<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _____ to _____
Commission File Number 0-26264
TELE-COMMUNICATIONS INTERNATIONAL, INC.
------------------------------------------------------
(Exact name of Registrant as specified in its charter)
State of Delaware 84-1289408
------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
5619 DTC Parkway
Englewood, Colorado 80111
---------------------------------------- ---------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (303) 267-5500
Indicate by check mark whether the Registrant (1) filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
Registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
------- -------
The number of shares outstanding of Tele-Communications International,
Inc.'s common stock (net of shares held in treasury) as of April 30, 1997, was:
Series A common stock - 103,590,873 shares; and
Series B common stock - 11,700,000 shares.
<PAGE> 2
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Consolidated Balance Sheets
(unaudited)
<TABLE>
<CAPTION>
March 31, December 31,
1997 1996
---------- ------------
Assets amounts in thousands
<S> <C> <C>
Cash and cash equivalents (note 2) $ 6,882 44,192
Trade and other receivables, net 8,533 38,185
Film inventory and other prepaid expenses 4,951 65,749
Investment in Telewest Communications plc ("Telewest") (note 5) 426,810 488,495
Investment in other affiliates, accounted for
under the equity method, and related
receivables (note 6) 372,719 421,853
Other investments (note 7) 20,746 20,873
Property and equipment, at cost:
Land 277 277
Distribution systems 226,042 216,172
Support equipment and buildings 25,457 51,111
---------- ----------
251,776 267,560
Less accumulated depreciation 64,369 65,033
---------- ----------
187,407 202,527
---------- ----------
Franchise costs and other intangible assets 687,138 755,914
Less accumulated amortization 61,407 61,576
---------- ----------
625,731 694,338
---------- ----------
Deferred financing costs and other assets,
net of amortization 13,982 13,089
---------- ----------
$1,667,761 1,989,301
========== ==========
</TABLE>
(continued)
I-1
<PAGE> 3
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Consolidated Balance Sheets, continued
(unaudited)
<TABLE>
<CAPTION>
March 31, December 31,
1997 1996
----------- -----------
Liabilities and Stockholders' Equity amounts in thousands,
except share amounts
<S> <C> <C>
Accounts payable $ 13,970 35,467
Accrued liabilities 49,132 75,173
MultiThematiques Obligation (note 6) 27,044 47,902
Debt (note 8) 490,466 511,128
Deferred income tax liability 141,250 193,748
Other liabilities 3,607 17,698
----------- -----------
Total liabilities 725,469 881,116
----------- -----------
Minority interests in equity of subsidiaries -- 142,187
----------- -----------
Stockholders' equity:
Preferred stock, $.01 par value
Authorized 10,000,000 shares; none issued -- --
Series A Common Stock, $1 par value
Authorized 300,000,000 shares, issued
106,960,873 shares in 1997 and 1996 106,961 106,961
Series B Common Stock, $1 par value
Authorized 12,000,000 shares, issued
11,700,000 shares in 1997 and 1996 11,700 11,700
Additional paid-in capital 1,186,788 1,186,788
Accumulated deficit (238,911) (205,456)
Cumulative foreign currency translation
adjustments 4,817 26,146
Unrealized holding gains for available-
for-sale securities 397 --
----------- -----------
1,071,752 1,126,139
Treasury stock, at cost, 492,000 shares of Series A Common
Stock in 1997 (6,798) --
Due from Tele-Communications, Inc.
("TCI") (note 9) (122,662) (160,141)
----------- -----------
Total stockholders' equity 942,292 965,998
----------- -----------
Commitments and contingencies
(notes 4, 6, 8, 9, 10 and 11)
$ 1,667,761 1,989,301
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
I-2
<PAGE> 4
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Consolidated Statements of Operations
(unaudited)
<TABLE>
<CAPTION>
Three months ended
March 31,
--------------------------
1997 1996
----------- -----------
amounts in thousands,
except per share amounts
Revenue:
<S> <C> <C>
Cable $ 65,611 49,531
Programming -- 13,093
----------- -----------
65,611 62,624
----------- -----------
Operating costs and expenses:
Cable (note 9) 37,685 28,347
Programming -- 15,435
General and administrative:
Allocated from TCI (note 9) 416 719
Other 2,412 1,739
Stock compensation:
Allocated from TCI (note 9) (60) (909)
Other 26 471
Depreciation and amortization 15,713 12,126
----------- -----------
56,192 57,928
----------- -----------
Operating income 9,419 4,696
Other income (expense):
Share of losses of Telewest (note 5) (41,708) (30,597)
Share of losses of other affiliates (note 6) (22,446) (17,965)
Interest expense:
TCI (note 9) (580) (188)
Other (8,858) (8,215)
Interest income:
TCI (note 9) 2,446 2,214
Other 716 2,953
Minority interests' share of losses -- 4,208
Foreign currency transaction gains 1,395 1,304
Other, net (144) 4,440
----------- -----------
(69,179) (41,846)
----------- -----------
Loss before income taxes (59,760) (37,150)
Income tax benefit 26,305 10,739
----------- -----------
Net loss $ (33,455) (26,411)
=========== ===========
Net loss per common share (note 1) $ (.28) (.22)
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
I-3
<PAGE> 5
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Consolidated Statement of Stockholders' Equity
(unaudited)
<TABLE>
<CAPTION>
Common Stock Additional
Preferred ------------------- paid-in
stock Series A Series B capital
--------- -------- -------- ----------
amounts in thousands
<S> <C> <C> <C> <C>
Balance at January 1, 1997 $-- 106,961 11,700 1,186,788
Net loss -- -- -- --
Open market
repurchases of
common stock -- -- -- --
Foreign currency
translation
adjustment -- -- -- --
Unrealized
holding gains
for
available-for-sale
securities -- -- -- --
Change in due
from TCI (note 9) -- -- -- --
----- --------- --------- ---------
Balance at March 31, 1997 $-- 106,961 11,700 1,186,788
===== ========= ========= =========
<CAPTION>
Unrealized
Cumulative holdings
foreign gains for
currency available-
translation for-sale Total
Accumulated adjustment, securities, Treasury stock, Due from stockholders'
deficit net of taxes net of taxes at cost TCI equity
----------- ------------ ------------ --------------- --------- -------------
amounts in thousands
<S> <C> <C> <C> <C> <C> <C>
Balance at January 1, 1997 (205,456) 26,146 -- -- (160,141) 965,998
Net loss (33,455) -- -- -- -- (33,455)
Open market
repurchases of
common stock -- -- -- (6,798) -- (6,798)
Foreign currency
translation
adjustment -- (21,329) -- -- -- (21,329)
Unrealized
holding gains for
available-for-sale
securities -- -- 397 -- -- 397
Change in due
from TCI (note 9) -- -- -- -- 37,479 37,479
----------- ----------- ----------- ----------- ----------- -----------
Balance at March 31, 1997 (238,911) 4,817 397 (6,798) (122,662) 942,292
=========== =========== =========== =========== =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
I-4
<PAGE> 6
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Consolidated Statements of Cash Flows
(unaudited)
<TABLE>
<CAPTION>
Three months ended
March 31,
--------------------------
1997 1996
----------- -----------
amounts in thousands
(see note 2)
<S> <C> <C>
Cash flows from operating activities:
Net loss $ (33,455) (26,411)
Adjustments to reconcile net loss to net cash
provided by (used in) operating activities:
Depreciation and amortization 15,713 12,126
Stock compensation (34) (438)
Share of losses of Telewest 41,708 30,597
Share of losses of other affiliates 22,446 17,965
Minority interests' share of losses -- (4,208)
Unrealized foreign currency transaction gains (2,653) (1,304)
Accretion of discount on MultiThematiques obligation 966 1,595
Deferred income tax benefit (27,099) (14,236)
Intercompany current federal income tax benefit (3,586) --
Changes in operating assets and liabilities, net of the effect of the
deconsolidation of Flextech p.l.c.:
Change in receivables 1,869 (1,020)
Change in film inventory and other prepaid expenses (1,356) (5,937)
Change in payables, accruals, other liabilities and the cash
intercompany account included
in due from TCI (4,207) (12,510)
----------- -----------
Net cash provided by (used in) operating activities $ 10,312 (3,781)
----------- -----------
</TABLE>
(continued)
I-5
<PAGE> 7
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Consolidated Statements of Cash Flows, continued
(unaudited)
<TABLE>
<CAPTION>
Three months ended
March 31,
--------------------------
1997 1996
----------- -----------
amounts in thousands
(see note 2)
<S> <C>
Cash flows from investing activities:
Effect of the deconsolidation of Flextech p.l.c. cash and cash equivalents $ (38,142) --
Investments in and loans to affiliates and others (11,699) (19,371)
Capital expended for property and equipment (12,875) (8,991)
Repayments received on loans to affiliates 12,662 --
Cash paid to purchase minority interests -- (4,296)
Other, net 6,418 2,940
----------- -----------
Net cash used in investing activities (43,636) (29,718)
----------- -----------
Cash flows from financing activities:
Borrowings of debt 29,872 17,387
Repayments of debt (69,070) (38,182)
Open market repurchases of common stock (6,798) --
Issuance of debentures -- 345,000
Loan to TCI -- (336,375)
Repayments received on loan to TCI 42,010 --
Payment of deferred financing costs -- (9,495)
Contributions from minority interest owners -- 2,235
----------- -----------
Net cash used in financing activities (3,986) (19,430)
----------- -----------
Effect of exchange rate changes on cash and cash equivalents -- (1,329)
----------- -----------
Net decrease in cash and
cash equivalents (37,310) (54,258)
Cash and cash equivalents:
Beginning of period 44,192 133,109
----------- -----------
End of period $ 6,882 78,851
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
I-6
<PAGE> 8
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
March 31, 1997
(unaudited)
(1) Basis of Presentation
Tele-Communications International, Inc. ("TINTA" or the "Company"), a
majority-owned subsidiary of TCI, operates multi-channel video and
telecommunications distribution networks in, and provides diversified
programming services to, selected markets outside the United States.
Unless the context indicates otherwise, references to "TCI" herein are
to TCI and its consolidated subsidiaries (other than the Company).
On July 18, 1995, TINTA completed its initial public offering (the
"IPO"), in which 20,000,000 shares of Series A Common Stock, $1 par
value per share ("Series A Common Stock") were sold to the public. At
March 31, 1997, TCI owned approximately 83% of the aggregate issued
and outstanding common stock of TINTA and 91% of the aggregate voting
interest represented by such issued and outstanding stock.
The net loss per share set forth in the accompanying consolidated
statements of operations for the three months ended March 31, 1997 and
1996 was computed using historical losses and a weighted average
number of common shares of 118.5 million and 118.2 million,
respectively. Common stock equivalents were not included in the
weighted average common shares outstanding because their inclusion
would be anti-dilutive.
During the three months ended March 31, 1997 and 1996, the most
significant entities that were reflected in the Company's consolidated
financial statements on a consolidated basis were engaged in the
multi-channel video distribution business (the "cable" business) in
Puerto Rico (the "Consolidated Puerto Rico Entities"), and in Buenos
Aires, Argentina through Cablevision S.A. and certain affiliated
companies ("Cablevision"). Additionally, Flextech p.l.c., a company
engaged in the distribution and production of programming for
multi-channel video distribution systems (the "programming business")
in the UK and other parts of Europe, was included in the Company's
consolidated financial statements on a consolidated basis through
December 31, 1996. As described below, the Company, effective January
1, 1997, discontinued using the consolidation method to account for
the Company's ownership interest in Flextech p.l.c.
(continued)
I-7
<PAGE> 9
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
During the first quarter of 1997, the Company's three Consolidated
Puerto Rico Entities were merged together into one surviving entity
(the "Puerto Rico Subsidiary"). For purposes of this discussion, except
to the extent the context otherwise requires, the term the "Puerto Rico
Subsidiary" refers to the Consolidated Puerto Rico Entities prior to
such merger and the Puerto Rico Subsidiary following such merger.
The Company's ownership interest in the issued and outstanding share
capital of Flextech p.l.c (together with its consolidated subsidiaries,
"Flextech") was 48.8% during the three months ended March 31, 1996,
46.2% from April 1996 through April 1997, and 35.9% from April 1997 to
the present. The Company's voting interest in Flextech was 50.6% during
1996 and approximately 50% from January 1997 to the present. See below
and notes 6 and 11.
In January 1997, the Company reduced its voting interest in Flextech to
50% by issuing to a nominee an irrevocable proxy (the "Proxy") to vote
960,850 Flextech ordinary shares ("Flextech Ordinary Shares") at any
shareholder meeting to be held through December 31, 1997. In April
1997, Flextech and BBC Worldwide Limited ("BBC Worldwide") formed two
separate joint ventures (the "BBC Joint Ventures") and entered into
certain related transactions. The consummation of the BBC Joint
Ventures and related transactions resulted in, among other things, a
reduction of TINTA's ownership interest in Flextech to 35.9% and the
issuance to TINTA by Flextech of a special voting share (the "Special
Voting Share"). The Special Voting Share when combined with TINTA's
other share capital in Flextech, allows TINTA to cast 50% of the votes
on most matters brought to the shareholders of Flextech for vote. So
long as the Proxy remains outstanding, TINTA's 50% voting interest will
be reduced by the 960,850 votes represented by the Proxy. The Special
Voting Share will terminate upon the occurrence of the earlier of (i)
the third anniversary of issuance or (ii) any transfer of Flextech
shares by the Company outside a specified affiliated group. In light of
the Company's decreased voting interest in Flextech, as described
above, the Company, effective January 1, 1997, ceased to consolidate
Flextech and began to account for Flextech using the equity method of
accounting. See notes 6 and 11.
As further described in note 9, the accompanying consolidated
statements of operations separately present certain allocated corporate
expenses of TCI. Although such allocated corporate expenses are not
necessarily indicative of the costs that would have been incurred by
the Company on a stand-alone basis, management believes the allocated
amounts are reasonable.
The accompanying interim consolidated financial statements are
unaudited but, in the opinion of management, reflect all adjustments
(consisting of normal recurring accruals) necessary for a fair
presentation of the results of such periods. The results of operations
for any interim period are not necessarily indicative of results for
the full year. These unaudited interim consolidated financial
statements should be read in conjunction with the Company's December
31, 1996 audited financial statements and notes thereto.
(continued)
I-8
<PAGE> 10
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
The Financial Accounting Standards Board recently issued Statement of
Financial Accounting Standards No. 128, "Earnings Per Share"
("Statement No. 128"). Statement No. 128 requires the presentation of
basic earnings per share ("EPS") and, for companies with potentially
dilutive securities, such as convertible debt, options and warrants,
diluted EPS. Statement No. 128 is effective for annual and interim
periods ending after December 31, 1997. The Company does not expect
that Statement No. 128 will have a material impact on the calculation
of the Company's loss per share.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates
and assumptions that affect the reported amounts of assets and
liabilities at the date of the financial statements and the reported
amounts of revenue and expenses during the reporting period. Actual
results could differ from those estimates.
Certain prior year amounts have been reclassified to conform to the
1997 presentation.
Unless otherwise indicated, convenience translations of foreign
currencies into U.S. dollars are calculated using the applicable spot
rate at March 31, 1997.
(2) Supplemental Disclosures to Consolidated Statements of Cash Flows
The Company's cash and cash equivalents are as follows (amounts in
thousands):
<TABLE>
<CAPTION>
March 31, December 31,
Denomination 1997 1996
--------------- ----------- -----------
<S> <C> <C> <C>
TINTA U.S. dollars $ 4,262 3,341
Subsidiaries:
Cablevision (a) Argentine pesos 2,620 2,618
Flextech (b) UK pounds -- 38,233
Puerto Rico Subsidiary U.S. dollars -- --
----------- -----------
$ 6,882 44,192
=========== ===========
</TABLE>
(a) The cash and cash equivalent balances of Cablevision are
available to be applied toward the liquidity requirements of
Cablevision, and it is not anticipated that any significant
portion of such cash balances will be distributed or
otherwise made available to TINTA.
(b) Effective January 1, 1997, the Company ceased to consolidate
Flextech and began accounting for Flextech using the equity
method of accounting. See note 1.
Cash paid for interest was $10.6 million and $4.7 million during the
three months ended March 31, 1997 and 1996, respectively. Cash paid
for income taxes was $1.7 million during the three months ended March
31, 1997. Cash paid for income taxes was not material during the three
months ended March 31, 1996.
(continued)
I-9
<PAGE> 11
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
The non-cash effects of changing the method of accounting for the
Company's ownership interest in Flextech from the consolidation method
to the equity method are summarized below (amounts in thousands):
<TABLE>
<S> <C>
Assets reclassified to equity investments $ 177,003
Liabilities reclassified to equity investments (72,512)
Minority interests in equity of subsidiaries reclassified to
equity investments (142,633)
-----------
Decrease in cash and cash equivalents $ (38,142)
===========
</TABLE>
For a description of certain other non-cash activities, see notes 3
and 11.
(3) Acquisitions
On October 1, 1996, Cablevision acquired 99.99% of the issued and
outstanding capital stock of Oeste Cable Color S.A. ("OCC"), a cable
television operation in the west of the greater Buenos Aires
metropolitan area, for a purchase price of $112.2 million (the "OCC
Acquisition"). Cash consideration of $43.7 million was paid at closing
and an additional cash payment of $22.1 million was paid on December
1, 1996. Cablevision incurred additional bank debt of approximately
$45 million in order to fund such cash payments. The remaining
purchase price was satisfied by Cablevision's issuance of $46.4
million principal amount of secured negotiable promissory notes (the
"OCC Notes"). See note 8.
(4) Cablevision
On April 25, 1995, the Company acquired a 51% ownership interest in
Cablevision. None of Cablevision's post-acquisition operating results
have been allocated to Cablevision's 49% minority interest because (i)
the minority interest has no obligation to provide any funding to
Cablevision and (ii) Cablevision's liabilities exceeded the minority
interest's historical cost basis in Cablevision's assets at March 31,
1997. To the extent that Cablevision's post-acquisition net earnings
(exclusive of the effects of purchase accounting) cause the minority
interest's historical cost basis in Cablevision's net assets to become
positive, the Company would begin to allocate 49% of such net earnings
to the minority interest. If the minority interest's historical cost
basis had been positive during the three months ended March 31, 1997
and 1996, the Company would have allocated $3.5 million and $5.3
million, respectively, of Cablevision's net earnings (exclusive of the
effect of purchase accounting) to the minority interest.
(continued)
I-10
<PAGE> 12
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
On March 10, 1997, the Company announced that it had signed a
Memorandum of Understanding (the "Cablevision MOU") that contemplates
the Company's purchase of additional equity interests in Cablevision
such that the Company's ownership interest in Cablevision would be
increased from 51% to up to 90% (the "Cablevision Minority Interest
Purchase"). The Cablevision MOU provides that each party's obligations
are subject to approval by TINTA's Board of Directors, due diligence
and execution of definitive agreements. The parties are in the process
of negotiating the terms of the definitive agreements. There can be no
assurance that the parties will reach agreement on the terms of the
definitive agreements. Additionally, the purchase price contemplated by
the Cablevision MOU is significant and the Company would need to
arrange for financing before the Cablevision Minority Interest Purchase
could be consummated.
(5) Investment in Telewest
At March 31, 1997, the Company indirectly owned, through its 50%
ownership interest in TW Holdings, Inc., 132,638,250 or 26.7% of the
issued and outstanding non-voting Telewest convertible preference
shares and 246,111,750 or 26.5% (assuming no conversion of the
Telewest convertible preference shares) of the issued and outstanding
Telewest ordinary shares. On March 31, 1997, the reported closing
price on the London Stock Exchange of Telewest's ordinary shares was
(pound)1.09 ($1.79).
On October 3, 1995, the merger of Telewest's predecessor ("Old
Telewest") and SBC CableComms (UK) ("SBCC") was consummated whereby a
new entity, Telewest (formerly Telewest plc), acquired all of the
outstanding share capital of Old Telewest and SBCC (the "SBCC
Transaction"). In connection with the SBCC Transaction, Telewest
issued U.S. dollar denominated senior debentures having an aggregate
principal amount at maturity of $1.8 billion (the "Telewest
Debentures"). As a result of such issuance, changes in the exchange
rate used to translate the U.S. dollar into the UK pound sterling will
cause Telewest to experience realized and unrealized foreign currency
transaction gains and losses throughout the term of the Telewest
Debentures, which mature in 2006 and 2007, if not redeemed earlier.
During the three months ended March 31, 1997 and 1996, Telewest
experienced foreign currency transaction losses of (pound)24.1 million
($40.5 million using the applicable exchange rate) and
(pound)16.7 million ($25.6 million using the applicable exchange rate),
respectively, resulting from the translation of the Telewest
Debentures into UK pounds sterling and the adjustment of a foreign
currency option contract to market value.
The functional currency of Telewest is the UK pound sterling. The
average exchange rate used to translate the Company's share of
Telewest's operating results from UK pounds to U.S. dollars was 1.6459
to 1 and 1.5362 to 1 during the three months ended March 31, 1997 and
1996, respectively. The spot rate used to translate the Company's
share of Telewest's net assets from UK pounds to U.S. dollars was
1.6395 to 1 and 1.7125 to 1 at March 31, 1997 and December 31, 1996,
respectively.
(continued)
I-11
<PAGE> 13
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
Summarized unaudited results of operations of Telewest are as follows
(amounts in thousands):
<TABLE>
<CAPTION>
Three months ended
March 31,
--------------------------
1997 1996
----------- -----------
<S> <C> <C>
Revenue $ 147,876 100,099
Operating, selling, general and
administrative expenses (135,983) (105,856)
Depreciation and amortization (72,014) (49,940)
----------- -----------
Operating loss (60,121) (55,697)
Share of losses of affiliates (8,144) (5,464)
Interest expense, net (45,656) (26,376)
Foreign currency transaction loss (40,525) (25,602)
Other, net (126) 2
----------- -----------
Net loss $ (154,572) (113,137)
=========== ===========
</TABLE>
(6) Investments in Other Affiliates
The Company's affiliates other than Telewest that are accounted for
using the equity method (the "Other Affiliates") generally are engaged
in the cable and/or programming businesses in various foreign
countries. Most of the Other Affiliates have incurred net losses since
their respective inception dates. As such, substantially all of the
Other Affiliates are dependent upon external sources of financing and
capital contributions in order to meet their respective liquidity
requirements.
The Company is contractually obligated to make further loans to or
investments in certain of the Other Affiliates. At March 31, 1997, the
aggregate U.S. dollar equivalent of the unfunded portion of such
commitments was $8.0 million.
The Company and/or other subsidiaries of TCI have guaranteed notes
payable and other obligations of certain of the Other Affiliates (the
"Guaranteed Obligations"). At March 31, 1997, the U.S. dollar
equivalent of the amounts borrowed pursuant to the Guaranteed
Obligations aggregated $16.6 million. See note 9.
Certain of the Other Affiliates are general partnerships and any
subsidiary of the Company that is a general partner in a general
partnership could be liable, depending upon the applicable partnership
law, for all debts of that partnership to the extent liabilities of
that partnership were to exceed its assets.
(continued)
I-12
<PAGE> 14
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
Agreements governing the Company's investment in certain of the Other
Affiliates contain (i) buy-sell and other exit arrangements whereby
the Company could be required to purchase another investor's ownership
interest and (ii) performance guarantees whereby the Company and/or
other subsidiaries of TCI have guaranteed the performance of the
Company's subsidiary that directly holds the related investment. See
note 9.
The following table reflects the Company's carrying value (including
receivables) of the Other Affiliates (amounts in thousands):
<TABLE>
<CAPTION>
Carrying value
--------------------------
March 31, December 31,
1997 1996
----------- -----------
<S> <C> <C>
Flextech (a) $ 114,544 --
Flextech Affiliates (b) -- 129,563
MultiThematiques S.A
("MultiThematiques") (c) 79,289 84,007
Liberty/TINTA LLC (d) 60,009 63,227
Jupiter Telecommunications Co.,
Ltd. ("Jupiter") (e) 39,200 47,251
Bresnan International Partners
(Poland), L.P. ("BIP
Poland") (f) 27,848 27,951
Bresnan International Partners
(Chile), L.P. ("BIP Chile") (g) 20,993 34,408
United International Investments 24,449 25,598
Asia Business News (Singapore) PTE
Ltd 8,879 9,556
Other (2,492) 292
----------- -----------
$ 372,719 421,853
=========== ===========
</TABLE>
(a) Flextech
At March 31, 1997, the Company owned 56,340,598 Flextech
Ordinary Shares representing 46.2% of the issued and
outstanding Flextech share capital and, when combined with the
Special Voting Share owned by TINTA, approximately 50% of the
aggregate voting interests attributable to such Flextech share
capital. Based upon the (pound)6.22 ($10.20) per share closing
price of the Flextech Ordinary Shares on the London Stock
Exchange, the Flextech Ordinary Shares owned by the Company
had an aggregate market value of (pound)350.4 million ($574.5
million) at March 31, 1997. As described in note 1, the
Company, effective January 1, 1997, ceased to consolidate
Flextech and began to account for Flextech using the equity
method of accounting. See also note 11.
(continued)
I-13
<PAGE> 15
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
On April 22, 1996, Flextech acquired from International
Family Entertainment, Inc. ("IFE") (i) the 61% ownership
interest in Maidstone Broadcasting (formerly the
International Family Channel UK) ("Maidstone"), which
Flextech did not already own and (ii) a 100% ownership
interest in TVS Television Limited. Excluding liabilities
assumed, the total consideration paid by Flextech to acquire
such ownership interests was (pound)31.4 million ($47.8
million using the applicable exchange rate), of which
(pound)3.0 million ($4.5 million using the applicable
exchange rate) was paid in cash and the remaining balance was
satisfied by Flextech's issuance of 5,792,008 convertible
non-preference shares (the "IFE Consideration Shares"). In
connection with the above-described transactions
(collectively, the "IFE Acquisitions"), TINTA granted to IFE
the right to put the IFE Consideration Shares to TINTA under
certain circumstances. See note 10. As a result of the IFE
Acquisitions, the Company's ownership interest in Flextech's
issued and outstanding share capital decreased from 48.8% to
46.2%. Due primarily to the Company's contingent purchase
obligations under the above-described put option, the Company
recognized no gain in connection with the dilution of the
Company's ownership interest in Flextech that resulted from
the issuance of the IFE Consideration Shares. Accordingly,
the full value ascribed to the IFE Consideration Shares was
reflected as a component of "Minority interests in equity of
subsidiaries" as set forth in the accompanying consolidated
balance sheets.
(continued)
I-14
<PAGE> 16
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
On April 10, 1996, Flextech made an initial capital
contribution of (pound)525,000 ($861,000) and assumed certain
liabilities in connection with the acquisition of an indirect
controlling interest in the "infomercial" business of HSN
Direct International Limited ("HSN Direct") from the Home
Shopping Network, Inc. and certain individuals (the "HSN
Acquisition"). In connection with the HSN Acquisition,
Flextech loaned $4.9 million to HSN Direct. In exchange for
assuming 20% of Flextech's initial capital contribution and
the amounts loaned to HSN Direct, TINTA acquired a 20%
indirect ownership interest in the acquired business. TINTA
paid $2.2 million to Flextech for 20% of Flextech's interest
in the acquired business. As a result, Flextech owns 63% and
TINTA owns 15.7% of HSN Direct.
On June 5, 1995, Flextech issued an aggregate of 17,504,155
newly issued Flextech Ordinary Shares and 4,675,082 newly
issued convertible non-preference shares ("Flextech
Non-Preference Shares") to subsidiaries of Hallmark Cards
Incorporated ("Hallmark") (the "Hallmark Subscription") and U
S WEST, Inc. ("U S WEST") (the "U S WEST Subscription"). The
Hallmark Subscription and the U S WEST Subscription are
collectively referred to herein as the "Flextech
Transactions." Under certain circumstances, the Hallmark and
U S WEST subsidiaries have the right to require TINTA to
purchase the interests in Flextech acquired by such entities
pursuant to the Flextech Transactions. See note 10.
(b) Flextech Affiliates
Due to the January 1, 1997 deconsolidation of Flextech
described in note 1, Flextech's equity method affiliates
(the "Flextech Affiliates") are no longer included with the
Other Affiliates. See also note 11.
(continued)
I-15
<PAGE> 17
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
At December 31, 1996, the Flextech Affiliates were comprised
of European Business News Partners (30%-owned by Flextech),
HIT Entertainment PLC (23%-owned by Flextech), Preview
Investments B.V. (33%-owned by Flextech), Scottish Television
plc (20%-owned by Flextech), UK Gold Television Limited
("UKGL") (25%-owned by Flextech) and UK Living Limited
("UKLL") (31%-owned by Flextech). In April 1996, Flextech
acquired the 61% interest in Maidstone which Flextech did not
already own. Prior to such acquisition, the "Flextech
Affiliates" also included Flextech's 39% interest in
Maidstone. In connection with the April 1997 formation of the
BBC Joint Ventures, Flextech acquired all of the equity share
capital of UKGL and UKLL (75% and 68.75%, respectively) that
Flextech did not already own.
(c) MultiThematiques
On December 13, 1995, TINTA invested 123.1 million French
francs ("FF") ($24.7 million at the applicable exchange rate)
in MultiThematiques, a newly formed European programming
company that is one-third-owned by each of the Company and
two French media companies, CANAL + S.A. ("Canal +") and
Generale d'Images S.A. ("GDI") (the "MultiThematiques
Transaction"). In addition, TINTA contributed to
MultiThematiques FF105.0 million ($20.4 million at the
applicable exchange rate) and FF100.0 million ($19.5 million
at the applicable exchange rate) on December 13, 1996 and
February 13, 1997, respectively. TINTA also has agreed to
contribute FF164.0 million ($29.1 million) no later than
December 13, 1997.
Whereas Canal + and GDI are not required to make additional
contributions on a pro rata basis, TINTA's obligation to make
the above-described additional FF369.1 million ($65.4 million)
contributions was viewed as additional consideration to be
paid by TINTA to acquire its one-third interest in
MultiThematiques. Accordingly, the U.S. dollar equivalent of
the estimated net present value of such contributions (using a
discount rate of 10%) has been reflected as a liability (the
"MultiThematiques Obligation") in the accompanying
consolidated balance sheets. As the MultiThematiques
Obligation is denominated in French francs, the Company will
experience realized and unrealized foreign currency
transaction gains and losses with respect to the
MultiThematiques Obligation. During the three months ended
March 31, 1997 and 1996, the Company experienced unrealized
foreign currency transaction gains of $4.2 million and $1.7
million, respectively, with respect to the MultiThematiques
Obligation. In addition, during the three months ended March
31, 1997, the Company recognized a realized foreign currency
transaction loss of $2.0 million in connection with the
February 1997 payment under the MultiThematiques Obligation.
In order to manage the Company's foreign exchange risk with
respect to its December 13, 1997 contribution obligation, the
Company entered into a forward currency contract that allows
the Company to purchase FF164.0 million at a price of
FF5.5367 per U.S. dollar through December 13, 1997.
(continued)
I-16
<PAGE> 18
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
(d) Liberty/TINTA LLC
Effective April 29, 1996, TINTA, Liberty Media Corporation
("Liberty") and News Corporation Limited ("News Corp.")
formed a joint venture including a number of partnerships or
other entities under common ownership (the "Sports Venture"),
to operate currently existing sports services in Latin
America and Australia and a variety of new sports services
throughout the world, excluding the United States, Canada and
certain other defined geographic areas. News Corp. owns a 50%
interest in the Sports Venture with the remaining 50% owned
by Liberty/TINTA LLC, a limited liability company owned in
equal parts by subsidiaries of TINTA and Liberty (the "LLC").
As of March 31, 1997, TINTA had contributed to the LLC $49.0
million in cash and its 35% equity interest in Torneos y
Competencias S.A. ("Torneos"), an Argentinean sports
programming production company, and Liberty had contributed
to the LLC its interests in Latin American and Australian
sports programming services and its rights under various
television sports programming agreements. The LLC contributed
the non-cash assets contributed to it by TINTA and Liberty to
the Sports Venture. News Corp. contributed various
international sports rights and certain trademark rights in
exchange for its 50% interest in the Sports Venture. The
carrying value and the Company's share of earnings (losses)
of Torneos prior to its contribution to the LLC have been
included with the LLC in the above table.
TINTA may make additional cash contributions totaling $29.0
million to the LLC to fund the operations of the Sports
Venture. As part of the formation of the Sports Venture, the
LLC is entitled to receive from News Corp. 7.5% of the
outstanding stock of STAR Television Limited. Upon the
delivery of such stock to the LLC, News Corp. is entitled to
receive from the LLC up to $20.0 million and rights under
various Asian sports programming agreements. STAR Television
Limited operates a satellite-delivered television platform in
Asia.
On April 19, 1996, TINTA, Torneos and the Torneos
stockholders entered into an agreement (the "TINTA/Torneos
Sports Agreement") whereby TINTA agreed to make minimum
periodic payments from 1996 through 2004 aggregating $235.2
million to acquire certain rights and considerations,
including the exploitation rights to all sports rights owned
by Torneos with the exception of any rights which at that
time had been contractually committed to any third party. In
particular, TINTA acquired worldwide distribution rights
outside of Argentina for Clasico del Domingo and worldwide
distribution rights (excluding Buenos Aires) for Futbol de
Primera and Torneos de Verano (Summer Games).
(continued)
I-17
<PAGE> 19
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
Pending the assignment of the rights under the TINTA/Torneos
Sports Agreement which fit within the geographic area and
business plan of the Sports Venture (the "Sports Venture
Rights") to the Sports Venture, TINTA, News Corp. and Liberty
have paid their respective portion of any payments made with
respect to the Sports Venture Rights. Through March 31, 1997,
payments made under the TINTA/Torneos Sports Agreement
totaled $20.1 million.
The $33.0 million excess of the Company's aggregate
historical cost basis in the LLC over the Company's 50%
proportionate share of the LLC's net assets is being
amortized over an estimated useful life of 20 years.
(e) Jupiter
Through March 31, 1997, the Company had made aggregate
contributions to Jupiter of Y.7.4 billion ($71.3 million at
the applicable exchange rates). In addition, on March 31,
1997 the Company paid Y.200 million ($1.6 million) to
Sumitomo Corporation ("Sumitomo"). The Company and Sumitomo
are in the process of revising the original business plan to
increase the rate at which Jupiter would acquire additional
franchises and develop its network. Management of the Company
estimates that if Jupiter's business plan is accelerated in
the manner currently under discussion, Jupiter will require
additional funding, which additional funding may be
significant. If Jupiter's business plan is so accelerated,
the Company anticipates that the additional funding will be
obtained through a combination of capital contributions by
TINTA and Sumitomo, on a pro rata basis, and, to the extent
available on acceptable terms, debt financing by Jupiter.
The Company had entered into an option agreement whereby the
Company was entitled to sell Y.1.6 billion in exchange for
$17.5 million through April 4, 2002. The option was treated
as a hedge of the Company's foreign currency risk with
respect to its existing investment in Jupiter. On May 2,
1997, the Company sold such option for $1.8 million.
(continued)
I-18
<PAGE> 20
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
(f) BIP Poland
The Company loaned funds to BIP Poland pursuant to a 12%
subordinated credit note (the "Poland Subordinated Credit
Note") due on December 31, 2004. On December 31, 1996,
pursuant to an amended and restated agreement of limited
partnership of BIP Poland, (i) TINTA converted the principal
balance of the Poland Subordinated Credit Note ($23.8 million)
to equity and made an additional equity contribution of $10
million, (ii) BCI Poland, Inc. ("BCI Poland"), an entity in
which the Company has no ownership interest, and which, prior
to December 31, 1996 held a 20% general partnership interest
in BIP Poland, contributed $18.5 million to BIP Poland, and
(iii) TINTA's ownership percentage in BIP Poland was reduced
from 80% to 43.95%. The amended and restated agreement of
limited partnership also provides that each partner shall earn
a return of 15% per annum on the average of such partner's
Unreturned Capital (as defined). Through March 31, 1997, the
Company's Unreturned Capital in BIP Poland was $34.8 million.
Prior to the December 31, 1996 conversion of the Poland
Subordinated Credit Note to equity, interest income on such
note was eliminated against the corresponding interest
expense that was included in the Company's share of BIP
Poland's net losses.
(continued)
I-19
<PAGE> 21
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
(g) BIP Chile
On February 7, 1996, Cordillera Comunicaciones Limitada
("Cordillera") (a 50%-owned affiliate of the Company's
80%-owned affiliate, BIP Chile) and Compania de
Telecomunicaciones de Chile S.A. ("CTC") (a subsidiary of the
Spanish telephone company Telefonica de Espana S.A.), entered
into certain definitive agreements (the "Chile Restructuring
Agreements") that provided for, among other matters, the
contribution of all the cable subscribers within each party's
cable systems to a new Chilean company called
Metropolis-Intercom S.A. ("Metropolis-Intercom"). Cordillera
owns a 60% interest in Metropolis-Intercom and CTC, Comercial
Canelo S.A. and Empresa El Mercurio S.A.P. own jointly a
combined 40% interest. The Chile Restructuring Agreements
also provided that all of the cable distribution assets
excluding the headends (the "Distribution Assets") of
Cordillera be sold to CTC. In June 1996, the parties
finalized the transactions contemplated by the Chile
Restructuring Agreements and the Distribution Assets were
sold to CTC for cash proceeds of approximately $120 million.
Approximately $30 million of such cash proceeds (of which $17
million was received in 1996 and $13 million was received in
1997) was used to reduce the amounts owed by BIP Chile to
TINTA pursuant to a subordinated loan agreement. As a result
of the foregoing transactions, CTC is (i) servicing 77 analog
channels and any additional channels acquired by
Metropolis-Intercom, (ii) to expand and operate the
Distribution Assets and (iii) providing technical service
pursuant to a services agreement. Under the Chile
Restructuring Agreements, Cordillera, BIP Chile and the
Company have agreed not to compete with Metropolis-Intercom
and not to pursue telephone opportunities in Chile, and CTC
has agreed not to compete with Metropolis-Intercom and not to
pursue cable-related opportunities in Chile (other than
through Metropolis-Intercom). The aforementioned service
agreement has a term of 30 years (with an option to renew)
and the associated payments to CTC are based on capacity
utilized and other specified factors.
(continued)
I-20
<PAGE> 22
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
Summarized unaudited results of operations of the Other Affiliates by
geographic region for the periods in which they were owned by the
Company are as follows (amounts in thousands):
<TABLE>
<CAPTION>
Three months ended March 31, 1997
--------------------------------------------------------
Latin America
Asia and and the
Europe(a) Australia Caribbean(b) Total
----------- ----------- ------------ -----------
<S> <C> <C> <C> <C>
Combined Operations
Revenue $ 60,499 50,837 3,484 114,820
Operating, selling, general and
administrative expenses (77,551) (56,652) (2,086) (136,289)
Depreciation and amortization (6,457) (10,186) (856) (17,499)
----------- ----------- ----------- -----------
Operating income (loss) (23,509) (16,001) 542 (38,968)
Interest expense, net (558) (2,883) (1,918) (5,359)
Other, net 276 (966) (6,797) (7,487)
----------- ----------- ----------- -----------
Net loss $ (23,791) (19,850) (8,173) (51,814)
=========== =========== =========== ===========
</TABLE>
<TABLE>
<CAPTION>
Three months ended March 31, 1996
--------------------------------------------------------
Latin America
Asia and and the
Europe(a) Australia Caribbean(b) Total
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Combined Operations
Revenue $ 87,167 37,316 10,819 135,302
Operating, selling, general and
administrative expenses (94,962) (42,361) (9,229) (146,552)
Depreciation and amortization (2,146) (7,712) (972) (10,830)
----------- ----------- ----------- -----------
Operating income (loss) (9,941) (12,757) 618 (22,080)
Interest expense, net (1,809) (2,254) (3,387) (7,450)
Other, net (925) 277 (263) (911)
----------- ----------- ----------- -----------
Net loss $ (12,675) (14,734) (3,032) (30,441)
=========== =========== =========== ===========
</TABLE>
------------
(a) The summarized combined operations for the three months ended March
31, 1997 include the results of operations of Flextech but exclude
the results of operations of the Flextech Affiliates. See notes 1
and 11.
(continued)
I-21
<PAGE> 23
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
(b) The summarized operating results of Torneos are included in the
combined operations for the three months ended March 31, 1996
but are excluded from the combined operations for the three
months ended March 31, 1997 due to TINTA's contribution of its
35% ownership interest in Torneos to the Sports Venture.
(7) Other Investments
The components of other investments are set forth below (amounts in
thousands):
<TABLE>
<CAPTION>
March 31, December 31,
1997 1996
----------- -----------
<S> <C> <C>
DTH Ventures $ 18,245 17,945
Other 2,501 2,928
----------- -----------
$ 20,746 20,873
=========== ===========
</TABLE>
On November 20, 1995, TINTA announced its intention to form strategic
partnerships with News Corp., Organizacoes Globo and Grupo Televisa
S.A. for the development and operation of a direct-to-home satellite
service for Latin America, Mexico, and various Central and South
American countries (collectively, the "DTH Ventures"). It is
anticipated that TINTA could be required to make cash contributions
totaling $45.8 million over the next three years in connection with
the DTH Ventures.
(8) Debt
The components of debt are as follows (amounts in thousands):
<TABLE>
<CAPTION>
March 31, December 31,
1997 1996
----------- -----------
<S> <C> <C>
TINTA:
Debentures (a) $ 345,000 345,000
Cablevision Notes (b) -- 13,013
----------- -----------
345,000 358,013
----------- -----------
Subsidiaries:
Flextech -- 1,000
----------- -----------
-- 1,000
----------- -----------
Cablevision:
Bank loans (c) 100,835 104,556
OCC Notes (d) 43,691 46,418
Other 940 1,141
----------- -----------
145,466 152,115
----------- -----------
$ 490,466 511,128
=========== ===========
</TABLE>
(continued)
I-22
<PAGE> 24
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
(a) On February 8, 1996, TINTA received net cash proceeds of
approximately $336 million from the issuance of 4-1/2%
Convertible Subordinated Debentures (the "Debentures") due
2006 having an aggregate principal amount of $345 million.
The Debentures are convertible into shares of Series A Common
Stock at a price of $27.30 per share of Series A Common
Stock, subject to anti-dilution adjustments. Interest on the
Debentures is payable on February 15 and August 15 of each
year, commencing August 15, 1996. The Debentures are
redeemable by TINTA in whole or in part, at any time on or
after February 15, 1999. Pending its use by TINTA, the net
proceeds from the sale of the Debentures were loaned to TCI
pursuant to an unsecured promissory note (the "TCI Note
Receivable"). See note 9.
(b) The Cablevision Notes were secured by the Company's pledge of
the stock representing its 51% interest in Cablevision. The
Cablevision Notes were repaid in their entirety in March
1997. See note 4.
(c) Represents Cablevision's bank debt, which is denominated in
U.S. dollars, and bears interest at fixed rates. Including
value added tax, the weighted average rate of Cablevision's
bank debt at March 31, 1997 was 7.6%.
(d) In connection with the OCC Acquisition, Cablevision issued
$46.4 million principal amount of secured negotiable
promissory notes. The OCC Notes are scheduled to be repaid in
equal monthly installments through September 10, 1998 and
accrue interest at 9.25%. The OCC Notes are secured by the
pledge of 51% of the stock of OCC. See note 3.
With the exception of the Debentures, which had a fair value of $259
million at March 31, 1997, the Company believes that the fair value
and the carrying value of the Company's debt were approximately equal
at March 31, 1997.
(continued)
I-23
<PAGE> 25
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
(9) Related Party Transactions
Due from TCI
The effects of all transactions between the Company and TCI have been
reflected as intercompany payables or receivables to be settled (i) in
the case of certain non-cash income tax and stock compensation
allocations (the "Non-Cash Intercompany Account"), at some future date
(as described below), (ii) in the case of amounts outstanding pursuant
to the TCI Note Receivable (see note 8), as mutually agreed from time
to time by TCI and TINTA, (iii) in the case of a note payable (the
"TCIC Note Payable") to TCI Communications, Inc. ("TCIC"), a
subsidiary of TCI, in accordance with the applicable repayment terms
as described below, and (iv) in the case of all other intercompany
transactions, within thirty days following notification (the "Cash
Intercompany Account"). Any amounts within the Cash Intercompany
Account that remain outstanding after such thirty-day period generally
are treated as adjustments of the outstanding borrowings pursuant to
the revolving subordinated credit agreement between TCI, as creditor,
and TINTA, as borrower (the "TCI Credit Facility"). The components of
"Due from (to) TCI" are as follows (amounts in thousands):
<TABLE>
<CAPTION>
March 31, December 31,
1997 1996
----------- -----------
<S> <C> <C>
TCI Note Receivable (a) $ 134,491 176,501
TCIC Note Payable (b) (21,982) (23,262)
TCI Credit Facility (c) -- --
Non-Cash Intercompany Account (d) 18,600 14,955
Cash Intercompany Account (8,447) (8,053)
----------- -----------
$ 122,662 160,141
=========== ===========
</TABLE>
(a) Amounts outstanding under the TCI Note Receivable bear
interest at variable rates based on TCI's weighted average
cost of bank borrowings of similar maturities (6.2% at March
31, 1997). Principal and interest is due and payable as
mutually agreed from time to time by TCI and TINTA. During
the three months ended March 31, 1997 and 1996, interest
income related to the TCI Note Receivable aggregated $2.4
million and $2.2 million, respectively.
(continued)
I-24
<PAGE> 26
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
(b) During 1996, TCIC transferred, subject to regulatory
approval, certain distribution equipment to a subsidiary of
TINTA in exchange for a(pound)14,950,000 ($23.3 million using
the applicable exchange rate) principal amount promissory
note. The TCIC Note Payable bears interest at 7% compounded
semi-annually. During the three months ended March 31, 1997,
the U.S. dollar equivalent of interest expense incurred with
respect to the TCIC Note Payable was $392,000. The
distribution equipment was subsequently leased back to TCIC
over a 5 year term with semi-annual payments of(pound)998,000
($1.6 million), plus expenses. TINTA can require TCIC to
repurchase the equipment at the end of the lease term at an
amount equal to the greater of (i) fair market value or (ii)
an amount that when combined with the rental payments
received (excluding executory costs) during the lease term,
and discounted using an interest rate of 7%, would not exceed
89% of the fair market value of the equipment at the
inception of the lease. During the three months ended March
31, 1997, the U.S. dollar equivalent of the lease revenue
under the above-described lease agreement aggregated
$859,000.
(c) The TCI Credit Facility is a subordinated unsecured revolving
credit facility that provides for loans from TCI to the
Company in an aggregate outstanding principal amount of up to
$200 million. If at any time TCI shall beneficially own
capital stock of TINTA representing less than a majority in
voting power of the outstanding shares of TINTA capital stock
entitled to vote for the election of directors, TCI may
terminate its obligation to make further loans under the TCI
Credit Facility upon two business days prior notice to TINTA.
There were no borrowings outstanding pursuant to the TCI
Credit Facility at March 31, 1997 and December 31, 1996. The
TCI Credit Facility requires an annual credit facility fee in
an amount equal to 3/8% of the unused borrowing availability
under such facility. Such credit facility fees aggregated
$188,000 during each of the three month periods ended March
31, 1997 and 1996.
(continued)
I-25
<PAGE> 27
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
(d) At March 31, 1997, the Non-Cash Intercompany Account was
comprised of $75,000 due to TCI with respect to TINTA's share
of TCI's compensation liability arising from certain stock
appreciation rights and stock options (the "TCI Compensation
Liability") and $18.7 million due from TCI with respect to
the allocation of current intercompany income tax benefits
(the "TCI Tax Receivable") pursuant to a tax sharing
agreement among TINTA, TCI and certain other affiliates of
TCI (the "Tax Sharing Agreement"). The TCI Compensation
Liability, which represents TINTA's share of TCI's stock
compensation expense for periods subsequent to July 18, 1995
(the date that the IPO was consummated), will be settled in
cash only to the extent that TCI is required to make cash
payments to satisfy the TCI Compensation Liability. The TCI
Tax Receivable, which represents TINTA's current intercompany
income tax benefit for periods subsequent to July 1, 1995
(the date that the Tax Sharing Agreement was implemented),
will be settled in cash only upon the deconsolidation of
TINTA for purposes of TCI's federal income tax returns. As
described below, changes in the TCI Compensation Liability
have been included in the accompanying consolidated
statements of operations.
