or the most recent
withdrawal of Shares.
<TABLE>
<CAPTION>
Applicable Applicable
Margin Margin
Loan/Value Percentage Euro-Rate Base Rate
- --------------------- ---------- ----------
<S> <C> <C>
Greater than 40% 1.125% 0.125%
Equal to or less than
40% and greater than 25% 0.875% 0.0%
</TABLE>
- 21 -
<PAGE>
Less than or equal to 25% 0.500% 0.0%
(b) Interest Periods. At any time when the Borrower shall request
----------------
the Banks to make any Loan, the Borrower shall specify the term of such Loan
(the "Interest Period" of such Loan) as set forth in the chart below:
---------------
Type of Loan Available Interest Periods
------------ --------------------------
Base Rate Loan A period beginning on the date of such Loan and
ending on the last day of the calendar quarter im-
mediately following the date of such Loan ("Base
----
Rate Interest Period");
--------------------
Euro-Rate Loan One, two, three, four, five or six months ("Euro-
-----
Rate Interest Period");
--------------------
provided, that:
- --------
(i) Each Base Rate Interest Period which would otherwise end
on a day which is not a Business Day shall be extended to the next
succeeding Business Day;
(ii) Each Euro-Rate Interest Period shall begin on a London
Business Day, and the duration of each Euro-Rate Interest Period shall be
determined in accordance with the definition of the term "month" below;
(iii) Each Interest Period which would otherwise end after the
Expiration Date, shall instead end on the Expiration Date; and
(iv) Each Euro-Rate Interest Period shall begin on a London
Business Day, and the term "month", when used in connection with a Euro-
Rate Interest Period, shall be construed in accordance with prevailing
practices in the London interbank eurodollar market at the commencement of
such Euro-Rate Interest Period, as determined in good faith by the
Administrative Agent (which determination shall be conclusive).
Each Loan made hereunder shall mature, and the principal amount thereof shall be
due and payable, on the last day of the corresponding Interest Period for such
Loan (a "Maturity Date").
-------------
(c) Transactional Amounts. Every request for a Set of Loans and
---------------------
every prepayment of a Loan shall be in a principal amount such that after giving
effect thereto the principal amount of each such Set of Loans shall be as set
forth in the table below:
- 22 -
<PAGE>
Type of Loan Allowable Principal Amounts
------------ ---------------------------
Base Rate Loan $100,000 or an integral multiple thereof;
Euro-Rate Loan $5,000,000 or an integral multiple of $1,000,000 in
excess of $5,000,000.
(d) Interest After Maturity. After the principal amount of any Base
-----------------------
Rate Loan shall have become due (by acceleration or otherwise), such Loan shall
bear interest for each day until paid (before and after judgment) at a rate per
annum equal to 2% plus the Base Rate. After the principal amount of any Euro-
Rate Loan shall have become due (by acceleration or otherwise), such Loan shall
bear interest for each day until paid (before and after judgment) until the end
of the applicable then current Interest Period at a rate per annum equal to 2%
plus the rate otherwise applicable to such Loan and thereafter in accordance
with the previous sentence.
(e) Euro-Rate Unascertainable; Impracticability. If:
-------------------------------------------
(i) on any date on which a Euro-Rate would otherwise be set
the Administrative Agent shall have in good faith determined (which
determination shall be conclusive absent manifest error) that:
(A) adequate and reasonable means do not exist for
ascertaining such Euro-Rate, or
(B) a contingency has occurred which materially and
adversely affects the London interbank eurodollar market;
(ii) at any time the Required Banks shall have notified the
Administrative Agent that they have determined (which determination shall
be conclusive absent manifest error) that the effective cost of funding a
proposed Euro-Rate Loan from a Corresponding Source of Funds shall exceed
the Euro-Rate applicable to such
- 23 -
<PAGE>
Loan; or
(iii) at any time any Bank shall have notified the
Administrative Agent that such Bank has determined in good faith (which
determination shall be conclusive absent manifest error) that the making,
maintenance or funding of any Euro-Rate Loan has been made impracticable or
unlawful by compliance by any Bank or a Notional Euro-Rate Funding Office
in good faith with any Law or guideline or interpretation or administration
thereof by any Official Body charged with the interpretation or
administration thereof or with any request or directive of any such
Official Body (whether or not having the force of law);
then, and in any such event, the Administrative Agent shall promptly notify the
Borrower and the Banks of such determination. Upon such date as shall be
specified in such notice (which shall not be earlier than the date such notice
is given) the Euro-Rate Option shall cease to apply, and all Euro-Rate Loans
shall be due and payable. Absent contrary notice from the Borrower by 12:00
noon, New York City time, on such date, the Borrower shall be deemed to have
given the Administrative Agent notice pursuant to Section 2.4 at such time to
the effect that the Borrower requests that the Banks make Base Rate Loans in
principal amounts equal to the principal amount of Loans becoming due and
payable pursuant to the preceding sentence. If at the time the Administrative
Agent makes a determination under this Section 2.7(e) the Borrower has
previously notified the Administrative Agent that it wishes to select the
Euro-Rate Option with respect to any proposed Loan, but such Loan has not yet
been made, such notification shall be deemed to provide for selection of the
Base Rate Option instead of the Euro-Rate Option.
(f) Maximum Rate. If the provisions of this Agreement or any
------------
Revolving Credit Note would at any time require payment by the Borrower to the
Administrative Agent on behalf of any Bank of any amount of interest in excess
of the maximum amount then permitted by the law applicable to any Loan, the
interest payments to the Administrative Agent on behalf of such Bank shall be
reduced to the extent necessary so that such Bank shall not receive interest in
excess of such maximum amount. If, as a result of the foregoing such Bank shall
receive interest payments under this Agreement or any Revolving Credit Note in
an amount less than the amount otherwise provided therein, such deficit
(hereinafter called the "Interest Deficit") will, to the fullest extent
----------------
permitted by applicable law, cumulate and be carried forward (without interest)
until the termination of this Agreement. Interest otherwise payable to the
Administrative Agent on behalf of such Bank under this Agreement or any
Revolving Credit Note for any subsequent period shall be increased by the
maximum amount of the Interest Deficit that may be so added without causing such
Bank to receive interest in excess of the maximum amount then permitted by the
law applicable to the Loans, provided that at no time shall the aggregate amount
by which interest paid by the Borrower has been increased pursuant to this
sentence exceed the aggregate amount by which interest paid by the Borrower has
theretofore been reduced pursuant to this Section 2.7(f).
2.8 Failure of Borrower to Give Notice.
----------------------------------
Absent contrary notice from the Borrower pursuant to Section 2.4, by
1:00 p.m., New York City time, on the Maturity Date of any Loan, the Borrower
shall be deemed to have
- 24 -
<PAGE>
given the Administrative Agent Standard Notice, pursuant to Section 2.4, that
the Borrower requests that the Banks make Rollover Loans on such date at the
Base Rate Option in a principal amount equal to the aggregate principal amount
of Loans becoming due and payable on such Maturity Date. In such event the
Administrative Agent shall promptly notify the Borrower in writing that such a
Rollover Loan at the Base Rate Option is deemed to have been made.
2.9 Prepayments.
-----------
Subject to the provisions of Section 2.12(b), the Borrower shall have
the right at its option from time to time to prepay the Loans in whole or part,
at any time. Whenever the Borrower desires to prepay any Loan, it shall provide
Standard Notice to the Administrative Agent setting forth the following
information:
(a) the date, which shall be a Business Day, on which the
proposed prepayment is to be made; and
(b) the total principal amount of such prepayment, selected
in accordance with Section 2.7(c) which shall be the sum of the principal
amounts of the Loans to be prepaid.
The Administrative Agent shall advise each Bank of the information contained in
such notice promptly after receipt thereof. Standard Notice having been so
provided, on the date specified in such Standard Notice the principal amounts of
all Loans specified in such notice, together with interest on such principal
amounts to such date, shall be due and payable.
2.10 Interest Payment Dates.
----------------------
Interest on the Base Rate Loans shall be due and payable on the last
day of each September, December, March and June after the Effective Date.
Interest on each Euro-Rate Loan shall be due and payable on the last day of the
corresponding Interest Period and, if such Interest Period is longer than three
months, also at the end of every third month during such Interest Period. After
maturity of any part of the Loans (by acceleration or otherwise), interest on
such part of the Loans shall be due and payable on demand.
2.11 Payments.
--------
- 25 -
<PAGE>
All payments and prepayments to be made in respect of principal,
interest, fees or other amounts due from the Borrower hereunder or under any
Revolving Credit Note shall be payable at 1:00 p.m., New York City time, on the
day when due without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived, and an action therefor shall immediately
accrue, and shall be accompanied by a notice substantially in the form of
Exhibit J hereto (a "Payment Notice"). All payments received after such time
--------------
shall be deemed to have been received on the next following Business Day. Such
payments shall be made to the Administrative Agent at its Office in Dollars in
funds immediately available at such Office without setoff, counterclaim or other
deduction of any nature. Unless otherwise contemplated by this Agreement, the
Administrative Agent shall distribute to the Banks pro rata according to their
outstanding Loans all such payments received by it from the Borrower in like
funds on the day received by the Administrative Agent. To the extent permitted
by law, after there shall have become due (by acceleration or otherwise)
interest, fees or any other amounts due from the Borrower hereunder or under the
Revolving Credit Notes (excluding overdue principal, which shall bear interest
as described in Section 2.7(d), but including interest payable under this
Section 2.11), such amounts shall bear interest for each day until paid (before
and after judgment), payable on demand, at a rate per annum equal to the Base
Rate plus 2%.
2.12 Additional Compensation in Certain Circumstances.
------------------------------------------------
(a) Increased Costs or Reduced Return Resulting From Taxes,
-------------------------------------------------------
Reserves, Capital Adequacy Requirements, Expenses, etc. If any change in any Law
- ------------------------------------------------------
or guideline or interpretation or application thereof by any Official Body
charged with the interpretation or administration thereof or compliance with any
request or directive of any Official Body (whether or not having the force of
law) which is generally applicable to banks (and not just to the Banks), now
existing or hereafter adopted:
(i) subjects any Bank or any Notional Euro-Rate Funding
Office to any tax or changes the basis of taxation with respect to this
Agreement, the Revolving Credit Notes, the Loans or payments by the
Borrower of principal, interest, fees or other amounts due from the
Borrower hereunder or under the Revolving Credit Notes (except for taxes on
the overall net income of such Bank or such Notional Euro-Rate Funding
Office by the jurisdiction in which such Bank's Notional Euro-Rate Funding
Office or principal office is located),
(ii) imposes, modifies or deems applicable any reserve
(including, without limitation, reserves for eurocurrency liabilities),
special deposit or similar requirement against credits or commitments to
extend credit extended by, or assets (funded or contingent) of, deposits
with or for the account of, or other acquisitions of funds by, any Bank or
any Notional Euro-Rate Funding Office, or
(iii) imposes, modifies or deems applicable any capital
adequacy or similar requirement (A) against assets (funded or contingent)
of, or credits or commitments to extend credit extended by, any Bank or any
Notional Euro-Rate Funding Office, or (B) otherwise applicable to the
obligations of any Bank or any Notional Euro-Rate Funding Office under this
Agreement, or
- 26 -
<PAGE>
(iv) imposes upon any Bank or any Notional Euro-Rate
Funding Office any other condition or expense with respect to this
Agreement, the Revolving Credit Notes or its making, maintenance or
funding of any part of the Loans or any security therefor,
and the result of any of the foregoing (taking such Bank's policies into
account) is to (A) increase the cost to such Bank of making, funding or
maintaining any Loan or any part of its Commitment hereunder, (B) reduce the
amount of any payment (whether of principal, interest or otherwise) received or
receivable by such Bank or (C) require such Bank or its holding company to
deposit any reserve, increase its capital (or, in the case of any capital
adequacy or similar requirement, have the effect of reducing the rate of return
on such Bank's capital) or make any payment on or calculated by reference to any
Loan made or sum received by it, or any part of its Commitment, in each case by
an amount which such Bank in its sole judgment reasonably deems material (after
conducting the review contemplated by the last paragraph of this Section
2.12(a)):
(1) such Bank shall promptly notify the Borrower and
the Administrative Agent of the happening of such event;
(2) such Bank shall promptly, and in any case within 90
days of the date when it becomes aware of the happening of
such an event, deliver to the Borrower and the Administrative
Agent a certificate, executed by an authorized officer of such
Bank and delivered by a relationship officer thereof, stating
the change which has occurred or the reserve requirements or
other conditions which have been imposed or the request,
direction or requirement with which such Bank has complied or
will comply, together with the date thereof, the amount of
such increased costs, reduction or payment, the way in which
such amount has been calculated, and shall certify that this
is the Bank's standard method of calculating such amount, that
such amount is or will be calculated in a similar way for
other borrowers of the Bank under similar circumstances, that
such requests are not inconsistent with its treatment of other
borrowers which are subject to similar provisions, and that
its method of allocating any such costs, reductions or
payments is fair and reasonable; and
(3) the Borrower shall promptly pay to the
Administrative Agent for transfer to such affected Bank such
amount or amounts set forth in such certificate as will
compensate such Bank for such additional costs,
- 27 -
<PAGE>
reduction or payment.
The certificate of the affected Bank as to the additional amounts payable
pursuant to this Section 2.12(a) delivered to the Borrower shall contain in
reasonable detail the basis upon which such additional amounts have been
calculated and shall be conclusive absent manifest error. The provisions of this
Section 2.12(a) shall be applicable to the Borrower and the affected Bank
regardless of any possible contention of invalidity or inapplicability of the
Law, guideline or change which has been imposed. Notwithstanding the foregoing,
the Borrower will not be required to reimburse any Bank for any increased costs,
reductions or payments under this Section 2.12(a) arising prior to 90 days
preceding the date of request, unless the applicable Law, guideline or change is
imposed retroactively. In the case of a Law, guideline or change which is
retroactive in effect, such notice shall be provided to the Borrower not later
than 90 days from the date that such Bank reasonably should have learned of such
Law, guideline or change, and the Borrower's obligations to compensate such Bank
for such increased cost or reduction is contingent upon the provision of such
timely notice (but any failure by such Bank to provide such timely notice shall
not affect the Borrower's reimbursement obligations with respect to (I) costs or
reductions incurred from the date as of which the Law, guideline or change
became effective to the date that is 90 days after such Bank reasonably should
have learned of such Law, guideline or change and (II) costs or reductions
incurred following the provision of such notice). No failure on the part of any
Bank to demand compensation under this Section 2.12(a) shall constitute a waiver
of its right to demand such compensation on any other occasion in connection
with any other similar or dissimilar event. If the affected Bank shall
subsequently recoup costs for which such Bank has theretofore been compensated
by the Borrower, such Bank shall remit to the Borrower the amount of the
recoupment. If the Borrower shall be required to make any payment or
reimbursement or to compensate any Bank under this Section 2.12(a), so long as
no Potential Default or Event of Default has occurred and is continuing, the
Borrower shall be free at any time within 180 days after the receipt of the
certificate of the affected Bank, (x) to terminate the affected Bank's
Commitment and the affected Bank's entitlement to the commitment fee accruing
after such termination, (y) to prepay the affected portion of any Loan in full
(and reduce such Bank's Current Commitment in a corresponding amount), and pay
(without duplication) all amounts payable pursuant to 2.12(b) with respect to
cost of funds or clause (3) above in order to compensate such affected Bank for
additional costs, reductions or payments with respect to the period prior to
prepayment, together with accrued interest on the amount thereof through the
date of such prepayment or (z) to replace any such Bank with another major
international bank reasonably acceptable to the Administrative Agent. Upon any
exercise of either of the rights described in clauses (x) and (y) above, the
Total Current Commitment shall be automatically and irrevocably reduced by the
amount of the terminated Commitment in the case of clause (x), and by the amount
of the prepayment in the case of clause (y). Each Bank affected by any
circumstances referred to in Section 2.12(a)(i) through (iv) shall use its
reasonable efforts to conduct a review of alternative reasonable courses of
action which may mitigate or eliminate the increased cost to the Bank of making,
funding or maintaining any Loan made by it and its obligations in respect of its
Commitment hereunder and shall engage in any such alternative course of action
which is considered reasonable under the circumstances as they shall exist at
such time; provided, such alternative course of action will not result in any
--------
increased costs or reduction of the amount of any payment receivable hereunder
by such Bank or cause such Bank, in its good faith judgment, to violate one or
more of its policies in order to avoid such
- 28 -
<PAGE>
increased cost or reduction.
(b) Indemnity. In addition to the compensation required by
---------
subsection (a) of this Section 2.12, the Borrower shall indemnify each Bank
against any loss or expense (excluding loss of margin) which such Bank has
sustained or incurred as a consequence of any
(i) payment or prepayment (other than as a result of
any determination made under Section 2.7(e)(ii)) of any Euro-Rate
Loan on a day other than the last day of the corresponding Interest
Period (whether or not such payment or prepayment is mandatory or
automatic and whether or not such payment or prepayment is then due),
(ii) attempt by the Borrower to revoke (expressly, by
later inconsistent notices or otherwise) in whole or part any notice
related to any Euro-Rate Loan stated herein to be irrevocable, or
(iii) default in the performance or observance of any
covenant or condition related to any Euro-Rate Loan contained in this
Agreement, the Revolving Credit Notes or the Related Documents,
including, without limitation, any failure of the Borrower to pay
when due (by acceleration or otherwise) any principal, interest or
any other amount due hereunder or under any Revolving Credit Note.
The amount of any loss or expense suffered by a Bank as a result of the
occurrence of one of the events described in clause (i) or (ii) above shall be
an amount equal to:
D
---
A x (B-C) x 360
where:
"A" equals such Bank's pro rata share of the principal amount
of the affected Set of Loans;
"B" equals the Euro-Rate (expressed as a decimal) applicable
to such Set of Loans;
"C" equals the Euro-Bid Rate (expressed as a decimal) in
effect on or about the
- 29 -
<PAGE>
date of such event for a Loan, based on the applicable rates
bid on or about such date for deposits in an amount
approximately equal to such Bank's pro rata share of the
principal amount of the affected Set of Loans, with a
Interest Period approximately equal to the period commencing
on the date of such event and ending on the last day of the
applicable Interest Period for such Set of Loans, as
determined by such Bank (which for purposes of this
calculation shall not exceed "B"); and
"D" equals the number of days from and including the date of
such event to and including the last day of the Interest
Period applicable to such Set of Loans;
and any other reasonable out-of-pocket loss or expense (including, without
limitation, any internal processing charge customarily charged by such Bank)
suffered by such Bank in liquidating deposits prior to maturity in amounts which
correspond to such Bank's pro rata share of such Set of Loans. If any Bank
sustains or incurs any such loss or expense it shall promptly notify the
Borrower in writing of the amount determined in good faith by such Bank (which
determination shall be conclusive absent manifest error) to be necessary to
indemnify such Bank for such loss or expense (each Bank being deemed for this
purpose to have made, maintained or funded each Euro-Rate Loan from a
Corresponding Source of Funds). Such amount shall be due and payable by the
Borrower to each Bank ten Business Days after such notice is given.
2.13 Funding by Branch, Subsidiary or Affiliate.
(a) Notional Funding. Each Bank shall have the right from
----------------
time to time, prospectively or retrospectively, without notice to the Borrower,
to deem any branch, subsidiary or affiliate of such Bank to have made,
maintained or funded any Euro-Rate Loan at any time. Any branch, subsidiary or
affiliate so deemed shall be known as a "Notional Euro-Rate Funding Office".
---------------------------------
Each Bank shall deem any Euro-Rate Loan or the funding therefor to have been
transferred to a different Notional Euro-Rate Funding Office if such transfer
would avoid or cure an event or condition described in Section 2.7(e)(iii) or
would lessen compensation payable by the Borrower under Section 2.12(a), and if
such Bank determines in its sole discretion that such transfer would be
practicable and would not have a material adverse effect on such Loan, such Bank
or any Notional Euro-Rate Funding Office (it being assumed for purposes of such
determination that each Euro-Rate Loan is actually made or maintained by or
funded through the corresponding Notional Euro-Rate Funding Office). Notional
Euro-Rate Funding Offices may be selected by each Bank without regard to such
Bank's actual methods of making, maintaining or funding the Loans or any sources
of funding actually used by or available to such Bank.
(b) Actual Funding. Each Bank shall have the right from time
to time to make or maintain any Loan by arranging for a branch, subsidiary or
affiliate of such Bank to make or maintain such Loan; provided, such action has
--------
no adverse effect on the Borrower. In such event, each Bank shall have the right
to (i) hold any applicable Revolving Credit Note payable to its order for the
benefit and account of such branch, subsidiary or affiliate or (ii) request the
Borrower to issue one or more promissory notes in the principal amount of such
Loan in substantially the form attached hereto as Exhibit A, with the blanks
appropriately
- 30 -
<PAGE>
filled, payable to such branch, subsidiary or affiliate and with appropriate
changes reflecting that the holder thereof is not obligated to make any
additional Loans to the Borrower. The Borrower agrees to comply promptly with
any request under subsection (ii) of this Section 2.13(b). If any Bank causes a
branch, subsidiary or affiliate to make or maintain any Loan hereunder, all
terms and conditions of this Agreement shall, except where the context clearly
requires otherwise, be applicable to such Loan and to any note payable to the
order of such branch, subsidiary or affiliate to the same extent as if such Loan
were made or maintained by such Bank and such note were a Revolving Credit Note
payable to such Bank's order.
2.14 Taxes and Duties; Counterclaims.
-------------------------------
(a) So long as a Bank has complied with Sections 2.14(b) and
2.15, all payments in respect of this Agreement, the Loans or the Revolving
Credit Notes shall be made by the Borrower to such Bank without defense, setoff
or counterclaim for Taxes (as defined below) and free and clear of all present
and future taxes, levies, imposts, fees, duties and withholdings or other
deductions whatsoever (other than a tax based upon the net income of any Bank)
(collectively, "Taxes"). If any such Tax becomes payable in respect of this
-----
Agreement or any Loan or Revolving Credit Note, or any amendment, modification
or supplement hereof or thereof, the Borrower agrees to pay the same together
with any interest or penalties thereon plus an amount which, after provision for
such Tax, is necessary to yield and remit to such Bank payments at the
applicable rate set forth herein, and agrees to hold the Administrative Agent
and the Bank harmless with respect thereto. To the extent the Borrower is
obligated hereunder, the Borrower shall provide evidence that such Taxes of any
nature whatsoever in respect of this Agreement, any Loan, or any Revolving
Credit Note shall have been paid to the appropriate taxing authorities by
delivery to the Bank on whose account such payment was made of the official tax
receipts or notarized copies of such receipts within 30 days after payment of
any such Tax. If the Borrower fails to make any such payments when due, the
Borrower shall indemnify the Banks and the Administrative Agent for any
incremental Taxes, interest or penalties that may become payable by any Bank or
the Administrative Agent as a result of any such failure.
(b) In order to avoid United States withholding tax costs as
in effect on the Effective Date, each Bank extending credit to the Borrower
hereunder shall book and maintain its Loans through:
(i) any entity that is incorporated in the United
States and that completes the appropriate Form W9; or
- 31 -
<PAGE>
(ii) the branch or agency of an entity incorporated
outside the United States that completes and delivers to the Borrower
in duplicate and to the Administrative Agent a currently effective
Form 4224 (or any successor form) certifying that as of the Effective
Date such entity is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal income
taxes; or
(iii) an entity that is resident in a Zero-Rated
Jurisdiction for United States withholding tax purposes and that
completes and delivers to the Borrower and the Administrative Agent a
currently effective Form 1001 (or any successor form) certifying that
as of the Effective Date such entity is entitled to receive payments
under this Agreement without deduction or withholding of any United
States federal income taxes.
2.15 Tax Forms.
---------
On or prior to the Effective Date, upon the request of the
Administrative Agent (which request shall be made on or prior to December 31 of
each year) and from time to time thereafter if requested by the Borrower or the
Administrative Agent, and to the extent possible under the tax laws and treaties
then in effect, each Bank shall provide to the Administrative Agent and the
Borrower executed forms prescribed by the IRS certifying as to such Bank's
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to such Bank hereunder as
specified in Section 2.14(b), such forms, in the case of those delivered on or
prior to the Effective Date, to be for the 1996 calendar year, and, in the case
of those delivered on or prior to December 31 of each year thereafter, to be for
the next succeeding calendar year if then available for delivery.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower hereby represents and warrants to the Banks that:
3.1 Organization and Qualification.
------------------------------
The Borrower is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. The
Borrower is duly qualified to do business as a foreign corporation and in good
standing in all jurisdictions in which the ownership of its properties or the
nature of its activities or both makes such qualification necessary.
3.2 Authority and Authorization.
---------------------------
(a) The Borrower has corporate power and authority to execute
and deliver this Agreement and the Related Documents to which it is a party, to
make the borrowings provided for herein, to execute and deliver the Revolving
Credit Notes in evidence of such borrowings, to perform its obligations
hereunder, under the Related Documents to which it is a party, and under the
Revolving Credit Notes, and to make Parent Loans, and all such action has been
duly and validly authorized by all necessary corporate proceedings on its part.
-32-
<PAGE>
(b) On the date of each purchase of Shares of a Pledged
Acquired Company, the Borrower will have corporate power and authority to effect
such purchase and all such action will have been duly and validly authorized by
all necessary corporate action on its part.
3.3 Execution and Binding Effect.
----------------------------
This Agreement, the Revolving Credit Notes and the Related
Documents to which the Borrower is a party have been duly and validly executed
and delivered by the Borrower and constitute legal, valid and binding
obligations of the Borrower enforceable in accordance with the terms hereof and
thereof, except as the enforceability of this Agreement, the Related Documents
or the Revolving Credit Notes may be limited by bankruptcy, insolvency or other
similar laws of general application affecting the enforcement of creditors'
rights or by general principles of equity.
3.4 Authorizations and Filings.
--------------------------
(a) No authorization, consent, approval, license, exemption
or other action by, and no registration, qualification, designation, declaration
or filing with, any Official Body is or will be necessary or advisable in
connection with the execution and delivery of this Agreement, the Related
Documents to which the Borrower is a party or the Revolving Credit Notes, the
consummation of the transactions herein or therein contemplated, the performance
of or compliance with the terms and conditions hereof or thereof or the making
of the Parent Loans; except the enforcement of the Borrower Pledge Agreement may
require the consent of the FCC as to the transfer of control of licenses granted
by the FCC to a Pledged Acquired Company or its Subsidiaries, the consent of
certain Official Bodies as to the transfer of control of franchises, licenses,
permits or other authorizations granted to a Pledged Acquired Company or its
Subsidiaries, filings with the Securities and Exchange Commission (or any
successor thereto) as to the transfer of control of a Pledged Acquired Company,
or filings required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, in connection with any transfer of control of a Pledged Acquired
Company or its Subsidiaries.
(b) No authorization, consent, approval, license, exemption
or other action by, and no registration, qualification, designation, declaration
or filing with, any Official Body is or will be necessary or advisable in
connection with the purchase of Shares of a Pledged Acquired Company, except
such authorizations, consents or approvals as shall have been obtained by the
Borrower prior to such purchase.
- 33 -
<PAGE>
3.5 Absence of Conflicts.
--------------------
Neither the execution and delivery of this Agreement, the
Related Documents to which the Borrower is a party or the Revolving Credit Notes
nor the consummation of the transactions herein or therein contemplated nor
performance of or compliance with the terms and conditions hereof or thereof,
nor the enforcement of the terms and conditions hereof or thereof (including,
without limitation, any change in control of a Pledged Acquired Company or its
Subsidiaries resulting from such enforcement), nor the making of the Parent
Loans, nor the purchase by the Borrower of Shares of a Pledged Acquired Company
will:
(a) violate any Law, except the enforcement of the
Borrower Pledge Agreement may require the consent of the FCC as to
the transfer of control of licenses granted by the FCC to a Pledged
Acquired Company or its Subsidiaries, the consent of certain Official
Bodies as to the transfer of control of franchises, licenses, permits
or other authorizations granted to a Pledged Acquired Company or its
Subsidiaries, filings with the Securities and Exchange Commission (or
any successor thereto) as to transfer of control of a Pledged
Acquired Company, or filings required by the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, in connection with
any transfer of control of a Pledged Acquired Company or its
Subsidiaries,
(b) conflict with, result in a breach of or a default
under, accelerate or permit the acceleration of the performance
required by, or give to others any material rights or interests
(including, without limitation, rights of purchase, termination,
cancellation or acceleration) under, the certificate of incorporation
or by-laws of the Borrower, any Pledged Acquired Company or any
Subsidiary of a Pledged Acquired Company or any agreement or
instrument to which the Borrower is a party or by which it or its
properties (now owned or hereafter acquired) may be subject or bound,
except that the enforcement of the Borrower Pledge Agreement with
respect to the TWI Series LMCN-V Common Stock is subject to the
Stockholders' Agreement and Section 6.1 of the Certificate of
Designation; provided that the representation in this clause (b) does
--------
not apply to Pledged Acquired Companies and Subsidiaries of Pledged
Acquired Companies the aggregate value of whose Pledged Securities,
together with the aggregate value of Pledged Securities of Pledged
Acquired Companies (as such terms are defined in the Pledge
Agreements) under the Pledge Agreements as to which a similar
representation is not made, does not exceed 10% of the value of all
Pledged Securities of Pledged Acquired Companies (as such terms are
defined in the Pledge Agreements),
(c) to the knowledge of the Borrower (such knowledge
being based upon a review of publicly available filings made by a
Pledged Acquired Company with the Securities and Exchange Commission
(or any successor thereto)), conflict with, result in a breach of or
a default under, accelerate or permit the acceleration of the
performance required by, or give to others any material rights or
interests (including, without limitation, rights of purchase,
termination, cancellation or acceleration) under, any material
agreement or material instrument to which such Pledged Acquired
Company or any Subsidiary of such Pledged Acquired Company is a party
or by which it or its properties (now owned or hereafter acquired)
may be subject or bound, if such
- 34 -
<PAGE>
conflict, breach, default, acceleration or rights or interest could
reasonably be expected to have a material adverse effect on the value
of the Pledged Securities or on the rights of the Administrative
Agent under the Borrower Pledge Agreement; provided that the
representation in this clause (c) does not apply to Pledged Acquired
Companies and Subsidiaries of Pledged Acquired Companies the
aggregate value of whose Pledged Securities, together with the
aggregate value of Pledged Securities of Pledged Acquired Companies
(as such terms are defined in the Pledge Agreements) under the Pledge
Agreements as to which a similar representation is not made, does not
exceed 10% of the value of all Pledged Securities of Pledged Acquired
Companies (as such terms are defined in the Pledge Agreements), or
(d) result in the creation or imposition of any Lien
upon any property (now owned or hereafter acquired) of the Borrower,
a Pledged Acquired Company or any Subsidiary of such Pledged Acquired
Company, other than the Liens created by the Borrower Pledge
Agreement and the Note Pledge Agreement.
3.6 No Event of Default; Compliance with Instruments.
------------------------------------------------
No event has occurred and is continuing and no condition
exists which constitutes an Event of Default or Potential Default. The Borrower
is not in violation of any term of any certificate of incorporation, by-law, or
material agreement or instrument to which the Borrower is a party or by which it
or any of its properties (now owned or hereafter acquired) may be subject or
bound, including, without limitation, the TWI Agreements.
3.7 Litigation.
----------
There is no pending or (to the Borrower's knowledge after due
inquiry) threatened proceeding by or before any Official Body against or
affecting the Borrower which if adversely decided would have a material adverse
effect on the business, operations or financial condition of the Borrower or on
the ability of the Borrower to perform its obligations under this Agreement, the
Related Documents to which it is a party or the Revolving Credit Notes.
3.8 Subsidiaries.
------------
The Borrower owns no equity interest in any person, except
interests in Acquired Companies.
- 35 -
<PAGE>
3.9 Pension Related Matters.
-----------------------
The Borrower has no liability (contingent or otherwise) for,
and none of Borrower's assets are encumbered in connection with, (i) the minimum
funding requirements under ERISA or the Code with respect to a Plan (including,
without limitation, joint and several liability with a Controlled Group Member
for the minimum funding requirement and the excise tax for failure to meet such
requirement, any Lien for contributions with respect to a Plan which are due and
unpaid by the Borrower or a Controlled Group Member, and any security posted by
the Borrower to obtain a waiver of the minimum funding requirement), (ii) any
amendment to a Plan, (iii) any PBGC premiums with respect to a Plan which are
due and unpaid by the Borrower or a Controlled Group Member, or (iv) the
termination of a Plan or withdrawal by the Borrower or a Controlled Group Member
from any Multiemployer Plan. The amount of unfunded benefit liabilities (as
defined in Section 4001(a)(16) of ERISA), as certified to by the Plan's actuary,
for all Plans does not exceed $5,000,000.
3.10 Contracts.
---------
The Borrower is not a party to or subject to any agreement or
instrument of any kind (including, but not limited to, agreements to repay
borrowed money, guarantees, leases of real or personal property as lessor or
lessee, contracts for future purchase or delivery of goods or rendering of
services, powers of attorney, distribution arrangements, patent license
agreements, collective bargaining agreements, employment agreements, bonus,
pension or retirement plans, or vacation pay, insurance or welfare agreements),
except this Agreement, the Related Documents to which it is party, the Revolving
Credit Notes, the Tax Sharing Agreement and the TWI Agreements.
3.11 Taxes.
-----
All tax returns required to be filed by the Borrower or its
Consolidated Group have been properly prepared, executed and filed. All taxes,
assessments, fees and other governmental charges upon the Borrower or its
Consolidated Group or upon any of their respective properties, incomes, sales or
franchises which are due and payable have been paid, other than taxes,
assessments, fees and other governmental charges (i) which are being contested
in good faith and by appropriate proceedings diligently conducted, (ii) which
have been appropriately reserved against in accordance with GAAP, (iii) which
have not resulted in the imposition of any Lien on any Pledged Securities and
(iv) which will not have a material adverse effect on the business, operations
or financial condition of the Borrower. The reserves and provisions for taxes on
the books of the Borrower are adequate for all open years and for its current
fiscal period. The Borrower does not know of any proposed additional assessment
or basis for any material assessment for additional taxes of the Borrower
(whether or not reserved against), except that, with respect to its Consolidated
Group, the taxable years ended December 31, 1987 through December 31, 1995 are
being examined by the Internal Revenue Service.
3.12 Power To Carry On Business.
--------------------------
The Borrower has all requisite corporate power and authority
to own and
- 36 -
<PAGE>
operate its properties and to carry on its business as now conducted and as
presently planned to be conducted.
3.13 Compliance with Laws.
--------------------
The Borrower is not in violation of or subject to any
contingent liability on account of any Law (including, but not limited to,
federal and state securities laws and the Communications Act), except for
violations which in the aggregate do not have a material adverse effect on the
business, operations or financial condition of the Borrower or the ability of
the Borrower to perform its obligations under this Agreement, the Related
Documents to which it is a party and the Revolving Credit Notes.
3.14 Ownership and Control.
---------------------
TCI or LMC owns of record and beneficially, directly or
indirectly, all of the issued and outstanding capital stock of the Parent.
Parent owns, of record and beneficially, directly or indirectly, all of the
issued and outstanding capital stock of the Borrower and each Parent Subsidiary.
All of such outstanding shares of capital stock have been duly authorized and
validly issued and are fully paid and nonassessable. There are no outstanding
options, rights and warrants issued by the Borrower, the Parent, a Parent
Subsidiary or any other corporation which directly or indirectly owns shares of
the capital stock of the Borrower, the Parent or a Parent Subsidiary (hereafter
called an "Intermediate Holder") for the acquisition of shares of the capital
-------------------
stock of the Borrower, the Parent, a Parent Subsidiary or any Intermediate
Holder (other than TCI or LMC), outstanding securities or obligations
convertible into such or agreements by the Borrower, the Parent, a Parent
Subsidiary or any Intermediate Holder (other than TCI or LMC) to issue or sell
such shares. There are no options, sale agreements, pledges, proxies, voting
trusts, powers of attorney or other agreements or instruments binding upon any
shareholder with respect to beneficial or record ownership of or
voting rights with respect to shares of the capital stock of the Borrower, the
Parent, a Parent Subsidiary or any Intermediate Holder (other than TCI or
LMC).
3.15 Status of Shares.
----------------
(a) As of the Closing Date and at all times thereafter when
such shares are Pledged Securities, the Borrower shall own of record and
beneficially 21,928,253 shares of the TWI Series LMCN-V Common Stock, free and
clear of any Lien, charge, encumbrance or restriction on transfer (including,
but not limited to, any withdrawal, rescission or similar right
- 37 -
<PAGE>
of a prior holder of such shares pursuant to any federal or state securities
law), (i) except as otherwise provided by the Borrower Pledge Agreement, (ii)
except as otherwise provided in the Stockholders' Agreement, (iii) except for
restrictions under Section 6.1 of the Certificate of Designation and (iv) except
as the right of the Administrative Agent, the Syndication Agent, the
Documentation Agent and the Banks to dispose of such shares (A) may be limited
by the Securities Act of 1933, as amended, and the regulations promulgated by
the Securities and Exchange Commission thereunder and by applicable state
securities laws or (B) may require the consent of the FCC as to the transfer of
control of licenses granted by the FCC to TWI or its Subsidiaries, the consent
of certain Official Bodies as to the transfer of control of franchises,
licenses, permits or other authorizations granted to TWI or its Subsidiaries, or
filings required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 in
connection with any transfer of control of TWI or its Subsidiaries. All of such
shares are duly authorized, validly issued, fully paid and non-assessable. Such
shares of TWI Series LMCN-V Common Stock constitute (1) 38.4% of the TWI Series
LMCN-V Common Stock outstanding as of the Closing Date, (2) 9.96% of the TWI
Series LMCN-V Common Stock, the TWI Series LMC Common Stock, par value $.01 per
share, and the TWI Common Stock outstanding as of the Closing Date, and (3) less
than 1.1% of the voting power of all classes of stock of TWI outstanding as of
the Closing Date. The Security Interest in the Shares granted in the Borrower
Pledge Agreement constitutes a perfected security interest prior to the rights
of all third parties.
(b) As of the date of any pledge of additional shares of any
Acquired Company by the Borrower and at all times thereafter when such shares
are Pledged Securities, the Borrower will own such shares of record and
beneficially, free and clear of any Lien, charge, encumbrance or restriction on
transfer (including, but not limited to, any withdrawal, rescission or similar
right of a prior holder of such shares pursuant to any federal or state
securities law), except (i) as otherwise provided by the Borrower Pledge
Agreement, (ii) with respect to additional shares of TWI Series LMCN-V Common
Stock, restrictions set forth in the provisions of the Stockholders' Agreement,
(iii) restrictions under Section 6.1 of the Certificate of Designation, (iv)
with respect to additional shares other than TWI capital stock, the restrictions
of Section 310(b) of the Communications Act, and (v) as the right of the
Administrative Agent, the Syndication Agent, the Documentation Agent and the
Banks to dispose of such shares (A) may be limited by the Securities Act of
1933, as amended, and the regulations promulgated by the Securities and Exchange
Commission thereunder and by applicable state securities laws or (B) may require
the consent of the FCC as to the transfer of control of licenses granted by the
FCC to a Pledged Acquired Company or its Subsidiaries, the consent of certain
Official Bodies as to the transfer of control of franchises, licenses, permits
or other authorizations granted to a Pledged Acquired Company or its
Subsidiaries, or filings required by the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 in connection with any transfer of control of a Pledged
Acquired Com- pany or its Subsidiaries. All of such shares will be duly
authorized, validly issued, fully paid and non-assessable. The Security Interest
granted to the Administrative Agent on behalf of itself, the Banks, the
Syndication Agent and the Documentation Agent in such shares pursuant to the
Borrower Pledge Agreement will on the date of such acquisition constitute a
perfected security interest in such shares, prior to the rights of all third
persons.
(c) As of the date of any pledge of Shares pursuant to the
Borrower Pledge
- 38 -
<PAGE>
Agreement, either (i) in the case of a pledge of additional shares of TWI Series
LMCN-V Common Stock, the sale of such shares by the Administrative Agent
pursuant to the Borrower Pledge Agreement shall be exempt from the registration
requirements of the Securities Act of 1933, as amended, or the Administrative
Agent shall be able to exercise rights with respect to such shares under Section
2 of the LMC Registration Rights Agreement, or (ii) in the case of a pledge of
any other additional shares, for purposes of Rule 144 promulgated under the
Securities Act of 1933, as amended, such additional shares shall have been held
by the Borrower for a period in excess of one year in a manner that will permit
the Administrative Agent, on behalf of the Banks, to tack such ownership, or the
sale of such shares by the Administrative Agent pursuant to the Borrower Pledge
Agreement shall be exempt from the registration requirements of the Securities
Act of 1933, as amended.
3.16 Accurate and Complete Disclosure.
--------------------------------
No representation or warranty made by the Borrower under this
Agreement is, and no statement made by the Borrower in any financial statement
(furnished pursuant to Section 5.1(a) or otherwise), certificate, report,
exhibit or document furnished by the Borrower to the Administrative Agent or the
Banks pursuant to or in connection with this Agreement will, at the time
furnished, be, false or misleading in any material respect (including, without
limitation, by omission of material information necessary to make such
representation, warranty or statement not misleading).
3.17 Investment Company.
------------------
The Borrower is not an "investment company" or a company
"controlled" by an investment company within the meaning of the Investment
Company Act of 1940, as amended.
3.18 Public Utility Holding Company.
------------------------------
The Borrower is not a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of either a "holding company"
or a "subsidiary company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
3.19 Business.
--------
The Borrower has no assets other than the Parent Note, the
Pledged Securities, the TWI Agreements, securities of Acquired Companies, and
shares of capital stock that have
- 39 -
<PAGE>
been withdrawn from the lien of the Borrower Pledge Agreement and has no
liabilities, except liabilities to the Administrative Agent and the Banks under
this Agreement, the Revolving Credit Notes and the Related Documents,
liabilities under the Tax Sharing Agreement, and the TWI Agreements and
liabilities permitted by Sections 6.2 and 6.3.
3.20 Proceeds.
--------
The Borrower will apply the proceeds of the Loans only (i) to
make the Parent Loans, (ii) to purchase shares of capital stock of Acquired
Companies, (iii) to pay all loans and other amounts due under the Existing
Credit Agreement and (iv) for its working capital purposes. Neither the making
of any Loan hereunder nor the use of the proceeds thereof will violate any of
Regulation G, U or X of the Board of Governors of the Federal Reserve System and
no part of the proceeds of the Loans will be used to purchase or carry "margin
stock" (within the meaning of said Regulation U) in violation of Regulation U or
to extend credit for the purpose of purchasing or carrying any such margin stock
in violation of Regulation U.
3.21 Solvency.
--------
The Borrower is not, and after giving effect to the Loans and
transactions contemplated hereby, will not be, insolvent, will not be left with
unreasonably small capital with which to engage in its business and will not
have incurred debts beyond its ability to pay such debts as they mature.
3.22 TWI Agreements and TWI Stock Documents.
--------------------------------------
The Borrower has heretofore delivered to the Administrative
Agent and the Banks a true and correct copy of each of the TWI Agreements and
the TWI Stock Documents as in effect on the Closing Date. The Borrower Pledge
Agreement satisfies the definitions of "Permitted Pledge" and "Exempt Transfer"
in the Stockholders' Agreement, and the Borrower has complied with the
Stockholders' Agreement in connection with the pledge of Shares under the
Borrower Pledge Agreement. The Borrower Pledge Agreement satisfies the
requirements of Section 6.1(b) of the Certificate of Designation. The Borrower
has not given a proxy to vote the Shares pledged pursuant to the Borrower Pledge
Agreement, except proxies that state that they terminate upon notice from the
Administrative Agent to the holder that an Event of Default has occurred.
3.23 Financial Statements.
--------------------
The Borrower has heretofore delivered to the Banks, the
Syndication Agent, the Documentation Agent and the Administrative Agent copies
of (i) the unaudited consolidated statements of income, retained earnings and
cash flows of the Parent and its Consolidated Subsidiaries for the fiscal year
ended December 31, 1996 and a consolidated balance sheet of the Parent and its
Consolidated Subsidiaries as of the close of such fiscal year and (ii) the
unaudited consolidated statements of income, retained earnings and cash flows of
the Parent and its Consolidated Subsidiaries for the fiscal quarter ended March
31, 1997 and a consolidated balance sheet of the Parent and its Consolidated
Subsidiaries as of the close of such fiscal quarter (collectively, together with
the related notes and schedules, the "Financial
---------
- 40 -
<PAGE>
Statements"). The Financial Statements fairly present fairly the financial
- ----------
position and the results of operations of the Parent and its Consolidated
Subsidiaries as of the dates and for the periods indicated therein and have been
prepared in conformity with GAAP as then in effect. The Borrower has no
obligation or liability of any kind (whether fixed, accrued, contingent,
unmatured or otherwise) which, in accordance with GAAP as then in effect, should
have been disclosed in the Financial Statements and was not. Since December 31,
1996, there has been no material adverse change in the business, operations or
financial condition of the Borrower.
ARTICLE 4. CONDITIONS OF LENDING AND PLEDGING ADDITIONAL SHARES
----------------------------------------------------
4.1 Revolving Credit Loans Which Are Not Rollover Loans.
---------------------------------------------------
The obligation of the Banks to make each Revolving Credit
Loan which is not a Rollover Loan is subject to the accuracy as of the date
hereof of the representations and warranties herein contained, to the
performance by the Borrower of its obligations to be performed hereunder on or
before the date of such Loan and to the satisfaction of the following further
conditions:
(a) Representations and Warranties; Events of Default and
------------------------------ ---------------------
Potential Defaults. The representations and warranties contained in Article 3
- ------------------
hereof and in each of the Related Documents shall be true on and as of the date
of each such Loan hereunder with the same effect as though made on and as of
each such date.