Other Related Party Transactions
Certain key employees of TINTA hold stock options with tandem stock
appreciation rights with respect to certain common stock of TCI (the
"TCI Options and SARS"). Estimates of the compensation expense relating
to the TCI Options and SARS have been included in the accompanying
consolidated statements of operations, but are subject to future
adjustment based upon the market value of the underlying TCI common
stock and ultimately on the final determination of market value when
the rights are exercised. The estimated compensation adjustment with
respect to the TCI Options and SARS resulted in decreases to TINTA's
share of TCI's stock compensation liability of $60,000 and $909,000 for
the three months ended March 31, 1997 and 1996, respectively.
Pursuant to a services agreement between TCI and TINTA, TCI allocates
corporate expenses to TINTA based upon the estimated cost of general
and administrative services provided. The amounts allocated to the
Company for the three months ended March 31, 1997 and 1996 aggregated
$416,000 and $719,000, respectively.
The Puerto Rico Subsidiary purchases programming services from a
subsidiary of TCI. The charges, which approximate such TCI
subsidiary's cost and are based on the aggregate number of subscribers
served by the Puerto Rico Subsidiary, aggregated $1.3 million and $1.1
million during the three months ended March 31, 1997 and 1996,
respectively. Such programming charges are included in "Operating
costs and expenses - Cable" in the accompanying consolidated
statements of operations.
(continued)
I-26
<PAGE> 28
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
Cablevision purchases programming services from certain affiliates.
The related charges generally are based upon the number of
Cablevision's subscribers that receive the respective services. During
the three months ended March 31, 1997 and 1996, such charges
aggregated $3.3 million and $3.4 million, respectively. Additionally,
certain of Cablevision's general and administrative functions are
provided by affiliates. The related charges, which generally are based
upon the respective affiliate's cost of providing such functions,
aggregated $700,000 during each of the three month periods ended March
31, 1997 and 1996. The above-described programming and general and
administrative charges are included in "Operating costs and expenses -
Cable" in the accompanying consolidated statements of operations.
As further described in note 6, certain subsidiaries of TCI have
provided guarantees and other credit enhancements on the Company's
behalf. In this respect, the Company has entered into an
indemnification agreement with TCI whereby the Company will indemnify
TCI for any loss, claim or liability that TCI may incur by reason of
certain guarantees and credit enhancements made by TCI on the
Company's behalf.
(10) Commitments and Contingencies
Prior to the IPO, the Company relied upon capital contributions from
TCI and, to a lesser extent, borrowing availability under the TCI
Credit Facility (see note 9), in order to meet most of its liquidity
requirements. Following the IPO, TCI has not and, it is anticipated,
will not make further capital contributions to the Company in the
future. Notwithstanding the cash proceeds received by the Company in
connection with the IPO and the sale of the Debentures, the Company
believes that it will continue to be dependent upon financing from TCI
and/or external sources in order to meet its liquidity requirements.
There is no assurance that any such sources of financing will be
available on terms acceptable to the Company.
The Company has guaranteed the obligation of an affiliate (The Premium
Movie Partnership) to pay fees for the license to exhibit certain
films through 2000. Although the aggregate amount of The Premium Movie
Partnership's license fee obligations is not currently estimable, the
Company believes that the aggregate payments pursuant to such
obligations could be significant. If the Company were to fail to
fulfill its obligations under the guarantee, the beneficiaries have
the right to demand an aggregate payment from the Company of
approximately $55 million. In connection with this guarantee, the
Company has agreed to maintain a defined net worth (cash equivalents
plus the fair value of securities listed on an exchange less
liabilities) of at least $150 million. If the Company's net worth (as
defined) were to fall below $150 million, TCI has agreed to
subordinate any intercompany amounts owed by the Company to TCI to the
Company's obligation pursuant to this guarantee. Although the Company
has not had to perform under such guarantee to date, the Company
cannot be certain that it will not be required to perform under such
guarantee in the future.
(continued)
I-27
<PAGE> 29
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
For information concerning the Company's commitments and contingent
liabilities with respect to certain affiliates, see note 6.
If at any time (x) the aggregate of the amount of (i) Flextech
securities held by the Company, (ii) the Hallmark and U S WEST
subsidiaries' interests in Flextech acquired under the Hallmark
Subscription and the U S WEST Subscription, respectively, and (iii)
Flextech securities acquired by IFE pursuant to the IFE Acquisitions
exceeds 75% of Flextech's issued and outstanding share capital, or (y)
subject to certain exceptions, the Flextech Ordinary Shares cease to
be admitted to trading on the Official List of the London Stock
Exchange as a result of the exercise by the Company of any of its
rights as a Flextech shareholder, the Company shall be obligated to
offer to purchase from the Hallmark and U S WEST subsidiaries, and
from IFE any Flextech Ordinary Shares held by them and which were
originally acquired pursuant to the Hallmark Subscription, the U S
WEST Subscription, or the IFE Acquisitions, as applicable. Under such
circumstances, the offer price for such shares shall be the higher of
(i) the then current market price for the Flextech Ordinary Shares and
(ii) the highest price paid to any third party by the Company for any
Flextech Ordinary Shares during the preceding 12 month period. In the
event the Company is required to purchase any Flextech Ordinary
Shares, it may elect, subject to certain limited exceptions, to pay
the purchase price thereof in cash or in shares of Series A Common
Stock, or in certain securities of TCI.
As described in note 11, the Company has significant contingent
obligations with respect to certain credit enhancements that were
provided by the Company upon the closing of the BBC Joint Ventures and
related transactions.
(continued)
I-28
<PAGE> 30
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
(11) Subsequent Events
BBC Joint Ventures
In April 1997, (i) Flextech and BBC Worldwide formed the two BBC Joint
Ventures and (ii) Flextech acquired from the other shareholders of
UKLL and UKGL all of the share capital in those two companies not
already owned by Flextech and the Company. One joint venture with BBC
Worldwide (the "Principal Joint Venture") will operate and launch a
number of new subscription television channels for distribution in the
UK and Ireland. Flextech and BBC Worldwide each have a 50% interest in
this venture. The Principal Joint Venture has committed to the launch
of at least 4 new theme channels by September 30, 1998. The other
joint venture (the "Second Joint Venture") acquired 65% of the share
capital of UKGL from Flextech, with put and call arrangements over the
remaining 35% of such share capital. The Second Joint Venture will
operate and develop UKGL, and both Flextech and BBC Worldwide have a
50% interest in that venture.
Each of the Principal Joint Venture and the Second Joint Venture have
entered into programming license agreements with the British
Broadcasting Corporation (the "BBC License Agreements"), under which
such joint ventures will have the right to acquire licenses to
broadcast programming originated by the British Broadcasting
Corporation on the channels which the joint ventures are to operate.
The BBC License Agreements, which contain certain exclusivity
provisions, have initial terms of 15 years, which terms will
automatically be extended for an additional 15 years unless the
relevant joint venture elects to give notice to the contrary.
As described below, Flextech has undertaken to finance the working
capital requirements of the Principal Joint Venture. Flextech has also
agreed to make available to the Second Joint Venture, if required,
funding of up to (pound)10 million ($16 million). To support its
funding obligations, Flextech has obtained a revolving credit facility
with current borrowing availability of up to (pound)85 million ($139
million), and with a term of up to 5 years, from a syndicate of banks
(the "Flextech Revolving Credit Facility").
(continued)
I-29
<PAGE> 31
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
Flextech acquired the share capital of UKGL and UKLL not already owned
by it and the Company through the issuance of new Flextech Ordinary
Shares. Flextech acquired the 75% of UKGL (and (pound)12.5 million
($20.5 million) of loan stock) and the 68.75% of UKLL (and (pound)13.7
million ($22.5 million) of loan stock) that it did not already own
through the issuance of 34,954,713 new Flextech Ordinary Shares. One
of the current shareholders of UKLL retained (pound)5.2 million ($8.5
million) of loan stock of UKLL, which is to be repaid in two equal
installments on December 31, 1997 and 1998. Concurrent with the
issuance of the new Flextech Ordinary Shares to the former
shareholders of UKGL and UKLL, the Company's voting power fell below
50%. To increase the Company's voting power to 50%, the Company
received the Special Voting Share, which permits the Company to cast
50% of the votes on most matters brought to shareholders of Flextech.
So long as the Proxy remains outstanding, TINTA's 50% voting interest
will be reduced by the 960,850 votes represented by the Proxy. See
note 1. The Special Voting Share will terminate upon the occurrence of
the earlier of (i) the third anniversary of issuance or (ii) any
transfer of Flextech shares by the Company outside a specified
affiliated group.
Flextech's outstanding Flextech Non-Preference Shares had been issued
in connection with previous acquisition transactions by Flextech due
to the Company's requirement that it maintain specified voting
interests in Flextech. With the issuance of the Special Voting Share,
the purpose for the Flextech Non-Preference Shares was eliminated.
Accordingly, and in order to simplify the capital structure of
Flextech, upon the issuance of the Special Voting Share, the Flextech
Non-Preference Shares were converted into Flextech Ordinary Shares.
Immediately following such conversion, and the issuance of additional
Flextech Ordinary Shares in connection with the UKGL and UKLL
transactions described above, (i) the Company's interest in the equity
share capital of Flextech was 35.9% and (ii) the Company's voting
interest was approximately 50%.
If Flextech defaults in its funding obligation to the Principal Joint
Venture and fails to cure within 42 days after receipt of notice from
BBC Worldwide, BBC Worldwide is entitled, within the following 90
days, to require that the Company assume all of Flextech's funding
obligations to the Principal Joint Venture (the "Standby Commitment").
In addition to Flextech's April 1997 purchase of (pound)22 million
($36 million) of ordinary shares in the Principal Joint Venture,
Flextech is obligated to provide the Principal Joint Venture with a
primary credit facility of (pound)88 million ($144 million) and,
subject to certain restrictions, a standby credit facility of (pound)30
million ($49 million). Borrowings under the primary and standby credit
facility would be represented by shares of loan stock of the Principal
Joint Venture, bearing interest at 2% above LIBOR, which interest would
be capitalized quarterly.
(continued)
I-30
<PAGE> 32
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
If BBC Worldwide requires the Company to perform Flextech's funding
obligations pursuant to the Standby Commitment, then the Company will
acquire Flextech's entire equity interest in the Principal Joint
Venture for (pound)1.00, and will replace Flextech's directors on the
board of the Principal Joint Venture with representatives of the
Company. Flextech will pay commitment and standby fees to the Company
for its undertaking under the Standby Commitment. If Flextech repays
to the Company all loans it makes to the Principal Joint Venture (plus
interest at TINTA's marginal cost of funds plus 2% per annum) within
180 days after the Company first becomes obligated to perform
Flextech's financial obligations, it may reacquire its interest in the
Principal Joint Venture for (pound)1.00. The Company may also, within
the same period, require Flextech to reacquire its interest on the
same terms. The Standby Commitment will terminate on the earliest of
(i) the date on which Flextech has met all of its required financial
obligations to the Principal Joint Venture under the primary and
standby credit facilities, or (ii) the date on which Flextech delivers
a bank guarantee of all of its funding obligations to the Principal
Joint Venture.
So long as the Company is contingently obligated under the Standby
Commitment, it has been agreed that (i) Flextech will not sell any of
its direct or indirect interests in the Principal Joint Venture, (ii)
Flextech will not conduct its business in such a way as is likely to
cause it to be in material breach of any material contracts or to have
insufficient working capital to meet its funding obligation to the
Principal Joint Venture, and (iii) Flextech will use its available
resources to subscribe for any outstanding loan stock of the Principal
Joint Venture, if and to the extent required by TINTA at any time
after December 31, 2011.
Caguas Acquisition
On May 1, 1997, the Puerto Rico Subsidiary paid cash consideration of
$12.2 million, and assumed aggregate indebtedness of $32.3 million, to
acquire the 50% ownership interest in Caguas/Humacao Cable Systems
which the Company did not already own (the "Caguas Acquisition"). In
connection with the Caguas Acquisition, the Puerto Rico Subsidiary
entered into a new reducing revolving bank credit facility (the
"Puerto Rico Bank Facility") and used borrowings of approximately $45
million thereunder to fund the cash portion of the purchase price and
to repay the assumed indebtedness.
(continued)
I-31
<PAGE> 33
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Notes to Consolidated Financial Statements
The Puerto Rico Bank Facility is unsecured and provides for maximum
borrowing commitments of $100 million. The availability of such
commitments for borrowing is subject to the Puerto Rico Subsidiary's
compliance with applicable financial covenants and other customary
conditions. Commencing March 31, 2000, the maximum commitments will be
reduced quarterly in accordance with a schedule, until final maturity
at March 31, 2006. Borrowings under the Puerto Rico Bank Facility bear
interest at variable rates. In addition, the Puerto Rico Subsidiary is
required to pay a commitment fee equal to 0.375% on the average daily
unused portion of the maximum borrowing commitments, payable quarterly
in arrears and at maturity. The Puerto Rico Bank Facility contains
restrictive covenants which require, among other things, the
maintenance of certain financial ratios (primarily the ratios of cash
flow to total debt and cash flow to debt service, as defined), and
includes certain limitations on indebtedness, investments, guarantees,
acquisitions, dispositions, dividends, liens and encumbrances, and
transactions with affiliates. If TCI's ownership interest in TINTA
were to fall below 50.1%, borrowings under the Puerto Rico Bank
Facility would be secured by the assets of the Puerto Rico Subsidiary
and the variable interest rates on such borrowings would be increased.
I-32
<PAGE> 34
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Management's Discussion and Analysis of Financial Condition and
Results of Operations
General
The following discussion and analysis should be read in conjunction
with the Company's consolidated financial statements, included elsewhere
herein, and the Management's Discussion and Analysis of Financial Condition and
Results of Operations included in the Company's Annual Report on Form 10-K for
the year ended December 31, 1996. With respect to trends, risks and
uncertainties affecting the Company's results of operations and financial
condition, the following discussion addresses only changes in such matters that
have occurred during 1997 through the date of this Quarterly Report on Form
10-Q.
A significant portion of the Company's operations are conducted
through corporations and partnerships in which the Company holds a 20%-50%
ownership interest. As the Company generally accounts for such ownership
interests using the equity method of accounting, the financial condition and
results of operations of such entities are not reflected on a consolidated
basis within the Company's consolidated financial statements.
Certain statements included in this Quarterly Report on Form 10-Q
constitute "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995. Such forward-looking statements
involve known and unknown risks, uncertainties and other important factors that
could cause the actual results, performance or achievements of the Company, or
industry results, to differ materially from any future results, performance or
achievements expressed or implied by such forward-looking statements. Such
risks, uncertainties and other factors include, among others: general economic
and business conditions and industry trends; the continued strength of
multi-channel video and telecommunication networks and the distribution and
production of programming for multi-channel video distribution; uncertainties
inherent in proposed business strategies and development plans, future
financial performance, including availability, terms and deployment of capital;
the ability of vendors to deliver required equipment, software and services;
product launches; availability of qualified personnel; changes in, or the
failure or inability to comply with, government regulation, and adverse
outcomes from regulatory proceedings; changes in the nature of key strategic
relationships with partners and joint venturers; competitor responses to the
Company's products and services, and the overall market acceptance of such
products and services, including acceptance of the pricing of such products and
services; and other factors. These forward-looking statements speak only as of
the date of this Quarterly Report on Form 10-Q. The Company expressly disclaims
any obligation or undertaking to disseminate any updates or revisions to any
forward-looking statement contained herein to reflect any change in the
Company's expectations with regard thereto or any change in events, conditions
or circumstances on which any such statement is based.
(continued)
I-33
<PAGE> 35
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Results of Operations
As described in greater detail below, the Company reported net losses
of $33.5 million and $26.4 million during the three months ended March 31, 1997
and 1996, respectively. Such net losses are due, in part, to the relatively
high level of depreciation and amortization that is common to growth oriented
companies operating within the capital intensive telecommunications industry.
Any improvements in the Company's results of operations are largely dependent
upon the ability of the Company's operating subsidiaries and affiliates to
increase their respective subscriber bases. There can be no assurance that any
such subscriber base increases will occur.
During the three months ended March 31, 1997 and 1996, Cablevision and
the Puerto Rico Subsidiary were reflected in the Company's consolidated
financial statements on a consolidated basis. Additionally, Flextech was
included in the Company's consolidated financial statements on a consolidated
basis through December 31, 1996. As described in note 1 to the accompanying
consolidated financial statements, the Company, effective January 1, 1997,
discontinued using the consolidation method to account for its ownership
interest in Flextech. As a result, the Company's consolidated financial
statements as of and for the three months ended March 31, 1997 do not include
Flextech's financial position and results of operations on a consolidated
basis. The following table sets forth summary information with respect to the
operating results of Flextech that were included in the Company's consolidated
financial statements for the three months ended March 31, 1996 (amounts in
thousands):
<TABLE>
<S> <C>
Programming revenue $ 13,093
Programming operating costs and expenses before
depreciation and amortization (15,435)
Depreciation and amortization (1,102)
-----------
Operating loss (3,444)
-----------
Other, net 511
-----------
Net loss $ (2,933)
===========
</TABLE>
(continued)
I-34
<PAGE> 36
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Results of Operations (continued)
Cablevision owned cable television systems serving approximately
580,000 and 436,000 basic subscribers at March 31, 1997 and 1996, respectively.
The following table sets forth summary information with respect to
Cablevision's results of operations (as adjusted for the effects of purchase
accounting) for the indicated periods (amounts in thousands):
<TABLE>
<CAPTION>
Three months ended
---------------------------------------------
March 31, 1997 (1) March 31, 1996
-------------------- --------------------
<S> <C> <C> <C> <C>
Revenue $ 56,250 100% $ 43,379 100%
Operating costs and expenses
before depreciation and
amortization (33,046) (59%) (24,328) (56%)
-------- -------- -------- --------
Operating Cash Flow 23,204 41% 19,051 44%
Depreciation and amortization (12,780) (23%) (9,198) (21%)
-------- -------- -------- --------
Operating income $ 10,424 18% $ 9,853 23%
======== ======== ======== ========
</TABLE>
- ------------------
(1) On October 1, 1996, Cablevision acquired 99.9% of the issued and
outstanding stock of OCC. In accordance with the purchase method of
accounting OCC has been included in Cablevision's consolidated
financial statements since the October 1, 1996 acquisition date. The
following table sets forth summary information with respect to OCC's
results of operations included with those of Cablevision for the three
months ended March 31, 1997 (amounts in thousands):
<TABLE>
<S> <C>
Revenue $ 7,898
Operating costs and expenses
before depreciation and
amortization (3,052)
---------
Operating Cash Flow 4,846
Depreciation and amortization (2,408)
---------
Operating income $ 2,438
=========
</TABLE>
(2) "Operating Cash Flow," which represents income before depreciation and
amortization, is a commonly used measure of value and borrowing
capacity. Operating Cash Flow is not intended to be a substitute for
a measure of performance in accordance with generally accepted
accounting principles and should not be relied upon as such.
(continued)
I-35
<PAGE> 37
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Results of Operations (continued)
Revenue
Cable revenue increased $16.1 million or 32% during the three months
ended March 31, 1997, as compared to the corresponding prior year period. Such
increase is primarily attributable to the positive effects of the OCC
Acquisition and a 10% increase in Cablevision's average number of basic
subscribers. Such positive effects were partially offset by a decrease in
Cablevision's rates resulting from promotional packages offered in response to
increasing competition. See related discussion below. An increase in the
revenue of the Puerto Rico Subsidiary accounted for the remaining increase in
cable revenue. Such increase is due primarily to a 3% increase in basic
subscribers of the Puerto Rico Subsidiary. An increase in basic rates in
February 1997 also contributed to the increase in cable revenue of the Puerto
Rico Subsidiary.
The areas serviced by Cablevision are also serviced by other cable
providers. During the second quarter of 1996 one of these cable providers began
offering cable services at rates substantially below that charged by
Cablevision. Cablevision has offered promotional packages in response to such
competition. Although the Company believes that such competition may limit
Cablevision's ability to increase its rates, the Company cannot otherwise
predict the impact competition will have on Cablevision's result of operations.
Operating Costs and Expenses
Cable operating costs and expenses increased $9.3 million or 33%
during the three months ended March 31, 1997, as compared to the corresponding
prior year period. Such increase is primarily attributable to the effects of
the OCC Acquisition and an increase in Cablevision's programming costs. Such
increased programming costs are attributable to a higher number of subscribers
and higher programming rates. See related discussion below. An increase in the
operating costs and expenses of the Puerto Rico Subsidiary accounted for the
remaining increase in cable operating costs and expenses.
Cablevision and the Puerto Rico Subsidiary purchase programming under
contracts that expire at various dates in the future. No assurance can be given
that future contracts will contain terms as favorable as those contained in the
existing programming contracts of Cablevision and the Puerto Rico Subsidiary.
TINTA incurred corporate, general and administrative expenses of $2.8
million and $2.5 million during the three months ended March 31, 1997 and 1996,
respectively, of which $416,000 and $719,000, respectively, were allocated from
TCI. General and administrative allocations from TCI are generally based upon
the estimated cost of the services provided to the Company. Estimated changes
in (i) TINTA's stock compensation liability and (ii) TINTA's share of TCI's
stock compensation liability are also reflected in general and administrative
expenses. Such estimated decreases aggregated $34,000 and $438,000, during the
three months ended March 31, 1997 and 1996, respectively, and include decreases
in the Company's share of TCI's stock compensation liability of $60,000 and
$909,000, respectively. Such estimated amounts are subject to future adjustment
based upon market value and, ultimately, upon the final determination of the
market value of the stock appreciation rights at the time they are exercised.
(continued)
I-36
<PAGE> 38
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Results of Operations (continued)
The $3.6 million or 30% increase in depreciation and amortization
expense during the three months ended March 31, 1997, as compared to the
corresponding prior year period, is the result of a net increase in the
Company's assets that are subject to depreciation and amortization. The
increases in such assets that are attributable to the OCC Acquisition and
capital expenditures more than offset the decrease that is attributable to the
deconsolidation of Flextech, as described in note 1 to the accompanying
consolidated financial statements.
Other Income and Expense
Telewest, which is currently constructing broadband cable television
and telephony networks in the UK, has incurred losses since its inception. It
is expected that the current construction requirements of Telewest will be
substantially complete by the end of the year 2000. The Company's share of
Telewest's net losses increased $11.1 million or 36% during the three months
ended March 31, 1997, as compared to the corresponding prior year period. Such
increase is primarily attributable to increases in depreciation and
amortization, interest expense and foreign currency transaction losses. In
connection with the SBCC Transaction, Telewest received net cash proceeds of
$1.2 billion upon the issuance of the Telewest Debentures. Changes in the
exchange rate used to translate the Telewest Debentures into UK pounds sterling
and the adjustment of a foreign currency option contract to market value caused
Telewest to experience unrealized foreign currency transaction losses of
(pound)24.1 million ($40.5 million using the applicable exchange rate) and
(pound)16.7 million ($25.6 million using the applicable exchange rate) during
the three months ended March 31, 1997 and 1996, respectively. It is anticipated
that Telewest will continue to experience realized and unrealized foreign
currency transaction gains and losses throughout the term of the Telewest
Debentures, which mature in 2006 and 2007, if not redeemed earlier.
The Company's share of the losses of the Other Affiliates increased
$4.5 million or 25% during the three months ended March 31, 1997, as compared
to the corresponding prior year period. Such increase is primarily attributable
to increased losses of the LLC, Juipter, MultiThematiques and ABN. Such
increased losses were partially offset by a decrease in the Company's share of
the losses of DMX, Inc. ("DMX"). During the third quarter of 1996, the
Company's cumulative share of DMX's losses exceeded the Company's investment in
DMX. Since that time, the Company has not recorded its proportionate share of
DMX losses as the Company has no obligation to provide any funding to DMX. In
addition, as described in note 1 to the accompanying consolidated financial
statements, the Company, effective January 1, 1997, ceased to consolidate
Flextech and began to account for Flextech using the equity method of
accounting. For additional information concerning the Other Affiliates, see
note 6 to the accompanying consolidated financial statements.
(continued)
I-37
<PAGE> 39
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Results of Operations (continued)
Interest income decreased $2.0 million or 39% during the three months
ended March 31, 1997, as compared to the corresponding prior year period. Such
decrease is due primarily to the decrease in the Company's cash and cash
equivalents as a result of the deconsolidation of Flextech as described in note
1 to the accompanying consolidated financial statements.
Interest expense increased $1.0 million or 12% during the three months
ended March 31, 1997, as compared to the corresponding prior year period. Such
increase is primarily due to the issuance of (i) the Debentures on February 8,
1996, (ii) the OCC Notes and (iii) the TCIC Note Payable which effects were
partially offset by a reduction in interest expense that is attributable to the
deconsolidation of Flextech. See note 8 to the accompanying consolidated
financial statements.
The minority interests' share of net losses, which related entirely to
Flextech, was none and $4.2 million during the three months ended March 31,
1997 and 1996, respectively. As described in note 1 to the accompanying
consolidated financial statements, the Company, effective January 1, 1997,
ceased to consolidate Flextech and began to account for Flextech using the
equity method of accounting. Accordingly, the minority interests' share of net
losses for Flextech is no longer included in the Company's consolidated
statement of operations. None of Cablevision's $65.0 million of net liabilities
at the April 25, 1995 acquisition date, and none of Cablevision's
post-acquisition operating results have been allocated to Cablevision's 49%
minority interest because (i) the Cablevision minority interest has no
obligation to provide any funding to Cablevision and (ii) the minority interest
continued to have a negative historical cost basis in Cablevision's net assets
at March 31, 1997. To the extent that Cablevision's post-acquisition net
earnings (exclusive of the effects of purchase accounting) cause the minority
interest's historical cost basis in Cablevision's net assets to become
positive, the Company would begin to allocate 49% of such net earnings to the
minority interest. If the minority interest's historical cost basis had been
positive during the three months ended March 31, 1997 and 1996, the Company
would have allocated $3.5 million and $5.3 million, respectively, of
Cablevision's net earnings (exclusive of the effects of purchase accounting) to
the minority interest.
The Company recognized realized and unrealized foreign currency
transaction gains of $1.4 million and $1.3 million during the three months ended
March 31, 1997 and 1996, respectively. The amounts for the three months ended
March 31, 1997 and 1996 include unrealized gains of $4.2 million and $1.7
million, respectively, with respect to the remeasurement into the U.S. dollar of
the French franc-denominated MultiThematiques Obligation. In addition, the
Company realized a $2.0 million transaction loss in connection with the February
1997 payment under the MultiThematiques Obligation. During the three months
ended March 31, 1997 and 1996, the Company also recognized unrealized losses of
$1.6 million and $541,000, respectively, with respect to the remeasurement into
the U.S. dollar of the UK pound-denominated debt owed by Flextech to an indirect
subsidiary of TINTA.
(continued)
I-38
<PAGE> 40
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Results of Operations (continued)
Income Taxes
The Company's income tax benefit was $26.3 million and $10.7 million
during the three months ended March 31, 1997 and 1996, respectively. The
effective tax rates associated with such benefits were 44% and 29%,
respectively. The higher effective tax rate during the 1997 period is
attributable to the recognition of certain deferred tax assets in connection
with the deconsolidation of Flextech, as described in note 1 to the
accompanying consolidated financial statements.
Material Changes in Financial Condition
On July 18, 1995, TINTA completed the IPO in which 20,000,000 shares
of TINTA's Series A Common Stock were sold to the public for net proceeds of
approximately $301.3 million. Prior to the IPO, the Company had relied upon
capital contributions from TCI and, to a lesser extent, borrowing availability
under the TCI Credit Facility in order to meet most of the Company's liquidity
requirements with respect to its investing and operating activities. Since the
IPO, TCI has not made, and it is anticipated will not in the future make,
further capital contributions to the Company.
The Company's operating activities provided (used) cash of $10.3 and
$(3.8 million) during the three months ended March 31, 1997 and 1996,
respectively. The 1996 amount includes cash used in Flextech's operating
activities of $14.8 million. As discussed under note 1 to the accompanying
consolidated financial statements, effective January 1, 1997, Flextech's cash
flows are no longer included in the Company's consolidated statements of cash
flows. Although the operating activities of Cablevision and the Puerto Rico
Subsidiary historically have generated positive cash flow, the Company believes
that the remaining consolidated operating activities of TINTA will continue to
produce net cash flow deficits for the foreseeable future. Furthermore, because
the Company's assets consist primarily of ownership interests in foreign
subsidiaries and affiliates, the repatriation of any cash provided by such
subsidiaries' and affiliates' operating activities in the form of dividends,
loans or other payments is subject to, among other things, exchange rate
fluctuations, tax laws and other economic considerations, as well as applicable
statutory and contractual restrictions. Moreover, the cash balances of the
Company's foreign subsidiaries are generally intended to be applied towards the
respective liquidity requirements of such foreign subsidiaries, and, it is not
presently anticipated that any significant portion of such cash balances will
be distributed or otherwise made available to TINTA. Accordingly, there can be
no assurance that the Company will have access to any cash generated by its
foreign operating subsidiaries and affiliates. In this regard, $2.6 million of
the Company's cash balances was held by Cablevision at March 31, 1997.
(continued)
I-39
<PAGE> 41
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Financial Condition (continued)
During the three months ended March 31, 1997 and 1996, cash used by the
Company's investing activities aggregated $43.6 million and $29.7 million,
respectively. Such amounts include $11.7 million and $19.4 million,
respectively, that were used by the Company to fund investments in, and loans
to, affiliates. In addition, the 1997 amount includes a $38.1 million reduction
in the Company's cash and cash equivalents as a result of the deconsolidation
of Flextech. See notes 1 and 2 to the accompanying consolidated financial
statements. See also the consolidated statements of cash flows included in the
accompanying consolidated financial statements.
The Company expects that it will continue to have significant cash
requirements with respect to its investing activities. In this regard the
Company, as of March 31, 1997, is contractually obligated to make loans or
capital contributions to its affiliates as follows (amounts in thousands):
<TABLE>
<CAPTION>
U.S. dollar
equivalent of
commitment at
March 31,
Affiliate Currency 1997
--------- ----------- -----------
<S> <C> <C>
BIP Chile (1) U.S. dollar $ 5,500
Other Various 2,485
-----------
$ 7,985
===========
</TABLE>
- ------------
(1) Represents the Company's aggregate unfunded obligations to provide
equity financing to BIP Chile.
The 27.0 million U.S. dollar equivalent of the estimated net present
value of the additional capital contributions that TINTA is required to make to
MultiThematiques no later than December 13, 1997 has not been reflected in the
foregoing table since such amount has been reflected as a liability in the
Company's consolidated balance sheets. See related discussion below.
The Company has satisfied all of its contractual funding requirements
with respect to Jupiter. The Company and Sumitomo are in the process of
revising the original business plan to increase the rate at which Jupiter would
acquire additional franchises and develop its network. Management of the
Company estimates that if Jupiter's business plan is accelerated in the manner
currently under discussion, Jupiter will require additional funding, which
additional funding may be significant. If Jupiter's business plan is so
accelerated, the Company anticipates that the additional funding will be
obtained through a combination of capital contributions by the Company and
Sumitomo, on a pro rata basis, and, to the extent available on acceptable
terms, debt financing by Jupiter or its subsidiaries and affiliates. Through
March 31, 1997, the Company has made capital contributions to Jupiter
aggregating Y.7.4 billion ($71.3 million at the applicable exchange rates).
(continued)
I-40
<PAGE> 42
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Financial Condition (continued)
On November 20, 1995, TINTA announced its intention to form strategic
partnerships with News Corp., Organizacoes Globo and Grupo Televisa S.A. for
the development and operation of a direct-to-home satellite service for Latin
America, Mexico, and various Central and South American countries. It is
anticipated that TINTA could be required to make cash contributions totaling
$45.8 million over the next three years in connection with the DTH Ventures.
Effective April 29, 1996, TINTA, Liberty and News Corp. formed the
Sports Venture to operate currently existing sports services in Latin America
and Australia and a variety of new sports services throughout the world,
excluding the United States, Canada and certain other defined geographic areas.
News Corp. owns a 50% interest in the Sports Venture with the remaining 50%
owned by the LLC. As of March 31, 1997, TINTA had contributed to the LLC $49.0
million in cash and its 35% equity interest in Torneos, an Argentinean sports
programming production company, and Liberty had contributed to the LLC its
interests in Latin American and Australian sports programming services and its
rights under various television sports programming agreements. The LLC
contributed the non-cash assets contributed to it by TINTA and Liberty to the
Sports Venture. News Corp. contributed various international sports rights and
certain trademark rights in exchange for its 50% interest in the Sports
Venture.
TINTA may make additional cash contributions totaling $29.0 million to
the LLC to fund the operations of the Sports Venture. As part of the formation
of the Sports Venture, the LLC is entitled to receive from News Corp. 7.5% of
the outstanding stock of STAR Television Limited. Upon the delivery of such
stock to the LLC, which delivery is expected to occur in 1997, News Corp. is
entitled to receive from the LLC up to $20.0 million and rights under various
Asian sports programming agreements. STAR Television Limited operates a
satellite-delivered television platform in Asia.
On April 19, 1996, TINTA, Torneos and the Torneos stockholders entered
into the TINTA/Torneos Sports Agreement whereby TINTA agreed to make minimum
periodic payments from 1996 through 2004 aggregating $235.2 million to acquire
certain rights and considerations, including the exploitation rights to all
sports rights owned by Torneos with the exception of any rights which at that
time had been contractually committed to any third party. In particular, TINTA
acquired worldwide distribution rights outside of Argentina for Clasico del
Domingo and worldwide distribution rights (excluding Buenos Aires) for Futbol
de Primera and Torneos de Verano (Summer Games).
Pending the assignment of the Sports Venture Rights to the Sports
Venture, TINTA, News Corp. and Liberty have paid their respective portion of
any payments made with respect to the Sports Venture Rights. Through March 31,
1997, payments made under the TINTA/Torneos Sports Agreement totaled $20.1
million.
(continued)
I-41
<PAGE> 43
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Financial Condition (continued)
The Company believes that its actual future cash requirements,
including cash requirements in connection with the funding of capital
expenditures and operating activities of its affiliates, will exceed the
amounts that the Company currently is contractually obligated to fund. The
Company is not able to more precisely predict the timing or amount of the
future funding requirements of its affiliates because such future cash
requirements are dependent upon a variety of factors.
Although Telewest has required significant amounts of capital in order
to fund its construction program and operating losses, the Company has not
provided any funding to Telewest since 1994. The Company has no present
intention to make any significant additional capital contributions or loans to
Telewest in order to assist Telewest in meeting its existing liquidity
requirements.
The Company and/or other subsidiaries of TCI have guaranteed notes
payable and other obligations of certain of the Company's affiliates. At March
31, 1997, the U.S. dollar equivalent of the amounts borrowed pursuant to the
Guaranteed Obligations was $16.6 million. The Company also has guaranteed the
obligation of an affiliate (The Premium Movie Partnership) to pay fees for the
license to exhibit certain films through the year 2000. If the Company were to
fail to fulfill its obligations under the guarantees, the beneficiaries have
the right to demand an aggregate payment of approximately $55 million. Although
the Company has not had to perform under such guarantee to date, the Company
cannot be certain that it will not be required to perform under such guarantee
in the future.
Additionally, agreements relating to the Company's investment in
certain affiliates contain (i) buy-sell and other exit arrangements whereby the
Company could be required to purchase another investor's ownership interest and
(ii) performance guarantees whereby the Company and/or other subsidiaries of
TCI have guaranteed the performance of the Company's subsidiary that directly
holds the related investment. In connection with the IPO, TINTA agreed to
indemnify TCI for any loss, claim or liability that TCI may incur by reason of
any guarantees made by TCI of financial, contractual or debt obligations for
the benefit of the Company.
Certain of the Company's affiliates are general partnerships and any
subsidiary of the Company that is a general partner in a general partnership
could be liable, depending upon the applicable partnership law, for all debts
of that partnership to the extent liabilities of that partnership were to
exceed its assets.
During the three months ended March 31, 1997, Cablevision and the
Puerto Rico Subsidiary accounted for $10.8 million and $2.1 million,
respectively, of the Company's aggregate capital expenditures of $12.9 million.
As described under note 1 to the accompanying consolidated financial
statements, effective January 1, 1997, the capital expenditures and other cash
flows of Flextech are no longer included in the Company's consolidated
statements of cash flows. Although the Company expects that its future capital
expenditure requirements with respect to Cablevision and the Puerto Rico
Subsidiary will equal or exceed historical levels, the Company currently
believes that the internally generated funds and other sources of liquidity of
Cablevision and the Puerto Rico Subsidiary generally will be sufficient to
satisfy the foreseeable capital expenditure requirements of such entities. In
this regard, subsequent to March 31, 1997, the Puerto Rico Subsidiary entered
into the Puerto Rico Bank Facility in connection with the Caguas Acquisition.
See note 11 to the accompanying consolidated financial statements and related
discussion below.
(continued)
I-42
<PAGE> 44
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Financial Condition (continued)
If at any time (x) the aggregate of the amount of (i) Flextech
securities held by the Company (ii) the Hallmark and U S WEST subsidiaries'
interests in Flextech acquired under the Hallmark Subscription and the U S WEST
Subscription, respectively, and (iii) Flextech securities acquired by IFE
pursuant to the IFE Acquisitions exceeds 75% of Flextech's issued and
outstanding share capital, or (y) subject to certain exceptions, the Flextech
Ordinary Shares cease to be admitted to trading on the Official List of the
London Stock Exchange as a result of the exercise by the Company of any of its
rights as a Flextech shareholder, the Company shall be obligated to offer to
purchase from the Hallmark and U S WEST subsidiaries, and from IFE any Flextech
Ordinary Shares held by them and which were originally acquired pursuant to the
Hallmark Subscription, the U S WEST Subscription, or the IFE Acquisitions, as
applicable. Under such circumstances, the offer price for such shares shall be
the higher of (i) the then current market price for the Flextech Ordinary
Shares and (ii) the highest price paid to any third party by the Company for
any Flextech Ordinary Shares during the preceding 12 month period. In the event
the Company is required to purchase any Flextech Ordinary Shares, as described
above, it may elect, subject to certain limited exceptions, to pay the purchase
price thereof in cash or in shares of Series A Common Stock, or in certain
securities of TCI.
(continued)
I-43
<PAGE> 45
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Financial Condition (continued)
On December 13, 1995, TINTA invested in MultiThematiques, a newly
formed European programming company, with two French media companies, CANAL+
and GDI. Canal + and GDI have contributed to MultiThematiques their combined
equity interests in four French thematic channels and Canal + has also
contributed its equity interest in a Spanish classic movie channel. The Company
contributed 123.1 million French Francs ("FF") ($24.7 million at the applicable
exchange rate), FF105.0 million ($20.4 million at the applicable exchange rate)
and FF100.00 million ($19.5 million at the applicable exchange rate) to
MultiThematiques in December 1995, December 1996 and February 1997,
respectively. The Company is obligated to contribute an additional FF164.0
million ($29.1 million) no later than December 13, 1997. In order to manage the
Company's foreign exchange currency risk with respect to its December 13, 1997
contribution obligation, the Company entered into a foreign currency option
contract that allows the Company to purchase FF164.0 million at a price of
FF5.5367 per U.S. dollar through December 13, 1997. Each of TINTA, Canal + and
GDI own a one-third interest in MultiThematiques.
On February 7, 1996, Cordillera and CTC entered into the Chile
Restructuring Agreements that provided for, among other matters, the
contribution of all the cable subscribers within each party's cable systems to
Metropolis-Intercom. Cordillera owns a 60% interest in Metropolis-Intercom and
CTC, Comercial Canelo S.A. and Empresa El Mercurio S.A.P. own jointly a
combined 40% interest. The Chile Restructuring Agreements also provided that
the Distribution Assets of Cordillera be sold to CTC. In June 1996, the parties
finalized the transactions contemplated by the Chile Restructuring Agreements
and the Distribution Assets were sold to CTC for cash proceeds of approximately
$120 million. Approximately $30 million of such cash proceeds (of which $17
million was received in fourth quarter of 1996 and $13 million was received in
first quarter of 1997) was used to reduce the amounts owed by BIP Chile to
TINTA pursuant to a subordinated loan agreement.
On February 8, 1996, the Company received net cash proceeds of
approximately $336 million from the issuance of the Debentures. The Debentures
are due in 2006 and have an aggregate principal amount of $345.0 million. The
Debentures are convertible into shares of Series A Common Stock at a price of
$27.30 per share of Series A Common Stock, subject to anti-dilution
adjustments. Interest on the Debentures is payable on February 15 and August 15
of each year. The Debentures are redeemable by TINTA, in whole or in part, at
any time on or after February 15, 1999. Pending its use by TINTA, the net
proceeds from the sale of the Debentures were loaned to TCI pursuant to the TCI
Note Receivable. Amounts outstanding under the TCI Note Receivable ($134.5
million at March 31, 1997) bear interest at variable rates based on TCI's
weighted average cost of bank borrowings of similar maturities and principal
and interest are due and payable as mutually agreed from time to time by TCI
and TINTA. The net proceeds from the Debentures that have been expended through
March 31, 1997 were used to fund capital contributions to the Company's
affiliates and to fund certain other liquidity requirements of TINTA.
(continued)
I-44
<PAGE> 46
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Financial Condition (continued)
On October 1, 1996 Cablevision acquired 99.99% of the issued and
outstanding capital stock of OCC for a purchase price of $112.2 million. Cash
consideration of $43.7 million was paid at closing and an additional cash
payment of $22.1 million was paid on December 1, 1996. Cablevision incurred
additional bank debt in order to fund such cash payments. The remaining
purchase price was satisfied by Cablevision's issuance of the OCC Notes. The
OCC Notes, which had a principal balance of $43.7 million at March 31, 1997,
will be repaid by Cablevision in 18 consecutive equal monthly installments
through September 10, 1998 and accrue interest at 9.25%. The OCC Notes are
secured by the pledge of 51% of the stock of OCC.
On December 31, 1996, pursuant to an amended and restated agreement of
limited partnership of BIP Poland, (i) TINTA converted the principal balance of
its revolving loan to BIP Poland ($23.8 million) to equity and made an
additional contribution of $10 million, (ii) BCI Poland contributed $18.5
million to BIP Poland, and (iii) TINTA's ownership percentage in BIP Poland was
reduced from 80% to 43.95%. The amended and restated agreement of limited
partnership also provides that each partner shall earn a return of 15% per annum
on the average of such partner's Unreturned Capital (as defined). Through March
31, 1997, the Company's Unreturned Capital in BIP Poland was $34.8 million. BIP
Poland used $25.2 million of the above-described cash contributions to fund the
December 31, 1996 acquisition of a cable television system serving areas of the
city of Warsaw, Poland.
On January 27, 1997, the Company announced that it was instituting a
stock repurchase program. Under the stock repurchase program, the Company may
repurchase from time to time up to 5% (approximately 5.3 million shares) of its
outstanding Series A Common Stock. Through March 31, 1997, the Company had
repurchased 492,000 shares under such program for an aggregate purchase price
of $6.8 million. Subsequent to March 31, 1997, the Company repurchased an
additional 2.9 million shares of Series A Common Stock for an aggregate
purchase price of $35.2 million under such program.
(continued)
I-45
<PAGE> 47
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Material Changes in Financial Condition (continued)
On March 10, 1997, the Company announced that it had signed the
Cablevision MOU that contemplates the Company's purchase of additional equity
interests in Cablevision such that the Company's ownership interest in
Cablevision would be increased from 51% to up to 90%. The Cablevision MOU
provides that each party's obligations are subject to approval by TINTA's Board
of Directors, due diligence and execution of definitive agreements. The parties
are in the process of negotiating the terms of the definitive agreements. There
can be no assurance that the parties will reach agreement on the terms of the
definitive agreements. Additionally, the purchase price contemplated by the
Cablevision MOU is significant and the Company would need to arrange for
financing before the Cablevision Minority Interest Purchase could be
consummated.
The Company has significant contingent obligations with respect to the
Standby Commitment provided by the Company to the Principal Joint Venture in
April 1997. For additional information concerning the effects of the formation
of the BBC Joint Ventures and related transactions on the liquidity and capital
resources of the Company and Flextech, see note 11 to the accompanying
consolidated financial statements.
On May 1, 1997, the Puerto Rico Subsidiary paid cash consideration of
approximately $12.2 million, and assumed aggregate indebtedness of $32.3
million, to acquire the 50% ownership interest in Caguas/Humacao Cable Systems
which the Company did not already own. In connection with the Caguas
Acquisition, the Puerto Rico Subsidiary entered into the Puerto Rico Bank
Facility and used borrowings of approximately $45 million thereunder to fund
the cash portion of the purchase price and to repay the assumed indebtedness.
For a description of the terms of the Puerto Rico Bank Facility, see note 11 to
the accompanying consolidated financial statements.
Cablevision's debt includes $100.5 million of bank borrowings due on or
before December 31, 1997. Although no assurance can be given, it is anticipated
that Cablevision will extend the maturity dates of, or otherwise refinance, such
bank borrowings.
In addition to the amount owed to TINTA pursuant to the TCI Note
Receivable, TINTA's sources of liquidity at the parent level include its cash
and cash equivalent balances, as described below, and the $200 million of
borrowing availability pursuant to the TCI Credit Facility. Any amounts borrowed
under the TCI Credit Facility would bear interest at 13% and would be due and
payable on April 25, 2000. At March 31, 1997, no borrowings were outstanding
pursuant to the TCI Credit Facility.
At March 31, 1997, $2.6 million of the Company's $6.9 million of cash
and cash equivalents was held by its subsidiaries. Exclusive of amounts held by
its subsidiaries, TINTA held cash and cash equivalents of $4.3 million at March
31, 1997. TINTA believes that such cash and cash equivalents, the remaining net
cash proceeds from the sale of the Debentures (which remaining net cash proceeds
have been loaned to TCI as described above), borrowing availability pursuant to
the TCI Credit Facility and the Puerto Rico Bank Facility, and any funds
generated by the operating or financing activities of TINTA's operating
subsidiaries and affiliates will be sufficient for the next year to (i) fund the
Company's existing capital contribution and lending commitments to its
affiliates and (ii) fund the Company's working capital, debt service and capital
expenditure requirements. Although TINTA's ability to obtain dividends or
advances from certain of its operating subsidiaries and affiliates is limited,
TINTA's liquidity requirements with respect to its operating subsidiaries and
affiliates are reduced to the extent that such operating subsidiaries and
affiliates are able to generate funds through their respective operating or
financing activities. To the extent that the Company consummates the Cablevision
Minority Interest Purchase or seeks to make other significant acquisitions or is
required to meet significant future liquidity requirements in addition to those
described above, the Company anticipates that it will need to obtain additional
debt or equity financing. Other events could occur involving TINTA, including
required payments under certain share repurchase, guarantee and indemnification
agreements, that could require TINTA to obtain significant additional funds. No
assurance can be given, however, that TINTA or its subsidiaries or affiliates
will be able to obtain additional financing on terms acceptable to them, or at
all.
I-46
<PAGE> 48
TELE-COMMUNICATIONS INTERNATIONAL, INC.
PART II - OTHER INFORMATION
Item 1. Legal Proceedings.
There were no new material legal proceedings or material developments
in previously reported legal proceedings during the quarter ended
March 31, 1997 to which the Company or any of its consolidated
subsidiaries is a party or which any of its property is subject.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits
10 - Material Contracts
10.1 - Partnership Interest Purchase Agreement by and
between TCID of Puerto Rico, Inc. and Joslin
Communications Corp.
10.2 - Step-In Deed Relating to UK Channel Management
Limited
10.3 - Credit Agreement dated as of April 30, 1997, among
TCI Cablevision of Puerto Rico, Inc. as the Borrower,
Certain Commercial Lending Institutions, as the
Lenders, and the Bank of Nova Scotia, as the
Administrative Agent for the Lenders.