(b) Defaults. On the date of each such Loan hereunder, no
--------
Event of Default and no Potential Default shall have occurred and be continuing
or exist or shall occur or exist after giving effect to the Loan to be made on
such date.
(c) Constructive Representations. (i) Any request by the
----------------------------
Borrower for such Loans hereunder shall constitute a representation and warranty
by the Borrower that (A) the representations and warranties contained in this
Agreement and the Related Documents to which the Borrower is a party are true
and correct on and as of the date of such request with the same effect as though
made on and as of the date of such request and, (B) on the date of such request,
no Event of Default or Potential Default has occurred and is continuing or
exists or will occur or exist after giving effect to such Loans (for this
purpose such Loans being deemed to have been made on the date of such request).
Failure of the Administrative Agent to receive notice from the Borrower to the
contrary before such Loans are made shall constitute a
- 41 -
<PAGE>
further representation and warranty by the Borrower that (1) the representations
and warranties contained in this Agreement and the Related Documents to which
the Borrower is a party are true and correct on and as of the date of such Loans
with the same effect as though made on and as of the date of such Loans and, (2)
on the date of such Loans, no Event of Default or Potential Default has occurred
and is continuing or exists or will occur or exist after giving effect to such
Loans.
(ii) Any request by the Borrower for such Loans hereunder
shall constitute a representation and warranty by the Parent and each Parent
Subsidiary that (A) the representations and warranties contained in Related
Documents to which it is a party are true and correct on and as of the date of
such request with the same effect as though made on and as of the date of such
request and, (B) on the date of such request, no Event of Default or Potential
Default relating to it or any Related Document to which it is a party has
occurred and is continuing or exists or will occur or exist after giving effect
to such Loans (for this purpose such Loans being deemed to have been made on the
date of such request). Failure of the Administrative Agent to receive notice
from the Parent or a Parent Subsidiary to the contrary before such Loans are
made shall constitute a further representation and warranty by each of the
Parent and each Parent Subsidiary that (1) the representations and warranties
contained in the Related Documents to which it is a party are true and correct
on and as of the date of such Loans with the same effect as though made on and
as of the date of such Loans and, (2) on the date of such Loans, no Event of
Default or Potential Default relating to it or Related Documents to which it is
a party has occurred and is continuing or exists or will occur or exist after
giving effect to such Loans.
(d) Borrowing Certificate/Parent Financial Condition
------------------------------------------------
Certificate. (i) Prior to the making of each such Loan, the Administrative Agent
- -----------
shall have received a Borrowing Certificate, dated the date of such Loan and
signed on behalf of the Borrower, the Parent and each Parent Subsidiary, as
applicable, by an Authorized Signer, demonstrating compliance with Section
2.3(a).
(ii) If, for any reason, the certifications contained
in Part B of the Borrowing Certificate cannot be given, then not less than three
Business Days prior to the making of each such Loan, the Administrative Agent
and the Banks shall have received a Financial Condition Certificate as of the
date of such Loan signed by the Chief Financial Officer, Vice President,
Treasurer or Assistant Treasurer of the Borrower, in form and substance
satisfactory to the Administrative Agent and the Banks.
(iii) If, for any reason, the certifications contained
in Part C of the Borrowing Certificate cannot be given, then not less than three
Business Days prior to the making of each such Loan, the Administrative Agent
and the Banks shall have received a Parent Financial Condition Certificate,
dated as of the date of such Loan and signed by the Chief Financial Officer,
Vice President, Treasurer or Assistant Treasurer of the Parent, in form and
substance satisfactory to the Administrative Agent and the Banks.
(iv) If, for any reason, the certifications contained
in Part D of the Borrowing Certificate cannot be given by a Parent Subsidiary,
then not less than three Business Days prior to the making of each such Loan,
the Administrative Agent and the Banks shall
- 42 -
<PAGE>
have received a Parent Subsidiary Financial Condition Certificate, dated as of
the date of such Loan and signed by the Chief Financial Officer, Vice President,
Treasurer or Assistant Treasurer of such Parent Subsidiary, in form and
substance satisfactory to the Administrative Agent and the Banks.
(e) Solvency. No Bank shall have reasonably determined in
--------
good faith that, after the making of such Loans and the use of such proceeds,
either the Borrower or, if a Parent Financial Condition Certificate is
delivered, the Parent, or, if a Parent Subsidiary Financial Condition
Certificate is delivered by a Parent Subsidiary, such Parent Subsidiary,
(i) will be insolvent or will be rendered insolvent by
the Loans to be incurred or to be guaranteed or secured in connection
therewith,
(ii) will be left with unreasonably small capital with
which to engage in its business,
(iii) will have incurred debts beyond its ability to
pay such debts as they mature, or
(iv) will violate any similar or corresponding standard
imposed by applicable fraudulent conveyance, bankruptcy or insolvency
laws.
(f) Permitted Use of Proceeds. If a Borrowing Certificate is
-------------------------
delivered containing the certification set forth in Part C or Part D thereof,
each Bank shall have reasonably determined that the use of proceeds described
therein represents "reasonably equivalent value" or "fair value" (or any similar
or corresponding standard under applicable fraudulent conveyance, bankruptcy or
insolvency laws) to the Parent for the pledge of shares under the Parent
Agreement and to each Parent Subsidiary for the pledge of shares under its
Parent Subsidiary Agreement, as applicable.
4.2 Initial Loans.
-------------
The obligation of the Banks to make the first Loans is
subject to the accuracy as of the date hereof of the representations and
warranties herein contained, to the performance by the Borrower of its
obligations to be performed hereunder on or before the date of such Loans and to
the satisfaction of the following further conditions:
- 43 -
<PAGE>
(a) Certificates as to Representations and Defaults. (i) On
-----------------------------------------------
the Closing Date, the Administrative Agent shall have received a certificate
(with sufficient signed copies to provide one for each Bank), dated the Closing
Date and signed on behalf of the Borrower by the President, any Vice President,
Treasurer, Assistant Treasurer or Chief Financial Officer of the Borrower that
(A) the representations and warranties in this Agreement and the Related
Documents to which the Borrower is a party are true and correct on and as of
such date and, (B) on such date, no Event of Default or Potential Default has
occurred and is continuing or exists or will occur or exist after giving effect
to such Loan.
(ii) On the Closing Date, the Administrative Agent
shall have received a certificate (with sufficient signed copies to provide one
for each Bank), dated the Closing Date and signed on behalf of the Parent by the
President, any Vice President, Treasurer, Assistant Treasurer or Chief Financial
Officer of the Parent that (A) the representations and warranties contained in
Related Documents to which the Parent is a party are true and correct on and as
of such date and, (B) on such date, no Event of Default or Potential Default
relating to the Parent or the Related Documents to which the Parent is a party
has occurred and is continuing or exists or will occur or exist after giving
effect to such Loan.
(iii) On the Closing Date, the Administrative Agent
shall have received a certificate (with sufficient signed copies to provide one
for each Bank), dated the Closing Date and signed on behalf of each Parent
Subsidiary by the President, any Vice President, Treasurer, Assistant Treasurer
or Chief Financial Officer of such Parent Subsidiary that (A) the
representations and warranties contained in Related Documents to which each
Parent Subsidiary is a party are true and correct on and as of such date and,
(B) on such date, no Event of Default or Potential Default relating to such
Parent Subsidiary or the Related Documents to which such Parent Subsidiary is a
party has occurred and is continuing or exists or will occur or exist after
giving effect to such Loan.
(b) Proceedings and Incumbency. On the Closing Date, there
--------------------------
shall have been delivered to the Administrative Agent certificates in form and
substance satisfactory to the Administrative Agent, dated the Closing Date and
signed on behalf of the Borrower, the Parent and each Parent Subsidiary by its
Secretary or an Assistant Secretary, certifying as to (i) true copies of its
certificate of incorporation and by-laws as in effect on such date, (ii) true
copies of all corporate action taken by it relative to this Agreement, the
Related Documents and the Revolving Credit Notes, to the extent it is a party
hereto or thereto, including, but not limited to, that described in Section 2.2
of the Parent Agreement and Section 2.2 of the Parent Subsidiary Agreement, and
(iii) the names, true signatures and incumbency of its officer or officers
authorized to execute and deliver this Agreement, the Related Documents and the
Revolving Credit Notes, to the extent it is a party hereto or thereto. The
Administrative Agent and the Banks may conclusively rely on such certificates
unless and until a later certificate revising a prior certificate has been
furnished to the Administrative Agent.
(c) Opinion of Counsel. On the Closing Date, there shall
------------------
have been delivered to the Administrative Agent (i) a written opinion, dated the
Closing Date, of Sherman & Howard, L.L.C., special counsel for the Borrower in
substantially the form attached hereto as Exhibit F-1, (ii) a written opinion,
dated the Closing Date, of Cole, Raywid & Braverman, L.L.P., FCC counsel for the
Borrower in substantially the form attached hereto as Exhibit F-2
- 44 -
<PAGE>
and (iii) a written opinion, dated the Closing Date, of Stephen M. Brett,
corporate counsel for the Borrower in substantially the form attached hereto as
Exhibit F-3. The Borrower, the Parent and each Parent Subsidiary hereby
expressly instruct each of Sherman & Howard, L.L.C., Cole, Raywid & Braverman,
L.L.P., and Stephen M. Brett to prepare its or his opinion and to deliver it to
the Administrative Agent and the Banks for their benefit and such opinion shall
contain a statement to that effect.
(d) Margin Rule Compliance. On the Closing Date, the Borrower
----------------------
shall have delivered to the Administrative Agent a Federal Reserve Form U-1
appropriately completed for each Bank and duly executed by the Borrower, and
each Bank shall be satisfied that neither the making of the Loans nor the use of
the proceeds thereof will violate any of Regulation U, G or X of the Board of
Governors of the Federal Reserve System or any other applicable Law relating to
Loans secured by "margin stock" as that term is defined in said Regulation U.
(e) Security Documentation. On or before the Closing Date,
----------------------
the Administrative Agent shall have received:
(i) duly executed and delivered copies of the Borrower
Pledge Agreement and the Note Pledge Agreement;
(ii) for each Parent Subsidiary, (A) a Parent Subsidiary
Agreement duly executed and delivered by it and (B) a Parent
Subsidiary Agreement duly executed and delivered by each other
Subsidiary of the Parent which has any right, title or interest in
and to the issued and outstanding capital stock of such Parent
Subsidiary;
(iii) possession of the Parent Note, together with a
negotiable instrument of assignment duly executed and delivered by
the Borrower; and
(iv) possession of certificates representing the
Pledged Securities referred to in the Pledge Agreements, together
with executed undated blank stock powers.
(f) Financial Condition Certificates. On the Closing Date,
--------------------------------
the Administrative Agent and the Banks shall have received (i) a Financial
Condition Certificate as of the date of such Loan signed by the Chief Financial
Officer, Vice President, Treasurer or Assistant
- 45 -
<PAGE>
Treasurer of the Borrower, in form and substance satisfactory to the
Administrative Agent and the Banks, (ii) a Parent Financial Condition
Certificate as of the date of such Loan signed by the Chief Financial Officer,
Vice President, Treasurer or Assistant Treasurer of the Parent, in form and
substance satisfactory to the Administrative Agent and the Banks and (iii) a
Financial Condition Certificate as of the date of such Loan signed by the Chief
Financial Officer, Vice President, Treasurer or Assistant Treasurer of each
Parent Subsidiary, in form and substance satisfactory to the Administrative
Agent and the Banks.
(g) Existing Credit Agreement. The Borrower shall have
-------------------------
terminated all commitments under the Existing Credit Agreement and shall have
repaid in full all amounts thereunder, whether principal, interest, fees or
other.
(h) TWI Agreements; TWI Stock Documents. On the Closing Date,
-----------------------------------
the Administrative Agent shall have received a copy of each of the TWI
Agreements and TWI Stock Documents, certified by the Borrower as being a true
and complete copy of such TWI Agreement or TWI Stock Document as of such date.
(i) Tax Sharing Agreement. On the Closing Date, the
---------------------
Administrative Agent shall have receive a copy of the Tax Sharing Agreement,
certified by the Borrower as being a true and complete copy of the Tax Sharing
Agreement as of such date.
(j) Acknowledgment of TWI. The Borrower shall have delivered
---------------------
to the Administrative Agent an acknowledgment signed by TWI, in form and
substance satisfactory to the Administrative Agent.
(k) Financing Statements. The Borrower, the Parent and each
--------------------
Parent Subsidiary shall have executed and delivered to the Administrative Agent
properly completed UCC-1 financing statements covering the Collateral, in all
respects satisfactory to the Administrative Agent.
(l) Details, Proceedings and Documents. All legal details and
----------------------------------
proceedings in connection with the transactions contemplated by this Agreement
shall be satisfactory to the Administrative Agent, and the Administrative Agent
shall have received all such counterpart originals or certified or other copies
of such documents and proceedings in connection with such transactions, in form
and substance satisfactory to the Administrative Agent, as the Administrative
Agent may from time to time request.
(m) Tax Forms. Each Bank shall have provided the
---------
Administrative Agent and the Borrower with the tax forms prescribed by Section
2.15.
4.3 Pledge of Additional Shares.
---------------------------
Pledged Securities pledged after the Closing Date by the
Borrower, the Parent or a Parent Subsidiary shall not be taken into account in
the Loan/Value Percentage until the following conditions have been satisfied
(although the validity and perfection of the Administrative Agent's security
interest in such Pledged Securities shall not be affected by the failure to
satisfy such conditions):
- 46 -
<PAGE>
(a) Section 4.1 and 4.2 Conditions Applicable to Pledge of
------------------------------------------------------
Additional Shares. The conditions set forth in Sections 4.1, 4.2(e), 4.2(f) and
- -----------------
4.2(k) shall have been satisfied prior to such pledge of additional Shares,
treating, for this purpose, the pledging of additional Shares as the making of a
Loan.
(b) Pledge Agreements. The Borrower, the Parent or such
-----------------
Parent Subsidiary, as the case may be, shall have complied with the provisions
of Section 2.1 of the Borrower Pledge Agreement, Section 3.1 of the Parent
Agreement or Section 3.1 of its Parent Subsidiary Agreement, as the case may
be, with respect to such pledge of additional Shares.
(c) Corporate Proceedings in Connection with the Purchase of
--------------------------------------------------------
Shares. The Administrative Agent shall have received a certificate (with
- ------
sufficient signed copies to provide one for each Bank) in form and substance
satisfactory to the Administrative Agent, dated the date of such pledge and
signed on behalf of the Borrower, the Parent or such Parent Subsidiary, as the
case may be, by its Secretary or Assistant Secretary certifying as to (i) true
and correct copies of any amendments to the certificate of incorporation or
by-laws of such corporation or, if applicable, no change in the certificate of
incorporation and bylaws of such corporation since the date of the certificates
delivered under Section 4.2(a); and (ii) true copies of all corporate action
taken by the Borrower, the Parent or such Parent Subsidiary, as the case may be,
relative to the purchase and pledge of such Shares and, in the case of such
Parent Subsidiary, its Parent Subsidiary Agreement.
(d) Opinion of Counsel in Connection with the Purchase of
-----------------------------------------------------
Shares. The Administrative Agent shall have received prior to the date of such
- ------
pledge, an opinion, in all respects satisfactory to the Administrative Agent, of
Sherman & Howard, L.L.C. or other counsel acceptable to the Administrative Agent
in connection with such pledge. The Borrower, the Parent or such Parent
Subsidiary, as the case may be, hereby expressly instruct Sherman & Howard,
L.L.C. or such other counsel, as the case may be, to prepare its opinion and to
deliver it to the Administrative Agent and the Banks for their benefit and such
opinion shall contain a statement to that effect.
(e) Mixed Collateral Loans. If for any reason after the
----------------------
Closing Date (i) additional Shares (other than shares of TWI Series LMCN-V
Common Stock) are pledged pursuant to the Pledge Agreements or (ii) any of the
shares of TWI Series LMCN-V Common Stock constituting Pledged Securities are
converted into "margin stock" for purposes of Regulation U, as amended,
promulgated by the Board of Governors of the Federal Reserve System, the
Borrower, the Parent, each Parent Subsidiary, the Administrative Agent and the
- 47 -
<PAGE>
Banks shall have entered into an amendment to this Agreement, the Revolving
Credit Notes and the Related Documents as determined by the Administrative Agent
and each Bank to be necessary or desirable to ensure compliance by the
Administrative Agent and each such Bank with the requirements of Regulation U,
as amended, promulgated by the Board of Governors of the Federal Reserve System.
ARTICLE 5. AFFIRMATIVE COVENANTS
---------------------
So long as either any amounts are owing to the Banks under
this Agreement, the Revolving Credit Notes or the Related Documents or the Total
Current Commitment has not been reduced to zero, the Borrower covenants to the
Banks as follows:
5.1 Reporting and Information Requirements.
--------------------------------------
(a) Annual Reports. As soon as practicable, and in any event
--------------
within 120 days after the close of each fiscal year of the Borrower, the
Borrower shall furnish or cause to be furnished to the Banks consolidated
statements of income, retained earnings and cash flows of the Parent and its
Consolidated Subsidiaries for such fiscal year and a consolidated balance sheet
of the Parent and its Consolidated Subsidiaries as of the close of such fiscal
year, and notes to each, all in reasonable detail including, without limitation,
consolidating schedules for such statement of income and balance sheet, setting
forth in comparative form the corresponding figures for the preceding fiscal
year, and certified by the President, any Vice President, Treasurer, Assistant
Treasurer or Chief Financial Officer of the Parent as presenting fairly the
financial position of the Parent and its Consolidated Subsidiaries as of the end
of such fiscal year and the results of their operations and their cash flows for
such fiscal year, in conformity with GAAP.
(b) Quarterly Reports. As soon as practicable, and in any
-----------------
event within 75 days after the close of each of the first three quarters of each
fiscal year of the Borrower, the Borrower shall furnish or cause to be furnished
to the Banks unaudited consolidated statements of income, retained earnings and
cash flows for the Parent and its Consolidated Subsidiaries for such fiscal
quarter and for the period from the beginning of such fiscal year to the end of
such fiscal quarter, and an unaudited consolidated balance sheet of the Parent
and its Consolidated Subsidiaries as of the close of such fiscal quarter, and
notes to each, all in reasonable detail including, without limitation,
consolidating schedules for such statement of income and balance sheet, setting
forth in comparative form the corresponding figures for the same period or as of
the same date during the preceding fiscal year (except for the consolidated
balance sheet, which shall set forth in comparative form the corresponding
balance sheet as of the prior fiscal year end), and certified by the President,
any Vice President, Treasurer, Assistant Treasurer or Chief Financial Officer of
the Parent as presenting fairly the financial position of the Parent and its
Consolidated Subsidiaries as of the end of such fiscal quarter and the results
of their operations and their cash flows for such fiscal quarter, in conformity
with GAAP applied in a manner consistent with that of the most recent annual
financial statements furnished to the Banks, subject to year-end adjustments.
(c) Compliance Certificates. Within 120 days after the end of
-----------------------
each fiscal
- 48 -
<PAGE>
year of the Borrower and within 75 days after the end of each of the first three
quarters of each such fiscal year the Borrower shall deliver to the Banks a
certificate, dated as of the end of such fiscal year or quarter, as the case may
be, signed on behalf of the Borrower by its President, any Vice President,
Treasurer, Assistant Treasurer or Chief Financial Officer stating that as of the
date thereof no Event of Default or Potential Default has occurred and is
continuing or exists, or if an Event of Default or Potential Default has
occurred and is continuing or exists, specifying in detail the nature and period
of existence thereof and any action with respect thereto taken or contemplated
to be taken by the Borrower. The delivery of such certificate shall be deemed to
constitute a representation by the signer that such signer has caused this
Agreement to be reviewed and that such certificate is based on an examination
made by or under the supervision of such signer sufficient to assure that such
certificate is accurate.
(d) Other Reports and Information. Promptly upon their
-----------------------------
becoming available to the Borrower, the Borrower shall deliver to the Banks a
copy of (i) all regular or special reports or registration statements which the
Borrower shall file with the Securities and Exchange Commission (or any
successor thereto) or any securities exchange or any reports filed with respect
to any Shares which the Borrower has received, (ii) all reports, proxy
statements, financial statements and other information distributed by the
Borrower to its stockholders, bondholders or the financial community in general,
and (iii) any reports submitted to the Borrower by independent accountants in
connection with any annual, interim or special audit of the Borrower.
(e) Further Information. Subject to any applicable
-------------------
restrictions on disclosure under securities laws, the Borrower will promptly
furnish to each Bank such other information and in such form as such Bank may
reasonably request, including, without limitation, information with respect to
Pledged Acquired Companies of the type described in subsections (a), (b), (d),
(g), (h) and (j) of this Section 5.1.
(f) Notice of Event of Default. Promptly upon obtaining
--------------------------
knowledge of any Event of Default or Potential Default the Borrower shall give
the Banks notice thereof, together with a written statement of the President,
any Vice President, Treasurer, Assistant Treasurer or Chief Financial Officer of
the Borrower setting forth the details thereof and any action with respect
thereto taken or contemplated to be taken by the Borrower.
(g) Notice of Material Adverse Change. Promptly upon
---------------------------------
obtaining knowledge thereof the Borrower shall give the Banks notice of any
material adverse change in the
- 49 -
<PAGE>
business, operations or financial condition of the Borrower.
(h) Notice of Material Proceedings. Promptly upon obtaining
------------------------------
knowledge thereof the Borrower shall give the Banks notice of the commencement,
existence or threat of any proceeding by or before any Official Body against or
affecting the Borrower, which, if adversely decided, would have a material
adverse effect on the business, operations or financial condition of the
Borrower or on the ability of the Borrower to perform its obligations under this
Agreement, the Related Documents to which it is a party or the Revolving Credit
Notes.
(i) Notice of Pension-Related Events. Promptly after the
--------------------------------
Borrower, the Parent, a Parent Subsidiary or any Controlled Group Member, or any
administrator of a Plan:
(i) receives the notification referred to in
subsections (i), (iv), or (vii) of Section 5.1(i),
(ii) has knowledge of (A)the occurrence of a Reportable
Event with respect to a Plan; (B) any event which has occurred or any
action which has been taken to amend or terminate a Plan as referred
to in subsections (ii) and (vi) of Section 5.1(i); (C) any event
which has occurred or any action which has been taken which could
result in complete withdrawal, partial withdrawal, or secondary
liability for withdrawal liability payments with respect to a
Multiemployer Plan as referred to in subsection (vii) of Section
5.1(i); (D) any action which has been taken in furtherance of any
agreement which has been entered into for, or any petition which has
been filed with a United States district court for, the appointment
of a trustee for a Plan as referred to in subsection (iii) of Section
5.1(i); (E) any action to amend a Plan which requires security to be
provided to such Plan pursuant to Section 401(a)(29) of the Code or
Section 307 of ERISA or (F) any failure to pay the PBGC premium with
respect to a Plan when due, or
(iii) files a notice of intent to terminate a Plan with
the Internal Revenue Service or the PBGC; or files with the Internal
Revenue Service a request pursuant to Section 412(d) or 412(e) of the
Code for a variance from the minimum funding standard or an extension
of the period for amortizing unfunded liabilities, respectively, for
a Plan; or files a return with the Internal Revenue Service with
respect to the tax imposed under Section 4971(a) of the Code for
failure to meet the minimum funding standards established under
Section 412 of the Code for a Plan,
the Borrower will furnish to the Banks, to the extent applicable, a copy of any
notice received, request or petition filed, and agreement entered into; the most
recent Annual Report (Form 5500 Series) and attachments thereto for such Plan;
the most recent actuarial report for such Plan; any notice, return, or materials
required to be filed with the Internal Revenue Service in connection with such
event, action, or filing; and a written statement of the President, any Vice
President, Treasurer, Assistant Treasurer or Chief Financial Officer of the
Borrower describing such event or the action taken and the reasons therefor.
(j) Notice of Other Material Defaults. Promptly upon
---------------------------------
obtaining knowl-
- 50 -
<PAGE>
edge of any material default by the Borrower under any material agreement or
instrument to which the Borrower is a party or by which the Borrower or any of
its properties may be bound the Borrower shall give the Banks notice thereof,
together with a written statement of the President, any Vice President,
Treasurer, Assistant Treasurer or Chief Financial Officer of the Borrower
setting forth the details thereof.
(k) Visitation. The Borrower shall permit such persons as any Bank
----------
may designate to visit and inspect any of the properties of the Borrower, to
examine its books and records and take copies and extracts therefrom and to
discuss its affairs with its officers, employees and independent accountants at
such times and as often as such Bank may reasonably request. The Borrower hereby
authorizes such officers, employees and independent accountants to discuss with
the Banks the affairs of the Borrower.
5.2 Preservation of Existence and Franchises.
----------------------------------------
The Borrower shall maintain its corporate existence, rights and
franchises in full force and effect in its jurisdiction of incorporation. The
Borrower shall qualify and remain qualified as a foreign corporation in each
jurisdiction in which failure to receive or retain such qualification would have
a material adverse effect on the business, operations or financial condition of
the Borrower.
5.3 Insurance.
---------
The Borrower shall maintain with financially sound and reputable
insurers insurance with respect to its properties and business and against such
liabilities, casualties and contingencies and of such types and in such amounts
as is customary in the case of corporations engaged in the same or a similar
business or having similar properties similarly situated.
5.4 Payment of Taxes and Other Potential Charges and Priority Claims;
----------------------------------------------------------------
Payment of Other Current Liabilities.
- ------------------------------------
The Borrower shall pay or discharge:
(a) on or prior to the date on which penalties attach thereto,
all taxes, assessments and other governmental charges or levies imposed
upon it or any of its properties or income (including, without limitation,
such as may arise under Section 4062, Section 4063 or Section 4064 of
ERISA, or any similar provision of law);
- 51 -
<PAGE>
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other like
persons which, if unpaid, might result in the creation of a Lien upon any
such property; and
(c) on or prior to the date when due, all other lawful claims
which, if unpaid, might result in the creation of a Lien upon any such
property (other than Liens not forbidden by Section 6.1) or which, if
unpaid, might give rise to a claim entitled to priority over general
creditors of the Borrower in a case under Title 11 (Bankruptcy) of the
United States Code, as amended, or in any insolvency proceeding or
dissolution or winding-up involving the Borrower;
provided, that prior to the imposition of any Lien with respect to such tax,
- --------
assessment, charge, levy, claim or current liability, the Borrower need not pay
or discharge any such tax, assessment, charge, levy, claim or current liability
so long as the validity thereof is contested in good faith and by appropriate
proceedings diligently conducted and so long as such reserves or other
appropriate provisions as may be required by GAAP shall have been made therefor
and so long as such failure to pay or discharge does not have a material adverse
effect on the business, operations or financial condition of the Borrower.
5.5 Financial Accounting Practices.
------------------------------
The Borrower shall make and keep books, records and accounts which,
in reasonable detail, accurately and fairly reflect its transactions and
dispositions of its assets and maintain a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization, (ii)
transactions are recorded as necessary (a) to permit preparation of financial
statements in conformity with GAAP and (b) to maintain accountability for
assets, (iii) access to assets is permitted only in accordance with management's
general or specific authorization and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
5.6 Compliance with Laws.
--------------------
The Borrower shall comply with all applicable Laws (including, but
not limited to, federal and state securities laws and the Communications Act),
provided that the Borrower shall not be deemed to be in violation of this
- --------
Section 5.6 as a result of any failures to comply which would not result in
fines, penalties, injunctive relief or other civil or criminal liabilities
which, in the aggregate, would materially affect the business, operations or
financial condition of the Borrower or the ability of the Borrower to perform
its obligations under this Agreement, the Related Documents to which it is a
party or the Revolving Credit Notes.
5.7 Use of Proceeds.
---------------
The Borrower shall apply the proceeds of the Loans only as described
in Section 3.20.
5.8 Government Authorizations, etc.
------------------------------
- 52 -
<PAGE>
The Borrower shall obtain and maintain in force all authorizations,
consents, approvals, licenses, exemptions and other actions by, and all
registrations, qualifications, designations, declarations and other filings
with, any Official Body necessary or advisable in connection with execution and
delivery of this Agreement, the Related Documents to which it is a party, or the
Revolving Credit Notes, consummation of the transactions herein or therein
contemplated, and performance of or compliance with the terms and conditions
hereof or thereof.
5.9 Balances.
--------
The Borrower shall at all times maintain on deposit in the Interest
Reserve Investment Accounts Permitted Interest Reserve Investments (which
Permitted Interest Reserve Investments shall be pledged to the Administrative
Agent pursuant to the Note Pledge Agreement) in an amount equal to the interest
payable on the Loans outstanding on the most recent Determination Date during
the succeeding three-month period, assuming such Loans remain outstanding for
the entire three-month period and bear interest at the rate or rates in effect
for such Loans on the Determination Date. "Determination Date" shall mean the
------------------
last day of each September, December, March and June after the Effective Date,
the Closing Date, the date of each Loan which is not a Rollover Loan and the
date of each repayment of a Loan other than with the proceeds of a Rollover
Loan.
ARTICLE 6. NEGATIVE COVENANTS
------------------
So long as either any amounts are owing to the Banks under this
Agreement, the Revolving Credit Notes or the Related Documents or the Total
Current Commitment has not been reduced to zero, the Borrower covenants to the
Banks as follows:
6.1 Covenant With Respect to Pledged Securities; Liens.
--------------------------------------------------
The Borrower shall not sell, assign, transfer, exchange, withdraw
from pledge or otherwise dispose of or grant any option with respect to, the
Pledged Securities of the Borrower; provided that the Borrower may sell, assign,
--------
transfer, exchange, withdraw from pledge or otherwise dispose of Shares
constituting Pledged Securities of the Borrower, provided further that, at the
-------- -------
time of each such disposition and immediately after giving effect thereto,
- 53 -
<PAGE>
(a) no Potential Default or Event of Default shall exist,
(b) the Loan/Value Percentage would not exceed 50%,
(c) in the event that there are any restrictions on the sale
of Shares under Rule 144 promulgated under the Securities Act of 1933, as
amended,
(i) such Pledged Securities shall be subject to the
greatest of such restrictions, and
(ii) the Qualified Affiliates shall own sufficient
shares of TWI capital stock so that, upon the exercise of their
respective rights to demand registration of TWI capital stock under
Section 2 of the LMC Registration Rights Agreement, the
Administrative Agent would be able to cause a registration of TWI
capital stock constituting Pledged Securities under such Section, and
(d) no Shares constitute Pledged Securities of any Parent
Subsidiary.
The Borrower shall not at any time create, incur, assume or suffer to exist any
Lien on any of its property or assets, tangible or intangible, now owned or
hereafter acquired, including, without limitation, such Pledged Securities, or
agree or become liable to do so, except Liens arising under the Note Pledge
Agreement and the Borrower Pledge Agreement. To the extent the Borrower has the
power to do so, the Borrower shall not permit any Pledged Acquired Company to
take any action which could reasonably be expected to have a material adverse
effect on the value of such Pledged Securities or on the rights of the
Administrative Agent under the Borrower Pledge Agreement.
6.2 Indebtedness.
------------
The Borrower shall not at any time create, incur, assume or suffer to
exist any Indebtedness, except:
(a) Indebtedness under this Agreement or the Revolving Credit
Notes;
(b) Indebtedness under the Tax Sharing Agreement;
(c) current accounts payable arising out of transactions
(other than borrowings) in the ordinary course of business; and
(d) other Indebtedness of the Borrower to one or more of its
Subsidiaries, provided that:
--------
(i) immediately after the incurrence thereof, the
aggregate principal amount of all such Indebtedness incurred on or
after the date
- 54 -
<PAGE>
hereof shall not exceed the aggregate amount of all cash dividends
received on or after the date hereof by all such Subsidiaries in
respect of any Shares, and
(ii) immediately before and after the incurrence
thereof, no Event of Default or Potential Default shall exist.
6.3 Guarantees.
----------
The Borrower shall not at any time directly or indirectly assume,
guarantee, become surety for, endorse or otherwise agree, become or remain
directly or contingently liable upon or with respect to any obligation or
liability of any other person, except:
(a) contingent liabilities arising from the endorsement of
negotiable or other instruments for deposit or collection or similar
transactions in the ordinary course of business; and
(b) indemnities by the Borrower of the liabilities of its
directors or officers pursuant to provisions contained in its articles of
incorporation or by-laws or as otherwise permitted by applicable law.
"Direct or contingent liability upon or with respect to any obligation or
liability of any other person" of the Borrower within the meaning of this
Section 6.3 includes but is not limited to an agreement, contingent or
otherwise:
(i) to reimburse banks, surety companies and other
persons in respect of drawings and other payments under letters of
credit, guarantees, surety bonds and similar documents opened or
issued by such other persons for the account of the Borrower;
(ii) to purchase an obligation or assume a liability of
such person or to supply funds for the payment or purchase of such
obligation or satisfaction of such liability;
(iii) to subordinate a then-existing or future
obligation or liability of such person to the Borrower, to another
then-existing or future obligation or liability of such person;
- 55 -
<PAGE>
(iv) to make any loan, advance, capital contribution or
other investment in, or to purchase any property, services or
securities from, such person so as to enable such person to meet a
minimum equity, net worth, working capital or other financial
condition or to enable such person to satisfy any obligation or
liability or pay any dividend or stock liquidation payment, or
otherwise to supply funds to such person;
(v) to purchase, sell or lease (as lessee or lessor)
property or assets or to purchase or sell services (A) primarily for
the purpose of enabling such person to satisfy such obligation or
liability or of assuring the owner of such indebtedness or liability
against loss, or (B) regardless of the non-delivery of such property
or assets or the failure to furnish such services, or (C) in a
transaction otherwise having the characteristics of a take-or-pay or
throughput contract or as described in paragraph 6 of AICPA Statement
of Financial Accounting Standards No. 47; or
(vi) which is substantially equivalent in economic
effect to any of the foregoing or otherwise substantially equivalent
in economic effect to an assumption, guarantee, endorsement or other
direct or contingent liability upon or with respect to any obligation
or liability of such person.
6.4 Loans and Investments.
---------------------
The Borrower shall not at any time make or suffer to remain
outstanding any loan or advance to, or purchase, acquire or own any stock,
bonds, notes or securities of, or any partnership interest (whether general or
limited) in, or any other interest in, or make any capital contribution to, any
other person, or agree, become or remain liable to do any of the foregoing,
except:
(a) loans from the Borrower to the Parent evidenced by the
Parent Note;
(b) other loans from the Borrower to its direct and indirect
parent corporations, provided that:
--------
(i) immediately after giving effect thereto, the
aggregate principal amount of all such loans made on or after the
date hereof, when aggregated with the aggregate amount of all cash
dividends paid pursuant to Section 6.5, shall not exceed the
aggregate amount of all cash dividends received on or after the date
hereof by the Borrower and its Subsidiaries in respect of any Shares,
and
(ii) immediately before and after giving effect to each
such loan, no Event of Default or Potential Default shall exist;
(c) TWI Series LMCN-V Common Stock and capital stock of
Acquired Companies;
- 56 -
<PAGE>
(d) demand deposits, time deposits or certificates of deposit
in Banks or in United States commercial banks having shareholders' equity
of at least $100,000,000 and maturing not in excess of one year from the
date of acquisition; and
(e) Permitted Interest Reserve Investments.
6.5 Dividends and Related Distributions.
-----------------------------------
The Borrower shall not declare, make, pay, or agree, become or remain
liable to make or pay, any dividend or other distribution of any nature (whether
in cash, property, securities or otherwise) on account of or in respect of any
shares of the capital stock of the Borrower or on account of the purchase,
redemption, retirement or acquisition of any shares of the capital stock (or
warrants, options or rights therefor) of the Borrower, except cash dividends
paid by the Bororwer, provided that:
--------
(a) immediately after giving effect thereto, the aggregate
amount of all such cash dividends paid on or after the date hereof, when
aggregated with the aggregate principal amount of all loans made pursuant
to Section 6.4(b), shall not exceed the aggregate amount of all cash
dividends received on or after the date hereof by the Borrower and its
Subsidiaries in respect of any Shares, and
(i) immediately before and after giving effect to each
such cash dividend, no Event of Default or Potential Default shall
exist;
6.6 Sale-Leasebacks.
---------------
The Borrower shall not at any time enter into or suffer to remain in
effect any transaction to which the Borrower is a party involving the sale,
transfer or other disposition by the Borrower of any property, real or personal,
now owned or hereafter acquired, with a view directly or indirectly to the
leasing back of any part of the same property or any other property used for the
same or a similar purpose or purposes.
6.7 Leases.
------
The Borrower shall not at any time enter into or suffer to remain in
effect any agreement to lease, as lessee, any real or personal property.
- 57 -
<PAGE>
6.8 Merger.
------
The Borrower shall not merge with or into or consolidate with
any other person, or agree to do any of the foregoing.
6.9 Self-Dealing.
------------
The Borrower will not enter into or carry out any transaction
with (including, without limitation, purchasing property or services from or
selling property or services to) any Affiliate except
(a) transactions contemplated by this Agreement; and
(b) payments under the terms of the Tax Sharing
Agreement to permit TCI to pay Federal, state and local income taxes
applicable to the Borrower; provided, that such payments do not exceed
--------
the amount of taxes that would be payable by the Borrower if it were
not a member of its Consolidated Group.
6.10 Continuation of or Change In Business.
-------------------------------------
The Borrower shall not engage in any business other than the
making of the Parent Loans and the purchase and holding of shares of capital
stock of Acquired Companies.
6.11 TWI Agreements and TWI Stock Documents.
--------------------------------------
(a) The Borrower will not give a proxy or similar right to
any person for the voting of the Pledged Securities unless such proxy states
that it terminates upon notice from the Administrative Agent that an Event of
Default has occurred.
(b) The Borrower will not consent to any change, amendment,
supplement, other modification to, or the termination or cancellation of, the
provisions of the TWI Agreements or the TWI Stock Documents, in each case as in
effect on the Effective Date, if the proposed change, amendment, supplement,
modification, termination or cancellation could have a material adverse effect
on the Collateral or the Banks.
6.12 Regulation U.
------------
The Borrower shall not pledge, or permit the Parent or any
Parent Subsidiary to pledge, any security under the Pledge Agreements that is
"margin stock" for purposes of Regulation U, as amended, promulgated by the
Board of Governors of the Federal Reserve System, or convert or permit the
conversion of any shares of TWI Series LMCN-V Common Stock into "margin stock",
if in the judgment of any Bank, such pledge or conversion would cause such Bank
to violate said Regulation U.
ARTICLE 7. DEFAULTS
--------
- 58 -
<PAGE>
7.1 Events of Default.
-----------------
An Event of Default shall mean the occurrence or existence of
one or more of the following events or conditions (whatever the reason for such
Event of Default and whether voluntary, involuntary or effected by operation of
Law):
(a) The Borrower shall fail to pay when due principal
on any Revolving Credit Note; or
(b) The Borrower shall fail to pay when due interest
on any Revolving Credit Note, any fee, any amount payable pursuant to
Section 2.12 or any other amount due hereunder or under any Revolving
Credit Note and such failure shall have continued for a period of five
Business Days; or
(c) Any representation or warranty made or deemed
made by the Borrower, the Parent or any Parent Subsidiary under this
Agreement or any Related Document to which it is a party or any
statement made by the Borrower, the Parent or any Parent Subsidiary in
any financial statement, certificate, report, exhibit or document
furnished by the Borrower, the Parent or any Parent Subsidiary to the
Administrative Agent or Banks pursuant to this Agreement, any
Revolving Credit Note or any Related Document shall prove to have been
false or misleading in any material respect as of the time when made
or deemed made (including, without limitation, by omission of material
information necessary to make such representation, warranty or
statement not misleading); or
(d) The Borrower shall default in the performance or
observance of any covenant contained in Article 6 hereof or of the
covenants contained in Section 2.3(b), 5.1(f), 5.7 or 5.9; or
(e) The Borrower shall default in the performance or
observance of any other covenant, agreement or duty under this
Agreement, any Related Document to which it is a party or any
Revolving Credit Note and (i) in the case of a default under Section
5.1 (other than under subsection (f) of Section 5.1) such default
shall have continued for a period of fifteen days after notice from
the Administrative Agent or any Bank to the Borrower and (ii) in the
case of any other default such default shall have continued for a
period of thirty days; or
- 59 -
<PAGE>
(f) The Parent shall default in the performance or
observance of any covenant contained in Section 6.1(c) or Article 7 of
the Parent Agreement or any Parent Subsidiary shall default in the
performance or observance of any covenant contained in Section 6.1(g)
or Article 7 of its Parent Subsidiary Agreement; or
(g) The Parent or any Parent Subsidiary shall default
in the performance or observance of any other covenant, agreement or
duty under any Related Document to which it is a party and (i) in the
case of a default under Section 6.1 of the Parent Agreement (other
than under subsection (g) of such Section 6.1), or a default under
Section 6.1 of a Parent Subsidiary Agreement (other than under
subsection (g) of such Section 6.1, such default shall have continued
for a period of fifteen days after notice from the Administrative
Agent or any Bank to the Borrower and (ii) in the case of any other
default such default shall have continued for a period of thirty days;
(h) The Borrower, the Parent and/or any Parent
Subsidiary (i) shall default (as principal or as guarantor or other
surety) in any payment of principal of or interest on any obligation
(or set of related obligations) for borrowed money or deferred
purchase price of property in excess of $1,000,000 in aggregate
outstanding principal amount beyond any period of grace with respect
thereto or, if such obligation or obligations is or are payable or
repayable on demand, shall fail to pay or repay such obligation or
obligations when demanded or (ii) shall default in the observance of
any covenant, term or condition contained in any agreement or
instrument by which such obligation or obligations is or are created,
secured or evidenced or any other event shall occur or exist, if the
effect of such default or event is to cause, or to permit the holder
or holders of such obligation or obligations (or a trustee or agent on
behalf of such holder or holders) to cause, all or part of such
obligation or obligations to become due before its or their otherwise
stated maturity; or
(i) The Required Banks shall determine in good faith
(which determination shall be conclusive absent manifest error) that
the potential liabilities associated with the events set forth in
subsections (i) through (ix) below, individually or in the aggregate,
could have a material adverse effect on the business operations or
financial condition of the Borrower, the Parent or any Parent
Subsidiary:
(i) The PBGC notifies a Plan pursuant to
Section 4042 of ERISA by service of a complaint, threat of
filing a law suit, or otherwise of its determination that an
event described in Section 4042(a) of ERISA has occurred, a Plan
should be terminated, or a trustee should be appointed for a
Plan; or
(ii) Any action is taken to terminate a Plan
pursuant to its provisions or the plan administrator files with
the PBGC a notice of intent to terminate a Plan in accordance
with Section 4041 of ERISA; or
(iii) Any action is taken by a plan
administrator to have a trustee appointed for a Plan pursuant to
Section 4042 of ERISA; or
- 60 -
<PAGE>
(iv) A return is filed with the Internal
Revenue Service, or a Plan is notified by the Secretary of the
Treasury that a notice of deficiency under Section 6212 of the
Code has been mailed, with respect to the tax imposed under
Section 4971(a) of the Code for failure to meet the minimum
funding standards established under Section 412 of the Code; or
(v) A Reportable Event occurs with respect to
a Plan; or
(vi) Any action is taken to amend a Plan to
become an employee benefit plan described in Section 4021(b)(1)
of ERISA, or causing a Plan termination under Section 4041(e) of
ERISA; or
(vii) The Borrower, the Parent, any Parent
Subsidiary or any Controlled Group Member receives a notice of
liability or demand for payment on account of complete
withdrawal under Section 4203 of ERISA, partial withdrawal under
Section 4205 of ERISA or on account of becoming secondarily
liable for withdrawal liability payments under Section 4204 of
ERISA (sale of assets); or
(viii) The assets of the Borrower, the Parent,
any Parent Subsidiary or any Controlled Group Member are
encumbered as a result of security provided to a Plan pursuant
to Section 412 of the Code or Section 306 of ERISA in connection
with a request for a minimum funding waiver or extension of the
amortization period, or pursuant to Section 401(a)(29) of the
Code or Section 307 of ERISA as a result of a Plan amendment; or
(ix) The Borrower, the Parent, any Parent
Subsidiary or a Controlled Group Member fails to pay the PBGC
premium with respect to a Plan when due and it remains unpaid
for more than 30 days thereafter; or
(j) One or more judgments for the payment of money
shall have been entered against the Borrower, the Parent and/or any
Parent Subsidiary, which judgment or judgments exceed $1,000,000 in the
aggregate, and such judgment or judgments shall have remained
undischarged and unstayed for a period of thirty consecutive days; or
- 61 -
<PAGE>
(k) A writ or warrant of attachment, garnishment,
execution, distraint or similar process shall have been issued against
the Borrower, the Parent and/or any Parent Subsidiary or any of their
respective properties relating to amounts in excess of $1,000,000 in
the aggregate, which shall have remained undischarged and unstayed for
a period of thirty consecutive days; or
(l) Any authorization, consent, approval, license,
exemption, registration, qualification, designation, declaration,
filing or other action or undertaking now or hereafter made by or with
any Official Body in connection with this Agreement, any Related
Document or the Revolving Credit Notes or any such action or
undertaking now or hereafter necessary or advisable to make this
Agreement, any Related Document or the Revolving Credit Notes legal,
valid, enforceable and admissible in evidence is not obtained or shall
have ceased to be in full force and effect or shall have been modified
or amended or shall have been held to be illegal or invalid, and the
Required Banks shall have determined in good faith (which determination
shall be conclusive absent manifest error) that such event or
occurrence may have a material adverse effect on the Banks' rights
under this Agreement, any Related Document or any Revolving Credit
Note; or
(m) TCI or LMC shall cease to own, directly or
indirectly through one or more wholly-owned Subsidiaries, all of the
outstanding capital stock of the Parent; or the Parent shall cease to
own directly or indirectly all of the outstanding capital stock of the
Borrower and each Parent Subsidiary, in each case free and clear of all
Liens on such capital stock or the capital stock of Intermediate
Holders; or
(n) Any of the Liens intended to be created by the
Pledge Agreements shall cease to be valid and perfected Liens in
favor of the Administrative Agent on behalf of the Banks prior to the
rights of all third parties for any reason other than the failure of
the Administrative Agent to maintain possession of the certificates
representing the Pledged Securities; or
(o) A proceeding shall have been instituted in
respect of the Borrower, the Parent or any Parent Subsidiary,
(i) seeking to have an order for relief
entered in respect of the Borrower, the Parent or any Parent
Subsidiary or seeking a declaration or entailing a finding that
the Borrower, the Parent or any Parent Subsidiary is bankrupt or
insolvent or a similar declaration or finding, or seeking
dissolution, winding-up, charter revocation or forfeiture,
liquidation, reorganization, arrangement, adjustment,
composition or other similar relief with respect to the
Borrower, the Parent or any Parent Subsidiary, its assets or
debts under any law relating to bankruptcy, insolvency, relief
of debtors or protection of creditors, termination of legal
entities or any other similar law now or hereafter in effect, or
(ii) seeking appointment of a receiver,
trustee, custodian, liquidator, assignee, sequestrator or other
similar official for the Bor-
- 62 -
<PAGE>
rower, the Parent or any Parent Subsidiary, or for all or any
substantial part of its property,
and such proceeding shall result in the entry, making or grant of any
such order for relief, declaration, finding, relief or appointment, or
such proceeding shall remain undismissed and unstayed for a period of
thirty consecutive days; or
(p) The Borrower, the Parent or any Parent Subsidiary
shall become insolvent, shall become generally unable or admit in writing
its inability to pay its debts as they become due, shall voluntarily
suspend transaction of its business, shall make a general assignment for
the benefit of creditors, shall institute a proceeding described in
Section 7.1(o)(i) or shall consent to any such order for relief,
declaration, finding or relief described therein, shall institute a
proceeding described in Section 7.1(o)(ii) or shall consent to any such
appointment or to the taking of possession by any such official of all or
any substantial part of its property whether or not any such proceeding
is instituted, shall dissolve, wind-up or liquidate itself or any
substantial part of its property, or shall take any action in furtherance
of any of the foregoing.