27 - Financial Data Schedule
(b) Reports on Form 8-K filed during quarter ended March 31, 1997 -
none
II-1
<PAGE> 49
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TELE-COMMUNICATIONS INTERNATIONAL, INC.
Date: May 14, 1997 By: /s/ Fred A. Vierra
----------------------------------
Fred A. Vierra
Chief Executive Officer
Date: May 14, 1997 By: /s/ Graham Hollis
----------------------------------
Graham Hollis
Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
II-2
<PAGE> 50
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<S> <C>
10 - Material Contracts
10.1 - Partnership Interest Purchase Agreement by and between TCID of Puerto
Rico, Inc. and Joslin Communications Corp.
10.2 - Step-In Deed Relating to UK Channel Management Limited
10.3 - Credit Agreement dated as of April 30, 1997, among TCI Cablevision of
Puerto Rico, Inc. as the Borrower, Certain Commercial Lending
Institutions, as the Lenders, and the Bank of Nova Scotia, as the
Administrative Agent for the Lenders.
27 - Financial Data Schedule
</TABLE>
<PAGE> 1
PARTNERSHIP INTEREST PURCHASE AGREEMENT
BY AND BETWEEN
TCID OF PUERTO RICO, INC.
AND
JOSLIN COMMUNICATIONS CORP.
DATED AS OF
January ____, 1997
<PAGE> 2
<TABLE>
<S> <C>
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1 AFFILIATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 BASIC SERVICES . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.4 BUSINESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.5 BUSINESS DAY . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.6 CONSULTING AGREEMENT . . . . . . . . . . . . . . . . . . . . . . 2
1.7 CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.8 CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.9 ENCUMBRANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.10 ENVIRONMENTAL LAW . . . . . . . . . . . . . . . . . . . . . . . 3
1.11 EQUIPMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.12 EQUIVALENT BASIC SUBSCRIBERS (OR EBSS) . . . . . . . . . . . . . 3
1.13 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.14 EXPANDED BASIC SERVICE . . . . . . . . . . . . . . . . . . . . . 4
1.15 GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.16 GOVERNMENTAL AUTHORITY . . . . . . . . . . . . . . . . . . . . . 4
1.17 GOVERNMENTAL PERMITS . . . . . . . . . . . . . . . . . . . . . . 4
1.18 HAZARDOUS SUBSTANCES . . . . . . . . . . . . . . . . . . . . . . 4
1.19 INDEMNIFIED LIABILITIES . . . . . . . . . . . . . . . . . . . . 5
1.20 INDEMNIFIED LOSSES . . . . . . . . . . . . . . . . . . . . . . . 5
1.21 INTANGIBLES . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.22 KNOWLEDGE . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.23 LEGAL REQUIREMENT . . . . . . . . . . . . . . . . . . . . . . . 5
1.24 LOAN AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.25 MANAGEMENT AGREEMENT . . . . . . . . . . . . . . . . . . . . . . 5
1.26 PARTNERSHIP AGREEMENT . . . . . . . . . . . . . . . . . . . . . 5
1.27 PARTNERSHIP INTERESTS . . . . . . . . . . . . . . . . . . . . . 5
1.28 PARTNERSHIP NOTE . . . . . . . . . . . . . . . . . . . . . . . . 5
1.29 PAY TV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.30 PERMITTED ENCUMBRANCES . . . . . . . . . . . . . . . . . . . . . 6
1.31 PERSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.32 PLEDGE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . 6
1.33 REAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.34 REQUIRED CONSENTS . . . . . . . . . . . . . . . . . . . . . . . 6
1.35 SERVICE AREA . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1.36 STATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.37 SYSTEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.38 TCID NOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.39 THIRD PARTY . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.40 OTHER DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 7
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
2. SALE OF ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.1 PURCHASE AND SALE OF ASSETS . . . . . . . . . . . . . . . . . . . 8
3. CONSIDERATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.1 CONSIDERATION . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.2 ADJUSTMENTS TO PURCHASE PRICE . . . . . . . . . . . . . . . . . . 8
4. REPRESENTATIONS ND WARRANTIES OF SELLER . . . . . . . . . . . . . . . . . 9
4.1 ORGANIZATION AND QUALIFICATION . . . . . . . . . . . . . . . . . 9
4.2 AUTHORITY AND VALIDITY . . . . . . . . . . . . . . . . . . . . . 10
4.3 NO BREACH OR VIOLATION . . . . . . . . . . . . . . . . . . . . . 10
4.4 PARTNERSHIP INTERESTS . . . . . . . . . . . . . . . . . . . . . . 11
4.5 ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.6 GOVERNMENTAL PERMITS . . . . . . . . . . . . . . . . . . . . . . 11
4.7 CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.8 REAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.9 ENVIRONMENTAL MATTERS . . . . . . . . . . . . . . . . . . . . . . 12
4.10 COMPLIANCE WITH LAW . . . . . . . . . . . . . . . . . . . . . . 13
4.11 PATENTS, TRADEMARKS, AND COPYRIGHTS . . . . . . . . . . . . . . 14
4.12 FINANCIAL STATEMENTS . . . . . . . . . . . . . . . . . . . . . . 15
4.13 LEGAL PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . 15
4.14.TAX RETURNS; OTHER REPORTS . . . . . . . . . . . . . . . . . . . 15
4.15 EMPLOYMENT MATTERS . . . . . . . . . . . . . . . . . . . . . . . 16
4.16 FINDERS AND BROKERS . . . . . . . . . . . . . . . . . . . . . . 16
4.17 DISCLOSURE . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5. BUYERS REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . 17
5.1 ORGANIZATION AND QUALIFICATION . . . . . . . . . . . . . . . . . 17
5.2 AUTHORITY AND VALIDITY . . . . . . . . . . . . . . . . . . . . . 17
5.3 NO BREACH OR VIOLATION . . . . . . . . . . . . . . . . . . . . . 17
5.4 FINDERS AND BROKERS . . . . . . . . . . . . . . . . . . . . . . . 18
6. ADDITIONAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
6.1 ACCESS TO PREMISES AND RECORDS . . . . . . . . . . . . . . . . . 18
6.2 CONTINUITY AND MAINTENANCE OF OPERATIONS; FINANCIAL STATEMENTS . 18
6.3 REQUIRED CONSENTS . . . . . . . . . . . . . . . . . . . . . . . . 19
6.4 HSR NOTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . 20
6.5 NO SHOPPING . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
6.6 NOTIFICATION OF CERTAIN MATTERS . . . . . . . . . . . . . . . . . 20
6.7 RISK OF LOSS; CONDEMNATION . . . . . . . . . . . . . . . . . . . 21
6.8 LIEN AND JUDGEMENT SEARCHES . . . . . . . . . . . . . . . . . . . 21
6.9 TRANSFER TAXES . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.10 NONCOMPETITION AGREEMENT . . . . . . . . . . . . . . . . . . . . 22
6.11 UPDATED SCHEDULES . . . . . . . . . . . . . . . . . . . . . . . 22
6.12 SATISFACTION OF CONDITIONS . . . . . . . . . . . . . . . . . . . 22
6.13 EMPLOYEE MATTERS . . . . . . . . . . . . . . . . . . . . . . . . 22
6.14 CONFIDENTIALITY . . . . . . . . . . . . . . . . . . . . . . . . 22
6.15 BUYER COOPERATION . . . . . . . . . . . . . . . . . . . . . . . 23
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
6.16 TAX RETURNS . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.17 INCENTIVE PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . 23
6.18 PHASE I REPORTS . . . . . . . . . . . . . . . . . . . . . . . . 24
6.19 PROMISSORY NOTES . . . . . . . . . . . . . . . . . . . . . . . . 24
7. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8. CONDITIONS TO CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . 24
8.1 CONDITIONS TO THE OBLIGATIONS OF BUYER AND SELLER . . . . . . . . 24
8.2 CONDITIONS TO THE OBLIGATIONS OF BUYER . . . . . . . . . . . . . 25
8.3 CONDITIONS TO OBLIGATIONS OF SELLER . . . . . . . . . . . . . . . 27
8.4 WAIVER OF CONDITIONS . . . . . . . . . . . . . . . . . . . . . . 28
9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
9.1 EVENTS OF TERMINATION . . . . . . . . . . . . . . . . . . . . . . 28
9.2 LIABILITIES IN EVENT OF TERMINATION . . . . . . . . . . . . . . . 28
9.3 PROCEDURE UPON TERMINATION . . . . . . . . . . . . . . . . . . . 28
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION . . . . . . . 28
10.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . 28
10.2 INDEMNIFICATION BY SELLER . . . . . . . . . . . . . . . . . . . 29
10.3 INDEMNIFICATION BY BUYER . . . . . . . . . . . . . . . . . . . . 30
10.4 THIRD PARTY CLAIMS . . . . . . . . . . . . . . . . . . . . . . . 30
10.5 LIMITATIONS ON INDEMNIFICATION - SELLER . . . . . . . . . . . . 31
10.6 FLOOR ON INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 31
10.7 CAPS ON INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . 32
10.8 RELEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.9 LIMITATION ON REMEDIES . . . . . . . . . . . . . . . . . . . . . 32
11. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.1 PARTIES OBLIGATED AND BENEFITED . . . . . . . . . . . . . . . . 33
11.2 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
11.3 ATTORNEYS' FEES . . . . . . . . . . . . . . . . . . . . . . . . 34
11.4 RIGHT TO SPECIFIC PERFORMANCE . . . . . . . . . . . . . . . . . 34
11.5 WAIVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.6 CAPTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.7 CHOICE OF LAW . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.8 TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
11.9 RIGHTS CUMULATIVE . . . . . . . . . . . . . . . . . . . . . . . 34
11.10 FURTHER ACTIONS . . . . . . . . . . . . . . . . . . . . . . . . 34
11.11 TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.12 LATE PAYMENTS . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.13 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.14 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . 35
11.15 SEVERABILITY . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.16 CONSTRUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.17 EXPENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
11.18 BUY/SELL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . 35
</TABLE>
<PAGE> 5
SCHEDULES
SCHEDULE 1 BUSINESS
SCHEDULE 2 GOVERNMENT PERMITS
SCHEDULE 3 CONTRACTS
SCHEDULE 4 REQUIRED CONSENTS
SCHEDULE 5 EQUIPMENT
SCHEDULE 6 REAL PROPERTY
SCHEDULE 7 SECURITY INTERESTS
SCHEDULE 8 COMPLIANCE WITH LAW
SCHEDULE 9 EXCEPTIONS TO FINANCIAL STATEMENTS
SCHEDULE 10 PROCEEDINGS AND JUDGMENTS
SCHEDULE 11 TAXES
SCHEDULE 12 EMPLOYEE MATTERS
EXHIBIT A PARTNERSHIP AGREEMENT
EXHIBIT B ASSIGNMENT AND ASSUMPTION OF PARTNERSHIP INTERESTS
EXHIBIT C NONCOMPETITION AGREEMENT
EXHIBIT D SELLER'S AFFIDAVIT
EXHIBIT E TERMINATION AGREEMENT
EXHIBIT F SELLER'S OPINION
EXHIBIT G BUYER'S OPINION
<PAGE> 6
PARTNERSHIP INTEREST PURCHASE AGREEMENT
This Partnership Interest Purchase Agreement ("Agreement") is made as of
the __ day of January, 1997, by and between TCID of Puerto Rico, Inc., a Nevada
corporation ("Buyer"), and Joslin Communications Corp., a Delaware corporation
("Seller").
RECITALS
Caguas/Humacao Cable Systems, a Connecticut general partnership (the
"Partnership"), is the owner and operator of certain cable television systems
serving subscribers in and around Caguas, Gurabo, San Lorenzo, Humacao, Juncos,
Las Piedras, Yabucoa, Cayey, Cidra, Aibonito, Comerio, Barranquitas, Narajito,
and Aguas Buenas, Puerto Rico.
Buyer is the holder of a 50% general partnership interest in the
Partnership.
Upon formation of the Partnership, Seller, the managing general partner,
held a 30% general partnership interest in the Partnership.
Upon formation of the Partnership, PGC, Inc., a Puerto Rico corporation
("PGC"), held a 15% general partnership interest in the Partnership.
Upon formation of the Partnership, Rowal Electronics Company, Inc., a
Puerto Rico corporation ("REI"), held a 5% general partnership interest in the
Partnership. Each of Seller, Buyer, PGC and REI are referred to herein as the
"Partners."
Pursuant to an Acquisition Agreement, dated as of July 15, 1986, among
Placido Gonzalez and Lucia Munoz de Gonzalez, Robert J. Walser and Georgia
Colon de Walser and Raymond E. Joslin ("Joslin"), Joslin (or his assignee) had
an option ("Option") to acquire the general partnership interests in the
Partnership held by PGC and REI (the "Other Partners"). On June 8, 1987,
Joslin assigned his rights under the Option to Seller. Seller exercised the
Option on December 23, 1996 and acquired the general partnership interests held
by the Other Partners. Seller currently is the holder of a 50% general
partnership interest in the Partnership.
Seller desires to sell to Buyer, and Buyer desires to buy from
Seller, all of Seller's partnership interests in the Partnership after the
exercise of the Option, free and
<PAGE> 7
clear of all liens other than Permitted Encumbrances, on the terms and
conditions set forth herein.
AGREEMENT
In consideration of the above recitals and the mutual agreements stated
in this Agreement, the parties agree as follows:
1. DEFINITIONS.
In addition to terms defined elsewhere in this Agreement, the following
capitalized terms, when used in this Agreement, will have the meanings set
forth below:
1.1. Affiliate. With respect to any Person, any other Person
controlling, controlled by or under common control with such Person, with
"control" for such purpose meaning the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities or voting interests,
by contract or otherwise.
1.2. Assets. All properties, privileges, rights, interests and
claims, real and personal, tangible and intangible, of every type and
description that are owned, leased, held, used or useful in the Partnership,
including Governmental Permits, Intangibles, Contracts, Equipment, Real
Property and deposits relating to the Business that are held by third parties
for the account of the Partnership or for security for the Partnership's
performance of its obligations.
1.3. Basic Services. The lowest tier of service offered to
subscribers of a System for which a subscriber pays a fixed monthly fee to the
partnership.
1.4. Business. The cable television business conducted by the
Partnership on the date of this Agreement through one or more Systems in and
around the Service Area, as described on SCHEDULE 1.
1.5. Business Day. Any day other than Saturday, Sunday or a day on
which banking institutions in Denver, Colorado, Caguas or Humacao, Puerto Rico
or New York, New York are required or authorized to be closed.
1.6. Consulting Agreement. The Consulting Agreement, dated as of June
8, 1987, among the Partnership and the Other Partners.
1.7. Contracts. All contracts and agreements, other than Governmental
Permits and those relating to Real Property, pertaining to the ownership,
operation and maintenance of the Assets or the Business or used or held for use
in the Business, as described on SCHEDULE 3.
2
<PAGE> 8
1.8. Closing. The consummation of the transactions contemplated by
this Agreement, as described in Section 7, the date of which is referred to as
the Closing Date.
1.9. Encumbrance. Any mortgage, lien, security interest, security
agreement, conditional sale or other title retention agreement, limitation,
pledge, option, charge, assessment, restrictive agreement, restriction,
encumbrance, adverse interest, restriction on transfer or any exception to or
defect in title or other ownership interest (including reservations, rights of
way, possibilities of reverter, encroachments, easements, rights of entry,
restrictive covenants, leases and licenses).
1.10. Environmental Law. Any applicable Legal Requirement relating to
pollution or protection of public health, safety or welfare or the environment,
including those relating to emissions, discharges, releases or threatened
releases of Hazardous Substances into the environment (including ambient air,
surface water, ground water or land), or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Substances.
1.11. Equipment. All electronic devices, trunk and distribution
coaxial and optical fiber cable, amplifiers, power supplies, conduit, vaults
and pedestals, grounding and pole hardware, subscriber's devices (including
converters, encoders, transformers behind television sets and fittings),
headend hardware (including origination, earth stations, transmission and
distribution system), test equipment, vehicles and other tangible personal
property owned, leased, used or held for use in the Business, as described on
SCHEDULE 5 (and with respect to leased Equipment, on SCHEDULE 3).
1.12. Equivalent Basic Subscribers (or EBSs). As of any date of
determination and for each franchise area served by a System, the sum of (a)
the total number of private residential customer accounts that are billed by
individual unit (regardless of whether such accounts are in single-family homes
or in individually billed units in apartment buildings and other multi-unit
buildings) (exclusive of (i) "second connects" and "additional outlets" as such
terms are commonly understood in the cable television industry, and (ii)
accounts that are not charged or are charged less than the standard monthly
service fees and charges then in effect for such System for Basic Services) for
Basic Services and (b) the quotient of (i) the total monthly billings for sales
of Basic Services and Expanded Basic Services by such System during the most
recent month ended prior to the date of calculation to commercial, bulk-billed
and other accounts not billed by individual unit (whether on a discounted or
undiscounted basis), but excluding billings in excess of a single month's
charges for any account, divided by (ii) the standard monthly combined rate
(without discount of any kind) charged to individually billed subscribers for
Basic Services and Expanded Basic Services in effect during such month, which
monthly rate will not be less than the rates specified in SCHEDULE 1. For
purposes of calculating the number of EBSs, there will be excluded all
individually
3
<PAGE> 9
billed accounts whose account is, and all billings to any commercial, bulk-
billed and other accounts not billed by individual unit that are, more than 60
days past due from the invoice date in the payment of any amount in excess of
$5.00.
1.13. ERISA. The Employee Retirement Income Security Act of 1974, as
amended.
1.14. Expanded Basic Service. Any video programming provided over a
cable television system, regardless of service tier other than Basic Services
and video programming offered on a per channel or per program basis.
1.15. GAAP. Generally accepted accounting principles as in effect from
time to time in the United States of America, consistently applied.
1.16. Governmental Authority. (a) The United States of America, (b)
any State, commonwealth, territory or possession of the United States of
America and any political subdivision thereof (including counties,
municipalities and the like), (c) any foreign (as to the United States of
America) sovereign entity and any political subdivision thereof, or (d) any
agency, authority or instrumentality of any of the foregoing, including any
court, tribunal, department, bureau, commission or board.
1.17. Governmental Permits. All franchises, approvals, authorizations,
permits, licenses, easements, registrations, qualifications, leases, variances
and similar rights obtained from any Governmental Authority, including those
set forth on SCHEDULE 2.
1.18. Hazardous Substances. Any pollutant, contaminant, chemical,
industrial, toxic, hazardous or noxious substance or waste which is regulated
by any Governmental Authority, including (a) any petroleum or petroleum
compounds (refined or crude), flammable substances, explosives, radioactive
materials or any other materials or pollutants which pose a hazard or potential
hazard to the Real Property or to Persons in or about the Real Property or
cause the Real Property to be in violation of any laws, regulations or
ordinances of federal, State or applicable local governments, (b) asbestos or
any asbestos-containing material of any kind or character, (c) polychlorinated
biphenyls ("PCBs"), as regulated by the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq., (d) any materials or substances designated as "hazardous
substances" pursuant to the Clean Water Act, 33 U.S.C. Section 1251 et seq.,
(e) "economic poison," as defined in the Federal Insecticide, Fungicide and
Rodenticide Act, 7 U.S.C. Section 135 et seq., (f) "chemical substance," "new
chemical substance" or "hazardous chemical substance or mixture" pursuant to
the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., (g)
"hazardous substances" pursuant to the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq. and (h)
"hazardous waste" pursuant to the Resource Conservation and Recovery Act, 42
U.S.C. Section 6901 et seq.
4
<PAGE> 10
1.19. Indemnified Liabilities. (A) The Partnership's obligations to
subscribers of the Business for the delivery of cable television service to
subscribers of the Business after the Closing Date; (B) liabilities and
obligations shown on the financial statements of the Partnership as of November
30, 1996; (C) liabilities and obligations of the Partnership arising in the
ordinary course since November 30, 1996 and not in violation of Seller's
obligations hereunder; and (D) obligations accruing and relating to periods
after the Closing Date under Governmental Permits listed on SCHEDULE 2 (to the
extent that such Governmental Permits are transferable) and Contracts listed on
SCHEDULE 3.
1.20. Indemnified Losses. Seller's Indemnified Losses and Buyer's
Indemnified Losses.
1.21. Intangibles. All intangible assets, including subscriber lists,
accounts receivable, claims, patents, copyrights and goodwill, if any, owned,
used or held for use in the Business.
1.22. Knowledge. The actual knowledge of a particular matter of
Raymond E. Joslin or Jose Romero.
1.23. Legal Requirement. Any statute, ordinance, code, law, rule,
regulation, order or other requirement, standard or procedure enacted, adopted
or applied by any Governmental Authority, including common law.
1.24. Loan Agreement. Amended and Restated Loan Agreement dated July
30, 1993 (effective January 1, 1993) between the Partnership and Philips Credit
Company, which was subsequently assigned to Lazard Freres & Co. LLC ("Lazard")
on October 26, 1995.
1.25. Management Agreement. The Management Agreement, dated as of June
8, 1987, among the Partnership and the Partners.
1.26. Partnership Agreement. The Partnership Agreement of the
Partnership dated February 14, 1987, as amended by Amendment No. 1 dated June
8, 1987 among the Partners and Amendment No. 2 dated November 6, 1987, a copy
of which is attached hereto as Exhibit A.
1.27. Partnership Interests. As of the date of this Agreement, a
fifty percent general partnership interest in the Partnership, which represents
all of the partnership interests in the Partnership owned by Seller.
1.28. Partnership Note. The Promissory Note, dated June 8, 1987, from
the Partnership to Seller in the principal amount of $167,000.
5
<PAGE> 11
1.29. Pay TV. Premium programming services selected by and sold to
subscribers on an a la carte basis for monthly fees in addition to the fee for
Basic Services or Expanded Basic Services.
1.30. Permitted Encumbrances. The following Encumbrances: (a) liens
for taxes, assessments and governmental charges not yet due and payable; (b)
zoning laws and ordinances and similar Legal Requirements; (c) rights reserved
to any Governmental Authority to regulate the affected property; (d) as to Real
Property interests, any easements, rights-of-way, servitudes, permits,
restrictions and minor imperfections or irregularities in title which are
reflected in the public records and which do not individually or in the
aggregate interfere with the right or ability to own, use or operate the Real
Property or to convey good, marketable and indefeasible title to such Real
Property; (e) all restrictions, liabilities and obligations under the
Partnership Agreement; (f) all liens, security interests, mortgages and other
security arrangements relating to the Assets which are held by Lazard in
connection with the Loan Agreement; (g) the following encumbrances: (i)
statutory liens of carriers, warehousemen, mechanics, materialmen and other
similar liens imposed by law that are incurred in the ordinary course; and (ii)
liens incurred in the ordinary course in connection with workers' compensation,
unemployment insurance and other types of social security; and those
encumbrances set forth in SCHEDULE 7 attached hereto; provided that
classification of any item as a Permitted Encumbrance will not affect any
liability Seller may have for such item, including pursuant to any indemnity
obligation under this Agreement.
1.31. Person. Any natural person, corporation, partnership, trust,
unincorporated organization, association, limited liability company,
Governmental Authority or other entity.
1.32. Pledge Agreement. The Partnership Pledge and Assignment
Agreement dated June 8, 1987 among the Partnership, the Partners and Philips
Credit Corporation, as assigned to Lazard on October 26, 1995.
1.33. Real Property. All Assets consisting of realty, including
appurtenances, improvements and fixtures located on such realty (including
cable plant), and any other interests in real property, including fee
interests, leasehold interests and easements, wire crossing permits, rights of
entry (except agreements related to multiple dwelling units) described on
SCHEDULE 6.
1.34. Required Consents. All franchises, licenses, authorizations,
approvals and consents required under Governmental Permits, Contracts or
otherwise for Buyer to acquire the Partnership Interests from Seller.
1.35. Service Area. The area in which the Partnership operates the
Business, specifically in and around Caguas, Gurabo, San Lorenzo, Humacao,
Juncos, Las Piedras
6
<PAGE> 12
and Yabucoa, Cayey, Cidra, Aibonito, Comerio, Barranquitas, Nararjito, Aguas
Buenas and Orocovis, Puerto Rico.
1.36. State. The fifty states of the United States and the
Commonwealth of Puerto Rico.
1.37. System. A complete cable television reception and distribution
system operated in the conduct of the Business, consisting of one or more
headends, subscriber drops and associated electronic and other equipment, and
which is, or is capable of being without modification, operated as an
independent system without interconnections to other systems. Any systems
which are interconnected or which are served in total or in part by a common
headend will be considered a single System.
1.38. TCID Note. The note dated as of June 8, 1987, payable by Joslin
to TCI Development Corp. in the principal amount of $83,000.
1.39. Third Party. Any Person other than Seller or Buyer and its
Affiliates.
1.40. Other Definitions. The following terms are defined in the
Sections indicated:
<TABLE>
<CAPTION>
Term Section
---- -------
<S> <C>
Action 10.4
Antitrust Division 6.4
Buyer's Indemnified Losses 10.3
Closing Date 1.11
Closing Incentive 6.17
CRIM 3.2.1
FCC 4.6
Financial Statements 4.12
FTC 6.4
Holdback Amount 3.1
Holdback Base 6.17
Holdback Incentive 6.17
HSR Act 6.4
Incentive Base 6.17
Incentive Plan 6.17
Indemnified Party 10.4
Indemnifying Party 10.4
Joslin Recitals
Lazard 1.26
Loan Agreement Recitals
1992 Cable Act 4.10.4
Option Recitals
Other Partners Recitals
Partnership Recitals
PGC Recitals
Purchase Note 6.19
Purchase Price 3.1
REI Recitals
Rate Regulation Documents 4.10.4
Seller's Indemnified Losses 10.2
Taking 6.7.2
Transaction Documents 4.2
</TABLE>
7
<PAGE> 13
2. SALE OF ASSETS.
2.1. Purchase and Sale of Partnership Interests. Subject to the terms
and conditions set forth in this Agreement, at the Closing, Seller will sell to
Buyer, and Buyer will purchase from Seller, all of Seller's rights, titles and
interests in, to and under the Partnership Interests.
3. CONSIDERATION.
3.1. Purchase Price. Buyer shall pay to Seller for the Partnership
Interests an amount equal to Thirteen Million Dollars ($13,000,000) (the
"Purchase Price"), subject to adjustment as provided in Section 3.2. Such
consideration will be paid by wire transfer of immediately available funds in
consideration of the sale of the Partnership Interests to Buyer as follows: (a)
Twelve Million, Six Hundred and Nineteen Thousand Two Dollars ($12,619,002),
less 50% of the Closing Incentive as provided in Section 6.17 and less
principal and accrued interest due under the TCID Note, will be paid on the
Closing Date, and (b) Three Hundred Eighty Thousand Nine Hundred Ninety-Eight
Dollars ($380,998) (the "Holdback Amount"), subject to adjustment as provided
below and to Seller's obligation under Section 10.2, will be paid on the date
or dates prescribed by Section 3.2.
3.2. Adjustments to Purchase Price. The Holdback Amount, subject to
adjustment as provided below, shall be payable as follows:
3.2.1. After Closing, Buyer shall commence negotiations with
Centro Recaudaciones de Impuestos Municipiales ("CRIM") to determine the
Partnership's liability for property taxes for all periods prior to Closing and
shall pay the amount agreed upon with CRIM (the "Agreed Taxes"). If the amount
of Agreed Taxes exceeds $2,098,422 [amount of accrual], Buyer shall apply a
portion of the Holdback Amount equal to 50% of such excess ("Seller's Tax
Payment") to pay the Agreed Taxes. Within 10 Business Days after the Agreed
Taxes are paid, Buyer shall pay to Seller $201,561 less the Seller's Tax
Payment plus interest calculated pursuant to Section 3.2 less 50% of
8
<PAGE> 14
the Holdback Incentive due to Jose A. Romero and Adalberto Velez pursuant to
Section 6.17.
3.2.2. If from and after Closing any claim is made against the
Business for copyright royalties, interest or penalties for any copyright
period ending on or before the Closing Date (the "Pre-Closing Copyright Fees"),
Buyer shall apply a portion of the Holdback Amount equal to 50% of the Pre-
Closing Copyright Fees ("Seller's Copyright Fee") to pay the Pre-Closing
Copyright Fees.
3.2.3. On the first anniversary of the Closing Date, Buyer shall
pay to Seller the Holdback Amount less any amounts previously paid under
Section 3.2.1 (excluding interest paid under Section 3.2.1) and less the amount
of Seller's Copyright Fees, if any, plus interest calculated pursuant to
Section 3.2.4 and less 50% of the Holdback Incentive due to Jose A. Romero and
Adalberto Velez pursuant to Section 6.17.
3.2.4. The portions of the Holdback Amount paid to Seller
pursuant to Sections 3.2.1, 3.2.2 or 3.2.3 shall bear interest from and
including the Closing Date through the day prior to the date paid to Seller at
5% per annum.
4. REPRESENTATIONS AND WARRANTIES OF SELLER.
To induce Buyer to enter into this Agreement, Seller represents and
warrants to Buyer, as of the date of this Agreement and as of the Closing, as
follows:
4.1. Organization and Qualification. Seller is a corporation duly
organized, validly existing and in good standing under the laws of Delaware.
The Partnership is a general partnership duly organized and validly existing
under the laws of Connecticut and has all requisite partnership power and
authority to own, lease and use the Assets as they are currently owned, leased
and used and to conduct the Business as it is currently conducted. The
Partnership is duly qualified or licensed to do business and is in good
standing under the laws of Puerto Rico. Other than this Agreement, the Loan
Agreement and all security agreements and pledge agreements entered into
pursuant to the Loan Agreement, the Partnership Agreement, the Governmental
Permits, the Management Agreement, and the Contracts listed on Schedule 3,
there are no other agreements, commitments or understandings relating to the
ownership of the Partnership Interests or management, control or operation of
the Partnership. The Partnership has no subsidiaries and owns no capital stock
or other equity securities or interests of or in any other entity, partnership
or joint venture. Other than the Governmental Permits, the Loan Agreement and
all security agreements and pledge agreements entered into pursuant to the Loan
Agreement, the Partnership Interests are not subject to any Encumbrance. The
sole business of the Partnership is the operation and management of the
Systems, and it holds no assets or liabilities material to the Partnership
other than the assets and liabilities relating to the Systems as set forth on
the Schedules hereto. Neither Seller nor the Partnership is a participant in
any joint venture, partnership or similar arrangement with
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<PAGE> 15
any other person or party with respect to the Systems or any part of the
Assets, other than the Partnership. The outstanding Partnership Interests of
the Partnership are held as follows:
<TABLE>
<CAPTION>
Partner Percentage Interest
- ------- -------------------
<S> <C>
Seller 50% general
Buyer 50% general
</TABLE>
4.2. Authority and Validity. Seller has all requisite corporate power
and authority to execute and deliver, to perform its obligations under, and to
consummate the transactions contemplated by, this Agreement and all other
documents and instruments to be executed and delivered in connection with the
transactions contemplated by this Agreement (collectively, the "Transaction
Documents") to which Seller is a party. The execution and delivery by Seller
of, the performance by Seller of its obligations under, and the consummation by
Seller of the transactions contemplated by, this Agreement and the Transaction
Documents to which Seller is a party have been duly authorized by all requisite
corporate action of Seller, including shareholder consent. This Agreement is,
and when executed and delivered by Seller the Transaction Documents will be,
the valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms, except insofar as enforceability may be affected by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
now or hereafter in effect affecting creditors' rights generally or by
principles governing the availability of equitable remedies.
4.3. No Breach or Violation. Subject to obtaining the Required
Consents, all of which are listed on SCHEDULE 4, and the notification and
expiration or earlier termination of the waiting period under the HSR Act, the
execution, delivery and performance of this Agreement and the Transaction
Documents to which Seller is a party by Seller will not: (a) violate any
provision of the charter or bylaws of Seller; (b) violate any Legal
Requirement; (c) require any consent, approval or authorization of, or any
filing with or notice to, any Person; or (d) (i) violate, conflict with or
constitute a breach of or default under, (ii) permit or result in the
termination, suspension or modification of, (iii) result in the acceleration of
(or give any Person the right to accelerate) the performance of Seller under,
or (iv) result in the creation or imposition of any Encumbrance under any
Contract or any other instrument evidencing any of the Assets or any instrument
or other agreement to which Seller or the Partnership is a party or by which
Seller or the Partnership or any of its assets is bound or affected, except for
purposes of this clause (d) such violations, conflicts, breaches, defaults,
terminations, suspensions, modifications, and accelerations as would not,
individually or in the aggregate, have a material adverse effect on any System,
the Business, Seller or the Partnership or on the ability of Seller to perform
its obligations under this Agreement or the Transaction Documents to which
Seller is a party.
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<PAGE> 16
4.4 Partnership Interests. Seller is the record and beneficial owner
of a 50% Partnership Interest, free and clear of all Encumbrances, except for
(a) Permitted Encumbrances and (b) restrictions stated in the Governmental
Permits, with full power, right and authority to sell and deliver the
Partnership Interests pursuant to this Agreement. Upon the sale of the
Partnership Interests in accordance with this Agreement, Buyer will be the
record and beneficial owner of the Partnership Interests, free and clear of any
and all Encumbrances except for Permitted Encumbrances, restrictions stated in
the Governmental Permits and any Encumbrances created or permitted to exist by
Buyer. Except for the partnership interests in the Partnership held by Buyer
and Seller and the rights of the pledgee under the Pledge Agreements, there are
no other partnership interests or other equity securities of the Partnership
outstanding and there are no outstanding (i) securities convertible into or
exchangeable for any of the partnership interests of the Partnership; (ii)
options, warrants or other rights to purchase or subscribe to the partnership
interests of the Partnership; or (iii) commitments, agreements or
understandings of any kind relating to the issuance or repurchase by the
Partnership of any of the partnership interests of the Partnership, or any
convertible or exchangeable securities or any options, warrants or rights.
4.5. Assets. The Partnership has exclusive, good and marketable title
to (or, in the case of Assets that are leased, valid leasehold interests in)
the Assets (other than Real Property, as to which the representations and
warranties in Section 4.8 apply). The Assets are free and clear of all
Encumbrances of any kind or nature, except (a) Permitted Encumbrances and (b)
restrictions stated in the Governmental Permits. Except as set forth on
SCHEDULE 3, none of the Equipment is leased by the Partnership from any other
Person. The Assets are all the assets necessary to permit the Partnership to
conduct the Business after the date of this Agreement substantially as it is
being conducted on the date of this Agreement and in compliance with all Legal
Requirements and Contracts. All the Equipment is in good operating condition
and repair, ordinary wear and tear excepted and is suitable and adequate for
continued use in the manner in which it is presently used. To Seller's
Knowledge, no Third Party has been granted or has applied for a cable
television franchise in any area currently served by the Business.
4.6. Governmental Permits. Complete and correct copies of the
Governmental Permits, all of which are listed on SCHEDULE 2, have been
delivered by Seller to Buyer. The Governmental Permits are currently in full
force and effect and are issued and maintained in all material respects
according to all applicable Legal Requirements. There is no legal action,
governmental proceeding or investigation, pending or, to Seller's knowledge,
threatened, to terminate, suspend or modify any Governmental Permit. Except as
disclosed in Section 4.11 with respect to copyright filings, the Partnership is
in material compliance with the terms and conditions of all the Governmental
Permits and with other applicable requirements of all Governmental Authorities
(including the Federal Communications Commission ("FCC") and the Register of
Copyrights) relating to the Governmental Permits, including all requirements
for notification, filing, reporting, posting and maintenance of logs and
records.
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<PAGE> 17
4.7. Contracts. All written Contracts and, to Seller's Knowledge, all
oral Contracts, are described on SCHEDULE 3. Complete and correct copies of
all Contracts have been provided to Buyer. Except as set forth on SCHEDULE 3,
each written Contract is in full force and effect and constitutes the valid,
legal, binding and enforceable obligation of the Partnership and the
Partnership is not, and to Seller's knowledge, each other party thereto is not
in breach or default of any terms or conditions thereunder.
4.8. Real Property.
4.8.1. All the Assets consisting of Real Property interests are
described (including recordation data) on SCHEDULE 6. Except as otherwise
disclosed on SCHEDULE 6, the Partnership holds good, marketable and
indefeasible title in pleno dominio to the Real Property shown as being owned
by the Partnership on SCHEDULE 6 and the valid and enforceable right to use and
possess such Real Property, subject only to the Permitted Encumbrances. The
Partnership has valid and enforceable leasehold interests in Real Property
shown as being leased by the Partnership on SCHEDULE 6 and except as otherwise
set forth in SCHEDULE 6 such leasehold interests have been recorded in the
appropriate section of the Registry of Property of Puerto Rico in accordance
with applicable laws. With respect to other Real Property not owned or leased
by the Partnership, the Partnership has the valid and enforceable right to use
all other Real Property pursuant to the easements, licenses, rights-of-way or
other rights described on SCHEDULE 6, subject only to Permitted Encumbrances.
4.8.2. The documents delivered by Seller to Buyer as evidence of
each lease of Real Property constitute the entire agreement with the landlord
in question. There are no leases or other agreements, oral or written,
granting to any Person other than the Partnership the right to occupy or use
any Real Property, except as described on SCHEDULE 6. The Partnership has
valid and enforceable easements, rights-of-way and other rights appurtenant to,
or which are necessary for the Partnership's current use of, any Real Property
and the Partnership has not received any notice with respect to the
termination, breach or impairment of any of those rights. Except for the
Americans With Disabilities Act, each parcel of Real Property, any improvements
constructed thereon and their current use conform to (a) all applicable Legal
Requirements, including zoning requirements, and (b) all restrictive covenants,
if any, or other Encumbrances affecting all or part of such parcel.
4.9. Environmental Matters.
4.9.1. The Real Property currently complies in all material
respects with and, to Seller's Knowledge, has previously been operated in all
material respects in compliance with, all Environmental Laws. Other than in
material compliance with Environmental Laws, the Partnership has not released,
stored, treated, handled, discharged or disposed of any Hazardous Substances
at, on, under, in or about, or in any
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<PAGE> 18
other manner affecting, any Real Property, transported any Hazardous Substances
to or from any Real Property or discharged any Hazardous Substances from any
Real Property into any body of water, directly or indirectly, and, to Seller's
Knowledge, no other present or previous owner, tenant, occupant or user of any
Real Property or any other Person has committed or suffered any of the
foregoing. To Seller's Knowledge, no release of Hazardous Substances outside
the Real Property has entered or threatens to enter any Real Property, nor is
there any pending or threatened claim against the Partnership based on
Environmental Laws which arises from any condition of the land surrounding any
Real Property. No claim or investigation based on Environmental Laws which
relates to any Real Property or any operations on it (a) has been asserted or
conducted in the past or is currently pending against or with respect to the
Partnership or, to Seller's Knowledge, any other Person, or (b) to Seller's
Knowledge, is threatened or contemplated.
4.9.2. To Seller's Knowledge, (a) no underground storage tanks
are currently or have been located on any Real Property, (b) no Real Property
has been used at any time as a gasoline service station or any other facility
for storing, pumping, dispensing or producing gasoline or any other petroleum
products or wastes and (c) no building or other structure on any Real Property
contains asbestos. Except for septic tanks located at the Cayey and
Barranquitas head end sites, there are no incinerators, septic tanks or
cesspools on the Real Property and all waste is discharged into a public
sanitary sewer system.
4.9.3. Seller has provided Buyer with copies of (a) all studies,
reports, surveys or other materials in Seller's or the Partnership's possession
or to which, to Seller's Knowledge, Seller or the Partnership currently has
reasonable access relating to the presence or alleged presence of Hazardous
Substances at, on or affecting the Real Property, (b) all notices or other
materials in Seller's or the Partnership's possession that were received from
any Governmental Authority having the power to administer or enforce any
Environmental Laws relating to current or past ownership, use or operation of
the Real Property or activities at the Real Property and (c) all materials in
Seller's or the Partnership's possession or to which, to Seller's Knowledge,
Seller or the Partnership currently has reasonable access relating to any
claim, allegation or action with respect to the Real Property by any private
third party under any Environmental Law. For the purposes of this 4.9.3, it is
understood and agreed that access does not include any information, document or
matter that may be obtained from a Government Authority or contractor thereof
or that may be obtained by purchase or payment of a fee.
4.10. Compliance with Law.
4.10.1. To Seller's Knowledge, the ownership, leasing and use of
the Assets as they are currently owned, leased and used and the conduct of the
Business as it is currently conducted do not violate any Legal Requirement,
which violation, individually or in the aggregate, would have a material
adverse effect on a System, the Business or the Partnership. Neither Seller
nor the Partnership has received any notice
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<PAGE> 19
claiming a violation by Seller or the Partnership or the Business of any Legal
Requirement applicable to Seller, or the Business as it is currently conducted
and to Seller's Knowledge, there is no basis for any claim that such a
violation exists.
4.10.2. None of the cable television franchises of the Business
have expired or will expire within 36 months after the date of this Agreement.
4.10.3. Except as provided in SCHEDULE 8, to Seller's Knowledge,
the Partnership has complied, and the Business is in compliance, in all
material respects, with the specifications set forth in Part 76, Subpart K of
the rules and regulations of the FCC, Section 111 of the Copyright Act of 1976
and the rules and regulations of the U.S. Copyright Office, the Register of
Copyrights and the Copyright Royalty Tribunal, the Communications Act of 1934,
the rules and regulations of the FCC, including provisions of any thereof
pertaining to signal leakage, to utility pole make ready and to grounding and
bonding of cable television systems (in each case as the same is currently in
effect), and all other applicable Legal Requirements relating to the
construction, maintenance, ownership and operation of the Assets, the Systems
and the Business.
4.10.4. Notwithstanding the foregoing, the Partnership has used
all commercially reasonable efforts to comply in all material respects with
the provisions of the Cable Television Consumer Protection and Competition Act
of 1992 and the FCC rules and regulations promulgated thereunder (the "1992
Cable Act") as such laws relate to the operation of the Business. Except as
provided in SCHEDULE 8, the Partnership has complied in all material respects
with the must carry and retransmission consent provisions of the 1992 Cable
Act. The Business is and has been since September 1, 1993 exempt from rate
regulation under rules and regulations promulgated under the 1992 Cable Act,
and any authoritative interpretation thereof. The Partnership has delivered to
Buyer complete copies of all FCC forms filed by the Partnership and
correspondence with any Governmental Authority relating to rate regulation
generally or specific rates charged to subscribers with respect to the Systems,
including copies of any complaints filed with the FCC with respect to any rates
charged to Subscribers of the Systems and any other documentation supporting an
exemption from the rate regulation provisions of the 1992 Cable Act claimed by
the Partnership with respect to any of the Systems (collectively, "Rate
Regulation Documents"). The Partnership has received no notice from any
Governmental Authority with respect to an intention to enforce customer service
standards pursuant to the 1992 Cable Act and, except for regulations
promulgated by the Public Service Commission of Puerto Rico, the Partnership
has not agreed with any Governmental Authority to establish customer service
standards that exceed the standards in the 1992 Cable Act.
4.11. Patents, Trademarks and Copyrights. Other than filings with the
Register of Copyrights due in June 1990 and due from and after December 31,
1991, the Partnership has timely and accurately made in all material respects
all requisite filings and payments with the Register of Copyrights and is
otherwise in compliance with all
14
<PAGE> 20
applicable rules and regulations of the Copyright Office. Seller has delivered
to Buyer complete and correct copies of all current reports and filings, and
all reports and filings for the past five years, made or filed pursuant to
copyright rules and regulations with respect to the Business. The Partnership
does not possess any patent, patent right, registered trademark or copyright
and is not a party to any license or royalty agreement with respect to any
patent, trademark or copyright except for licenses respecting program material
and obligations under the Copyright Act of 1976 applicable to cable television
systems generally. To Seller's Knowledge, the operation of the Business as
currently conducted does not violate or infringe upon the rights of any Person
in any copyright, trademark, service mark, patent, license, trade secret or the
like.
4.12. Financial Statements. Seller has delivered to Buyer correct and
complete copies of its (a) audited balance sheets and related statements of
income and cash flows for and as of the years ended December 31, 1994 and
December 31, 1995 and (b) the unaudited balance sheet of the Partnership as of
November 30, 1996, and the related unaudited statement of income for the eleven
month period then ended (collectively, the "Financial Statements"). Except as
disclosed on SCHEDULE 9, the Financial Statements were prepared in accordance
with GAAP applied on a consistent basis throughout the periods covered thereby
and fairly present the Partnership's financial position, results of operations
and changes in financial position as of the dates and for the periods
indicated, subject in the case of the unaudited Financial Statements only to
normal year-end adjustments (none of which will be material in amount) and the
omission of footnotes. Except as disclosed by, or reserved against in, its
most recent balance sheet included in the Financial Statements, the Partnership
did not have as of the date of such balance sheet any liability or obligation
(including liabilities or obligations to the Other Partners), which was or
would be material to the business, results of operations or financial condition
of the Partnership, nor to Seller's Knowledge does any aspect of the Business
form a basis for any claim by a third party which, if asserted, could result in
a liability not disclosed by or reserved against in such balance sheet. Since
the date of the most recent balance sheet included in the Financial Statements
(i) the Business has been operated only in the ordinary course, (ii) the
Partnership has not sold or disposed of any assets other than in the ordinary
course of business, and (iii) there has been no material adverse change in the
business, operations, assets or condition (financial or otherwise) of the
Business, other than changes affecting the cable television industry generally.
4.13. Legal Proceedings. Except as set forth on SCHEDULE 10, there is
no judgment or order outstanding, or any action, suit, complaint, proceeding or
investigation by or before any Governmental Authority or any arbitrator
pending, or to Seller's Knowledge, threatened, involving or affecting all or
any part of the Business or the Partnership which if adversely determined,
could materially and adversely affect the financial condition or operations of
the Business, the Systems, the Assets or the ability of Seller to perform its
obligations under this Agreement.
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<PAGE> 21
4.14. Tax Returns; Other Reports. Except as disclosed on SCHEDULE 11,
the Partnership has duly and timely filed in proper form all income, gross
receipts, franchise, sales, use, property, excise, payroll, unclaimed property
and other tax returns and all other reports (whether or not relating to taxes)
required to be filed with the appropriate Governmental Authority. Except as
disclosed on SCHEDULE 11, all taxes, fees and assessments of whatever nature
currently due and payable by the Partnership have been paid, except such
amounts as are being contested diligently and in good faith and are not in the
aggregate material. Except as set forth on SCHEDULE 11, there are no
outstanding agreements or waivers extending the statutory period of limitations
applicable to any federal, State, local or foreign income tax return for any
period, and except as set forth on SCHEDULE 11, there are no tax audits
pending.
4.15. Employment Matters.
4.15.1 SCHEDULE 12 includes a complete and correct list of names
and positions of all employees of the Partnership engaged in the Business.
Upon request of Buyer, Seller will promptly provide Buyer with the current
hourly wages or monthly salaries and other compensation of each employee
identified on SCHEDULE 12. SCHEDULE 12 also lists each employee benefit plan
that the Partnership maintains or contributes to. No such employee benefit
plan (as defined in ERISA) is an "employee pension benefit plan" or
"multiemployer plan" (as those terms are defined in ERISA.) No prohibited
transaction, within the meaning of Title I of ERISA, has occurred with respect
to any such employee benefit plan. The Partnership has complied in all
respects with all Legal Requirements relating to the employment of labor,
including the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), continuation coverage requirements with respect to group health
plans, and those relating to wages, hours, minimum meal periods, collective
bargaining, unemployment compensation, worker's compensation, equal employment
opportunity, age and disability discrimination, immigration control and the
payment and withholding of taxes.
4.15.2. The Partnership is not a party to any contract with any
labor organization, and the Partnership has not recognized or agreed to
recognize and is not required to recognize any union or other collective
bargaining unit. No union or other collective bargaining unit been certified
as representing any of the Partnership's employees, nor has the Partnership
received any requests from any party for recognition as a representative of
employees for collective bargaining purposes except as set forth on SCHEDULE
12. To Seller's Knowledge, the Partnership's employees are not engaged in
organizing activity with respect to any labor organization. Except as
disclosed on SCHEDULE 12, the Partnership has no employment agreement of any
kind, oral or written, express or implied, that would require Buyer to employ
any Person after the Closing Date.
4.16. Finders and Brokers. Seller has not employed any financial
advisor, broker or finder or incurred any liability for any financial advisory,
brokerage, finder's or
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<PAGE> 22
similar fee or commission in connection with the transactions contemplated by
this Agreement for which Buyer could be liable.
4.17. Disclosure. The information set forth in the Schedules concerning
the Business is accurate and complete in all material respects.
5. BUYER'S REPRESENTATIONS AND WARRANTIES.
To induce Seller to enter into this Agreement, Buyer represents and
warrants to Seller, as of the date of this Agreement and as of the Closing, as
follows:
5.1. Organization and Qualification. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of Nevada and
has all requisite corporate power and authority to carry on its business as
currently conducted and to own, lease, use and operate its assets. Buyer is
duly qualified or licensed to do business and is in good standing under the
laws of each jurisdiction in which the character of the properties owned,
leased or operated by it or the nature of the activities conducted by it makes
such qualification necessary, except any such jurisdiction where the failure to
be so qualified or licensed and in good standing would not have a material
adverse effect on Buyer or on the validity, binding effect or enforceability of
this Agreement.
5.2. Authority and Validity. Buyer has all requisite corporate power
and authority to execute and deliver, to perform its obligations under, and to
consummate the transactions contemplated by, this Agreement and the Transaction
Documents. The execution and delivery by Buyer of, the performance by Buyer of
its obligations under, and the consummation by Buyer of the transactions
contemplated by, this Agreement and the Transaction Documents to which Buyer is
a party have been duly authorized by all requisite corporate action of Buyer,
and this Agreement is, and when executed and delivered by Buyer, the
Transaction Documents will be, the valid and binding obligations of Buyer,
enforceable in accordance with their terms, except insofar as enforceability
may be limited or affected by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws now or hereafter in effect affecting
creditors' rights generally or by principles governing the availability of
equitable remedies.
5.3. No Breach or Violation. Subject to obtaining the Required
Consents, and the notification and expiration or earlier termination of the
waiting period under the HSR Act, the execution, delivery and performance of
this Agreement by Buyer will not: (a) violate any provision of the charter or
bylaws of Buyer; (b) violate any Legal Requirement; (c) require any consent,
approval or authorization of, or any filing with or notice to, any Person; or
(d) (i) violate, conflict with or constitute a breach of or default under
(without regard to requirements of notice, passage of time or elections of any
Person), (ii) permit or result in the termination, suspension, modification of,
(iii) result in the acceleration of (or give any Person the right to
accelerate) the performance of Buyer under, or (iv) result in the creation or
imposition of any Encumbrance under any
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<PAGE> 23
instrument or other agreement to which Buyer is a party or by which Buyer or
any of its assets is bound or affected, except for purposes of this clause (d)
such violations, conflicts, breaches, defaults, terminations, suspensions,
modifications and accelerations as would not, individually or in the aggregate,
have a material adverse effect on Buyer or on the validity, binding effect or
enforceability of this Agreement.
5.4. Finders and Brokers. Buyer has not employed any financial
advisor, broker or finder or incurred any liability for any financial advisory,
brokerage, finder's or similar fee or commission in connection with the
transactions contemplated by this Agreement for which Seller could be liable.
6. ADDITIONAL COVENANTS.
6.1. Access to Premises and Records. Between the date of execution
and delivery of this Agreement and the Closing Date, Seller will give Buyer and
its representatives full access at reasonable times to all the premises and
books and records of the Business and to all the Assets and will furnish to
Buyer and its representatives all information regarding the Business and the
Assets as Buyer may from time to time reasonably request. Notwithstanding any
investigation that Buyer may conduct of the Business and the Assets, Buyer may
fully rely on Seller's representations, warranties, covenants and indemnities,
which will not be waived or affected by or as a result of such investigation.
6.2. Continuity and Maintenance of Operations; Financial Statements.
Except as Buyer may otherwise agree in writing, from and after the date hereof
until the Closing:
6.2.1. Seller will cause the Partnership to continue to operate
the Business in the ordinary course consistent with past practices (including
completing line extensions, placing conduit or cable in new developments and
fulfilling installation requests) and will use its best efforts to keep
available the services of the Partnership's employees employed in connection
with the Systems and to preserve any beneficial business relationships with
customers, suppliers and others having business dealings with the Partnership
relating to the Business. Without limiting the generality of the foregoing,
Seller will cause the Partnership to (a) maintain the Assets in good condition
and repair, (b) maintain adequate inventories of spare Equipment consistent
with past practices, (c) maintain insurance as in effect on the date of this
Agreement, and (d) keep all of its business books, records and files in the
ordinary course of business in accordance with past practices. Seller will not
itself, and will not permit the Partnership or any of the Partnership's or
Seller's officers, directors, partners, agents or employees to, pay any of the
Partnership's subscriber accounts receivable (other than for their own
residences) prior to the Closing Date except for monies received in payment
thereof from subscribers. Seller will cause the Partnership to continue to
implement its procedures for disconnection and discontinuance of service to
subscribers whose accounts are delinquent in accordance with those in effect on
the date of this Agreement.
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<PAGE> 24
6.2.2. Seller will cause the Partnership to not, without the
prior written consent of Buyer: (a) change the rate charged for Basic
Services, Expanded Basic Services or Pay TV and will not add or delete any
program services except to the extent required under the 1992 Cable Act or any
other Legal Requirement provided however if the Partnership changes such rates
in order to so comply, Seller will provide Buyer with a copy of any FCC forms
(even if not filed with any Governmental Authority) that the Partnership used
to determine that the rates to which it was changing were allowable; (b) file
any election with respect to any cost of service proceeding conducted in
accordance with Part 76.922 of Title 47 of the Code of Federal Regulations or
any similar proceeding with respect to any of the Systems; (c) sell, transfer
or assign any of the Assets except in the ordinary course of business provided
such sale, transfer or assignment of Assets does not exceed $10,000 or permit
the creation of any Encumbrance (except Permitted Encumbrances) on any Asset;
(d) permit the amendment or cancellation of any of the Governmental Permits or
Contracts except as provided by this Agreement; (e) enter into any contract or
commitment or incur any indebtedness or other liability or obligation of any
kind relating to any System or the Business involving an expenditure in excess
of $10,000; or (f) take or omit to take any action that would cause Seller to
be in breach of any of its representations or warranties in this Agreement.
6.2.3. Seller will deliver to Buyer correct and complete copies
of all Rate Regulation Documents that become available at any time between the
date of this Agreement and the Closing. All financial statements so delivered
will be prepared in accordance with GAAP on a basis consistent with the
Financial Statements referred to in Section 4.12.
6.3. Required Consents
6.3.1. Seller will use its commercially reasonable efforts to
obtain, as soon as possible, all the Required Consents, in form and substance
satisfactory to Buyer. Buyer will cooperate with Seller to obtain all Required
Consents, but Buyer will not be required to agree to any changes in, or the
imposition of any condition to the transfer to Buyer of, any Contract or
Governmental Permit as a condition to obtaining any Required Consent. Seller
and Buyer shall share equally any out-of-pocket expenses incurred in securing
the Required Consents.
6.3.2. Seller shall use its commercially reasonable efforts to
obtain with respect to each lease of Real Property set forth on SCHEDULE 6, (i)
for each lease that has not been recorded in the Registry of Property of Puerto
Rico, execution of a public instrument suitable for recording in the Registry
of Property of Puerto Rico and sufficient after recording to constitute a valid
leasehold interest enforceable against third parties; (ii) for each lease that
has been recorded in the Registry of Property of Puerto Rico, a public
instrument sufficient to transfer such leasehold interest to Buyer and (iii)
estoppel certificates or similar documents in a form reasonably acceptable to
Buyer.
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<PAGE> 25
6.3.3. Seller will execute on behalf of the Partnership and
deliver to the appropriate Governmental Authority, the FCC Forms 394 prepared
by Buyer with respect to each franchise as to which such Form 394 is required
within two Business Days after it receives each such Form 394 from Buyer.
6.4. HSR Notification. As soon as practicable after the execution of
this Agreement, but in any event no later than 40 days after such execution,
Seller and Buyer will each complete and file, or cause to be completed and
filed, any notification and report required to be filed under the Hart-Scott-
Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"); and each
such filing shall request early termination of the waiting period imposed by
the HSR Act. The parties shall use their reasonable best efforts to respond as
promptly as reasonably practicable to any inquiries received from the Federal
Trade Commission (the "FTC") and the Antitrust Division of the Department of
Justice (the "Antitrust Division") for additional information or documentation
and to respond as promptly as reasonably practicable to all inquiries and
requests received from any other Governmental Authority in connection with
antitrust matters. The parties shall use their respective reasonable best
efforts to overcome any objections which may be raised by the FTC, the
Antitrust Division or any other Governmental Authority having jurisdiction over
antitrust matters. Notwithstanding the foregoing, Buyer shall not be required
to make any significant change in the operations or activities of the business
(or any material assets employed therein) of Buyer or any of its Affiliates, if
Buyer determines in good faith that such change would be materially adverse to
the operations or activities of the business (or any material assets employed
therein) of Buyer or any of its Affiliates having significant assets, net
worth, or revenue. Notwithstanding anything to the contrary in this Agreement,
if Buyer, in its sole opinion, considers a request from a governmental agency
for additional data and information in connection with the HSR Act to be unduly
burdensome, Buyer may terminate this Agreement. Within 10 days after receipt
of a statement therefor, Seller will reimburse Buyer for one-half of the filing
fees payable by Buyer in connection with Buyer's filing under the HSR Act.
6.5. No Shopping. None of Seller, its shareholders or any agent or
representative of any of them will, during the period commencing on the date of
this Agreement and ending with the earlier to occur of the Closing or the
termination of this Agreement, directly or indirectly (a) solicit or initiate
the submission of proposals or offers from any Person for, (b) participate in
any discussions pertaining to, or (c) furnish any information to any Person
other than Buyer relating to, any direct or indirect acquisition or purchase of
all or any portion of the Partnership Interests.
6.6. Notification of Certain Matters. Seller will promptly notify
Buyer of any fact, event, circumstance or action (a) which, if known on the
date of this Agreement, would have been required to be disclosed to Buyer
pursuant to this Agreement, or (b) the existence or occurrence of which would
cause any of Seller's representations or warranties under this Agreement not to
be correct and complete.
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6.7. Risk of Loss; Condemnation.
6.7.1. If any loss or damage to the Assets resulting from fire,
theft or other casualty is so substantial as to prevent normal operation of any
material portion of a System or the replacement or restoration of the lost or
damaged property within 20 days after the occurrence of the event resulting in
such loss or damage, Seller will immediately notify Buyer of that fact and
Buyer, at any time within 10 days after receipt of such notice, may elect by
written notice to Seller either (a) to waive such defect and proceed toward
consummation of the acquisition of the Partnership Interests in accordance with
terms of this Agreement or (b) terminate this Agreement. If Buyer elects so to
terminate this Agreement, Buyer and Seller will be discharged of any and all
obligations hereunder. If Buyer elects to consummate the transactions
contemplated by this Agreement notwithstanding such loss or damage and does so,
there will be no adjustment in the consideration payable to Seller on account
of such loss or damage but all insurance proceeds payable as a result of the
occurrence of the event resulting in such loss or damage will be delivered by
Seller or the Partnership to Buyer, or the rights to such proceeds will be
assigned by Seller or the Partnership to Buyer if not yet paid over to Seller
or the Partnership.
6.7.2. If, prior to the Closing, any part of or interest in the
Assets is taken or condemned as a result of the exercise of the power of
eminent domain, or if a Governmental Authority having such power informs
Seller, Buyer or the Partnership that it intends to condemn all or any part of
the Assets (such event being called, in either case, a "Taking"), then Buyer
may terminate this Agreement. If Buyer does not elect to terminate this
Agreement, then (a) Buyer will have the sole right, in the name of Seller or
the Partnership, if Buyer so elects, to negotiate for, claim, contest and
receive all damages with respect to the Taking, (b) at the Closing, Seller will
assign, and will cause the Partnership to assign, to Buyer all of Seller's or
the Partnership's rights to all damages payable with respect to such Taking and
will pay to Buyer all damages previously paid to Seller or the Partnership with
respect to the Taking and (c) following the Closing, Seller will give, and will
cause the Partnership to give, Buyer such further assurances of such rights and
assignment with respect to the taking as Buyer may from time to time reasonably
request.
6.8. Lien and Judgment Searches. Buyer will obtain (a) the results of
a lien search conducted by a professional search company of records in the
offices of the secretaries of state in each State, municipality and/or section
of the Registry of Property of Puerto Rico where there exists tangible Assets
or where the Partnership Interests are deemed to be located, and in the State,
municipality and/or section of the Registry of Property of Puerto Rico where
Seller's and the Partnership's principal offices are located, including copies
of all financing statements or similar notices or filings (and any continuation
statements) discovered by such search company and (b) the results of a search
of the dockets of the clerk of each federal and State court sitting in the
city,
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county, judicial district, or other applicable political subdivision where the
principal office or any material assets of Seller may be located or where the
Partnership Interests are deemed to be located, with respect to judgments,
orders, writs or decrees against or affecting Seller or any of the Assets.
Seller and Buyer shall share equally any out-of-pocket expenses incurred in
connection with obtaining the searches.
6.9. Transfer Taxes. Seller will be responsible for the payment of any
State or local sales, use, transfer, excise, documentary or license taxes or
fees or any other charge (including filing fees) imposed by any Governmental
Authority with respect to the transfer of any of the Partnership Interests
pursuant to this Agreement.
6.10. Noncompetition Agreement. At the Closing, Seller will, and
Seller will cause Raymond E. Joslin to, sign and deliver to Buyer, a
Noncompetition Agreement in the form of EXHIBIT C.
6.11. Updated Schedules. Not less than five Business Days prior to
Closing, Seller will deliver to Buyer revised copies of SCHEDULES 1 THROUGH 12
which shall have been updated and marked to show any changes occurring between
the date of this Agreement and the date of delivery; provided, however, that
for purposes of Seller's representations and warranties and covenants in this
Agreement, all references to the Schedules will mean the version of the
Schedules attached to this Agreement on the date of signing.
6.12. Satisfaction of Conditions. Each party will use its best efforts
to satisfy, or to cause to be satisfied, the conditions to the obligations of
the other party to consummate the transactions contemplated by this Agreement,
as set forth in Section 8, provided that Buyer will not be required to agree to
any increase in the amount payable with respect to, or any modification that
makes more burdensome in any material respect, any liability of the
Partnership.
6.13. Employee Matters. Seller will cause the Partnership to not,
without the prior consent of Buyer, change the compensation or benefits of any
employees of the Business, except for raises granted in the ordinary course not
to exceed 5%.
6.14. Confidentiality. Neither party will issue any press release or
make any other public announcement regarding this Agreement or the transactions
contemplated hereby without the consent of the other party. Each party will
hold, and will cause its employees, consultants, advisors and agents to hold,
in confidence, the terms of this Agreement and any non-public information
concerning the other party obtained pursuant to this Agreement.
Notwithstanding the preceding provisions, a party may disclose such information
to the extent required by any Legal Requirement (including disclosure
requirements under federal and State securities laws), but the party proposing
to disclose such information will first notify and consult with the other party
concerning the proposed disclosure, to the extent reasonably feasible. Each
party also may disclose such
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information to employees, consultants, advisors, agents and actual or potential
lenders whose knowledge is necessary to facilitate the consummation of the
transactions contemplated by this Agreement. Each party's obligation to hold
information in confidence will be satisfied if it exercises the same care with
respect to such information as it would exercise to preserve the
confidentiality of its own similar information.
6.15. Buyer Cooperation. To the extent any matter covered by the
foregoing covenants is subject to approval of the Management Committee under
either the Partnership Agreement or the Management Agreement, either (i) Buyer
shall vote in favor of such matter, or (ii) if Buyer votes against the matter,
Seller shall not be liable to Buyer for breach of the applicable covenant.
6.16. Tax Returns. Seller, as the current managing general partner of
the Partnership, shall be responsible for, and shall timely prepare, all
federal and Puerto Rican tax returns for the Partnership or the Business for
periods ending on or prior to the Closing Date (the "Tax Returns"). Seller
shall deliver the Tax Returns and related detailed work papers to Buyer for
review within 120 days after Closing. Buyer shall cooperate with Seller in the
preparation of the Tax Returns and provide Seller access to the books and
records necessary to prepare the Tax Returns. Seller and Buyer shall share
equally the fees payable to any third party accountants or tax advisors
incurred in connection with preparing the Tax Returns.
6.17. Incentive Payments. Seller and Buyer shall cause the Partnership
to pay to Jose A. Romero and Adalberto Velez the amounts calculated pursuant to
this Section 6.17 in full satisfaction of all obligations of the Partnership
under the Partnership Management Incentive Plan dated January 1, 1988, as
amended (the "Incentive Plan") and their respective employment agreements.
6.17.1. The "Incentive Base" shall equal $26,000,000 less
$762,000 less all closing costs incurred by Buyer or Seller.
6.17.2. At Closing, Seller and Buyer shall cause the Partnership
to pay to Romero 1.25% of the Incentive Base and to Velez .625% of the
Incentive Base (collectively, the "Closing Incentive") in exchange for
executing a general release and termination of the Incentive Plan and their
respective employment agreements with the Partnership. The Closing Incentive
shall be funded 50% by Seller and 50% by Buyer. Seller's portion of the
Closing Incentive shall be deducted from the Purchase Price and Buyer shall
fund its portion at Closing.
6.17.3. In addition, simultaneously with any payments made to
Seller pursuant to Section 3.2, Buyer shall pay to Romero 1.25% of the
"Holdback Base" and to Velez .625% of the "Holdback Base" (collectively, the
"Holdback Incentive"). The "Holdback Base" equals two times all amounts
(including interest) paid to Seller pursuant Section 3.2. The Holdback
Incentive shall be funded 50% by Seller and 50% by Buyer.
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Seller's portion of the Holdback Incentive shall be deducted from the amounts
paid to Seller under Section 3.2.
6.18. Phase I Reports. Prior to Closing, Seller and Buyer shall cause
the Partnership to secure Phase I Environmental Site Assessment Reports for all
Real Property owned by the Partnership and all Real Property leased by the
Partnership and used as headend sites. Seller and Buyer shall share the cost
of such reports equally.
6.19. Promissory Notes. Seller and Buyer acknowledge and agree that
the Partnership Note and the Promissory Note from Raymond E. Joslin to TCI
Development Corporation in the principal amount of $167,000 (the "Purchase
Note") were previously paid and discharged. Prior to Closing, Joslin shall
deliver to Buyer the original Partnership Note marked "Cancelled" and Buyer
shall deliver to Seller an affidavit of lost note and cancellation with respect
to the Purchase Note.
7. CLOSING.
The Closing will be held on a date mutually agreed upon by Buyer and
Seller that is within 15 days after all conditions to the Closing contained in
this Agreement (other than those based on acts to be performed at the Closing)
have been satisfied or waived. The Closing will be held at 10:00 a.m. local
time at Buyer's office located at 5619 DTC Parkway, Englewood, Colorado 80111,
or will be conducted by mail or at such place and time as Buyer and Seller may
agree.
8. CONDITIONS TO CLOSING.
8.1. Conditions to the Obligations of Buyer and Seller. The
obligations of each party to consummate the transactions contemplated by this
Agreement to take place at the Closing are subject to the satisfaction or
waiver, to the extent permitted by applicable Legal Requirements, at or prior
to the Closing Date of each of the following conditions:
8.1.1. All filings required under the HSR Act shall have been
made and the applicable waiting period shall have expired or been earlier
terminated without the receipt of any objection or the commencement or threat
of any litigation by a Governmental Authority of competent jurisdiction to
restrain the consummation of the transactions contemplated by this Agreement.
8.1.2. No action, suit or proceeding shall be pending or
threatened by or before any Governmental Authority and no Legal Requirement
shall have been enacted, promulgated or issued or become or deemed applicable
to any of the transactions contemplated by this Agreement by any Governmental
Authority, which would (a)
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prohibit Buyer's ownership of the Partnership Interests or the Partnership's
operation of all or a material portion of any System, the Business or the
Assets, (b) compel Buyer to dispose of or hold separate all or a material
portion of the Partnership Interests or compel the Partnership to dispose of or
hold separate all or a material portion of any System, the Business or the
Assets as a result of any of the transactions contemplated by this Agreement,
(c) if determined adversely to Buyer's interest, materially impair the ability
of Buyer to realize the benefits of the transactions contemplated by this
Agreement or have a material adverse effect on the right of Buyer to exercise
full rights of ownership of the Systems or (d) prevent or make illegal the
consummation of any transactions contemplated by this Agreement.
8.2. Conditions to the Obligations of Buyer. The obligations of Buyer
to consummate the transactions contemplated by this Agreement to take place at
the Closing are subject to the satisfaction or waiver, to the extent permitted
by applicable Legal Requirements, at or prior to the Closing Date, of each of
the following conditions:
8.2.1. All representations and warranties of Seller contained in
this Agreement shall be, if specifically qualified by materiality, true in all
respects and, if not so qualified, shall be true in all material respects, in
each case on and as of the Closing Date with the same effect as if made on and
as of the Closing Date.
8.2.2. Seller in all material respects shall have performed and
complied with each obligation, agreement, covenant and condition required by
this Agreement to be performed or complied with by Seller at or prior to the
Closing.
8.2.3. Seller shall have executed (or caused to be executed) and
delivered to Buyer each of the following items:
(a) Counterparts of the Assignment and Assumption of
Partnership Interests in the form of EXHIBIT B (the "Partnership Interests
Assignment"), executed by Seller;
(b) a deed of lease for each lease described in clause (i) of
Section 6.3.2 and a deed of assignment of lease for each lease described in
clause (ii) of Section 6.3.2, in each case in favor of Buyer or its designee;
(c) a Noncompetition Agreement signed by Seller and Raymond
E. Joslin in the form attached as EXHIBIT C;
(d) an affidavit of Seller, under penalty of perjury, that
Seller is not a "foreign person" (as defined in the Foreign Investment in Real
Property Tax Act and applicable regulations) and that Buyer is not required to
withhold any portion of the consideration payable under this Agreement under
the provisions of such Act in the form attached as EXHIBIT D;
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(e) a Termination Agreement signed by Seller relating to the
termination of the Management Agreement and all other arrangements among the
Partnership, Seller, Buyer or any of their respective Affiliates (the
"Termination Agreement"), substantially in the form attached hereto as EXHIBIT
E; and
(f) such other transfer instruments as Buyer may deem
reasonably necessary or advisable to transfer the Partnership Interests to
Buyer and to perfect Buyer's rights in the Partnership Interests;
8.2.4. Seller shall have delivered to Buyer: (a) evidence, in
form and substance satisfactory to Buyer, that all of the Required Consents
have been obtained or given and are in full force and effect; and (b) to the
extent obtained, the estoppel certificates or similar documents described in
Section 6.3.1.
8.2.5. Seller shall have used funds other than that of the
Partnership to exercise the Option so that it holds a 50% general partnership
interest in the Partnership.
8.2.6. Buyer shall have received the opinion of Paul S. Kosacz,
Esq., counsel for Seller, dated the Closing Date, in the form set forth in
EXHIBIT F.
8.2.7. Seller shall have delivered releases, in form
satisfactory to Buyer, of all Encumbrances affecting the Partnership Interests
(other than Permitted Encumbrances) and a certificate of no taxes due with
respect to Seller and the Partnership issued by appropriate State and municipal
taxing authorities and a certificate of taxes due issued by CRIM as of a date
no earlier than 10 days prior to the Closing.
8.2.8. The original Partnership Note marked "Cancelled" shall be
delivered to Buyer.
8.2.9. The TCID Note shall be paid in full, including interest
and terminated.
8.2.10. The Systems shall be serving at least 26,100 EBSs.
8.2.11. Seller shall have delivered to Buyer: (a) a certificate,
dated the Closing Date, signed by Seller's chief executive officer and chief
financial officer, stating that to their knowledge, the conditions set forth in
Sections 8.2.1 and 8.2.2 are satisfied; and (b) such other documents as Buyer
may reasonably request in connection with the transactions contemplated by this
Agreement.
8.2.12. Seller shall have caused the Partnership to file
copyright filings and pay all corresponding fees for the last seven copyright
periods.
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8.2.13. The Partnership shall have paid to Jose A. Romero and to
Adalberto Velez the Closing Incentive and Romero and Velez shall have delivered
a release and termination of the Incentive Plan and their respective employment
agreements with the Partnership.
8.3. Conditions to Obligations of Seller. The obligations of Seller
to consummate the transactions contemplated by this Agreement to take place at
the Closing are subject to the satisfaction or waiver by Seller, to the extent
permitted by applicable law, at or prior to the Closing Date, of each of the
following conditions:
8.3.1. Buyer shall have paid the portion of the Purchase Price
required to be paid at the Closing, as adjusted in accordance with this
Agreement.
8.3.2. All representations and warranties of Buyer contained in
this Agreement shall be, if specifically qualified by materiality, true and
correct in all respects and, if not so qualified, shall be true and correct in
all material respects, in each case on and as of the Closing Date with the same
effect as if made on and as of the Closing Date, except for changes permitted
or contemplated by this Agreement.
8.3.3. Buyer in all material respects shall have performed and
complied with each obligation, agreement, covenant and condition required by
this Agreement to be performed or complied with by Buyer at or prior to the
Closing.
8.3.4. Buyer shall have executed and delivered to Seller each of
the following items: (a) the Partnership Interests Assignment; and (b) the
Termination Agreement.
8.3.5. Buyer shall have delivered to Seller the following: (a)
a certificate, dated the Closing Date, signed by an executive officer of Buyer,
stating that to his or her knowledge, the conditions set forth in Sections
8.3.2 and 8.3.3, are satisfied; and (b) such other documents as Seller may
reasonably request in connection with the transactions contemplated by this
Agreement.
8.3.6. Seller shall have received the opinion of Stephen M.
Brett, counsel for Buyer, dated the date of Closing, in the form of EXHIBIT G.
8.3.7. The Partnership shall have paid to Jose A. Romero and to
Adalberto Velez the Closing Incentive and Romero and Velez shall have delivered
a release and termination of the Incentive Plan and their respective employment
agreements with the Partnership.
8.3.8. Buyer shall have delivered to Seller an affidavit of lost
note and cancellation with respect to the Purchase Note.
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8.4. Waiver of Conditions. Any party may waive in writing any or all
of the conditions to its obligations under this Agreement.
9. TERMINATION.
9.1. Events of Termination. This Agreement may be terminated and the
transactions contemplated by this Agreement may be abandoned at any time prior
to the Closing:
9.1.1. by the mutual written consent of Buyer and Seller;
9.1.2. by either party, if the transactions contemplated by this
Agreement to take place at the Closing have not been consummated by June 30,
1997, for any reason other than (i) a breach or default by such party in the
performance of any of its obligations under this Agreement or (ii) the failure
of any representation or warranty of such party to be accurate;
9.1.3. by Buyer under the conditions described in Section 6.4 or
Section 6.7; or
9.1.4. by Buyer, within 30 days after the date of the Agreement
if the results and findings of Buyer's investigation of Seller, the
Partnership, the Business and the Assets are not satisfactory in Buyer's sole
discretion.
9.2. Liabilities in Event of Termination. The termination of this
Agreement will in no way limit any obligation or liability of any party based
on or arising from a breach or default by such party with respect to any of its
representations, warranties, covenants or agreements contained in this
Agreement, except that Buyer will have no liability in any event upon exercise
of its right to terminate pursuant to Section 9.1.3 or 9.1.4.
9.3. Procedure Upon Termination. In the event of the termination of
this Agreement by Buyer or Seller pursuant to this Section 9, notice of such
termination will promptly be given by the terminating party to the other.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION.
10.1. Survival of Representations and Warranties. The representations
and warranties of Seller in this Agreement and in the documents and instruments
to be delivered by Seller pursuant to this Agreement will survive until the
first anniversary of the Closing Date, except that (a) all such representations
and warranties with respect to any federal, State or local taxes, rates,
Environmental Law, ERISA, employment matters or copyright matters will survive
(subject to Section 10.7.3) until 60 days after the expiration of the
applicable statute of limitations (including any extensions) for such
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federal, State or local taxes, rates, Environmental Law, ERISA, employment
matters or copyright matters, respectively and (b) the representation and
warranties as to ownership of the Partnership Interests in Section 4.4, the
Assets in Section 4.5, and Real Property set forth in Section 4.8 will survive
the Closing and will continue in full force and effect until the dates set
forth in Section 10.7.3. The representations and warranties of Buyer in this
Agreement and in the documents and instruments to be delivered by Buyer
pursuant to this Agreement will survive until the first anniversary of the
Closing Date. The covenants and agreements of the parties in this Agreement and
in the other documents and instruments to be delivered by Seller or Buyer
pursuant to this Agreement that by their terms require a party to take or
refrain from taking any action after Closing will survive the Closing and will
continue in full force and effect until the dates set forth in Section 10.7.3.
The period of survival of the representations, warranties, covenants and
agreements prescribed by this Section 10.1 is referred to as the "Survival
Period." The liabilities of the parties under their respective
representations, warranties, covenants and agreements will expire as of the
expiration of the applicable Survival Period; provided, however, that such
expiration will not include, extend or apply to any representation, warranty,
covenant or agreement, the breach of which has been asserted by Buyer or Seller
by written notice before such expiration indicating that facts or conditions
exist that, with the passage of time or otherwise, can reasonably be expected
to result in a breach (and describing such potential breach in reasonable
detail).
10.2. Indemnification by Seller. If a claim is made by Buyer within the
applicable Survival Period, Seller will indemnify, defend and hold harmless
Buyer and its shareholders and its and their respective Affiliates, and the
shareholders, directors, officers, employees, agents, successors and assigns of
any of such Persons, from and against (collectively, "Seller's Indemnified
Losses"):
10.2.1. all losses, damages, liabilities, deficiencies or
obligations of or to Buyer or any such other indemnified Person resulting from
or arising out of (a) any breach of any representation or warranty made by
Seller in this Agreement, (b) any breach of any covenant, agreement or
obligation of Seller contained in this Agreement, (c) any act or omission of
the Partnership with respect to, or any event or circumstance related to, the
ownership or operation of the Assets or the conduct of the Business, which act,
omission, event or circumstance occurred or existed prior to or at the Closing
Date, without regard to whether a claim with respect such matter is asserted
before or after the Closing Date, including any matter described on SCHEDULES 8
AND 10, (d) any liability or obligation not included in the Indemnified
Liabilities, (e) any claim that the transactions contemplated by this Agreement
violate the Worker Adjustment and Retraining Notification Act, as amended, or
any similar State or local law, (f) the presence, generation, removal or
transportation of a Hazardous Substance on or from any of the Real Property
prior to the Closing Date, including the costs of removal or clean-up of such
Hazardous Substance and other compliance with the provisions of any
Environmental Laws (whether before or after Closing), (g) any rate refund
ordered by any Governmental Authority for periods prior to the Closing Date,
(h) any amounts due and
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unpaid by the Partnership to any taxing authority with respect to taxes for all
years ending prior to the Closing Date, (i) any liability not previously
disclosed to Buyer, or (j) any claim that the transactions contemplated by this
Agreement violate fraudulent conveyance laws of any jurisdiction; and
10.2.2. all claims, actions, suits, proceedings, demands,
judgments, assessments, fines, interest, penalties, costs and expenses
(including settlement costs and reasonable legal, accounting, experts' and
other fees, costs and expenses) incident or relating to or resulting from any
of the foregoing.
In the event that an indemnified item arises under both clause 10.2.1(a) and
under one or more of clauses 10.2.1(b) through 10.2.1(j), Buyer's rights to
pursue its claim under clauses 10.2.1(b) through 10.2.1(j), as applicable, will
exist (subject to Section 10.7.3) notwithstanding the expiration of the
Survival Period applicable to such claim under clause 10.2.1(a).
10.3. Indemnification by Buyer. If a claim is made by Seller within
the applicable Survival Period, Buyer will indemnify, defend and hold harmless
Seller and Seller's shareholders, directors, officers, employees, agents,
successors and assigns, from and against (collectively, "Buyer's Indemnified
Losses"):
10.3.1. all losses, damages, liabilities, deficiencies or
obligations of or to Seller or any such other indemnified Person resulting from
or arising out of (a) any breach of any representation or warranty made by
Buyer in this Agreement, (b) the breach of any covenant, agreement or
obligation of Buyer contained in this Agreement or (c) the failure by Buyer to
perform any of its obligations in respect of the Indemnified Liabilities; and
10.3.2. all claims, actions, suits, proceedings, demands,
judgments, assessments, fines, interest, penalties, costs and expenses
(including settlement costs and reasonable legal, accounting, experts' and
other fees, costs and expenses) incident or relating to or resulting from any
of the foregoing.
In the event that an indemnified item arises under both clause 10.3.1(a) and
under one or more of clauses (b) or (c) of this Section 10.3, Seller's rights
to pursue its claim under clauses 10.3.1(b) or 10.3.1(c), as applicable, will
exist (subject to Section 10.7.3) notwithstanding the expiration of the
Survival period applicable to such claim under clause 10.3.1(a).
10.4. Third Party Claims. Promptly after the receipt by any party of
notice of any claim, action, suit or proceeding by any Person who is not a
party to this Agreement (collectively, an "Action"), which Action is subject to
indemnification under this Agreement, such party (the "Indemnified Party") will
give reasonable written notice to the party from whom indemnification is
claimed (the "Indemnifying Party"). The
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Indemnified Party will be entitled, at the sole expense and liability of the
Indemnifying Party, to exercise full control of the defense, compromise or
settlement of any such Action unless the Indemnifying Party, within a
reasonable time after the giving of such notice by the Indemnified Party, (a)
admits in writing to the Indemnified Party the Indemnifying Party's liability
to the Indemnified Party for such Action under the terms of this Section 10,
(b) notifies the Indemnified Party in writing of the Indemnifying Party's
intention to assume such defense, (c) provides evidence reasonably satisfactory
to the Indemnified Party of the Indemnifying Party's ability to pay the amount,
if any, for which the Indemnified Party may be liable as a result of such
Action and (d) retains legal counsel reasonably satisfactory to the Indemnified
Party to conduct the defense of such Action. The other party will cooperate
with the party assuming the defense, compromise or settlement of any such
Action in accordance with this Agreement in any manner that such party
reasonably may request. If the Indemnifying Party so assumes the defense of
any such Action, the Indemnified Party will have the right to employ separate
counsel and to participate in (but not control) the defense, compromise or
settlement of the Action, but the fees and expenses of such counsel will be at
the expense of the Indemnified Party unless (i) the Indemnifying Party has
agreed to pay such fees and expenses, (ii) any relief other than the payment of
money damages is sought against the Indemnified Party or (iii) the Indemnified
Party will have been advised by its counsel that there may be one or more
defenses available to it which are different from or additional to those
available to the Indemnifying Party, and in any such case that portion of the
fees and expenses of such separate counsel that are reasonably related to
matters covered by the indemnity provided in this Section 10 will be paid by
the Indemnifying Party. No Indemnified Party will settle or compromise any
such Action for which it is entitled to indemnification under this Agreement
without the prior written consent of the Indemnifying Party, unless the
Indemnifying Party has failed, after reasonable notice, to undertake control of
such Action in the manner provided in this Section 10.4. No Indemnifying Party
will settle or compromise any such Action (A) in which any relief other than
the payment of money damages is sought against any Indemnified Party or (B) in
the case of any Action relating to the Indemnified Party's liability for any
tax, if the effect of such settlement would be an increase in the liability of
the Indemnified Party for the payment of any tax for any period beginning after
the Closing Date, unless the Indemnified Party consents in writing to such
compromise or settlement.
10.5. Limitations on Indemnification-Seller. Seller will only be liable
for fifty percent of any Seller's Indemnified Losses. Notwithstanding the
foregoing, Seller will be liable for one hundred percent of any Seller's
Indemnified Losses subject to Seller's indemnification obligations relating to
Seller's representations and warranties set forth in Sections 4.1 through 4.4,
4.16 and 4.17; Section 10.2.1(b); and Section 10.2.1(j).
10.6. Floor on Indemnification. An indemnifying party's obligation to
pay Indemnified Losses shall only arise to the extent that the Indemnified
Losses attributable to that party exceed $25,000 in the aggregate (the
"Floor"). Once the Indemnified Losses exceed $25,000, the indemnifying party
shall be liable for all Indemnified Losses,
31
<PAGE> 37
subject to Sections 10.5 and 10.7, including the Indemnified Losses
constituting the Floor. With respect to Seller, the Floor shall be determined
after applying Section 10.5. The Floor shall not apply to a Seller's
Indemnified Loss relating to a breach of Section 4.4.
10.7. Caps on Indemnification. Seller's and Buyer's respective
indemnity obligations shall in no event exceed the following amounts:
ALL INDEMNIFIED LOSSES, EXCEPT THOSE ARISING UNDER SECTIONS
4.4, 4.14, 6.14 OR 10.2.1(h) OR THE NONCOMPETITION AGREEMENT--
<TABLE>
<S> <C>
Year 1 after Closing $4,000,000
Year 2 after Closing 2,500,000
Year 3 after Closing 1,000,000
</TABLE>
INDEMNIFIED LOSSES ARISING UNDER SECTIONS 4.4 OR 6.14 OR THE
NONCOMPETITION AGREEMENT--no cap
INDEMNIFIED LOSSES ARISING UNDER SECTIONS 4.14 OR 10.2.1(h)
("TAX LOSSES") --$3,000,000
10.7.1. With respect to Seller, the caps shall be determined
after applying Section 10.5.
10.7.2. The caps shall be applied based upon the earlier of when
the indemnified party gives notice to the indemnifying party of the claim or
when the indemnifying party knew or should have known of the claim.
10.7.3. The parties' respective obligations under this Article 10
shall terminate on the date three years after the Closing Date except for (i)
Indemnified Losses with respect to which the indemnified party delivered
written notice to the other party within the three year period setting forth
the claim with reasonable particularity, (ii) Tax Losses with respect to which
a Governmental Authority commenced an audit or other proceeding within the
three year period, or (iii) Seller's Indemnified Losses relating to a breach of
Section 4.4.
10.8. Release. The Purchase Price shall be deemed full compensation to
Seller for all claims of any nature against Buyer or the Partnership,
including without limitation, under the Management Agreement or the Consulting
Agreement or the Partnership Note.
10.9. Limitation on Remedies. Each party to this Agreement will have
as the sole and exclusive remedy resulting from the breach of any
representation, warranty or covenant by the other party to this Agreement a
claim for indemnification under this Article 10.
32
<PAGE> 38
11. MISCELLANEOUS.
11.1. Parties Obligated and Benefited. Subject to the limitations set
forth below, this Agreement will be binding upon the parties and their
respective assigns and successors in interest and will inure solely to the
benefit of the parties and their respective assigns and successors in interest,
and no other Person will be entitled to any of the benefits conferred by this
Agreement. Without the prior written consent of the other parties, neither
Seller nor Buyer may assign any of its rights under this Agreement or delegate
any of its duties under this Agreement, except that Buyer may assign this
Agreement to an Affiliate.
11.2. Notices. Any notice, request, demand, waiver or other
communication required or permitted to be given under this Agreement will be in
writing and will be deemed to have been duly given only if delivered in person
or sent by first class, prepaid, registered or certified mail, or sent by
courier or, if receipt is confirmed, by telecopier:
To Buyer at: TCID of Puerto Rico, Inc.
5619 DTC Parkway
Englewood Colorado 80111
Attention: Senior Vice President - Cable
Telecopy: 303-488-3242
With a copy similarly addressed to the attention of the Legal Department:
To Seller at: Joslin Communications Corp.
#84 Cowdray Park Drive
Conyers Farm
Greenwich, CT 06831
Attention: Raymond E. Joslin
Telecopy: 914-273-1227
With a copy to:
Paul Kosacz, Esq.
11911 San Vincente Blvd.
Suite 230
Los Angeles, California 90049
Telecopy: 310-440-3340
33
<PAGE> 39
All notices will be deemed to have been received on the date of delivery or on
the third Business Day after mailing in accordance with this Section.
11.3. Attorneys' Fees. In the event of any action or suit based upon
or arising out of any alleged breach by any party of any representation,
warranty, covenant or agreement contained in this Agreement, the prevailing
party will be entitled to recover reasonable attorneys' fees and other costs of
such action or suit from the other party.
11.4. Right to Specific Performance. The Partnership acknowledges that
the unique nature of the Partnership Interests to be purchased by Buyer
pursuant to this Agreement renders money damages an inadequate remedy for the
breach by Seller of its obligation to consummate the transactions provided
under this Agreement, and Seller agrees that in the event of such breach, Buyer
will upon proper action instituted by it, be entitled to a decree of specific
performance of this Agreement.
11.5. Waiver. This Agreement or any of its provisions may not be
waived except in writing. The failure of any party to enforce any right
arising under this Agreement on one or more occasions will not operate as a
waiver of that or any other right on that or any other occasion.
11.6. Captions. The article and section captions of this Agreement are
for convenience only and do not constitute a part of this Agreement.
11.7. CHOICE OF LAW. THIS AGREEMENT AND THE RIGHTS OF THE PARTIES
UNDER IT WILL BE GOVERNED BY AND CONSTRUED IN ALL RESPECTS IN ACCORDANCE WITH
THE LAWS OF THE STATE OF COLORADO, WITHOUT REGARD TO THE CONFLICTS OF LAWS
RULES OF COLORADO.
11.8. Terms. Terms used with initial capital letters will have the
meanings specified, applicable to both singular and plural forms, for all
purposes of this Agreement. The word "include" and derivatives of that word
are used in this Agreement in an illustrative sense rather than limiting sense.
11.9. Rights Cumulative. All rights and remedies of each of the
parties under this Agreement will be cumulative, and the exercise of one or
more rights or remedies will not preclude the exercise of any other right or
remedy available under this Agreement or applicable law.
11.10. Further Actions. The Partnership and Buyer will execute and
deliver to the other, from time to time at or after the Closing, for no
additional consideration and at no additional cost to the requesting party,
such further assignments, certificates, instruments, records, or other
documents, assurances or things as may be reasonably
34
<PAGE> 40
necessary to give full effect to this Agreement and to allow each party fully
to enjoy and exercise the rights accorded and acquired by it under this
Agreement.
11.11 Time. Time is of the essence under this Agreement. If the last
day permitted for the giving of any notice or the performance of any act
required or permitted under this Agreement falls on a day which is not a
Business Day, the time for the giving of such notice or the performance of such
act will be extended to the next succeeding Business Day.
11.12. Late Payments. If either party fails to pay the other any
amounts when due under this Agreement, the amounts due will bear interest from
the due date to the date of payment at the annual rate publicly announced from
time to time by The Bank of New York as its prime rate (the "Prime Rate") plus
3%, adjusted as and when changes in the Prime Rate are made.
11.13. Counterparts. This Agreement may be executed in counterparts,
each of which will be deemed an original.
11.14. Entire Agreement. This Agreement (including the Schedules and
Exhibits referred to in this Agreement, which are incorporated in and
constitute a part of this Agreement) and the Transaction Documents contain the
entire agreement of the parties and supersedes all prior oral or written
agreements and understandings with respect to the subject matter. This
Agreement may not be amended or modified except by a writing signed by the
parties.
11.15. Severability. Any term or provision of this Agreement which is
invalid or unenforceable will be ineffective to the extent of such invalidity
or unenforceability without rendering invalid or unenforceable the remaining
rights of the Person intended to be benefited by such provision or any other
provisions of this Agreement.
11.16. Construction. This Agreement has been negotiated by Buyer and
Seller and their respective legal counsel, and legal or equitable principles
that might require the construction of this Agreement or any provision of this
Agreement against the party drafting this Agreement will not apply in any
construction or interpretation of this Agreement.
11.17 Expenses. Except as otherwise expressly provided in this
Agreement, each party will pay all of its expenses, including attorneys' and
accountants' fees, in connection with the negotiation of this Agreement, the
performance of its obligations and the consummation of the transactions
contemplated by this Agreement.
11.18 Buy/Sell Provisions. Buyer and Seller expressly agree that this
Agreement is a negotiated arrangement between the parties and is not intended
to be governed by or to implement Section 9.6 of the Partnership Agreement.
35
<PAGE> 41
The parties have executed this Agreement as of the day and year first above
written.
SELLER:
JOSLIN COMMUNICATIONS CORP.
By:
---------------------------------
Raymond E. Joslin
President
BUYER:
TCID OF PUERTO RICO, INC.
By:
---------------------------------
Adam N. Singer
President
36
<PAGE> 42
AMENDMENT NO. 1 TO THE PARTNERSHIP INTEREST PURCHASE AGREEMENT
Amendment No. 1 (the "Amendment") dated February 28, 1997 by and between TCID
of Puerto Rico, Inc. ("Buyer") and Joslin Communications Corp. ("Seller").
RECITALS
Buyer and Seller entered into the Partnership Interest Purchase Agreement dated
as of January 10, 1997 (the "Agreement").
The parties wish to amend the Agreement as provided herein.
AGREEMENT
In consideration of the above recitals and the mutual agreements set forth in
this Amendment, the parties agree as follows:
1. TCID Note.
Section 1.38 of the Agreement is hereby amended in its entirety to read as
follows:
1.38 TCID Note. The note dated as of June 8, 1987, payable by Joslin
to TCI Development Corp. in the principal amount of $83,000. The
outstanding balance of principal and interest under the TCID Note
is $223,176.36 as of January 31, 1997. The outstanding balance of
principal and interest under the TCID Note will be $228,890.44 as
of April 1, 1997. The TCID Note will continue to accrue interest
until paid in full at the rate of $64.75 per day from April 2,
1997 through June 8, 1997 and at the rate of $66.42 from June 9,
1997 through September 8, 1997 and thereafter as provided in the
TCID Note.
2. Purchase Price.
Section 3.1 of the Agreement is hereby amended in its entirety to read as
follows:
3.1 Purchase Price. Buyer shall pay to Seller for the Partnership
Interests an amount equal to Twelve Million Seven Hundred Thousand
Dollars ($12,700,000) (the "Purchase Price"), subject to
adjustment as provided in Section 3.2. Such consideration will be
paid by wire transfer of immediately available funds in
consideration of the sale of the Partnership Interests to Buyer as
follows:
<PAGE> 43
(a) Twelve Million Three Hundred Nineteen Thousand Two Dollars
($12,319,002), less 50% of the Closing Incentive as provided
in Section 6.17 and less principal and accrued interest due
under the TCID Note, will be paid on the Closing Date, and
(b) Three Hundred Eighty Thousand Nine Hundred Ninety-Eight
Dollars ($380,998) (the "Holdback Amount"), subject to
adjustment as provided below and to Seller's obligation under
Section 10.2, will be paid by Buyer to Seller on the date or
dates prescribed by Section 3.2.
3. Property Taxes.
Section 3.2.1 of the Agreement is hereby amended in its entirety to read as
follows:
3.2.1 After the date of this Agreement, Jose A. Romero and any
other persons designated by him and approved by the
Partnership, shall commence negotiations on behalf of the
Partnership with Centro Recaudaciones de Impuestos
Municipiales ("CRIM") to determine the Partnership's
liability for property taxes for all periods prior to
Closing. (The amount of property taxes for all periods
through December 31, 1996, net of discounts for prompt
payment made at or after the Closing Date, agreed to by the
Partnership and CRIM is referred to as the "Agreed Taxes.")