7.2 Consequences of an Event of Default.
-----------------------------------
(a) If an Event of Default specified in subsections (a)
through (n) of Section 7.1 shall occur and be continuing or shall exist, then,
in addition to all other rights and remedies which the Administrative Agent or
any Bank may have hereunder, under the Revolving Credit Notes or under any
Related Document, at law, in equity or otherwise, the Banks shall be under no
further obligation to make Loans hereunder (other than the obligation to make
Rollover Loans prior to the time the declaration referred to in clause (ii)
below is made), and the Administrative Agent, upon the written request of the
Required Banks shall, by notice to the Borrower, from time to time do any or all
of the following:
(i) Declare the Commitments terminated, whereupon the
Commitments will terminate and all fees hereunder shall be immediately
due and payable without presentment, demand, protest or further notice of
any kind, all of which are hereby waived, and an action therefor shall
immediately accrue.
(ii) Declare the unpaid principal amount of the Loans,
interest accrued thereon and all other amounts owing hereunder, under the
Revolving Credit Notes or under the Related Documents to be immediately
due and payable without
- 63 -
<PAGE>
presentment, demand, protest or further notice of any kind, all of which
are hereby waived, and an action therefor shall immediately accrue.
(b) If an Event of Default specified in subsection (o) or
(p) of Section 7.1 shall occur or exist, then, in addition to all other rights
and remedies which the Administrative Agent or any Bank may have hereunder,
under the Revolving Credit Notes or under the Related Documents, at law, in
equity or otherwise, the Commitments shall automatically terminate and the Banks
shall be under no further obligation to make Loans, and the unpaid principal
amount of the Loans, interest accrued thereon and all other amounts owing
hereunder, under the Revolving Credit Notes or under the Related Documents shall
become immediately due and payable without presentment, demand, protest or
notice of any kind, all of which are hereby waived, and an action therefor shall
immediately accrue.
7.3 Set-Off.
-------
If the unpaid principal amount of any Revolving Credit Note,
interest accrued thereon or other amount owing by the Borrower hereunder or
under any Revolving Credit Note shall have become due and payable (by
acceleration or otherwise), each Bank and any branch, subsidiary or affiliate of
such Bank anywhere in the world and the holder of any participation in any
Revolving Credit Note shall each have the right, in addition to all other rights
and remedies available to it, without notice to the Borrower, to set-off against
and to appropriate and apply to such due and payable amounts any debt owing to,
and any other funds held in any manner for the account of, the Borrower by such
Bank or by such branch, subsidiary or affiliate or by such holder including,
without limitation, all funds in all deposit accounts (whether time or demand,
general or special, provisionally credited or finally credited, or otherwise)
now or hereafter maintained by the Borrower with such Bank or such branch,
subsidiary or affiliate or such holder. To the extent permitted by law, such
right shall exist whether or not such Bank or any such holder shall have given
notice or made any demand hereunder or under any Revolving Credit Note or any
such participation, whether or not such debt owing to or funds held for the
account of the Borrower is or are matured or unmatured, whether or not any
amounts owing by any person with respect to such participation are matured or
unmatured, whether or not the holder of such participation is in privity with or
is a creditor of the Borrower with respect to such participation, and regardless
of the existence or adequacy of any collateral, guaranty or any other security,
right or remedy available to such Bank or any such holder. The Borrower hereby
consents to and confirms the foregoing arrangements and confirms each Bank's
rights and each such branch's, subsidiary's and affiliate's and holder's rights
of banker's lien and set-off. Nothing in this Agreement shall be deemed a waiver
or prohibition of or restriction on the Bank's rights or any such branch's,
subsidiary's and affiliate's and holder's rights of banker's lien or set-off.
7.4 Equalization Among the Banks.
----------------------------
The Banks hereby agree between themselves that, with respect to
all amounts received by any Bank on account of the Loans, interest thereon or
any other Obligation contemplated by this Agreement, the Revolving Credit Notes
or the Related Documents to be made by the Borrower pro rata to all Banks,
whether received by voluntary payment, by realization upon security, by the
exercise of the right of set-off or banker's lien, by counterclaim or by any
- 64 -
<PAGE>
other non-pro rata source, equitable adjustment will be made in the manner
stated in the following sentence so that, in effect, all such excess amounts
will be shared ratably among the Banks. Any Bank receiving any such amount shall
purchase for cash from the other Banks an interest in the applicable Obligation
in such amount as shall result in a ratable participation by such Bank and such
other Banks in such excess amount; provided that if all or any portion of such
--------
excess amount is thereafter recovered from such Bank, such purchase shall be
rescinded and the purchase price restored to the extent of such recovery,
together with interest or other amounts, if any, required by Law (including,
without limitation, court order) to be paid by such Bank. The Borrower hereby
consents to and confirms the foregoing arrangements.
7.5 Application of Payments.
-----------------------
In the event that the Commitments shall have been terminated or
the Loans shall have been declared due and payable pursuant to the provisions of
Section 7.2, the Banks and the Borrower agree that any funds received from or on
behalf of the Borrower by any of the Banks in respect of the Borrower's
obligations under this Agreement, the Revolving Credit Notes and the Related
Documents shall be remitted to the Administrative Agent and shall be applied by
the Administrative Agent in payment of the Loans and the Borrower's
obligations in the following manner and order: (i) first, to reimburse the
Administrative Agent and the Banks for any expenses due from the Borrower
pursuant to the expense reimbursement and indemnification provisions of this
Agreement, the Revolving Credit Notes and the Related Documents; (ii) second, to
the payment, pro rata according to the each Bank's Credit Exposure, of the
commitment fee due under this Agreement; (iii) third, to the payment of any
other fees, expenses or amounts (other than the principal of and interest on the
Loans) payable by the Borrower to the Administrative Agent or any of the Banks
under or in connection with this Agreement, the Revolving Credit Notes and the
Related Agreements; (iv) fourth, to the payment of any interest due on the
Loans, pro rata according to the aggregate outstanding principal balance of the
Loans; (v) fifth, to the payment, pro rata according to the aggregate
outstanding principal balance of the Loans, of the principal amounts due on the
Loans and (vi) sixth, any remaining funds shall be paid to whomsoever shall be
entitled thereto or as a court of competent jurisdiction shall direct.
ARTICLE 8. THE AGENT
---------
8.1 Appointment.
-----------
- 65 -
<PAGE>
The Banks irrevocably hereby appoint BNY to act as Administrative
Agent as herein specified for the Banks hereunder and under the Revolving Credit
Notes and the Related Documents. Each of the Banks hereby irrevocably
authorizes, and each holder of any Revolving Credit Note by the acceptance of
such Revolving Credit Note shall be deemed irrevocably to authorize, the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement, the Revolving Credit Notes, the Related Documents and any other
instruments and agreements referred to herein or therein, and to exercise such
powers and to perform such duties hereunder and thereunder, as are specifically
delegated to or required of the Administrative Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto. BNY
agrees to act as the Administrative Agent on behalf of the Banks to the extent
provided in this Agreement.
8.2 Delegation of Duties.
--------------------
The Administrative Agent may perform any of its duties hereunder
and under the Revolving Credit Notes and the Related Documents by or through
agents or employees and shall be entitled to advice of counsel concerning all
matters pertaining to its duties hereunder and thereunder.
8.3 Nature of Duties; Independent Credit Investigation.
--------------------------------------------------
The Administrative Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement, the Revolving Credit Notes
or in the Related Documents. The duties of the Administrative Agent shall be
mechanical and administrative in nature; the Administrative Agent shall not have
by reason of this Agreement a fiduciary relationship in respect of any Bank; and
nothing in this Agreement, in the Revolving Credit Notes or in the Related
Documents, expressed or implied, is intended to or shall be so construed as to
impose upon the Administrative Agent any obligations in respect of this
Agreement the Revolving Credit Notes or the Related Documents except as
expressly set forth herein and therein. In performing its functions and duties
under this Agreement, the Revolving Credit Notes and the Related Documents the
Administrative Agent shall act solely as agent of the Banks and does not assume
and shall not be deemed to have assumed any obligation toward or relationship of
agency or trust hereunder with or for the Borrower or any other person. Each
Bank expressly acknowledges (i) that the Administrative Agent has not made any
representations or warranties to it and that no act by the Administrative Agent
hereafter taken, including, without limitation, any review of the affairs of the
Borrower, the Parent, any Parent Subsidiary, any Acquired Company or any of
their respective Subsidiaries, shall be deemed to constitute any representation
or warranty by the Administrative Agent to any Bank; (ii) that it has made and
will make its own independent investigation of the financial condition and
affairs, and its own appraisal of the creditworthiness, of the Borrower, the
Parent, each Parent Subsidiary, each Acquired Company and their respective
Subsidiaries in connection with this Agreement, the Revolving Credit Notes and
the Related Documents; and (iii) that the Administrative Agent shall have no
duty or responsibility, either initially or on a continuing basis, to provide
any Bank with any credit or other information, whether coming into its
possession before the making of any Loans hereunder or at any time or times
thereafter, except for notices, reports or other information, if any, expressly
required to be furnished to the Banks by the Administrative Agent hereunder.
- 66 -
<PAGE>
8.4 Actions in Discretion of Administrative Agent; Instructions from
----------------------------------------------------------------
Required Banks; Default.
- -----------------------
The Administrative Agent agrees, upon the written request of the
Required Banks, to take any action or refrain from taking any action of the type
specified as being within the Administrative Agent's rights, powers or
discretion herein, in the Revolving Credit Notes or in the Related Documents. In
the absence of a request by the Required Banks, the Administrative Agent shall
have authority pursuant to Section 8.1, in its sole discretion, to take or not
to take any such action, unless this Agreement specifically requires the consent
of the Required Banks or all the Banks. Any action taken or failure to act
pursuant to such instructions or discretion shall be binding on all the Banks
and on all holders of Revolving Credit Notes. No Bank shall have any right of
action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder in accordance
with the instructions of the Required Banks or all Banks, as appropriate, or in
the absence of such instructions, in the absolute discretion of the
Administrative Agent, subject to the provisions of Section 8.5. It is expressly
understood and agreed that the Administrative Agent shall be entitled to assume
that no Potential Default or Event of Default has occurred and is continuing,
unless the officers of the Administrative Agent immediately responsible for
matters concerning this Agreement shall have been notified in writing by (i) the
Borrower, or (ii) any Bank that such Bank considers that a Potential Default or
Event of Default has occurred and is continuing and specifying the nature
thereof.
8.5 Exculpatory Provisions.
----------------------
Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be liable to any Bank for any action taken
or omitted to be taken by it or them hereunder, under the Revolving Credit Notes
or under the Related Documents, or in connection herewith or therewith, unless
and to the extent caused by its or their own gross negligence or willful
misconduct. Subject to the immediately preceding sentence, in performing its
functions and duties hereunder, under the Revolving Credit Notes and under the
Related Documents on behalf of the Banks, the Administrative Agent shall
exercise the same care which it would exercise in dealing with loans for its own
account, but it shall not (i) be responsible in any manner to any of the Banks
for the effectiveness, enforceability, genuineness, validity or the due
execution of this Agreement, the Revolving Credit Notes or the Related Documents
or for any recital, representation, warranty, document, certificate, report or
statement herein or therein made or furnished under or in connection with this
Agreement, the Revolving Credit Notes or the Related Documents or (ii) be under
any obligation to any of the Banks to ascertain
- 67 -
<PAGE>
or to inquire as to the performance or observance of any of the terms, covenants
or conditions hereof or thereof on the part of the Borrower, the Parent, any
Parent Subsidiary, or the financial condition of the Borrower, the Parent, any
Parent Subsidiary, any Acquired Company or any of their respective Subsidiaries
or the existence or possible existence of any Event of Default and/or a
Potential Default. Each Bank expressly acknowledges that the Administrative
Agent has made no representations or warranties to it and that no act taken by
the Administrative Agent shall be deemed to constitute any representation or
warranty by the Administrative Agent to the Banks.
8.6 Reimbursement and Indemnification.
---------------------------------
Each Bank agrees to reimburse and indemnify the Administrative
Agent and its directors, officers, employees and agents (to the extent not
promptly reimbursed by the Borrower or the Parent), ratably in proportion to its
outstanding Loans, after the occurrence and during the continuance or existence
of an Event of Default or Potential Default, and otherwise ratably in proportion
to its Commitment, from and against any and all claims, liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by or asserted against the Administrative Agent, in its capacity as
such, in any way relating to or arising out of this Agreement, the Revolving
Credit Notes or the Related Documents or any action taken or omitted by the
Administrative Agent hereunder or thereunder, provided, that no Bank shall be
--------
liable for any portion of such claims, liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
to the extent that the same result from the Administrative Agent's or any of its
directors, officers, employees or agents gross negligence or willful misconduct.
8.7 Reliance by Administrative Agent.
--------------------------------
The Administrative Agent shall be entitled to rely upon any
writing, telegram, telex, facsimile or teletype message, resolution, notice,
consent, certificate, letter, cablegram, statement, order or other document or
conversation by telephone or otherwise believed by it to be genuine and correct
and to have been signed, sent or made by the proper party or parties, and upon
opinions of counsel (including, without limitation, opinions of counsel to the
Borrower) and other professional advisers selected by the Administrative Agent.
The Administrative Agent may execute any of its duties and perform any of its
powers hereunder by or through agents or employees and shall be entitled to
consult with legal counsel and any accountant or other professional selected by
it. Subject to Section 8.5 and except as otherwise provided in this Agreement,
the Administrative Agent shall be fully justified in failing or refusing to take
any action hereunder, under the Revolving Credit Notes or under the Related
Documents unless it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.
8.8 BNY in its Individual Capacity.
------------------------------
With respect to the Commitment, Current Commitment, Loans made by
and Revolving Credit Note held by BNY or any of its Affiliates, BNY or such
Affiliate shall have the
- 68 -
<PAGE>
same rights and powers hereunder as any other Bank and may exercise the same as
though BNY were not the Administrative Agent, and the terms "Banks" or "holders
of Revolving Credit Notes" shall, unless the context hereof otherwise indicates,
include BNY or such Affiliate in its individual capacity. BNY and its Affiliates
may, without liability to account, make loans to, accept deposits from, act as
trustee under indentures of, and generally engage in any kind of banking or
trust business with, the Borrower, the Parent, any Parent Subsidiary, TWI, any
Acquired Company and their shareholders, Subsidiaries and Affiliates as though
BNY were not acting as Administrative Agent hereunder.
8.9 Holders of Revolving Credit Notes.
---------------------------------
The Administrative Agent may deem and treat the payee of any
Revolving Credit Note as the owner of such Revolving Credit Note for all
purposes hereof unless and until an assignment or transfer thereof becomes
effective in accordance with Section 9.12 and a written notice thereof shall
have been filed with the Administrative Agent and the Borrower. Any request,
authority or consent of any party who at the time of making such request or
giving such authority or consent is the holder of any Revolving Credit Note
shall be conclusive and binding on any subsequent holder, transferee or assignee
of such Revolving Credit Note or of any Revolving Credit Note or Revolving
Credit Notes issued in exchange therefor.
8.10 Related Documents.
-----------------
Each of the Banks acknowledges receipt of a copy of each Related
Document and accepts and agrees to the terms thereof.
8.11 Pro Rata Interest in Collateral.
-------------------------------
The liens and security interests and other interests in property
(collectively the "Collateral") granted or transferred to or created in favor of
----------
the Administrative Agent by this Agreement, the Revolving Credit Notes and the
Related Documents as security for the outstanding Obligations shall be held for
the pro rata benefit of itself, the Banks, the Syndication Agent and the
Documentation Agent as specified herein or therein or, if not so specified, in
proportion to their respective interests at the time of distribution in the
outstanding principal amount of the Loans payable to each of the Banks by the
Borrower. Subject to Sections 8.4 and 9.3, each of the rights, privileges and
remedies provided to the Banks, the Syndication Agent, the Documentation Agent
or the Administrative Agent with respect to the Collateral by this Agreement,
the Revolving Credit Notes, the Related Documents or otherwise may be
- 69 -
<PAGE>
exercised by the Administrative Agent on behalf of itself, the Banks, the
Syndication Agent and the Documentation Agent, and any Collateral and the
proceeds thereof held or recovered at any time by the Administrative Agent shall
inure to the pro rata benefit of itself, the Banks, the Syndication Agent and
the Documentation Agent as specified in the Related Document which relates to
such Collateral or, if not so specified herein or therein, in proportion to
their respective interests at the time of distribution in the outstanding
principal amount of Loans payable to the Banks at such time, or if no Loans are
outstanding, in proportion to their respective Current Commitments either at
such time or immediately prior to the termination of the Current Commitments, as
the case may be.
8.12 Financing Statements.
--------------------
Without limiting the Administrative Agent's discretion in other
respects, the Administrative Agent may file or cause to be filed financing
statements which name the Administrative Agent as the secured party for itself
and as Administrative Agent for the Banks, but without referring to any of the
other Banks by name.
8.13 Successor Administrative Agent.
------------------------------
The Administrative Agent may resign at any time by giving written
notice thereof to the Banks and the Borrower. Upon any such resignation, the
Required Banks and the Borrower shall agree upon a successor Administrative
Agent. If no successor Administrative Agent shall have been so agreed upon and
appointed, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation, then the
retiring Administrative Agent may, on behalf of the Banks, appoint a successor
Administrative Agent which shall be a Bank or a commercial bank organized under
the laws of the United States of America or any State thereof and having a
combined capital and surplus of at least $100,000,000. Upon the acceptance by a
successor Administrative Agent of its appointment as Administrative Agent
hereunder, such successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent. The Borrower and the Banks shall execute such documents as
shall be necessary to effect such appointment. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article 8 hereof shall inure to its benefit as to any actions taken or omitted
by it while it was Administrative Agent under this Agreement. If at any time
there shall not be a duly appointed and acting Administrative Agent, the
Borrower agrees to make each payment due hereunder and under the Revolving
Credit Notes directly to the Banks entitled thereto during such time.
8.14 Syndication Agent and Documentation Agent.
-----------------------------------------
The Syndication Agent and the Documentation Agent shall have no
duties or obligations under this Agreement in their respective capacities as
Syndication Agent and Documentation Agent.
ARTICLE 9. MISCELLANEOUS
-------------
- 70 -
<PAGE>
9.1 Holidays.
--------
Except as otherwise provided herein, whenever any payment or action
to be made or taken hereunder or under the Revolving Credit Notes shall be
stated to be due on a day which is not a Business Day, such payment or action
shall be made or taken on the next following Business Day and such extension of
time shall be included in computing interest or fees, if any, in connection with
such payment or action.
9.2 Reliance on Facsimiles.
----------------------
Any party to this Agreement, any Revolving Credit Note or any
Related Document, as the case may be, may rely upon the signatures of any other
party thereto which are transmitted by facsimile or other electronic means to
the same extent as if originally signed.
9.3 Amendments or Waivers.
---------------------
With the written consent of the Required Banks, the Administrative
Agent, acting on behalf of all Banks, and the Borrower may from time to time
enter into written agreements amending or changing any provision of this
Agreement, any Revolving Credit Note or any Related Document to which the
Borrower is a party or the rights of the Banks or the Borrower hereunder or
thereunder or may grant waivers or consents to a departure from the due
performance of the obligations of the Borrower, any such agreement, waiver or
consent made with such written consent being effective to bind all the Banks;
provided, that no such agreement, waiver or consent may be made which will:
- --------
(a) reduce or increase the amount of the Commitment or Current
Commitment of any Bank hereunder or alter the provisions relating to the fees
payable to any Bank hereunder; or
(b) extend the time for payment of principal or interest on any
Revolving Credit Note, or reduce the principal amount of or the rate of interest
borne by any Revolving Credit Note, or otherwise affect the terms of payment of
the principal of or interest on any Revolving Credit Note; or
(c) change the definition herein of "Required Banks", or amend this
Section 9.3; or
- 71 -
<PAGE>
(d) change the provisions of Sections 2.3, 2.12, 4.1(e), 4.1(f),
4.2(d), 7.4, 9.6 or 9.12 or any other provision which by its terms requires the
consent of all Banks; or
(e) alter the terms, impair the value of, or release any Collateral
under the Pledge Agreements, or release any Pledge Agreement, or release the
Borrower, the Parent or any Parent Subsidiary from any of its obligations under
any Pledge Agreement, except for releases expressly permitted by the terms of
this Agreement or any of the Pledge Agreements.
(f) expressly provide for discrimination between the Banks except
in a manner consistent with the existing terms of this Agreement,
without the written consent of all the Banks. Releases permitted under Section
9.3(e) may be effected by Section 6.1 hereof by the Administrative Agent without
the consent of any Bank. In the case of any such waiver or consent relating to
any provision hereof, any Event of Default or Potential Default so waived or
consented to shall be deemed to be cured and not continuing, but no such waiver
or consent shall extend to any other or subsequent Event of Default or Potential
Default or impair any right consequent thereto. Notwithstanding the above, no
provision of this Agreement or any Revolving Credit Note or any Related Document
that adversely affects the rights, privileges or duties of the Administrative
Agent, in its capacity as Administrative Agent, may be waived, modified or
amended without the prior written consent of the Administrative Agent.
9.4 No Implied Waiver; Cumulative Remedies.
--------------------------------------
No course of dealing and no delay or failure of the Administrative
Agent or the Banks in exercising any right, power or privilege under this
Agreement, any Related Document, any Revolving Credit Notes or any other
documents or instruments pursuant to or in connection herewith shall affect any
other or future exercise thereof or exercise of any other right, power or
privilege; nor shall any single or partial exercise of any such right, power or
privilege or any abandonment or discontinuance of steps to enforce such a right,
power or privilege preclude any further exercise thereof or of any other right,
power or privilege. The rights and remedies of the Administrative Agent and the
Banks under this Agreement, the Related Documents, the Revolving Credit Notes or
any other documents or instruments pursuant to or in connection herewith or
therewith are cumulative and not exclusive of any rights or remedies which the
Administrative Agent and the Banks would otherwise have.
9.5 Notices.
-------
All notices and other communications hereunder shall be given to the
applicable party hereto at its address stated on the signature page hereof or at
such other address and/or to such other person as such party may hereafter
specify for that purpose by written notice to the Borrower and the
Administrative Agent. Such notices and other communications will be effective
only if and when given in writing, signed by an authorized officer and shall be
deemed to have been given three (3) days after deposit in the mail, designated
as certified mail, return receipt requested, postage-prepaid, at the applicable
address specified above, or one (l) day
- 72 -
<PAGE>
after being entrusted to a reputable commercial overnight delivery service, or
when sent by telecopy addressed to the party to which such notice is directed at
its address determined as provided above (promptly confirmed in writing).
9.6 Expenses; Taxes; Attorneys' Fees.
--------------------------------
The Borrower agrees to pay or cause to be paid and to save the
Administrative Agent, the Syndication Agent, the Documentation Agent and the
Banks harmless against liability for the payment of all reasonable out-of-pocket
expenses, including, but not limited to, (i) reasonable fees and expenses of
counsel for Administrative Agent, incurred by the Administrative Agent from time
to time (a) arising in connection with the preparation, execution, delivery and
performance of this Agreement, the Revolving Credit Notes, the Related
Documents, and any documents, instruments or transactions pursuant to or in
connection herewith or therewith, or (b) relating to any requested amendments,
waivers or consents to this Agreement, the Revolving Credit Notes, the Related
Documents, or any such documents or instruments and (ii) fees and expenses of
counsel for the Administrative Agent, the Syndication Agent, the Documentation
Agent and each Bank incurred by the Administrative Agent, the Syndication Agent,
the Documentation Agent or any Bank from time to time arising in connection with
(a) the negotiation of any restructuring or "work-out", whether or not
consummated, of any of the Borrower's obligations hereunder and under the
Revolving Credit Notes and Related Documents and (b) the enforcement of any such
obligations, including, without limitation, costs and expenses incurred in any
bankruptcy case or in investigating, preparing for, defending against, or
providing evidence, producing documents or taking any other action in respect of
any commenced or threatened litigation, administrative proceeding or
investigation under any federal securities law or any other statute of any
jurisdiction, or any regulation, or at common law or otherwise, which is alleged
to arise out of or is based upon any acts, practices or omissions or alleged
acts, practices or omissions of the Borrower, any Subsidiary or any agent
thereof. The Borrower agrees to pay all stamp, document, transfer, recording or
filing taxes or fees and similar impositions now or hereafter determined by the
Administrative Agent, the Syndication Agent or the Documentation Agent or any
Bank to be payable in connection with this Agreement, the Revolving Credit
Notes, the Related Documents or any other documents, instruments or transactions
pursuant hereto or thereto or in connection herewith or therewith, and the
Borrower agrees to save the Administrative Agent, the Syndication Agent, the
Documentation Agent and each Bank harmless from and against any and all present
or future claims, liabilities or losses with respect to or resulting from any
omission to pay or delay in paying any such taxes, fees or impositions. In the
event of termination adversely to the Borrower of any action at law or suit in
equity in relation to this
- 73 -
<PAGE>
Agreement, the Revolving Credit Notes or the Related Documents the Borrower will
pay, in addition to all other sums which the Borrower may be required to pay, a
reasonable sum for attorney's fees incurred by the Administrative Agent, the
Syndication Agent, the Documentation Agent and each Bank or the holder of such
Revolving Credit Note in connection with such action or suit. In addition, the
Borrower hereby agrees to indemnify the Administrative Agent, the Syndication
Agent, the Documentation Agent and each Bank and each officer, director,
employee and affiliate of the Administrative Agent, the Syndication Agent, the
Documentation Agent and each Bank from and hold each of them harmless against
any and all losses, liabilities, claims, damages or expenses incurred by any of
them arising out of or by reason of any investigation, litigation or other
proceeding related to (A) the use of the proceeds of any Loans, including,
without limitation, any acquisition or purchase of Shares effected or proposed
to be effected by the Borrower, the Parent or any Parent Subsidiary with the
proceeds of the Loans or (B) the execution, delivery and performance of this
Agreement, any Revolving Credit Note or any Related Document by the Borrower,
the Parent or any Parent Subsidiary insofar as it relates to any such
acquisition or purchase, including, without limitation, in each case, the
reasonable fees and disbursements of counsel incurred in connection with any
such investigation, litigation or other proceeding.
9.7 Severability.
------------
The provisions of this Agreement are intended to be severable. If
any provision of this Agreement shall be held invalid or unenforceable in whole
or in part in any jurisdiction such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without in any
manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
9.8 Governing Law.
-------------
This Agreement, the Revolving Credit Notes and the Related Documents
shall be governed by and construed in accordance with the internal laws of the
State of New York without reference to its choice of law principles.
9.9 Prior Understandings.
--------------------
This Agreement embodies the entire agreement and understanding among
all parties hereto and supersedes all prior understandings and agreements,
whether written or oral, among the parties hereto relating to the transactions
provided for herein.
9.10 Duration; Survival.
------------------
All representations and warranties of the Borrower contained herein
or made in connection herewith shall survive the making of and shall not be
waived by the execution and delivery of this Agreement, the Related Documents or
the Revolving Credit Notes, any investigation by the Administrative Agent and
the Banks, or the making of any Loan hereunder. All covenants and agreements of
the Borrower contained herein shall continue in full force and effect from and
after the date hereof so long as it may borrow hereunder and until payment in
full of the Revolving Credit Notes, interest thereon, commitment fees and all
other obligations
- 74 -
<PAGE>
of the Borrower under this Agreement, the Related Documents or the Revolving
Credit Notes hereunder. Without limitation, it is understood that all
obligations of the Borrower to make payments to or indemnify any Bank
(including, without limitation, obligations arising under Sections 2.12 and 9.6)
shall survive the payment in full of the Revolving Credit Notes and of all other
obligations of the Borrower thereunder and hereunder for a period of two years.
9.11 Counterparts; When Effective.
----------------------------
This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument. This Agreement shall become
effective upon receipt by the Administrative Agent of counterparts hereof
executed by the Borrower, the Administrative Agent, and all of the Banks. The
Administrative Agent will notify each of the other parties hereto of such
effectiveness as promptly as practicable. Complete sets of the counterparts
hereof will be lodged with the Borrower and the Administrative Agent and copies
thereof provided to each Bank.
9.12 Assignments and Participations; Successors and Assigns.
------------------------------------------------------
(a) This Agreement, the Revolving Credit Notes, and the Related
Documents shall be binding upon and inure to the benefit of the Borrower, the
Administrative Agent, the Banks, the Syndication Agent, the Documentation Agent
and their respective successors and assigns, except that the Borrower may not
assign any of its rights or transfer any of its duties hereunder or thereunder
without the prior written consent of each of the Banks.
(b) Any Bank may assign to one or more Eligible Assignees part of
its interest under any of its Revolving Credit Notes, its Loans and its
Commitment, provided that, immediately after giving effect to such assignment,
such Bank (including, without limitation, its Affiliates) shall have a Credit
Exposure equal to at least 51% of its Credit Exposure (adjusted to give effect
to prior reductions of the Commitments pursuant to Section 2.6), at the time
such Bank first became a Bank hereunder.
(c) Any Bank may assign to one or more Eligible Assignees any of
its interest under its Revolving Credit Notes, its Loans and its Commitment not
otherwise permitted under (b) above, provided that the Borrower shall have
consented to such assignment (such consent to be within the sole discretion of
the Borrower).
- 75 -
<PAGE>
(d) Each assignment by any Bank of any of its Revolving
Credit Notes, its Loans and its Commitment shall be in a minimum aggregate
principal amount of $5,000,000 ($2,500,000 in the case of an assignment between
Banks), or such amount plus an integral multiple of $500,000 in excess thereof
(or, if less, the remaining balance of its Revolving Credit Notes, Loans and
Commitment), unless the Borrower shall have consented otherwise, and (i) shall
be of a constant, and not a varying, percentage of the assigning Bank's rights
and obligations being assigned under this Agreement, (ii) the parties to such
assignment shall execute and deliver to the Administrative Agent, for its
recording in the Register (as defined below), an Assignment and Acceptance,
together with any Revolving Credit Note subject to such assignment and a
processing and recordation fee payable to the Administrative Agent in the amount
of $3,500, and (iii) the Borrower shall issue a new Revolving Credit Note or
Revolving Credit Notes to the Banks party to such assignment against receipt of
the existing Revolving Credit Note of the assignor Bank in accordance with
Section 2.2(c). Upon such execution, delivery and recording, from and after the
Effective Date, as defined in each Assignment and Acceptance, the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank hereunder.
(e) Any Bank may participate any of its rights under its
Revolving Credit Notes, its Loans, or its Commitment, provided that any grant of
rights to a participant with respect to the Loans by a Bank shall state that
such rights exist only as a result of the agreement between the participant and
such Bank. The holder of any such participation shall not be entitled to require
such Bank to take or omit to take any action under this Agreement except any
action that would extend the maturity of the Revolving Credit Notes or the
mandatory reductions of the Commitments, reduce the interest rate payable on the
Revolving Credit Notes or the commitment fee, increase the Commitments, forgive
the payment of principal or interest on the Revolving Credit Notes or extend any
payment date with respect thereto, or release any collateral except as permitted
by this Agreement or the Related Documents, in each case solely to the extent
that it participates in such Revolving Credit Notes, Commitment or commitment
fee.
(f) Notwithstanding (b) and (c) above, any Bank may assign
any interest in its Revolving Credit Notes, its Loans or its Commitment (i) to
an Affiliate of such Bank without restriction or (ii) pursuant to the provisions
of Section 2.12(a).
(g) Any Bank that proposes to assign or participate any of
its rights under its Revolving Credit Notes, its Loans or its Commitment
hereunder shall provide prior notice of such transaction to the Borrower. No
Bank shall, as between the Borrower and such Bank, be relieved of any of its
obligations hereunder as a result of any assignment or granting of
participations in all or any part of its Loans, its Revolving Credit Notes or
its Commitment, or other obligations owed to such Bank, except that a Bank shall
be relieved of its obligations hereunder to the extent of any assignment of all
or any part of its Loans, its Revolving Credit Notes or its Commitment made
pursuant to this Section 9.12. All amounts payable to any Bank under Section
2.12 or 2.14(a) shall be determined as if such Bank had not (i) sold any
participations and (ii) made any pledges or assignments pursuant to Section
9.12.
(h) Nothing contained in this Section 9.12 shall prevent or
prohibit any
- 76 -
<PAGE>
Bank from assigning or pledging all or any portion of its Loans and its
Revolving Credit Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve System
and any Operating Circular issued by such Federal Reserve Bank; provided that no
such assignment or pledge shall relieve such Bank from its obligations
hereunder.
(i) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors and
assigns of such party and all covenants, promises and agreements by or on behalf
of the Borrower which are contained in this Agreement shall inure to the benefit
of the successors and assigns of the Banks.
(j) By executing and delivering an Assignment and Acceptance,
the assigning Bank thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim and the
representations and warranties expressly set forth in the applicable Assignment
and Acceptance, the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, the Revolving
Credit Notes, the Related Documents or any other instrument or document
furnished pursuant hereto or thereto; (ii) such assignor Bank makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower, the Parent or any Parent Subsidiary or the
performance or observance by the Borrower, the Parent or any Parent Subsidiary
of any of its obligations under this Agreement, the Revolving Credit Notes or
the Related Documents; (iii) such assignee confirms that it has received a copy
of this Agreement, together with copies of the most recent financial statements
delivered pursuant to Sections 5.1(a) and (b) (or if no such financial
statements shall have then been delivered, then copies of the financial
statements referred to in Section 3.23) and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the assigning Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; and (v) such assignee appoints and authorizes the Administrative
Agent as its agent pursuant to, and in accordance with, Article 8 hereof.
(k) The Administrative Agent shall maintain at its address at
which notices are to be given to it pursuant to Section 9.5 a copy of each
Assignment and Acceptance and a
- 77 -
<PAGE>
register for the recordation of the names and addresses of the Banks and the
Commitments of, and principal amount of the Loans owing to, each Bank from time
to time (the "Register"). The entries in the Register shall be conclusive, in
--------
the absence of manifest error, and the Borrower, the Administrative Agent and
the Banks may treat each person whose name is recorded in the Register as a Bank
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Bank at any reasonable time and from time
to time upon reasonable prior notice.
9.13 Confidential Information.
------------------------
The Administrative Agent and each Bank acknowledges that
under the terms of this Agreement and the Related Documents it may from time to
time receive or gain access to material information about TCI, TWI, and the
Acquired Companies and their Affiliates which shall not have been disclosed to
the public. The Administrative Agent and each Bank, for the benefit of the
Borrower, TCI, TWI and the Acquired Companies, (i) agrees to maintain the
confidentiality of such information until the information shall have been
disclosed to the public, other than in a disclosure made by the Administrative
Agent or any Bank in violation of the terms of this Agreement, or such
information shall have been disclosed to the Administrative Agent or such Bank
by a third person whom the Administrative Agent or such Bank, as the case may
be, does not believe is under a duty of confidentiality with respect to such
information, and (ii) agrees to take reasonable steps to assure that no person
associated with the Administrative Agent or such Bank, as the case may be, makes
any use of such information in connection with any transaction or proposed
transaction other than the transactions contemplated by this Agreement and the
Related Documents. Notwithstanding the preceding sentence, the Administrative
Agent, and the Banks may disclose such information (l) to its Affiliates, (m) to
the extent required by Law, (n) as requested by regulatory authorities or in
connection with litigation involving this Agreement, the Revolving Credit Notes,
the Related Documents or the transactions contemplated hereby, (o) to any
permitted assignee or participant (who agrees in writing to be bound by the
provisions of this Section) or (p) in connection with any sale or effort to sell
any of the Pledged Securities in accordance with any of the Pledge Agreements to
a prospective purchaser.
9.14 Covered Securities.
------------------
On and after the date of any pledge by the Parent, the
Borrower or any Parent Subsidiary of any Pledged Securities constituting
"Covered Securities" under, and as such term is defined in, the Stockholders'
Agreement, each of the Administrative Agent, the Syndication Agent, the
Documentation Agent and each Bank hereby agrees to be bound by the provisions of
Sections 2, 3 and 4 of the Stockholders' Agreement with respect to such Pledged
Securities to the same extent, and with the same effect, as the Parent, the
Borrower or such Parent Subsidiary, as the case may be.
9.15 JURISDICTION; WAIVER OF JURY TRIAL.
----------------------------------
IN CONSIDERATION OF THE AGREEMENT OF THE BANKS TO MAKE THE
LOANS HEREUNDER, THE BORROWER AGREES THAT ANY SUIT, ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT, THE BORROWINGS
- 78 -
<PAGE>
HEREUNDER, ANY REVOLVING CREDIT NOTE OR ANY RELATED DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK
OR THE STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT THE
BORROWER IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS
FOR THAT PURPOSE. THE BORROWER IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT AND
ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. THE BORROWER 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 THE BORROWER. EACH OF
THE BORROWER AND THE BANKS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY RIGHT TO A JURY TRIAL.
- 79 -
<PAGE>
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Agreement as of the date first
above written.
Address for Notices:
COMMUNICATION CAPITAL CORP.
8101 East Prentice Ave. By:
-----------------------------
- -------
Suite 500 Title:
---------------------------
- -------
Englewood, Colorado 80111
Attn: Vice President - Finance
Address for Notices: THE BANK OF NEW YORK, in its
capacity as Administrative Agent
The Bank of New York
One Wall Street By:
-----------------------------
- -------
16th Floor Title:
---------------------------
- -------
New York, New York 10286
Attn: Wade E. Layton
Telephone: (212) 635-8693
Facsimile: (212) 635-8595
Address for Notices: THE BANK OF NEW YORK COMPANY,
INC.
The Bank of New York Company, Inc.
One Wall Street By:
-----------------------------
- -------
16th Floor Title:
---------------------------
- -------
New York, NY 10286
Attn: Wade E. Layton
Telephone: (212) 635-8693
Facsimile: (212) 635-8595
- 80 -
<PAGE>
Address for Notices: TORONTO DOMINION (TEXAS), INC.
Toronto Dominion (Texas), Inc.
909 Fannin Street By:
--------------------------
- -------
Houston, Texas 77010 Title:
------------------------------
Attn: David G. Parker
Telephone: (713) 653-8248
Facsimile: (713) 951-9921
Address for Notices: CREDIT LYONNAIS NEW YORK
BRANCH
Credit Lyonnais New York Branch By:
--------------------------
- -------
1301 Avenue of the Americas Title:
------------------------
- -------
New York, NY 10019
Attn: Bruce M. Yeager
Telephone: (212) 261-7840
Facsimile: (212) 261-3288
Address for Notices: MELLON BANK, N.A.
Mellon Bank, N.A.
Three Mellon Bank Center
Room 2302 By:
--------------------------
- -------
Pittsburgh, Pennsylvania 15259 Title:
------------------------
Attn: Laurie Amadio
- 81 -
<PAGE>
Telephone: (412) 234-4100
Facsimile: (412) 234-5049
with a copy to:
Mellon Bank, N.A.
One Mellon Bank Center
Pittsburgh, Pennsylvania 15258
Attn: David McGowan
Telephone: (412) 234-3697
Facsimile: (412) 234-6375
- 82 -
<PAGE>
COMMUNICATION CAPITAL CORP. EXHIBIT A
-------------------------------------
FORM OF REVOLVING CREDIT NOTE
-----------------------------
$ New York, New York
------------------ [Date of Issuance]
FOR VALUE RECEIVED, the undersigned, COMMUNICATION CAPITAL CORP., a
Delaware corporation (the "Borrower"), promises to pay to the order of
-------- ----------
(the "Bank") on or before the Maturity Date for each Loan, the lesser of (i) the
----
principal sum of [such Bank's Current Commitment] ($ ) or (ii)
-----------------
the aggregate unpaid principal amount of all Revolving Credit Loans made by the
Bank to the Borrower pursuant to the Agreement due on such Maturity Date. The
Borrower further promises to pay to the order of the Bank interest on the unpaid
principal amount hereof from time to time outstanding at the rate or rates per
annum determined pursuant to Section 2.7 of, or as otherwise provided in, the
Agreement payable on the dates set forth in Section 2.10 of, or as otherwise
provided in, the Agreement.
All payments of principal and interest hereunder shall be due and
payable at 1:00 p.m., New York City time, on the day when due. Such payments
shall be made to the Administrative Agent at its Office in Dollars in
immediately available funds without setoff, counterclaim or other deduction of
any nature.
Except as otherwise provided in the Agreement, if any payment of
principal or interest hereunder shall become due on a day which is not a
Business Day, such payment shall be made on the next following Business Day and
such extension of time shall be included in computing interest in connection
with such payment.
This Revolving Credit Note is one of the "Revolving Credit Notes"
referred to in, and is entitled to the benefits of, the Revolving Credit
Agreement, dated as of August 15, 1997, by and among the Borrower, the Banks
party thereto, The Bank of New York, as Administrative Agent, Toronto Dominion
(Texas), Inc., as Syndication Agent, and Credit Lyonnais, as Documentation Agent
(as the same may be amended, modified or supplemented from time to time, the
"Agreement"), which, among other things, provides for the acceleration of the
---------
maturity hereof upon the occurrence of certain events and for prepayments in
certain circumstances and upon certain terms and conditions. This Revolving
Credit Note is secured by, and is entitled to, the benefits of the Pledge
Agreements. Words and terms defined in the Agreement shall have the same meaning
when used herein unless otherwise indicated herein.
The Borrower hereby expressly waives presentment, demand, notice,
protest and all other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Revolving Credit Note
and the Agreement, and an action for amounts due hereunder or thereunder shall
immediately accrue.
- 83 -
<PAGE>
This Revolving Credit Note shall be governed by, and construed and
enforced in accordance with, the laws of the State of New York.
COMMUNICATION CAPITAL CORP.
By:
----------------------------
Title:
-------------------------
- 84 -
<PAGE>
COMMUNICATION CAPITAL CORP. EXHIBIT C-1
FORM OF BORROWER PLEDGE AGREEMENT
---------------------------------
This AGREEMENT, dated as of ___________, 1997 (as amended, modified or
supplemented from time to time, this "Agreement"), by and between COMMUNICATION
---------
CAPITAL CORP., a Delaware corporation (the "Pledgor"), and THE BANK OF NEW YORK,
-------
as Administrative Agent (the "Administrative Agent") for the Banks (as
--------------------
hereinafter defined) under the Revolving Credit Agreement, dated as of August
15, 1997 (as amended, modified or supplemented from time to time, the "Credit
------
Agreement"), by and among the Pledgor, the Administrative Agent, TORONTO
- ---------
DOMINION (TEXAS), INC., as Syndication Agent, CREDIT LYONNAIS, as Documentation
Agent, and the Banks party thereto from time to time (hereinafter referred to
collectively as the "Banks" and individually as a "Bank");
----- ----
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Banks have agreed to lend up
to an aggregate of $500,000,000 to the Pledgor;
WHEREAS, pursuant to the Credit Agreement, the Banks will not make Loans
unless and until the Pledgor shall have executed and delivered this Agreement,
and in furtherance thereof, the Pledgor has agreed to execute and deliver this
Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE 1. DEFINITIONS
1.1 Definitions.
-----------
Words and terms defined in the Credit Agreement shall have the same
meaning when used herein unless otherwise indicated herein. Other words and
terms as used herein shall have the following meanings, unless the context
hereof otherwise clearly requires:
"Collateral" shall mean (i) the Pledged Securities, (ii) all cash,
----------
stock and other dividends paid upon the Pledged Securities (other than regular
cash dividends which the Pledgor retains in accordance with Section 3.2), all
cash, stock, securities and other property received in addition to or in
exchange for the Pledged Securities, all rights to subscribe for securities
incident to the Pledged Securities, and all additions to, substitutions for, or
Proceeds (both cash and non-cash) of, any of the foregoing, (iii) the LMC
Registration Rights Agreement, including, without limitation, all rights to
perform, to compel performance, and otherwise to exercise rights or remedies
under or in connection with, the LMC Registration Rights Agreement, and all
Proceeds of the foregoing and (iv) all other collateral securing the Obligations
pursuant to this Agreement.
- 85 -
<PAGE>
"Debt" shall mean all indebtedness of the Pledgor to the Banks, the
----
Syndication Agent, the Documentation Agent and the Administrative Agent arising
on or after the date hereof under the Credit Agreement, the Revolving Credit
Notes and the Related Documents, both principal and interest, and any
extensions, renewals, refundings, replacements or substitutions of or for such
indebtedness in whole or in part.
"Holder of Obligations" shall mean a permitted participant in, or
---------------------
other permitted assignee of, the rights of any Bank under the Credit Agreement,
the Revolving Credit Notes and the Related Documents.
"Obligations" shall mean (i) the Debt, (ii) all other amounts payable
-----------
by the Pledgor to the Banks, the Syndication Agent, the Documentation Agent and
the Administrative Agent under the Credit Agreement, the Revolving Credit Notes
and the Related Documents, (iii) all covenants, agreements and undertakings to
be performed and discharged by the Pledgor under and pursuant to the Credit
Agreement, the Revolving Credit Notes and the Related Documents and any related
agreement or collateral undertaking and (iv) all reasonable costs and expenses
incurred by the Banks, the Syndication Agent, the Documentation Agent and the
Administrative Agent in collection of the indebtedness referred to in the
preceding clauses (i) and (ii) or the enforcement of the covenants, agreements
and undertakings referred to in the preceding clause (iii).
"Pledged Acquired Company" shall mean an Acquired Company, the shares
------------------------
of which shall have been pledged under this Agreement.
"Pledged Securities" shall mean the securities described in Sections
------------------
2.1(b) and 2.1(c).
"Proceeds" includes whatever is received upon the sale, exchange,
--------
collection or other disposition of, or any realization upon, the Collateral.
"Securities Act" shall mean the Securities Act of 1933, as amended.
--------------
"Security Interests" shall mean (i) the security interests in the
------------------
Collateral granted hereunder and (ii) all other security interests created or
assigned as additional security for the Obligations pursuant to this Agreement.
"UCC" shall mean the Uniform Commercial Code, as in effect from time
---
to time in the State of New York.
1.2 UCC Terms.
---------
Unless otherwise defined herein, or unless the context otherwise
requires, words and terms defined in the UCC shall have the same meanings when
used herein.
ARTICLE 2. THE SECURITY INTERESTS
2.1 Pledge and Grant of Security Interests.
--------------------------------------
- 86 -
<PAGE>
(a) In order to secure the full and punctual payment of the
Obligations in accordance with the terms thereof, the Pledgor hereby pledges to
and with the Administrative Agent for the ratable benefit of itself, the Banks,
the Syndication Agent and the Documentation Agent and grants to the
Administrative Agent on behalf of itself, the Banks, the Syndication Agent and
the Documentation Agent a security interest in the Collateral.
(b) On the Closing Date, the Pledgor shall deliver or cause to be
delivered to the Administrative Agent or its nominee certificates representing
21,928,253 shares of TWI Series LMCN-V Common Stock constituting the Pledged
Securities duly endorsed by the Pledgor or accompanied by undated stock powers
duly executed in blank by the Pledgor and in form appropriate in the judgment of
the Administrative Agent to transfer record ownership of such Shares to the
Administrative Agent or its nominee.
(c) On any date on which the Pledgor desires to pledge Shares
hereunder in addition to the Pledged Securities, the Pledgor shall deliver or
cause to be delivered to the Administrative Agent or its nominee:
(i) a Supplement to this Agreement in the form of Annex A
hereto identifying such Shares; and
(ii) certificates representing such Shares duly endorsed by
the Pledgor or accompanied by undated stock powers duly executed in blank
by the Pledgor and in form appropriate in the judgment of the
Administrative Agent to transfer record ownership of such Shares to the
Administrative Agent or its nominee.
(d) The Security Interests are granted as security only and shall not
subject the Banks, the Syndication Agent, the Documentation Agent or the
Administrative Agent to, or transfer or in any way affect or modify, any
obligation or liability of the Pledgor with respect to any of the Collateral or
any transaction in connection therewith.
2.2 Ratable Benefit of the Banks, the Syndication Agent, the
--------------------------------------------------------
Documentation Agent and the Administrative Agent.
- ------------------------------------------------
The Security Interests granted to and created in favor of the
Administrative Agent by this Agreement and the rights and remedies granted to
the Administrative Agent hereunder shall be for the benefit of itself, the
Banks, the Syndication Agent and the Documentation Agent ratably according to
the amount of the Obligations to each of the Banks, the Syndication Agent, the
Documentation Agent and the Administrative Agent. Each of the rights, privileges
and remedies accorded to the Administrative Agent under this Agreement or
otherwise by statute or at law or in equity with respect to the Collateral may
be exercised by the Administrative Agent, but only for the ratable benefit of
itself, the Banks, the Syndication Agent and the Documentation Agent. Any
Collateral held or recovered at any time by the Administrative Agent, the
Syndication Agent, the Documentation Agent or any Bank or any realization on
account thereof shall inure to the ratable benefit of the Banks, the Syndication
Agent, the Documentation Agent and the Administrative
- 87 -
<PAGE>
Agent.
2.3 Release of Pledged Securities; Termination of Security Interests.
----------------------------------------------------------------
Upon the payment in full of the Revolving Credit Notes, the
performance by the Pledgor of all of its other obligations under the Credit
Agreement, the Revolving Credit Notes and the Related Documents and the
termination of the Commitments, (i) the Security Interests shall terminate and
all rights to the Collateral shall revert to the Pledgor, and (ii) the
Administrative Agent shall, at the Pledgor's expense, execute and deliver to the
Pledgor such documents as the Pledgor shall reasonably request to evidence such
termination and to transfer the Collateral to or upon the order of the Pledgor,
provided, however, that, notwithstanding anything to the contrary contain
- -------- -------
herein, upon the disposition of any Pledged Securities constituting Shares in
accordance with Section 6.1 of the Credit Agreement, the Administrative Agent
shall release its Security Interest in such Pledged Securities.
ARTICLE 3. CERTAIN MATTERS WITH RESPECT TO COLLATERAL
3.1 Record Ownership of Pledged Securities.
--------------------------------------
Subject to the provisions of the Stockholders' Agreement and the
Certificate of Designation, after the occurrence of an Event of Default, the
Administrative Agent may at any time or from time to time, in its sole
discretion, cause any or all of the Pledged Securities to be transferred of
record into the name of the Administrative Agent or its nominee. The Pledgor
shall promptly give to the Administrative Agent copies of any notices or other
communications received by the Pledgor with respect to any Pledged Securities
registered in the name of the Pledgor, and the Administrative Agent shall
promptly give to the Pledgor, copies of any notices or other communications
received by the Administrative Agent with respect to any Pledged Securities
registered in the name of the Administrative Agent or its nominee. The
Administrative Agent shall promptly furnish duplicates of all such notices or
other communications so received by it to the Banks.
3.2 Right to Receive Distributions on Collateral.
--------------------------------------------
Subject to the provisions of the Stockholders' Agreement and the
Certificate of Designation, unless an Event of Default or Potential Default
shall have occurred and be continuing, the Pledgor shall have the right to
receive and to retain all regular cash dividends paid upon the Pledged
Securities, and all such regular cash dividends that are received by the
Administrative Agent shall forthwith be paid over to the Pledgor. The
Administrative Agent shall have the right to receive and to retain as additional
Collateral hereunder all other dividends, interest and other payments and
distributions issued or made upon or in substitution or exchange for or with
respect to the Collateral, including, without limitation, shares issued as a
result of any reclassification, stock split, split-up or other corporate
reorganization, and the Pledgor shall take all such action as the Administrative
Agent may deem necessary or appropriate to give effect to such right. All such
other dividends, interest and other payments and shares and distributions that
are received by the Pledgor shall be received in trust for the benefit of the
Banks, the Syndication Agent, the Documentation Agent and the Administrative
Agent and shall forthwith be paid over
- 88 -
<PAGE>
to the Administrative Agent as Collateral in the same form as received (with any
necessary endorsements).
3.3 Right to Vote Collateral.
------------------------
Unless an Event of Default or Potential Default shall have occurred
and be continuing, the Pledgor shall have the right, from time to time, to vote
and to give consents, ratifications and waivers with respect to all securities
constituting part of the Collateral for any purpose not inconsistent with the
terms or purpose of the Credit Agreement, the Revolving Credit Notes or the
Related Documents; provided, however, that the Pledgor shall not in any event
-------- -------
exercise such rights in any manner which could reasonably be expected to have a
material adverse effect on the value of the Pledged Securities or the security
intended to be provided by this Agreement. Subject to the provisions of the
Stockholders' Agreement and the Certificate of Designation if an Event of
Default or Potential Default shall have occurred and be continuing, the
Administrative Agent shall have the right, to the extent permitted by law, and
the Pledgor shall take all such action as may be necessary or appropriate to
give effect to such right, to vote and to give consents, ratifications and
waivers, and to take any other action with respect to, all securities
constituting part of the Collateral with the same force and effect as if the
Administrative Agent were the absolute and sole owner thereof.
3.4 Preservation of Collateral.
--------------------------
The Pledgor assumes full responsibility for taking any and all
necessary steps to preserve rights with respect to the Collateral against prior
parties. The Administrative Agent shall exercise reasonable care in the custody
and preservation of the Collateral, and the Administrative Agent shall be deemed
to have exercised reasonable care in the custody and preservation of such of the
Collateral as may be in its possession if the Administrative Agent takes such
action for that purpose as the Pledgor shall request in writing, provided that
--------
such requested action will not, in the judgment of the Administrative Agent,
impair the Administrative Agent's security interest in the Collateral or its
rights in, or the value of, the Collateral, and provided further that such
--------
written request is received by the Administrative Agent in sufficient time to
permit the Administrative Agent to take the requested action.
3.5 Certain Matters Relating to the LMC Registration Rights Agreement.
-----------------------------------------------------------------
(a) Notwithstanding anything to the contrary in the Credit Agreement,
any Revolving Credit Note or any Related Document, (i) the Pledgor shall remain
liable under the LMC Registration Rights Agreement 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
Administrative Agent of any rights or remedies under or in connection with the
Credit Agreement, any Revolving Credit Note or any Related Document shall not
release the Pledgor from any of its duties or obligations under the LMC
Registration Rights Agreement, and (iii) none of the Administrative Agent, the
Syndication Agent, the Documentation Agent or any Bank shall have any obligation
or liability under the LMC Registration Rights Agreement by
- 89 -
<PAGE>
reason of the Credit Agreement, any Revolving Credit Note or any Related
Document, nor shall the Administrative Agent, the Syndication Agent, the
Documentation Agent or any Bank be obligated to perform any of the obligations
or duties of the Pledgor thereunder or to take any action to collect or enforce
any claim for payment assigned hereunder.
(b) This Agreement creates a valid security interest in the LMC
Registration Rights Agreement in favor of the Administrative Agent on behalf of
itself, the Banks, the Syndication Agent and the Documentation Agent securing
the Obligations, which security interest has been duly perfected and is prior to
all other liens, security interests, options or other charges or encumbrances.
All filings and other actions necessary or desirable to perfect and protect such
security interest have been duly made and taken.
(c) The Pledgor shall perform and observe all of the terms and
provisions of the LMC Registration Rights Agreement to be performed or observed
by it, maintain the LMC Registration Rights Agreement in full force and effect,
enforce the LMC Registration Rights Agreement in accordance with its terms and
take all such action to such ends as the Administrative Agent may request from
time to time.
(d) The Pledgor shall furnish to the Administrative Agent, promptly
upon receipt thereof, copies of all notices and other communications received by
the Pledgor under or in connection with the LMC Registration Rights Agreement,
and from time to time upon the request of the Administrative Agent make to any
other party to the LMC Registration Rights Agreement such demands and requests
for information and reports or for action as the Pledgor is entitled to make
under or in connection therewith.
(e) The Pledgor shall, and shall cause its subsidiaries to, exercise
their rights to demand registration of TWI capital stock under Section 2 of the
LMC Registration Rights Agreement, if and to the extent required to enable the
Administrative Agent, on behalf of itself, the Banks, the Syndication Agent and
the Documentation Agent, to cause a registration of TWI capital stock
constituting Pledged Securities (as defined herein and in the other Related
Documents) under Section 2 of the LMC Registration Rights Agreement.
ARTICLE 4. GENERAL AUTHORITY; REMEDIES
4.1 Administrative Agent as Attorney-in-Fact.
----------------------------------------
The Pledgor hereby irrevocably appoints the Administrative Agent its
true and lawful attorney, with full power of substitution, in the name of the
Pledgor, the Administrative Agent or its nominee, the Syndication Agent, the
Documentation Agent, the Banks or otherwise, for the sole use and benefit of the
Administrative Agent, the Syndication Agent, the Documentation Agent, the Banks
and the Holders of Obligations, but at the Pledgor's expense, to exercise,
subject to the provisions of the Stockholders' Agreement and the Certificate of
Designation, at any time and from time to time while an Event of Default has
occurred and is continuing, all or any of the following powers with respect to
all or any of the Collateral:
(a) to demand, sue for, collect, receive and give acquittance
for any and
- 90 -
<PAGE>
all monies due or to become due upon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto,
(c) to sell, transfer, assign or otherwise deal in or with
the same or the proceeds or avails thereof, as fully and effectively as if the
Administrative Agent were the absolute owner thereof, as provided in Section
4.2,
(d) to extend the time of payment of any or all thereof and
to make any allowance and other adjustments with reference thereto, and
(e) to endorse, assign or otherwise transfer to or to
register in the name of the Administrative Agent or its nominee any or all of
the Collateral.
4.2 Sale of Collateral.
------------------
(a) Subject to the provisions of the Stockholders' Agreement
and the Certificate of Designation, if any Event of Default shall have occurred
and be continuing under the Credit Agreement and the Loans shall have been
declared or shall have become due and payable, the Administrative Agent may
exercise on behalf of itself, the Banks, the Syndication Agent and the
Documentation Agent, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights of a secured party under the
UCC and, in addition, the Administrative Agent may, without being required to
give any notice, except as herein provided or as may be required by mandatory
provisions of law, subject to paragraph (d) of this Section 4.2, sell the
Collateral or any part thereof at public or private sale or at any broker's
board or on any securities exchange, for cash, upon credit or for future
delivery, and at such price or prices as the Administrative Agent may deem
satisfactory, subject to compliance with mandatory provisions of law.
(b) Any Bank or any Holder of Obligations may be the
purchaser of any or all of the Collateral so sold at any sale and thereafter
hold the same, absolutely, free from any right or claim of whatsoever kind.
(c) The Administrative Agent is authorized, in connection
with any such sale, if it deems it advisable so to do:
(i) to restrict the prospective bidders on or
purchasers of any of the Collateral to a limited number of
sophisticated investors who will represent and agree that such
investors are purchasing for their own account for investment and not
with a view to the distribution or sale of any of such Collateral,
(ii) to cause to be placed on certificates for any or
all of the Pledged Securities or any other securities pledged
hereunder, if applicable, a legend to the effect that such Pledged
Securities or other securities have not been registered under the
Securities Act
- 91 -
<PAGE>
and may not be disposed of in violation of the provisions of the
Securities Act, and
(iii) to impose such other limitations or conditions in
connection with any such sale as the Administrative Agent deems
necessary or advisable in order to comply with the Securities Act or
any other law.
The Pledgor covenants and agrees that it will execute and deliver such documents
and take such other action as the Administrative Agent deems necessary or
advisable in order that any such sale may be made in compliance with law. Upon
any such sale the Administrative Agent shall have the right to deliver, assign
and transfer to the purchaser thereof the Collateral so sold. Each purchaser at
any such sale shall hold the Collateral so sold absolutely, free from any claim
or right of whatsoever kind, including, without limitation, any equity or right
of redemption of the Pledgor. The Pledgor, to the extent permitted by law,
hereby specifically waives all rights of redemption, stay or appraisal that it
has or may have under any law now existing or hereafter adopted. The
Administrative Agent agrees that, to the extent notice of sale is required by
law, it shall give the Pledgor ten days' written notice (which notice shall be
deemed to be commercially reasonable for purposes of the UCC) of its intention
to make any such public or private sale, sale at a broker's board or on a
securities exchange or other intended disposition of any of the Collateral,
except any Collateral that threatens to decline speedily in value or is of a
type customarily sold in a recognized market. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Administrative Agent may fix in the notice of such sale. At any such
public or private sale the Collateral may be sold in one lot as an entirety or
in separate parcels, as the Administrative Agent may determine. The
Administrative Agent shall not be obligated to make any such sale pursuant to
any such notice. The Administrative Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the same may be so adjourned. In case
of any sale all or any part of the Collateral so sold may be retained by the
Administrative Agent until the selling price is paid by the purchaser thereof,
but the Administrative Agent shall not incur any liability in case of the
failure of such purchaser to take up and pay for the Collateral so sold and, in
case of any such failure, such Collateral may again be sold upon like notice.
The Administrative Agent, instead of exercising the power of sale herein
conferred upon it, may proceed by a suit or suits at law or in equity to
foreclose the Security Interests and sell the Collateral, or any portion
thereof, under a judgment of a court or courts of competent jurisdiction.
(d) If the Administrative Agent determines to exercise its
right to sell all or any of the Collateral in a manner which would require
registration of any of the Collateral under the provisions of the Securities
Act, the Pledgor agrees, at its own expense,
(i) to execute and deliver, and to use its best
efforts to cause the issuer thereof and each other corporation whose
securities are to be sold and their respective directors and officers
to execute and deliver, all such instruments and documents, and to do
or cause to be done all other such acts and things, as may be necessary
or, in the opinion of the Administrative Agent, advisable to register
such securities under the provisions of the Securities Act and to cause
the registration statement relating thereto to become effective and to
remain effective for such period of time as may be appropriate to
enable prospectuses as required by law to be furnished, and to make or
cause to be made all amendments and supplements thereto and to the
related prospectus which, in the opinion of the Administrative
- 92 -
<PAGE>
Agent, are necessary or advisable, all in conformity with the
requirements of the Securities Act and the rules and regulations of the
Securities and Exchange Commission (or any successor thereto)
thereunder,
(ii) to use its best efforts to cause the issuer of
such securities and each other corporation whose securities are to be
sold to agree to make, and to make, available to its security holders
as soon as practicable, an earnings statement (which need not be
audited) covering a period of at least 12 months, beginning with the
first month after the effective date of any such registration
statement, which earnings statement will satisfy the provisions of
Section 11(a) of the Securities Act,
(iii) to use its best efforts to qualify such
securities under state "Blue Sky" or securities laws and to obtain the
approval of any governmental authorities for the sale of such
securities, as requested by the Administrative Agent, and
(iv) at the request of the Administrative Agent, to
indemnify and hold harmless the Administrative Agent, the Banks, the
Syndication Agent, the Documentation Agent, the Holders of Obligations
and any underwriters (and any person controlling any of the foregoing)
from and against any loss, liability, claim, damage and expense (and
reasonable counsel fees incurred in connection therewith) under the
Securities Act or otherwise insofar as such loss, liability, claim,
damage, or expense arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in such
registration statement or prospectus or in any preliminary prospectus
or any amendment or supplement thereto, or arises out of or is based
upon any omission or alleged omission to state therein a material fact
required to be stated or necessary to make the statements therein not
misleading, such indemnification to remain operative regardless of any
investigation made by or on behalf of the Administrative Agent, the
Banks, the Syndication Agent, the Documentation Agent, the Holders of
Obligations or any underwriters (or any person controlling any of the
foregoing), provided that the Pledgor shall not be liable in any case
--------
to the Administrative Agent, the Syndication Agent, the Documentation
Agent, a Bank, a Holder of Obligations or an underwriter to the extent
that any such loss, liability, claim, damage or expense arises out of
or is based on an untrue statement or alleged untrue statement or an
omission or an alleged omission made in reliance upon and in conformity
with written information furnished by the Administrative Agent, the
Syndication Agent, the Documentation Agent, such Bank, such Holder of
Obligations or such underwriter, as the case may be, expressly for use
in such registration statement or prospectus.
(e) The Pledgor recognizes that the Administrative Agent may
be unable or may determine that it is not practicable to effect a public sale of
all or a part of the Collateral by reason of certain prohibitions contained in
federal or state securities laws and, under the circumstances then existing, may
reasonably resort to one or more private sales. The Pledgor agrees that such
private sales may be made at prices and on other terms less favorable to the
seller than if the Collateral were sold at public sale and that the
Administrative Agent has no obligation to delay sale of any of the Collateral
for the period of time necessary to permit the issuer or issuers thereof, even
if such issuer
- 93 -
<PAGE>
or issuers would agree, to register such Collateral for public sale under the
Securities Act, or applicable state securities laws. The Pledgor agrees that
private sales made under the foregoing circumstances shall be deemed to have
been made in a commercially reasonable manner under the UCC if in connection
with such sales the Administrative Agent has used its best efforts to obtain the
best price reasonably obtainable under the circumstances and the Administrative
Agent has complied with any requirement applicable to the Administrative Agent
under the Securities Act.
4.3 Consents.
--------
Upon the exercise by the Administrative Agent of any power,
right, privilege or remedy pursuant to the Credit Agreement, the Revolving
Credit Notes or the Related Documents or otherwise which requires any consent,
approval, registration, qualification or authorization of any Official Body, the
Pledgor will execute and deliver, or will cause the execution and delivery of,
all applications, certificates, instruments and other documents and papers that
the Administrative Agent may be required to obtain for such governmental
consent, approval, registration, qualification or authorization. Without
limiting the generality of the foregoing, the Pledgor will take all actions
requested by the Administrative Agent in order to obtain from the appropriate
Official Body all necessary consents and approvals (i) for the transfer of the
Collateral to the Administrative Agent upon the occurrence of an Event of
Default, (ii) to effectuate any sale or sales of the Collateral pursuant to
Article 4 hereof, and (iii) for exercising any other right or remedy of the
Administrative Agent under this Agreement.
4.4 Administrative Agent May Perform.
--------------------------------
If the Pledgor fails to perform any agreement contained
herein, the Administrative Agent may itself perform, or cause performance of,
such agreement, and the reasonable expenses of the Administrative Agent,
including, without limitation, the reasonable fees and expenses of its counsel,
incurred in connection therewith shall be payable by the Pledgor under Section
5.1.
ARTICLE 5. MISCELLANEOUS
5.1 Expenses.
--------
The Pledgor shall forthwith upon demand pay to the
Administrative Agent:
(a) the amount of any taxes that the Administrative
Agent, the Syndication Agent, the Documentation Agent or any Bank may
have been required to pay:
(i) by reason of or in connection with the
Security Interests (including, without limitation, any
applicable stamp taxes or transfer taxes) or the
execution and delivery of this Agreement or
(ii) to free any of the Collateral from any
Lien thereon, and
(b) the amount of any out-of-pocket expenses,
including, without limitation, the reasonable fees and disbursements of
counsel and of any agent, that the Administrative
- 94 -
<PAGE>
Agent may incur in connection with,
(i) the performance by the Administrative Agent of its
duties under this Agreement,
(ii) the collection, sale or other disposition of any of
the Collateral, including, without limitation, any expenses of
registration of the Collateral,
(iii) the exercise by the Administrative Agent of any of the
rights conferred upon it hereunder or
(iv) any default on the part of the Pledgor hereunder.
5.2 Holidays.
--------
Except as otherwise provided herein, whenever any payment or action to
be made or taken hereunder or with respect to the Collateral shall be stated to
be due on a day which is not a Business Day, such payment or action shall be
made or taken on the next following Business Day.
5.3 No Implied Waiver; Cumulative Remedies.
--------------------------------------
No course of dealing and no delay or failure of the Banks, the
Syndication Agent, the Documentation Agent or the Administrative Agent in
exercising any right, power or privilege under this Agreement or any other
documents or instruments pursuant to or in connection herewith shall affect any
other or future exercise thereof or exercise of any other right, power or
privilege; nor shall any single or partial exercise of any such right, power or
privilege or any abandonment or discontinuance of steps to enforce such a right,
power or privilege preclude any further exercise thereof or of any other right,
power or privilege. The rights and remedies of the Banks, the Syndication Agent,
the Documentation Agent and the Administrative Agent under this Agreement or any
other documents or instruments pursuant to or in connection herewith are
cumulative and not exclusive of any rights or remedies which the Banks, the
Syndication Agent, the Documentation Agent or the Administrative Agent would
otherwise have.
5.4 Notices.
-------
All notices, requests, demands, directions and other communications
(collectively "notices") under the provisions of this Agreement shall be given
and deemed effective as provided in Section 9.5 of the Credit Agreement.
5.5 Severability.
------------
The provisions of this Agreement are intended to be severable. If any
provision of this Agreement shall be held invalid or unenforceable in whole or
in part in any jurisdiction such
- 95 -
<PAGE>
provision shall, as to such jurisdiction, be ineffective to the extent of such
invalidity or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
5.6 Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with
the internal laws of the State of New York without reference to its choice of
law principles.
5.7 Prior Understandings.
--------------------
This Agreement supersedes all prior understandings and agreements,
whether written or oral, among the parties hereto relating to the transactions
provided for herein.
5.8 Counterparts.
------------
This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
5.9 Successors and Assigns.
----------------------
This Agreement shall be binding upon and inure to the benefit of the
Banks, the Pledgor, the Administrative Agent, the Syndication Agent, the
Documentation Agent and their respective successors and assigns, except that the
Pledgor may not assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Banks. Except to the extent otherwise
required by the context of this Agreement, the word "Banks" where used in this
Agreement shall mean and include any holder of a Revolving Credit Note
originally issued to a Bank under the Credit Agreement, and each such holder of
a Revolving Credit Note shall be bound by and have the benefits of this
Agreement to the same extent as if such holder had been a signatory hereto.
5.10 Stockholders' Agreement; Certificate of Designation.
---------------------------------------------------
(a) The Administrative Agent, on behalf of itself, the Syndication
Agent, the Documentation Agent and the Banks, agree that, in the event of any
sale or foreclosure on any shares of TWI Series LMCN-V Common Stock pledged
pursuant hereto, such shares shall be delivered immediately to TWI for
conversion into TWI Common Stock.
(b) The Administrative Agent, on behalf of itself, the Syndication
Agent, the Documentation Agent and the Banks, agree that in the event of any
sale or foreclosure on any shares of TWI Series LMCN-V Common Stock pledged
pursuant hereto, it and they shall be bound by all of the provisions of the
Stockholders' Agreement applicable to the Pledgor.
- 96 -
<PAGE>
WITNESS the due execution hereof as of the day and year first above written.
COMMUNICATION CAPITAL CORP.
By:
----------------------------------
Title:
-------------------------------
THE BANK OF NEW YORK, as
Administrative Agent
By:
----------------------------------
Title:
-------------------------------
- 97 -
<PAGE>
SUPPLEMENT NO. __ TO PLEDGE AGREEMENT
Reference is made to the Pledge Agreement, dated as of _______________,
1997, by and between Communication Capital Corp. and The Bank of New York, as
Administrative Agent (as amended, the "Pledge Agreement").
From and after the date hereof, the following shares of capital stock shall
be "Pledged Securities" under the Pledge Agreement:
Name of Issuer:
Title of Security:
Number of Shares:
Certificate Nos.:
Date: COMMUNICATION CAPITAL CORP.
--------------
By:
----------------------------------
Title:
-------------------------------
- 98 -
<PAGE>
COMMUNICATION CAPITAL CORP. EXHIBIT C-2
FORM OF PARENT AGREEMENT
------------------------
This AGREEMENT, dated as of________, 1997 (as amended, modified or
supplemented from time to time, this "Agreement"), by and between LIBERTY TW,
---------
INC., a Colorado corporation (the "Pledgor"), and THE BANK OF NEW YORK, as
-------
Administrative Agent (the "Administrative Agent") for the Banks (as hereinafter
--------------------
defined) under the Revolving Credit Agreement, dated as of August 15, 1997 (as
amended, modified or supplemented from time to time, the "Credit Agreement"), by
----------------
and among Communication Capital Corp. (the "Borrower"), the Administrative
--------
Agent, TORONTO DOMINION (TEXAS), INC., as Syndication Agent, CREDIT LYONNAIS, as
Documentation Agent, and the Banks party thereto from time to time (hereinafter
referred to collectively as the "Banks" and individually as a "Bank");
----- ----
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Banks have agreed to
lend up to an aggregate of $500,000,000 to the Borrower;
WHEREAS, the Pledgor directly owns all of the outstanding capital stock
of the Borrower, and pursuant to the Credit Agreement, the Banks will not make
Loans unless and until the Pledgor shall have executed and delivered this
Agreement;
WHEREAS, in light of all of the foregoing, the Pledgor 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;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE 1. DEFINITIONS
1.1 Definitions.
-----------
Words and terms defined in the Credit Agreement shall have the
same meaning when used herein unless otherwise indicated herein. Other words and
terms as used herein shall have the following meanings, unless the context
hereof otherwise clearly requires:
"Collateral" shall mean (i) the Pledged Securities, (ii) all
----------
cash, stock and other dividends paid upon the Pledged Securities (other than
regular cash dividends which the Pledgor retains in accordance with Section
4.2), all cash, stock, securities and other property received in addition to or
in exchange for the Pledged Securities, all rights to subscribe for securities
incident to the Pledged Securities, and all additions to, substitutions for, or
Proceeds (both cash and non-
- 99 -
<PAGE>
cash) of, any of the foregoing, (iii) the LMC Registration Rights Agreement,
including, without limitation, all rights to perform, to compel performance, and
otherwise to exercise rights or remedies under or in connection with, the LMC
Registration Rights Agreement, and all Proceeds of the foregoing and (iv) all
other collateral securing the Obligations pursuant to this Agreement.
"Consolidated Group" shall mean and include all corporations
------------------
with whom the Pledgor at any time files or has filed consolidated tax returns.
"Debt" shall mean all indebtedness of the Borrower to the Banks,
----
the Syndication Agent, the Documentation Agent and the Administrative Agent
arising on or after the date hereof under the Credit Agreement, the Revolving
Credit Notes and the Related Documents, both principal and interest, and any
extensions, renewals, refundings, replacements or substitutions of or for such
indebtedness in whole or in part.
"First Pledge Date" shall mean the earlier of (i) the first
-----------------
date, if any, on which Shares shall have been pledged hereunder and (ii) the
date, if any, on which the first Parent Subsidiary Agreement shall have been
executed and delivered by all of the parties thereto.
"Holder of Obligations" shall mean a permitted participant in,
---------------------
or other permitted assignee of, the rights of any Bank under the Credit
Agreement, the Revolving Credit Notes and the Related Documents.
"Intermediate Holder" shall have the meaning assigned to that
-------------------
term in Section 2.14.
"Obligations" shall mean (i) the Debt, (ii) all other amounts
-----------
payable by the Borrower, and all amounts payable by the Pledgor and each Parent
Subsidiary, to the Banks, the Syndication Agent, the Documentation Agent and the
Administrative Agent under the Credit Agreement, the Revolving Credit Notes and
the Related Documents, (iii) all covenants, agreements and undertakings to be
performed and discharged by the Borrower, the Pledgor and each Parent Subsidiary
under and pursuant to the Credit Agreement, the Revolving Credit Notes and the
Related Documents and any related agreement or collateral undertaking and (iv)
all reasonable costs and expenses incurred by the Banks, the Syndication Agent,
the Documentation Agent and the Administrative Agent in collection of the
indebtedness referred to in the preceding clauses (i) and (ii) or the
enforcement of the covenants, agreements and undertakings referred to in the
preceding clause (iii).
"Pledged Acquired Company" shall mean an Acquired Company, the
------------------------
shares of which shall have been pledged under this Agreement.
"Pledged Securities" shall mean the securities described in
------------------
Sections 3.1(b), 3.1(c) and 3.1(d).
"Proceeds" includes whatever is received upon the sale,
--------
exchange, collection or other disposition of, or any realization upon, the
Collateral.
"Securities Act" shall mean the Securities Act of 1933, as
--------------
amended.
- 100 -
<PAGE>
"Security Interests" shall mean (i) the security interests in
------------------
the Collateral granted hereunder and (ii) all other security interests created
or assigned as additional security for the Obligations pursuant to this
Agreement.
"UCC" shall mean the Uniform Commercial Code, as in effect from
---
time to time in the State of New York.
1.2 UCC Terms.
---------
Unless otherwise defined herein, or unless the context otherwise
requires, words and terms defined in the UCC shall have the same meanings when
used herein.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF PLEDGOR.
-----------------------------------------
The Pledgor represents and warrants to the Administrative Agent, the
Syndication Agent, the Documentation Agent and the Banks as follows:
2.1 Organization and Qualification.
------------------------------
The Pledgor is a corporation duly organized, validly existing
and in good standing under the laws of the State of Colorado. The Pledgor is
duly qualified to do business as a foreign corporation and in good standing in
all jurisdictions in which the ownership of its properties or the nature of its
activities or both makes such qualification necessary.
2.2 Authority and Authorization.
---------------------------
(a) The Pledgor has corporate power and authority to execute
and deliver this Agreement and the other Related Documents to which it is a
party, to perform its obligations hereunder and under the other Related
Documents to which it is a party, and to obtain the Parent Loans, and all such
action has been duly and validly authorized by all necessary corporate action on
its part.
(b) On the date of each purchase of Shares of a Pledged
Acquired Company, the Pledgor will have corporate power and authority to effect
such purchase and all such action will have been duly and validly authorized by
all necessary corporate action on its part.
2.3 Execution and Binding Effect.
----------------------------
This Agreement and the other Related Documents to which the
Pledgor is a party have been duly and validly executed and delivered by the
Pledgor and constitute legal, valid and binding obligations of the Pledgor
enforceable in accordance with the terms hereof and thereof, except as the
enforceability of this Agreement and the other Related Documents to which the
Pledgor is a party may be limited by bankruptcy, insolvency or other similar
laws of general
- 101 -
<PAGE>
application affecting the enforcement of creditors' rights or by general
principles of equity.
2.4 Authorizations and Filings.
--------------------------
(a) No authorization, consent, approval, license, exemption
or other action by, and no registration, qualification, designation, declaration
or filing with, any Official Body is or will be necessary or advisable in
connection with the execution and delivery of this Agreement and the other
Related Documents to which the Pledgor is a party, the consummation of the
transactions herein or therein contemplated, the performance of or compliance
with the terms and conditions hereof or thereof, except the enforcement of this
Agreement may require the consent of the FCC as to the transfer of control of
licenses granted by the FCC to a Pledged Acquired Company or its Subsidiaries,
the consent of certain Official Bodies as to the transfer of control of
franchises, licenses, permits or other authorizations granted to a Pledged
Acquired Company or its Subsidiaries, filings with the Securities and Exchange
Commission (or any successor thereto) as to the transfer of control of a Pledged
Acquired Company, or filings required by the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, in connection with any transfer of control
of such Pledged Acquired Company or its Subsidiaries.
(b) No authorization, consent, approval, license, exemption
or other action by, and no registration, qualifications, designation,
declaration or filing with, any Official Body is or will be necessary or
advisable in connection with the purchase of Shares of a Pledged Acquired
Company, except such authorizations, consents or approvals as shall have been
obtained by the Pledgor prior to such purchase.
2.5 Absence of Conflicts.
--------------------
Except as set forth in Schedule 3.5 of the Credit Agreement,
neither the execution and delivery of this Agreement or the other Related
Documents to which the Pledgor is a party, nor the consummation of the
transactions herein or therein contemplated, nor the performance or compliance
with the terms and conditions hereof or thereof, nor the enforcement of the
terms and conditions hereof or thereof (including, without limitation, any
change in control of a Pledged Acquired Company or its Subsidiaries resulting
from such enforcement), nor the purchase of Shares of a Pledged Acquired
Company, will:
(a) violate any Law, except the enforcement of this
Agreement may require the consent of the FCC as to the transfer of
control of licenses granted by the FCC to a Pledged Acquired Company or
its Subsidiaries, the consent of certain Official Bodies as to the
transfer of control of franchises, licenses, permits or other
authorizations granted to a Pledged Acquired Company or its Subsidiaries,
filings with the Securities and Exchange Commission (or any successor
thereto) as to the transfer of control of a Pledged Acquired Company, or
filings required by the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, in connection with any transfer of control of a Pledged
Acquired Company or its Subsidiaries,
(b) conflict with, result in a breach of or a default
under, accelerate or permit the acceleration of the performance required
by, or give to others any material rights or interests (including,
without limitation, rights of purchase, termination,
- 102 -
<PAGE>
cancellation or acceleration) under, the articles of incorporation or by-
laws of the Pledgor, any Pledged Acquired Company or any of their
respective Subsidiaries or any agreement or instrument to which the
Pledgor, such Pledged Acquired Company or such Subsidiary is a party or
by which it or its properties (now owned or hereafter acquired) may be
subject or bound, except that the enforcement of this Agreement with
respect to shares of TWI Series LMCN-V Common Stock is subject to the
Stockholder's Agreement and Section 6.1 of the Certificate of
Designation; provided that the representation in this clause (b) does not
--------
apply to Pledged Acquired Companies and Subsidiaries of Pledged Acquired
Companies the aggregate value of whose Pledged Securities, together with
the aggregate value of Pledged Securities of Pledged Acquired Companies
(as such terms are defined in the other Related Documents) under the
other Related Documents as to which a similar representation is not made,
does not exceed 10% of the value of all Pledged Securities of Pledged
Acquired Companies (as such terms are defined in all Related Documents),
(c) conflict with, result in a breach of or a default
under, accelerate or permit the acceleration of the performance required
by, or give to others any material rights or interests (including,
without limitation, rights of purchase, termination, cancellation or
acceleration) under, any material agreement or material instrument to
which any Subsidiary of the Pledgor or, to the knowledge of the Pledgor
(such knowledge being based upon a review of publicly available filings
made by a Pledged Acquired Company with the Securities and Exchange
Commission (or any successor thereto)), such Pledged Acquired Company or
any Subsidiary of such Pledged Acquired Company, is a party or by which
any of them or any of their respective properties (now owned or hereafter
acquired) may be subject or bound, if such conflict, breach, default,
acceleration or rights or interest could reasonably be expected to have a
material adverse effect on the value of the Pledged Securities or on the
rights of the Administrative Agent under this Agreement; provided that
--------
the representation in this clause (c) does not apply to Pledged Acquired
Companies and Subsidiaries of Pledged Acquired Companies, the aggregate
value of whose Pledged Securities, together with the aggregate value of
Pledged Securities (as such term is used in the other Related Documents)
under the other Related Documents as to which a similar representation is
not made, does not exceed 10% of the value of all Pledged Securities of
Pledged Acquired Companies (as such terms are defined in all Related
Documents), or
(d) result in the creation or imposition of any Lien
upon any property (now owned or hereafter acquired) of the Pledgor, a
Pledged Acquired Company or any of their respective Subsidiaries, other
than the Liens created by the Related Documents.
2.6 No Event of Default; Compliance with Instruments.
------------------------------------------------
No event has occurred and is continuing and no condition
exists which constitutes an Event of Default or Potential Default. The Pledgor
is not in violation of any term of any certificate of incorporation, by-law, or
material agreement or instrument to which the Pledgor is
- 103 -
<PAGE>
a party or by which it or any of its properties (now owned or hereafter acquired
may be subject or bound.
2.7 Business.
--------
The Pledgor has no material assets other than Pledged
Securities, the TWI Agreements, other shares of capital stock and intercompany
receivables, and has no material liabilities other than liabilities permitted by
this Agreement.
2.8 Litigation.
----------
There is no pending or (to the Pledgor's knowledge after due
inquiry) threatened proceeding by or before any Official Body against or
affecting the Pledgor or its Subsidiaries which if adversely decided would have
a material adverse effect on the business, operations or financial condition of
the Pledgor or on the ability of the Pledgor to perform its obligations under
the Related Documents to which it is a party.
2.9 Pension Related Matters.
-----------------------
The Pledgor has no liability (contingent or otherwise) for,
and none of the Pledgor's assets are encumbered in connection with,
(a) the minimum funding requirements under ERISA or the
Code with respect to a Plan (including, without limitation, joint and
several liability with a Controlled Group Member for the minimum
funding requirement and the excise tax for failure to meet such
requirement, any Lien for contributions with respect to a Plan which
are due and unpaid by the Pledgor or a Controlled Group Member, and any
security posted by the Pledgor to obtain a waiver of the minimum
funding requirement),
(b) any amendment to a Plan,
(c) any PBGC premiums with respect to a Plan which are
due and unpaid by the Pledgor or a Controlled Group Member, or
(d) the termination of a Plan or withdrawal by the
Pledgor or a Controlled Group Member from any Multiemployer Plan. The
amount of unfunded benefit liabilities (as defined in Section
4001(a)(16) of ERISA), as certified to by the Plan's actuary, for all
Plans does not exceed $5,000,000.
2.10 Taxes.
-----
All tax returns required to be filed by the Pledgor or its
Consolidated Group have been properly prepared, executed and filed. All taxes,
assessments, fees and other governmental charges upon the Pledgor or any member
of its Consolidated Group or upon any of their respective properties, incomes,
sales or franchises which are due and payable have been paid, other than taxes,
assessments, fees and other governmental charges (a) which are being contested
in good faith and by appropriate proceedings diligently conducted, (b) which
have been
- 104 -
<PAGE>
appropriately reserved against in accordance with GAAP, (c) which have not
resulted in the imposition of any Lien on any Pledged Securities and (d) which
will not have a material adverse effect on the business, operations or financial
condition of the Pledgor. The reserves and provisions for taxes on the books of
the Pledgor are adequate for all open years and for its current fiscal period.
The Pledgor does not know of any proposed additional assessment or basis for any
material assessment for additional taxes of the Pledgor (whether or not reserved
against), except that, with respect to its Consolidated Group, the taxable years
ended December 31, 1987 through December 31, 1995 are being examined by the
Internal Revenue Service.
2.11 Power To Carry On Business.
--------------------------
The Pledgor has all requisite corporate power and authority to
own and operate its properties and to carry on its business as now conducted and
as presently planned to be conducted.
2.12 Compliance with Laws.
--------------------
The Pledgor is not in violation of or subject to any
contingent liability on account of any Law (including, but not limited to,
federal and state securities laws and the Communications Act), except for
violations which in the aggregate do not have a material adverse effect on the
business, operations or financial condition of the Pledgor or the ability of the
Pledgor to perform its obligations under this Agreement and the other Related
Documents to which it is a party.
2.13 Status of the Shares.
--------------------
(a) As of the date of any pledge hereunder of any Pledged
Securities, (i) the Pledgor will own such Pledged Securities of record and
beneficially, in each case free and clear of any Lien, charge, encumbrance or
restriction on transfer (including, but not limited to, any withdrawal,
rescission or similar right of a prior holder of such shares pursuant to any
federal or state securities law), except (A) as otherwise provided by this
Agreement, (B) with respect to shares of TWI Series LMCN-V Common Stock, the
restrictions set forth in Schedule 3.5 to the Credit Agreement, the
Stockholders' Agreement and Section 6.1 of the Certificate of Designation, (C)
the restrictions of Section 310(b) of the Communications Act, and (D) as the
right of the Administrative Agent, the Syndication Agent, the Documentation
Agent and the Banks to dispose of such shares (1) may be limited by the
Securities Act and the regulations promulgated by the Securities and Exchange
Commission (or any successor thereto) thereunder and by applicable state
securities laws or (2) may require the consent of the FCC as to the transfer of
control of licenses granted by the FCC to a Pledged Acquired Company or its
Subsidiaries, the consent of certain Official Bodies as to the transfer of
control of franchises, licenses, permits or other authorizations granted to a
Pledged Acquired Company or its Subsidiaries, or filings required by the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended, in connection with
any transfer of control of a Pledged Acquired Company or its Subsidiaries, and
(ii) all of such Pledged Securities will be duly authorized, validly issued,
fully paid and non-assessable. Upon the delivery to the Administrative Agent or
its nominee of the certificates representing the Pledged Securities
- 105 -
<PAGE>
as provided in Section 3.1, the Security Interests in the Pledged Securities
shall constitute perfected security interests prior to the rights of all third
parties.
(b) As of the date of any pledge hereunder of Pledged
Securities constituting Shares:
(i) in the case of TWI Series LMCN-V Common Stock,
(A) the sale of such Pledged Securities by the Administrative Agent
pursuant hereto shall be exempt from the registration requirements of
the Securities Act or (B) the Administrative Agent shall be able to
exercise rights with respect to such shares under Section 2 of the LMC
Registration Rights Agreement and
(ii) in all other cases, for purposes of Rule 144
promulgated under the Securities Act, such Pledged Securities shall
have been held by the Pledgor for a period in excess of one year in a
manner that will permit the Administrative Agent on behalf of itself,
the Banks, the Syndication Agent and the Documentation Agent to tack
such ownership or the sale of such Pledged Securities by the
Administrative Agent pursuant hereto shall be exempt from the
registration requirements of the Securities Act.
2.14 Ownership and Control.
---------------------
TCI or LMC owns of record and beneficially, directly or
indirectly, all of the issued and outstanding capital stock of the Pledgor. The
Pledgor owns, of record and beneficially, directly or indirectly, all of the
issued and outstanding capital stock of the Borrower and each Parent Subsidiary.