Buyer shall pay the Agreed Taxes at or after Closing. If
the amount of Agreed Taxes exceeds $2,098,422 [amount of
accrual], Buyer shall apply a portion of the Holdback Amount
equal to 50% of such excess ("Seller's Tax Payment") to pay
the Agreed Taxes. If the amount of the Agreed Taxes is less
than $2,098,422, Buyer shall pay to Seller an amount equal
to 50% of the positive difference between the Agreed Taxes
and $2,098,422 ("Seller's Tax Benefit"). Within 10 Business
Days after CRIM has agreed upon the amount of the Agreed
Taxes (but in no event prior to Closing), Buyer shall pay to
Seller $201,561 either less the Seller's Tax Payment or plus
the Seller's Tax Benefit, plus interest calculated pursuant
to Section 3.2.4 less 50% of the Holdback Incentive due to
Jose A. Romero and Adalberto Velez pursuant to Section 6.17.
4. Interest.
Section 3.2.4 is hereby amended in its entirety to read as follows:
3.2.4 The portions of the Holdback Amount paid to Seller pursuant
to Sections 3.2.1, 3.2.2 or 3.2.3 shall bear interest from
and including the Closing Date through the day prior to the
date paid to Seller at 5% per annum. No interest shall be
payable on Seller's Tax Benefit.
2
<PAGE> 44
3.2.5 Buyer agrees that there shall be no further reductions in
the Purchase Price based upon balance sheet items contained
in the November 30, 1996 financial statements of the
Partnership beyond those specifically provided in Section
3.2, and that Buyer is acquiring the Partnership Interests
subject to all liabilities shown on the balance sheet
included in such financial statements.
5. Headend Lease.
Section 6.3.1 is hereby amended in its entirety to read as follows:
6.3.1 Seller will use its commercially reasonable efforts to
obtain, as soon as possible, all the Required Consents, in
form and substance satisfactory to Buyer. Buyer will
cooperate with Seller to obtain all Required Consents, but
Buyer will not be required to agree to any changes in, or
the imposition of any condition to the transfer to Buyer of,
any Contract or Governmental Permit as a condition to
obtaining any Required Consent. Seller and Buyer shall
share equally any out-of-pocket expenses incurred in
securing the Required Consents. Notwithstanding the
foregoing, Buyer shall be solely responsible for the payment
of any increase in rent under the lease of the Caguas
headend site described in Schedule 6, page 2, Item 1 as
agreed to between Buyer and the landlord.
6. Plant Condition.
Buyer has performed an initial review of the aerial and underground plant
associated with the System. Buyer hereby waives all claims, if any,
against Seller with respect to the quality of the plant and agrees to take
the plant "as is" at Closing.
7. Copyright Fees.
Article 6 is hereby amended to add the following new section:
6.20 Copyright Fees.
At Closing, Buyer shall advance to the Partnership funds to pay,
at Closing, the copyright fees and interest due by the Partnership
for the last seven copyright periods (collectively, the "Copyright
Fees"). At Closing, Seller shall cause the Partnership to file
all copyright filings for the last seven copyright periods and pay
all Copyright Fees advanced by Buyer. The amount of Copyright
Fees (including interest through January 15, 1997) equals
3
<PAGE> 45
$695,023. The Copyright Fees shall continue to accrue interest at
the promulgated rate until paid.
8. Article 8 is hereby amended by deleting Section 8.2.12 in its entirety.
9. Incentive Payments.
Section 6.17.1 is hereby amended in its entirety to read as follows:
6.17.1 The "Incentive Base" shall equal $25,400,000 less $762,000
less all closing costs incurred by Buyer or Seller.
10. Except as amended hereby, the Agreement shall continue unmodified and
unamended and in full force and effect.
The parties have executed this Agreement as of the day and year set forth
above.
SELLER:
JOSLIN COMMUNICATIONS CORP.
By:
---------------------------------
Raymond E. Joslin
President
BUYER:
TCID OF PUERTO RICO, INC.
By:
---------------------------------
Gregory B. Armstrong
Vice President
4
<PAGE> 1
DATED 24 APRIL 1997
(1) TELE-COMMUNICATIONS
INTERNATIONAL, INC.
(2) FLEXTECH p.l.c.
(3) FLEXTECH DIGITAL BROADCASTING LIMITED
(4) BBC WORLDWIDE LIMITED
(5) UK CHANNEL MANAGEMENT LIMITED
(6) UK GOLD HOLDINGS LIMITED
"STEP-IN" DEED
RELATING TO UK CHANNEL MANAGEMENT LIMITED
DENTON HALL
FIVE CHANCERY LANE
CLIFFORD'S INN
LONDON EC4A 1BU
FAX: 0171-404-0087
TEL: 0171-242-1212
<PAGE> 2
CONTENTS
<TABLE>
<CAPTION>
CLAUSE HEADING PAGE
- ------ ------- ----
<S> <C> <C>
1. INTERPRETATION 1
2. CONDITIONS PRECEDENT 4
3. FUNDING OBLIGATIONS 4
4. TINTA'S RIGHTS AND OBLIGATIONS 7
5. SUBORDINATION 9
6. CLAWBACK 14
7. PROTECTIVE COVENANTS 16
8. CHANGE OF CONTROL 18
9. TINTA CONDUCT 19
10. CONFIDENTIALITY 20
11. FEE 20
12 CO-SALE RIGHTS 20
13. CONFLICT WITH THE SHAREHOLDERS' AGREEMENT 20
14. NO ASSIGNMENT 21
15. WAIVERS, REMEDIES CUMULATIVE, AMENDMENTS, ETC. 21
16. INVALIDITY AND RESTRICTIVE TRADE PRACTICES 21
17. NO PARTNERSHIP AGENCY 21
18. ANNOUNCEMENTS 21
19. COSTS 22
20. ENTIRE AGREEMENT 22
21. NOTICES 22
22. FURTHER ASSURANCES 22
23. GOVERNING LAW AND SERVICE OF PROCESS 22
</TABLE>
<PAGE> 3
THIS DEED OF AGREEMENT is made on 24 April, 1997
BETWEEN:
(1) TELE-COMMUNICATIONS INTERNATIONAL, INC. ("TINTA") a corporation
organised and existing under the laws of the state of Delaware whose
head office is at 5619 DTC Parkway, Englewood, Colorado 80111, United
States of America;
(2) FLEXTECH p.l.c. ("FLEXTECH PARENT") registered in England with number
2688411 whose registered office is at The Quadrangle, Imperial Square,
Cheltenham GL50 1YX;
(3) FLEXTECH DIGITAL BROADCASTING LIMITED ("FLEXTECH") registered in
England with number 3298737 whose registered office is at The
Quadrangle, Imperial Square, Cheltenham GL50 1YX;
(4) BBC WORLDWIDE LIMITED ("WORLDWIDE") registered in England with number
1420028 whose registered office is at Woodlands, 80 Wood Lane, London
W12 0TT; and
(5) UK CHANNEL MANAGEMENT LIMITED (the "COMPANY") registered in England
with number 3322468 whose registered office is at Woodlands aforesaid
(6) UK GOLD HOLDINGS LIMITED ("UK GOLD HOLDINGS") registered in England
under number 3248738 whose registered office is at The Quadrangle,
Imperial Square, aforesaid.
WHEREAS:
(A) Flextech Parent, Flextech, Worldwide and the Company have, on the date
hereof, entered into the Shareholders' Agreement in respect of the
subscription of Shares by Flextech in, and which contains other matters
relating to, the Company
(B) At the request of Worldwide, TINTA has agreed on the terms of this Deed
not to hold certain interests in Competing Channels and, in certain
circumstances, to assume the TINTA obligations of Flextech under the
Shareholders' Agreement provided that on such assumption it acquires
Flextech's equity interest in the Company for no further consideration.
(C) The Shareholders' Agreement is conditional upon, among other things, a
TINTA Agreement having been entered into and becoming unconditional
(D) It is intended by the parties hereto that this Deed shall be the TINTA
Agreement for the purposes of the Shareholders' Agreement and the
parties have agreed to enter into this Deed upon the terms and
conditions set out herein
IT IS AGREED as follows:
1. INTERPRETATION
2. In this Deed and in the recitals hereto the following words and
expressions shall have the following meanings:
"BANK GUARANTEE": an unconditional guarantee to Worldwide and the
Company of the funding obligations of Flextech under Clauses 16.l.2 and
16.1.3 of the Shareholders' Agreement by either a London clearing bank
or a bank with a Moody's credit rating no worse than A1P1;
<PAGE> 4
"FACILITY AGREEMENT" means a facility agreement for a revolving credit
facility of even date herewith and entered into between Flextech Parent
as borrower (1), Flextech (1992) p.l.c. as borrower (2), the companies
whose names, registered offices and registered numbers are set out in
Part A of Schedule 1 thereto as guarantors (3), The Toronto-Dominion
Bank as arranger (4), the banks and financial institutions whose names
and addresses are set out in part B of Schedule 1 thereto as lending
banks (5), The Toronto-Dominion Bank as agent (6) and The Toronto-
Dominion Bank as security trustee (7);
"RELEASE DATE": shall mean earliest of:
(a) whichever is (for the purposes of Clauses 3, 4, and 11 hereof)
the latest of and (for the purposes of Clause 7 hereof ) the
earliest of:
(i) 31st December, 2011;
(ii) the date on which Flextech shall no longer have any
funding obligations or commitments towards the Company
(whether or not accrued) pursuant to Clauses 16.1.2 and
16.1.3 of the Shareholders' Agreement other than by
reason of TINTA's assumption of such obligations pursuant
to the provisions of this Deed or by reason of any
insolvency or other incapacity of Flextech;
(iii) the date (determined in writing by the auditors (acting as
experts not arbitrators) at the election of any of the
parties if not agreed between them) on which the Company
shall have:
(aa) repaid all its borrowings under, and discharged its
other liabilities in relation to, the Loan Stock it
shall have drawn down; and
(bb) adopted or approved an Annual Budget (including, if
applicable, a Default Budget) which shows that the
Company is in a position to meet and discharge all
its present and future (taking into account any
foreseeable changes in circumstances) obligations,
liabilities, commitments and cash requirements out
of its operating revenue without any further
external financing:
(iv) the date on which Worldwide and its Associates shall have
received dividends and other payments under Clause 17.2.3
of the Shareholders' Agreement exceeding L.20,000,000 in
total;
(b) the date on which a Bank Guarantee , or a guarantee pursuant to
Clause 19.6 of the Shareholders' Agreement is delivered to
Worldwide and the Company;
(c) the Termination Date;
(d) the date on which pursuant, to Clause 23 thereof, the
Shareholders' Agreement terminates
or such other date as TINTA may agree
the "SHAREHOLDERS' AGREEMENT": the Subscription and Shareholders'
Agreement relating to the Company dated 16th March 1997 between the
parties to this Deed (except TINTA);
"SHARE INTEREST": the interest of any person in Shares and/or any other
shares in the capital of the Company and any securities or loans
convertible into shares in the capital of the Company;
2.
<PAGE> 5
"TAXATION": any tax, charge, duty or levy imposed whether in the United
Kingdom, the United States of America or elsewhere including (without
prejudice to the generality of the foregoing):
(i) in the United Kingdom (without limitation), income tax,
corporation tax, advance corporation tax and amounts equivalent
to advance corporation tax, any liability under Section 601 of
the 1988 Act, capital gains tax, value added tax, capital
transfer tax, stamp duty, stamp duty reserve tax; and
(ii) outside the United Kingdom (without limitation) taxes on gross or
net income, profits or gains, receipts, sales, use, occupation,
franchise, value added, wealth, personal property or other taxes,
charges, duties, levies, imposts or withholdings of any nature
whatsoever; and
shall further include any penalty, fine, surcharge or interest payable
in addition to or in connection with any such tax, charge, duty or levy;
"TCI GROUP": Tele-Communications Inc and each company it controls (but
only so long as they are so controlled) but excluding any members of the
TINTA Group and the Flextech Group;
"TINTA GROUP": TINTA and each its company it controls (but only for so
long as they are so controlled) but excluding any member of the Flextech
Group;
"TINTA RATE": 2% per annum above TINTA's marginal cost of funds from
time to time.
3. A company or entity shall have "CONTROL" over another company or entity
only if the first company or entity shall be entitled to exercise more
than 50% of the voting rights in the latter company or entity; and
"CONTROLLED" and "CONTROLLING" shall be construed accordingly. For this
purpose, if a person holds voting rights which that person is legally
obliged to, and can only, exercise according to the absolute directions
of another person, then that latter person shall be deemed to be
entitled to exercise the votes held by the former person.
4. Words and expressions defined in the Shareholders' Agreement shall have
the same meanings herein unless otherwise defined herein.
5. References in this Deed to Clauses, sub-Clauses, paragraphs and
Schedules are references to those contained in this Deed.
6. Headings are for ease of reference only and shall not be taken into
account in construing this Deed.
7. Where the context admits, any reference to "FLEXTECH" herein shall be
construed as a reference to any /each and every (as appropriate) member
of the Flextech Group.
8. CONDITIONS PRECEDENT
9. Clauses 2.1 and 2.2 and Clauses 1, 10 and 13 to 23 of this Deed, shall
come into effect upon signing of this Deed. Other provisions of this
Deed shall be conditional upon the Shareholders' Agreement having become
unconditional in all respects and all the Conditions Precedent having
been complied with or (with TINTA's prior consent) waived in accordance
with their terms (save as regards any condition contained in the
Shareholders' Agreement relating to this Deed becoming unconditional).
10. This Deed (except for the provision of this Clause and Clauses 1, 10 and
13 to 23) shall cease to have any further effect, and the rights and
obligations of the parties under this Deed (except for those set out in
such Clauses) shall cease (but without prejudice to the rights of the
parties in relation to any antecedent breach of any provision of this
Deed by any other party) on the date
3.
<PAGE> 6
(if it occurs) on which the Shareholders' Agreement shall cease to have
any effect pursuant to Clause 2.5 thereof (save for the clauses therein
mentioned) PROVIDED ALWAYS that the parties to the Shareholders'
Agreement shall not extend the time for satisfaction of the Conditions
Precedent as specified in the Shareholders' Agreement (that is, 31st May
1997) without TINTA's prior consent, such consent not to be unreasonably
withheld or delayed.
11. Immediately after Completion of the Shareholders' Agreement, TINTA shall
subscribe in cash at par for, and the Company shall allot, 1 "C" share
in the capital of the Company and the Company shall issue to TINTA its
certificate in respect of such "C" share.
12. FUNDING OBLIGATIONS
13. If Worldwide shall serve any notice on Flextech pursuant to the
provisions of Clauses 16.15 to 16.17 inclusive of the Shareholders
Agreement it shall serve a copy of such notice on TINTA on the same day
(in the local time of the recipient) or as soon as practicable
thereafter.
14. If Worldwide shall have served a Final Notice in relation to any Default
by Flextech and the relevant Default Amount shall not have been paid by
Flextech or Flextech Parent, then, provided that the Default shall be
continuing and Worldwide shall have complied with the provisions of
Clause 3.1 but subject to Clauses 3.4 and 3.5, Worldwide shall be
entitled, immediately after or at any time within 90 days after service
of such Final Notice on Flextech and TINTA to serve a notice on both
TINTA and Flextech (a "REQUEST NOTICE") to demand that TINTA shall "step
in" and pay and discharge the Default Amount which amount TINTA shall
pay forthwith to the Company to the extent not already paid by Flextech.
3.3.1 Within 2 business days after the service of a Request Notice, Worldwide,
TINTA and Flextech shall procure that A Directors appointed by Flextech
shall (without compensation) if required by TINTA each resign from their
office and an equal number of TINTA's nominees shall be appointed as A
Directors in their place.
3.3.2 Flextech shall indemnify TINTA and/or the Company (as appropriate)
against any compensation for loss of office, claim, demand, action,
damages, loss, costs and/or expenses TINTA and/or the Company may incur
or be liable in respect of such resignation of such A Directors
appointed by Flextech.
3.3.3 Flextech hereby irrevocably appoints TINTA and each and every director
of TINTA from time to time to be the attorney of Flextech in the name
and on behalf of Flextech and as the act and deed of Flextech to do,
implement and/or give effect to any or all of the above matters.
3.4 The right of Worldwide to serve a Request Notice pursuant to Clause 3.2
shall terminate and cease to have effect (without prejudice to the
effects of a Request Notice already validly served) and TINTA's
obligations pursuant to Clause 4.1 shall not arise if :
(a) Worldwide shall not have served a Request Notice before the
Release Date;
(b) without TINTA's prior written consent (such consent not to be
unreasonably withheld or delayed) the Company and/or any other
member of the Group shall do any act or thing requiring a
Unanimous Shareholders' Decision pursuant to any of Clauses
14.1.2 (other than in relation to distributions), 14.1.3
(otherwise than as required by this Deed), 14.1.4, 14.1.5, 14.1.6
(other than changes which are not material to the overall nature
of the Business or which are the discontinuation of any business
or are the commencement of any business which is ancillary to the
Business), 14.1.8. 14.1.9, 14.1.12 (other than any business which
is ancillary to the Business or which is not material to the
overall Business), 14.1.13, 14.1.14, 14.1.16, 14.1.20 (other than
in relation to termination or in any respect which is not
material), 14.1.23, or 14.1.26 (other than in relation to any
discontinuation)
4.
<PAGE> 7
of the Shareholders' Agreement or shall launch or commence
transmission of any Channel other than the Specified Channels; or
(c) without TINTA's prior written consent Flextech shall have agreed
to provide funding pursuant to Clause 16.1.5 of the Shareholders'
Agreement; or
(d) without TINTA's prior written consent (such consent not to be
unreasonably withheld or delayed) the Company shall make any
borrowings pursuant to Clause 16.1.4 of the Shareholders'
Agreement secured against any of the assets of the Group or on
terms that any Loan Stock issued or to be issued to or held by
Flextech or TINTA or any indebtedness owing from any member of
the Group to Flextech or TINTA shall in any way be subordinated
to such borrowings or otherwise postponed or shall in any way
rank after such borrowings in respect of repayment of principal
or payment of interest; or
(e) Worldwide shall have served of a Purchase Notice pursuant to and
in accordance with Clause 19 of the Shareholders' Agreement upon
a BBC Change in Circumstances, or upon a Flextech Change of
Control (subject to the provisions of Clause 8) by virtue of a
change in control of Flextech or TINTA for the purposes of that
Clause 19;
(f) Worldwide shall have Transferred any of its Interest to any
company or entity in whom BBC, (or any member of the BBC Group in
whom BBC has less than 75% of the voting and economic rights)
shall not have less than 75% of the voting or economic rights;
or
(g) BBC shall have ceased to control more than 50% of the voting
rights of Worldwide or own beneficially more than 50% of the
equity capital of Worldwide; or
(h) the Articles are changed or any condition or provision of the
Shareholders' Agreement, and/or the terms of any Loan Stock
and/or (in any material respect) the Supplementary Agreements
shall have been modified, varied, novated or waived, without the
prior written consent of TINTA (in particular, but without
limiting the generality of the foregoing, the funding obligations
of Flextech pursuant to Clauses 16.1.2 and 16.1.3 of the
Shareholders' Agreement); or
(i) all of Flextech's funding obligations pursuant to Clauses 16.1.2
and 16.1.3 of the Shareholders' Agreement shall have been
discharged whether by any member of the Flextech Group or by
TINTA or released by Worldwide (other than pursuant to the
provisions of this Deed); or
(j) Flextech shall cease to have any funding obligations or
commitment towards the Company pursuant to Clauses 16.1.2 and
16.1.3 of the Shareholders' Agreement (except where such
cessation shall be the result of the provisions of Clause 4); or
(k) there shall have been a Transfer of any of Flextech's Share
Interest pursuant to the provisions of Clause 18 of the
Shareholders' Agreement (other than a Transfer in accordance with
Clause 18.2 thereof) or otherwise with the consent of Worldwide
to any person being at the date of such transfer:-
(i) neither a member of the Flextech Group in whom Flextech
Parent shall have 75% or more of the voting and economic
rights nor a member of the TINTA Group; or
(ii) a member of the Flextech Group unless such transferee
shall have first executed a deed of adherence making the
same subject to and bound by the provisions of the
Shareholders' Agreement, the Flextech Agreements and this
Deed as if it were an original party thereto or hereto in
the place of Flextech; or
5.
<PAGE> 8
(l) any person (other than Worldwide, any member of the BBC Group or
any member of the Flextech Group or pursuant to a Transfer in
accordance with Clause 18.2 of the Shareholders' Agreement) shall
hold or be beneficially entitled to any Share Interest in the
Company;
(m) a Termination Event has occurred;
(n) the Shareholders' Agreement shall have terminated in accordance
with its terms.
3.5 The right of Worldwide to serve a Request Notice pursuant to Clause 3.2
shall be suspended:-
14.1 if an Event of Default, or any of the events listed in Clause
16.12 of the Shareholders' Agreement, shall have occurred and is
continuing and has not been remedied; or
14.2 upon the occurrence of a BBC Change in Circumstances or a
Flextech Change of Control (arising by virtue of a change in
control of TINTA) until the earlier of:
(a) the expiry of 90 days from such occurrence; and
(b) the service of a Purchase Notice in respect of such BBC
Change in Circumstances or Flextech Change of Control
(arising by virtue of a change in control of TINTA).
After such suspension shall have come to an end pursuant to the
provisions of this Clause 3.5, the right of Worldwide to serve a Request
Notice pursuant to Clause 3.2 shall revive (but without any
retrospective effect) unless the same shall terminate or shall have
terminated pursuant to the provisions of Clause 3.4.
3.6 The provisions of this Deed shall be without prejudice and in addition
to any right remedy or course of action which Worldwide or any other
member of the BBC Group has or may at any time have against Flextech or
Flextech Parent whether pursuant to the Shareholders' Agreement or any
other Supplementary Agreement or otherwise, all of which rights remedies
and/or courses of action are preserved in full, except that Flextech
shall be relieved of its obligations in respect of the Default Amount
the subject of a Request Notice (provided that TINTA shall have
discharged the same amount pursuant to the provisions of this Deed) and
(unless and until Flextech shall have exercised its rights under Clause
6) all other outstanding funding obligations under Clause 16 of the
Shareholders' Agreement.
3.7 Time is of the essence in respect of the service of notice on TINTA
pursuant to Clauses 3.1 and/or 3.2.
3.8 If Worldwide or any member of the BBC Group shall propose to commence
proceedings against Flextech and/or Flextech Parent ("PROCEEDINGS") in
respect of any matter relating to the Shareholders' Agreement or
Supplementary Agreement, Worldwide shall give notice to TINTA of such
proposal before such Proceedings are commenced or initiated.
3.9 TINTA shall be entitled:-
(a) (if Worldwide shall have given notice pursuant to Clause 3.8 in
respect of a breach of Flextech's funding obligation under the
Shareholders' Agreement) within 21 days of such notice; or
(b) (if Worldwide shall not have given any notice pursuant to Clause
3.8 but Proceedings shall have been commenced or initiated in
respect of a breach of Flextech's funding obligations under the
Shareholders' Agreement) at any time after commencement or
initiation of the Proceedings
6.
<PAGE> 9
to serve on Flextech and Worldwide a notice ("TINTA STEP-IN
NOTICE") PROVIDED THAT by so doing it can reasonably be expected
that the investment represented by Flextech's Share Interest can
be protected and at such time Flextech is not in a position to
meet the said funding obligations. Such TINTA Step-in Notice
shall be deemed to be a Request Notice and the provisions of
Clauses 3 and 4 shall apply accordingly.
15. TINTA'S RIGHTS AND OBLIGATIONS
16. Upon service of a Request Notice by Worldwide pursuant to and in
accordance with the provisions of this Deed:-
16.1 subject to Clauses 4.2, 4.3 and 4.4, TINTA shall comply with all
the outstanding obligations of Flextech pursuant to Clauses 5 to
23, 26 to 37 inclusive of the Shareholders' Agreement (and those
Clauses only) as if it were an original party thereto in the
place of Flextech provided that :
(a) TINTA shall have no obligations pursuant to Clause 16.1.5
of the Shareholders' Agreement unless TINTA shall have
given its prior written consent in respect of such
obligations pursuant to Clause 3.4;
(b) references in Clause 19 of the Shareholders' Agreement to
a Flextech Change of Control shall be construed as
references to TINTA change of control; and
(c) Flextech Parent's guarantee should not extend to the
performance by TINTA of its obligations under the
Shareholders' Agreement.
16.2 subject to TINTA's compliance with Flextech's outstanding funding
obligations pursuant to Clauses 16.2 and 16.3 of the Shareholders
Agreement (as they shall accrue from time to time) including any
Default Amount, but without being subject to the obligations of
Flextech or a Shareholder pursuant to the Shareholders Agreement
except those mentioned in Clause 4.1(a), TINTA shall be entitled
to all the rights of Flextech and Flextech Parent pursuant to the
Shareholders' Agreement and shall be subject thenceforth to all
the obligations of a Shareholder under Clauses 5 to 23 inclusive
(except, subject to the proviso in Clause 4.1(a) of this Deed,
Clause 16.1.5 of the Shareholders' Agreement) as if it were an
original party thereto in the place of Flextech and as if it were
a Shareholder for the purposes of the Shareholders' Agreement and
as if Flextech has not breached any terms of the Shareholders'
Agreement.
17. Subject to Clause 4.1(a), but notwithstanding any provisions of the
Shareholders' Agreement, the rights of each of the Company and Worldwide
in respect of any antecedent breach of the Shareholders' Agreement by
Flextech (except any breach in respect of Flextech's funding obligations
pursuant to Clauses 16.1.2, 16.1.3 or 16.1.5 of the Shareholders'
Agreement if TINTA shall have given its consent pursuant to Clause 3.4)
shall be against Flextech only and neither the Company nor Worldwide
shall have any right of recourse, set-off, counterclaim or otherwise
against TINTA in respect of such breach (except in respect of a breach
of Flextech's said funding obligations). Notwithstanding the foregoing,
TINTA shall not under any circumstances be liable in respect of any
consequential loss resulting from any breach or default of Flextech in
respect of the Shareholders' Agreement.
18. Subject to Clause 4.1, TINTA shall not have any obligations pursuant to
the Shareholders' Agreement and shall not be deemed to have made or be
liable for any representations to any of Worldwide, the BBC, the
Company, Flextech or Flextech Parent including without limitation those
on the part of Flextech or Flextech Parent contained in Clause 4 of the
Shareholders' Agreement.
7.
<PAGE> 10
19. If pursuant either to the exercise by a liquidator of powers under
Section 178(2) of the Insolvency Act 1986 ("the Act") or any
re-enactment of that section or (following an application under Sections
238 or 239 of the Act or any re-enactment of such sections) pursuant to
an order of a court of competent jurisdiction) TINTA does not by this
Deed, the Articles and the rights attaching to the "C" Share it
subscribed under Clause 2.3 become, or subsequently ceases thereby to
be, beneficially entitled to share capital of the Company entitling it
to one half of the voting rights, profits and capital of the Company,
TINTA's obligations arising under Clause 4.1 to assume Flextech's
funding obligations under the Shareholders Agreement shall not, ipso
facto, be released provided that:
19.1 interest on Loan Stock subscribed by TINTA pursuant to that
obligation ("TINTA LOAN STOCK") shall be at the TINTA Rate;
19.2 TINTA shall be released from:
(a) its obligations under Clause 7.2 with immediate effect;
(b) its obligations to assume Flextech's said funding
obligation if, at any time service of the relevant Request
Notice, any of the events listed in Clause 3.4(b) to (n)
takes place without TINTA's prior consent, with effect
from the occurrence of that event; and
19.3 as a conditions precedent to the occurrence of any of the events
listed in paragraphs (e), (f), (g) or (l) of Clause 3.4,
Worldwide shall unconditionally purchase or procure the purchase
or redemption of the TINTA Loan Stock (plus interest thereon at
the TINTA Rate to the date of purchase or redemption) and of the
"C" Share.
4.5 Within 14 days after the service of any Request Notice, Flextech shall
sell, and TINTA shall purchase, Flextech's "A" Shares in consideration
of L.1.
20. SUBORDINATION
21. In this Clause 5 the following words and expressions shall have the
following meanings:
"TINTA LIABILITIES": all or any part of the present and future sums,
liabilities and obligations payable or owing by the Company to TINTA or
any member of the TINTA Group from time to time (whether actual or
contingent, joint or several or otherwise howsoever) which arise under
this Deed or the Shareholders' Agreement (before any amendments thereto
agreed without Flextech's or Flextech Parent's consent) including
without limitation any Loan Stock held by TINTA or any member of the
TINTA Group from time to time and including accrued interest thereon but
excluding day to day trading debts;
"FLEXTECH LIABILITIES": all or any part of the present and future sums,
liabilities and obligations payable or owing by the Company to Flextech
or any member of the Flextech Group from time to time (whether actual or
contingent, joint or several or otherwise howsoever) including without
limitation any Loan Stock held by Flextech or any member of the Flextech
Group from time to time including interest thereon but excluding day to
day trading debts;
"SUBORDINATION RELEASE DATE" shall be :
(i) the Release Date if on such date there shall not be any TINTA
Liabilities outstanding, or
(ii) such later date on which all TINTA Liabilities shall have been
discharged in full
22. Until the Subordination Release Date the Company will not (except to the
extent that TINTA has previously consented in writing):
8.
<PAGE> 11
22.1 (subject to Clause 5.5) pay or repay, or make any payment in
respect of, or purchase or acquire, any of the Flextech
Liabilities (in cash, property, securities or otherwise);
22.2 permit any person to purchase or acquire any of the Flextech
Liabilities;
22.3 discharge any of the Flextech Liabilities in any way (including
by way of consolidation of accounts, set-off or counterclaim);
22.4 create or permit or subsist any Encumbrance over any of its
assets for the payment or discharge of any of the Flextech
Liabilities; or
22.5 take or omit to take any action whereby the subordination
achieved by this Clause 5 may be impaired
PROVIDED THAT the Company may do any of such things set out in sub-
Clauses (a) or (c) if at the time of such action:-
(i) no notice has been served pursuant to Clauses 16.15 to 16.17 of
the Shareholders' Agreement; and (except in respect of interest
payable to Flextech for its Loan Stock)
(ii) Flextech and/or Flextech Parent shall, in the opinion of
its/their auditors, have sufficient working capital available for
the Flextech Group's reasonably foreseeable working capital
requirements and its funding obligations pursuant to Clause 16 of
the Shareholders' Agreement.
23. Until the Subordination Release Date Flextech will not (except to the
extent that TINTA has previously consented):
23.1 (subject to Clause 5.5) demand or receive payment or repayment
of, or receive any payment in respect of any of the Flextech
Liabilities from the Company or any other source or apply any
money or assets in discharge of any Flextech Liabilities ;
23.2 discharge the Flextech Liabilities in any way (including by way
of consolidation of accounts, set-off or counterclaim);
23.3 permit to subsist or create any Encumbrance for the payment or
discharge of any of the Flextech Liabilities;
23.4 permit to subsist or receive any guarantee or other assurance
against loss in respect of any of the Flextech Liabilities;
23.5 take or omit any action whereby the subordination achieved by
this Clause 5 may be impaired;
23.6 (unless Clause 5.5 applies):
(a) accelerate any of the Flextech Liabilities;
(b) enforce the Flextech Liabilities by execution or
otherwise;
(c) initiate or support or take any steps with a view to any
insolvency, reorganisation or dissolution proceedings in
respect of the Company; or
(d) otherwise exercise any remedy for the recovery of the
Flextech Liabilities (including, without limitation the
exercise of any right of set-off, counterclaim or lien);
and
9.
<PAGE> 12
23.7 (i) assign or dispose of, or create or permit to subsist any
encumbrance over, any of Flextech's Interest in the
Company, the Flextech Liabilities, any interest in the
Flextech Liabilities, the proceeds of the Flextech
Liabilities or the proceeds of any interest in the
Flextech Liabilities to or in favour of any person; or
(ii) transfer by novation or otherwise any of its rights or
obligations in respect of any of the Flextech Liabilities
to any person.
PROVIDED THAT the Company may do any of such things set out in sub-
Clauses (a), (b), (f)(ii) or (f)(iii) if at the time of such action:-
(i) no notice has been served pursuant to Clauses 16.15 to 16.17
inclusive of the Shareholders' Agreement; and (except in the case
of payments and demands referred to in Clause 5.3(a) and (b) in
relation to interest payable to Flextech in respect of its Loan
Stock) ;
(ii) Flextech and/or Flextech Parent shall, in the opinion of
its/their auditors, have sufficient working capital available for
the Flextech Group's reasonably foreseeable working capital
requirements and funding its obligations pursuant to Clause 16 of
the Shareholders' Agreement.
24. If at any time before the Subordination Release Date during which there
shall be any outstanding TINTA Liabilities:-
24.1 (i) Flextech receives a payment or distribution in respect of
any of the Flextech Liabilities from the Company or any
other source; or
(ii) Flextech receives the proceeds of any enforcement of any
encumbrance or any guarantee for any Flextech Liabilities;
or
(iii) the Company makes any payment or distribution on account
of the purchase or other acquisition of any of the
Flextech Liabilities
Flextech will hold the same in trust for and pay and distribute
it to TINTA for application towards the TINTA Liabilities until
the TINTA Liabilities are irrevocably paid in full.
24.2 any of the Flextech Liabilities are discharged in any way
(including by way of consolidation of accounts, set-off or
counterclaim) Flextech will immediately pay an amount equal to
the discharge to TINTA for application towards the TINTA
Liabilities until the TINTA Liabilities are irrevocably paid in
full.
(c) for any reason, a trust in favour of, or a holding of property
for, TINTA under this Deed is invalid or unenforceable, Flextech
will pay and deliver to TINTA an amount equal to the payment,
receipt or recovery in cash or in kind (or its value, if in kind)
which Flextech would otherwise have been bound to hold on trust
for or as property of TINTA.
25. If, at any time prior to the Subordination Release Date during which
there shall be any outstanding TINTA Liabilities, the Company becomes
subject to any insolvency, bankruptcy, reorganisation, administration,
assignment or arrangement with creditors, liquidation, dissolution or
other similar proceeding or distribution of its assets, whether or not
involving insolvency (an "INSOLVENCY EVENT"):
25.1 TINTA shall (subject to sub-Clause (b)), and is irrevocably
authorised on behalf of Flextech to:
(a) claim, enforce and prove for the Flextech Liabilities;
10.
<PAGE> 13
(b) file claims and proofs, give receipts and take all such
proceedings and do all such things as TINTA sees fit to
recover the Flextech Liabilities; and
(c) receive all distributions on the Flextech Liabilities for
application towards the TINTA Liabilities.
25.2 if and to the extent that TINTA is not entitled to do any of the
matters in sub-Clause (a), Flextech will do so in such manner and
at such time as directed by TINTA.
25.3 Flextech will hold all distributions in cash or in kind received
or receivable by Flextech in respect of the Flextech Liabilities
from the Company or from any other source in trust for TINTA and
will (at Flextech's expense) pay and transfer the same to TINTA
for application towards the TINTA Liabilities until the TINTA
Liabilities are irrevocably paid in full.
25.4 the trustee in bankruptcy, liquidator, assignee or other person
distributing the assets of the Company or their proceeds is
directed to pay distributions on the Flextech Liabilities direct
to TINTA until the TINTA Liabilities are irrevocably paid in
full. Flextech will give all such notices and do all such things
as TINTA may direct to give effect to this provision.
26. So long as any of the TINTA Liabilities are outstanding:
26.1 TINTA may (and is hereby irrevocably authorised to) exercise all
powers of convening meetings, voting and representation in
respect of the Flextech Liabilities and Flextech will provide all
forms of proxy and of representation needful to that end; and
26.2 if and to the extent that TINTA is not entitled to exercise a
power conferred by the above Flextech:
(a) will exercise the power as TINTA directs; and
(b) will not exercise it so as to impair this subordination.
27. (a) The subordination provisions in this Clause 5 constitute a
continuing subordination and benefit the ultimate balance of the
TINTA Liabilities.
(b) The subordination in this Clause 5 and the obligations of
Flextech will not be affected by any act, omission, matter or
thing which, but for this provision, would reduce, release or
prejudice the subordination or any of those obligations in whole
or in part, including without limitation:
(i) any waiver granted to, or composition with the Company or
other person;
(ii) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or encumbrance over assets
of, the Company or other person in respect of the TINTA
Liabilities or otherwise or any failure to realise the
full value of any encumbrance; and
(iii) any unenforceability, illegality or invalidity of any
obligation of the Company or encumbrance in respect of the
TINTA Liabilities or any other document or encumbrance.
(c) Flextech waives any right it may have of first requiring TINTA
(or any trustee or agent on its behalf) to proceed against or
enforce any other rights or encumbrance or claim payment from any
person before claiming the benefit of this Clause 5. TINTA (or
any
11.
<PAGE> 14
trustee or agent on its behalf) may refrain from applying or
enforcing any money, rights or encumbrance.
(d) Until the TINTA Liabilities have been irrevocably paid in full,
TINTA (or any trustee or agent on its behalf) may:
(i) apply any moneys or property received under this Clause 5
or from the Company or from any other person against the
TINTA Liabilities in such order as it sees fit; and/or
(ii) hold in suspense any moneys or distributions received from
Flextech under Clauses 5.4 and 5.5 or on account of the
liability of Flextech under this Deed.
(e) Until the TINTA Liabilities have been irrevocably paid in full,
Flextech will not by virtue of any payment or performance by it
under this Deed or by virtue of the operation of Clauses 5.4 or
5.5:
(i) be subrogated to any rights, encumbrance or moneys held,
received or receivable by TINTA (or any trustee or agent
on its behalf) or be entitled to any right of contribution
or indemnity;
(ii) claim, rank, prove or vote as a creditor of the Company or
other person in competition with TINTA (or any trustee or
agent on its behalf); or
(iii) receive, claim or have the benefit of any payment,
distribution or encumbrance from or on account of the
Company or other person.
28. TINTA will not be liable to Flextech for:
28.1 the manner of exercise or for any non-exercise of the powers
under this Clause 5; or
28.2 the failure to collect or preserve the Flextech Liabilities
provided that if TINTA shall have failed to do any of the things or
matters in Clause 5.5(a) within 21 days of occurrence of an Insolvency
Event, Flextech shall have the right to do all such things or matters
subject always to Clauses 5.5(b) to (d).
29. (a) Flextech agrees to execute all such further documents and do all
such acts and things as may be necessary from time to time in the
opinion of TINTA to ensure that at all times (while this Clause 5
is effective) the Flextech Liabilities are effectively
subordinated to the TINTA Liabilities.
(b) The perpetuity period for the trusts in this Clause 5 is 80
years.
(c) By way of security for the obligations of Flextech under this
Clause 5, Flextech irrevocably appoints TINTA as its attorney to
do anything which Flextech:
(a) has authorised TINTA to do under this Clause 5; and
(b) is required to do by this Clause 5 but has failed to do.
TINTA may delegate this power.
5.10 Notwithstanding any other provision of Clause 5, the proceeds of sale
receivable from Worldwide pursuant to the exercise of its rights under
Clauses 19 or 20 of the Shareholders' Agreement shall be applied as
follows:
12.
<PAGE> 15
(a) while Clause 5.11 applies to TINTA and Flextech and in respect
of proceeds of sale relating to the Loan Stock :
(i) first to TINTA and Flextech pro rata according to the
amount of the TINTA Liabilities and the Flextech
Liabilities (other than any of the same arising in respect
of any Share Interest) at the time;
(ii) second to TINTA in respect of its Share Interest; and
(b) thereafter:
(i) first to TINTA, of an amount up to the sum of TINTA
Liabilities.
(ii) second to Flextech of an amount equal to the sum of the
Flextech Liabilities;
(iii) third to TINTA.
For these purposes all interest calculations in TINTA Liabilities shall
be at the TINTA Rate. Any other proceeds shall be dealt with in
accordance with this Clause 5.
5.11 Whilst any amount is outstanding or capable of becoming outstanding
under the Facility Agreement and the provisions of the Inter-Creditor
Deed of even date between Flextech Parent, TINTA, The Toronto-Dominion
Bank and the Company continue to have effect, Clauses 5.2(a) to (c),
5.3(a), (b) and (f), 5.4, 5.5, 5.6 and 5.7(d) and (e) (inclusive) shall
not apply to Flextech Liabilities arising under any Loan Stock.
30. CLAWBACK
31. Flextech shall have the right to serve a notice on TINTA, and TINTA
shall be entitled to serve a notice on Flextech (each a "CLAWBACK
NOTICE") on or before the expiry of 180 days from the date of the first
Request Notice (in the case of Clause 3.3) or the relevant TINTA Step-In
Notice (in the case of Clause 3.9) provided that:-
31.1 no previous Clawback Notice shall have been served;
31.2 on or prior to the service of such Clawback Notice, (in the case
where the same was served by Flextech) Flextech and/or the
Company shall have paid, or (in the case of where the same was
served by TINTA) within three days after service of such
Clawback Notice Flextech shall pay, to TINTA an amount in respect
of such Clawback Notice (for no other
13.
<PAGE> 16
purpose and on no other account), and without any set-off,
withholding or deduction, equal to the total principal amount
("THE REPAYMENT AMOUNT") of funding provided by TINTA to the
Company (including without limitation all amounts paid by TINTA
in respect of the subscription of Loan Stock or its acquisition
of Flextech's Share Interest) together with accrued interest
thereon at the TINTA Rate, such interest being calculated and
compounded monthly in arrears less the sum of :
(a) any dividends received by TINTA on its Share Interest,
less
(ii) any Taxation paid or payable by TINTA on such dividends;
and
(c) TINTA shall not be permitted to serve a Clawback Notice earlier
than 30 days before the expiry of the said 180 day period.
6.2 Within 14 days of the service by Flextech of a Re-Conversion Notice
pursuant to Regulation 8.1 of the Articles:
(a) Worldwide, Flextech and TINTA shall procure that A Directors
appointed by TINTA shall (without compensation) if required by
Flextech each resign from their office and that an equal number
of Flextech's nominees shall be appointed as A Directors in their
place; and
(b) TINTA shall sell, and Flextech shall purchase for L.1.00, the
Flextech "A" Shares purchased by TINTA pursuant to Clause 4.5.
6.3 Upon the service of a Clawback Notice in accordance with Clause 6.1:-
(a) the obligations of TINTA pursuant to Clause 4.1 shall cease;
(b) Flextech shall forthwith comply with all of its outstanding
obligations pursuant to the Shareholders' Agreement as if TINTA
had never been a party thereto in its place and as if Flextech
had never been relieved of such obligations;
31.3 Flextech shall be treated as a Shareholder for the purposes of
the Shareholders' Agreement for all purposes as if TINTA had
never taken its place and as if it had provided the Repayment
Amount to the Company; and
31.4 Flextech Parent's guarantee under the Shareholders' Agreement
shall revive as if it had never been released or waived
PROVIDED THAT nothing in this Clause shall prejudice any accrued rights
and/or obligations of any of the parties hereto or any rights and/or
obligations the parties may have (pursuant to the provisions of this
Deed including without limitation Clauses 3 and 4) in respect of any
subsequent Request Notice in relation to any subsequent Default Amount
and any obligations and liabilities of TINTA and Flextech following
service of such a Request Notice.
6.4 Flextech and Flextech Parent hereby jointly and severally agrees to
indemnify TINTA against all costs, expenses, claims, actions, demands,
liabilities (whether or not in the nature of Taxation) or proceedings
which TINTA or any member of the TINTA Group or any parent undertaking
of TINTA or any subsidiary undertaking of any parent undertaking of
TINTA may suffer or incur as a result of, or pursuant to, a Clawback
Notice.
6.5 Neither Flextech nor TINTA shall be entitled to serve a Clawback Notice
without Worldwide's consent if, between service of the Request Notice
and service of the Clawback Notice:
(a) a Flextech Change of Control has taken place by virtue of a
change of control of TINTA; or
14.
<PAGE> 17
(b) a Flextech Insolvency has occurred by virtue of TINTA having
suffered the occurrence of one of the events listed in Clause
19.1.4 of the Shareholders' Agreement.
unless Flextech has delivered to Worldwide an opinion of a firm of
auditors of international repute (who may be Flextech's auditors) that
Flextech has sufficient working capital to meet its then foreseeable
funding commitments under Clause 16 of the Shareholders' Agreement.
6.6 Flextech shall be permitted to serve only one Clawback Notice.
32. PROTECTIVE COVENANTS
33. In this Clause 7:-
"RESTRICTED CHANNEL" shall mean
(a) after the TINTA Selldown Date, a Competing Channel the
programming for which is predominantly produced in the United
Kingdom; and
(b) prior to the TINTA Selldown Date, a Competing Channel
but shall not include any New Channel in the circumstances described in
Clause 24.6 of the Shareholders' Agreement and for the purpose of Clause
7.2.2., "JV2 Competing Channel" shall mean a Competing Channel as
defined in the shareholders' agreement between Flextech Parent, United
Artists Investments Limited, BBCW and UK Gold Holdings of the same date
as the Shareholders' Agreement;
"TINTA TERMINATION DATE" shall mean the earliest of:-
(a) the later of:
(i) the Release Date (provided that on such date no member of
the TINTA Group shall have acquired any Share Interest in
the Company pursuant to Clauses 3.2 and/or 8); and
(ii) the date (the "TINTA SELLDOWN DATE") on which members of
the TINTA Group no longer own more than 10% of the
ordinary shares of Flextech Parent for the time being in
issue;
(b) the first date (after any member of the TINTA Group shall have
acquired any Share Interest in the Company pursuant to Clauses
3.2 and/or 8) on which no member of the TINTA Group shall have
any Share Interest in the Company other than by reason of the
exercise by Flextech of its rights under Clause 6;
(c) the service of a Purchase Notice by Worldwide upon a BBC Change
in Circumstances, a Flextech Insolvency or a Flextech Change of
Control constituted by a change of control of TINTA;
(d) any Transfer of any of Flextech's Share Interest pursuant to the
provisions of Clause 18 of the Shareholders' Agreement (other
than a Transfer in accordance with Clause 18.2 thereof) or
otherwise with the consent of Worldwide to any person being:-
15.
<PAGE> 18
(a) neither a member of the Flextech Group in whom Flextech
Parent shall have more than 75% of the voting and economic
rights nor a member of the TINTA Group; or
(ii) a member of the Flextech Group unless such transferee
shall have first executed a deed of adherence making the
same subject to and bound by the provisions of the
Shareholders' Agreements, the Flextech Agreements and this
Deed as if it were an original party thereto or hereto in
the place of Flextech;
(e) the Termination Date.
7.2.1 TINTA covenants with Worldwide, Flextech and the Company (but so that
nothing in this Clause shall render TINTA liable in damages to any
extent (if at all) greater than those for which it would be liable if
this covenant were given to the Company alone) that, until the TINTA
Termination Date, it shall not and shall procure that no company while
it is in the TINTA Group shall (on its own or, after aggregating its
interests with other members of the TINTA Group or (subject to Clause
7.5) of the TCI Group) acquire any interest in a Restricted Channel
which interest shall comprise more than 20% of the issued share capital
of the company which owns such Restricted Channel.
7.2.2 TINTA covenants with Worldwide, Flextech and UK Gold Holdings (but so
that nothing in this clause shall render TINTA liable in damages to any
extent (if at all) greater than those for which it would be liable if
this covenant were given to UK Gold Holdings alone) that, until the
TINTA Termination Date, it shall not and shall procure than no company
while it is in the TINTA Group shall (on its own or, after aggregating
its interests with other members of the TINTA Group or (subject to
clause 7.5) of the TCI Group acquire any interest in a JV2 Restricted
Channel which interest shall comprise more than 20% of the issued share
capital of the company which owns such JV2 Restricted Channel.
7.2.3 The restrictions under this Clause 7.2 shall not apply to any of the
following:-
33.1 the channels currently owned or operated by any member of the
TINTA Group or in which any member of the TINTA Group has at the
date hereof an interest or is engaged; or
(b) any arrangement whereby TINTA and/or any other company while it
is in the TINTA Group provides management services to such
Restricted Channel and neither TINTA nor any company while it is
a company in the TINTA Group has, at the same time, more than a
20% ownership interest in such Competing Channel.