All of such outstanding shares of capital stock have been duly authorized and
validly issued and are fully paid and nonassessable. There are no outstanding
options, rights and warrants issued by the Pledgor or by any other corporation
which directly or indirectly owns shares of the capital stock of the Pledgor
(hereafter called an "Intermediate Holder") for the acquisition of shares of the
-------------------
capital stock of the Pledgor or any Intermediate Holder (other than TCI or LMC),
outstanding securities or obligations convertible into such or agreements by the
Pledgor or any Intermediate Holder (other than TCI or LMC) to issue or sell such
shares. There are no options, sale agreements, pledges, proxies, voting trusts,
powers of attorney or other agreements or instruments binding upon any
shareholder with respect to beneficial or record ownership of or voting rights
with respect to shares of the capital stock of the Pledgor or any Intermediate
Holder (other than TCI or LMC).
2.15 Accurate and Complete Disclosure.
--------------------------------
No representation or warranty made by the Pledgor under this
Agreement is, and no statement made by the Pledgor in any financial statement,
certificate, report, exhibit or document furnished by the Pledgor to the
Administrative Agent, the Syndication Agent, the Documentation Agent or the
Banks pursuant to or in connection with this Agreement will be, at the time
furnished, false or misleading in any material respect (including, without
limitation, by omission of material information necessary to make such
representation, warranty or statement not misleading).
2.16 Investment Company.
------------------
- 106 -
<PAGE>
The Pledgor is not an "investment company" or a company
"controlled" by an investment company within the meaning of the Investment
Company Act of 1940, as amended.
2.17 Public Utility Holding Company.
------------------------------
The Pledgor is not a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of either a "holding company"
or a "subsidiary company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
2.18 Solvency.
--------
The Pledgor is not, and after giving effect to the
transactions contemplated by the Credit Agreement, the Revolving Credit Notes
and the Related Documents, will not be, insolvent, will not be left with
unreasonably small capital with which to engage in its business and will not
have incurred debts beyond its ability to pay such debts as they mature.
2.19. TWI Agreements and TWI Stock Documents.
--------------------------------------
This Agreement satisfies the definitions of "Permitted Pledge"
and "Exempt Transfer" in the Stockholders' Agreement, and the Pledgor shall have
complied with the requirements of the Stockholders' Agreement in connection with
the pledge of any shares of TWI Series LMCN-V Common Stock hereunder. This
Agreement satisfies the requirements of Section 6.1(b) of the Certificate of
Designation. Neither the Pledgor nor any Affiliate shall have given any other
person a proxy to vote the shares of TWI Series LMCN-V Common Stock pledged
pursuant to this Agreement, except proxies that state that they terminate upon
notice from the Administrative Agent to the holder that an Event of Default has
occurred.
The Pledgor agrees that the representations and warranties contained in
this Article 2 shall be deemed to have been made by the Pledgor at such times as
the Credit Agreement shall provide as though then made under this Agreement.
ARTICLE 3. THE SECURITY INTERESTS
3.1 Pledge and Grant of Security Interests.
--------------------------------------
(a) In order to secure the full and punctual payment of the
Obligations in accordance with the terms thereof, the Pledgor hereby pledges to
and with the Administrative Agent for the ratable benefit of itself, the Banks,
the Syndication Agent and the Documentation Agent and grants to the
Administrative Agent on behalf of itself, the Banks, the Syndication Agent and
the Documentation Agent a security interest in the Collateral.
(b) On any date on which the Pledgor desires to pledge
Shares hereunder, the Pledgor shall deliver or cause to be delivered to the
Administrative Agent or its nominee:
- 107 -
<PAGE>
(i) a Supplement to this Agreement in the form of
Annex A hereto identifying such Shares; and
(ii) certificates representing such Shares duly
endorsed by the Pledgor or accompanied by undated stock powers duly
executed in blank by the Pledgor and in form appropriate in the
judgment of the Administrative Agent to transfer record ownership of
such Shares to the Administrative Agent or its nominee.
(c) On the First Pledge Date and at such other times as may
be required under Section 3.3(c), the Pledgor shall deliver or cause to be
delivered to the Administrative Agent or its nominee certificates representing
all of the issued and outstanding shares of the capital stock of the Borrower
duly endorsed by the Pledgor or accompanied by undated stock powers duly
executed in blank by the Pledgor and in form appropriate in the judgment of the
Administrative Agent to transfer record ownership of such shares to the
Administrative Agent or its nominee.
(d) On each date, if any, on which a Parent Subsidiary
Agreement shall have been executed and delivered by all of the parties thereto,
the Pledgor shall deliver or cause to be delivered to the Administrative Agent
or its nominee certificates representing all of the issued and outstanding
shares of the capital stock of the Parent Subsidiary party thereto in which the
Pledgor has any right, title or interest duly endorsed by the Pledgor or
accompanied by undated stock powers duly executed in blank by the Pledgor and in
form appropriate in the judgment of the Administrative Agent to transfer record
ownership of such shares to the Administrative Agent or its nominee.
(e) The Security Interests are granted as security only and
shall not subject the Banks, the Syndication Agent, the Documentation Agent or
the Administrative Agent to, or transfer or in any way affect or modify, any
obligation or liability of the Pledgor with respect to any of the Collateral or
any transaction in connection therewith.
3.2 Ratable Benefit of the Banks, the Syndication Agent, the
--------------------------------------------------------
Documentation Agent and the Administrative Agent.
- ------------------------------------------------
The Security Interests granted to and created in favor of the
Administrative Agent by this Agreement and the rights and remedies granted to
the Administrative Agent hereunder shall be for the benefit of itself, the
Banks, the Syndication Agent and the Documentation Agent ratably according to
the amount of the Obligations to each of the Banks, the Syndication Agent, the
Documentation Agent and the Administrative Agent. Each of the rights, privileges
and remedies accorded to the Administrative Agent under this Agreement or
otherwise by statute or at law or in equity with respect to the Collateral may
be exercised by the Administrative Agent, but only for the ratable benefit of
itself, the Banks, the Syndication Agent and the Documentation Agent. Any
Collateral held or recovered at any time by the Administrative Agent, the
Syndication Agent, the Documentation Agent or any Bank or any realization on
account thereof shall inure to the ratable benefit of the Banks, the Syndication
Agent, the Documentation Agent and the Administrative Agent.
3.3 Release of Pledged Securities; Termination of Security
------------------------------------------------------
Interests.
- ---------
- 108 -
<PAGE>
Subject to Section 9.4, upon the payment in full of the Revolving
Credit Notes, the performance by the Borrower of all of its other obligations
under the Credit Agreement, the Revolving Credit Notes and the Related
Documents, the performance by the Pledgor and each Parent Subsidiary of all
their respective obligations under the Pledge Agreements, and the termination of
the Commitments, (i) the Security Interests shall terminate and all rights to
the Collateral shall revert to the Pledgor, and (ii) the Administrative Agent
shall, at the Pledgor's expense, execute and deliver to the Pledgor such
documents as the Pledgor shall reasonably request to evidence such termination
and to transfer the Collateral to or upon the order of the Pledgor, provided,
--------
however, that, notwithstanding anything to the contrary contain herein,
- -------
(a) upon the disposition of any Pledged Securities constituting
Shares in accordance with Section 7.1, the Administrative Agent shall
release its Security Interest in such Pledged Securities,
(b) in the event of the termination of any Parent Subsidiary
Agreement in accordance with Section 5.2 thereof, the Administrative Agent
shall, promptly after the request of the Pledgor, release its Security
Interest in all of the Pledged Securities constituting shares of the
capital stock of the Parent Subsidiary party thereto, provided that:
--------
(i) immediately before and after giving effect to such
release, no Event of Default or Potential Default shall exist, and
(ii) the Administrative Agent shall have received a
certificate, in all respects satisfactory to the Administrative Agent,
of the President, any Vice President, Treasurer, Assistant Treasurer or
Chief Financial Officer of the Pledgor to the foregoing effect, and
(c) at any time, promptly after the request of the Pledgor, the
Administrative Agent shall release its Security Interest in all of the
Pledged Securities constituting shares of the capital stock of the
Borrower, provided that:
--------
(i) immediately before and after giving effect to such
release, (A) each Parent Subsidiary Agreement shall have been
terminated in accordance with Section 5.2 thereof, (B) Section 5.1
shall not be in effect in accordance with Section 5.2 and (C) no Event
of Default or Potential Default shall exist,
(ii) the Administrative Agent shall have received a
certificate, in all respects satisfactory to the Administrative Agent,
of the President, any Vice President, Treasurer, Assistant Treasurer or
Chief Financial Officer of the Pledgor, certifying that, immediately
before and after giving effect to such release, no Event of Default or
Potential Default shall exist, and
(iii) in the event that at any time subsequent to such
release
- 109 -
<PAGE>
(A) a Parent Subsidiary Agreement shall be in effect or (B) Section
5.1 shall be in effect in accordance with Section 5.2, then the
Pledgor shall at such time deliver or cause to be delivered to the
Administrative Agent or its nominee certificates representing all of
the issued and outstanding shares of the capital stock of the
Borrower duly endorsed by the Pledgor or accompanied by undated
stock powers duly executed in blank by the Pledgor and in form
appropriate in the judgment of the Administrative Agent to transfer
record ownership of such shares to the Administrative Agent or its
nominee.
ARTICLE 4. CERTAIN MATTERS WITH RESPECT TO COLLATERAL
4.1 Record Ownership of Pledged Securities.
--------------------------------------
Subject to the provisions of the Stockholders' Agreement and the
Certificate of Designation, after the occurrence of an Event of Default, the
Administrative Agent may at any time or from time to time, in its sole
discretion, cause any or all of the Pledged Securities to be transferred of
record into the name of the Administrative Agent or its nominee. The Pledgor
shall promptly give to the Administrative Agent copies of any notices or other
communications received by the Pledgor with respect to any Pledged Securities
registered in the name of the Pledgor, and the Administrative Agent shall
promptly give to the Pledgor, copies of any notices or other communications
received by the Administrative Agent with respect to any Pledged Securities
registered in the name of the Administrative Agent or its nominee. The
Administrative Agent shall promptly furnish duplicates of all such notices or
other communications so received by it to the Banks.
4.2 Right to Receive Distributions on Collateral.
--------------------------------------------
Subject to the provisions of the Stockholders' Agreement and the
Certificate of Designation, unless an Event of Default or Potential Default
shall have occurred and be continuing, the Pledgor shall have the right to
receive and to retain all regular cash dividends paid upon the Pledged
Securities, and all such regular cash dividends that are received by the
Administrative Agent shall forthwith be paid over to the Pledgor. The
Administrative Agent shall have the right to receive and to retain as additional
Collateral hereunder all other dividends, interest and other payments and
distributions issued or made upon or in substitution or exchange for or with
respect to the Collateral, including, without limitation, shares issued as a
result of any reclassification, stock split, split-up or other corporate
reorganization, and the Pledgor shall take all such action as the Administrative
Agent may deem necessary or appropriate to give effect to such right. All such
other dividends, interest and other payments and shares and distributions that
are received by the Pledgor shall be received in trust for the benefit of the
Banks, the Syndication Agent, the Documentation Agent and the Administrative
Agent and shall forthwith be paid over to the Administrative Agent as Collateral
in the same form as received (with any necessary endorsements).
4.3 Right to Vote Collateral.
------------------------
Unless an Event of Default or Potential Default shall have occurred
and be
- 110 -
<PAGE>
continuing, the Pledgor shall have the right, from time to time, to vote and to
give consents, ratifications and waivers with respect to all securities
constituting part of the Collateral for any purpose not inconsistent with the
terms or purpose of the Credit Agreement, the Revolving Credit Notes or the
Related Documents; provided, however, that the Pledgor shall not in any event
-------- -------
exercise such rights in any manner which could reasonably be expected to have a
material adverse effect on the value of the Pledged Securities or the security
intended to be provided by this Agreement. Subject to the provisions of the
Stockholders' Agreement and the Certificate of Designation if an Event of
Default or Potential Default shall have occurred and be continuing, the
Administrative Agent shall have the right, to the extent permitted by law, and
the Pledgor shall take all such action as may be necessary or appropriate to
give effect to such right, to vote and to give consents, ratifications and
waivers, and to take any other action with respect to, all securities
constituting part of the Collateral with the same force and effect as if the
Administrative Agent were the absolute and sole owner thereof.
4.4 Preservation of Collateral.
--------------------------
The Pledgor assumes full responsibility for taking any and all
necessary steps to preserve rights with respect to the Collateral against prior
parties. The Administrative Agent shall exercise reasonable care in the custody
and preservation of the Collateral, and the Administrative Agent shall be deemed
to have exercised reasonable care in the custody and preservation of such of the
Collateral as may be in its possession if the Administrative Agent takes such
action for that purpose as the Pledgor shall request in writing, provided that
--------
such requested action will not, in the judgment of the Administrative Agent,
impair the Administrative Agent's security interest in the Collateral or its
rights in, or the value of, the Collateral, and provided further that such
--------
written request is received by the Administrative Agent in sufficient time to
permit the Administrative Agent to take the requested action.
4.5 Certain Matters Relating to the LMC Registration Rights Agreement.
-----------------------------------------------------------------
(a) Notwithstanding anything to the contrary in the Credit
Agreement, any Revolving Credit Note or any Related Document, (i) the Pledgor
shall remain liable under the LMC Registration Rights Agreement 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
Administrative Agent of any rights or remedies under or in connection with the
Credit Agreement, any Revolving Credit Note or any Related Document shall not
release the Pledgor from any of its duties or obligations under the LMC
Registration Rights Agreement, and (iii) none of the Administrative Agent, the
Syndication Agent, the Documentation Agent or any Bank shall have any obligation
or liability under the LMC Registration Rights Agreement by reason of the Credit
Agreement, any Revolving Credit Note or any Related Document, nor shall the
Administrative Agent, the Syndication Agent, the Documentation Agent or any Bank
be obligated to perform any of the obligations or duties of the Pledgor
thereunder or to take any action to collect or enforce any claim for payment
assigned hereunder.
(b) This Agreement creates a valid security interest in the LMC
Registration
- 111 -
<PAGE>
Rights Agreement in favor of the Administrative Agent on behalf of itself, the
Banks, the Syndication Agent and the Documentation Agent securing the
Obligations, which security interest has been duly perfected and is prior to all
other liens, security interests, options or other charges or encumbrances. All
filings and other actions necessary or desirable to perfect and protect such
security interest have been duly made and taken.
(c) The Pledgor shall perform and observe all of the terms and
provisions of the LMC Registration Rights Agreement to be performed or observed
by it, maintain the LMC Registration Rights Agreement in full force and effect,
enforce the LMC Registration Rights Agreement in accordance with its terms and
take all such action to such ends as the Administrative Agent may request from
time to time.
(d) The Pledgor shall furnish to the Administrative Agent, promptly
upon receipt thereof, copies of all notices and other communications received by
the Pledgor under or in connection with the LMC Registration Rights Agreement,
and from time to time upon the request of the Administrative Agent make to any
other party to the LMC Registration Rights Agreement such demands and requests
for information and reports or for action as the Pledgor is entitled to make
under or in connection therewith.
(e) The Pledgor shall, and shall cause its subsidiaries to,
exercise their rights to demand registration of TWI capital stock under Section
2 of the LMC Registration Rights Agreement, if and to the extent required to
enable the Administrative Agent, on behalf of itself, the Banks, the Syndication
Agent and the Documentation Agent, to cause a registration of TWI capital stock
constituting Pledged Securities (as defined herein and in the other Related
Documents) under Section 2 of the LMC Registration Rights Agreement.
ARTICLE 5. THE GUARANTY
5.1 Guaranty
--------
Subject to Section 5.2, the Pledgor hereby absolutely, irrevocably
and unconditionally guarantees the full and prompt payment when due (whether at
stated maturity, by acceleration or otherwise) of the Obligations. The
provisions of this Section 5.1 constitute a guaranty of payment, and none of the
Administrative Agent, the Syndication Agent, the Documentation Agent or any Bank
shall have any obligation to enforce the Credit Agreement, any Revolving Credit
Note or any Related Document or exercise any right or remedy with respect to any
collateral security thereunder by any action, including, without limitation,
making or perfecting any claim against any person or any collateral security for
any of the Obligations prior to being entitled to the benefits of this Section
5.1. The Administrative Agent may, at its option, proceed against the Pledgor,
in the first instance, to enforce the Obligations without first proceeding
against the Borrower, any Parent Subsidiary or any other person, and without
first resorting to any other rights or remedies, as the Administrative Agent may
deem advisable. In furtherance hereof, if the Administrative Agent, the
Syndication Agent, the Documentation Agent or any Bank is prevented by law from
collecting or otherwise hindered from collecting or otherwise enforcing any
Obligation in accordance with its terms, the Administrative Agent, the
Syndication Agent, the Documentation Agent or such Bank, as the case may be,
shall be entitled to receive hereunder from
- 112 -
<PAGE>
the Pledgor after demand therefor, the sums which would have been otherwise due
had such collection or enforcement not been prevented or hindered.
5.2 Termination; Effectiveness of Guaranty
--------------------------------------
(a) Subject to Sections 5.2(b) and 9.4, upon the payment in full of
the Revolving Credit Notes, the performance by the Borrower of all of its other
obligations under the Credit Agreement, the Revolving Credit Notes and the
Related Documents, the performance by the Pledgor and each Parent Subsidiary of
all their respective obligations under the Credit Agreement and the Pledge
Agreements, and the termination of the Commitments, this Agreement shall be
terminated, and the Pledgor shall have no obligation or liability hereunder.
(b) Notwithstanding anything to the contrary contained herein,
Section 5.1 shall not be in effect, and the Pledgor shall have no obligation or
liability thereunder, at any time when the Pledged Securities shall not consist
of any Shares.
ARTICLE 6. AFFIRMATIVE COVENANTS
The Pledgor covenants and agrees that on and after the date hereof and
until the later to occur of (i) the termination of the Commitments, and (ii) the
payment in full of the Revolving Credit Notes, the performance by the Borrower
of all of its other obligations under the Credit Agreement, the Revolving Credit
Notes and the Related Documents and the performance by the Pledgor and each
Parent Subsidiary of all their respective obligations under the Credit Agreement
and the Pledge Agreements:
6.1 Reporting and Information Requirements.
--------------------------------------
(a) Annual Reports. As soon as practicable, and in any event within
--------------
120 days after the close of each fiscal year of the Pledgor, the Pledgor shall
furnish or cause to be furnished to the Banks consolidated statements of income,
retained earnings and cash flows of the Pledgor and its Consolidated
Subsidiaries for such fiscal year and a consolidated balance sheet of the
Pledgor and its Consolidated Subsidiaries as of the close of such fiscal year,
and notes to each, all in reasonable detail, including, without limitation,
consolidating schedules for such statement of income and balance sheet, setting
forth in comparative form the corresponding figures for the preceding fiscal
year, and certified by the President, any Vice President, Treasurer, Assistant
Treasurer or Chief Financial Officer of the Pledgor as presenting fairly the
financial position of the Pledgor and its Consolidated Subsidiaries as of the
end of such fiscal year and the results of their operations and their cash flows
for such fiscal quarter, in conformity with GAAP.
(b) Quarterly Reports. As soon as practicable, and in any event
-----------------
within 75 days after the close of each of the first three quarters of each
fiscal year of the Pledgor, the Pledgor shall furnish or cause to be furnished
to the Banks unaudited consolidated statements of income, retained earnings and
cash flows for the Pledgor and its Consolidated Subsidiaries for such fiscal
- 113 -
<PAGE>
quarter and for the period from the beginning of such fiscal year to the end of
such fiscal quarter, and an unaudited consolidated balance sheet of the Pledgor
and its Consolidated Subsidiaries as of the close of such fiscal quarter, and
notes to each, all in reasonable detail, without limitation, consolidating
schedules for such statement of income and balance sheet, setting forth in
comparative form the corresponding figures for the same period or as of the same
date during the preceding fiscal year (except for the consolidated balance
sheet, which shall set forth in comparative form the corresponding balance sheet
as of the prior fiscal year end), and certified by the President, any Vice
President, Treasurer, Assistant Treasurer or Chief Financial Officer of the
Pledgor as presenting fairly the financial position of the Pledgor and its
Consolidated Subsidiaries as of the end of such fiscal quarter and the results
of their operations and their cash flows for such fiscal quarter, in conformity
with GAAP applied in a manner consistent with that of the most recent annual
financial statements furnished to the Banks, subject to year-end adjustments.
(c) Compliance Certificates. Within 120 days after the end of each
-----------------------
fiscal year of the Pledgor, and within 75 days after the end of each of the
first three quarters of each such fiscal year, the Pledgor shall deliver to the
Banks a certificate dated as of the end of such fiscal year or quarter, signed
on behalf of the Pledgor by its President, any Vice President, Treasurer,
Assistant Treasurer or Chief Financial Officer stating that as of the date
thereof no Event of Default or Potential Default has occurred and is continuing
or exists, or if an Event of Default or Potential Default has occurred and is
continuing or exists, specifying in detail the nature and period of existence
thereof and any action with respect thereto taken or contemplated to be taken by
the Pledgor. The delivery of such certificate shall be deemed to constitute a
representation by the signer that such signer has personally reviewed this
Agreement and that such certificate is based on an examination made by or under
the supervision of such signer sufficient to assure that such certificate is
accurate.
(d) Other Reports and Information. Promptly upon their becoming
-----------------------------
available to the Pledgor, the Pledgor shall deliver to the Banks a copy of (i)
all regular or special reports or registration statements which the Pledgor
shall file with the Securities and Exchange Commission (or any successor
thereto) or any securities exchange, (ii) all reports, proxy statements,
financial statements and other information distributed by the Pledgor to its
stockholders, bondholders or the financial community in general, and (iii) any
reports submitted to the Pledgor by independent accountants in connection with
any annual, interim or special audit of the Pledgor.
(e) Further Information. Subject to any applicable restrictions on
-------------------
disclosure under securities laws, the Pledgor will promptly furnish to each Bank
such other information and in such form as such Bank may reasonably request,
including, without limitation, information with respect to Pledged Acquired
Companies of the type described in subsections (a), (b), (d), (g), (h) and (j)
of this Section 6.1.
(f) Notice of Event of Default. Promptly upon obtaining knowledge of any
--------------------------
Event of Default or Potential Default the Pledgor shall give the Banks notice
thereof, together with a written statement of the President, any Vice President,
Treasurer, Assistant Treasurer or Chief Financial Officer of the Pledgor setting
forth the details thereof and any action with respect thereto taken or
contemplated to be taken by the Pledgor.
- 114 -
<PAGE>
(g) Notice of Material Adverse Change. Promptly upon
---------------------------------
obtaining knowledge thereof the Pledgor shall give the Banks notice of any
material adverse change in the business, operations or financial condition of
the Pledgor.
(h) Notice of Material Proceedings. Promptly upon obtaining
-------------------------------
knowledge thereof the Pledgor shall give the Banks notice of the commencement,
existence or threat of any proceeding by or before any Official Body against or
affecting the Pledgor or any of its Subsidiaries which, if adversely decided,
would have a material adverse effect on the business, operations or financial
condition of the enterprise comprised of the Pledgor and its Subsidiaries taken
as a whole or on the ability of the Pledgor to perform its obligations under
this Agreement and the other Related Documents to which it is a party.
(i) Notice of Pension-Related Events. Promptly after the
--------------------------------
Pledgor or any Controlled Group Member, or any administrator of a Plan:
(i) receives the notification referred to in
subsections (i), (iv), or (vii) of Section 7.1(i) of the Credit
Agreement,
(ii) has knowledge of
(A) the occurrence of a Reportable Event with
respect to a Plan,
(B) any event which has occurred or any
action which has been taken to amend or terminate a Plan as
referred to in subsections (ii) and (vi) of Section 7.1(i) of
the Credit Agreement,
(C) any event which has occurred or any
action which has been taken which could result in complete
withdrawal, partial withdrawal, or secondary liability for
withdrawal liability payments with respect to a Multiemployer
Plan as referred to in subsection (vii) of Section 7.1(i) of
the Credit Agreement,
(D) any action which has been taken in furtherance
of, any agreement which has been entered into for, or any
petition which has been filed with a United States district
court for, the appointment of a trustee for a Plan as referred
to in subsection (iii) of Section 7.1(i) of the Credit
Agreement,
(E) any action to amend a Plan which requires
security to be provided to such Plan pursuant to Section
401(a)(29) of the Code or Section 307 of ERISA, or
(F) any failure to pay the PBGC premium with
respect to a Plan when due, or
- 115 -
<PAGE>
(iii) files a notice of intent to terminate a Plan with
the Internal Revenue Service (or any successor thereto) or the PBGC (or
any successor thereto); or files with the Internal Revenue Service (or
any successor thereto) a request pursuant to Section 412(d) or 412(e)
of the Code for a variance from the minimum funding standard or an
extension of the period for amortizing unfunded liabilities,
respectively, for a Plan; or files a return with the Internal Revenue
Service (or any successor thereto) with respect to the tax imposed
under Section 4971(a) of the Code for failure to meet the minimum
funding standards established under Section 412 of the Code for a Plan,
the Pledgor will furnish to the Banks a copy of any notice received, request or
petition filed, and agreement entered into; the most recent Annual Report (Form
5500 Series) and attachments thereto for such Plan; the most recent actuarial
report for such Plan; any notice, return, or materials required to be filed with
the Internal Revenue Service (or any successor thereto) in connection with such
event, action, or filing; and a written statement of the President, any Vice
President, Treasurer, Assistant Treasurer or Chief Financial Officer of the
Pledgor describing such event or the action taken and the reasons therefor.
(j) Notice of Other Material Defaults. Promptly upon obtaining
---------------------------------
knowledge of any material default by the Pledgor or any Subsidiary of the
Pledgor under any material agreement or instrument to which the Pledgor or any
such Subsidiary is a party or by which the Pledgor or any such Subsidiary or any
of its properties may be bound, which default could reasonably be expected to
have a material adverse effect on the business, operation or financial condition
of the enterprise comprised of the Pledgor and its Subsidiaries taken as a whole
or on the ability of the Pledgor to perform its obligations under this Agreement
and the other Related Documents to which it is a party, the Pledgor shall give
the Banks notice thereof, together with a written statement of the President,
any Vice President, Treasurer, Assistant Treasurer or Chief Financial Officer of
the Pledgor setting forth the details thereof.
(k) Visitation. The Pledgor shall permit such persons as the
----------
Administrative Agent or any Bank may designate to visit and inspect any of the
properties of the Pledgor, to examine its books and records and take copies and
extracts therefrom and to discuss its affairs with its officers, employees and
independent accountants at such times and as often as the Administrative Agent
or such Bank may reasonably request. The Pledgor hereby authorizes such
officers, employees and independent accountants to discuss with the
Administrative Agent and the Banks the affairs of the Pledgor.
6.2 Preservation of Existence and Franchises.
----------------------------------------
The Pledgor shall maintain its corporate existence, rights and
franchises in full force and effect in its jurisdiction of incorporation. The
Pledgor shall qualify and remain qualified as a foreign corporation in each
jurisdiction in which failure to receive or retain such qualification would have
a material adverse effect on the business, operations or financial condition of
the Pledgor.
6.3 Insurance.
---------
The Pledgor shall maintain with financially sound and
reputable insurers insurance
- 116 -
<PAGE>
with respect to its properties and business and against such liabilities,
casualties and contingencies and of such types and in such amounts as is
customary in the case of corporations engaged in the same or a similar business
or having similar properties similarly situated.
6.4 Payment of Taxes and Other Potential Charges and Priority
---------------------------------------------------------
Claims; Payment of Other Current Liabilities.
- --------------------------------------------
The Pledgor shall pay or discharge:
(a) on or prior to the date on which penalties attach
thereto, all taxes, assessments and other governmental charges or
levies imposed upon it or any of its properties or income (including,
without limitation, such as may arise under Section 4062, Section 4063
or Section 4064 of ERISA, or any similar provision of law);
(b) on or prior to the date when due, all lawful
claims of materialmen, mechanics, carriers, warehousemen, landlords and
other like persons which, if unpaid, might result in the creation of a
Lien upon any such property; and
(c) on or prior to the date when due, all other
lawful claims which, if unpaid, might result in the creation of a Lien
upon any such property or which, if unpaid, might give rise to a claim
entitled to priority over general creditors of the Pledgor in a case
under Title 11 (Bankruptcy) of the United States Code, as amended, or
in any insolvency proceeding or dissolution or winding-up involving the
Pledgor;
provided that prior to the imposition of any Lien with respect to such tax
- --------
assessment, charge, levy, claim or current liability, the Pledgor need not pay
or discharge any such tax, assessment, charge, levy, claim or current liability
so long as the validity thereof is contested in good faith and by appropriate
proceedings diligently conducted and so long as such reserves or other
appropriate provisions as may be required by GAAP shall have been made therefor
and so long as such failure to pay or discharge does not have a material adverse
effect on the business, operations or financial condition of the Pledgor.
6.5 Financial Accounting Practices.
------------------------------
The Pledgor shall make and keep books, records and accounts
which, in reasonable detail, accurately and fairly reflect its transactions and
dispositions of its assets and maintain a system of internal accounting controls
sufficient to provide reasonable assurances that:
(a) transactions are executed in accordance with
management's general or specific authorization,
(b) transactions are recorded as necessary:
(i) to permit preparation of financial
statements in
- 117 -
<PAGE>
conformity with GAAP and
(ii) to maintain accountability for assets,
(c) access to assets is permitted only in accordance
with management's general or specific authorization and
(d) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
6.6 Compliance with Laws.
--------------------
The Pledgor shall comply with all applicable Laws (including,
but not limited to, federal and state securities laws and the Communications
Act), provided that the Pledgor shall not be deemed to be in violation of this
--------
Section 6.6 as a result of any failures to comply which would not result in
fines, penalties, injunctive relief or other civil or criminal liabilities
which, in the aggregate, would materially affect the business, operations or
financial condition of the Pledgor or the ability of the Pledgor to perform its
obligations under this Agreement or the other Related Documents.
6.7 Government Authorizations, etc.
------------------------------
The Pledgor shall obtain and maintain in force all
authorizations, consents, approvals, licenses, exemptions and other actions by,
and all registrations, qualifications, designations, declarations and other
filings with, any Official Body necessary or advisable in connection with
execution and delivery of this Agreement, the other Related Documents to which
it is a party, consummation of the transactions herein or therein contemplated,
and performance of or compliance with the terms and conditions hereof or
thereof.
6.8 Contracts.
---------
The Pledgor shall comply with all agreements or instruments to
which it is a party or by which it or any of its properties (now owned or
hereafter acquired) may be subject or bound, provided that the Pledgor shall not
be deemed to be in violation of this Section 6.8 as a result of any failure to
comply which would not have a material adverse effect on the business,
operations or financial condition of the Pledgor or on the ability of the
Pledgor to perform its obligations under this Agreement or the other Related
Documents.
6.9 Filing; Further Assurances.
--------------------------
The Pledgor shall, from time to time, at its expense and in
such manner and form as the Administrative Agent may require, execute, deliver,
file and record any financing statement, specific assignment, notice or other
instrument or document and take any other action that may be necessary or
appropriate, or that the Administrative Agent may request, in order to create,
preserve, perfect or validate the Security Interests or to enable the
Administrative Agent, the Syndication Agent, the Documentation Agent and the
Banks to exercise and enforce their
- 118 -
<PAGE>
respective rights hereunder with respect to any of the Collateral. The Pledgor
hereby authorizes the Administrative Agent to execute and file, in the name of
the Pledgor or otherwise, such UCC financing statements as the Administrative
Agent in its sole discretion may deem necessary or appropriate further to
perfect the Security Interests.
6.10 Payment of Interest.
-------------------
The Pledgor shall pay the Parent Note in accordance with its
terms. As additional consideration for the Parent Loans, the Pledgor shall pay
the Borrower on each date interest is due under the Credit Agreement and the
Revolving Credit Notes an amount equal to the difference between (a) the amount
of such interest due to the Banks on such date and (b) the amount of interest
paid on the Parent Note on such date.
ARTICLE 7. NEGATIVE COVENANTS
The Pledgor covenants and agrees that on and after the date hereof and
until the later to occur of (i) the termination of the Commitments, and (ii) the
payment in full of the Revolving Credit Notes, the performance by the Borrower
of all of its other obligations under the Credit Agreement, the Revolving Credit
Notes and the Related Documents and the performance by the Pledgor and each
Parent Subsidiary of all their respective obligations under the Credit Agreement
and the Pledge Agreements:
7.1 Pledged Securities; Liens.
-------------------------
The Pledgor shall not sell, assign, transfer, exchange,
withdraw from pledge or otherwise dispose of or grant any option with respect
to, the Pledged Securities; provided that the Pledgor may sell, assign,
transfer, exchange, withdraw from pledge or otherwise dispose of Shares
constituting Pledged Securities, provided further that, at the time of each such
-------- -------
disposition and immediately after giving effect thereto,
(a) no Potential Default or Event of Default shall
exist,
(b) the Loan/Value Percentage would not exceed 50%,
(c) in the event that there are any restrictions on
the sale of Shares under Rule 144 promulgated under the Securities Act
of 1933, as amended,
(i) such Pledged Securities shall be subject
to the greatest of such restrictions, and
(ii) the Qualified Affiliates shall own
sufficient shares of TWI capital stock so that, upon the
exercise of their respective rights to demand registration of
TWI capital stock under Section 2 of the LMC Registration
Rights
- 119 -
<PAGE>
Agreement, the Administrative Agent would be able to cause a
registration of TWI capital stock constituting Pledged
Securities under such Section, and
(d) no Shares constitute "Pledged Securities"
under, and as such term is defined in, any Parent Subsidiary Agreement.
The Pledgor shall not at any time create, incur, assume or suffer to exist any
Lien on any of its property or assets, tangible or intangible, now owned or
hereafter acquired, including, without limitation, any Pledged Securities, or
agree or become liable to do so, except Liens arising under this Agreement. To
the extent the Pledgor has the power to do so, the Pledgor shall not permit any
Pledged Acquired Company to take any action which could reasonably be expected
to have a material adverse effect on the value of the Pledged Securities or on
the rights of the Administrative Agent, the Syndication Agent, the Documentation
Agent or any Bank under this Agreement.
7.2 Indebtedness.
------------
The Pledgor shall not create, incur, assume or suffer to exist
any Indebtedness at any time when Section 5.1 shall be in effect in accordance
with Section 5.2, except:
(a) Indebtedness under the Related Documents;
(b) Indebtedness under the Tax Sharing Agreement;
(c) current accounts payable arising out of
transactions (other than borrowings) in the ordinary course of
business; and
(d) other Indebtedness of the Pledgor to one or
more of its Subsidiaries, provided that:
--------
(i) immediately after the incurrence
thereof, the aggregate principal amount of all such
Indebtedness incurred on or after the date hereof shall not
exceed the aggregate amount of all cash dividends received on
or after the date hereof by all such Subsidiaries in respect
of any Shares, and
(ii) immediately before and after the
incurrence thereof, no Event of Default or Potential Default
shall exist.
7.3 Guarantees.
----------
The Pledgor shall not directly or indirectly assume,
guarantee, become surety for, endorse or otherwise agree to become or remain
directly or contingently liable upon or with respect to, any obligation or
liability of any other person, in each case at any time when Section 5.1 shall
be in effect in accordance with Section 5.2, except:
(a) contingent liabilities under this Agreement;
(b) contingent liabilities arising from the
endorsement of negotiable
- 120 -
<PAGE>
or other instruments for deposit or collection or similar transactions
in the ordinary course of business; and
(c) indemnities by the Pledgor of the liabilities
of its directors or officers pursuant to provisions contained in its
articles of incorporation or by-laws or as otherwise permitted by
applicable law.
"Direct or contingent liability upon or with respect to any obligation or
liability of any other person" of the Pledgor within the meaning of this Section
7.3 includes, but is not limited to, an agreement, contingent or otherwise:
(i) to reimburse banks, surety companies and
other persons in respect of drawings and other payments under
letters of credit, guarantees, surety bonds and similar
documents opened or issued by such other persons for the
account of the Pledgor;
(ii) to purchase an obligation or assume a
liability of such person or to supply funds for the payment or
purchase of such obligation or satisfaction of such liability;
(iii) to subordinate a then-existing or future
obligation or liability of such person to the Pledgor, to
another then-existing or future obligation or liability of
such person;
(iv) to make any loan, advance, capital
contribution or other investment in, or to purchase any
property, services or securities from, such person so as to
enable such person to meet a minimum equity, net worth,
working capital or other financial condition or to enable such
person to satisfy any obligation or liability or pay any
dividend or stock liquidation payment, or otherwise to supply
funds to such person;
(v) to purchase, sell or lease (as lessee or
lessor) property or assets or to purchase or sell services (A)
primarily for the purpose of enabling such person to satisfy
such obligation or liability or of assuring the owner of such
indebtedness or liability against loss, or (B) regardless of
the non-delivery of such property or assets or the failure to
furnish such services, or (C) in a transaction otherwise
having the characteristics of a take-or-pay or throughput
contract or as described in paragraph 6 of AICPA Statement of
Financial Accounting Standards No. 47; or
(vi) any other action which is substantially
equivalent in economic effect to any of the foregoing or
otherwise substantially equivalent in economic effect to an
assumption, guarantee, endorsement or other direct or
contingent liability upon or with respect to any obligation or
liability of such
- 121 -
<PAGE>
person.
7.4 Loans and Investments.
---------------------
The Pledgor shall not at any time make or suffer to remain
outstanding any loan or advance to, or purchase, acquire or own any stock,
bonds, notes or securities of, or any partnership interest (whether general or
limited) in, or any other interest in, or make any capital contribution to, any
other person, or agree, become or remain liable to do any of the foregoing,
except:
(a) TWI Series LMCN-V Common Stock and capital
stock of the Borrower, Parent Subsidiaries and Acquired Companies;
(b) demand deposits, time deposits or certificates
of deposit in Banks or in United States commercial banks having
shareholders' equity of at least $100,000,000 and maturing not in
excess of one year from the date of acquisition;
(c) loans from the Pledgor to its direct and
indirect parent corporations, provided that, immediately before and
--------
after giving effect to each such loan, no Event of Default or Potential
Default shall exist; and
(d) contributions of Shares to Parent Subsidiaries
which, at the time thereof, shall not constitute Pledged Securities.
7.5 Dividends and Related Distributions.
-----------------------------------
The Pledgor shall not, at any time when Section 5.1 shall be
in effect in accordance with Section 5.2, declare, make, pay, or agree, become
or remain liable to make or pay, any dividend or other distribution of any
nature (whether in cash, property, securities or otherwise) on account of or in
respect of any shares of the capital stock of the Pledgor or on account of the
purchase, redemption, retirement or acquisition of any shares of the capital
stock (or warrants, options or rights therefor) of the Pledgor, except cash
dividends paid by the Pledgor, provided that:
--------
(a) immediately after giving effect to each such
dividend, the aggregate amount of all such dividends made on or after
the date hereof shall not exceed the aggregate amount of all cash
dividends received on or after the date hereof by the Pledgor and its
Subsidiaries in respect of any Shares, and
(b) immediately before and after giving effect to
each such dividend, no Event of Default or Potential Default shall
exist.
7.6 Sale-Leasebacks.
---------------
The Pledgor shall not at any time enter into or suffer to
remain in effect any transaction to which the Pledgor is a party involving the
sale, transfer or other disposition by the Pledgor of any property, real or
personal, now owned or hereafter acquired, with a view directly
- 122 -
<PAGE>
or indirectly to the leasing back of any part of the same property or any other
property used for the same or a similar purpose or purposes.
7.7 Leases.
------
The Pledgor shall not at any time enter into or suffer to
remain in effect any agreement to lease, as lessee, any real or personal
property.
7.8 Merger.
------
The Pledgor shall not merge with or into or consolidate with
any other person, or agree to do any of the foregoing.
7.9 Self-Dealing.
------------
The Pledgor will not enter into or carry out any transaction
with (including, without limitation, purchasing property or services from or
selling property or services to) any Affiliate at any time when Section 5.1
shall be in effect in accordance with Section 5.2, except:
(a) transactions contemplated by the Credit
Agreement and the Related Documents; and
(b) payments under the terms of the Tax Sharing
Agreement to permit TCI to pay Federal, state and local income taxes
applicable to the Pledgor; provided, that such payments do not exceed
--------
the amount of taxes that would be payable by the Pledgor if it were not
a member of its Consolidated Group.
7.10 Continuation of or Change In Business.
-------------------------------------
The Pledgor shall not engage in any business other than the
following:
(a) any business otherwise expressly permitted
under this Agreement;
(b) the creation of Subsidiaries; and
(c) the disposition of Shares and shares of the
capital stock of its Subsidiaries, provided that:
--------
(i) at the time of each such disposition,
(A) such Shares or shares, as the case may be, shall not
constitute Pledged Securities, and (B) Section 5.1 shall not
be in effect in accordance with the provisions of Section 5.2;
and
(ii) immediately before and after giving
effect to each such disposition, no Event of Default or
Potential Default shall exist.
- 123 -
<PAGE>
7.11 TWI Agreements and TWI Stock Documents.
--------------------------------------
(a) The Pledgor will not give a proxy or similar right to any
person for the voting of the Pledged Securities unless such proxy states that it
terminates upon notice from the Administrative Agent that an Event of Default
has occurred.
(b) The Pledgor will not consent to any change, amendment,
supplement, other modification to, or the termination or cancellation of, the
provisions of the TWI Agreements or the TWI Stock Documents, if the proposed
change, amendment, supplement, modification, termination or cancellation could
have a material adverse effect on the Collateral, the Administrative Agent, the
Syndication Agent, the Documentation Agent or any Bank.
7.12 Regulation U.
------------
The Pledgor shall not (i) pledge, or permit the Borrower or
any Parent Subsidiary to pledge, any security under the Pledge Agreements that
is "margin stock" for purposes of Regulation U, as amended, promulgated by the
Board of Governors of the Federal Reserve System (or any successor thereto), or
(ii) convert, or permit the conversion of, any shares of TWI Series LMCN-V
Common Stock into "margin stock", in each case if, in the judgment of any Bank,
such pledge or conversion, as the case may be, would cause such Bank to violate
said Regulation U.
7.13 Use of Proceeds.
---------------
Neither the making of any Loan under the Credit Agreement nor
the use of the proceeds thereof by the Pledgor will violate any of Regulation G,
U or X of the Board of Governors of the Federal Reserve System and no part of
the proceeds of the Loans will be used by the Pledgor to purchase or carry
"margin stock" (within the meaning of said Regulation U) in violation of said
Regulation U or to extend credit for the purpose of purchasing or carrying any
such margin stock in violation of said Regulation U.
ARTICLE 8. GENERAL AUTHORITY; REMEDIES
8.1 Administrative Agent as Attorney-in-Fact.
----------------------------------------
The Pledgor hereby irrevocably appoints the Administrative
Agent its true and lawful attorney, with full power of substitution, in the name
of the Pledgor, the Administrative Agent or its nominee, the Syndication Agent,
the Documentation Agent, the Banks or otherwise, for the sole use and benefit of
the Administrative Agent, the Syndication Agent, the Documentation Agent, the
Banks and the Holders of Obligations, but at the Pledgor's expense, to exercise,
subject to the provisions of the Stockholders' Agreement and the Certificate of
Designation, at any time and from time to time while an Event of Default has
occurred and is continuing, all or any of the following powers with respect to
all or any of the Collateral:
(a) to demand, sue for, collect, receive and give
acquittance for any and all monies due or to become due upon or by
virtue thereof,
- 124 -
<PAGE>
(b) to settle, compromise, compound, prosecute or defend any
action or proceeding with respect thereto,
(c) to sell, transfer, assign or otherwise deal in or with
the same or the proceeds or avails thereof, as fully and effectively as if
the Administrative Agent were the absolute owner thereof, as provided in
Section 8.2,
(d) to extend the time of payment of any or all thereof and
to make any allowance and other adjustments with reference thereto, and
(e) to endorse, assign or otherwise transfer to or to
register in the name of the Administrative Agent or its nominee any or all
of the Collateral.
8.2 Sale of Collateral.
------------------
(a) Subject to the provisions of the Stockholders' Agreement and
the Certificate of Designation, if any Event of Default shall have occurred and
be continuing under the Credit Agreement and the Loans shall have been declared
or shall have become due and payable, the Administrative Agent may exercise on
behalf of itself, the Banks, the Syndication Agent and the Documentation Agent,
in addition to other rights and remedies provided for herein or otherwise
available to it, all the rights of a secured party under the UCC and, in
addition, the Administrative Agent may, without being required to give any
notice, except as herein provided or as may be required by mandatory provisions
of law, subject to paragraph (d) of this Section 8.2, sell the Collateral or any
part thereof at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery, and at such
price or prices as the Administrative Agent may deem satisfactory, subject to
compliance with mandatory provisions of law.
(b) Any Bank or any Holder of Obligations may be the purchaser of
any or all of the Collateral so sold at any sale and thereafter hold the same,
absolutely, free from any right or claim of whatsoever kind.
(c) The Administrative Agent is authorized, in connection with any
such sale, if it deems it advisable so to do:
(i) to restrict the prospective bidders on or purchasers of
any of the Collateral to a limited number of sophisticated investors who
will represent and agree that such investors are purchasing for their own
account for investment and not with a view to the distribution or sale of
any of such Collateral,
(ii) to cause to be placed on certificates for any or all of
the Pledged Securities or any other securities pledged hereunder, if
applicable, a legend to the effect that such Pledged Securities or other
securities have not been registered under the Securities Act and may not be
disposed of in violation of the provisions of the Securities Act, and
<PAGE>
(iii) to impose such other limitations or conditions in
connection with any such sale as the Administrative Agent deems necessary
or advisable in order to comply with the Securities Act or any other law.
The Pledgor covenants and agrees that it will execute and deliver such documents
and take such other action as the Administrative Agent deems necessary or
advisable in order that any such sale may be made in compliance with law. Upon
any such sale the Administrative Agent shall have the right to deliver, assign
and transfer to the purchaser thereof the Collateral so sold. Each purchaser at
any such sale shall hold the Collateral so sold absolutely, free from any claim
or right of whatsoever kind, including, without limitation, any equity or right
of redemption of the Pledgor. The Pledgor, to the extent permitted by law,
hereby specifically waives all rights of redemption, stay or appraisal that it
has or may have under any law now existing or hereafter adopted. The
Administrative Agent agrees that, to the extent notice of sale is required by
law, it shall give the Pledgor ten days' written notice (which notice shall be
deemed to be commercially reasonable for purposes of the UCC) of its intention
to make any such public or private sale, sale at a broker's board or on a
securities exchange or other intended disposition of any of the Collateral,
except any Collateral that threatens to decline speedily in value or is of a
type customarily sold in a recognized market. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Administrative Agent may fix in the notice of such sale. At any such
public or private sale the Collateral may be sold in one lot as an entirety or
in separate parcels, as the Administrative Agent may determine. The
Administrative Agent shall not be obligated to make any such sale pursuant to
any such notice. The Administrative Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the same may be so adjourned. In case
of any sale all or any part of the Collateral so sold may be retained by the
Administrative Agent until the selling price is paid by the purchaser thereof,
but the Administrative Agent shall not incur any liability in case of the
failure of such purchaser to take up and pay for the Collateral so sold and, in
case of any such failure, such Collateral may again be sold upon like notice.
The Administrative Agent, instead of exercising the power of sale herein
conferred upon it, may proceed by a suit or suits at law or in equity to
foreclose the Security Interests and sell the Collateral, or any portion
thereof, under a judgment of a court or courts of competent jurisdiction.
(d) If the Administrative Agent determines to exercise its right to
sell all or any of the Collateral in a manner which would require registration
of any of the Collateral under the provisions of the Securities Act, the Pledgor
agrees, at its own expense,
(i) to execute and deliver, and to use its best efforts to
cause the issuer thereof and each other corporation whose securities are to
be sold and their respective directors and officers to execute and deliver,
all such instruments and documents, and to do or cause to be done all other
such acts and things, as may be necessary or, in the opinion of the
Administrative Agent, advisable to register such securities under the
provisions of the Securities Act and to cause the registration statement
relating thereto to become effective and to remain effective for such
period of time as may be appropriate to enable prospectuses as required by
law to be furnished, and to make or cause to be made all amendments and
supplements thereto and to the related prospectus which, in the opinion of
the Administrative Agent, are necessary or advisable, all in conformity
with the requirements of the Securities Act and the rules and regulations
of the Securities and Exchange Commission (or any
<PAGE>
successor thereto) thereunder,
(ii) to use its best efforts to cause the issuer of such
securities and each other corporation whose securities are to be sold to
agree to make, and to make, available to its security holders as soon as
practicable, an earnings statement (which need not be audited) covering a
period of at least 12 months, beginning with the first month after the
effective date of any such registration statement, which earnings statement
will satisfy the provisions of Section 11(a) of the Securities Act,
(iii) to use its best efforts to qualify such securities under
state "Blue Sky" or securities laws and to obtain the approval of any
governmental authorities for the sale of such securities, as requested by
the Administrative Agent, and
(iv) at the request of the Administrative Agent, to indemnify
and hold harmless the Administrative Agent, the Banks, the Syndication
Agent, the Documentation Agent, the Holders of Obligations and any
underwriters (and any person controlling any of the foregoing) from and
against any loss, liability, claim, damage and expense (and reasonable
counsel fees incurred in connection therewith) under the Securities Act or
otherwise insofar as such loss, liability, claim, damage, or expense arises
out of or is based upon any untrue statement or alleged untrue statement of
a material fact contained in such registration statement or prospectus or
in any preliminary prospectus or any amendment or supplement thereto, or
arises out of or is based upon any omission or alleged omission to state
therein a material fact required to be stated or necessary to make the
statements therein not misleading, such indemnification to remain operative
regardless of any investigation made by or on behalf of the Administrative
Agent, the Banks, the Syndication Agent, the Documentation Agent, the
Holders of Obligations or any underwriters (or any person controlling any
of the foregoing), provided that the Pledgor shall not be liable in any
--------
case to the Administrative Agent, the Syndication Agent, the Documentation
Agent, a Bank, a Holder of Obligations or an underwriter to the extent that
any such loss, liability, claim, damage or expense arises out of or is
based on an untrue statement or alleged untrue statement or an omission or
an alleged omission made in reliance upon and in conformity with written
information furnished by the Administrative Agent, the Syndication Agent,
the Documentation Agent, such Bank, such Holder of Obligations or such
underwriter, as the case may be, expressly for use in such registration
statement or prospectus.
(e) The Pledgor recognizes that the Administrative Agent may be
unable or may determine that it is not practicable to effect a public sale of
all or a part of the Collateral by reason of certain prohibitions contained in
federal or state securities laws and, under the circumstances then existing, may
reasonably resort to one or more private sales. The Pledgor agrees that such
private sales may be made at prices and on other terms less favorable to the
seller than if the Collateral were sold at public sale and that the
Administrative Agent has no obligation to delay sale of any of the Collateral
for the period of time necessary to permit the issuer or issuers thereof, even
if such issuer or issuers would agree, to register such Collateral for public
sale under the Securities Act, or applicable state securities laws. The Pledgor
agrees that private sales made under the foregoing
<PAGE>
circumstances shall be deemed to have been made in a commercially reasonable
manner under the UCC if in connection with such sales the Administrative Agent
has used its best efforts to obtain the best price reasonably obtainable under
the circumstances and the Administrative Agent has complied with any requirement
applicable to the Administrative Agent under the Securities Act.
8.3 Consents.
--------
Upon the exercise by the Administrative Agent of any power, right,
privilege or remedy pursuant to the Credit Agreement, the Revolving Credit Notes
or the Related Documents or otherwise which requires any consent, approval,
registration, qualification or authorization of any Official Body, the Pledgor
will execute and deliver, or will cause the execution and delivery of, all
applications, certificates, instruments and other documents and papers that the
Administrative Agent may be required to obtain for such governmental consent,
approval, registration, qualification or authorization. Without limiting the
generality of the foregoing, the Pledgor will take all actions requested by the
Administrative Agent in order to obtain from the appropriate Official Body all
necessary consents and approvals (i) for the transfer of the Collateral to the
Administrative Agent upon the occurrence of an Event of Default, (ii) to
effectuate any sale or sales of the Collateral pursuant to Article 8 hereof, and
(iii) for exercising any other right or remedy of the Administrative Agent under
this Agreement.
8.4 Administrative Agent May Perform.
--------------------------------
If the Pledgor fails to perform any agreement contained herein, the
Administrative Agent may itself perform, or cause performance of, such
agreement, and the reasonable expenses of the Administrative Agent, including,
without limitation, the reasonable fees and expenses of its counsel, incurred in
connection therewith shall be payable by the Pledgor under Section 10.1.
ARTICLE 9. WAIVERS, ETC.
9.1 Absolute and Unconditional Obligations.
--------------------------------------
Subject to Sections 3.3 and 5.2, the obligations of, and Security
Interests granted by, the Pledgor hereunder are absolute and unconditional and
shall remain in full force and effect, irrespective of the genuineness,
validity, regularity or enforceability of the Credit Agreement, the Revolving
Credit Notes and the Related Documents, or of any assignment, modification or
termination of the Credit Agreement, the Revolving Credit Notes and the Related
Documents, and shall not be released, discharged or impaired in any way by
reason of:
(a) any failure of the Administrative Agent, the Syndication
Agent, the Documentation Agent or the Banks to retain or preserve any
rights against any person or any other collateral,
(b) the invalidity of any such rights which the
Administrative Agent, the Syndication Agent, the Documentation Agent or the
Banks may attempt to obtain,
(c) the lack of prior enforcement by the Administrative
Agent, the
<PAGE>
Syndication Agent, the Documentation Agent or the Banks of any rights
against any person or any other collateral,
(d) the dissolution of the Administrative Agent, the
Syndication Agent, the Documentation Agent or the Banks,
(e) the waiver, surrender, compromise, settlement, release or
termination of any of or all the obligations, covenants or agreements of
the Borrower, the Pledgor or any Parent Subsidiary contained in the Credit
Agreement, the Revolving Credit Notes and the Related Documents,
(f) the failure to give notice to the Pledgor, the Borrower
or any Parent Subsidiary of the occurrence of a breach of the Credit
Agreement, the Revolving Credit Notes and the Related Document,
(g) the extension of the time for payment of any amount owing
or payable under the Credit Agreement, the Revolving Credit Notes and the
Related Documents or of the time for performance of any obligations,
covenants or agreements under or arising out of the Credit Agreement, the
Revolving Credit Notes and the Related Documents,
(h) the taking or the omission of any of the actions referred
to in the Credit Agreement, the Revolving Credit Notes and the Related
Documents,
(i) any circumstances which might give rise to any right of
termination, release, rescission, discharge, modification or suspension by
the Pledgor of its obligations hereunder or of the Security Interests by
reason of any misstatement, breach of warranty or other act or omission by
the Administrative Agent, the Syndication Agent, the Documentation Agent or
any of the Banks whether or not consented to by the Pledgor, or
(j) any other circumstance which might in the absence of this
Section 9.1 constitute a legal or equitable release or discharge of the
Pledgor from the performance or observance of any obligation, covenant or
agreement contained in this Agreement or limit the recourse of the
Administrative Agent, the Syndication Agent, the Documentation Agent or any
of the Banks to the Pledgor or the Collateral, nor shall the obligations of
the Pledgor hereunder or the Security Interests be affected in any way by
any bankruptcy, arrangement, reorganization or similar proceeding for
relief of debtors under federal or state law hereinafter initiated by or
against the Borrower, the Pledgor, any Parent Subsidiary, the
Administrative Agent, the Syndication Agent, the Documentation Agent or any
of the Banks.
Subject to Sections 3.3 and 5.2, (i) no setoff, counterclaim, reduction or
diminution of any obligation, or any defense of any kind or nature (other than
the performance by the Pledgor of its obligations hereunder) shall be available
hereunder to the Pledgor against the Administrative Agent, the Syndication
Agent, the Documentation Agent or any of the Banks, and (ii) the Administrative
Agent, the Syndication Agent, the Documentation Agent and the Banks need not
exhaust their remedies
- 129 -
<PAGE>
against the Borrower, the Pledgor, any Parent Subsidiary or any other party to a
Related Document or against any other collateral before proceeding against the
Collateral.
9.2 Waivers.
-------
For purposes of this Agreement, the Pledgor hereby unconditionally
waives, as conditions precedent to the enforcement of this Agreement:
(a) demand for payment, protest and notice of nonpayment or
dishonor,
(b) all other notices and demands (including, without
limitation, notice of the acceptance of this Agreement or of the intention
to act in reliance hereon),
(c) any notice of any of the matters referred to in Section
9.1,
(d) all notices which may be required by statute, rule of
law, or otherwise to preserve any rights against the Pledgor hereunder,
including, without limitation, any notice of borrowing, any demand, proof
or notice of nonpayment of any sums payable under the Credit Agreement, the
Revolving Credit Notes and the Related Documents or any notice of any
failure on the part of the Borrower, any Parent Subsidiary or any other
party to perform and comply with any term or condition of the Credit
Agreement, the Revolving Credit Notes and the Related Documents,
(e) any requirement of diligence and
(f) any right or claim to reimbursement from the
Administrative Agent, the Syndication Agent, the Documentation Agent or any
of the Banks for monies paid by the Pledgor pursuant to this Agreement.
The Pledgor also hereby waives, any right to require, and the benefit of all
laws now or hereafter in effect giving the Pledgor the right to require, any
prior enforcement, and the Pledgor agrees that any delay in enforcing or failure
to enforce any such rights or in making demand on the Pledgor for the
performance of the obligations of the Pledgor under this Agreement shall not in
any way affect the liability of the Pledgor hereunder or the validity of the
Security Interests; and the Pledgor hereby waives, as against the Administrative
Agent, the Syndication Agent, the Documentation Agent or any of the Banks and
any person claiming under any of them, all rights and benefits which might
accrue to it by reason of any of the aforesaid bankruptcy, arrangement,
reorganization, or similar proceedings and agrees that its liabilities hereunder
and the validity of the Security Interests shall not be affected by the
aforesaid bankruptcy, arrangement, reorganization, or similar proceedings and
further agrees that its liabilities hereunder and the validity of the Security
Interests shall not be affected by any modification, limitation or discharge of
the obligations of the Borrower or any Parent Subsidiary that may result from
any such proceedings.
9.3 Reliance.
--------
The Pledgor hereby waives any and all notice of the creation,
renewal, extension or accrual of any of the Obligations and notice of or proof
of reliance by the Administrative Agent, the
- 130 -
<PAGE>
Syndication Agent, the Documentation Agent or any Bank upon this Agreement or
acceptance of this Agreement; and the Obligations, and each of them, shall
conclusively be deemed to have been created, contracted or incurred in reliance
upon this Agreement, and all dealings among the Borrower, each Parent Subsidiary
and the Administrative Agent, the Syndication Agent, the Documentation Agent or
any Bank shall likewise be conclusively presumed to have been had or consummated
in reliance upon this Agreement.
9.4 Recovery of Payments.
--------------------
The Pledgor agrees that in the event any amounts are paid to
the Administrative Agent, the Syndication Agent, the Documentation Agent or the
Banks pursuant to the Credit Agreement, any Revolving Credit Note or any Related
Document its liability hereunder shall continue and remain in full force and
effect in the event that all or any part of any such payment is thereafter
recovered as a preference or fraudulent transfer under any applicable bankruptcy
or insolvency law.
9.5 Waiver of Subrogation.
---------------------
The Pledgor hereby irrevocably waives and releases any and all
rights of subrogation, indemnification, reimbursement and similar rights which
the Pledgor may have against or in respect of the Borrower or any Parent
Subsidiary relating to the obligations being secured or guaranteed hereunder,
including, without limitation, all rights that would result in the Pledgor being
deemed a 'creditor' of the Borrower or any Parent Subsidiary under the federal
Bankruptcy Code (Title 11 of the United States Code), as amended.
ARTICLE 10. MISCELLANEOUS
10.1 Expenses.
--------
The Pledgor shall forthwith upon demand pay to the
Administrative Agent:
(a) the amount of any taxes that the
Administrative Agent, the Syndication Agent, the Documentation Agent or
any Bank may have been required to pay:
(i) by reason of or in connection with the
Security Interests (including, without limitation,
any applicable stamp taxes or transfer taxes) or the
execution and delivery of this Agreement or
(ii) to free any of the Collateral from any
Lien thereon, and
(b) the amount of any out-of-pocket expenses,
including, without limitation, the reasonable fees and disbursements of
counsel and of any agent, that the Administrative Agent may incur in
connection with,
- 131 -
<PAGE>
(i) the performance by the Administrative
Agent of its duties under this Agreement,
(ii) the collection, sale or other
disposition of any of the Collateral, including, without
limitation, any expenses of registration of the Collateral,
(iii) the exercise by the Administrative Agent
of any of the rights conferred upon it hereunder or
(iv) any default on the part of the Pledgor
hereunder.
10.2 Holidays.
--------
Except as otherwise provided herein, whenever any payment or
action to be made or taken hereunder or with respect to the Collateral shall be
stated to be due on a day which is not a Business Day, such payment or action
shall be made or taken on the next following Business Day.
10.3 No Implied Waiver; Cumulative Remedies.
--------------------------------------
No course of dealing and no delay or failure of the Banks, the
Syndication Agent, the Documentation Agent or the Administrative Agent in
exercising any right, power or privilege under this Agreement or any other
documents or instruments pursuant to or in connection herewith shall affect any
other or future exercise thereof or exercise of any other right, power or
privilege; nor shall any single or partial exercise of any such right, power or
privilege or any abandonment or discontinuance of steps to enforce such a right,
power or privilege preclude any further exercise thereof or of any other right,
power or privilege. The rights and remedies of the Banks, the Syndication Agent,
the Documentation Agent and the Administrative Agent under this Agreement or any
other documents or instruments pursuant to or in connection herewith are
cumulative and not exclusive of any rights or remedies which the Banks, the
Syndication Agent, the Documentation Agent or the Administrative Agent would
otherwise have.
10.4 Notices.
-------
All notices and other communications hereunder shall be given
to the applicable party hereto at its address stated on the signature page
hereof or at such other address and/or to such other person as such party may
hereafter specify for that purpose by written notice to the Pledgor and the
Administrative Agent. Such notices and other communications will be effective
only if and when given in writing, signed by an authorized officer and shall be
deemed to have been given three (3) days after deposit in the mail, designated
as certified mail, return receipt requested, postage-prepaid, at the applicable
address specified above, or one (1) day after being entrusted to a reputable
commercial overnight delivery service, or when sent by telecopy addressed to the
party to which such notice is directed at its address determined as provided
above (promptly confirmed in writing).
10.5 Severability.
------------
The provisions of this Agreement are intended to be severable.
If any provision of this
- 132 -
<PAGE>
Agreement shall be held invalid or unenforceable in whole or in part in any
jurisdiction such provision shall, as to such jurisdiction, be ineffective to
the extent of such invalidity or unenforceability without in any manner
affecting the validity or enforceability thereof in any other jurisdiction or
the remaining provisions hereof in any jurisdiction.
10.6 Governing Law.
-------------
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without reference to
its choice of law principles.
10.7 Prior Understandings.
--------------------
This Agreement supersedes all prior understandings and
agreements, whether written or oral, among the parties hereto relating to the
transactions provided for herein.
10.8 Counterparts.
------------
This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts each of which, when
so executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
10.9 Successors and Assigns.
----------------------
This Agreement shall be binding upon and inure to the benefit
of the Banks, the Pledgor, the Administrative Agent, the Syndication Agent, the
Documentation Agent and their respective successors and assigns, except that the
Pledgor may not assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Banks. Except to the extent otherwise
required by the context of this Agreement, the word "Banks" where used in this
Agreement shall mean and include any holder of a Revolving Credit Note
originally issued to a Bank under the Credit Agreement, and each such holder of
a Revolving Credit Note shall be bound by and have the benefits of this
Agreement to the same extent as if such holder had been a signatory hereto.
10.10 Amendments or Waivers.
---------------------
With the written consent of the Required Banks, the
Administrative Agent, acting on behalf of itself, the Syndication Agent, the
Documentation Agent and all Banks, and the Pledgor may from time to time enter
into written agreements amending or changing any provision of this Agreement or
the rights of the Banks, the Syndication Agent, the Documentation Agent or the
Pledgor hereunder or thereunder or may grant waivers or consents to a departure
from the due performance of the obligations of the Pledgor, any such agreement,
waiver or consent made with such written consent being effective to bind all the
Banks, the Syndication Agent, the Documentation Agent and the Administrative
Agent; provided that no such agreement, waiver or consent may be made which
--------
will:
- 133 -
<PAGE>
(a) change the definition herein of "Obligations" or
amend Section 10.9 or this Section 10.10 or any other provision of this
Agreement which by its terms requires the consent of all Banks, the
Syndication Agent, the Documentation Agent and the Administrative
Agent; or
(b) alter the terms of, impair the value of, or
release, any Collateral or any of the Pledgor's liabilities under
Section 5.1, except as may otherwise be permitted by Sections 3.3 and
5.2,
without the written consent of all the Banks.
10.11 Duration; Survival.
------------------
All representations and warranties of the Pledgor contained
herein or made in connection herewith shall survive the making of and shall not
be waived by the execution and delivery of this Agreement, the Related Documents
or the Revolving Credit Notes, any investigation by the Administrative Agent,
the Syndication Agent, the Documentation Agent or the Banks, or the making of
any Loan under the Credit Agreement. It is understood that all obligations of
the Pledgor to make payments to or indemnify any the Administrative Agent, the
Syndication Agent, the Documentation Agent or any Bank (including, without
limitation, obligations arising as a result of the Borrower's obligations under
Sections 2.12 and 9.6 of the Credit Agreement or any Parent Subsidiary's
obligations under the Related Documents) shall survive the payment in full of
the Revolving Credit Notes and of all other obligations of the Borrower and each
Parent Subsidiary thereunder and hereunder for a period of two years.
10.12 CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
---------------------------------------------
THE PLEDGOR AGREES THAT ANY SUIT, ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK OR THE STATE OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT THE PLEDGOR IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF SUCH COURTS FOR THAT PURPOSE. THE PLEDGOR
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
THE PLEDGOR 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 THE PLEDGOR. EACH OF THE PLEDGOR AND THE ADMINISTRATIVE AGENT
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO
A JURY TRIAL.
10.13 Stockholders' Agreement; Certificate of Designation.
---------------------------------------------------
(a) The Administrative Agent, on behalf of itself, the
Syndication Agent, the
- 134 -
<PAGE>
Documentation Agent and the Banks, agree that, in the event of any sale or
foreclosure on any shares of TWI Series LMCN-V Common Stock pledged pursuant
hereto, such shares shall be delivered immediately to TWI for conversion into
TWI Common Stock.
(b) The Administrative Agent, on behalf of itself, the
Syndication Agent, the Documentation Agent and the Banks, agree that in the
event of any sale or foreclosure on any shares of TWI Series LMCN-V Common Stock
pledged pursuant hereto, it and they shall be bound by all of the provisions of
the Stockholders' Agreement applicable to the Pledgor.
- 135 -
<PAGE>
WITNESS the due execution hereof as of the day and year first above
written.
Address for Notices: LIBERTY TW, INC.
Liberty TW, Inc.
8101 East Prentice Avenue By:______________________________
Suite 500 Title:___________________________
Englewood, Colorado 80111
Attention: Vice President - Finance
Address for Notices: THE BANK OF NEW YORK, as
Administrative Agent
The Bank of New York
One Wall Street By:______________________________
16th Floor Title:___________________________
New York, New York 10286
Attention: Wade E. Layton
Telephone: (212) 635-8693
Facsimile: (212) 635-8595
- 136 -
<PAGE>
SUPPLEMENT NO. __ TO PARENT AGREEMENT
Reference is made to the Parent Agreement, dated as of
_______________, 1997, by and between Liberty TW, Inc. and The Bank of New York,
as Administrative Agent (as amended, the "Pledge Agreement").
----------------
From and after the date hereof, the following shares of
capital stock shall be "Pledged Securities" under the Pledge Agreement.
Name of Issuer:
Title of Security:
Number of Shares:
Certificate Nos.:
Date:____________ LIBERTY TW, INC.
By:____________________________
Title:_________________________
- 137 -
<PAGE>
COMMUNICATION CAPITAL CORP. EXHIBIT C-3
FORM OF PARENT SUBSIDIARY AGREEMENT
-----------------------------------
This AGREEMENT, dated as of ____, 1997 (as amended, modified or
supplemented from time to time, this "Agreement"), by and between , a
---------
corporation (the "Pledgor"), and THE BANK OF NEW YORK, as Administrative Agent
-------
(the "Administrative Agent") for the Banks (as hereinafter defined) under the
--------------------
Revolving Credit Agreement, dated as of August 15, 1997 (as amended, modified or
supplemented from time to time, the "Credit Agreement"), by and among
----------------
Communication Capital Corp. (the "Borrower"), the Administrative Agent, TORONTO
--------
DOMINION (TEXAS), INC., as Syndication Agent, CREDIT LYONNAIS, as Documentation
Agent, and the Banks party thereto from time to time (hereinafter referred to
collectively as the "Banks" and individually as a "Bank");
----- ----
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Banks have agreed to
lend up to an aggregate of $500,000,000 to the Borrower;
WHEREAS, each of the Pledgor and the Borrower is a direct or indirect
wholly-owned subsidiary of Liberty TW, Inc. (the "Parent"), and the Parent, the
------
Borrower and the Pledgor have been, and are now, engaged in an integrated
business;
WHEREAS, the Pledgor is relying upon the Borrower to provide it with
financing, and it is anticipated that, if the Pledgor executes and delivers this
Agreement to the Administrative Agent, the Borrower will provide such financing
to the Pledgor, and that the proceeds of the loans made under the Credit
Agreement will be used, in part, for the general working capital purposes of the
Pledgor;
WHEREAS, in light of all of the foregoing, the Pledgor 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;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE 1. DEFINITIONS
1.1 Definitions.
-----------
Words and terms defined in the Credit Agreement shall have the
same meaning when used herein unless otherwise indicated herein. Other words and
terms as used herein shall have the following meanings, unless the context
hereof otherwise clearly requires:
- 138 -
<PAGE>
"Collateral" shall mean (i) the Pledged Securities, (ii) all
----------
cash, stock and other dividends paid upon the Pledged Securities (other than
regular cash dividends which the Pledgor retains in accordance with Section
4.2), all cash, stock, securities and other property received in addition to or
in exchange for the Pledged Securities, all rights to subscribe for securities
incident to the Pledged Securities, and all additions to, substitutions for, or
Proceeds (both cash and non-cash) of, any of the foregoing, (iii) the LMC
Registration Rights Agreement, including, without limitation, all rights to
perform, to compel performance, and otherwise to exercise rights or remedies
under or in connection with, the LMC Registration Rights Agreement, and all
Proceeds of the foregoing and (iv) all other collateral securing the Obligations
pursuant to this Agreement.
"Consideration": as of any date of determination, 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 hereof
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 the Pledgor during such
period, in exchange for its execution and delivery of this Agreement.
"Debt" shall mean all indebtedness of the Borrower to the
----
Banks, the Syndication Agent, the Documentation Agent and the Administrative
Agent arising on or after the date hereof under the Credit Agreement, the
Revolving Credit Notes and the Related Documents, both principal and interest,
and any extensions, renewals, refundings, replacements or substitutions of or
for such indebtedness in whole or in part.
"Holder of Obligations" shall mean a permitted participant in,
---------------------
or other permitted assignee of, the rights of any Bank under the Credit
Agreement, the Revolving Credit Notes and the Related Documents.
"Net Worth": shall mean, as of any date of determination, the
---------
lesser of the following:
(a)(i) all of the Pledgor'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 the Pledgor's "debts" (within the meaning of Section 101(12) of the
Bankruptcy Code as in effect on the date hereof) on such date, or
(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 the Pledgor on such date, minus
-----
(ii) "the amount that will be required to pay the Pledgor'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.
"Obligations" shall mean (i) the Debt, (ii) all other amounts
-----------
payable by the Borrower, and all amounts payable by the Parent and each Parent
Subsidiary, to the Banks, the Syndication Agent, the Documentation Agent and the
Administrative Agent under the Credit Agreement, the Revolving Credit Notes and
the Related Documents, (iii) all covenants, agreements
- 139 -
<PAGE>
and undertakings to be performed and discharged by the Borrower, the Parent and
each Parent Subsidiary under and pursuant to the Credit Agreement, the Revolving
Credit Notes and the Related Documents and any related agreement or collateral
undertaking and (iv) all reasonable costs and expenses incurred by the Banks,
the Syndication Agent, the Documentation Agent and the Administrative Agent in
collection of the indebtedness referred to in the preceding clauses (i) and (ii)
or the enforcement of the covenants, agreements and undertakings referred to in
the preceding clause (iii).
"Pledged Acquired Company" shall mean an Acquired Company, the
------------------------
shares of which shall have been pledged under this Agreement.
"Pledged Securities" shall mean the securities described in
------------------
Sections 3.1(b) and 3.1(c).
"Proceeds" includes whatever is received upon the sale,
--------
exchange, collection or other disposition of, or any realization upon, the
Collateral.
"Securities Act" shall mean the Securities Act of 1933, as
--------------
amended.
"Security Interests" shall mean (i) the security interests in
------------------
the Collateral granted hereunder and (ii) all other security interests created
or assigned as additional security for the Obligations pursuant to this
Agreement.
"UCC" shall mean the Uniform Commercial Code, as in effect
---
from time to time in the State of New York.
1.2 UCC Terms.
---------
Unless otherwise defined herein, or unless the context
otherwise requires, words and terms defined in the UCC shall have the same
meanings when used herein.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF PLEDGOR.
-----------------------------------------
The Pledgor represents and warrants to the Administrative Agent, the
Syndication Agent, the Documentation Agent and the Banks as follows:
2.1 Organization and Qualification.
------------------------------
The Pledgor is a corporation duly organized, validly existing
and in good standing under the laws of ____. The Pledgor is duly qualified to do
business as a foreign corporation and in good standing in all jurisdictions in
which the ownership of its properties or the nature of its activities or both
makes such qualification necessary.
- 140 -
<PAGE>
2.2 Authority and Authorization.
---------------------------
(a) The Pledgor has corporate power and authority to
execute and deliver this Agreement and the other Related Documents to which it
is a party, to perform its obligations hereunder and under the other Related
Documents to which it is a party, and all such action has been duly and validly
authorized by all necessary corporate action on its part.
(b) On the date of each purchase of Shares of a Pledged
Acquired Company, the Pledgor will have corporate power and authority to effect
such purchase and all such action will have been duly and validly authorized by
all necessary corporate action on its part.
2.3 Execution and Binding Effect.
----------------------------
This Agreement and the other Related Documents to which the
Pledgor is a party have been duly and validly executed and delivered by the
Pledgor and constitute legal, valid and binding obligations of the Pledgor
enforceable in accordance with the terms hereof and thereof, except as the
enforceability of this Agreement and the other Related Documents to which the
Pledgor is a party may be limited by bankruptcy, insolvency or other similar
laws of general application affecting the enforcement of creditors' rights or by
general principles of equity.
2.4 Authorizations and Filings.
--------------------------
(a) No authorization, consent, approval, license,
exemption or other action by, and no registration, qualification, designation,
declaration or filing with, any Official Body is or will be necessary or
advisable in connection with the execution and delivery of this Agreement and
the other Related Documents to which the Pledgor is a party, the consummation of
the transactions herein or therein contemplated, the performance of or
compliance with the terms and conditions hereof or thereof, except the
enforcement of this Agreement may require the consent of the FCC as to the
transfer of control of licenses granted by the FCC to a Pledged Acquired Company
or its Subsidiaries, the consent of certain Official Bodies as to the transfer
of control of franchises, licenses, permits or other authorizations granted to a
Pledged Acquired Company or its Subsidiaries, filings with the Securities and
Exchange Commission (or any successor thereto) as to the transfer of control of
a Pledged Acquired Company, or filings required by the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, in connection with any transfer
of control of such Pledged Acquired Company or its Subsidiaries.
(b) No authorization, consent, approval, license,
exemption or other action by, and no registration, qualifications, designation,
declaration or filing with, any Official Body is or will be necessary or
advisable in connection with the purchase of Shares of a Pledged Acquired
Company, except such authorizations, consents or approvals as shall have been
obtained by the Pledgor prior to such purchase.
2.5 Absence of Conflicts.
--------------------
Except as set forth in Schedule 3.5 of the Credit Agreement,
neither the execution and delivery of this Agreement or the other Related
Documents to which the Pledgor is a party, nor the consummation of the
transactions herein or therein contemplated, nor the performance or
- 141 -
<PAGE>
compliance with the terms and conditions hereof or thereof, nor the enforcement
of the terms and conditions hereof or thereof (including, without limitation,
any change in control of a Pledged Acquired Company or its Subsidiaries
resulting from such enforcement), nor the purchase of Shares of a Pledged
Acquired Company, will:
(a) violate any Law, except the enforcement of this
Agreement may require the consent of the FCC as to the transfer of
control of licenses granted by the FCC to a Pledged Acquired Company or
its Subsidiaries, the consent of certain Official Bodies as to the
transfer of control of franchises, licenses, permits or other
authorizations granted to a Pledged Acquired Company or its
Subsidiaries, filings with the Securities and Exchange Commission (or
any successor thereto) as to the transfer of control of a Pledged
Acquired Company, or filings required by the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended, in connection with any
transfer of control of a Pledged Acquired Company or its Subsidiaries,
(b) conflict with, result in a breach of or a default
under, accelerate or permit the acceleration of the performance
required by, or give to others any material rights or interests
(including, without limitation, rights of purchase, termination,
cancellation or acceleration) under, the articles of incorporation or
by-laws of the Pledgor, any Pledged Acquired Company or any of their
respective Subsidiaries or any agreement or instrument to which the
Pledgor, such Pledged Acquired Company or such Subsidiary is a party or
by which it or its properties (now owned or hereafter acquired) may be
subject or bound, except that the enforcement of this Agreement with
respect to shares of TWI Series LMCN-V Common Stock is subject to the
Stockholder's Agreement and Section 6.1 of the Certificate of
Designation; provided that the representation in this clause (b) does
--------
not apply to Pledged Acquired Companies and Subsidiaries of Pledged
Acquired Companies the aggregate value of whose Pledged Securities,
together with the aggregate value of Pledged Securities of Pledged
Acquired Companies (as such terms are defined in the other Related
Documents) under the other Related Documents as to which a similar
representation is not made, does not exceed 10% of the value of all
Pledged Securities of Pledged Acquired Companies (as such terms are
defined in all Related Documents),
(c) to the knowledge of the Pledgor (such knowledge
being based upon a review of publicly available filings made by a
Pledged Acquired Company with the Securities and Exchange Commission
(or any successor thereto)), conflict with, result in a breach of or a
default under, accelerate or permit the acceleration of the performance
required by, or give to others any material rights or interests
(including, without limitation, rights of purchase, termination,
cancellation or acceleration) under, any material agreement or material
instrument to which such Pledged Acquired Company or any Subsidiary of
such Pledged Acquired Company is a party or by which it or its
properties (now owned or hereafter acquired) may be subject or bound,
if such conflict, breach, default, acceleration or rights or interest
could reasonably be expected to have a material adverse effect on the
value of the Pledged Securities or on the rights of the
- 142 -
<PAGE>
Administrative Agent under this Agreement; provided that the
--------
representation in this clause (c) does not apply to Pledged Acquired
Companies and Subsidiaries of Pledged Acquired Companies, the aggregate
value of whose Pledged Securities, together with the aggregate value of
Pledged Securities (as such term is used in the other Related
Documents) under the other Related Documents as to which a similar
representation is not made, does not exceed 10% of the value of all
Pledged Securities of Pledged Acquired Companies (as such terms are
defined in all Related Documents), or
(d) result in the creation or imposition of any Lien
upon any property (now owned or hereafter acquired) of the Pledgor, a
Pledged Acquired Company or any of their respective Subsidiaries, other
than the Liens created by the Related Documents.
2.6 No Event of Default; Compliance with Instruments.
------------------------------------------------
No event has occurred and is continuing and no condition
exists which constitutes an Event of Default or Potential Default. The Pledgor
is not in violation of any term of any certificate of incorporation, by-law, or
material agreement or instrument to which the Pledgor is a party or by which it
or any of its properties (now owned or hereafter acquired) may be subject or
bound.
2.7 Business.
--------
The Pledgor has no material assets other than Pledged
Securities, the TWI Agreements, other shares of capital stock and intercompany
receivables, and has no material liabilities other than liabilities permitted by
this Agreement.
2.8 Litigation.
----------
There is no pending or (to the Pledgor's knowledge after due
inquiry) threatened proceeding by or before any Official Body against or
affecting the Pledgor or its Subsidiaries which if adversely decided would have
a material adverse effect on the business, operations or financial condition of
the Pledgor or on the ability of the Pledgor to perform its obligations under
the Related Documents to which it is a party.
2.9 Pension Related Matters.
-----------------------
The Pledgor has no liability (contingent or otherwise) for,
and none of the Pledgor's assets are encumbered in connection with,
(a) the minimum funding requirements under ERISA or
the Code with respect to a Plan (including, without limitation, joint
and several liability with a Controlled Group Member for the minimum
funding requirement and the excise tax for failure to meet such
requirement, any Lien for contributions with respect to a Plan which
are due and unpaid by the Pledgor or a Controlled Group Member, and any
security posted by the Pledgor to obtain a waiver of the minimum
funding requirement),
(b) any amendment to a Plan,
- 143 -
<PAGE>
(c) any PBGC premiums with respect to a Plan which
are due and unpaid by the Pledgor or a Controlled Group Member, or
(d) the termination of a Plan or withdrawal by the
Pledgor or a Controlled Group Member from any Multiemployer Plan. The
amount of unfunded benefit liabilities (as defined in Section
4001(a)(16) of ERISA), as certified to by the Plan's actuary, for all
Plans does not exceed $5,000,000.
2.10 Taxes.
-----
All tax returns required to be filed by the Pledgor or its
Consolidated Group have been properly prepared, executed and filed. All taxes,
assessments, fees and other governmental charges upon the Pledgor or any member
of its Consolidated Group or upon any of their respective properties, incomes,
sales or franchises which are due and payable have been paid, other than taxes,
assessments, fees and other governmental charges (a) which are being contested
in good faith and by appropriate proceedings diligently conducted, (b) which
have been appropriately reserved against in accordance with GAAP, (c) which have
not resulted in the imposition of any Lien on any Pledged Securities and (d)
which will not have a material adverse effect on the business, operations or
financial condition of the Pledgor. The reserves and provisions for taxes on the
books of the Pledgor are adequate for all open years and for its current fiscal
period. The Pledgor does not know of any proposed additional assessment or basis
for any material assessment for additional taxes of the Pledgor (whether or not
reserved against), except that, with respect to its Consolidated Group, the
taxable years ended December 31, 1987 through December 31, 1995 are being
examined by the Internal Revenue Service.
2.11 Power To Carry On Business.
--------------------------
The Pledgor has all requisite corporate power and authority to
own and operate its properties and to carry on its business as now conducted and
as presently planned to be conducted.
2.12 Compliance with Laws.
--------------------
The Pledgor is not in violation of or subject to any
contingent liability on account of any Law (including, but not limited to,
federal and state securities laws and the Communications Act), except for
violations which in the aggregate do not have a material adverse effect on the
business, operations or financial condition of the Pledgor or the ability of the
Pledgor to perform its obligations under this Agreement and the other Related
Documents to which it is a party.
2.13 Status of the Shares.
--------------------
(a) As of the date of any pledge hereunder of any Pledged
Securities, (i) the Pledgor will own such Pledged Securities of record and
beneficially, in each case free and clear
- 144 -
<PAGE>
of any Lien, charge, encumbrance or restriction on transfer (including, but not
limited to, any withdrawal, rescission or similar right of a prior holder of
such shares pursuant to any federal or state securities law), except (A) as
otherwise provided by this Agreement, (B) with respect to shares of TWI Series
LMCN-V Common Stock, the restrictions set forth in Schedule 3.5 to the Credit
Agreement, the Stockholders' Agreement and Section 6.1 of the Certificate of
Designation, (C) the restrictions of Section 310(b) of the Communications Act,
and (D) as the right of the Administrative Agent, the Syndication Agent, the
Documentation Agent and the Banks to dispose of such shares (1) may be limited
by the Securities Act and the regulations promulgated by the Securities and
Exchange Commission (or any successor thereto) thereunder and by applicable
state securities laws or (2) may require the consent of the FCC as to the
transfer of control of licenses granted by the FCC to a Pledged Acquired Company
or its Subsidiaries, the consent of certain Official Bodies as to the transfer
of control of franchises, licenses, permits or other authorizations granted to a
Pledged Acquired Company or its Subsidiaries, or filings required by the Hart-
Scott-Rodino Antitrust Improvements Act of 1976, as amended, in connection with
any transfer of control of a Pledged Acquired Company or its Subsidiaries, and
(ii) all of such Pledged Securities will be duly authorized, validly issued,
fully paid and non-assessable. Upon the delivery to the Administrative Agent or
its nominee of the certificates representing the Pledged Securities as provided
in Section 3.1, the Security Interests in the Pledged Securities shall
constitute perfected security interests prior to the rights of all third
parties.
(b) As of the date of any pledge hereunder of Pledged
Securities constituting Shares:
(i) in the case of TWI Series LMCN-V Common Stock,
(A) the sale of such Pledged Securities by the Administrative Agent
pursuant hereto shall be exempt from the registration requirements of
the Securities Act or (B) the Administrative Agent shall be able to
exercise rights with respect to such shares under Section 2 of the LMC
Registration Rights Agreement and
(ii) in all other cases, for purposes of Rule 144
promulgated under the Securities Act, such Pledged Securities shall
have been held by the Pledgor for a period in excess of one year in a
manner that will permit the Administrative Agent on behalf of itself,
the Banks, the Syndication Agent and the Documentation Agent to tack
such ownership or the sale of such Pledged Securities by the
Administrative Agent pursuant hereto shall be exempt from the
registration requirements of the Securities Act.
2.14 Accurate and Complete Disclosure.
--------------------------------
No representation or warranty made by the Pledgor under this
Agreement is, and no statement made by the Pledgor in any financial statement,
certificate, report, exhibit or document furnished by the Pledgor to the
Administrative Agent, the Syndication Agent, the Documentation Agent or the
Banks pursuant to or in connection with this Agreement will be, at the time
furnished, false or misleading in any material respect (including, without
limitation, by omission of material information necessary to make such
representation, warranty or statement not misleading).
2.15 Investment Company.
------------------
- 145 -
<PAGE>
The Pledgor is not an "investment company" or a company
"controlled" by an investment company within the meaning of the Investment
Company Act of 1940, as amended.
2.16 Public Utility Holding Company.
------------------------------
The Pledgor is not a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of either a "holding company"
or a "subsidiary company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
2.17 Solvency.
--------
The Pledgor is not, and after giving effect to the
transactions contemplated by the Credit Agreement, the Revolving Credit Notes
and the Related Documents, will not be, insolvent, will not be left with
unreasonably small capital with which to engage in its business and will not
have incurred debts beyond its ability to pay such debts as they mature.
2.18 TWI Agreements and TWI Stock Documents.
--------------------------------------
This Agreement satisfies the definitions of "Permitted Pledge"
and "Exempt Transfer" in the Stockholders' Agreement, and the Pledgor shall have
complied with the requirements of the Stockholders' Agreement in connection with
the pledge of any shares of TWI Series LMCN-V Common Stock hereunder. This
Agreement satisfies the requirements of Section 6.1(b) of the Certificate of
Designation. Neither the Pledgor nor any Affiliate shall have given any other
person a proxy to vote the shares of TWI Series LMCN-V Common Stock pledged
pursuant to this Agreement, except proxies that state that they terminate upon
notice from the Administrative Agent to the holder that an Event of Default has
occurred.
The Pledgor agrees that the representations and warranties contained in
this Article 2 shall be deemed to have been made by the Pledgor at such times as
the Credit Agreement shall provide as though then made under this Agreement.
ARTICLE 3. THE SECURITY INTERESTS
3.1 Pledge and Grant of Security Interests.
--------------------------------------
(a) In order to secure the full and punctual payment of the
Obligations in accordance with the terms thereof, the Pledgor hereby pledges to
and with the Administrative Agent for the ratable benefit of itself, the Banks,
the Syndication Agent and the Documentation Agent and grants to the
Administrative Agent on behalf of itself, the Banks, the Syndication Agent and
the Documentation Agent a security interest in the Collateral.
(b) On any date on which the Pledgor desires to pledge Shares
hereunder, the Pledgor shall deliver or cause to be delivered to the
Administrative Agent or its nominee:
- 146 -
<PAGE>
(i) a Supplement to this Agreement in the form of
Annex A hereto identifying such Shares; and
(ii) certificates representing such Shares duly
endorsed by the Pledgor or accompanied by undated stock powers duly
executed in blank by the Pledgor and in form appropriate in the
judgment of the Administrative Agent to transfer record ownership of
such Shares to the Administrative Agent or its nominee.
(c) On each date, if any, on which a Parent Subsidiary
Agreement shall have been executed and delivered by all of the parties thereto,
the Pledgor shall deliver or cause to be delivered to the Administrative Agent
or its nominee certificates representing all of the issued and outstanding
shares of the capital stock of the Parent Subsidiary party thereto in which the
Pledgor shall have any right, title or interest duly endorsed by the Pledgor or
accompanied by undated stock powers duly executed in blank by the Pledgor and in
form appropriate in the judgment of the Administrative Agent to transfer record
ownership of such shares to the Administrative Agent or its nominee.
(d) The Security Interests are granted as security only
and shall not subject the Banks, the Syndication Agent, the Documentation Agent
or the Administrative Agent to, or transfer or in any way affect or modify, any
obligation or liability of the Pledgor with respect to any of the Collateral or
any transaction in connection therewith.
3.2 Ratable Benefit of the Banks, the Syndication Agent, the
--------------------------------------------------------
Documentation Agent and the Administrative Agent.
- ------------------------------------------------
The Security Interests granted to and created in favor of the
Administrative Agent by this Agreement and the rights and remedies granted to
the Administrative Agent hereunder shall be for the benefit of itself, the
Banks, the Syndication Agent and the Documentation Agent ratably according to
the amount of the Obligations to each of the Banks, the Syndication Agent, the
Documentation Agent and the Administrative Agent. Each of the rights, privileges
and remedies accorded to the Administrative Agent under this Agreement or
otherwise by statute or at law or in equity with respect to the Collateral may
be exercised by the Administrative Agent, but only for the ratable benefit of
itself, the Banks, the Syndication Agent and the Documentation Agent. Any
Collateral held or recovered at any time by the Administrative Agent, the
Syndication Agent, the Documentation Agent or any Bank or any realization on
account thereof shall inure to the ratable benefit of the Banks, the Syndication
Agent, the Documentation Agent and the Administrative Agent.
3.3 Release of Pledged Securities; Termination of Security
------------------------------------------------------
Interests.