7.3 Without prejudice to Clauses 7.2.3(a) or (b), nothing in Clause 7.2
shall prevent TINTA or any company while it is in the TINTA Group from
acquiring any interest (an "INVESTMENT INTEREST") in any company,
corporation, entity or person who shall, at the time of such
acquisition, have an interest (a "RESTRICTED CHANNEL INTEREST") in a
Restricted Channel if TINTA's predominant motive or reason for making
such acquisition was other than to acquire such Restricted Channel
Interest and if that Restricted Channel Interest does not represent a
substantial proportion of the Investment Interest. However, if such
Investment Interest shall be a controlling interest, TINTA or the
relevant member of the TINTA Group shall, within 180 days after
completing its acquisition of such Investment Interest, either:
33.2 if the Investment Interest is acquired before the TINTA Selldown
Date, make such arrangements as are necessary to ensure that it
and any member at the time of the TINTA Group or persons
connected or acting in concert with it or with any such member
shall cease to operate and/or hold a Restricted Channel Interest
(including but without
16.
<PAGE> 19
limitation by disposing of such Investment Interest in whole) or
taking steps so that the conditions laid down in Clause 7.5 are
no longer satisfied;
33.3 if the Investment Interest is acquired after the TINTA Selldown
Date either make arrangements as described in paragraph (a) or
offer to sell such Restricted Channel Interest to the Company at
fair value to be determined in the absence of agreement between
the Company and TINTA in accordance with the principles embodied
in Clause 21 of the Shareholders' Agreement, such offer to be
open for acceptance for 180 days, subject only to obtaining any
necessary third party consents; or
33.4 if the Investment Interest was acquired by a company while it was
in the TINTA Group, make such arrangements as are necessary to
ensure that such company ceases to be in the TINTA Group.
If the Company does not accept an offer made pursuant to paragraph (b),
the relevant member of the TINTA Group may retain the Restricted Channel
Interest.
7.4 TINTA covenants with Worldwide that until the expiration of 1 year from
the later of the TINTA Termination Date and the Release Date, it shall
not, and shall procure that no company while it is in the TINTA Group
shall, directly or indirectly solicit or entice away from the Company,
on behalf of itself or any other company while it is in the TINTA
Group, any person employed by the Company or any other member of the
Group, with a view to inducing that person to leave such employment and
to act for another employer in the same or a similar capacity.
7.5 The provisions of Clause 7.2 which aggregate the interests of the TCI
Group with those of the TINTA Group shall only apply if at the relevant
time :
33.5 the aggregate interest of the members of the TINTA Group in the
Competing Channel exceeds the interest in the Competing Channel
of each member of the TCI Group;
33.6 the aggregate interests in the Competing Channel of all members
of the TINTA Group and the TCI Group exceed the interests of any
other person (including companies controlled by, controlling and
under common control with that person) who is not a member of
either the TINTA Group or the TCI Group; and
33.7 TINTA is controlled by TCI.
34. CHANGE OF CONTROL
35. Service of a Purchase Notice shall not be valid unless a copy of it is
served on TINTA.
36. If a Flextech Change of Control (by reason only of a change in control
of Flextech) shall occur and Worldwide shall have served a valid
Purchase Notice in respect of such Flextech Change of Control, TINTA
shall have the right to serve a notice on Worldwide and Flextech (a
"TINTA NOTICE") within 14 days of the service on TINTA of a copy of such
Purchase Notice provided that such Change of Control of Flextech shall
not have occurred by reason of a Change of Control of TINTA.
37. If TINTA shall have served a TINTA Notice pursuant to Clause 8.2 upon a
Flextech Change of Control, Flextech shall be obliged to sell and TINTA
shall be obliged to purchase all of the Flextech Interest at Fair Value
(having the meaning in Clause 19.3 of the Shareholders' Agreement and
determined, in the absence of agreement between TINTA and Flextech in
accordance with the principles embodied in Clause 21 of the
Shareholders' Agreement).
17.
<PAGE> 20
38. Completion of the sale and purchase of the Flextech Interest pursuant to
the TINTA Purchase Notice shall take place on the latter of (first) the
date 150 days after the date of the Flextech Change of Control and
(second) the fifth Banking Day after agreement or determination of the
Fair Value of the Flextech Interest, at 12 noon at the registered office
of the Company or at such time and place as Flextech, Worldwide and
TINTA may agree. At completion:
38.1 Flextech shall deliver to TINTA (as appropriate) duly executed
stock transfer forms of the Shares and the Loan Stock comprised
in the Flextech Interest together with the relevant share and
stock certificates;
38.2 TINTA, against such delivery, shall pay to Flextech by way of
bankers' draft the Fair Value of the Flextech Interest together
with interest accrued on Flextech's Loan Stock comprised in the
Loan Stock to completion (to the extent such interest has not
already been taken into account in the determination of the Fair
Value); and
38.3 Worldwide and Flextech shall procure that:-
(a) TINTA shall be registered as the holder of the Share
Interest comprised in the Flextech Interest in the
register of members of the Company; and
(b) A Directors appointed by Flextech shall (without
compensation) each resign from their office and an equal
number of TINTA's nominees or Worldwide's nominees (as
appropriate) shall be appointed as A Directors in their
place.
Worldwide shall waive and shall procure that each transferee of any part
of its Interest shall waive any pre-emption rights or other rights of
refusal such transferee may have in respect of such transfer of the
Flextech Interest.
39. Flextech shall indemnify TINTA and/or the Company (as appropriate)
against any compensation for loss of office, claim, demand, action,
damages, loss, costs and/or expenses TINTA and/or the Company may incur
or be liable in respect of such resignation of such A Directors
appointed by Flextech.
40. Flextech hereby irrevocably appoints TINTA and each and every director
of TINTA from time to time to be the attorney of Flextech in the name
and on behalf of Flextech and as the act and deed of Flextech to do,
implement and/or give effect to any or all of the above matters.
41. TINTA CONDUCT
TINTA undertakes with Flextech Parent that it shall not, and shall
procure that United Artists European Holdings Limited (for so long as it
shall remain a member of the TINTA Group) shall not:
41.1 exercise any of its/their voting rights in its/their capacity as
shareholder(s) of Flextech Parent in bad faith and solely for the
purpose of acquiring any of Flextech's Share Interest pursuant to
Clauses 3 of this Deed by voting against any bona fide proposal
Flextech Parent may have in respect of funding of its obligations
towards the Company; or
41.2 conduct its affairs in such a way as to cause intentionally a
Flextech Change of Control, in bad faith, with a predominant
motive of thereby becoming entitled to purchase the Flextech
Interest pursuant to Clause 8.
18.
<PAGE> 21
42. CONFIDENTIALITY
Nothing in Clause 26 of the Shareholders' Agreement shall prohibit the
disclosure of information concerning the Group to TINTA or TCI and, if
so required by TINTA, Flextech and the Company shall provide such
information concerning the Group as TINTA shall reasonably request.
TINTA hereby undertakes to be bound by the terms of that Clause 25 of
the Shareholders' Agreement in respect of information so received.
11. FEE
Flextech Parent shall pay to TINTA on the dates falling at three monthly
intervals after the date of this Deed and on the Release Date, a fee
computed from the date of this Agreement to the Release Date as follows:
42.1 L.400,000 in respect of the period from 1st April 1997 to 31st
March 1998;
42.2 L.200,000 in respect of the period from 1st April 1998 to 31st
March 1999;
42.3 L.150,000 in respect of the period from 1st April 1999 to 31st
March 2000;
42.4 thereafter, at a rate equal to the sum of:
(i) 0.5 per cent per annum (calculated for this purpose from
1st April to 31st March) on the daily undrawn and uncalled
amount of Flextech's funding obligation under Clauses
16.1.2 and 16.1.3 of the Shareholders' Agreement; less
(ii) any commitment fee payable by members of the Group in
respect of each such three month period on the funding
commitment from banks unconditionally available to meet
such funding obligations.
If the Release Date falls before 31st March 2000, the fee in respect of
the last fee period shall be time apportioned.
43. CO-SALE RIGHTS
No Co-Sale Right shall arise in consequence of any sale, purchase or
transfer of any Interest pursuant to this Deed.
44. CONFLICT WITH THE SHAREHOLDERS' AGREEMENT
As regards the relationship between the parties to and under this Deed,
if there shall be any conflict between the terms of this Deed and the
Shareholders' Agreement the terms of this Deed shall prevail in relation
to TINTA. Subject to Clause 8.1, as regards the relationship between
the parties (other than TINTA) the Shareholders' Agreement shall
prevail.
45. NO ASSIGNMENT
The provisions of this Deed shall be binding on and enure to the benefit
of the successors of each party hereto provided that no party may agree
to assign, transfer, charge or otherwise dispose of or subcontract any
of its rights or obligations hereunder without the prior written consent
of the other parties.
19.
<PAGE> 22
46. WAIVERS, REMEDIES CUMULATIVE, AMENDMENTS ETC
47. No failure or delay by any of the parties hereto in exercising any
right, power or privilege under this Deed shall operate as a waiver
thereof nor shall any single or partial exercise by any of the parties
hereto of any right, power or privilege preclude any further exercise
thereof or the exercise of any other right, power or privilege.
48. The rights and remedies herein provided are cumulative and not exclusive
of any rights and remedies provided by law.
49. Save as expressly provided in this Deed, no provision of this Deed may
be amended, modified, waived, discharged or terminated, otherwise than
by the express written agreement of the parties hereto nor may any
breach of any provision of this Deed be waived or discharged except with
the express written consent of the parties not in breach.
50. INVALIDITY AND RESTRICTIVE TRADE PRACTICES
51. If any provision of this Deed is adjudicated to be invalid or
unenforceable, its remaining provisions shall remain valid and
enforceable and (the parties) shall promptly negotiate in good faith
with each other to agree on a new provision to replace the one
adjudicated as invalid or unenforceable, in order to carry out their
original intent to the extent allowed by law.
52. Any restriction contained in this Deed and in any arrangement of which
this Deed forms part by virtue of which this Deed or such arrangement is
subject to registration under the Restrictive Trade Practices Act 1976
shall come into effect on the date following the day on which
particulars of this Deed and of any such arrangement have been furnished
to the Office of Fair Trading (or on such later date as may be provided
for in relation to any such restriction).
53. NO PARTNERSHIP OR AGENCY
Nothing in this Deed shall be deemed to constitute a partnership between
any of the parties hereto nor, save as expressly set out herein,
constitute any party the agent of another party for any purpose.
54. ANNOUNCEMENTS
Unless otherwise required by law or any regulatory authority, no
announcement or circular in connection with the subject matter of this
Deed shall be made or issued by or on behalf of any of the parties
hereto without the prior written approval of the others, such approval
not to be unreasonably withheld or delayed.
55. COSTS
Save as expressly provided herein, each of the Parties shall pay its own
costs, charges and expenses connected with the preparation and
implementation of this Deed and the transactions contemplated by it.
56. ENTIRE AGREEMENT
This Deed together with all agreements referred to herein constitute the
entire agreement and understanding of the parties hereto with respect to
the subject matter hereof and none of the
20.
<PAGE> 23
parties hereto has entered into this Deed in reliance upon any
representation or warranty other than any such as may be set out herein.
57. NOTICES
58. Any notice or other communication given or made under this Deed shall be
made in writing and shall be and may be delivered to the relevant party
at the address of that party specified in this Deed or sent by facsimile
transmission to that party a facsimile transaction number thereat or
such other address or number as may be notified hereunder by that party
from time to time for this purpose and shall be effectual
notwithstanding any change of address or number not so notified.
59. Unless the contrary shall be proved, each such notice or communication
shall be deemed to have been given or made and delivered, if by
delivery, when left at the relevant address and, if by facsimile
transmission, upon receipt of the relevant transmission report or in
each case the next working day thereafter if not a working day or if not
delivered or received within business hours of 9.30 a.m. to 5.30 p.m. in
the local time of the recipient.
60. FURTHER ASSURANCES
Each of the parties hereto undertakes to each of the others that, in so
far as it is legally able, it shall from time to time after Completion
execute such further acts and do such further things as may be required
to give effect to the terms of this Deed.
61. GOVERNING LAW AND SERVICE OF PROCESS
62. This Deed shall be governed by and construed in all respects in
accordance with English law and the parties agree to submit to the non-
exclusive jurisdiction of the English Courts as regards any claim or
matter arising in relation to this Deed.
63. TINTA hereby appoints Grays Inn Secretaries Limited of 5 Chancery Lane,
Clifford's Inn, London EC4A 1BU (marked for the personal attention of
Philip Goodwin and Simon Brown) as its authorised agent for the purpose
of accepting service of process for all purposes in connection with this
Deed.
21.
<PAGE> 24
IN WITNESS whereof the parties have executed this Deed as a deed on the date
set out on page 1
<TABLE>
<S> <C> <C>
EXECUTED for and )
on behalf of TELE-COMMUNICATIONS )
INTERNATIONAL, INC. in the presence of: )
Director
Director/Secretary
EXECUTED for and on behalf of )
FLEXTECH p.l.c. in the presence of: )
Director
Director/Secretary
EXECUTED for and on behalf of )
FLEXTECH DIGITAL BROADCASTING )
LIMITED )
in the presence of: )
Director
Director/Secretary
EXECUTED for and )
on behalf of BBC WORLDWIDE LIMITED )
in the presence of: )
Director
Director/Secretary
EXECUTED for and )
on behalf of UK CHANNEL MANAGEMENT )
LIMITED in the presence of: )
Director
Director/Secretary
</TABLE>
22.
<PAGE> 1
[EXECUTION COPY]
U.S. $100,000,000
CREDIT AGREEMENT,
dated as of April 30, 1997,
among
TCI CABLEVISION OF PUERTO RICO, INC.,
as the Borrower,
CERTAIN COMMERCIAL LENDING INSTITUTIONS,
as the Lenders,
and
THE BANK OF NOVA SCOTIA,
acting through certain U.S. branches or agencies,
as the Administrative Agent for the Lenders.
<PAGE> 2
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of April 30, 1997, among TCI
CABLEVISION OF PUERTO RICO, INC., a Delaware corporation (the "Borrower"), the
various financial institutions as are or may become parties hereto
(collectively, the "Lenders"), and THE BANK OF NOVA SCOTIA, acting through
certain of its U.S. branches or agencies ("Scotiabank"), as administrative
agent (the "Administrative Agent") for the Lenders,
W I T N E S S E T H:
WHEREAS, the Borrower is engaged in Puerto Rico in the cable
television business, including pay cable service, which involves the
distribution primarily by cable of audio and video signals in defined
geographical areas, and in the business of acquiring, owning, expanding,
operating and maintaining Cable Systems (such and other capitalized terms are
used herein with the meanings provided in Section 1.1), and in directly related
media activities, including data transmission services, telephony and the
production and distribution of programming;
WHEREAS, the operations of Cable Adnet of Puerto Rico, Inc., a
Delaware corporation ("Adnet"), TCI of Puerto Rico, Inc., a Colorado
corporation ("TCI-Puerto Rico"), and TCI of PR, Inc., a Colorado corporation
("TCI-PR"), were consolidated into TCI Cablevision on January 9, 1997 (the
"Consolidation");
WHEREAS, TCID of Puerto Rico, Inc., a Nevada corporation and an
Affiliate of the Borrower ("TCID"), owns a 50% general partnership interest in
Caguas/Humacao Cable Systems, a Connecticut general partnership ("CHCS");
WHEREAS, TCID intends to acquire the remaining 50% general partnership
interest in CHCS whereby CHCS will dissolve by operation of law and its assets
and liabilities will be vested in TCID and immediately thereafter TCID will
merge into the Borrower (such acquisition and subsequent merger being referred
to herein as the "Acquisition");
WHEREAS, the Borrower desires to obtain from the Lenders Commitments
pursuant to which Borrowings of Loans, in a declining maximum aggregate
principal amount at any time outstanding not to exceed initially $100,000,000,
will be made to the Borrower from time to time on and after the date of the
Acquisition to be used (x) to finance the Acquisition, (y) to refinance the
existing indebtedness of the Cable Systems acquired in the Acquisition and (z)
for general corporate and working capital purposes of the Borrower and its
Subsidiaries, including system upgrades,
<PAGE> 3
acquisitions and joint venture investments;
WHEREAS, the Lenders are willing, on the terms and subject to the
conditions hereinafter set forth (including Article V), to extend such
Commitments and make such Loans to the Borrower; and
WHEREAS, the Borrower and the Lenders are agreed that, in the event of
the occurrence of the Reorganization (or certain other changes in the corporate
structure of International), certain changes provided for herein shall become
effective with respect to the terms and conditions on which the Loans shall
remain outstanding and the Commitments shall continue in effect;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE II
DEFINITIONS AND ACCOUNTING TERMS
SECTION II.1 Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Acquisition" is defined in the fourth recital.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Adnet" is defined in the second recital.
"Affected Principal Amount" means, relative to any LIBO Rate Loan,
(a) in the event of the occurrence of a LIBOR Breakage Event
of the nature referred to in clause (a) of the definition of such
term, a principal amount equal to the amount requested pursuant to the
related Borrowing Request or Continuation/Conversion Notice;
(b) in the event of the occurrence of a LIBOR Breakage Event
of the nature referred to in clause (b) of the definition of such
term, the principal amount of the Borrowings affected; and
(c) in the event of the occurrence of a LIBOR Breakage Event
of the nature referred to in clause (c) of the definition of such
term, an amount equal to the principal
-2-
<PAGE> 4
amount so prepaid or repaid.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding, however, any trustee under, or any committee with
responsibility for administering, any Plan). A Person shall be deemed to be
"controlled by" any other Person if such other Person possesses, directly or
indirectly, power to direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Affiliated Debtholder" means, at any time, any Affiliate of the
Borrower which holds any Intercompany Debt of the Borrower or any of its
Restricted Subsidiaries.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time amended,
supplemented, amended and restated, or otherwise modified and in effect on such
date.
"Alternate Base Rate" means, on any date and relative to all Base Rate
Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently established by the
Administrative Agent at its Domestic Office as its base rate for
Dollar loans in the United States; and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by the Administrative Agent in connection with extensions
of credit. Changes in the rate of interest on that portion of any Loans
maintained as Base Rate Loans will take effect simultaneously with each change
in the Alternate Base Rate. The Administrative Agent will give notice promptly
to the Borrower and the Lenders of changes in the Alternate Base Rate.
"Annualized Cash Flow" means, on any date, the excess of
(a) the product of
(i) Cash Flow of the Borrower and its Restricted
Subsidiaries for the Fiscal Quarter ending on, or most
recently ended prior to, such date
multiplied by
(ii) four,
-3-
<PAGE> 5
over
(b) tax expense (net of deferred taxes) of the Borrower and
its Restricted Subsidiaries for the period of four Fiscal Quarters
ending on, or most recently ended prior to, such date, excluding,
however, all capital gains taxes resulting from the sale or other
disposition of assets.
"Applicable Margin" means, for Loans of any type, the rate per annum
set forth below under the relevant column heading opposite the applicable
Leverage Ratio:
<TABLE>
<CAPTION>
Applicable Margin
----------------------------------
Leverage Ratio Base Rate LIBO Rate
-------------- --------- ---------
<S> <C> <C>
Greater than or equal to 5.00:1.00 0.375% 1.375%
Greater than or equal to 4.50:1.00 0.125% 1.125%
Greater than or equal to 4.00:1.00 0.000% 1.000%
Greater than or equal to 3.50:1.00 0.000% 0.750%
Less than 3.50:1.00 0.000% 0.500%
</TABLE>
provided, however, that, in the event that TCI shall cease to own, directly and
free of Liens, at least 50.10% of the Voting Stock of International, Applicable
Margin shall mean, for Loans of any type, the rate per annum set forth below
under the relevant column heading opposite the applicable Leverage Ratio:
<TABLE>
<CAPTION>
Applicable Margin
----------------------------------
Leverage Ratio Base Rate LIBO Rate
-------------- --------- ---------
<S> <C> <C>
Greater than or equal to 5.00:1.00 1.000% 2.000%
Greater than or equal to 4.50:1.00 0.750% 1.750%
Greater than or equal to 4.00:1.00 0.625% 1.625%
Greater than or equal to 3.50:1.00 0.250% 1.250%
Less than 3.50:1.00 0.000% 1.000%
</TABLE>
Leverage Ratio information shall be taken from the Compliance Certificate most
recently delivered to the Administrative Agent, beginning with the Compliance
Certificate provided by the Borrower pursuant to Section 5.1.5. Changes in the
Applicable Margin resulting from a change in the Leverage Ratio shall become
effective five days following the delivery by the Borrower to the
-4-
<PAGE> 6
Administrative Agent of a new Compliance Certificate pursuant to clause (a)(ii)
or (b)(iv) of Section 7.1.1 showing a change in the Leverage Ratio (or, if such
fifth day is not a Business Day, on the first Business Day following such fifth
day). If the Borrower shall fail to deliver a Compliance Certificate on or
prior to the date required by either such clause for delivery of such
Compliance Certificate, it shall be conclusively presumed that the Applicable
Margin is based upon a Leverage Ratio greater than 5.00:1.00 for the period
from (but excluding) such date and continuing through (and including) the fifth
day following the delivery by the Borrower to the Administrative Agent of a
Compliance Certificate.
"Acquisition" is defined in the fourth recital.
"Assignee Lender" is defined in Section 10.11.1.
"Authorized Officer" means, relative to the Borrower, its chief
financial officer, any vice president, the treasurer, the principal accounting
officer and any other officer which has been specifically authorized by the
Borrower to execute the applicable document.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Basic Subscriber" means
(a) each dwelling unit, including a separate apartment within
an apartment building, in respect of which the Borrower or any of its
Restricted Subsidiaries is paid the full monthly price for its basic
services offered in a Cable System in accordance with standard basic
rates generally charged by the Borrower or such Restricted Subsidiary
in respect of such Cable System, none of which is more than sixty days
delinquent in its payment for basic service; and
(b) each Equivalent Subscriber.
"Borrower" is defined in the preamble.
"Borrower Pledge Agreement" means the pledge agreement executed and
delivered by the Borrower pursuant to Section 5.1.6, substantially in the form
of Exhibit H hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Borrowing" means the Loans of the same type and, in the case of LIBO
Rate Loans, having the same Interest Period made by all Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.3.
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"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of Exhibit
D hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York; and
(b) relative to the making, continuing, prepaying or repaying
of any LIBO Rate Loans, any day on which dealings in Dollars are
carried on in the London interbank market.
"Cable System" means each cable television facility that is operated
and maintained by the Borrower or any of its Restricted Subsidiaries pursuant
to the terms of the related licenses, franchises and permits issued under
federal, state or municipal laws from time to time in effect, which authorize a
Person to receive or distribute, or both, by cable or otherwise, audio and
visual signals within a defined geographical area for the purpose of providing
entertainment or other services, together with all the property, tangible and
intangible, owned or used in connection with the services provided pursuant to
said licenses, franchises and permits.
"Capital Expenditure" means, for any period,
(a) any expenditure of the Borrower or any of its Restricted
Subsidiaries for fixed or capital assets made during such period
which, in accordance with GAAP, would be classified as a capital
expenditure; and
(b) any Capitalized Lease Liability incurred during such
period.
"Capitalized Lease Liability" means any monetary obligation of the
Borrower or any of its Restricted Subsidiaries under any leasing or similar
arrangement which, in accordance with GAAP, would be classified as a
capitalized lease, and, for purposes of this Agreement and each other Loan
Document, the amount of such obligation shall be the capitalized amount
thereof, determined in accordance with GAAP, and the stated maturity thereof
shall be the date of the last payment of rent or any other amount due under
such lease prior to the first date upon which such lease may be terminated by
the lessee without payment of a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any evidence of Indebtedness, maturing not more than one
year after such time, issued or guaranteed by the United States
Government;
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(b) commercial paper, maturing not more than nine months from
the date of issue, which is issued by
(i) a corporation (other than an Affiliate of the
Borrower) organized under the laws of any state of the United
States or of the District of Columbia and rated A-l by
Standard & Poor's Corporation or P-l by Moody's Investors
Service, Inc., or
(ii) any Lender (or its holding company);
(c) any certificate of deposit or bankers acceptance,
maturing not more than one year after such time, which is issued by
either
(i) a commercial banking institution that is a
member of the Federal Reserve System and has a combined
capital and surplus and undivided profits of not less than
$500,000,000, or
(ii) any Lender; or
(d) any repurchase agreement entered into with any Lender (or
other commercial banking institution of the stature referred to in
clause (c)(i)) which
(i) is secured by a fully perfected security
interest in any obligation of the type described in any of
clauses (a) through (c), and
(ii) has a market value at the time such repurchase
agreement is entered into of not less than 100% of the
repurchase obligation of such Lender (or other commercial
banking institution) thereunder.
"Cash Flow" means, for any period, the sum of
(a) the excess for such period of
(i) Operating Income of the Borrower and its
Restricted Subsidiaries (excluding, however, Operating Income
attributable to Unrestricted Subsidiaries) for such period,
over
(ii) the sum of all deferred management fees and
other non-cash charges (to the extent included as a
contribution in determining such Operating Income)
plus
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(b) the sum of depreciation, amortization, deferred
management fees and other non-cash charges (in each case to the extent
deducted in determining such Operating Income) for such period,
excluding, however, all extraordinary or non-recurring items and calculated
after giving effect to all acquisitions, exchanges and dispositions of assets
of the Borrower or any of its Restricted Subsidiaries (and designations of
Subsidiaries of the Borrower as Restricted Subsidiaries) during such period as
if such transactions (or designations) had occurred on the first day of such
period.
"Cash Management Advance" means a loan or advance made to any Cash
Management Affiliate by the Borrower or any Restricted Subsidiary or to the
Borrower or any Restricted Subsidiary by any Cash Management Affiliate, in each
case made or obtained in the course of the Borrower's normal cash management
practices.
"Cash Management Affiliate" means,
(a) International,
(b) each Restricted Subsidiary, and
(c) each other wholly-owned Subsidiary of
(i) the Borrower which is not a
Restricted Subsidiary, or
(ii) International (other than the
Borrower and its Subsidiaries)
which, in either case (i) or (ii), is designated by the Borrower in
writing to the Administrative Agent as a Cash Management Affiliate and
which is consented to by the Required Lenders.
"Cash Management Suspension Notice" means a notice delivered to the
Borrower executed by the Required Lenders following the occurrence of any
Default of the nature referred to in Section 8.1.1 or 8.1.9 or any Event of
Default stating that it is a "Cash Management Suspension Notice." Such Cash
Management Suspension Notice shall be in effect from the time such notice is
sent until the earlier of (x) such time as it is revoked by notice delivered to
the Borrower executed by the Administrative Agent at the request of the
Required Lenders and (y) such time as the event to which it relates is cured or
waived in accordance with the terms of this Agreement and the Borrower has
given the Administrative Agent and the Lenders written notice of the Borrower's
intent to resume its ordinary cash management practices.
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"Cash Management Significant Default" means
(a) the failure of any Cash Management Affiliate to pay,
or if required to purchase or otherwise acquire, to purchase or
otherwise acquire, when due (after the expiration of any grace period
for the payment or purchase thereof) any amount of principal or
interest in respect of obligations for the payment of Debt in a then
outstanding aggregate principal amount of $10,000,000 or more unless
such failure or default is waived by or on behalf of the holders of
such obligations,
(b) the failure of any Cash Management Affiliate to
perform or observe any other agreement, term or condition contained in
one or more documents evidencing or securing Debt having a then
outstanding aggregate principal amount of $10,000,000 or more if the
effect of such failure is (x) to cause, or permit the holders of such
Indebtedness to cause, any payment in respect of such Indebtedness to
become due prior to its stated date of maturity, or (y) to cause the
Cash Management Affiliate to be required to purchase or otherwise
acquire such Indebtedness, unless, in either case, such failure or
default is waived by or on behalf of the holders of such Indebtedness,
or
(c) the occurrence with respect to any Cash Management
Affiliate of any of the events of the type and duration set forth in
Section 8.1.9.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) the failure of International to own, free and clear of
all Liens (except the Lien granted under the International Pledge
Agreement), 100% of the outstanding shares of Voting Stock of the
Borrower on a fully diluted basis; or
(b) at any time when the Permitted Control Stockholders shall
not own at least 50.10% of the Voting Stock of International or the
Permitted Control Stockholders do not control the election of a
majority of the members of the board of directors of International,
any "person," as such term is used in Sections 13(d) and 14(d) of the
Securities Act (other than any Permitted Control Stockholder, the
Borrower, any Subsidiary of the Borrower, or any trustee, fiduciary or
other person or entity holding securities under
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any employee benefit plan or trust of any of the foregoing), together
with all "affiliates" and "associates"(as such terms are defined in
Rule 12b-2 under the Securities Act) of such person, shall become the
"beneficial owner"(as such terms are defined in Rule 13d-3 under the
Securities Act), directly or indirectly, of 20% or more of the Voting
Stock of International.
"CHCS" is defined in the third recital.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Commitment" means, relative to any Lender, such Lender's obligation
to make Loans pursuant to Section 2.1.1.
"Commitment Amount" means, on any date, $100,000,000, as such amount
may be reduced from time to time pursuant to Section 2.2.
"Commitment Termination Date" means the earliest of
(a) March 31, 2006;
(b) the date on which the Commitment Amount is terminated in
full or reduced to zero pursuant to Section 2.2; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the
Commitments shall terminate automatically and without any further action.
"Commitment Termination Event" means
(a) the occurrence of any Default described in clauses (a)
through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of the Loans to be due and
payable pursuant to Section 8.3, or
(ii) in the absence of such declaration, the giving
of notice by the Administrative Agent, acting at the direction
of the Required Lenders, to the Borrower that the Commitments
have been terminated.
"Communications Act" means the Communications Act of 1934, as amended,
and the rules and regulations issued thereunder, as
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from time to time in effect.
"Compliance Certificate" means a certificate duly completed and
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit C hereto, together with such changes thereto as the Administrative
Agent may from time to time reasonably request for the purpose of monitoring
the Borrower's and its Restricted Subsidiaries' compliance with the financial
covenants contained herein.
"Consolidation" is defined in the second recital.
"Constituent Company" means Adnet, CHCS, TCI-Puerto Rico, TCI-PR, TCID
or TCI Cablevision.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise to
invest in, a debtor, or otherwise to assure a creditor against loss) the
indebtedness, obligation or any other liability of any other Person (other than
by endorsements of instruments in the course of collection), or guarantees the
payment of dividends or other distributions upon the shares of any other
Person. The amount of any Person's obligation under any Contingent Liability
shall (subject to any limitation set forth therein) be deemed to be the
outstanding principal amount (or maximum principal amount, if larger) of the
debt, obligation or other liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit E hereto.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of
the Code or Section 4001 of ERISA.
"Copyright Act" means Title 17 of the United States Code, as amended,
and the rules and regulations issued thereunder, as from time to time in
effect.
"Debt" means the outstanding principal amount of any Indebtedness of
the Borrower or any of its Restricted Subsidiaries, excluding, however, any
liabilities which are treated as Indebtedness solely in accordance with clause
(d) or (f) of such term.
"Default" means any Event of Default or any condition,
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occurrence or event which, after notice or lapse of time or both, would
constitute an Event of Default.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented or otherwise modified from time
to time by the Borrower with the written consent of the Administrative Agent
and the Required Lenders.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the
Lender Assignment Agreement or such other office of a Lender (or any successor
or assign of such Lender) within the United States as may be designated from
time to time by notice from such Lender, as the case may be, to each other
Person party hereto.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 10.8.
"Environmental Law" means any applicable federal, state or local
statute, law, ordinance, code, rule, regulation or guideline (including any
consent decree or administrative order) relating to public health and safety
and protection of the environment.
"Equivalent Subscriber" means any subscriber deemed to comprise a bulk
subscriber (such as a hotel or apartment building) of bulk basic subscription
services offered in a Cable System, where the number of Equivalent Subscribers
with respect to a bulk subscriber in such Cable System is deemed to consist of
the number obtained by dividing the monthly revenues for such bulk subscriber
by the average monthly basic subscription price for individual subscribers in
such Cable System.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"Event of Default" is defined in Section 8.1.
"FCC" means the Federal Communications Commission or any successor
thereto.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to
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(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day
is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g., the "1996 Fiscal Year") refer to the Fiscal Year
ending on the December 31 occurring during such calendar year.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"General Security Agreement" means collectively all of the security
agreements delivered by the Borrower and each Restricted Subsidiary pursuant to
clause (a) of Section 7.1.8.
"Governmental Body" means any foreign, federal, state, municipal or
other government, or any department, commission, board, bureau, agency, public
authority or instrumentality thereof or any court or arbitrator.
"Gross Revenue" means for any period the gross revenue from continuing
operations of the Borrower and its Restricted Subsidiaries for such period
(including recurring investment income) prior to deducting operating expenses,
overhead, cost of goods sold, provisions for taxes and reserves or any other
deduction, all determined and consolidated in accordance with GAAP after
eliminating all intercompany items and all interest accrued on Indebtedness of
an Affiliate owed to the Borrower or any of its Restricted Subsidiaries.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended;
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(c) any petroleum product; or
(d) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance within the meaning of any other
applicable federal, state or local law, regulation, ordinance or
requirement (including consent decrees and administrative orders)
relating to or imposing liability or standards of conduct concerning
any hazardous, toxic or dangerous waste, substance or material, all as
amended or hereafter amended.
"Hedging Liability" means, relative to any Person, any liability of
such Person under any interest rate swap agreement, interest rate cap agreement
or interest rate collar agreement, and any other agreement or arrangement
designed to protect such Person against fluctuations in interest rates or
currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Home Passed" means a dwelling unit, including each separate unit
within an apartment building, passed by an operational portion of a Cable
System operated and maintained by the Borrower or any of its Restricted
Subsidiaries.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial
statement of the Borrower, any qualification or exception to such opinion or
certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause the Borrower to be in default of any of its
obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
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"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Liabilities;
(d) all other items which, in accordance with GAAP, would be
included as liabilities on the liability side of the balance sheet of
such Person as of the date at which Indebtedness is to be determined;
(e) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services, and indebtedness (excluding prepaid
interest thereon) secured by a Lien on property owned or being
purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited
in recourse;
(f) net liabilities of such Person under all Hedging
Liabilities; and
(g) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer.
"Indemnified Liability" is defined in Section 10.4.
"Indemnified Party" is defined in Section 10.4.
"Intercompany Debt" means, on any date, any Indebtedness of the
Borrower or any of its Restricted Subsidiaries related to or resulting from any
loan or advance from, or any non-equity investment by, or any management or
similar fees payable to, or any obligation to pay for goods or services to, an
Affiliate of the Borrower (excluding, however, any obligation of the Borrower
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or a Restricted Subsidiary (x) in respect of Cash Management Advances and (y)
to pay for programming arising out of a transaction entered into in the
ordinary course of the Borrower's or such Restricted Subsidiary's business with
an Affiliate of the Borrower).
"Intercompany Debt Subordination Agreement" means an agreement in the
form of Exhibit B hereto in favor of the Administrative Agent and the Lenders
duly executed by each Affiliated Debtholder of Intercompany Debt and duly
acknowledged by the Borrower and each of its Restricted Subsidiaries which is
the issuer of Intercompany Debt.
"Interest Expense" means, for any period, the total interest expense
(including commitment fees payable hereunder) of the Borrower and its
Restricted Subsidiaries on a consolidated basis for such period, whether paid
or accrued (including the interest component of Capitalized Lease Liabilities),
excluding, however,
(a) interest expense not payable in cash (including
amortization of discount); and
(b) interest accrued and not paid on Subordinated
Intercompany Debt;
and calculated after giving effect to all acquisitions, exchanges and
dispositions of assets of the Borrower or any of its Restricted Subsidiaries
(and designations of Subsidiaries of the Borrower as Restricted Subsidiaries)
during such period as if such transactions (or designations) had occurred on
the first day of such period.
"Interest Period" means, relative to any LIBO Rate Loans, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or
2.4 and shall end on (but exclude) the day which numerically corresponds to
such date one, three, six or nine months, or if deposits of comparable amount
and tenor are available to the Administrative Agent, 12 months thereafter (or,
if such month has no numerically corresponding day, on the last Business Day of
such month), in either case as the Borrower may select in its relevant notice
pursuant to Section 2.3 or 2.4; provided, however, that
(a) the Borrower shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration dates
occurring on more than seven different dates;
(b) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
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(c) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the
next following Business Day (unless such next following Business Day
is the first Business Day of a calendar month, in which case such
Interest Period shall end on the Business Day next preceding such
numerically corresponding day); and
(d) no Interest Period may end later than the date set forth
in clause (a) of the definition of "Commitment Termination Date".
"International" means Tele-Communications International, Inc., a
Delaware corporation.
"International Pledge Agreement" means the pledge agreement executed
and delivered by International pursuant to Section 7.1.8, substantially in the
form of Exhibit G hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding, however, commission, travel and similar advances to
officers and employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any ownership or similar interest held by such Person in
any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made
by the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property.
"Lender" is defined in the preamble.
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit F hereto.
"Leverage Ratio" means, on any date, the ratio of
(a) all Debt of the Borrower and its Restricted Subsidiaries
(excluding, however, Subordinated Intercompany Debt) on such date
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to
(b) Annualized Cash Flow at the close of the Fiscal Quarter
most recently elapsed on or prior to such date.
"LIBID Rate" means, relative to any Remaining Interest Period for an
Affected Principal Amount of a LIBO Rate Loan, the rate per annum determined by
the Administrative Agent as follows:
(a) the Administrative Agent shall obtain the bid
quotation(s) for a Dollar deposit in immediately available funds in an
amount approximately equal to such Affected Principal Amount and for a
period approximately equal to such Remaining Interest Period (a
"matching deposit") that appears on the Reuter's Screen as of 11:00
a.m., London time, on the date of the related LIBOR Breakage Event (if
at least two such bid quotations appear on the Reuter's Screen, the
LIBID 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 LIBID Rate shall be the arithmetic average (rounded
as aforesaid) of the per annum rates at which Scotiabank's LIBOR
office is bidding at 11:00 a.m. London time on the date of the related
LIBOR Breakage Event for a matching deposit; and
(c) if the Administrative Agent is not able to obtain
quotations for the determination of the LIBID Rate pursuant to clause
(a) or (b), the LIBID 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 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 the related LIBOR
Breakage Event in the New York interbank market to major international
banks for a matching deposit.
Each determination by the Administrative Agent of the LIBID Rate shall be
conclusive in the absence of manifest error. All interest based on the LIBID
Rate shall be calculated on the basis of a 360 day year for the actual number
of days elapsed.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate
Loans, the rate per annum determined by the Administrative Agent as follows:
(a) on the date which is two Business Days prior to the
applicable Interest Period, the Administrative Agent shall obtain the
offered quotation(s) for Dollar deposits
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for a period comparable to such Interest Period that appear on the
Reuter's Screen as of 11:00 a.m. London time (if at least two such
offered quotations appear on the Reuter's Screen, the LIBO 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 LIBO Rate shall be the rate per annum that the
Administrative Agent determines to be the arithmetic average (rounded
as aforesaid) of the per annum rates of interest 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 date which is two
Business Days prior to the applicable Interest Period in the
approximate amount of the Administrative Agent's relevant LIBO Rate
Loan and having a maturity approximately equal to the relevant
Interest Period; and
(c) if the Administrative Agent is not able to obtain
quotations for the determination of the LIBO Rate pursuant to clause
(a) or (b), the LIBO 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 LIBO Rate is being
determined for a period comparable to the relevant Interest Period
that leading banks in New York City selected by the Administrative
Agent are quoting at 11:00 a.m. on the date which is two Business Days
prior to the applicable Interest Period in the New York Interbank
Market to major international banks.
Each determination by the Administrative Agent of the LIBO Rate shall be
conclusive in the absence of manifest error. All interest based on the LIBO
Rate shall be calculated on the basis of a 360-day year for the actual number
of days elapsed.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate.
"LIBOR Breakage Event" means, relative to any LIBOR Loan:
(a) the Borrower shall fail for any reason to make a
Borrowing, continue or convert, such LIBOR Loan after the Borrower
shall have delivered a Borrowing Request or a Continuation/Conversion
Notice to the Administrative Agent;
(b) notice shall be given to the Borrower pursuant to clause
(b) of Section 4.1 prior to the last day of the
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Applicable Interest Period; or
(c) the Borrower shall prepay or repay all of any part of the
principal amount of such LIBOR Loan prior to the last day of the
Interest Period applicable thereto.
"LIBOR Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the
Lender Assignment Agreement or such other office of a Lender as designated from
time to time by notice from such Lender to the Borrower and the Administrative
Agent, whether or not outside the United States, which shall be making or
maintaining LIBO Rate Loans of such Lender hereunder.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
"Loan" is defined in Section 2.1.1.
"Loan Document" means this Agreement, the Notes, the Intercompany Debt
Subordination Agreement, the Borrower Pledge Agreement, each Subsidiary
Guaranty, the General Security Agreement, the International Pledge Agreement
and each other agreement, document or instrument delivered in connection with
this Agreement and such other agreements, whether or not specifically mentioned
herein or therein.
"Note" means a promissory note of the Borrower payable to any Lender,
in the form of Exhibit A hereto (as such promissory note may be amended,
endorsed or otherwise modified from time to time), evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from outstanding Loans,
and also means all other promissory notes accepted from time to time in
substitution therefor or renewal thereof.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower to the Administrative Agent or the Lenders arising under or in
connection with this Agreement, the Notes and each other Loan Document.
"Obligor" means, as the context may require, International, the
Borrower, each Restricted Subsidiary and any other Person (other than a Secured
Party) to the extent such Person is obligated under this Agreement or any other
Loan Document.
"Operating Income" means, for any period, operating income of the
Borrower and its Restricted Subsidiaries for such period as determined in
accordance with GAAP and in a manner consistent with the calculation of
operating income as set forth in the
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audited financial statements for the 1996 Fiscal Year referred to in Section
6.4 less, to the extent not deducted in connection with the determination
thereof, all management fees and calculated after giving effect to all
acquisitions, exchanges and dispositions of assets of the Borrower or any of
its Restricted Subsidiaries (and designations of Subsidiaries of the Borrower
as Restricted Subsidiaries) during such period as if such transactions (or
designations) had occurred on the first day of such period.
"Organic Document" means, relative to any Obligor, its certificate of
incorporation, its by-laws and all shareholder agreements, voting trusts and
similar arrangements applicable to any of its authorized shares of capital
stock.
"Participant" is defined in Section 10.11.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the
Borrower, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning of
section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under section 4069 of ERISA.
"Percentage" means, relative to any Lender, the percentage set forth
opposite its signature hereto or set forth in the Lender Assignment Agreement,
as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and
delivered pursuant to Section 10.11.
"Permitted Control Stockholder" means any of:
(a) TCI or any wholly-owned Subsidiary of TCI;
(b) John C. Malone; or
(c) the estate or legal heirs of John C. Malone or Bob
Magness following the death of such Person or Persons, so long as, in
the case of this clause (c), TCI or John C. Malone directs the voting
by such heir of its Voting Stock of International.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any
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other entity, whether acting in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pro-Forma Debt Service" means, on any date, the sum, determined for
the period of the four complete Fiscal Quarters immediately following such
date, of
(a) all Pro Forma Interest Expenses,
plus
(b) the amount of all scheduled principal payments, including
the current maturities thereof, due on Debt of the Borrower and its
Restricted Subsidiaries on a consolidated basis (including pursuant to
clause (b) of Section 3.1, but excluding, however, Indebtedness
permitted by clauses (b), (g) and (h) of Section 7.2.2),
but excluding, however, without duplication, Pro-Forma Interest Expense and
scheduled principal payments, in each case payable on Debt (including the
current portion of long term Debt) that could be refinanced on such date by
Debt under a committed credit facility under which there are sufficient unused
commitments on such date and as to which the conditions precedent to funding
can be satisfied on such date ("Substitute Long Term Debt") if all scheduled
payments of principal and interest with respect to such Substitute Long Term
Debt are included in the calculation of Pro-Forma Debt Service.
"Pro Forma Interest Expense" means, on any date, the sum, determined
for the period of the four complete Fiscal Quarters immediately following such
date, of
(a) the amount of all interest on Debt of the Borrower and its
Restricted Subsidiaries on a consolidated basis (excluding, however,
all interest payable on Indebtedness permitted by clauses (b), (g) and
(h) of Section 7.2.2) which, without duplication, is scheduled to be
paid or will accrue during such period, including in respect of the
Loans, and
(b) all commitment or line of credit fees (no matter how
designated) scheduled or required to be paid by the Borrower or any
Restricted Subsidiary to any lender in exchange for such lender's
commitment to lend to the Borrower or such Restricted Subsidiary,
including the Commitment Fee in respect of the Loans and the
Commitments, which is scheduled or required to be paid by the Borrower
or any Restricted Subsidiary during such period.
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For purposes of calculating Pro-Forma Interest Expense (x) where any item of
interest on any Debt varies or depends upon a variable rate of interest
(including the Base Rate or the LIBO Rate), such rate shall be assumed to equal
the rate in effect on the date of calculation thereof and (y) the principal
amount outstanding under any revolving or line of credit facility shall be
assumed to be the outstanding principal balance thereunder on the last day of
the Fiscal Quarter immediately preceding the period in respect of which the
calculation of Pro-Forma Interest Expense is being determined adjusted to give
effect to any mandatory commitment reductions which are scheduled to occur
during such period in respect of which the calculation of Pro-Forma Interest
Expense is being determined.
"Projections" means the projections delivered to the Administrative
Agent in December 1996 by International which forecast, among other things,
Subscriber Information and cash flows of the Borrower and its Restricted
Subsidiaries.
"Quarterly Payment Date" means the last day of each March, June,
September, and December or, if any such day is not a Business Day, the next
succeeding Business Day.
"Release" means a "release", as such term is defined in CERCLA.
"Remaining Interest Period" means, relative to the Affected Principal
Amount of any LIBO Rate Loan,
(a) in the event of the occurrence of a LIBOR Breakage Event
of the nature referred to in clause (a) of the definition of such
term, a period equal to the Interest Period that the Borrower elected
(from and including the first day of such Interest Period to but
excluding the last day of such Interest Period);
(b) in the event of the occurrence of a LIBOR Breakage Event
of the nature referred to in clause (b) of the definition of such
term, a period equal to the period from and including the date of such
notice to but excluding the last day of such Interest Period as if
such Interest Period had not been so terminated; and
(c) in the event of the occurrence of a LIBOR Breakage Event
of the nature referred to in clause (c) of the definition of such
term, a period equal to the period from and including the date of such
prepayment or repayment or date notified as the date of such
prepayment (whichever is earlier) to but excluding the last day of
such Interest Period.
"Reorganization" means a transaction, or series of
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interrelated transactions, whereby
(a) International contributes as capital to the Borrower all
of the outstanding shares of capital stock of some or all of the
Persons (other than the Borrower) which are then directly held
Subsidiaries of International; and
(b) TCI, if it so elects, distributes on a tax free basis to
its shareholders some or all of the outstanding Voting Stock of
International.
"Required Lenders" means, at any time, Lenders holding at least 50.10%
of the then aggregate outstanding principal amount of the Notes then held by
the Lenders, or, if no such principal amount is then outstanding, Lenders
having at least 50.10% of the Commitments.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as in effect
from time to time.
"Restricted Subsidiary" means each Subsidiary of the Borrower which is
(a) wholly-owned directly by the Borrower or indirectly
through another Restricted Subsidiary; and
(b) designated as a Restricted Subsidiary by the Borrower
with the consent of the Administrative Agent and the Required Lenders.
Concurrently with each request by the Borrower to the Lenders to consent to any
such designation in accordance with clause (b), the Borrower shall deliver to
the Administrative Agent a certificate of an Authorized Officer of the Borrower
of the nature required by clauses (a)(iv) and (b)(iv) of Section 7.1.1
calculated, on a pro-forma basis as of the date of the certificate most
recently delivered pursuant to either such clause and after giving effect to
such proposed designation, and setting forth comparatively the information from
such most recently delivered certificate.
"Scotiabank" is defined in the preamble.
"Stated Maturity Date" means March 31, 2006.
"Statutory Reserve" means, relative to a LIBO Rate, the quotient
(expressed as a decimal, rounded to the nearest 1/100 of 1%) obtained by
dividing (x) the number one by (y) one minus the aggregate of the reserve
percentages expressed as a decimal established by the F.R.S. Board for
Eurocurrency Liabilities as prescribed under F.R.S. Board Regulation D.
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"Subordinated Intercompany Debt" means, on any date, any Intercompany
Debt
(a) which was incurred in accordance with clause (g) of
Section 7.2.2;
(b) the full amount of which is subordinated to the full
payment and performance of the Obligations in accordance with the
terms of the Intercompany Debt Subordination Agreement; and
(c) at all times as such Intercompany Debt continues to
remain outstanding, each of the Borrower, the Affiliate Debtholder and
such Restricted Subsidiary, as applicable, is, and continues to be, a
party to the Intercompany Debt Subordination Agreement.
"Subordinated Intercompany Long Term Debt" is defined in clause (g)(i)
of Section 7.2.2.
"Subordinated Intercompany Working Capital Debt" is defined in clause
(g)(ii) of Section 7.2.2.
"Subscriber Information" means, at any time, the number of Homes
Passed, the number of Basic Subscribers, the number of Basic Subscribers as a
percentage of the number of Homes Passed, and the number of pay-TV
subscriptions, and the number of pay-TV subscriptions as a percentage of Basic
Subscribers for the Cable Systems owned by the Borrower and any of its
Restricted Subsidiaries.
"Subsidiary" means, relative to any Person, any Person of which more
than 50% of the Voting Stock is at the time owned directly or indirectly by
such Person.
"Subsidiary Guarantor" means each Restricted Subsidiary party to a
Subsidiary Guaranty.
"Subsidiary Guaranty" means, as the context may require, the guaranty
executed and delivered by each Subsidiary Guarantor pursuant to Section 5.1.7
or any guaranty executed and delivered by a Restricted Subsidiary pursuant to
clause (a) of Section 7.1.7, in each case substantially in the form of Exhibit
I hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time.
"Taxes" is defined in Section 4.5.
"TCI" means Tele-Communications, Inc., a Delaware corporation.
"TCI Cablevision" means, relative to any time prior to the
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Consolidation, TCI Cablevision of Puerto Rico, Inc., a Delaware corporation.
"TCID" is defined in the third recital.
"TCI-PR" is defined in the second recital.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"United States" or "U.S." means the United States of America, its
fifty States and the District of Columbia.
"Unrestricted Subsidiary" means, at any time, any Subsidiary of the
Borrower which is not then a Restricted Subsidiary. Nothing in this Agreement
or any other Loan Document is intended to or shall restrict in any way,
directly or indirectly (including pursuant to Section 7.2.6), the activities or
operations of any Unrestricted Subsidiary.
"Voting Stock" means, at any time relative to any Person,
(a) all stock or similar equity interests of such Person
pursuant to which the holders thereof have the general voting power
under ordinary circumstances to vote for the election of directors (or
Persons performing similar functions), managers, trustees or general
partners of such Person (irrespective of whether or not at the time
any other class or classes will have or might have voting power by
reason of the happening of any contingency); and
(b) all other debt or equity securities of such Person freely
convertible by its terms into such stock or similar equity interests.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
"wholly-owned Subsidiary" shall mean, relative to any Person, any
Subsidiary of such Person all of the capital stock (and all rights and options
to purchase capital stock) of which, other than directors' qualifying shares,
are owned, beneficially and of record, by such Person and/or one or more
wholly-owned Subsidiaries of such Person.
SECTION II.2 Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in the Disclosure Schedule and in
each Note, Borrowing Request, Continuation/Conversion Notice, Loan Document,
notice and other communication delivered from time to time in connection with
this Agreement or any other Loan Document.
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SECTION II.3 Cross-References. Unless otherwise specified,
references in this Agreement and in each other Loan Document to any Article or
Section are references to such Article or Section of this Agreement or such
other Loan Document, as the case may be, and, unless otherwise specified,
references in any Article, Section or definition to any clause are references
to such clause of such Article, Section or definition.
SECTION II.4 Accounting and Financial Determinations. Unless
otherwise specified, all accounting terms used herein or in any other Loan
Document shall be interpreted, all accounting determinations and computations
hereunder or thereunder (including under Section 7.2.4) shall be made, and all
financial statements required to be delivered hereunder or thereunder shall be
prepared in accordance with, generally accepted accounting principles ("GAAP")
consistently applied.
ARTICLE III
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION III.1 Commitments. On the terms and subject to the
conditions of this Agreement (including Article V), each Lender severally
agrees to make Loans pursuant to the Commitments described in this Section 2.1.
SECTION III.1.1 Commitment. From time to time on any Business Day
occurring prior to the Commitment Termination Date, each Lender will make loans
(relative to such Lender, its "Loans") to the Borrower equal to such Lender's
Percentage of the aggregate amount of the Borrowing of the Loans requested by
the Borrower to be made on such day. The Commitment of each Lender described
in this Section 2.1.1 is herein referred to as its "Commitment". On the terms
and subject to the conditions hereof, the Borrower may from time to time
borrow, prepay and reborrow the Loans.
SECTION III.1.2 Lenders Not Permitted or Required To Make the Loans.
No Lender shall be permitted or required to make any Loan if, after giving
effect thereto, the aggregate outstanding principal amount of all the Loans
(a) of all the Lenders with Commitments would exceed the
Commitment Amount; or
(b) of such Lender with a Commitment would exceed such
Lender's Percentage of the Commitment Amount.
SECTION III.2 Reduction of the Commitment Amounts. The Commitment
Amount is subject to reduction from time to time pursuant to this Section 2.2.
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SECTION III.2.1 Optional. The Borrower may, from time to time on any
Business Day occurring after the date of the initial Borrowing hereunder,
voluntarily reduce the amount of the Commitment Amount; provided, however, that
all such reductions shall require at least three Business Days' prior notice
to the Administrative Agent and be permanent, and any partial reduction of any
Commitment Amount shall be in a minimum amount of $500,000 and in an integral
multiple of $100,000.
SECTION III.2.2 Mandatory. On each March 31, June 30, September 30
and December 31 in each year set forth below up to and including 2005, the
Commitment Amount will be permanently reduced by an amount equal to 1/4 of the
aggregate percentage reduction set forth below opposite such year multiplied by
the original Commitment Amount and on March 31, 2006, the Commitment Amount
will be permanently reduced by an amount equal to the percentage reduction set
forth below opposite the year 2006 multiplied by the original Commitment
Amount:
<TABLE>
<CAPTION>
Percentage
Year Reduction
---- ---------
<S> <C>
2000 10%
2001 15%
2002 25%
2003 20%
2004 20%
2005 5%
2006 5%
</TABLE>
provided, however, that on the Commitment Termination Date, the Commitment
Amount shall be zero. Voluntary reductions of the Commitment Amount made
pursuant to Section 2.2.1 shall be applied to diminish the amount of scheduled
reductions to the Commitment Amount thereafter becoming effective pursuant to
this Section on a pro rata basis.
SECTION III.3 Borrowing Procedure. By delivering a Borrowing Request
to the Administrative Agent on or before 1:00 p.m., New York time, on a
Business Day, the Borrower may from time to time irrevocably request, on the
Borrowing date in the case of Base Rate Loans, or on not less than three
Business Days' notice in the case of LIBO Rate Loans, that a Borrowing be made
in a minimum amount of $500,000 and an integral multiple of $100,000, or in the
unused amount of the Commitments. On the terms and subject to the conditions
of this Agreement, each Borrowing shall be comprised of the type of Loans, and
shall be made on the Business Day, specified in such Borrowing Request. On or
before 11:00 a.m., New York time, on such Business Day each Lender shall
deposit with the Administrative Agent same day funds
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in an amount equal to such Lender's Percentage of the requested Borrowing.
Such deposit will be made to an account which the Administrative Agent shall
specify from time to time by notice to the Lenders. To the extent funds are
received from the Lenders, the Administrative Agent shall make such funds
available to the Borrower by wire transfer to the accounts the Borrower shall
have specified in its Borrowing Request. No Lender's obligation to make any
Loan shall be affected by any other Lender's failure to make any Loan.
SECTION III.4 Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 1:00
p.m., New York time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than three Business Days' notice that all, or
any portion in an aggregate minimum amount of $500,000 and an integral multiple
of $100,000, of any Loans be, in the case of Base Rate Loans, converted into
LIBO Rate Loans or, in the case of LIBO Rate Loans, be converted into a Base
Rate Loan or continued as a LIBO Rate Loan (in the absence of delivery of a
Continuation/ Conversion Notice with respect to any LIBO Rate Loan at least
three Business Days before the last day of the then current Interest Period
with respect thereto, such LIBO Rate Loan shall, on such last day,
automatically convert to a Base Rate Loan); provided, however, that
(a) each such conversion or continuation shall be pro rated
among the applicable outstanding Loans of all Lenders and
(b) no portion of the outstanding principal amount of any
Loans may be continued as, or be converted into, LIBO Rate Loans when
any Default has occurred and is continuing.
SECTION III.5 Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing
one of its foreign branches or Affiliates to make or maintain such LIBO Rate
Loan; provided, however, that such LIBO Rate Loan shall nonetheless be deemed
to have been made and to be held by such Lender, and the obligation of the
Borrower to repay such LIBO Rate Loan shall nevertheless be to such Lender for
the account of such foreign branch or Affiliate. In addition, the Borrower
hereby consents and agrees that, for purposes of any determination to be made
for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively assumed
that each Lender elected to fund all LIBO Rate Loans by purchasing Dollar
deposits in its LIBOR Office's interbank eurodollar market.
SECTION III.6 Notes. Each Lender's Loans shall be evidenced by a
Note payable to the order of such Lender in a maximum principal amount equal to
such Lender's Percentage of the
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original Commitment Amount. The Borrower hereby irrevocably authorizes each
Lender to make (or cause to be made) appropriate notations on the grid attached
to such Lender's Notes (or on any continuation of such grid), which notations,
if made, shall evidence, inter alia, the date of, the outstanding principal of,
and the interest rate and Interest Period applicable to the Loans evidenced
thereby. Such notations shall be conclusive and binding on the Borrower absent
manifest error; provided, however, that the failure of any Lender to make any
such notations shall not limit or otherwise affect any Obligations of the
Borrower.
ARTICLE IV
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION IV.1 Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the Stated Maturity Date
therefor. Prior thereto, the Borrower
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Loans; provided, however, that
(i) any such prepayment shall be made pro rata
among Loans of the same type and, if applicable, having the
same Interest Period of all Lenders;
(ii) all such voluntary prepayments shall require
at least three Business Days' prior written notice to the
Administrative Agent; and
(iii) all such voluntary partial prepayments shall
be in an aggregate minimum amount of $500,000 and an integral
multiple of $100,000;
(b) shall, on each date when any reduction in the Commitment
Amount shall become effective, including pursuant to Section 2.2, make
a mandatory prepayment of all Loans equal to the excess, if any, of
the aggregate, outstanding principal amount of all Loans over the
Commitment Amount as so reduced; and
(c) shall, immediately upon any acceleration of the Stated
Maturity Date of any Loans pursuant to Section 8.2 or Section 8.3,
repay all Loans, unless, pursuant to Section 8.3, only a portion of
all Loans is so accelerated.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. No voluntary
prepayment of principal of any Loans
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shall cause a reduction in the Commitment Amount.
SECTION IV.2 Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION IV.2.1 Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the Borrower may elect
that Loans comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to
time in effect plus the Applicable Margin; and
(b) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the LIBO
Rate for such Interest Period plus the Applicable Margin.
All LIBO Rate Loans shall bear interest from and including the first day of the
applicable Interest Period to (but not including) the last day of such Interest
Period at the interest rate determined as applicable to such LIBO Rate Loan.
SECTION IV.2.2 Post-Maturity Rates. After the date any principal
amount of any Loan is due and payable (whether on the Stated Maturity Date,
upon acceleration or otherwise), or after any other monetary Obligation of the
Borrower shall have become due and payable, the Borrower shall pay, but only to
the extent permitted by law, interest (after as well as before judgment) on
such amounts at a rate per annum equal to the Alternate Base Rate plus a margin
of 2%.
SECTION IV.2.3 Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan;
(c) with respect to Base Rate Loans, on each Quarterly
Payment Date occurring after the date of the initial Borrowing
hereunder;
(d) with respect to LIBO Rate Loans, the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
90 days, on each Quarterly Payment Date to occur during such Interest
Period); and
(e) on that portion of any Loans the Stated Maturity
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Date of which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION IV.3 Fees. The Borrower agrees to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION IV.3.1 Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, for the period (including
any portion thereof when any of its Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Section 5.2) commencing on the
Effective Date and continuing through the Commitment Termination Date, a
commitment fee at the rate of _ of 1% per annum on such Lender's Percentage of
the sum of the average daily unused portion of the Commitment Amount. Such
commitment fees shall be payable by the Borrower in arrears on each Quarterly
Payment Date, commencing with the first such day following the Effective Date,
and on the Commitment Termination Date.
SECTION IV.3.2 Administrative Agent's Fees. The Borrower agrees to
pay to the Administrative Agent, for its own account, the non-refundable fees
in the amounts and on such dates as agreed by the Borrower and the
Administrative Agent.
ARTICLE V
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION V.1 Change in Legality. Notwithstanding anything to the
contrary contained in this Agreement, if any change in any present or future
applicable law, rule or regulation or in the interpretation or administration
thereof by any Governmental Body charged with the administration thereof, or
compliance with any request, guideline, policy or directive (whether or not
having the force of law) of any such Governmental Body, shall make it unlawful
or impracticable in the reasonable judgment of any Lender (an "Affected
Lender") for such Lender to make, fund or maintain any LIBO Rate Loan, or any
part of its Commitment hereunder, and such Lender determines that it is not
reasonably possible to take steps to avoid such illegality or impracticability
without adverse cost or consequences to such Lender, then, upon the request of
such Lender by notice to the Borrower and the Administrative Agent, the
Administrative Agent shall
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(a) if such event occurs at any time when no Loans of such
Affected Lender shall be maintained as LIBO Rate Loans, declare such
Lender's Commitment terminated and it shall thereby be terminated and
the Lenders' Commitment Fee thereafter payable shall be
proportionately reduced; or
(b) if such event occurs at any time when any Loans of such
Affected Lender shall be maintained as LIBO Rate Loans
(i) request the Affected Lender to use reasonable
efforts (which efforts shall be undertaken) to transfer the
LIBO Rate Loan or Commitment to another of its branches or
agencies (or to another Lender or major international bank
acceptable to the Borrower, notwithstanding the restrictions
on transfer set forth in Section 10.11.1) in order to remove
any illegality; provided, however, that such Affected Lender
shall not be obligated to effect any such transfer if (x) such
transfer is inconsistent with such Affected Lender's internal
policies of general application or if, as determined by such
Affected Lender in its sole discretion, the transfer of such
LIBO Rate Loan or Commitment, as applicable, would materially
adversely affect such LIBO Rate Loan or such Affected Lender
and (y) such Affected Lender shall deliver a certificate,
executed by an authorized officer thereof and delivered by a
relationship officer, stating the nature of such internal
policy and that such policy has been applied consistently to
similarly situated borrowers and loans, or that such transfer
would materially adversely affect such LIBO Rate Loan or such
Affected Lender, as the case may be, and
(ii) request the Borrower to make a good faith
effort (which effort shall be undertaken) to refinance the
Affected Lender's Commitment in order to remove any
illegality;
provided, however, that if the efforts requested to be made by the
Affected Lender and the Borrower in clauses (b)(i) and (b)(ii) are not
successful within a reasonable period of time, the Borrower shall pay
in full the then outstanding principal amount of such Lender's LIBO
Rate Loans together with accrued interest thereon either (x) on the
last day of the then current Interest Period if such Lender may
lawfully continue to fund and maintain such LIBO Rate Loan to such day
or (y) immediately if such Lender may not lawfully continue to fund
and maintain such LIBO Rate Loan to such day, in each case, together
with any amounts necessary to reimburse such Lender for any loss
incurred as a result
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thereof pursuant to Section 4.4. If any Lender shall claim that the
funding or maintenance of any LIBO Rate Loan or any part of its
Commitment hereunder has become unlawful, such Lender shall deliver to
the Administrative Agent and the Borrower a letter from legal counsel
to such Lender, which may be in-house counsel to such Lender,
describing the legal basis for the determination of such illegality.
Upon the occurrence of any change in circumstances pursuant to Section 4.1 or
4.3 and subject to the provisions of such Section, the Lender affected by such
change 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 Lender of making, funding or maintaining any LIBO Rate 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, however, that no such
Lender shall be obligated to engage in any such alternative course of action
which would result in any increased costs or any reduction of the amount of any
payment receivable hereunder by such Lender or cause such Lender, in its good
faith judgment, to violate one or more of its policies in order to avoid such
increased cost or reduction.
SECTION V.2 Deposits Unavailable. If the Administrative Agent shall
have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to the Administrative Agent
in its relevant market, or
(b) by reason of circumstances affecting the Administrative
Agent's relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to LIBO Rate Loans,
then, upon notice from the Administrative Agent to the Borrower and the
Lenders, the obligations of all Lenders under Section 2.3 and Section 2.4 to
make or continue any LIBO Rate Loans as, or to convert any Loans into, LIBO
Rate Loans shall forthwith be suspended until the Administrative Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION V.3 Change in Circumstances; Reserve Costs. In the event
that any present or future applicable law, rule or regulation, or any change
therein or in the interpretation or administration thereof, including any
request, guideline, directive or policy (whether or not having the force of
law) by any Governmental Body charged with the administration or interpretation
thereof, or compliance by any Lender with any
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request, guideline, directive or policy of any such Governmental Body:
(a) subjects any Lender through its applicable lending office
to any tax, duty or other charge (including the imposition of any
withholding tax so long as such Lender has complied with Section 4.5)
with respect to any Loan or any part of its Commitment (other than any
tax on or measured by the overall net income of such Lender), or
(b) changes the basis of taxation of payments to any Lender
through its LIBOR Office of principal of, or interest on, any Loan
made by such Lender with respect to its Commitment or of other amounts
payable hereunder, or any combination of the foregoing (other than any
tax on or measured by the overall net income of such Lender), or
(c) imposes, modifies or deems applicable any reserve,
capital adequacy, deposit or similar requirement against any assets
held by, deposits with or for the account of, or loans or commitments
by, or any acquisition of funds by or for the account of an office of
any Lender or its holding company in connection with any Commitment or
any Loan, including Statutory Reserves, or
(d) imposes upon any Lender any other condition with respect
to any Loan, any part of such Lender's Commitment, or this Agreement,
and the result of any of the foregoing (taking such Lender's policies into
account) is to (x) increase the cost to such Lender of making, funding or
maintaining any Loan or any part of its Commitment hereunder or (y) reduce the
amount of any payment (whether of principal, interest or otherwise) received or
receivable by such Lender or (z) require such Lender or its holding company to
deposit any reserve, increase its 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 Lender in its sole judgment
reasonably deems material after conducting the review required by Section 4.1,
then:
(e) such Lender shall promptly notify the Borrower and the
Administrative Agent of the happening of such event;
(f) such Lender 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 Lender and
delivered by a relationship officer thereof, stating the change which
has occurred or the reserve requirements or other conditions
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which have been imposed or the request, direction or requirement with
which such Lender 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 Lender's standard method of calculating such amount, that
such amount is or will be calculated in a similar way for other
borrowers of the Lender 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
(g) the Borrower shall promptly pay to the Administrative
Agent for transfer to such affected Lender such amount or amounts set
forth in such certificate as will compensate such Lender for such
additional costs, reduction or payment.
The certificate of the affected Lender as to the additional amounts payable
pursuant to this Section delivered to the Borrower shall contain in reasonable
detail the basis upon which such additional amounts have been calculated and
shall be presumed correct absent manifest error. The provisions of this
Section shall be applicable to the Borrower and the affected Lender regardless
of any possible contention of invalidity or inapplicability of the law,
regulation or condition which has been imposed. Notwithstanding the foregoing,
the Borrower will not be required to reimburse any Lender for any increased
costs, reductions or payments under this Section arising prior to 90 days
preceding the date of request, unless the applicable law or regulation is
imposed retroactively. In the case of a law or regulation which is retroactive
in effect, such notice shall be provided to the Borrower not later than 90 days
from the date that such Lender reasonably should have learned of such law or
regulation, and the Borrower's obligation to compensate such Lender for such
increased cost or reduction is contingent upon the provision of such timely
notice (but any failure by such Lender to provide such timely notice shall not
affect the Borrower's reimbursement obligations with respect to either any
costs or reduction incurred from the date as of which the law or regulation
became effective to the date that is 90 days after such Lender reasonably
should have learned of such law or regulation or any costs or reduction
incurred following the delivery of such notice). No failure on the part of any
Lender to demand compensation under this Section 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 Lender shall
subsequently recoup costs for which such Lender has theretofore been
compensated by the Borrower, such Lender shall remit to the Borrower the amount
of
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the recoupment.
If the Borrower shall be required to make any payment or reimbursement
or to compensate any Lender under this Section, then, so long as no Default has
occurred and is continuing, the Borrower shall be free at any time within one
hundred eighty (180) days after the receipt of the certificate of the affected
Lender, (x) to terminate the affected Lender's Commitment and the affected
Lender's entitlement to the Commitment Fee accruing after such termination, (y)
to prepay the affected portion of any Loan of such Lender in full (plus all
amounts payable pursuant to Section 4.4 with respect to cost of funds or clause
(c) in order to compensate such affected Lender 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 Lender with another major international
bank reasonably acceptable to the Administrative Agent. Upon any exercise of
either of the rights described in item (x) or (y) of the preceding sentence,
the Aggregate Commitment shall be automatically and irrevocably reduced by the
amount of the terminated Commitment in the case of item (x) and by the amount
of the prepayment in the case of item (y).
SECTION V.4 Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan) as a result of the occurrence of a LIBOR Breakage Event, then, upon
the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender
(a) such amount as will (in the reasonable determination of
such Lender) reimburse such Lender for such loss or expense,
including, an amount equal to:
D
---
A x (B-C) x 360
where:
"A" equals such Lender's Affected Principal Amount,
"B" equals the LIBO Rate (expressed as a decimal)
applicable to such LIBO Rate Loan,
"C" equals the LIBID Rate applicable to such Affected
Principal Amount (which for purposes of this
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calculation shall not exceed "B"), and
"D" equals the number of days from (and including)
the first day of the Remaining Interest Period to (but
excluding) the last day of such Remaining Interest Period; and
(b) and any other reasonable out-of-pocket loss or expense
(including any reasonable internal processing charge customarily
charged by such Lender) suffered by such Lender in liquidating or
employing deposits prior to maturity in amounts which correspond to
such Lender's pro rata share of such proposed Loan or repayment.
The written notice described above (which shall include calculations in
reasonable detail and supporting documentation) shall, in the absence of
manifest error, be conclusive and binding on the Borrower.
SECTION V.5 Taxes. So long as each Lender has complied with its
obligation to deliver the appropriate tax forms as set forth in the last
paragraph of this Section, all payments by the Borrower of principal of, and
interest on, the Loans and all other amounts payable hereunder shall be made
free and clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties, withholdings or
other charges of any nature whatsoever imposed by any taxing authority, but
excluding franchise taxes and taxes imposed on or measured by any Lender's net
income or receipts (such non-excluded items being called "Taxes"). So long as
each Lender has complied with its obligation to deliver the appropriate tax
forms as set forth in the last paragraph of this Section, in the event that any
withholding or deduction from any payment to be made by the Borrower hereunder
is required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then the Borrower will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Administrative Agent an official
receipt or other documentation satisfactory to the Administrative
Agent evidencing such payment to such authority; and
(c) pay to the Administrative Agent for the account of the
Lenders such additional amount or amounts as is necessary to ensure
that the net amount actually received by each Lender will equal the
full amount such Lender would have received had no such withholding or
deduction been required.
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Moreover, if any Taxes are directly asserted against the Administrative Agent
or any Lender with respect to any payment received by the Administrative Agent
or such Lender hereunder, so long as each Lender has complied with its
obligation to deliver the appropriate tax forms as set forth in the last
paragraph of this Section, the Administrative Agent or such Lender may pay such
Taxes and the Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had not such Taxes been asserted.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Administrative Agent, for the account
of the respective Lenders, the required receipts or other required documentary
evidence, the Borrower shall indemnify the Lenders for any incremental Taxes,
interest or penalties that may become payable by any Lender as a result of any
such failure. For purposes of this Section, a distribution hereunder by the
Administrative Agent or any Lender to or for the account of any Lender shall be
deemed a payment by the Borrower.
Each Lender that is organized under the laws of a jurisdiction other
than the United States shall, prior to the due date of any payments under the
Notes, execute and deliver to the Borrower and the Administrative Agent, on or
about the first scheduled payment date in each Fiscal Year, and at other times
upon request of the Borrower, one or more (as the Borrower or the
Administrative Agent may reasonably request) United States Internal Revenue
Service Forms 4224 or Forms 1001 or such other forms or documents (or successor
forms or documents), appropriately completed, as may be applicable to establish
the extent, if any, to which a payment to such Lender is exempt from
withholding or deduction of Taxes.
SECTION V.6 Payments, Computations, etc. Unless otherwise expressly
provided, all payments by the Borrower pursuant to this Agreement, the Notes or
any other Loan Document shall be made by the Borrower to the Administrative
Agent for the pro rata account of the Lenders entitled to receive such payment.
All such payments required to be made to the Administrative Agent shall be
made, without setoff, deduction or counterclaim, not later than 1:00 p.m., New
York time, on the date due, in same day or immediately available funds, to such
account as the Administrative Agent shall specify from time to time by notice
to the Borrower. Funds received after that time shall be deemed to have been
received by the Administrative Agent on the next succeeding Business Day. The
Administrative Agent shall promptly remit in same day funds to each Lender its
share, if any, of such payments received by the Administrative Agent for the
account of
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such Lender. All interest (including interest on LIBO Rate Loans) shall be
computed on the basis of the actual number of days (including the first day but
excluding the last day) occurring during the period for which such interest or
fee is payable over a year comprised of 360 days (or, in the case of interest
on a Base Rate Loan (calculated at other than the Federal Funds Rate) and fees,
365 days or, if appropriate, 366 days). Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (c) of the definition of the term
"Interest Period" be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION V.7 Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Loan (other than pursuant to the terms
of Sections 4.3 and 4.4) in excess of its pro rata share of payments then or
therewith obtained by all Lenders entitled thereto, such Lender shall purchase
from the other Lenders such participations in Loans made by them as shall be
necessary to cause such purchasing Lender to share the excess payment or other
recovery ratably with each of them; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Lender, the purchase shall be rescinded and each Lender which
has sold a participation to the purchasing Lender shall repay to the purchasing
Lender the purchase price to the ratable extent of such recovery together with
an amount equal to such selling Lender's ratable share (according to the
proportion of (x) the amount of such selling Lender's required repayment to the
purchasing Lender to (y) total amount so recovered from the purchasing Lender
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 4.8) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the amount of
such participation. If under any applicable bankruptcy, insolvency or other
similar law, any Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Lender shall, to the extent practicable, exercise
its rights in respect of such secured claim in a manner consistent with the
rights of the Lenders entitled under this Section to share in the benefits of
any recovery on such secured claim.
SECTION V.8 Setoff. Each Lender shall, upon the occurrence of any
Default described in clauses (a) through (d) of Section 8.1.9 or, with the
consent of the Required Lenders, upon the occurrence of any other Event of
Default, have the right to appropriate and apply to the payment of the
Obligations owing to
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it any and all balances, credits, deposits, accounts or moneys of the Borrower
then or thereafter maintained with such Lender; provided, however, that any
such appropriation and application shall be subject to the provisions of
Section 4.7. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such setoff and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such setoff and application. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff under applicable law or otherwise) which such Lender may have.
SECTION V.9 Use of Proceeds. The Borrower shall apply the proceeds
of the Loans (x) to finance the Acquisition, (y) to refinance the existing
indebtedness of the Cable Systems acquired in the Acquisition and (z) for
general corporate purposes and working capital purposes of the Borrower and its
Restricted Subsidiaries; provided, however, that without limiting the
foregoing, no proceeds of any Loan will be used to acquire any equity security
of a class which is registered pursuant to Section 12 of the Securities
Exchange Act of 1934 or any "margin stock", as defined in F.R.S. Board
Regulation U, which could result in a violation of F.R.S. Board Regulation U.
ARTICLE VI
CONDITIONS TO BORROWINGS
SECTION VI.1 Initial Borrowings. The obligations of the Lenders to
fund the initial Borrowing shall be subject to the prior or concurrent
satisfaction of each of the conditions set forth in this Section 5.1.
SECTION VI.1.1 Resolutions, etc. The Administrative Agent shall have
received from the Borrower a certificate, dated the date of the initial
Borrowing, of its Secretary or Assistant Secretary or, with respect to clause
(c) below, the Secretary or Assistant Secretary of each Affiliated Debtholder
as to
(a) resolutions of its Board of Directors then in full force
and effect authorizing the execution, delivery and performance of this
Agreement, the Notes and each other Loan Document to be executed by
it;
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement, the Notes and each
other Loan Document executed by it; and
(c) resolutions of the Board of Directors of each Affiliated
Debtholder then in full force and effect authorizing the execution,
delivery and performance of the
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Intercompany Debt Subordination Agreement to be executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary of the Borrower canceling or
amending such prior certificate.
SECTION VI.1.2 Delivery of Notes. The Administrative Agent shall
have received, for the account of each Lender, its Note duly executed and
delivered by the Borrower.
SECTION VI.1.3 Intercompany Debt Subordination Agreement. The
Administrative Agent shall have received a counterpart of the Intercompany Debt
Subordination Agreement:
(a) duly executed on behalf of each Affiliated Debtholder
which holds Intercompany Debt which for purposes of any of the
financial statements or calculations delivered pursuant to Section
5.1.5 is treated as Subordinated Intercompany Debt (including all
Subordinated Intercompany Debt permitted by clause (g) of Section
7.2.2); and
(b) duly acknowledged on behalf of the Borrower and each of
its Restricted Subsidiaries.
SECTION VI.1.4 Acquisition Consummated. The Acquisition shall have
been consummated on terms and conditions satisfactory to the Administrative
Agent.
SECTION VI.1.5 Pro Forma Financials, etc. The Administrative Agent
shall have received
(a) a pro-forma combined balance sheet as at December 31,
1996 (and assuming that the Acquisition and the Consolidation shall
have occurred on such date), and pro forma combined statements of
earnings and cash flows for the four Fiscal Quarters then ended (and
assuming that the Acquisition and the Consolidation had occurred on
January 1, 1996), of the Borrower; and
(b) an initial Compliance Certificate, showing (in reasonable
detail and with appropriate calculations, based on the pro-forma
financial statements delivered pursuant to clause (a), and
computations in all respects satisfactory to the Administrative Agent)
compliance with the financial covenants set forth in Section 7.2.4 and
various other covenant limitations and certifying as to the absence of
any Defaults (except as disclosed therein).
SECTION VI.1.6 Borrower Pledge Agreement. If the Borrower then
shall have any Subsidiary which, with the consent of the Required Lenders,
shall have been designated a Restricted
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Subsidiary, the Administrative Agent shall have received the Borrower Pledge
Agreement, dated the date of the initial Borrowing, duly executed and delivered
by an Authorized Officer of the Borrower, together with certificates evidencing
all of the issued and outstanding shares of such Restricted Subsidiary, which
certificates shall be accompanied by undated stock powers duly executed in
blank (or, if any such shares of such Restricted Subsidiaries are
uncertificated securities, confirmation and evidence satisfactory to the
Administrative Agent that the security interest in such uncertificated
securities has been transferred to and perfected by the Administrative Agent
for the benefit of the Lenders in accordance with Section 8.313 and Section
8-321 of the U.C.C., and all laws otherwise applicable to the perfection of the
pledge of such shares).
SECTION VI.1.7 Subsidiary Guaranties. If the Borrower then shall
have any Subsidiary which, with the consent of the Registered Lenders, shall
have been designated a Restricted Subsidiary, the Administrative Agent shall
have received each Subsidiary Guaranty, each dated the date of the initial
Borrowing, duly executed and delivered by an Authorized Officer of such
Restricted Subsidiary.
SECTION VI.1.8 Opinions of Counsel. The Administrative Agent shall
have received opinions, dated the date of the initial Borrowing and addressed
to the Administrative Agent and all Lenders, from Sherman & Howard L.L.C.,
special counsel to the Borrower, and Stephen M. Brett, corporate counsel to the
Borrower, each substantially in the form of Exhibit J hereto.
SECTION VI.1.9 Insurance. The Administrative Agent shall have
received evidence of the existence of insurance to the reasonable satisfaction
of the Administrative Agent in compliance with Section 7.1.4 (including all
endorsements included therein), and the Administrative Agent shall be named
additional insured or loss payee, on behalf of the Lenders, in respect of all
proceeds payable in respect of such insurance, pursuant to documentation
reasonably satisfactory to the Administrative Agent and the Borrower.
SECTION VI.1.10 Closing Fees, Expenses, etc. The Administrative
Agent shall have received for its own account, or for the account of each
Lender, as the case may be, all fees, costs and expenses due and payable
pursuant to Section 3.3, if then invoiced.
SECTION VI.2 All Borrowings. The obligation of each Lender to make
any Loan (including the initial Borrowing) shall be subject to the satisfaction
of each of the conditions precedent set forth in this Section 5.2.
SECTION VI.2.1 Compliance with Warranties, No Default, etc.
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Both before and after giving effect to any Borrowing (but, if any Default of
the nature referred to in Section 8.1.5 shall have occurred with respect to any
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds thereof) the following statements shall be true and
correct:
(a) the representations and warranties set forth in Article
VI shall be true and correct with the same effect as if then made
(unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such
earlier date);
(b) except as disclosed by the Borrower to the Administrative
Agent and the Lenders pursuant to Section 6.10, or, since the date of
the most recent Borrowing, if any, pursuant to clause (d) of Section
7.1.1,
(i) no labor controversy, litigation, arbitration
or governmental investigation or proceeding shall be pending
or, to the knowledge of the Borrower, threatened against the
Borrower or any of its Restricted Subsidiaries which might
materially adversely affect the Borrower's consolidated
business, operations, assets, revenues or properties or which
purports to affect the legality, validity or enforceability of
this Agreement, the Notes or any other Loan Document, and
(ii) no development shall have occurred in any
labor controversy, litigation, arbitration or governmental
investigation or proceeding disclosed pursuant to Section 6.10
or clause (c) of Section 7.1.1 which might materially
adversely affect the consolidated businesses, operations,
assets, revenues or properties of the Borrower and its
Restricted Subsidiaries; and
(c) no Default shall have then occurred and be continuing.
For purposes of this Section, a "continuation" or "conversion" of Loans
pursuant to Section 2.4 shall not be a "Borrowing".
SECTION VI.2.2 Borrowing Request. The Administrative Agent shall
have received a Borrowing Request. The delivery of a Borrowing Request and the
acceptance by the Borrower of the proceeds of such Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such Borrowing
(both immediately before and after giving effect to such Borrowing and the
application of the proceeds thereof) the statements made in Section 5.2.1 are
true and correct.
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SECTION VI.2.3 Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any of its
Subsidiaries shall be satisfactory in form and substance to the Administrative
Agent and its counsel; the Administrative Agent and its counsel shall have
received all information, approvals, opinions, documents or instruments as the
Administrative Agent or its counsel may reasonably request.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders and the Administrative Agent to enter
into this Agreement and to make Loans hereunder, the Borrower represents and
warrants unto the Administrative Agent and each Lender as set forth in this
Article VI.
SECTION VII.1 Organization, etc. The Borrower and each of its
Restricted Subsidiaries is a corporation validly organized and existing and in
good standing under the laws of the jurisdiction of its incorporation, is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where the nature of its business requires such qualification,
and has full power and authority and holds all requisite governmental licenses,
permits and other approvals to enter into and perform its Obligations under
this Agreement, the Notes and each other Loan Document to which it is a party
and to own and hold under lease its property and to conduct its business
substantially as currently conducted by it.
SECTION VII.2 Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by each Obligor of this Agreement, the
Notes and each other Loan Document executed or to be executed by it, and the
Borrower's participation in the consummation of the Acquisition and the
Consolidation are within the applicable Obligor's corporate powers, have been
duly authorized by all necessary corporate action, and do not
(a) contravene Organic Documents of such Obligor;
(b) contravene any contractual restriction, law or
governmental regulation or court decree or order binding on or
affecting such Obligor; or
(c) result in, or require the creation or imposition of, any
Lien on any of the properties of such Obligor.
SECTION VII.3 Validity, etc. This Agreement constitutes, and the
Notes and each other Loan Document executed by each Obligor will, on the due
execution and delivery thereof,
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constitute, the legal, valid and binding obligations of such Obligor
enforceable in accordance with their respective terms.
SECTION VII.4 Financial Information. The balance sheets of each of
the Constituent Companies as at each December 31 from 1994 through and
including 1996, and the related statements of earnings and cash flows of each
of the Constituent Companies, copies of which have been furnished to the
Administrative Agent and each Lender, have been prepared in accordance with
GAAP consistently applied, and present fairly the consolidated financial
position of the corporations covered thereby as at the dates thereof and the
results of its operations for the periods then ended.
SECTION VII.5 No Material Adverse Change. Since the date of the
audited financial statements for the 1996 Fiscal Year described in Section 6.4,
there has been no material adverse change in the financial condition,
operations, assets, business or properties of the Borrower and its Restricted
Subsidiaries and CHCS on a consolidated basis.
SECTION VII.6 Compliance with Applicable Laws. Neither the Borrower
nor any of its Restricted Subsidiaries is in default with respect to any
judgment, order, writ, injunction, decree or decision of any Governmental Body
which default could reasonably be expected to have a material adverse effect on
the financial condition, operations, assets, business or properties of the
Borrower and its Restricted Subsidiaries on a consolidated basis. The Borrower
and each of its Restricted Subsidiaries is complying in all material respects
with all applicable statutes and regulations, including the Communications Act
and ERISA, of all Governmental Bodies, including the FCC, a violation of which
could reasonably be expected to have a material adverse effect on the financial
condition, operations, assets, business or properties of the Borrower and its
Restricted Subsidiaries on a consolidated basis.
SECTION VII.7 FCC and Copyright Matters. Except as disclosed in Item
6.7 ("FCC and Copyright Matters") of the Disclosure Schedule, the Borrower and
each of its Restricted Subsidiaries
(a) has duly and timely filed all cable television
registration statements and other filings that are required to be
filed by the Borrower and each of its Restricted Subsidiaries under
the Communications Act, the failure to file which could reasonably be
expected to have a material adverse effect on the financial condition,
operations, assets, business or properties of the Borrower and its
Restricted Subsidiaries on a consolidated basis, and
(b) is complying in all material respects with the
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Communications Act, including the rules, regulations and published
policies of the FCC relating to the transmission of television, cable
and microwave signals, a violation of which could reasonably be
expected to have a material adverse effect on the financial condition,
operations, assets, business or properties of the Borrower and its
Restricted Subsidiaries on a consolidated basis. Neither the Borrower
nor any Restricted Subsidiary has any knowledge that either the
Borrower or any of its Restricted Subsidiaries has not recorded or
deposited with and paid to the United States Copyright Office, the
Register of Copyrights and the Copyright Royalty Tribunal all material
notices, statements of account, royalty fees and other documents and
instruments required under the Copyright Act, and, to the knowledge of
the Borrower, neither the Borrower nor any of its Restricted
Subsidiaries is liable in any material respect to any Person for
copyright infringement under the Copyright Act as a result of its
business operations. Each of the Borrower and its Restricted
Subsidiaries has filed or caused to be filed with the FCC all reports,
applications, documents, instruments and information required to be
filed pursuant to all FCC rules, regulations and requests the failure
to file of which could reasonably be expected to have a material
adverse effect on the financial condition, operations, assets,
business or properties of the Borrower and its Restricted Subsidiaries
on a consolidated basis.
SECTION VII.8 Franchises, etc. Each of the Borrower and the
Restricted Subsidiaries possesses all material franchises, certificates,
licenses, permits and other authorizations from Governmental Bodies and all
material patents, trademarks, service marks, trade names, copyrights, licenses,
easements, rights of way and other rights, use, access or rental agreements and
utility easements that are necessary for the ownership of its properties and
assets and the maintenance and operation of its business as presently
conducted, and is not in violation of any of the foregoing in any material
respect. No event has occurred which permits, or after notice or lapse of time
(except expiration of the stated term thereof), or both, would permit, the
revocation or termination of any such franchise, certificate, permit, license,
authorization or other right so as to materially adversely affect the financial
condition, operations, assets, business or properties of the Borrower and its
Restricted Subsidiaries on a consolidated basis. All such franchises,
certificates, permits, licenses and other authority have been validly issued to
the Borrower or a Restricted Subsidiary, as the case may be, by the appropriate
governmental authority and, except for franchises, certificates, permits,
licenses or other authority which if not obtained would not materially
adversely affect the Borrower and its Restricted Subsidiaries on a consolidated
basis, each such franchise, certificate, permit,
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license or other authority is valid and subsisting. The Borrower and its
Restricted Subsidiaries are operating their respective businesses in material
compliance with the terms and conditions of such franchises, certificates,
permits, licenses and other authority.
SECTION VII.9 Government Approval, Regulation, etc. No authorization
or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or other Person is required for the
due execution, delivery or performance by any Obligor of this Agreement, the
Notes or any other Loan Document to which it is a party. Neither the Borrower
nor any of its Restricted Subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate"
of a "holding company" or of a "subsidiary company" of a "holding company",
within the meaning of the Public Utility Holding Company Act of 1935, as
amended.
SECTION VII.10 Litigation, Labor Controversies, etc. There is no
pending or, to the knowledge of the Borrower, threatened litigation, action,
proceeding or labor controversy affecting the Borrower or any of its Restricted
Subsidiaries, or any of their respective properties, businesses, assets or
revenues, which may materially adversely affect the financial condition,
operations, assets, business or properties of the Borrower and its Restricted
Subsidiaries on a consolidated basis or which purports to affect the legality,
validity or enforceability of this Agreement, the Notes or any other Loan
Document, except as disclosed in Item 6.10 ("Litigation") of the Disclosure
Schedule.
SECTION VII.11 Subsidiaries. The Borrower has no Subsidiaries,
except those Subsidiaries
(a) which are identified in Item 6.11 ("Existing
Subsidiaries") of the Disclosure Schedule; or
(b) which are permitted to have been acquired in accordance
with Section 7.2.5 or 7.2.8.
SECTION VII.12 Ownership of Properties. The Borrower and each of its
Restricted Subsidiaries owns good or marketable title, as the case may be, to
all of its properties and assets, real and personal, tangible and intangible,
of any nature whatsoever (including patents, trademarks, trade names, service
marks and copyrights), free and clear of all Liens, charges or claims
(including infringement claims with respect to patents, trademarks, copyrights
and the like) except as permitted pursuant to Section 7.2.3.
SECTION VII.13 Taxes. Except as disclosed in Item 6.13 ("Taxes") of
the Disclosure Schedule, the Borrower and each of its Restricted Subsidiaries
has filed all tax returns and reports
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required by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such taxes or
charges which are being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on its books.
SECTION VII.14 Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the Effective Date and prior to the
date of any Borrowing hereunder, no steps have been taken to terminate any
Pension Plan, other than in a standard termination under section 4041(b) of
ERISA that does not require a contribution in excess of $3,000,000, and no
contribution failure has occurred with respect to any Pension Plan sufficient
to give rise to a Lien under section 302(f) of ERISA. No condition exists or
event or transaction has occurred with respect to any Pension Plan which could
reasonably be expected to result in the incurrence by the Borrower or any
Restricted Subsidiary of any material liability, fine or penalty. Neither the
Borrower nor any Restricted Subsidiary has any contingent liability with
respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of Title I of ERISA.
SECTION VII.15 Environmental Law. The Borrower and its Restricted
Subsidiaries are in compliance with all Environmental Laws applicable to the
operation of their business in all jurisdictions in which they are presently
doing business, such that they will not incur or be subject to any liability or
penalty thereunder which could, individually or in the aggregate, reasonably be
expected to materially and adversely affect the business, operations or
condition (financial or otherwise) or property of the Borrower and its
Restricted Subsidiaries, on a consolidated basis. The Borrower and its
Restricted Subsidiaries do not manage any hazardous wastes, hazardous
substances, hazardous materials, toxic substances or toxic pollutants in
violation of any Environmental Law, and there are no known conditions or
circumstances associated with the currently or previously owned or leased
properties or operations of the Borrower or its Restricted Subsidiaries or
tenants which may give rise to any liabilities and costs under any
Environmental Law which could reasonably be expected to materially and
adversely affect the business, operations or condition (financial or otherwise)
or property of the Borrower and its Restricted Subsidiaries, on a consolidated
basis.
SECTION VII.16 Regulations G, U and X. The Borrower is not engaged
in the business of extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Loans will be used for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation G, U or X.
Terms for which meanings are provided in F.R.S. Board Regulation G, U or X
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or any regulations substituted therefor, as from time to time in effect, are
used in this Section with such meanings.
SECTION VII.17 Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of the Borrower in
writing to the Administrative Agent or any Lender for purposes of or in
connection with this Agreement or any transaction contemplated hereby (other
than the Projections, true and complete copies of which were furnished to the
Administrative Agent and each Lender in connection with its execution and
delivery hereof) is, and all other such factual information hereafter furnished
by or on behalf of the Borrower to the Administrative Agent or any Lender will
be, true and accurate in every material respect on the date as of which such
information is dated or certified and as of the date of execution and delivery
of this Agreement by the Administrative Agent and such Lender, and such
information is not, or shall not be, as the case may be, incomplete by omitting
to state any material fact necessary to make such information not misleading.
The Projections are based on good faith estimates and assumptions, which the
Borrower believes are fair and reasonable in light of the historical financial
performance of each of the Constituent Companies.
ARTICLE VIII
COVENANTS
SECTION VIII.1 Affirmative Covenants. The Borrower agrees with the
Administrative Agent and each Lender that, until all Commitments have
terminated and all Obligations have been paid and performed in full, the
Borrower will perform the obligations set forth in this Section 7.1.