- ---------
Subject to Section 9.4, upon the payment in full of the
Revolving Credit Notes, the performance by the Borrower of all of its other
obligations under the Credit Agreement, the Revolving Credit Notes and the
Related Documents, the performance by the Parent and each Parent Subsidiary of
all their respective obligations under the Pledge Agreements, and the
termination of the Commitments, (i) the Security Interests shall terminate and
all rights to the Collateral shall revert to the Pledgor, and (ii) the
Administrative Agent shall, at the Pledgor's expense, execute and deliver to the
Pledgor such documents as the Pledgor shall reasonably
- 147 -
<PAGE>
request to evidence such termination and to transfer the Collateral to or upon
the order of the Pledgor, provided, however, that, notwithstanding anything to
-------- -------
the contrary contain herein,
(a) upon the disposition of any Pledged Securities
constituting Shares in accordance with Section 7.1 of this Agreement,
the Administrative Agent shall release its Security Interest in such
Pledged Securities, and
(b) in the event of the release of any Parent
Subsidiary Agreement in accordance with Section 5.2 thereof, the
Administrative Agent shall, promptly after the request of the Pledgor,
release its Security Interest in all of the Pledged Securities
constituting shares of the capital stock of the Parent Subsidiary party
thereto, provided that:
--------
(i) immediately before and after giving effect
to such release, no Event of Default or Potential Default
shall exist, and
(ii) the Administrative Agent shall have
received a certificate, in all respects satisfactory to the
Administrative Agent, of the President, any Vice President,
Treasurer, Assistant Treasurer or Chief Financial Officer of
the Pledgor to the foregoing effect.
ARTICLE 4. CERTAIN MATTERS WITH RESPECT TO COLLATERAL
4.1 Record Ownership of Pledged Securities.
--------------------------------------
Subject to the provisions of the Stockholders' Agreement and
the Certificate of Designation, after the occurrence of an Event of Default, the
Administrative Agent may at any time or from time to time, in its sole
discretion, cause any or all of the Pledged Securities to be transferred of
record into the name of the Administrative Agent or its nominee. The Pledgor
shall promptly give to the Administrative Agent copies of any notices or other
communications received by the Pledgor with respect to any Pledged Securities
registered in the name of the Pledgor, and the Administrative Agent shall
promptly give to the Pledgor, copies of any notices or other communications
received by the Administrative Agent with respect to any Pledged Securities
registered in the name of the Administrative Agent or its nominee. The
Administrative Agent shall promptly furnish duplicates of all such notices or
other communications so received by it to the Banks.
4.2 Right to Receive Distributions on Collateral.
--------------------------------------------
Subject to the provisions of the Stockholders' Agreement and
the Certificate of Designation, unless an Event of Default or Potential Default
shall have occurred and be continuing, the Pledgor shall have the right to
receive and to retain all regular cash dividends paid upon the Pledged
Securities, and all such regular cash dividends that are received by the
- 148 -
<PAGE>
Administrative Agent shall forthwith be paid over to the Pledgor. The
Administrative Agent shall have the right to receive and to retain as additional
Collateral hereunder all other dividends, interest and other payments and
distributions issued or made upon or in substitution or exchange for or with
respect to the Collateral, including, without limitation, shares issued as a
result of any reclassification, stock split, split-up or other corporate
reorganization, and the Pledgor shall take all such action as the Administrative
Agent may deem necessary or appropriate to give effect to such right. All such
other dividends, interest and other payments and shares and distributions that
are received by the Pledgor shall be received in trust for the benefit of the
Banks, the Syndication Agent, the Documentation Agent and the Administrative
Agent and shall forthwith be paid over to the Administrative Agent as Collateral
in the same form as received (with any necessary endorsements).
4.3 Right to Vote Collateral.
------------------------
Unless an Event of Default or Potential Default shall have
occurred and be continuing, the Pledgor shall have the right, from time to time,
to vote and to give consents, ratifications and waivers with respect to all
securities constituting part of the Collateral for any purpose not inconsistent
with the terms or purpose of the Credit Agreement, the Revolving Credit Notes or
the Related Documents; provided, however, that the Pledgor shall not in any
-------- -------
event exercise such rights in any manner which could reasonably be expected to
have a material adverse effect on the value of the Pledged Securities or the
security intended to be provided by this Agreement. Subject to the provisions of
the Stockholders' Agreement and the Certificate of Designation if an Event of
Default or Potential Default shall have occurred and be continuing, the
Administrative Agent shall have the right, to the extent permitted by law, and
the Pledgor shall take all such action as may be necessary or appropriate to
give effect to such right, to vote and to give consents, ratifications and
waivers, and to take any other action with respect to, all securities
constituting part of the Collateral with the same force and effect as if the
Administrative Agent were the absolute and sole owner thereof.
4.4 Preservation of Collateral.
--------------------------
The Pledgor assumes full responsibility for taking any and all
necessary steps to preserve rights with respect to the Collateral against prior
parties. The Administrative Agent shall exercise reasonable care in the custody
and preservation of the Collateral, and the Administrative Agent shall be deemed
to have exercised reasonable care in the custody and preservation of such of the
Collateral as may be in its possession if the Administrative Agent takes such
action for that purpose as the Pledgor shall request in writing, provided that
--------
such requested action will not, in the judgment of the Administrative Agent,
impair the Administrative Agent's security interest in the Collateral or its
rights in, or the value of, the Collateral, and provided further that such
--------
written request is received by the Administrative Agent in sufficient time to
permit the Administrative Agent to take the requested action.
4.5 Certain Matters Relating to the LMC Registration Rights
-------------------------------------------------------
Agreement.
---------
(a) Notwithstanding anything to the contrary in the Credit
Agreement, any Revolving Credit Note or any Related Document, (i) the Pledgor
shall remain liable under the LMC Registration Rights Agreement to the extent
set forth therein to perform all of its duties and
- 149 -
<PAGE>
obligations thereunder to the same extent as if this Agreement had not been
executed, (ii) the exercise by the Administrative Agent of any rights or
remedies under or in connection with the Credit Agreement, any Revolving Credit
Note or any Related Document shall not release the Pledgor from any of its
duties or obligations under the LMC Registration Rights Agreement, and (iii)
none of the Administrative Agent, the Syndication Agent, the Documentation Agent
or any Bank shall have any obligation or liability under the LMC Registration
Rights Agreement by reason of the Credit Agreement, any Revolving Credit Note or
any Related Document, nor shall the Administrative Agent, the Syndication Agent,
the Documentation Agent or any Bank be obligated to perform any of the
obligations or duties of the Pledgor thereunder or to take any action to collect
or enforce any claim for payment assigned hereunder.
(b) This Agreement creates a valid security interest in the
LMC Registration Rights Agreement in favor of the Administrative Agent on behalf
of itself, the Banks, the Syndication Agent and the Documentation Agent securing
the Obligations, which security interest has been duly perfected and is prior to
all other liens, security interests, options or other charges or encumbrances.
All filings and other actions necessary or desirable to perfect and protect such
security interest have been duly made and taken.
(c) The Pledgor shall perform and observe all of the terms
and provisions of the LMC Registration Rights Agreement to be performed or
observed by it, maintain the LMC Registration Rights Agreement in full force and
effect, enforce the LMC Registration Rights Agreement in accordance with its
terms and take all such action to such ends as the Administrative Agent may
request from time to time.
(d) The Pledgor shall furnish to the Administrative Agent,
promptly upon receipt thereof, copies of all notices and other communications
received by the Pledgor under or in connection with the LMC Registration Rights
Agreement, and from time to time upon the request of the Administrative Agent
make to any other party to the LMC Registration Rights Agreement such demands
and requests for information and reports or for action as the Pledgor is
entitled to make under or in connection therewith.
(e) The Pledgor shall, and shall cause its subsidiaries to,
exercise their rights to demand registration of TWI capital stock under Section
2 of the LMC Registration Rights Agreement, if and to the extent required to
enable the Administrative Agent, on behalf of itself, the Banks, the Syndication
Agent and the Documentation Agent, to cause a registration of TWI capital stock
constituting Pledged Securities (as defined herein and in the other Related
Documents) under Section 2 of the LMC Registration Rights Agreement.
ARTICLE 5. THE GUARANTY
5.1 Guaranty
--------
(a) Subject to Sections 5.1(b), the Pledgor hereby
absolutely, irrevocably and
- 150 -
<PAGE>
unconditionally guarantees the full and prompt payment when due (whether at
stated maturity, by acceleration or otherwise) of the Obligations. The
provisions of this Section 5.1 constitute a guaranty of payment, and none of the
Administrative Agent, the Syndication Agent, the Documentation Agent or any Bank
shall have any obligation to enforce the Credit Agreement, any Revolving Credit
Note or any Related Document or exercise any right or remedy with respect to any
collateral security thereunder by any action, including, without limitation,
making or perfecting any claim against any person or any collateral security for
any of the Obligations prior to being entitled to the benefits of this Section
5.1. The Administrative Agent may, at its option, proceed against the Pledgor,
in the first instance, to enforce the Obligations without first proceeding
against the Borrower, the Parent, any Parent Subsidiary or any other person, and
without first resorting to any other rights or remedies, as the Administrative
Agent may deem advisable. In furtherance hereof, if the Administrative Agent,
the Syndication Agent, the Documentation Agent or any Bank is prevented by law
from collecting or otherwise hindered from collecting or otherwise enforcing any
Obligation in accordance with its terms, the Administrative Agent, the
Syndication Agent, the Documentation Agent or such Bank, as the case may be,
shall be entitled to receive hereunder from the Pledgor 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 the Pledgor hereunder shall not, as of
any date of determination, exceed the lesser of (i) the highest amount that is
valid and enforceable against the Pledgor 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, plus (B) 95% of the Net Worth of the
----
Pledgor on such date of determination.
(c) The Pledgor agrees that its liability hereunder may at
any time and from time to time exceed the its maximum liability hereunder
without impairing this Agreement or affecting the rights and remedies of the
Administrative Agent, the Syndication Agent, the Documentation Agent or any Bank
under this Agreement.
5.2 Termination[; Effectiveness]/1/
----------------------------
[(a)] Subject to Section 9.4, upon the payment in full of the
Revolving Credit Notes, the performance by the Borrower of all of its other
obligations under the Credit Agreement, the Revolving Credit Notes and the
Related Documents, the performance by the Parent and each Parent Subsidiary of
all their respective obligations under the Credit Agreement and the Pledge
Agreements, and the termination of the Commitments, this Agreement shall be
terminated, and the Pledgor shall have no further obligations or liabilities
hereunder, provided, however, that,
-------- -------
- -----------------------
/1/
Delete all bracketed provisions of this Section 5.2 if the Pledgor is
not Liberty Broadcasting, Inc.
- 151 -
<PAGE>
notwithstanding anything to the contrary contained herein, this Agreement shall
be terminated, and the Pledgor shall have no further obligations or liabilities
hereunder, at such time, if any, as there shall be no Pledged Securities.
[(b) Notwithstanding anything to the contrary contained
herein, Sections 2.6, 2.7, 2.9, 2.10, 2.11, 2.18, 4.5, 5.1 and 10.13, Article 6
(other than Sections 6.1(h), 6.2, 6.6 and 6.9) and Article 7 (other than
Sections 7.1(a), 7.8 and 7.13) shall not be in effect, and the Pledgor shall
have no obligations or liabilities thereunder, at any time when the Pledged
Securities shall not consist of any Shares.]
ARTICLE 6. AFFIRMATIVE COVENANTS
The Pledgor covenants and agrees that on and after the date hereof and
until the later to occur of (i) the termination of the Commitments, and (ii) the
payment in full of the Revolving Credit Notes, the performance by the Borrower
of all of its other obligations under the Credit Agreement, the Revolving Credit
Notes and the Related Documents and the performance by the Parent and each
Parent Subsidiary of all their respective obligations under the Credit Agreement
and the Pledge Agreements:
6.1 Information Requirements.
------------------------
(a) Reports and Information. Promptly upon their becoming
-----------------------
available to the Pledgor, the Pledgor shall deliver to the Banks a copy of (i)
all regular or special reports or registration statements which the Pledgor
shall file with the Securities and Exchange Commission (or any successor
thereto) or any securities exchange, (ii) all reports, proxy statements,
financial statements and other information distributed by the Pledgor to its
stockholders, bondholders or the financial community in general, and (iii) any
reports submitted to the Pledgor by independent accountants in connection with
any annual, interim or special audit of the Pledgor.
(b) Further Information. Subject to any applicable
-------------------
restrictions on disclosure under securities laws, the Pledgor will promptly
furnish to each Bank such other information and in such form as such Bank may
reasonably request.
(c) Notice of Event of Default. Promptly upon obtaining
--------------------------
knowledge of any Event of Default or Potential Default the Pledgor shall give
the Banks notice thereof, together with a written statement of the President,
any Vice President, Treasurer, Assistant Treasurer or Chief Financial Officer of
the Pledgor setting forth the details thereof and any action with respect
thereto taken or contemplated to be taken by the Pledgor.
(d) Notice of Material Adverse Change. Promptly upon
---------------------------------
obtaining knowledge thereof the Pledgor shall give the Banks notice of any
material adverse change in the business, operations or financial condition of
the Pledgor.
- 152 -
<PAGE>
(e) Notice of Material Proceedings. Promptly upon obtaining
------------------------------
knowledge thereof the Pledgor shall give the Banks notice of the commencement,
existence or threat of any proceeding by or before any Official Body against or
affecting the Pledgor or any of its Subsidiaries which, if adversely decided,
would have a material adverse effect on the business, operations or financial
condition of the enterprise comprised of the Pledgor and its Subsidiaries taken
as a whole or on the ability of the Pledgor to perform its obligations under
this Agreement and the other Related Documents to which it is a party.
(f) Notice of Pension-Related Events. Promptly after the Pledgor
--------------------------------
or any Controlled Group Member, or any administrator of a Plan:
(i) receives the notification referred to in subsections
(i), (iv), or (vii) of Section 7.1(i) of the Credit Agreement,
(ii) has knowledge of
(A) the occurrence of a Reportable Event with respect
to a Plan,
(B) any event which has occurred or any action which
has been taken to amend or terminate a Plan as referred to in
subsections (ii) and (vi) of Section 7.1(i) of the Credit
Agreement,
(C) any event which has occurred or any action which
has been taken which could result in complete withdrawal, partial
withdrawal, or secondary liability for withdrawal liability
payments with respect to a Multiemployer Plan as referred to in
subsection (vii) of Section 7.1(i) of the Credit Agreement,
(D) any action which has been taken in furtherance of,
any agreement which has been entered into for, or any petition
which has been filed with a United States district court for, the
appointment of a trustee for a Plan as referred to in subsection
(iii) of Section 7.1(i) of the Credit Agreement,
(E) any action to amend a Plan which requires security
to be provided to such Plan pursuant to Section 401(a)(29) of the
Code or Section 307 of ERISA, or
(F) any failure to pay the PBGC premium with respect
to a Plan when due, or
(iii) files a notice of intent to terminate a Plan with the
Internal Revenue Service (or any successor thereto) or the PBGC (or any
successor thereto); or files with the Internal Revenue Service (or any
successor thereto) a request pursuant to Section 412(d) or 412(e) of
the Code for a variance from the minimum funding standard or an
extension of the period for amortizing unfunded liabilities,
respectively, for a Plan; or files a return with the Internal Revenue
Service (or any successor thereto) with respect
- 153 -
<PAGE>
to the tax imposed under Section 4971(a) of the Code for failure to
meet the minimum funding standards established under Section 412 of the
Code for a Plan,
the Pledgor will furnish to the Banks a copy of any notice received, request or
petition filed, and agreement entered into; the most recent Annual Report (Form
5500 Series) and attachments thereto for such Plan; the most recent actuarial
report for such Plan; any notice, return, or materials required to be filed with
the Internal Revenue Service (or any successor thereto) in connection with such
event, action, or filing; and a written statement of the President, any Vice
President, Treasurer, Assistant Treasurer or Chief Financial Officer of the
Pledgor describing such event or the action taken and the reasons therefor.
(g) Notice of Other Material Defaults. Promptly upon obtaining
---------------------------------
knowledge of any material default by the Pledgor or any Subsidiary of the
Pledgor under any material agreement or instrument to which the Pledgor or any
such Subsidiary is a party or by which the Pledgor or any such Subsidiary or any
of its properties may be bound, which default could reasonably be expected to
have a material adverse effect on the business, operation or financial condition
of the enterprise comprised of the Pledgor and its Subsidiaries taken as a whole
or on the ability of the Pledgor to perform its obligations under this Agreement
and the other Related Documents to which it is a party, the Pledgor shall give
the Banks notice thereof, together with a written statement of the President,
any Vice President, Treasurer, Assistant Treasurer or Chief Financial Officer of
the Pledgor setting forth the details thereof.
(h) Visitation. The Pledgor shall permit such persons as the
----------
Administrative Agent or any Bank may designate to visit and inspect any of the
properties of the Pledgor, to examine its books and records and take copies and
extracts therefrom and to discuss its affairs with its officers, employees and
independent accountants at such times and as often as the Administrative Agent
or such Bank may reasonably request. The Pledgor hereby authorizes such
officers, employees and independent accountants to discuss with the
Administrative Agent and the Banks the affairs of the Pledgor.
6.2 Preservation of Existence and Franchises.
----------------------------------------
The Pledgor shall maintain its corporate existence, rights and
franchises in full force and effect in its jurisdiction of incorporation. The
Pledgor shall qualify and remain qualified as a foreign corporation in each
jurisdiction in which failure to receive or retain such qualification would have
a material adverse effect on the business, operations or financial condition of
the Pledgor.
6.3 Insurance.
---------
The Pledgor shall maintain with financially sound and
reputable insurers insurance with respect to its properties and business and
against such liabilities, casualties and contingencies and of such types and in
such amounts as is customary in the case of corporations engaged in the same or
a similar business or having similar properties similarly situated.
- 154 -
<PAGE>
6.4 Payment of Taxes and Other Potential Charges and Priority
---------------------------------------------------------
Claims; Payment of Other Current Liabilities.
- --------------------------------------------
The Pledgor shall pay or discharge:
(a) on or prior to the date on which penalties
attach thereto, all taxes, assessments and other governmental charges
or levies imposed upon it or any of its properties or income
(including, without limitation, such as may arise under Section 4062,
Section 4063 or Section 4064 of ERISA, or any similar provision of
law);
(b) on or prior to the date when due, all lawful
claims of materialmen, mechanics, carriers, warehousemen, landlords and
other like persons which, if unpaid, might result in the creation of a
Lien upon any such property; and
(c) on or prior to the date when due, all other
lawful claims which, if unpaid, might result in the creation of a Lien
upon any such property or which, if unpaid, might give rise to a claim
entitled to priority over general creditors of the Pledgor in a case
under Title 11 (Bankruptcy) of the United States Code, as amended, or
in any insolvency proceeding or dissolution or winding-up involving the
Pledgor;
provided that prior to the imposition of any Lien with respect to such tax
- --------
assessment, charge, levy, claim or current liability, the Pledgor need not pay
or discharge any such tax, assessment, charge, levy, claim or current liability
so long as the validity thereof is contested in good faith and by appropriate
proceedings diligently conducted and so long as such reserves or other
appropriate provisions as may be required by GAAP shall have been made therefor
and so long as such failure to pay or discharge does not have a material adverse
effect on the business, operations or financial condition of the Pledgor.
6.5 Financial Accounting Practices.
------------------------------
The Pledgor shall make and keep books, records and accounts
which, in reasonable detail, accurately and fairly reflect its transactions and
dispositions of its assets and maintain a system of internal accounting controls
sufficient to provide reasonable assurances that:
(a) transactions are executed in accordance with
management's general or specific authorization,
(b) transactions are recorded as necessary:
(i) to permit preparation of financial
statements in conformity with GAAP and
(ii) to maintain accountability for assets,
(c) access to assets is permitted only in accordance
with management's general or specific authorization and
- 155 -
<PAGE>
(d) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
6.6 Compliance with Laws.
--------------------
The Pledgor shall comply with all applicable Laws (including,
but not limited to, federal and state securities laws and the Communications
Act), provided that the Pledgor shall not be deemed to be in violation of this
--------
Section 6.6 as a result of any failures to comply which would not result in
fines, penalties, injunctive relief or other civil or criminal liabilities
which, in the aggregate, would materially affect the business, operations or
financial condition of the Pledgor or the ability of the Pledgor to perform its
obligations under this Agreement or the other Related Documents.
6.7 Government Authorizations, etc.
------------------------------
The Pledgor shall obtain and maintain in force all
authorizations, consents, approvals, licenses, exemptions and other actions by,
and all registrations, qualifications, designations, declarations and other
filings with, any Official Body necessary or advisable in connection with
execution and delivery of this Agreement, the other Related Documents to which
it is a party, consummation of the transactions herein or therein contemplated,
and performance of or compliance with the terms and conditions hereof or
thereof.
6.8 Contracts.
---------
The Pledgor shall comply with all agreements or instruments to
which it is a party or by which it or any of its properties (now owned or
hereafter acquired) may be subject or bound, provided that the Pledgor shall not
--------
be deemed to be in violation of this Section 6.8 as a result of any failure to
comply which would not have a material adverse effect on the business,
operations or financial condition of the Pledgor or on the ability of the
Pledgor to perform its obligations under this Agreement or the other Related
Documents.
6.9 Filing; Further Assurances.
--------------------------
The Pledgor shall, from time to time, at its expense and in
such manner and form as the Administrative Agent may require, execute, deliver,
file and record any financing statement, specific assignment, notice or other
instrument or document and take any other action that may be necessary or
appropriate, or that the Administrative Agent may request, in order to create,
preserve, perfect or validate the Security Interests or to enable the
Administrative Agent, the Syndication Agent, the Documentation Agent and the
Banks to exercise and enforce their respective rights hereunder with respect to
any of the Collateral. The Pledgor hereby authorizes the Administrative Agent to
execute and file, in the name of the Pledgor or otherwise, such UCC financing
statements as the Administrative Agent in its sole discretion may deem necessary
or appropriate further to perfect the Security Interests.
- 156 -
<PAGE>
ARTICLE 7. NEGATIVE COVENANTS
The Pledgor covenants and agrees that on and after the date hereof and
until the later to occur of (i) the termination of the Commitments, and (ii) the
payment in full of the Revolving Credit Notes, the performance by the Borrower
of all of its other obligations under the Credit Agreement, the Revolving Credit
Notes and the Related Documents and the performance by the Parent and each
Parent Subsidiary of all their respective obligations under the Credit Agreement
and the Pledge Agreements:
7.1 Pledged Securities; Liens.
-------------------------
(a) The Pledgor shall not sell, assign, transfer, exchange,
withdraw from pledge or otherwise dispose of or grant any option with respect
to, the Pledged Securities; provided that the Pledgor may sell, assign,
--------
transfer, exchange, withdraw from pledge or otherwise dispose of Shares
constituting Pledged Securities, provided further that, at the time of each such
-------- -------
disposition and immediately after giving effect thereto,
(i) no Potential Default or Event of Default shall
exist,
(ii) the Loan/Value Percentage would not exceed 50% and
(iii) in the event that there are any restrictions on the
sale of Shares under Rule 144 promulgated under the Securities Act of
1933, as amended,
(A) such Pledged Securities shall be subject to
the greatest of such restrictions, and
(B) the Qualified Affiliates shall own sufficient
shares of TWI capital stock so that, upon the exercise of
their respective rights to demand registration of TWI capital
stock under Section 2 of the LMC Registration Rights
Agreement, the Administrative Agent would be able to cause a
registration of TWI capital stock constituting Pledged
Securities under such Section.
(b) The Pledgor shall not at any time create, incur, assume or
suffer to exist any Lien on any of its property or assets, tangible or
intangible, now owned or hereafter acquired, including, without limitation, any
Pledged Securities, or agree or become liable to do so, except Liens arising
under this Agreement.
(c) To the extent the Pledgor has the power to do so, the
Pledgor shall not permit any Pledged Acquired Company to take any action which
could reasonably be expected to have a material adverse effect on the value of
the Pledged Securities or on the rights of the Administrative Agent, the
Syndication Agent, the Documentation Agent or any Bank under this Agreement.
7.2 Indebtedness.
------------
- 157 -
<PAGE>
The Pledgor shall not at any time create, incur, assume or
suffer to exist any Indebtedness, except:
(a) Indebtedness under the Related Documents;
(b) Indebtedness under the Tax Sharing
Agreement;
(c) current accounts payable arising out of
transactions (other than borrowings) in the ordinary course of
business; and
(d) other Indebtedness of the Pledgor to one or
more of its Subsidiaries, provided that:
--------
(i) immediately after the incurrence
thereof, the aggregate principal amount of all such
Indebtedness incurred on or after the date hereof shall not
exceed the aggregate amount of all cash dividends received on
or after the date hereof by all such Subsidiaries in respect
of any Shares, and
(ii) immediately before and after the
incurrence thereof, no Event of Default or Potential Default
shall exist.
7.3 Guarantees.
----------
The Pledgor shall not at any time directly or indirectly
assume, guarantee, become surety for, endorse or otherwise agree to become or
remain directly or contingently liable upon or with respect to, any obligation
or liability of any other person, except:
(a) contingent liabilities under this
Agreement;
(b) contingent liabilities arising from the
endorsement of negotiable or other instruments for deposit or
collection or similar transactions in the ordinary course of business;
and
(c) indemnities by the Pledgor of the
liabilities of its directors or officers pursuant to provisions
contained in its articles of incorporation or by-laws or as otherwise
permitted by applicable law.
"Direct or contingent liability upon or with respect to any obligation or
liability of any other person" of the Pledgor within the meaning of this Section
7.3 includes, but is not limited to, an agreement, contingent or otherwise:
(i) to reimburse banks, surety companies
and other persons in respect of drawings and other payments
under letters of credit, guarantees, surety bonds and similar
documents opened or issued by such other persons for the
- 158 -
<PAGE>
account of the Pledgor;
(ii) to purchase an obligation or assume a liability of
such person or to supply funds for the payment or purchase of such
obligation or satisfaction of such liability;
(iii) to subordinate a then-existing or future obligation or
liability of such person to the Pledgor, to another then-existing or
future obligation or liability of such person;
(iv) to make any loan, advance, capital contribution or
other investment in, or to purchase any property, services or
securities from, such person so as to enable such person to meet a
minimum equity, net worth, working capital or other financial
condition or to enable such person to satisfy any obligation or
liability or pay any dividend or stock liquidation payment, or
otherwise to supply funds to such person;
(v) to purchase, sell or lease (as lessee or lessor)
property or assets or to purchase or sell services (A) primarily for
the purpose of enabling such person to satisfy such obligation or
liability or of assuring the owner of such indebtedness or liability
against loss, or (B) regardless of the non-delivery of such property
or assets or the failure to furnish such services, or (C) in a
transaction otherwise having the characteristics of a take-or-pay or
throughput contract or as described in paragraph 6 of AICPA Statement
of Financial Accounting Standards No. 47; or
(vi) any other action which is substantially equivalent in
economic effect to any of the foregoing or otherwise substantially
equivalent in economic effect to an assumption, guarantee, endorsement
or other direct or contingent liability upon or with respect to any
obligation or liability of such person.
7.4 Loans and Investments.
---------------------
The Pledgor shall not at any time make or suffer to remain outstanding
any loan or advance to, or purchase, acquire or own any stock, bonds, notes or
securities of, or any partnership interest (whether general or limited) in, or
any other interest in, or make any capital contribution to, any other person, or
agree, become or remain liable to do any of the foregoing, except:
(a) TWI Series LMCN-V Common Stock and capital stock of Parent
Subsidiaries and Acquired Companies;
(b) demand deposits, time deposits or certificates of deposit in
Banks or in United States commercial banks having shareholders' equity of
at least $100,000,000 and maturing not in excess of one year from the date
of acquisition;
- 159 -
<PAGE>
(c) loans from the Pledgor to its direct and indirect parent
corporations, provided that, immediately before and after giving effect to
--------
each such loan, no Event of Default or Potential Default shall exist; and
(d) contributions of Shares to Parent Subsidiaries which, at the
time thereof, shall not constitute Pledged Securities.
7.5 Dividends and Related Distributions.
-----------------------------------
The Pledgor shall not declare, make, pay, or agree, become or remain
liable to make or pay, any dividend or other distribution of any nature (whether
in cash, property, securities or otherwise) on account of or in respect of any
shares of the capital stock of the Pledgor or on account of the purchase,
redemption, retirement or acquisition of any shares of the capital stock (or
warrants, options or rights therefor) of the Pledgor, except:
(a) distributions of Shares and shares of the capital stock of the
Pledgor's Subsidiaries made by the Pledgor, provided that:
--------
(i) at the time of each such distribution, (A) such Shares
or shares, as the case may be, shall not constitute Pledged
Securities, and (B) Section 5.1 of the Parent Agreement shall not be
in effect in accordance with the provisions of Section 5.2 thereof;
and
(ii) immediately before and after giving effect to each
such distribution, no Event of Default or Potential Default shall
exist; and
(b) cash dividends paid by the Pledgor, provided that:
--------
(i) immediately after giving effect to each such dividend,
the aggregate amount of all such dividends made on or after the date
hereof shall not exceed the aggregate amount of all cash dividends
received on or after the date hereof by the Pledgor and its
Subsidiaries in respect of any Shares, and
(ii) immediately before and after giving effect to each
such dividend, no Event of Default or Potential Default shall exist.
7.6 Sale-Leasebacks.
---------------
The Pledgor shall not at any time enter into or suffer to remain in
effect any transaction to which the Pledgor is a party involving the sale,
transfer or other disposition by the Pledgor of any property, real or personal,
now owned or hereafter acquired, with a view directly or indirectly to the
leasing back of any part of the same property or any other property used for the
same or a similar purpose or purposes.
- 160 -
<PAGE>
7.7 Leases.
------
The Pledgor shall not at any time enter into or suffer to remain in
effect any agreement to lease, as lessee, any real or personal property.
7.8 Merger.
------
The Pledgor shall not merge with or into or consolidate with any other
person, or agree to do any of the foregoing.
7.9 Self-Dealing.
------------
The Pledgor will not at any time enter into or carry out any
transaction with (including, without limitation, purchasing property or services
from or selling property or services to) any Affiliate, except:
(a) transactions contemplated by the Credit Agreement and the
Related Documents; and
(b) payments under the terms of the Tax Sharing Agreement to
permit TCI to pay Federal, state and local income taxes applicable to the
Pledgor; provided, that such payments do not exceed the amount of taxes
--------
that would be payable by the Pledgor if it were not a member of its
Consolidated Group.
7.10 Continuation of or Change In Business.
-------------------------------------
The Pledgor shall not engage in any business other than the following:
(a) any business otherwise expressly permitted under this
Agreement;
(b) the creation of Subsidiaries; and
(c) the disposition of Shares and shares of the capital stock of
its Subsidiaries, provided that:
--------
(i) at the time of each such disposition, (A) such Shares
or shares, as the case may be, shall not constitute Pledged
Securities, and (B) Section 5.1 of the Parent Agreement shall not be
in effect in accordance with the provisions of Section 5.2 thereof;
and
(ii) immediately before and after giving effect to each
such disposition, no Event of Default or Potential Default shall
exist.
7.11 TWI Agreements and TWI Stock Documents.
--------------------------------------
(a) The Pledgor will not give a proxy or similar right to any
person for the voting of the Pledged Securities unless such proxy states
that it terminates upon notice from the
- 161 -
<PAGE>
Administrative Agent that an Event of Default has occurred.
(b) The Pledgor will not consent to any change, amendment,
supplement, other modification to, or the termination or cancellation of, the
provisions of the TWI Agreements or the TWI Stock Documents, if the proposed
change, amendment, supplement, modification, termination or cancellation could
have a material adverse effect on the Collateral, the Administrative Agent, the
Syndication Agent, the Documentation Agent or any Bank.
7.12 Regulation U.
------------
The Pledgor shall not (i) pledge any security under the Pledge
Agreements that is "margin stock" for purposes of Regulation U, as amended,
promulgated by the Board of Governors of the Federal Reserve System (or any
successor thereto), or (ii) convert, or permit the conversion of, any shares of
TWI Series LMCN-V Common Stock into "margin stock", in each case if, in the
judgment of any Bank, such pledge or conversion, as the case may be, would cause
such Bank to violate said Regulation U.
7.13 Use of Proceeds.
---------------
Neither the making of any Loan under the Credit Agreement nor the use
of the proceeds thereof by the Pledgor will violate any of Regulation G, U or X
of the Board of Governors of the Federal Reserve System and no part of the
proceeds of the Loans will be used by the Pledgor to purchase or carry "margin
stock" (within the meaning of said Regulation U) in violation of said Regulation
U or to extend credit for the purpose of purchasing or carrying any such margin
stock in violation of said Regulation U.
ARTICLE 8. GENERAL AUTHORITY; REMEDIES
8.1 Administrative Agent as Attorney-in-Fact.
----------------------------------------
The Pledgor hereby irrevocably appoints the Administrative Agent its
true and lawful attorney, with full power of substitution, in the name of the
Pledgor, the Administrative Agent or its nominee, the Syndication Agent, the
Documentation Agent, the Banks or otherwise, for the sole use and benefit of the
Administrative Agent, the Syndication Agent, the Documentation Agent, the Banks
and the Holders of Obligations, but at the Pledgor's expense, to exercise,
subject to the provisions of the Stockholders' Agreement and the Certificate of
Designation, at any time and from time to time while an Event of Default has
occurred and is continuing, all or any of the following powers with respect to
all or any of the Collateral:
(a) to demand, sue for, collect, receive and give acquittance for
any and all monies due or to become due upon or by virtue thereof,
(b) to settle, compromise, compound, prosecute or defend any
action or
- 162 -
<PAGE>
proceeding with respect thereto,
(c) to sell, transfer, assign or otherwise deal in or with the
same or the proceeds or avails thereof, as fully and effectively as if the
Administrative Agent were the absolute owner thereof, as provided in
Section 8.2,
(d) to extend the time of payment of any or all thereof and to
make any allowance and other adjustments with reference thereto, and
(e) to endorse, assign or otherwise transfer to or to register in
the name of the Administrative Agent or its nominee any or all of the
Collateral.
8.2 Sale of Collateral.
------------------
(a) Subject to the provisions of the Stockholders' Agreement and the
Certificate of Designation, if any Event of Default shall have occurred and be
continuing under the Credit Agreement and the Loans shall have been declared or
shall have become due and payable, the Administrative Agent may exercise on
behalf of itself, the Banks, the Syndication Agent and the Documentation Agent,
in addition to other rights and remedies provided for herein or otherwise
available to it, all the rights of a secured party under the UCC and, in
addition, the Administrative Agent may, without being required to give any
notice, except as herein provided or as may be required by mandatory provisions
of law, subject to paragraph (d) of this Section 8.2, sell the Collateral or any
part thereof at public or private sale or at any broker's board or on any
securities exchange, for cash, upon credit or for future delivery, and at such
price or prices as the Administrative Agent may deem satisfactory, subject to
compliance with mandatory provisions of law.
(b) Any Bank or any Holder of Obligations may be the purchaser of any
or all of the Collateral so sold at any sale and thereafter hold the same,
absolutely, free from any right or claim of whatsoever kind.
(c) The Administrative Agent is authorized, in connection with any
such sale, if it deems it advisable so to do:
(i) to restrict the prospective bidders on or purchasers of
any of the Collateral to a limited number of sophisticated investors who
will represent and agree that such investors are purchasing for their own
account for investment and not with a view to the distribution or sale of
any of such Collateral,
(ii) to cause to be placed on certificates for any or all of
the Pledged Securities or any other securities pledged hereunder, if
applicable, a legend to the effect that such Pledged Securities or other
securities have not been registered under the Securities Act and may not be
disposed of in violation of the provisions of the Securities Act, and
(iii) to impose such other limitations or conditions in
connection with any such sale as the Administrative Agent deems necessary
or advisable in order to comply with the Securities Act or any other law.
- 163 -
<PAGE>
The Pledgor covenants and agrees that it will execute and deliver such documents
and take such other action as the Administrative Agent deems necessary or
advisable in order that any such sale may be made in compliance with law. Upon
any such sale the Administrative Agent shall have the right to deliver, assign
and transfer to the purchaser thereof the Collateral so sold. Each purchaser at
any such sale shall hold the Collateral so sold absolutely, free from any claim
or right of whatsoever kind, including, without limitation, any equity or right
of redemption of the Pledgor. The Pledgor, to the extent permitted by law,
hereby specifically waives all rights of redemption, stay or appraisal that it
has or may have under any law now existing or hereafter adopted. The
Administrative Agent agrees that, to the extent notice of sale is required by
law, it shall give the Pledgor ten days' written notice (which notice shall be
deemed to be commercially reasonable for purposes of the UCC) of its intention
to make any such public or private sale, sale at a broker's board or on a
securities exchange or other intended disposition of any of the Collateral,
except any Collateral that threatens to decline speedily in value or is of a
type customarily sold in a recognized market. Any such public sale shall be held
at such time or times within ordinary business hours and at such place or places
as the Administrative Agent may fix in the notice of such sale. At any such
public or private sale the Collateral may be sold in one lot as an entirety or
in separate parcels, as the Administrative Agent may determine. The
Administrative Agent shall not be obligated to make any such sale pursuant to
any such notice. The Administrative Agent may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the same may be so adjourned. In case
of any sale all or any part of the Collateral so sold may be retained by the
Administrative Agent until the selling price is paid by the purchaser thereof,
but the Administrative Agent shall not incur any liability in case of the
failure of such purchaser to take up and pay for the Collateral so sold and, in
case of any such failure, such Collateral may again be sold upon like notice.
The Administrative Agent, instead of exercising the power of sale herein
conferred upon it, may proceed by a suit or suits at law or in equity to
foreclose the Security Interests and sell the Collateral, or any portion
thereof, under a judgment of a court or courts of competent jurisdiction.
(d) If the Administrative Agent determines to exercise its right
to sell all or any of the Collateral in a manner which would require
registration of any of the Collateral under the provisions of the Securities
Act, the Pledgor agrees, at its own expense,
(i) to execute and deliver, and to use its best efforts to
cause the issuer thereof and each other corporation whose securities are to
be sold and their respective directors and officers to execute and deliver,
all such instruments and documents, and to do or cause to be done all other
such acts and things, as may be necessary or, in the opinion of the
Administrative Agent, advisable to register such securities under the
provisions of the Securities Act and to cause the registration statement
relating thereto to become effective and to remain effective for such
period of time as may be appropriate to enable prospectuses as required by
law to be furnished, and to make or cause to be made all amendments and
supplements thereto and to the related prospectus which, in the opinion of
the Administrative Agent, are necessary or advisable, all in conformity
with the requirements of the Securities Act and the rules and regulations
of the Securities and Exchange Commission (or any successor thereto)
thereunder,
- 164 -
<PAGE>
(ii) to use its best efforts to cause the issuer of such
securities and each other corporation whose securities are to be sold to
agree to make, and to make, available to its security holders as soon as
practicable, an earnings statement (which need not be audited) covering a
period of at least 12 months, beginning with the first month after the
effective date of any such registration statement, which earnings statement
will satisfy the provisions of Section 11(a) of the Securities Act,
(iii) to use its best efforts to qualify such securities under
state "Blue Sky" or securities laws and to obtain the approval of any
governmental authorities for the sale of such securities, as requested by
the Administrative Agent, and
(iv) at the request of the Administrative Agent, to indemnify
and hold harmless the Administrative Agent, the Banks, the Syndication
Agent, the Documentation Agent, the Holders of Obligations and any
underwriters (and any person controlling any of the foregoing) from and
against any loss, liability, claim, damage and expense (and reasonable
counsel fees incurred in connection therewith) under the Securities Act or
otherwise insofar as such loss, liability, claim, damage, or expense arises
out of or is based upon any untrue statement or alleged untrue statement of
a material fact contained in such registration statement or prospectus or
in any preliminary prospectus or any amendment or supplement thereto, or
arises out of or is based upon any omission or alleged omission to state
therein a material fact required to be stated or necessary to make the
statements therein not misleading, such indemnification to remain operative
regardless of any investigation made by or on behalf of the Administrative
Agent, the Banks, the Syndication Agent, the Documentation Agent, the
Holders of Obligations or any underwriters (or any person controlling any
of the foregoing), provided that the Pledgor shall not be liable in any
--------
case to the Administrative Agent, the Syndication Agent, the Documentation
Agent, a Bank, a Holder of Obligations or an underwriter to the extent that
any such loss, liability, claim, damage or expense arises out of or is
based on an untrue statement or alleged untrue statement or an omission or
an alleged omission made in reliance upon and in conformity with written
information furnished by the Administrative Agent, the Syndication Agent,
the Documentation Agent, such Bank, such Holder of Obligations or such
underwriter, as the case may be, expressly for use in such registration
statement or prospectus.
(e) The Pledgor recognizes that the Administrative Agent may be
unable or may determine that it is not practicable to effect a public sale of
all or a part of the Collateral by reason of certain prohibitions contained in
federal or state securities laws and, under the circumstances then existing, may
reasonably resort to one or more private sales. The Pledgor agrees that such
private sales may be made at prices and on other terms less favorable to the
seller than if the Collateral were sold at public sale and that the
Administrative Agent has no obligation to delay sale of any of the Collateral
for the period of time necessary to permit the issuer or issuers thereof, even
if such issuer or issuers would agree, to register such Collateral for public
sale under the Securities Act, or applicable state securities laws. The Pledgor
agrees that private sales made under the foregoing circumstances shall be deemed
to have been made in a commercially reasonable manner under the UCC if in
connection with such sales the Administrative Agent has used its best efforts to
obtain the best price reasonably obtainable under the circumstances and the
Administrative Agent has complied with any requirement applicable to the
Administrative Agent under the Securities Act.
-165-
<PAGE>
8.3 Consents.
--------
Upon the exercise by the Administrative Agent of any power, right,
privilege or remedy pursuant to the Credit Agreement, the Revolving Credit Notes
or the Related Documents or otherwise which requires any consent, approval,
registration, qualification or authorization of any Official Body, the Pledgor
will execute and deliver, or will cause the execution and delivery of, all
applications, certificates, instruments and other documents and papers that the
Administrative Agent may be required to obtain for such governmental consent,
approval, registration, qualification or authorization. Without limiting the
generality of the foregoing, the Pledgor will take all actions requested by the
Administrative Agent in order to obtain from the appropriate Official Body all
necessary consents and approvals (i) for the transfer of the Collateral to the
Administrative Agent upon the occurrence of an Event of Default, (ii) to
effectuate any sale or sales of the Collateral pursuant to Article 8 hereof, and
(iii) for exercising any other right or remedy of the Administrative Agent under
this Agreement.
8.4 Administrative Agent May Perform.
--------------------------------
If the Pledgor fails to perform any agreement contained herein, the
Administrative Agent may itself perform, or cause performance of, such
agreement, and the reasonable expenses of the Administrative Agent, including,
without limitation, the reasonable fees and expenses of its counsel, incurred in
connection therewith shall be payable by the Pledgor under Section 10.1.
ARTICLE 9. WAIVERS, ETC.
9.1 Absolute and Unconditional Obligations.
--------------------------------------
Subject to Sections 3.3 and 5.2, the obligations of, and Security
Interests granted by, the Pledgor hereunder are absolute and unconditional and
shall remain in full force and effect, irrespective of the genuineness,
validity, regularity or enforceability of the Credit Agreement, the Revolving
Credit Notes and the Related Documents, or of any assignment, modification or
termination of the Credit Agreement, the Revolving Credit Notes and the Related
Documents, and shall not be released, discharged or impaired in any way by
reason of:
(a) any failure of the Administrative Agent, the Syndication
Agent, the Documentation Agent or the Banks to retain or preserve any
rights against any person or any other collateral,
(b) the invalidity of any such rights which the
Administrative Agent, the Syndication Agent, the Documentation Agent or the
Banks may attempt to obtain,
(c) the lack of prior enforcement by the Administrative
Agent, the Syndication Agent, the Documentation Agent or the Banks of any
rights against any person or any other collateral,
-166-
<PAGE>
(d) the dissolution of the Administrative Agent, the
Syndication Agent, the Documentation Agent or the Banks,
(e) the waiver, surrender, compromise, settlement, release or
termination of any of or all the obligations, covenants or agreements of
the Borrower, the Parent or any Parent Subsidiary contained in the Credit
Agreement, the Revolving Credit Notes and the Related Documents,
(f) the failure to give notice to the Borrower, the Parent or
any Parent Subsidiary of the occurrence of a breach of the Credit
Agreement, the Revolving Credit Notes and the Related Document,
(g) the extension of the time for payment of any amount owing
or payable under the Credit Agreement, the Revolving Credit Notes and the
Related Documents or of the time for performance of any obligations,
covenants or agreements under or arising out of the Credit Agreement, the
Revolving Credit Notes and the Related Documents,
(h) the taking or the omission of any of the actions referred
to in the Credit Agreement, the Revolving Credit Notes and the Related
Documents,
(i) any circumstances which might give rise to any right of
termination, release, rescission, discharge, modification or suspension by
the Pledgor of its obligations hereunder or of the Security Interests by
reason of any misstatement, breach of warranty or other act or omission by
the Administrative Agent, the Syndication Agent, the Documentation Agent or
any of the Banks whether or not consented to by the Pledgor, or
(j) any other circumstance which might in the absence of this
Section 9.1 constitute a legal or equitable release or discharge of the
Pledgor from the performance or observance of any obligation, covenant or
agreement contained in this Agreement or limit the recourse of the
Administrative Agent, the Syndication Agent, the Documentation Agent or any
of the Banks to the Pledgor or the Collateral, nor shall the obligations of
the Pledgor hereunder or the Security Interests be affected in any way by
any bankruptcy, arrangement, reorganization or similar proceeding for
relief of debtors under federal or state law hereinafter initiated by or
against the Borrower, the Parent, any Parent Subsidiary, the Administrative
Agent, the Syndication Agent, the Documentation Agent or any of the Banks.
Subject to Sections 3.3 and 5.2, (i) no setoff, counterclaim, reduction or
diminution of any obligation, or any defense of any kind or nature (other than
the performance by the Pledgor of its obligations hereunder) shall be available
hereunder to the Pledgor against the Administrative Agent, the Syndication
Agent, the Documentation Agent or any of the Banks, and (ii) the Administrative
Agent, the Syndication Agent, the Documentation Agent and the Banks need not
exhaust their remedies against the Borrower, the Parent, any Parent Subsidiary
or any other party to a Related Document or against any other collateral before
proceeding against the Collateral.
9.2 Waivers.
-------
-167-
<PAGE>
For purposes of this Agreement, the Pledgor hereby unconditionally
waives, as conditions precedent to the enforcement of this Agreement:
(a) demand for payment, protest and notice of nonpayment or
dishonor,
(b) all other notices and demands (including, without
limitation, notice of the acceptance of this Agreement or of the intention
to act in reliance hereon),
(c) any notice of any of the matters referred to in Section
9.1,
(d) all notices which may be required by statute, rule of
law, or otherwise to preserve any rights against the Pledgor hereunder,
including, without limitation, any notice of borrowing, any demand, proof
or notice of nonpayment of any sums payable under the Credit Agreement, the
Revolving Credit Notes and the Related Documents or any notice of any
failure on the part of the Borrower, the Pledgor, any Parent Subsidiary or
any other party to perform and comply with any term or condition of the
Credit Agreement, the Revolving Credit Notes and the Related Documents,
(e) any requirement of diligence and
(f) any right or claim to reimbursement from the
Administrative Agent, the Syndication Agent, the Documentation Agent or any
of the Banks for monies paid by the Pledgor pursuant to this Agreement.
The Pledgor also hereby waives, any right to require, and the benefit of all
laws now or hereafter in effect giving the Pledgor the right to require, any
prior enforcement, and the Pledgor agrees that any delay in enforcing or failure
to enforce any such rights or in making demand on the Pledgor for the
performance of the obligations of the Pledgor under this Agreement shall not in
any way affect the liability of the Pledgor hereunder or the validity of the
Security Interests; and the Pledgor hereby waives, as against the Administrative
Agent, the Syndication Agent, the Documentation Agent or any of the Banks and
any person claiming under any of them, all rights and benefits which might
accrue to it by reason of any of the aforesaid bankruptcy, arrangement,
reorganization, or similar proceedings and agrees that its liabilities hereunder
and the validity of the Security Interests shall not be affected by the
aforesaid bankruptcy, arrangement, reorganization, or similar proceedings and
further agrees that its liabilities hereunder and the validity of the Security
Interests shall not be affected by any modification, limitation or discharge of
the obligations of the Borrower, the Parent or any Parent Subsidiary that may
result from any such proceedings.
9.3 Reliance.
--------
The Pledgor hereby waives any and all notice of the creation,
renewal, extension or accrual of any of the Obligations and notice of or proof
of reliance by the Administrative Agent, the Syndication Agent, the
Documentation Agent or any Bank upon this Agreement or acceptance of this
Agreement; and the Obligations, and each of them, shall conclusively be deemed
to have been
- 168 -
<PAGE>
created, contracted or incurred in reliance upon this Agreement, and all
dealings among the Borrower, the Parent, each Parent Subsidiary and the
Administrative Agent, the Syndication Agent, the Documentation Agent or any Bank
shall likewise be conclusively presumed to have been had or consummated in
reliance upon this Agreement.
9.4 Recovery of Payments.
--------------------
The Pledgor agrees that in the event any amounts are paid to the
Administrative Agent, the Syndication Agent, the Documentation Agent or the
Banks pursuant to the Credit Agreement, any Revolving Credit Note or any Related
Document its liability hereunder shall continue and remain in full force and
effect in the event that all or any part of any such payment is thereafter
recovered as a preference or fraudulent transfer under any applicable bankruptcy
or insolvency law.
9.5 Waiver of Subrogation.
---------------------
The Pledgor hereby irrevocably waives and releases any and all rights
of subrogation, indemnification, reimbursement and similar rights which the
Pledgor may have against or in respect of the Borrower, the Parent or any Parent
Subsidiary relating to the obligations being secured or guaranteed hereunder,
including, without limitation, all rights that would result in the Pledgor being
deemed a 'creditor' of the Borrower, the Parent or any Parent Subsidiary under
the federal Bankruptcy Code (Title 11 of the United States Code), as amended.
ARTICLE 10. MISCELLANEOUS
10.1 Expenses.
--------
The Pledgor shall forthwith upon demand pay to the Administrative
Agent:
(a) the amount of any taxes that the Administrative Agent,
the Syndication Agent, the Documentation Agent or any Bank may have been
required to pay:
(i) by reason of or in connection with the Security
Interests (including, without limitation, any applicable stamp
taxes or transfer taxes) or the execution and delivery of this
Agreement or
(ii) to free any of the Collateral from any Lien
thereon, and
(b) the amount of any out-of-pocket expenses, including,
without limitation, the reasonable fees and disbursements of counsel and of
any agent, that the Administrative Agent may incur in connection with,
(i) the performance by the Administrative Agent of its
duties under this Agreement,
(ii) the collection, sale or other disposition of any of
the Collateral, including, without limitation, any expenses of
registration of the Collateral,
- 169 -
<PAGE>
Collateral,
(iii) the exercise by the Administrative Agent of
any of the rights conferred upon it hereunder or
(iv) any default on the part of the Pledgor
hereunder.
10.2 Holidays.
--------
Except as otherwise provided herein, whenever any payment or
action to be made or taken hereunder or with respect to the Collateral shall be
stated to be due on a day which is not a Business Day, such payment or action
shall be made or taken on the next following Business Day.
10.3 No Implied Waiver; Cumulative Remedies.
--------------------------------------
No course of dealing and no delay or failure of the Banks, the
Syndication Agent, the Documentation Agent or the Administrative Agent in
exercising any right, power or privilege under this Agreement or any other
documents or instruments pursuant to or in connection herewith shall affect any
other or future exercise thereof or exercise of any other right, power or
privilege; nor shall any single or partial exercise of any such right, power or
privilege or any abandonment or discontinuance of steps to enforce such a right,
power or privilege preclude any further exercise thereof or of any other right,
power or privilege. The rights and remedies of the Banks, the Syndication Agent,
the Documentation Agent and the Administrative Agent under this Agreement or any
other documents or instruments pursuant to or in connection herewith are
cumulative and not exclusive of any rights or remedies which the Banks, the
Syndication Agent, the Documentation Agent or the Administrative Agent would
otherwise have.
10.4 Notices.
-------
All notices and other communications hereunder shall be given
to the applicable party hereto at its address stated on the signature page
hereof or at such other address and/or to such other person as such party may
hereafter specify for that purpose by written notice to the Pledgor and the
Administrative Agent. Such notices and other communications will be effective
only if and when given in writing, signed by an authorized officer and shall be
deemed to have been given three (3) days after deposit in the mail, designated
as certified mail, return receipt requested, postage-prepaid, at the applicable
address specified above, or one (l) day after being entrusted to a reputable
commercial overnight delivery service, or when sent by telecopy addressed to the
party to which such notice is directed at its address determined as provided
above (promptly confirmed in writing).
10.5 Severability.
------------
The provisions of this Agreement are intended to be severable.
If any provision of this Agreement shall be held invalid or unenforceable in
whole or in part in any jurisdiction such provision shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
- 170 -
<PAGE>
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
10.6 Governing Law.
-------------
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without reference to
its choice of law principles.
10.7 Prior Understandings.
--------------------
This Agreement supersedes all prior understandings and
agreements, whether written or oral, among the parties hereto relating to the
transactions provided for herein.
10.8 Counterparts.
------------
This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts each of which, when
so executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
10.9 Successors and Assigns.
----------------------
This Agreement shall be binding upon and inure to the benefit
of the Banks, the Pledgor, the Administrative Agent, the Syndication Agent, the
Documentation Agent and their respective successors and assigns, except that the
Pledgor may not assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Banks. Except to the extent otherwise
required by the context of this Agreement, the word "Banks" where used in this
Agreement shall mean and include any holder of a Revolving Credit Note
originally issued to a Bank under the Credit Agreement, and each such holder of
a Revolving Credit Note shall be bound by and have the benefits of this
Agreement to the same extent as if such holder had been a signatory hereto.
10.10 Amendments or Waivers.
---------------------
With the written consent of the Required Banks, the
Administrative Agent, acting on behalf of itself, the Syndication Agent, the
Documentation Agent and all Banks, and the Pledgor may from time to time enter
into written agreements amending or changing any provision of this Agreement or
the rights of the Banks, the Syndication Agent, the Documentation Agent or the
Pledgor hereunder or thereunder or may grant waivers or consents to a departure
from the due performance of the obligations of the Pledgor, any such agreement,
waiver or consent made with such written consent being effective to bind all the
Banks, the Syndication Agent, the Documentation Agent and the Administrative
Agent; provided that no such agreement, waiver or consent may be made which
will:
(a) change the definition herein of "Obligations" or
amend Section 10.9 or this Section 10.10 or any other provision of this
Agreement which by its terms requires the consent of all Banks, the
Syndication Agent, the Documentation Agent and the Administrative
Agent; or
- 171 -
<PAGE>
(b) alter the terms of, impair the value of, or
release, any Collateral or any of the Pledgor's liabilities under
Section 5.1, except as may otherwise be permitted by Sections 3.3 and
5.2,
without the written consent of all the Banks.
10.11 Duration; Survival.
------------------
All representations and warranties of the Pledgor contained
herein or made in connection herewith shall survive the making of and shall not
be waived by the execution and delivery of this Agreement, the Related Documents
or the Revolving Credit Notes, any investigation by the Administrative Agent,
the Syndication Agent, the Documentation Agent or the Banks, or the making of
any Loan under the Credit Agreement. It is understood that all obligations of
the Pledgor to make payments to or indemnify any the Administrative Agent, the
Syndication Agent, the Documentation Agent or any Bank (including, without
limitation, obligations arising as a result of the Borrower's obligations under
Sections 2.12 and 9.6 of the Credit Agreement or the Parent's or any Parent
Subsidiary's obligations under the Related Documents) shall survive the payment
in full of the Revolving Credit Notes and of all other obligations of the
Borrower, the Pledgor and each Parent Subsidiary thereunder and hereunder for a
period of two years.
10.12 CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.
---------------------------------------------
THE PLEDGOR AGREES THAT ANY SUIT, ACTION OR PROCEEDING WITH
RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK OR THE STATE OF NEW YORK, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT THE PLEDGOR IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF SUCH COURTS FOR THAT PURPOSE. THE PLEDGOR
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION
OR PROCEEDING BROUGHT IN SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
THE PLEDGOR 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 THE PLEDGOR. EACH OF THE PLEDGOR AND THE ADMINISTRATIVE AGENT
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO
A JURY TRIAL.
10.13 Stockholders' Agreement; Certificate of Designation.
---------------------------------------------------
(a) The Administrative Agent, on behalf of itself, the
Syndication Agent, the Documentation Agent and the Banks, agree that, in the
event of any sale or foreclosure on any shares of TWI Series LMCN-V Common Stock
pledged pursuant hereto, such shares shall be delivered
- 172 -
<PAGE>
immediately to TWI for conversion into TWI Common Stock.
(b) The Administrative Agent, on behalf of itself, the
Syndication Agent, the Documentation Agent and the Banks, agree that in the
event of any sale or foreclosure on any shares of TWI Series LMCN-V Common Stock
pledged pursuant hereto, it and they shall be bound by all of the provisions of
the Stockholders' Agreement applicable to the Pledgor.
- 173 -
<PAGE>
WITNESS the due execution hereof as of the day and year first above
written.
Address for Notices: [NAME OF PLEDGOR]
- -------------------------
By:
- ------------------------- -----------------------------------
Title:
- ------------------------- --------------------------------
- -------------------------
Attention:
---------------
Address for Notices: THE BANK OF NEW YORK, as
Administrative Agent
The Bank of New York
One Wall Street By:
16th Floor -----------------------------------
New York, New York 10286 Title:
--------------------------------
Attention: Wade E. Layton
Telephone: (212) 635-8693
Facsimile: (212) 635-8595
- 174 -
<PAGE>
SUPPLEMENT NO.__ TO PARENT SUBSIDIARY AGREEMENT
Reference is made to the Parent Agreement, dated as of _____,
1997, by and between ________ and The Bank of New York, as Administrative Agent
(as amended, the "Pledge Agreement").
----------------
From and after the date hereof, the following shares of
capital stock shall be "Pledged Securities" under the Pledge Agreement.
Name of Issuer:
Title of Security:
Number of Shares:
Certificate Nos.:
Date:___________ [NAME OF PLEDGOR]
By:____________________________
Title:_________________________
- 175 -
<PAGE>
COMMUNICATION CAPITAL CORP. EXHIBIT D
FORM OF PARENT NOTE
- --------------------------------------------------
$500,000,000
Denver, Colorado
August 15, 1997
FOR VALUE RECEIVED, the undersigned, LIBERTY TW, INC., a
Colorado corporation (the "Parent"), promises to pay to the order of
------
COMMUNICATION CAPITAL CORP., a Delaware corporation (the "Lender"), the lesser
------
of (i) Five Hundred Million Dollars ($500,000,000) and (ii) the aggregate unpaid
principal amount of loans made by the Lender to the Parent or any portion
thereof at the time or times such amounts are due under the Revolving Credit
Agreement, dated as of August 15, 1997, by and among the Lender, the Banks party
thereto, The Bank of New York, as Administrative Agent, Toronto Dominion
(Texas), Inc., as Syndication Agent, and Credit Lyonnais, as Documentation Agent
(as amended, modified or supplemented from time to time, the "Credit
------
Agreement"). The Parent also promises to pay interest on the unpaid balance of
- ---------
such principal from time to time outstanding in an amount equal to the amount of
interest due under the Credit Agreement and payable on the dates such interest
is due under the Credit Agreement. Words and terms defined in the Credit
Agreement shall have the same meaning when used herein unless otherwise
indicated herein.
The Parent agrees to pay to the Lender, as consideration for
the loans made hereunder, a fee in an amount equal to the amount of the
commitment fee due under the Credit Agreement and payable on the dates such
commitment fee is due under the Credit Agreement.
All payments of interest and fees under, and all payments on
account of the principal of, this Promissory Note shall be made at the Office of
the Administrative Agent or at such other place as the holder hereof shall
designate to the Parent in writing, in lawful money of the United States of
America and in immediately available funds.
The Parent (i) recognizes and understands that the Lender
intends to assign and pledge this Promissory Note to the Administrative, on
behalf of itself, the Banks, the Syndication Agent and the Documentation Agent,
as collateral for the obligations of the Lender under the Credit Agreement, the
Revolving Credit Notes and the Related Documents, (ii) consents to such
assignment and pledge and (iii) agrees, while such assignment and pledge is in
effect, to treat the Administrative Agent as the holder of this Promissory Note.
If the Administrative Agent, the Syndication Agent, the
Documentation Agent and/or the Banks exercise rights under the Parent Agreement
and use proceeds of the Collateral (as defined therein) to pay the Obligations
(as defined therein), then the principal balance of this Promissory Note shall
automatically be reduced by the greater of (i) the amount of the corresponding
reduction in the principal amount of such Obligations and (ii) amount equal to
the "current market value" (as such term is used in Regulation U promulgated by
the Board of Governors of the Federal Reserve
- 176 -
<PAGE>
System) of the Collateral so realized upon (such "current market value" to be
calculated as of the date any such Collateral is pledged pursuant to the Parent
Agreement). In the event any amounts so paid with the proceeds of any such
Collateral are thereafter recovered as a preference or fraudulent transfer under
any applicable bankruptcy or insolvency law, then the unpaid principal amount of
this Promissory Note shall be increased by the amount of such recovery.
If The Parent fails to pay any interest, fee or principal
when due on or under this Promissory Note within five business days after the
date such amount becomes due, then the holder of this Promissory Note may
declare the unpaid principal balance of this Promissory Note, together with all
interest and fees accrued hereunder, to be immediately due and payable without
presentment, demand, protest or notice of any kind, all of which are hereby
expressly waived, and an action for such amounts shall immediately accrue.
In the event of any action at law or suit in equity with
respect to this Promissory Note, the Parent, in addition to all other sums which
it may be required to pay hereunder, will pay a reasonable sum for attorneys'
fees incurred by the holder hereof in connection with such action or suit and
all other costs of collection.
In the absence of manifest error, so long as the
Administrative Agent is the holder hereof, the unpaid principal balance hereof,
unpaid interest and fees accrued hereunder from time to time and the amount or
rates applicable to such balance shall be determined from the records of the
Administrative Agent.
THE PARENT HEREBY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY
ACTION, SUIT OR PROCEEDING ARISING FROM OR RELATED TO THIS PROMISSORY NOTE.
This Promissory Note (i) shall be governed by and construed
in accordance with the laws of the State of Colorado in all respects, including,
without limitation, matters of construction, validity and performance, (ii)
shall bind the Parent and its successors and assigns, and (iii) shall inure to
the benefit of any holder hereof, including, without limitation, the
Administrative Agent and its successors and assigns.
LIBERTY TW, INC.
By:
------------------------------
Title:
---------------------------
- 177 -
<PAGE>
This Promissory Note is assigned to The Bank of New York, as Administrative
Agent, in accordance with, and subject to, the terms and provisions of that
certain Note Pledge Agreement, dated as of August 15, 1997, as amended, by and
between Communication Capital Corp. and The Bank of New York, as Administrative
Agent.
COMMUNICATION CAPITAL CORP.
By:
--------------------------------
Title:
-----------------------------
- 178 -
<PAGE>
COMMUNICATION CAPITAL CORP. EXHIBIT E
FORM OF NOTE PLEDGE AGREEMENT
-----------------------------
This AGREEMENT, dated as of ____, 1997 (as amended, modified or
supplemented from time to time, this "Agreement"), by and between COMMUNICATION
---------
CAPITAL CORP., a Delaware corporation (the "Pledgor"), and THE BANK OF NEW YORK,
-------
as Administrative Agent (the "Administrative Agent") for the Banks (as
--------------------
hereinafter defined) under the Revolving Credit Agreement, dated as of August
15, 1997 (as amended, modified or supplemented from time to time, the "Credit
------
Agreement"), by and among the Pledgor, the Administrative Agent, TORONTO
- ---------
DOMINION (TEXAS), INC., as Syndication Agent, CREDIT LYONNAIS, as Documentation
Agent, and the Banks party thereto from time to time (hereinafter referred to
collectively as the "Banks" and individually as a "Bank");
----- ----
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Banks have agreed to
lend up to an aggregate of $500,000,000 to the Pledgor;
WHEREAS, pursuant to the Credit Agreement, the Banks will not make
Loans unless and until the Pledgor shall have executed and delivered this
Agreement, and in furtherance thereof, the Pledgor has agreed to execute and
deliver this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE 1. DEFINITIONS
1.1 Definitions.
-----------
Words and terms defined in the Credit Agreement shall have
the same meaning when used herein unless otherwise indicated herein. Other words
and terms as used herein shall have the following meanings, unless the context
hereof otherwise clearly requires:
"Collateral" shall mean (i) the Parent Note and all additions
----------
thereto, substitutions therefor and replacements thereof, (ii) the Interest
Reserve Investment Accounts and all items and amounts from time to time on
deposit therein.
"Debt" shall mean all indebtedness of the Pledgor to the
----
Banks, the Syndication Agent, the Documentation Agent and the Administrative
Agent arising on or after the date hereof under the Credit Agreement, the
Revolving Credit Notes and the Related Documents, both principal and interest,
and any extensions, renewals, refundings, replacements or substitutions of
- 179 -
<PAGE>
or for such indebtedness in whole or in part.
"Holder of Obligations" shall mean a permitted participant
---------------------
in, or other permitted assignee of, the rights of any Bank under the Credit
Agreement, the Revolving Credit Notes and the Related Documents.
"Obligations" shall mean (i) the Debt, (ii) all other amounts
-----------
payable by the Pledgor to the Banks, the Syndication Agent, the Documentation
Agent and the Administrative Agent under the Credit Agreement, the Revolving
Credit Notes and the Related Documents, (iii) all covenants, agreements and
undertakings to be performed and discharged by the Pledgor under and pursuant to
the Credit Agreement, the Revolving Credit Notes and the Related Documents and
any related agreement or collateral undertaking and (iv) all reasonable costs
and expenses incurred by the Banks, the Syndication Agent, the Documentation
Agent and the Administrative Agent in collection of the indebtedness referred to
in the preceding clauses (i) and (ii) or the enforcement of the covenants,
agreements and undertakings referred to in the preceding clause (iii).
"Proceeds" includes whatever is received upon the sale,
--------
exchange, collection or other disposition of, or any realization upon, the
Collateral.
"Security Interests" shall mean (i) the security interests in
------------------
the Collateral granted hereunder and (ii) all other security interests created
or assigned as additional security for the Obligations pursuant to this
Agreement.
"UCC" shall mean the Uniform Commercial Code, as in effect
---
from time to time in the State of New York.
1.2 UCC Terms.
---------
Unless otherwise defined herein, or unless the context
otherwise requires, words and terms defined in the UCC shall have the same
meanings when used herein.
ARTICLE 2. THE SECURITY INTERESTS
2.1 Pledge and Grant of Security Interests.
--------------------------------------
(a) In order to secure the full and punctual payment of the
Obligations in accordance with the terms thereof, the Pledgor hereby pledges to
and with the Administrative Agent for the ratable benefit of itself, the Banks,
the Syndication Agent and the Documentation Agent and grants to the
Administrative Agent on behalf of itself, the Banks, the Syndication Agent and
the Documentation Agent a security interest in the Collateral.
(b) On the Closing Date, the Pledgor shall deliver or cause
to be delivered to the Administrative Agent the Parent Note in suitable 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
Administrative Agent.
- 180 -
<PAGE>
2.2 Ratable Benefit of the Banks, the Syndication Agent, the
--------------------------------------------------------
Documentation Agent and the Administrative Agent.
- ------------------------------------------------
The Security Interests granted to and created in favor of the
Administrative Agent by this Agreement and the rights and remedies granted to
the Administrative Agent hereunder shall be for the benefit of itself, the
Banks, the Syndication Agent and the Documentation Agent ratably according to
the amount of the Obligations to each of the Banks, the Syndication Agent, the
Documentation Agent and the Administrative Agent. Each of the rights, privileges
and remedies accorded to the Administrative Agent under this Agreement or
otherwise by statute or at law or in equity with respect to the Collateral may
be exercised by the Administrative Agent, but only for the ratable benefit of
itself, the Banks, the Syndication Agent and the Documentation Agent. Any
Collateral held or recovered at any time by the Administrative Agent, the
Syndication Agent, the Documentation Agent or any Bank or any realization on
account thereof shall inure to the ratable benefit of the Banks, the Syndication
Agent, the Documentation Agent and the Administrative Agent.
2.3 Release of Pledged Collateral; Termination of Security
------------------------------------------------------
Interests.
- ---------
Upon the payment in full of the Revolving Credit Notes, the
performance by the Pledgor of all of its other obligations under the Credit
Agreement, the Revolving Credit Notes and the Related Documents and the
termination of the Commitments, (i) the Security Interests shall terminate and
all rights to the Collateral shall revert to the Pledgor, and (ii) the
Administrative Agent shall, at the Pledgor's expense, execute and deliver to the
Pledgor such documents as the Pledgor shall reasonably request to evidence such
termination and to transfer the Collateral to or upon the order of the Pledgor.
ARTICLE 3. CERTAIN MATTERS WITH RESPECT TO COLLATERAL; GENERAL AUTHORITY;
REMEDIES
3.1 Preservation of Collateral.
--------------------------
The Pledgor assumes full responsibility for taking any and all
necessary steps to preserve rights with respect to the Collateral against prior
parties. The Administrative Agent shall exercise reasonable care in the custody
and preservation of the Collateral, and the Administrative Agent shall be deemed
to have exercised reasonable care in the custody and preservation of such of the
Collateral as may be in its possession if the Administrative Agent takes such
action for that purpose as the Pledgor shall request in writing, provided that
such requested action will not, in the judgment of the Administrative Agent,
impair the Administrative Agent's security interest in the Collateral or its
rights in, or the value of, the Collateral, and provided further that such
written request is received by the Administrative Agent in sufficient time to
permit the Administrative Agent to take the requested action.
- 181 -
<PAGE>
3.2 Administrative Agent as Attorney-in-Fact.
----------------------------------------
The Pledgor hereby irrevocably appoints the Administrative
Agent its true and lawful attorney, with full power of substitution, in the name
of the Pledgor, the Administrative Agent or its nominee, the Syndication Agent,
the Documentation Agent, the Banks or otherwise, for the sole use and benefit of
the Administrative Agent, the Syndication Agent, the Documentation Agent, the
Banks and the Holders of Obligations, but at the Pledgor's expense, to exercise
at any time and from time to time while an Event of Default has occurred and is
continuing, all or any of the following powers with respect to all or any of the
Collateral:
(a) to demand, sue for, collect, receive and give
acquittance for any and all monies due or to become due upon or by
virtue thereof,
(b) to settle, compromise, compound, prosecute or defend
any action or proceeding with respect thereto,
(c) to sell, transfer, assign or otherwise deal in or with
the same or the proceeds or avails thereof, as fully and effectively
as if the Administrative Agent were the absolute owner thereof, as
provided in Section 3.3,
(d) to extend the time of payment of any or all thereof and
to make any allowance and other adjustments with reference thereto,
and
(e) to endorse, assign or otherwise transfer to or to
register in the name of the Administrative Agent or its nominee any or
all of the Collateral.
3.3 Sale of Collateral.
------------------
(a) If any Event of Default shall have occurred and be
continuing under the Credit Agreement and the Loans shall have been declared or
shall have become due and payable, the Administrative Agent may exercise on
behalf of itself, the Banks, the Syndication Agent and the Documentation Agent,
in addition to other rights and remedies provided for herein or otherwise
available to it, all the rights of a secured party under the UCC and, in
addition, the Administrative Agent may, without being required to give any
notice, except as herein provided or as may be required by mandatory provisions
of law, sell the Collateral or any part thereof at public or private sale, for
cash, upon credit or for future delivery, and at such price or prices as the
Administrative Agent may deem satisfactory, subject to compliance with mandatory
provisions of law.
(b) Any Bank or any Holder of Obligations may be the purchaser
of any or all of the Collateral so sold at any sale and thereafter hold the
same, absolutely, free from any right or claim of whatsoever kind.
(c) The Pledgor covenants and agrees that it will execute and
deliver such documents and take such other action as the Administrative Agent
deems necessary or advisable in order that any such sale may be made in
compliance with law. Upon any such sale the Administrative Agent shall have the
right to deliver, assign and transfer to the purchaser thereof the Collateral so
sold. Each purchaser at any such sale shall hold the Collateral so sold
absolutely, free from any
- 182 -
<PAGE>
claim or right of whatsoever kind, including, without limitation, any equity or
right of redemption of the Pledgor. The Pledgor, to the extent permitted by law,
hereby specifically waives all rights of redemption, stay or appraisal that it
has or may have under any law now existing or hereafter adopted. The
Administrative Agent agrees that, to the extent notice of sale is required by
law, it shall give the Pledgor ten days' written notice (which notice shall be
deemed to be commercially reasonable for purposes of the UCC) of its intention
to make any such public or private sale or other intended disposition of any of
the Collateral, except any Collateral that threatens to decline speedily in
value or is of a type customarily sold in a recognized market. Any such public
sale shall be held at such time or times within ordinary business hours and at
such place or places as the Administrative Agent may fix in the notice of such
sale. At any such public or private sale the Collateral may be sold in one lot
as an entirety or in separate parcels, as the Administrative Agent may
determine. The Administrative Agent shall not be obligated to make any such sale
pursuant to any such notice. The Administrative Agent may, without notice or
publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the
sale, and such sale may be made at any time or place to which the same may be so
adjourned. In case of any sale all or any part of the Collateral so sold may be
retained by the Administrative Agent until the selling price is paid by the
purchaser thereof, but the Administrative Agent shall not incur any liability in
case of the failure of such purchaser to take up and pay for the Collateral so
sold and, in case of any such failure, such Collateral may again be sold upon
like notice. The Administrative Agent, instead of exercising the power of sale
herein conferred upon it, may proceed by a suit or suits at law or in equity to
foreclose the Security Interests and sell the Collateral, or any portion
thereof, under a judgment of a court or courts of competent jurisdiction.
3.4 Consents.
--------
Upon the exercise by the Administrative Agent of any power, right,
privilege or remedy pursuant to the Credit Agreement, the Revolving Credit Notes
or the Related Documents or otherwise which requires any consent, approval,
registration, qualification or authorization of any Official Body, the Pledgor
will execute and deliver, or will cause the execution and delivery of, all
applications, certificates, instruments and other documents and papers that the
Administrative Agent may be required to obtain for such governmental consent,
approval, registration, qualification or authorization. Without limiting the
generality of the foregoing, the Pledgor will take all actions requested by the
Administrative Agent in order to obtain from the appropriate Official Body all
necessary consents and approvals (i) for the transfer of the Collateral to the
Administrative Agent upon the occurrence of an Event of Default, (ii) to
effectuate any sale or sales of the Collateral pursuant to this Article, and
(iii) for exercising any other right or remedy of the Administrative Agent under
this Agreement.
3.5 Administrative Agent May Perform.
--------------------------------
If the Pledgor fails to perform any agreement contained herein,
the Administrative Agent may itself perform, or cause performance of, such
agreement, and the reasonable expenses of the Administrative Agent, including,
without limitation, the reasonable fees and expenses of its
- 183 -
<PAGE>
counsel, incurred in connection therewith shall be payable by the Pledgor under
Section 4.1.
ARTICLE 4. MISCELLANEOUS
4.1 Expenses.
--------
The Pledgor shall forthwith upon demand pay to the Administrative
Agent:
(a) the amount of any taxes that the Administrative Agent,
the Syndication Agent, the Documentation Agent or any Bank may have
been required to pay:
(i) by reason of or in connection with the Security
Interests (including, without limitation, any applicable
stamp taxes or transfer taxes) or the execution and delivery
of this Agreement or
(ii) to free any of the Collateral from any Lien thereon,
and
(b) the amount of any out-of-pocket expenses, including,
without limitation, the reasonable fees and disbursements of counsel
and of any agent, that the Administrative Agent may incur in connection
with,
(i) the performance by the Administrative Agent of its
duties under this Agreement,
(ii) the collection, sale or other disposition of any of the
Collateral, including, without limitation, any expenses of registration of the
Collateral,
(iii) the exercise by the Administrative Agent of any of
the rights conferred upon it hereunder or
(iv) any default on the part of the Pledgor hereunder.
4.2 Holidays.
--------
Except as otherwise provided herein, whenever any payment or
action to be made or taken hereunder or with respect to the Collateral shall be
stated to be due on a day which is not a Business Day, such payment or action
shall be made or taken on the next following Business Day.
4.3 No Implied Waiver; Cumulative Remedies.
--------------------------------------
No course of dealing and no delay or failure of the Banks, the
Syndication Agent, the Documentation Agent or the Administrative Agent in
exercising any right, power or privilege under this Agreement or any other
documents or instruments pursuant to or in connection herewith shall affect any
other or future exercise thereof or exercise of any other right, power or
privilege; nor shall any single or partial exercise of any such right, power or
privilege or any abandonment or discontinuance of steps to enforce such a right,
power or privilege preclude any further exercise
- 184 -
<PAGE>
thereof or of any other right, power or privilege. The rights and remedies of
the Banks, the Syndication Agent, the Documentation Agent and the Administrative
Agent under this Agreement or any other documents or instruments pursuant to or
in connection herewith are cumulative and not exclusive of any rights or
remedies which the Banks, the Syndication Agent, the Documentation Agent or the
Administrative Agent would otherwise have.
4.4 Notices.
-------
All notices, requests, demands, directions and other
communications (collectively "notices") under the provisions of this Agreement
shall be given and deemed effective as provided in Section 9.5 of the Credit
Agreement.
4.5 Severability.
------------
The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
4.6 Governing Law.
-------------
This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without reference to
its choice of law principles.
4.7 Prior Understandings.
--------------------
This Agreement supersedes all prior understandings and
agreements, whether written or oral, among the parties hereto relating to the
transactions provided for herein.
4.8 Counterparts.
------------
This Agreement may be executed in any number of counterparts
and by the different parties hereto on separate counterparts each of which, when
so executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
4.9 Successors and Assigns.
----------------------
This Agreement shall be binding upon and inure to the benefit
of the Banks, the Pledgor, the Administrative Agent, the Syndication Agent, the
Documentation Agent and their respective successors and assigns, except that the
Pledgor may not assign or transfer any of its rights or obligations hereunder
without the prior written consent of the Banks. Except to the extent otherwise
required by the context of this Agreement, the word "Banks" where used in this
Agreement
- 185 -
<PAGE>
shall mean and include any holder of a Revolving Credit Note originally issued
to a Bank under the Credit Agreement, and each such holder of a Revolving Credit
Note shall be bound by and have the benefits of this Agreement to the same
extent as if such holder had been a signatory hereto.
- 186 -
<PAGE>
WITNESS the due execution hereof as of the day and year first above written.
COMMUNICATION CAPITAL CORP.
By:
-------------------------------------
Title:
----------------------------------
THE BANK OF NEW YORK, as
Administrative Agent
By:
-------------------------------------
Title:
----------------------------------
- 187 -
<PAGE>
COMMUNICATION CAPITAL CORP. EXHIBIT I
LIST OF CURRENT COMMITMENT AMOUNTS
----------------------------------
<TABLE>
<CAPTION>
Current
Lender Commitment Amount
- ------ -----------------
<S> <C>
The Bank of New York Company, Inc. $125,000,000.00
Credit Lyonnais New York Branch $125,000,000.00
Toronto Dominion (Texas), Inc. $125,000,000.00
Mellon Bank, N.A. $125,000,000.00
TOTAL $500,000,000.00
===============
</TABLE>
- 188 -
<PAGE>
COMMUNICATION CAPITAL CORP. EXHIBIT J
- ----------------------
FORM OF PAYMENT NOTICE
----------------------
Communication Capital Corp. (the "Borrower") hereby gives the following
--------
notice under the Revolving Credit Agreement, dated as of August 15, 1997, by and
among the Company, the Bank party thereto, The Bank of New York, as
Administrative Agent, Toronto Dominion (Texas), Inc., as Syndication Agent, and
Credit Lyonnais, as Documentation Agent:
NOTICE OF PAYDOWN:
Amount: $
------------------------
Effective Date of Paydown: / /
-- -- --
Interest Rate Option Being Repaid:
-------------------
Dated:
COMMUNICATION CAPITAL CORP.
By:
- --------- ----------------------
Title:
- --------- -------------------
- -------------------------
For Administrative Agent's Use
------------------------------
<TABLE>
<S> <C> <C>
PRIME RATE
- ---------
EURO-RATE
- ---------
Base Rate: + Spread = All in Rate
------------------------ -------------------------- ------------------
Amount: $
--------------------------------------------------------------------------------------------
Dates: From to
-------------------------------- -------------------------------
Number of days: Interest Due
------------------------------------- ---------------------------
PREPARED BY DATE TIME
-------------------------------- ------------ -----
APPROVED BY DATE TIME
-------------------------------- ------------ -----
CALLED TO BANK BY DATE TIME
----------------------------------- ------------ -----
NOTIFICATION GIVEN TO DATE TIME
---------------------------------------- ------------ -----
RATE CONFIRMATION GIVEN TO DATE TIME
----------------------------------- ------------ -----
RATE CONFIRMATION GIVEN BY DATE TIME
----------------------------------- ------------ -----
</TABLE>
- 189 -
<PAGE>
COMMUNICATION CAPITAL CORP. EXHIBIT K
FORM OF ASSIGNMENT AND ACCEPTANCE
---------------------------------
This Assignment and Acceptance Agreement (as amended, modified or
supplemented from time to time, this "Agreement") is made and entered into as of
---------
______________, by and between _____________ (the "Assignor") and _____________
--------
(the "Assignee").
--------
R E C I T A L S
- - - - - - - -
A. Reference is made to the Revolving Credit Agreement, dated as of
August 15, 1997, by and among COMMUNICATION CAPITAL CORP., the Banks party
thereto, THE BANK OF NEW YORK, as Administrative Agent, TORONTO DOMINION
(TEXAS), INC., as Syndication Agent, and CREDIT LYONNAIS, as Documentation Agent
(as amended, modified or supplemented from time to time, the "Credit
------
Agreement"). Words and terms defined in the Credit Agreement shall have the same
- ---------
meaning when used herein unless otherwise indicated herein.
B. Pursuant to the Credit Agreement, the Banks have agreed to extend
credit to the Borrower up to an aggregate principal amount equal to the Total
Current Commitment, as such amount may be reduced from time to time pursuant to
the Credit Agreement. The amount of the Assignor's Current Commitment is
specified in Item 1 of Schedule 1 hereto. The outstanding principal amount of
the Assignor's Loans is specified in Item 2 of Schedule 1 hereto.
C. The Assignor wishes to sell and assign to the Assignee, and the
Assignee wishes to purchase and assume from the Assignor, (i) the portion of the
Assignor's Commitment specified in Item 3 of Schedule 1 hereto which is
equivalent to the percentage specified in Item 4 of Schedule 1 of the Total
Current Commitment (the "Assigned Commitment"), and (ii) the portion of the
-------------------
Assignor's Loans specified in Item 5 of Schedule 1 hereto (the "Assigned
--------
Loans").
- -----
The parties agree as follows:
1. Assignment. Subject to the terms and conditions set forth herein and
----------
in the Credit Agreement, the Assignor hereby sells and assigns to the Assignee,
and the Assignee purchases and assumes from the Assignor, on the date set forth
above (the "Assignment Date"), (a) all right, title and interest of the Assignor
---------------
in and to the Assigned Loans and (b) all obligations of the Assignor under the
Credit Agreement, the Revolving Credit Notes and the Related Documents with
respect to the Assigned Commitment. As full consideration for the sale of the
Assigned Loans and the Assigned Commitment, the Assignee shall pay to the
Assignor on the Assignment Date the principal amount of the Assigned Loans (the
"Purchase Price").
--------------
2. Representation and Warranties. Each of the Assignor and the Assignee
-----------------------------
represents
- 190 -
<PAGE>
and warrants to the other that (a) it has full power and legal right to execute
and deliver this Agreement and to perform the provisions of this Agreement; (b)
the execution, delivery and performance of this Agreement have been authorized
by all action, corporate or otherwise, and do not violate any provisions of its
charter or by-laws or any contractual obligations or requirement of law binding
on it; and (c) this Agreement constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms.
3. Condition Precedent. The obligations of the Assignor and the
-------------------
Assignee hereunder shall be subject to the fulfillment of the condition that the
Assignor shall have (a) received payment in full of the Purchase Price, and (b)
complied with the other applicable provisions of Section 9.12 of the Credit
Agreement.
4. Notice of Assignment and Effective Time. The assignment and
---------------------------------------
assumption of the Assigned Loans and the Assigned Commitment shall not become
effective until (a) the Administrative Agent shall have received the processing
and recordation fee required to be paid pursuant to Section 9.12 of the Credit
Agreement, (b) the Administrative Agent shall have received this Agreement
executed by the Assignor and the Assignee, (c) the Administrative Agent shall
have recorded this Agreement, (d) the Borrower shall have received a copy of
this Agreement and consented to this Agreement if such consent is required under
Section 9.12 of the Credit Agreement, and (e) the Assignor shall have delivered
to the Borrower any Revolving Credit Note that shall be subject to such
assignment. From and after the date (the "Effective Date") on which the
--------------
Administrative Agent shall notify the Borrower and the Assignor that (a) - (e)
shall have occurred, the Assignee shall be deemed to be a party to the Credit
Agreement and, to the extent that rights and obligations thereunder shall have
been assigned to the Assignee, shall have the rights and obligations of a Bank
under the Credit Agreement. After the Effective Date, the Assignor hereby
instructs the Administrative Agent and the Borrower to make all payments with
respect to the Assigned Loans and the Assigned Commitment directly to the
Assignee at the applicable lending offices specified in Item 6 on Schedule 1
hereto; provided, however, that, prior to the Effective Date, the Borrower and
the Administrative Agent shall be entitled to continue to deal solely and
directly with the Assignor in connection with the interests so assigned. After
the Effective Date, (i) all interest and fees accrued from and after the
Assignment Date, and all principal and other amounts paid on or after the
Assignment Date, in each case that would otherwise be payable to the Assignor in
respect of the Assigned Loans and the Assigned Commitment shall be paid to the
Assignee (collectively, the "Assignee Payments"), and (ii) if the Assignor
-----------------
receives any payment on account of the Assignee Payments, the Assignor shall
promptly deliver such payment to the Assignee. After the Effective Date, (A) all
interest and fees accrued prior to the Assignment Date, and all principal and
other amounts paid prior to the Assignment Date, in each case that would be
payable to the Assignor in respect of the Assigned Loans and the Assigned
Commitment (collectively, the "Assignor Payments") shall be paid to the
-----------------
Assignor, and (B) if the Assignee receives any payment on account of the
Assignor Payments, the Assignee shall promptly deliver such payment to the
Assignor. The Assignee agrees to deliver to the Borrower and the Administrative
Agent such Internal Revenue Service forms as may be required to establish that
the Assignee is entitled to receive payments under the Credit Agreement, the
Revolving Credit Notes and the Related Documents without deduction or
withholding of tax.
5. Independent Investigation. The Assignee acknowledges that it is
-------------------------
purchasing the
- 191 -
<PAGE>
Assigned Loans and the Assigned Commitment from the Assignor totally without
recourse and, except as provided in Section 2 hereof, without representation or
warranty. The Assignee further acknowledges that it has made its own independent
investigation and credit evaluation of the Borrower in connection with its
purchase of the Assigned Loans and the Assigned Commitment. Except for the
representations or warranties set forth in Section 2, the Assignee acknowledges
that it is not relying on any representation or warranty of the Assignor,
expressed or implied, including, without limitation, any representation or
warranty relating to the legality, validity, genuineness, enforceability,
collectibility, interest rate, repayment schedule or accrual status of the
Assigned Loans or the Assigned Commitment, the legality, validity, genuineness
or enforceability of the Credit Agreement, any Revolving Credit Note or any
Replacement Document, or financial condition or creditworthiness of the
Borrower. The Assignor has not and will not be acting as either the
representative, agent or trustee of the Assignee with respect to matters arising
out of or relating to the Credit Agreement, the Revolving Credit Notes, the
Related Documents or this Agreement. From and after the Effective Date, except
as set forth in paragraph 4 above, the Assignor shall have no rights or
obligations with respect to the Assigned Loans or the Assigned Commitment.
6. Pledge Agreements. Notwithstanding anything to the contrary contained
-----------------
herein or in the Credit Agreement, any Revolving Credit Note or any Related
Document, the Assignee agrees that, at all times on and after the Assignment
Date, it shall be bound by Section 5.10 of the Borrower Pledge Agreement,
Section 10.13 of the Parent Agreement and Section 10.13 of each Parent
Subsidiary Agreement.
7. Method of Payment. All payments to be made by either party hereunder
-----------------
shall be in funds available at the place of payment on the same day and shall be
made by wire transfer to the account designated by the party to receive payment.
8. Integration. This Agreement shall supersede any prior agreement or
-----------
understanding between the parties (other than the Credit Agreement, the
Revolving Credit Notes and the Related Documents) as to the subject matter
hereof.
9. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed to be an original and shall be
binding upon both parties, their successors and assigns.
10. Governing Law. This Agreement shall be governed by, and construed in
-------------
accordance with the laws of, the State of New York.
[ASSIGNOR]
By:
-------------------------------------
- ------
- 192 -
<PAGE>
Name:
-----------------------------------
- ------
[ASSIGNOR]
By:
-------------------------------------
- ------
Name:
-----------------------------------
- ------
RECORDED:
THE BANK OF NEW YORK, as
Administrative Agent
By:
---------------------------
Name:
-------------------------
[CONSENTED TO (IF REQUIRED):
COMMUNICATION CAPITAL CORP.
By:
---------------------------
Name:
-------------------------
- 193 -
<PAGE>
SCHEDULE 1
TO
ASSIGNMENT AND ACCEPTANCE AGREEMENT
relating to
Credit Agreement,
by and among,
COMMUNICATION CAPITAL CORP.,
the Banks party thereto,
THE BANK OF NEW YORK, as Administrative Agent,
TORONTO DOMINION (TEXAS), INC., as Syndication Agent,
and
CREDIT LYONNAIS, as Documentation Agent,
dated as of August 15, 1997
Item 1. Assignor's Commitment: $
-------------
- -------
Item 2. Assignor's Loans:
Base Rate Loans $
-------------
- -------
- -------
Euro-Rate Loans $
-------------
Item 3. Amount of Assigned Commitment: $
-------------
- -------
Item 4. Percentage of Commitment Assigned: %
--------
Item 5. Amount of Assigned Loans:
Base Rate Loans $
-------------
- -------
- 194 -
<PAGE>
Euro-Rate Loans $
-----------
- 195 -
<PAGE>
Item 6. Applicable Lending Offices
of Assignee and Address for
Notices pursuant to Section
9.5 of the Credit Agreement
Applicable
Lending Applicable
Office for Lending Office
Base Rate for Euro-Rate Address
Loans Loans for Notices
- ---------- --------------- -----------
- ---------------------- ---------------
- ----------------------
- ---------------------- ---------------
- ----------------------
Attention: Attention: Attention:
Telephone: Telephone: Telephone:
Facsimile: Facsimile: Facsimile:
- 196 -
<PAGE>
Notes to Schedule 1
-------------------
1. Insert the dollar amounts of Assignor's Commitment prior to
assignment.
2. Insert the outstanding principal amounts of the Assignor's
Loans prior to assignment, showing a breakdown by type.
3. Insert the dollar amount of the Assignor's Commitment being
assigned.
4. Insert the percentage of the Assignor's Commitment being
assigned as to the Total Current Commitment.
5. Insert the outstanding principal amount of the Assignor's
Loans. Description of the type of Loans should be consistent with Item 2.
6. Insert the name and address of the applicable lending offices
and the office for purposes of receiving notices of the Assignee.
- 197 -