SECTION VIII.1.1 Financial Information, Reports, Notices, etc. The
Borrower will furnish, or will cause to be furnished, to each Lender and the
Administrative Agent copies of the following financial statements, reports,
notices and information:
(a) as soon as available and in any event within 75 days
after the end of each of the first three Fiscal Quarters of each
Fiscal Year,
(i) consolidated balance sheets as of the end of
such Fiscal Quarter, and consolidated statements of earnings
and cash flows for such Fiscal Quarter and for the period
commencing at the end of the previous Fiscal Year and ending
with the end of such Fiscal Quarter, of the Borrower and its
Restricted Subsidiaries certified by an Authorized Officer of
the Borrower,
(ii) a Compliance Certificate showing (in
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reasonable detail and with appropriate calculations and
computations in all respects reasonably satisfactory to the
Administrative Agent) compliance with the financial covenants
set forth in Section 7.2.4 and various other covenant
limitations and certifying as to the absence of any Defaults
(except as disclosed therein),
(iii) a certificate of an Authorized Officer of the
Borrower certifying as to consolidated figures of the Borrower
and its Restricted Subsidiaries for Subscriber Information,
(iv) such other information as shall be reasonably
requested by the Administrative Agent or the Required Lenders,
as of and through the end of such period, all in reasonable
detail and prepared in accordance with customary industry
standards;
(b) as soon as available and in any event within 120 days
after the end of each Fiscal Year,
(i) a copy of the annual audit report for such
Fiscal Year for the Borrower and its Restricted Subsidiaries,
including therein a consolidated balance sheet as of the end
of such Fiscal Year, and consolidated statements of earnings
and cash flows for such Fiscal Year, of the Borrower and its
Restricted Subsidiaries, certified (without any Impermissible
Qualification) in a manner acceptable to the Administrative
Agent and the Required Lenders by KPMG Peat Marwick or other
independent public accountants acceptable to the
Administrative Agent and the Required Lenders,
(ii) a certificate from the independent public
accountants which certify the audit report furnished pursuant
to clause(b)(i), acceptable to the Administrative Agent and
the Required Lenders containing a computation of, and showing
compliance with, each of the financial covenants set forth in
Section 7.2.4 and to the effect that, in making the
examination necessary for the signing of such audit report,
they have not become aware of any Default or Event of Default
that has occurred and is continuing, or, if they have become
aware of such Default or Event of Default, describing such
Default or Event of Default,
(iii) a certificate of an Authorized Officer of the
Borrower, certifying as to consolidated figures of the
Borrower and its Restricted Subsidiaries for Subscriber
Information, and such other information as shall be reasonably
requested by the Administrative
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Agent or the Required Lenders, as of and through the end of
such Fiscal Year, all in reasonable detail and prepared in
accordance with customary industry standards,
(iv) a Compliance Certificate showing (in reasonable
detail and with appropriate calculations and computations in
all respects reasonably satisfactory to the Administrative
Agent) compliance with the financial covenants set forth in
Section 7.2.4 and various other covenant limitations and
certifying as to the absence of any Defaults (except as
disclosed therein), and
(v) a schedule of all acquisitions, sales and
exchanges of stock or property of the Borrower and each of its
Restricted Subsidiaries which occurred during such Fiscal
Year;
(c) as soon as possible and in any event within three days
after the occurrence of each Default, a statement of an Authorized
Officer of the Borrower setting forth details of such Default and the
action which the Borrower has taken and proposes to take with respect
thereto;
(d) as soon as possible and in any event within three days
after (x) the occurrence of any material adverse development with
respect to any litigation, action, proceeding or labor controversy
described in Section 6.10or (y) the commencement of any labor
controversy, litigation, action or proceeding of the type described in
Section 6.10, notice thereof and copies of all documentation relating
thereto;
(e) promptly after the sending or filing thereof, copies of
all reports and registration statements which the Borrower or any of
its Restricted Subsidiaries files with the Securities and Exchange
Commission or any national securities exchange;
(f) immediately upon becoming aware of the institution of any
steps by the Borrower or any other Person to terminate any Pension
Plan, or the failure to make a required contribution to any Pension
Plan if such failure is sufficient to give rise to a Lien under
section 302(f) of ERISA, or the taking of any action with respect to a
Pension Plan which could result in the requirement that the Borrower
furnish a bond or other security to the PBGC or such Pension Plan, or
the occurrence of any event with respect to any Pension Plan which
could result in the incurrence by the Borrower of any material
liability, fine or penalty, or any material increase in the contingent
liability of the Borrower with respect to any post-retirement Welfare
Plan benefit, notice thereof and copies of all documentation
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relating thereto;
(g) prompt written notice of the occurrence of a Cash
Management Significant Default and a description of the steps being
taken or proposed to be taken in respect thereof; and
(h) such other information respecting the condition or
operations, financial or otherwise, of the Borrower or any of its
Subsidiaries as any Lender through the Administrative Agent may from
time to time reasonably request.
SECTION VIII.1.2 Compliance with Laws, etc. The Borrower will, and
will cause each of its Restricted Subsidiaries to, comply in all material
respects with all applicable laws, rules, regulations and orders, such
compliance to include (without limitation):
(a) the maintenance and preservation of its corporate
existence and qualification as a foreign corporation; and
(b) the payment, before the same become delinquent, of all
taxes, assessments and governmental charges imposed upon it or upon
its property except to the extent being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
SECTION VIII.1.3 Maintenance of Properties. The Borrower will, and
will cause each of its Restricted Subsidiaries to, maintain, preserve, protect
and keep its properties in good repair, working order and condition, and make
necessary and proper repairs, renewals and replacements so that its business
carried on in connection therewith may be properly conducted at all times
unless the Borrower determines in good faith that the continued maintenance of
any of its properties is no longer economically desirable.
SECTION VIII.1.4 Insurance. The Borrower will, and will cause each
of its Restricted Subsidiaries to, maintain or cause to be maintained with
responsible insurance companies insurance with respect to its properties and
business (including business interruption insurance) against such casualties
and contingencies and of such types and in such amounts as is customary in the
case of similar businesses and will, upon request of the Administrative Agent,
furnish to each Lender at reasonable intervals a certificate of an Authorized
Officer of the Borrower setting forth the nature and extent of all insurance
maintained by the Borrower and its Restricted Subsidiaries in accordance with
this Section.
SECTION VIII.1.5 Books and Records. The Borrower will, and
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will cause each of its Restricted Subsidiaries to, keep books and records which
accurately reflect all of its business affairs and transactions and permit the
Administrative Agent and each Lender or any of their respective
representatives, at reasonable times and intervals, to visit all of its
offices, to discuss its financial matters with its officers and independent
public accountant (and the Borrower hereby authorizes such independent public
accountant to discuss the Borrower's financial matters with each Lender or its
representatives whether or not any representative of the Borrower is present)
and to examine (and photocopy extracts from) any of its books or other
corporate records. The Borrower shall pay any fees of such independent public
accountant incurred in connection with the Administrative Agent's or any
Lender's exercise of its rights pursuant to this Section.
SECTION VIII.1.6 Environmental Covenant. The Borrower will, and will
cause each of its Restricted Subsidiaries to,
(a) use and operate all of its facilities and properties in
material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws;
(b) immediately notify the Administrative Agent and provide
copies upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and properties
or compliance with Environmental Laws; and
(c) provide such information and certifications which the
Administrative Agent may reasonably request from time to time to
evidence compliance with this Section.
SECTION VIII.1.7 Future Subsidiaries. Upon any Person becoming, after
the Effective Date, a Restricted Subsidiary of the Borrower, or upon the
Borrower directly or indirectly acquiring additional capital stock of any
existing Restricted Subsidiary having voting rights or contingent voting rights,
the Borrower shall notify the Administrative Agent of such acquisition, and,
unless otherwise agreed to among the Borrower, the Administrative Agent and the
Required Lenders,
(a) such Person shall execute and deliver to the
Administrative Agent a Subsidiary Guaranty, in a manner satisfactory
to the Administrative Agent;
(b) such Person shall execute and deliver such instruments
and take such actions as are required by Section
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7.1.8, if applicable;
(c) the Borrower shall execute and deliver to the
Administrative Agent the Borrower Pledge Agreement (unless theretofore
executed and delivered pursuant to Section 5.1.6 or this Section),
together with all of the outstanding shares of capital stock of such
Person, along with undated stock powers for such certificates,
executed in blank (or, if any such shares of capital stock are
uncertificated, confirmation and evidence satisfactory to the
Administrative Agent that the security interest in such uncertificated
securities has been transferred to and perfected by the Administrative
Agent, for the benefit of the Lenders, in accordance with Section
8-313 and Section 8-321 of the U.C.C. or any other similar or local or
foreign law which may be applicable); and
(d) the Borrower shall cause to be delivered to the
Administrative Agent, such opinions of legal counsel for the Borrower
(which shall be from counsel reasonably satisfactory to the
Administrative Agent) relating thereto, which legal opinions shall be
in form and substance reasonably satisfactory to the Administrative
Agent.
SECTION VIII.1.8 Additional Collateral. In the event that TCI
shall cease to own, directly and free of Liens, at least 50.10% of the Voting
Stock of International,
(a) the Borrower shall cause the Administrative Agent, on
behalf of the Lenders, to have at all times a first priority perfected
security interest (subject only to Liens and encumbrances permitted
under Section 7.2.3) in all of the property (real and personal) owned
from time to time by the Borrower and each Restricted Subsidiary;
without limiting the generality of the foregoing, the Borrower and
each Restricted Subsidiary shall execute, deliver and/or file (as
applicable) or cause to be executed, delivered and/or file (as
applicable), the pledge agreement(s), the security agreement(s),
Uniform Commercial Code (Form UCC-1) financing statements, Uniform
Commercial Code (Form UCC-3) termination statements, and other
documentation necessary to grant and perfect such security interest,
in each case in form and substance reasonably satisfactory to the
Administrative Agent together, in each case, with such opinions of
legal counsel for the Borrower (which shall be from counsel reasonably
satisfactory to the Administrative Agent) relating thereto, which
legal opinions shall be in form and substance reasonably satisfactory
to the Administrative Agent and
(b) International shall execute and deliver the International
Pledge Agreement, dated as of the date of such
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event, duly executed and delivered by an Authorized Officer of
International, together with certificates evidencing all of the issued
and outstanding shares of capital stock of the Borrower, which
certificates shall be accompanied by undated stock powers duly
executed in blank (or, if any securities pledged pursuant to the
International Pledge Agreement are uncertificated securities,
confirmation and evidence satisfactory to the Administrative Agent
that the security interest in such uncertificated securities has been
transferred to and perfected by the Administrative Agent for the
benefit of the Lenders in accordance with Section 8-313 and Section
8-321 of the U.C.C., and all laws otherwise applicable to the
perfection of the pledge of such shares).
SECTION VIII.2 Negative Covenants. The Borrower agrees with the
Administrative Agent and each Lender that, until all Commitments have
terminated and all Obligations have been paid and performed in full, the
Borrower will perform the obligations set forth in this Section 7.2.
SECTION VIII.2.1 Business Activities. The Borrower will not, and
will not permit its Restricted Subsidiaries to, engage in any business
activities which result in less than 90% of the total Gross Revenues of the
Borrower and its Restricted Subsidiaries for any Fiscal Quarter being derived
from the cable television business, including pay cable service, which involves
the distribution primarily by cable of audio and video signals in defined
geographical areas, and in the business of acquiring, owning, expanding,
operating and maintaining Cable Systems, and in directly related media
activities, including data transmission services, telephony, INTERNET services,
advertising sales and the production and distribution of programming.
SECTION VIII.2.2 Indebtedness. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, create, incur, assume or suffer
to exist or otherwise become or be liable in respect of any Indebtedness, other
than, without duplication, the following:
(a) the Indebtedness in respect of the Loans and other
Obligations;
(b) the Indebtedness existing as of the Effective Date which
is identified in Item 7.2.2(b) ("Ongoing Indebtedness") of the
Disclosure Schedule;
(c) the Indebtedness which is incurred by the Borrower or any
of its Restricted Subsidiaries to a vendor of any assets to finance
its acquisition of such assets;
(d) the unsecured Indebtedness incurred in the ordinary
course of business (including open accounts
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extended by suppliers on normal trade terms in connection with
purchases of goods and services, but excluding, however, Indebtedness
incurred through the borrowing of money or Contingent Liabilities);
(e) Indebtedness in respect of Capitalized Lease Liabilities;
(f) Indebtedness of any Restricted Subsidiary of the Borrower
owing to the Borrower or any other Restricted Subsidiary of which such
Restricted Subsidiary is a Subsidiary, which Indebtedness shall not be
forgiven or otherwise discharged for any consideration other than
payment in full in cash unless the Administrative Agent otherwise
consents or Indebtedness of the Borrower owing to any Restricted
Subsidiary;
(g) Subordinated Intercompany Debt of the Borrower or any of
its Restricted Subsidiaries which is incurred after the date of the
initial Loans in full compliance with the definition of the term so as
to qualify as Subordinated Intercompany Debt
(i) for the purpose of providing the Borrower or any
Restricted Subsidiary with funds to make Investments in
Unrestricted Subsidiaries ("Subordinated Intercompany Long
Term Debt"), and
(ii) for the purpose of providing the Borrower and
Restricted Subsidiaries with working capital funds
("Subordinated Intercompany Working Capital Debt") in an
aggregate outstanding principal amount not to exceed
$7,500,000 at any time;
(h) Cash Management Advances obtained by the Borrower or any
Restricted Subsidiary; and
(i) other unsecured Indebtedness of the Borrower and its
Restricted Subsidiaries in an aggregate outstanding principal amount
not to exceed $10,000,000 at any time;
provided, however, that
(j) no Indebtedness otherwise permitted by clauses (c), (e),
or (f) shall be permitted if, after giving effect to the incurrence
thereof, any Default of the nature referred to in Section 8.1.1 or
8.1.9 or any Event of Default shall have occurred and be continuing;
and
(k) the aggregate outstanding principal amount of all
Indebtedness permitted by clauses (c) and (e) shall not exceed
$10,000,000 (of which no more than 10% may be
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secured) at any time.
SECTION VIII.2.3 Liens. The Borrower will not, and will not permit
any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist
any Lien upon any of its property, revenues or assets, whether now owned or
hereafter acquired, except:
(a) the Liens securing payment of the Obligations, granted
pursuant to any Loan Document;
(b) the Liens granted to secure payment of the Indebtedness
of the type permitted and described in clause (c) or (e) of Section
7.2.2 and covering only those assets acquired with the proceeds of
such Indebtedness;
(c) the Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter payable
without penalty or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;
(d) the Liens of carriers, warehousemen, mechanics,
materialmen and landlords incurred in the ordinary course of business
for sums not overdue or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;
(e) the Liens incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or
other forms of governmental insurance or benefits, or to secure
performance of tenders, statutory obligations, leases and contracts
(other than for borrowed money) entered into in the ordinary course of
business or to secure obligations on surety or appeal bonds; and
(f) the judgment Liens in existence less than 30 days after
the entry thereof or with respect to which execution has been stayed
or the payment of which is covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance
companies.
SECTION VIII.2.4 Financial Condition. The Borrower will not permit:
(a) the Leverage Ratio at any time during any period set
forth below to be more than the ratio specified below opposite such
period:
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<TABLE>
<CAPTION>
Period Ratio
------ -----
<S> <C>
Effective Date through 12/31/98 5.50:1.00
01/01/99 through 6/30/00 5.00:1.00
7/01/00 through 6/30/01 4.50:1.00
7/01/01 and thereafter 4.00:1.00;
</TABLE>
(b) the ratio of Annualized Cash Flow to Interest Expense for
the immediately preceding consecutive 12-month period to be less than
2.00:1.00; and
(c) the ratio of Annualized Cash Flow to Pro-Forma Debt
Service at any time to be less than 1.15:1.00.
SECTION VIII.2.5 Investments. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, make, incur, assume or suffer to
exist any Investment in any other Person, except:
(a) the Investments existing on the Effective Date and
identified in Item 7.2.5(a) ("Ongoing Investments") of the Disclosure
Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, the Investments permitted as
Indebtedness pursuant to Section 7.2.2;
(d) Investments by the Borrower in any of its Restricted
Subsidiaries, or by any Restricted Subsidiary in any other Restricted
Subsidiary which is a Subsidiary of such Restricted Subsidiary by way
of contributions to capital or loans or advances, and Investments in
the Borrower by any Restricted Subsidiary by way of loans or advances;
(e) Investments constituting Cash Management Advances to any
Cash Management Affiliate made by the Borrower or any Restricted
Subsidiary in the course of the Borrower's normal cash management
practices; provided, however, that, in the case of any Cash Management
Advance made to a Cash Management Affiliate which is not a Restricted
Subsidiary, no Cash Management Significant Default relative to the
applicable Cash Management Affiliate shall have occurred and be
continuing and no Default of the nature referred to in Section 8.1.1
or 8.1.9 and no Event of Default shall have occurred and be continuing
with respect to which the Borrower has received a Cash Management
Suspension Notice, which Cash Management Suspension Notice remains in
effect at such time;
(f) other Investments by the Borrower or any
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Restricted Subsidiary constituting contributions to capital or loans
or advances, all without recourse or Contingent Liability to the
Borrower or any Restricted Subsidiary, in the cable television
business, including pay cable service, which involves the distribution
primarily by cable of audio and video signals in defined geographical
areas, and in the business of acquiring, owning, expanding, operating
and maintaining Cable Systems, and in directly related media
activities, including data transmission services, telephony, INTERNET
services, advertising sales and the production and distribution of
programming,
(i) to the extent made by the Borrower from, and
concurrently with its receipt of, the proceeds of a
contribution to the Borrower's common stock capital account by
International or from the proceeds of Subordinated
Intercompany Long Term Debt of the Borrower; and
(ii) made from available cash, including from
proceeds of Loans other than proceeds of Investments in the
Borrower by International; provided, however, that the
aggregate amount of additional Investments made pursuant to
this clause during any period when the Leverage Ratio is
greater than or equal to 4.50:1.00 for the Fiscal Quarter
immediately prior to, or, on a pro forma basis, immediately
after giving effect to the making of any such additional
Investments, shall not exceed $10,000,000; and
(g) Investments in capital stock of Subsidiaries received
by the Borrower or any Restricted Subsidiary in connection with the
Reorganization (and without the making by the Borrower or any
Restricted Subsidiary of any incremental Investment in connection
therewith);
provided, however, that
(h) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent
Investment" may continue to be held notwithstanding that such
Investment if made thereafter would not comply with such requirements;
and
(i) no Investment otherwise permitted by clause (f) shall be
permitted to be made if, immediately before or after giving effect
thereto, any Default of the type described in Section 8.1.1 or 8.1.9
or Event of Default shall have occurred and be continuing.
SECTION VIII.2.6 Restricted Payments, etc. On and at all times after
the Effective Date:
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(a) the Borrower will not declare, pay or make any dividend
or distribution (in cash, property or obligations) on any shares of
any class of capital stock (now or hereafter outstanding) of the
Borrower or on any warrants, options or other rights with respect to
any shares of any class of capital stock (now or hereafter
outstanding) of the Borrower (other than dividends or distributions
payable in its common stock or warrants to purchase its common stock
or splitups or reclassifications of its stock into additional or other
shares of its common stock) or apply, or permit any of its Restricted
Subsidiaries to apply, any of its funds, property or assets to the
purchase, redemption, sinking fund or other retirement of, or agree or
permit any of its Restricted Subsidiaries to purchase or redeem, any
shares of any class of capital stock (now or hereafter outstanding) of
the Borrower, or warrants, options or other rights with respect to any
shares of any class of capital stock (now or hereafter outstanding) of
the Borrower; provided, however, that the Borrower may from time to
time declare, pay or make any dividend or distribution to
International from and to the extent of the aggregate cash proceeds
received by the Borrower (net of all taxes, commissions, and other
fees and expenses paid or payable in connection therewith) from the
liquidation of, or any dividend, interest, repayment or distribution
from, any Investment originally made pursuant to clause (f)(i) of
Section 7.2.5 from the proceeds of a contribution to the Borrower's
common capital stock account by International or any Investment of the
nature referred to in clause (g) of Section 7.2.5 , but, in each case,
only if after giving effect thereto no Default of the nature referred
to in Section 8.1.1 or 8.1.9 or Event of Default shall have occurred
and be continuing;
(b) the Borrower will not, and will not permit any of its
Restricted Subsidiaries to,
(i) make any payment or prepayment of principal of,
or make any payment of interest on, any Subordinated
Intercompany Debt, except payment when due in accordance with
the terms thereof of
(x) principal and interest accrued on
Subordinated Intercompany Long Term Debt from and to
the extent the aggregate cash proceeds received by
the Borrower (net of all taxes, commissions, and
other fees and expenses paid or payable in connection
therewith) from the liquidation of, or any dividend,
interest, repayment or distribution from, any
Investment originally made pursuant to clause (f)(i)
of Section 7.2.5 from the proceeds of such
Subordinated Intercompany Long Term Debt
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or any Investment of the nature referred to in clause
(g) of Section 7.2.5, and
(y) principal of and interest accrued on
Subordinated Intercompany Working Capital Debt,
in each case only if and to the extent such payment is then
permitted to be made in accordance with the Intercompany Debt
Subordination Agreement, or
(ii) redeem, purchase or defease, any Subordinated
Intercompany Debt; and
(c) the Borrower will not, and will not permit any of its
Restricted Subsidiaries to, make any deposit for any of the foregoing
purposes.
SECTION VIII.2.7 Rental Obligations. The Borrower will not, and will
not permit any of its Restricted Subsidiaries to, enter into at any time any
arrangement which does not create a Capitalized Lease Liability and which
involves the leasing by the Borrower or any of its Restricted Subsidiaries from
any lessor of any real or personal property (or any interest therein), except
arrangements which, together with all other such arrangements which shall then
be in effect, will not require the payment of an aggregate amount of rentals by
the Borrower and its Restricted Subsidiaries in excess of (excluding
escalations resulting from a rise in the consumer price or similar index)
$2,500,000 for any Fiscal Year or $20,000,000 during the full remaining term of
such arrangements; provided, however, that any calculation made for purposes of
this Section shall exclude any amounts required to be expended for maintenance
and repairs, insurance, taxes, assessments, and other similar charges.
SECTION VIII.2.8 Consolidation, Merger, etc. The Borrower will not,
and will not permit any of its Restricted Subsidiaries to, liquidate or
dissolve, consolidate with, or merge into or with, any other corporation, or
purchase or otherwise acquire all or substantially all of the assets of any
Person (or of any division thereof) except
(a) any such Restricted Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, the Borrower or any
other such Restricted Subsidiary, and the assets or stock of any such
Restricted Subsidiary may be purchased or otherwise acquired by the
Borrower or any other Restricted Subsidiary; and
(b) so long as no Default has occurred and is continuing or
would occur after giving effect thereto, the Borrower or any of its
Restricted Subsidiaries may purchase
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all or substantially all of the assets of any Person, or acquire such
Person by merger or exchange, provided that such Person is engaged
primarily in cable television or directly related media or
telecommunications activities.
SECTION VIII.2.9 Asset Dispositions, etc. The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, sell, transfer, lease,
merge, exchange, contribute or otherwise convey, or grant options, warrants or
other rights with respect to, all or any substantial part of its assets
(including accounts receivable and capital stock of its Restricted
Subsidiaries, but, excluding, however, the disposition of capital stock of
Unrestricted Subsidiaries) to or with, as the case may be, any Person, unless
such sale, transfer, lease, merger, exchange, contribution or conveyance is in
the ordinary course of its business (and, in any event, does not include any
accounts receivable) or is permitted by Section 7.2.8.
SECTION VIII.2.10 Modification of Certain Agreements. The Borrower
will not consent to any amendment, supplement or other modification of any of
the terms or provisions contained in, or applicable to, the Intercompany Debt
Subordination Agreement or any document or instrument evidencing or applicable
to any Subordinated Intercompany Debt, other than any amendment, supplement or
other modification which extends the date or reduces the amount of any required
repayment or redemption.
SECTION VIII.2.11 Transactions with Affiliates. The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, enter into, or
cause, suffer or permit to exist any arrangement or contract with any of its
other Affiliates (other than Indebtedness permitted pursuant to clause (b),
(f), (g) or (h) of Section 7.2.2 or an Investment permitted pursuant to clause
(d), (e), (f) or (g) of Section 7.2.5) unless such arrangement or contract is
fair and equitable to the Borrower or such Restricted Subsidiary and is an
arrangement or contract of the kind which would be entered into by a prudent
Person in the position of the Borrower or such Restricted Subsidiary with a
Person which is not one of its Affiliates.
SECTION VIII.2.12 Negative Pledges, Restrictive Agreements, etc. The
Borrower will not, and will not permit any of its Restricted Subsidiaries to,
enter into any agreement (excluding this Agreement, any other Loan Document and
any agreement governing any Indebtedness permitted either by clause (b) of
Section 7.2.2 as in effect on the Effective Date or by clause (c), (d) or (e)
of Section 7.2.2 as to the assets financed with the proceeds of such
Indebtedness) prohibiting
(a) the creation or assumption of any Lien in favor of the
Administrative Agent or any Lender upon its properties, revenues or
assets, whether now owned or hereafter acquired,
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or the ability of the Borrower to amend or otherwise modify this
Agreement or any other Loan Document; or
(b) the ability of any Restricted Subsidiary to make any
payments, directly or indirectly, to the Borrower by way of dividends,
advances, repayments of loans or advances, reimbursements of
management and other intercompany charges, expenses and accruals or
other returns on investments, or any other agreement or arrangement
which restricts the ability of any such Restricted Subsidiary to make
any payment, directly or indirectly, to the Borrower.
ARTICLE IX
EVENTS OF DEFAULT
SECTION IX.1 Listing of Events of Default. Each of the following
events or occurrences described in this Section 8.1 shall constitute an "Event
of Default".
SECTION IX.1.1 Non-Payment of Obligations. The Borrower shall
default in the payment or prepayment when due of any principal of any Loan, or
the Borrower shall default (and such default shall continue unremedied for a
period of five days) in the payment when due of interest on any Loan or any
commitment fee or of any other Obligation.
SECTION IX.1.2 Breach of Warranty. Any representation or warranty of
the Borrower made or deemed to be made hereunder or in any other Loan Document
executed by it or any other writing or certificate furnished by or on behalf of
the Borrower to the Administrative Agent or any Lender for the purposes of or
in connection with this Agreement or any such other Loan Document (including
any certificates delivered pursuant to Article V) is or shall be incorrect when
made in any material respect.
SECTION IX.1.3 Non-Performance of Certain Covenants and Obligations.
Any Obligor shall default in the due performance and observance of any of its
obligations under Section 7.1.1, 7.1.7, 7.1.8 or 7.2.
SECTION IX.1.4 Non-Performance of Other Covenants and Obligations.
Any Obligor shall default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrower by the Administrative Agent or
any Lender.
SECTION IX.1.5 Default on Other Indebtedness. A default shall occur
in the payment when due (subject to any applicable
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grace period), whether by acceleration or otherwise, of any Indebtedness (other
than Indebtedness described in Section 8.1.1) of the Borrower or any of its
Restricted Subsidiaries having a principal amount, individually or in the
aggregate, in excess of $7,500,000, or a default shall occur in the performance
or observance of any obligation or condition with respect to such Indebtedness
of the Borrower or any of its Restricted Subsidiaries if the effect of such
default is to accelerate the maturity of any such Indebtedness or such default
shall continue unremedied for any applicable period of time sufficient to
permit the holder or holders of such Indebtedness, or any trustee or agent for
such holders, to cause such Indebtedness to become due and payable prior to its
expressed maturity.
SECTION IX.1.6 Judgments. Any judgment or order for the payment of
money in excess of $1,000,000 shall be rendered against the Borrower or any of
its Restricted Subsidiaries and either
(a) enforcement proceedings shall have been commenced by any
creditor upon such unsatisfied judgment or order; or
(b) there shall be any period of 20 consecutive days during
which a stay of enforcement of such unsatisfied judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect.
SECTION IX.1.7 Pension Plans. Any of the following events shall
occur with respect to any Pension Plan
(a) the institution of any steps by the Borrower, any member
of its Controlled Group or any other Person to terminate a Pension
Plan if, as a result of such termination, the Borrower or any
Restricted Subsidiary could be required to make a contribution to such
Pension Plan, or could reasonably expect to incur a liability or
obligation to such Pension Plan, in excess of $3,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION IX.1.8 Control of the Borrower. Any Change in Control shall
occur.
SECTION IX.1.9 Bankruptcy, Insolvency, etc. The Borrower or any of
its Restricted Subsidiaries shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to pay, debts as they become
due;
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(b) apply for, consent to, or acquiesce in, the appointment
of a trustee, receiver, sequestrator or other custodian for the
Borrower or any of its Restricted Subsidiaries or any property of any
thereof, or make a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee,
receiver, sequestrator or other custodian for the Borrower or any of
its Restricted Subsidiaries or for a substantial part of the property
of any thereof, and such trustee, receiver, sequestrator or other
custodian shall not be discharged within 60 days, provided that the
Borrower and each Restricted Subsidiary hereby expressly authorizes
the Administrative Agent and each Lender to appear in any court
conducting any relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of the Borrower or
any of its Restricted Subsidiaries, and, if any such case or
proceeding is not commenced by the Borrower or such Restricted
Subsidiary, such case or proceeding shall be consented to or
acquiesced in by the Borrower or such Restricted Subsidiary or shall
result in the entry of an order for relief or shall remain for 60 days
undismissed, provided that the Borrower, on behalf of itself and each
Restricted Subsidiary, hereby expressly authorizes the Administrative
Agent and each Lender to appear in any court conducting any such case
or proceeding during such 60-day period to preserve, protect and
defend their rights under the Loan Documents; or
(e) take any corporate action authorizing, or in furtherance
of, any of the foregoing.
SECTION IX.2 Action if Bankruptcy. If any Event of Default described
in clauses (a) through (d) of Section 8.1.9 shall occur, the Commitments (if
not theretofore terminated) shall automatically terminate and the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable, without notice or
demand.
SECTION IX.3 Action if Other Event of Default. If any Event of
Default (other than any Event of Default described in clauses (a) through (d)
of Section 8.1.9 with respect to the Borrower or any Restricted Subsidiary)
shall occur for any reason, whether voluntary or involuntary, and be
continuing, the
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Administrative Agent, upon the direction of the Required Lenders, shall by
notice to the Borrower declare all or any portion of the outstanding principal
amount of the Loans and other Obligations to be due and payable and/or the
Commitments (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount of such Loans and other Obligations which shall be so
declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate.
ARTICLE X
THE ADMINISTRATIVE AGENT
SECTION X.1 Actions. Each Lender hereby appoints Scotiabank as its
Administrative Agent under and for purposes of this Agreement, the Notes, the
Intercompany Debt Subordination Agreement and each other Loan Document. Each
Lender authorizes the Administrative Agent to act on behalf of such Lender
under this Agreement, the Notes, the Intercompany Debt Subordination Agreement
and each other Loan Document and, in the absence of other written instructions
from the Required Lenders received from time to time by the Administrative
Agent (with respect to which the Administrative Agent agrees that it will
comply, except as otherwise provided in this Section or as otherwise advised by
counsel), to exercise such powers hereunder and thereunder as are specifically
delegated to or required of the Administrative Agent by the terms hereof and
thereof, together with such powers as may be reasonably incidental thereto.
Each Lender hereby indemnifies (which indemnity shall survive any termination
of this Agreement) the Administrative Agent, pro rata according to such
Lender's Percentage, from and against any and all liabilities, obligations,
losses, damages, claims, costs or expenses of any kind or nature whatsoever
which may at any time be imposed on, incurred by, or asserted against, the
Administrative Agent in any way relating to or arising out of this Agreement,
the Notes, the Intercompany Debt Subordination Agreement and any other Loan
Document, including reasonable attorneys' fees, and as to which the
Administrative Agent is not reimbursed by the Borrower; provided, however, that
no Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, claims, costs or expenses which are determined by
a court of competent jurisdiction in a final proceeding to have resulted solely
from the Administrative Agent's gross negligence or wilful misconduct. The
Administrative Agent shall not be required to take any action hereunder, under
the Notes or under any other Loan Document, or to prosecute or defend any suit
in respect of this Agreement, the Notes, the Intercompany Debt Subordination
Agreement or any other Loan Document, unless it is indemnified hereunder to its
satisfaction. If any indemnity in favor of the Administrative Agent shall be
or become, in the Administrative Agent's determination, inadequate, the
Administrative Agent may
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call for additional indemnification from the Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is given.
SECTION X.2 Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York time, on the day prior to a Borrowing that such Lender will
not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent
and, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If and to the extent that such Lender shall not have
made such amount available to the Administrative Agent, such Lender and the
Borrower severally agree to repay the Administrative Agent forthwith on demand
such corresponding amount together with interest thereon, for each day from the
date the Administrative Agent made such amount available to the Borrower to the
date such amount is repaid to the Administrative Agent, at the interest rate
applicable at the time to Loans comprising such Borrowing.
SECTION X.3 Exculpation. Neither the Administrative Agent nor any of
its directors, officers, employees or agents shall be liable to any Lender for
any action taken or omitted to be taken by it under this Agreement, the
Intercompany Debt Subordination Agreement or any other Loan Document, or in
connection herewith or therewith, except for its own wilful misconduct or gross
negligence, nor responsible for any recitals or warranties herein or therein,
nor for the effectiveness, enforceability, validity or due execution of this
Agreement or any other Loan Document, nor to make any inquiry respecting the
performance by the Borrower of its obligations hereunder or under any other
Loan Document. Any such inquiry which may be made by the Administrative Agent
shall not obligate it to make any further inquiry or to take any action. The
Administrative Agent shall be entitled to rely upon advice of counsel
concerning legal matters and upon any notice, consent, certificate, statement
or writing which the Administrative Agent believes to be genuine and to have
been presented by a proper Person.
SECTION X.4 Successor. The Administrative Agent may resign as such
at any time upon at least 30 days' prior notice to the Borrower and all
Lenders. If the Administrative Agent at any time shall resign, the Required
Lenders may appoint another Lender as a successor Administrative Agent which
shall thereupon become the Administrative Agent hereunder. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring
Administrative Agent's giving notice of resignation, then the retiring
Administrative Agent may, on
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behalf of the Lenders, appoint a successor Administrative Agent, which shall be
one of the Lenders or a commercial banking institution organized under the laws
of the U.S. (or any State thereof) or a U.S. branch or agency of a commercial
banking institution, and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall be entitled to receive from the retiring Administrative Agent such
documents of transfer and assignment as such successor Administrative Agent may
reasonably request, and shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Administrative Agent's
resignation hereunder as the Administrative Agent, the provisions of (x) this
Article IX shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent under this Agreement and (y)
Section 10.3 and Section 10.4 shall continue to inure to its benefit.
SECTION X.5 Loans by Scotiabank. Scotiabank shall have the same
rights and powers with respect to (x) the Loans made by it or any of its
Affiliates, and (y) the Notes held by it or any of its Affiliates as any other
Lender and may exercise the same as if it were not the Administrative Agent.
Scotiabank and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Subsidiary or
Affiliate of the Borrower as if Scotiabank were not the Administrative Agent
hereunder.
SECTION X.6 Credit Decisions. Each Lender acknowledges that it has,
independently of the Administrative Agent and each other Lender, and based on
such Lender's review of the financial information of the Borrower, this
Agreement, the other Loan Documents (the terms and provisions of which being
satisfactory to such Lender) and such other documents, information and
investigations as such Lender has deemed appropriate, made its own credit
decision to extend its Commitment. Each Lender also acknowledges that it will,
independently of the Administrative Agent and each other Lender, and based on
such other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under this Agreement or any other Loan Document.
SECTION X.7 Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
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Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION XI.1 Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing and
consented to by the Borrower and the Required Lenders; provided, however, that
no such amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular
action be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this Section, change the definition of "Required
Lenders", change any Commitment Amount or the Percentage of any
Lender, reduce any fees described in Article III, change the schedule
of reductions to the Commitments provided for in Section 2.2.2,
release any guarantor (if any) party to a Loan Document or any
collateral security, except as otherwise specifically provided in any
Loan Document or extend any Commitment Termination Date shall be made
without the consent of each Lender and each holder of a Note; or
(c) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on any
Loan (or reduce the principal amount of or rate of interest on any
Loan) shall be made without the consent of the holder of that Note
evidencing such Loan.
No failure or delay on the part of the Administrative Agent, any Lender or the
holder of any Note in exercising any power or right under this Agreement or any
other Loan Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by the Administrative
Agent, any Lender or the holder of any Note under this Agreement or any other
Loan Document shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or
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approval thereafter to be granted hereunder.
SECTION XI.2 Notices. All notices and other communications provided
to any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party
at its address or facsimile number set forth below its signature hereto or set
forth in the Lender Assignment Agreement or at such other address or facsimile
number as may be designated by such party in a notice to the other parties.
Any notice, if mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed given
when received; any notice, if transmitted by facsimile, shall be deemed given
when transmitted.
SECTION XI.3 Payment of Costs and Expenses. The Borrower agrees to
pay on demand all reasonable expenses of the Administrative Agent (including
the fees and out-of-pocket expenses of counsel to the Administrative Agent and
of local counsel, if any, who may be retained by counsel to the Administrative
Agent) in connection with
(a) the negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document, including schedules
and exhibits, and any amendments, waivers, consents, supplements or
other modifications to this Agreement or any other Loan Document as
may from time to time hereafter be required, whether or not the
transactions contemplated hereby are consummated, and
(b) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save the Administrative Agent and
the Lenders harmless from all liability for, any stamp or other taxes which may
be payable in connection with the execution or delivery of this Agreement, the
Loans made hereunder, or the issuance of the Notes or any other Loan Documents.
The Borrower also agrees to reimburse the Administrative Agent and each Lender
upon demand for all reasonable out-of-pocket expenses (including attorneys'
fees and legal expenses) incurred by the Administrative Agent or such Lender in
connection with (x) the negotiation of any restructuring or "work-out", whether
or not consummated, of any Obligations and (y) the enforcement of any
Obligations.
SECTION XI.4 Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
the Borrower hereby indemnifies, exonerates and holds the Administrative Agent
and each Lender and each of their respective officers, directors, employees and
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agents (collectively, the "Indemnified Parties") free and harmless from and
against any and all actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action
for which indemnification hereunder is sought), including reasonable attorneys'
fees and disbursements (collectively, the "Indemnified Liabilities"), incurred
by the Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties;
(c) any investigation, litigation or proceeding related to
any acquisition or proposed acquisition by the Borrower or any of its
Restricted Subsidiaries of all or any portion of the stock or assets
of any Person, whether or not the Administrative Agent or such Lender
is party thereto;
(d) any investigation, litigation or proceeding related
to any environmental cleanup, audit, compliance or other matter
relating to the protection of the environment or the Release by the
Borrower or any of its Restricted Subsidiaries of any Hazardous
Material; or
(e) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases from,
any real property owned or operated by the Borrower or any Restricted
Subsidiary thereof of any Hazardous Material (including any losses,
liabilities, damages, injuries, costs, expenses or claims asserted or
arising under any Environmental Law), regardless of whether caused by,
or within the control of, the Borrower or such Restricted Subsidiary,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or wilful misconduct. The Borrower and its successors and
assigns hereby waive, release and agree not to make any claim or bring any cost
recovery action against, the Administrative Agent or any Lender under CERCLA or
any state equivalent, or any similar law now existing or hereafter enacted. It
is expressly understood and agreed that to the extent that any of such Persons
is strictly liable under any Environmental Laws, the Borrower's obligation to
such Person under this indemnity shall likewise be without regard to fault on
the part of the Borrower with respect to the
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violation or condition which results in liability of such Person. If and to
the extent that the foregoing undertaking may be unenforceable for any reason,
the Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law.
SECTION XI.5 Survival. The obligations of the Borrower under
Sections 4.3, 4.4, 4.5, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any termination of this Agreement, the
payment in full of all the Obligations and the termination of all the
Commitments. The representations and warranties made by the Borrower in this
Agreement and in each other Loan Document shall survive the execution and
delivery of this Agreement and each such other Loan Document.
SECTION XI.6 Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION XI.7 Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION XI.8 Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be executed by the Borrower and the Administrative Agent and be
deemed to be an original and all of which shall constitute together but one and
the same agreement. This Agreement shall become effective when counterparts
hereof executed on behalf of the Borrower and each Lender (or notice thereof
satisfactory to the Administrative Agent) shall have been received by the
Administrative Agent and notice thereof shall have been given by the
Administrative Agent to the Borrower and each Lender.
SECTION XI.9 Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES, THE INTERCOMPANY DEBT SUBORDINATION AGREEMENT AND EACH OTHER LOAN
DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement, the Notes, the
Intercompany Debt Subordination Agreement and the other Loan Documents
constitute the entire understanding among the parties hereto with respect to
the subject matter hereof and supersede any prior
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agreements, written or oral, with respect thereto.
SECTION XI.10 Successors and Assigns. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the
Lenders are subject to Section 10.11.
SECTION XI.11 Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Commitment to one or more other Persons in accordance with this Section
10.11.
SECTION XI.11.1 Assignments. Any Lender,
(a) with the written consents of the Borrower and the
Administrative Agent (which consents shall not be unreasonably delayed
or withheld) may at any time assign and delegate to one or more
commercial banks or other financial institutions; and
(b) with notice to the Borrower and the Administrative Agent,
but without the consent of the Borrower or the Administrative Agent,
may assign and delegate to any of its Affiliates or to any other
existing Lender
(each Person described in either of the foregoing clauses as being the Person
to whom such assignment and delegation is to be made, being hereinafter
referred to as an "Assignee Lender"), a fraction (not to exceed, in the
aggregate, 49% of such Lender's initial post-syndication Commitment) of such
Lender's total Loans and Commitment (which assignment and delegation shall be
of a constant, and not a varying, percentage of all the assigning Lender's
Loans and Commitment) in a minimum aggregate amount of $5,000,000; provided,
however, that any such Assignee Lender will comply, if applicable, with the
provisions contained in the penultimate sentence of Section 4.5 and further,
provided, however, that, the Borrower, each other Obligor and the
Administrative Agent shall be entitled to continue to deal solely and directly
with such Lender in connection with the interests so assigned and delegated to
an Assignee Lender until
(c) written notice of such assignment and delegation,
together with payment instructions, addresses and related information
with respect to such Assignee Lender, shall have been given to the
Borrower and the Administrative Agent by
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such Lender and such Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to
the Borrower and the Administrative Agent a Lender Assignment
Agreement, accepted by the Administrative Agent; and
(e) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within five Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement, the
Borrower shall execute and deliver to the Administrative Agent (for delivery to
the relevant Assignee Lender) a new Note evidencing such Assignee Lender's
assigned Loans and Commitment and, if the assignor Lender has retained Loans
and Commitment hereunder, a replacement Note in the principal amount of the
Loans and Commitment retained by the assignor Lender hereunder (such Notes to
be in exchange for, but not in payment of, those Notes then held by such
assignor Lender). Each such Note shall be dated the date of the predecessor
Notes. The assignor Lender shall mark the predecessor Notes "exchanged" and
deliver them to the Borrower within five Business Days after delivery of the
new Notes. Accrued interest on that part of the predecessor Notes evidenced by
the new Notes, and accrued fees, shall be paid as provided in the Lender
Assignment Agreement. Accrued interest on that part of the predecessor Notes
evidenced by the replacement Notes shall be paid to the assignor Lender.
Accrued interest and accrued fees shall be paid at the same time or times
provided in the predecessor Notes and in this Agreement. Such assignor Lender
or such Assignee Lender must also pay a processing fee to the Administrative
Agent upon delivery of any Lender Assignment Agreement in the amount of $3,500.
Any attempted assignment and delegation not made in accordance with this
Section 10.11.1 shall be null and void.
SECTION XI.11.2 Participations. Any Lender may at any time sell to
one or more commercial banks or other Persons (each of such commercial banks
and other Persons being herein called a "Participant") participating interests
in any of the Loans, Commitment, or other interests of such Lender hereunder;
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<PAGE> 77
provided, however, that
(a) no participation contemplated in this Section 10.11 shall
relieve such Lender from its Commitment or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitment and such other obligations;
(c) the Borrower and each other Obligor and the
Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations
under this Agreement and each of the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate
of such Lender, or is itself a Lender, shall be entitled to require
such Lender to take or refrain from taking any action hereunder or
under any other Loan Document, except that such Lender may agree with
any Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in clause (b) or (c)
of Section 10.1; and
(e) the Borrower shall not be required to pay any amount
under Section 4.3 or 4.5 that is greater than the amount which it
would have been required to pay had no participating interest been
sold.
The Borrower acknowledges and agrees that, subject to clause (e) above, each
Participant, for purposes of Sections 4.3, 4.4, 4.5, 4.7, 4.8, 10.3 and 10.4,
shall be considered a Lender.
SECTION XI.11.3 Costs. No costs or fees shall be charged to the
Borrower under Section 10.3 or otherwise in connection with an assignment or
participation by any Lender.
SECTION XI.12 Other Transactions. Nothing contained herein shall
preclude the Administrative Agent or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Affiliates in which the Borrower
or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION XI.13 Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE
ADMINISTRATIVE AGENT, THE
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<PAGE> 78
LENDERS OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE BORROWER HEREBY EXPRESSLY AND
IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OF FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE
BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION XI.14 Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS
OR THE BORROWER. THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION
OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS
A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT AND THE LENDERS ENTERING
INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
TCI CABLEVISION OF PUERTO RICO, INC.
By:
-----------------------------------------
Title:
Address: 5619 DTC Parkway
Englewood, Colorado 80111
Facsimile No.: (303) 267-5651
Attention: Thad York
with a copy similarly addressed:
Attention: Elisa L. Fuller
THE BANK OF NOVA SCOTIA,
as the Administrative Agent
By:
-----------------------------------------
Title:
Address: One Liberty Plaza
New York, New York 10006
Facsimile No.: (212) 225-5090
Attention: Margot C. Bright
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<PAGE> 80
PERCENTAGE LENDERS
THE BANK OF NOVA SCOTIA
___%
By:
-----------------------------------------
Title:
Domestic
Office:
-------------------------------------
-------------------------------------
Facsimile No.:
------------------------------
Telecopy No.:
-------------------------------
Attention:
----------------------------------
----------------------------------
LIBOR
Office:
-------------------------------------
-------------------------------------
Facsimile No.:
------------------------------
Telecopy No.:
-------------------------------
Attention:
----------------------------------
----------------------------------
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<PAGE> 81
___% [Name of the Lender]
By:
-----------------------------------------
Title:
Domestic
Office:
-------------------------------------
-------------------------------------
Facsimile No.:
------------------------------
Telecopy No.:
-------------------------------
Attention:
----------------------------------
----------------------------------
LIBOR
Office:
-------------------------------------
-------------------------------------
Facsimile No.:
------------------------------
Telecopy No.:
-------------------------------
Attention:
----------------------------------
----------------------------------
___% [Name of Lender]
By:
-----------------------------------------
Title:
Domestic
Office:
-------------------------------------
-------------------------------------
Facsimile No.:
------------------------------
Telecopy No.:
-------------------------------
Attention:
----------------------------------
----------------------------------
LIBOR
Office:
-------------------------------------
-------------------------------------
Facsimile No.:
------------------------------
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<PAGE> 82
Telecopy No.:
-------------------------------
Attention:
----------------------------------
----------------------------------
___% [Name of the Lender]
By:
-----------------------------------------
Title:
Domestic
Office:
-------------------------------------
-------------------------------------
Facsimile No.:
------------------------------
Telecopy No.:
-------------------------------
Attention:
----------------------------------
----------------------------------
LIBOR
Office:
-------------------------------------
-------------------------------------
Facsimile No.:
------------------------------
Telecopy No.:
-------------------------------
____ Attention:
100% ----------------------------------
----
----------------------------------
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<PAGE> 83
SCHEDULE I
DISCLOSURE SCHEDULE*
ITEM 6.7 FCC and Copyright Matters.
ITEM 6.10 Litigation.
Description of Proceeding Action or Claim Sought
------------------------- ----------------------
ITEM 6.11 Existing Subsidiaries.
State of Ownership Business
Name Incorporation % Description
- ---- ------------- --------- -----------
ITEM 6.13 Taxes.
ITEM 6.14 Employee Benefit Plans.
ITEM 7.2.2(b) Ongoing Indebtedness.
Creditor Outstanding Principal Amount
-------- ----------------------------
ITEM 7.2.5(a) Ongoing Investments.
- -----------------
* Item numbers are keyed to refer to Sections where the item is
principally referred to and will have to be revised as such Sections
are renumbered.
<PAGE> 84
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Section Page
- ------- ----
<S> <C> <C>
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.2 Use of Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1.3 Cross-References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1.4 Accounting and Financial Determinations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE II COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1 Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.1.1 Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.1.2 Lenders Not Permitted or Required To Make the Loans . . . . . . . . . . . . . . . . . . . . . . . . 28
2.2 Reduction of the Commitment Amounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.2.1 Optional . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.2.2 Mandatory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.3 Borrowing Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.4 Continuation and Conversion Elections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.5 Funding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.6 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1 Repayments and Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.2 Interest Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.2.1 Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.2.2 Post-Maturity Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.2.3 Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.3 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.3.1 Commitment Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.3.2 Administrative Agent's Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
ARTICLE IV CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1 Change in Legality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
4.2 Deposits Unavailable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.3 Change in Circumstances; Reserve Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
4.4 Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.5 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.6 Payments, Computations, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.7 Sharing of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
4.8 Setoff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
4.9 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE V CONDITIONS TO BORROWINGS
5.1 Initial Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.1.1 Resolutions, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.1.2 Delivery of Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.1.3 Intercompany Debt Subordination Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.1.4 Acquisition Consummated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.1.5 Pro Forma Financials, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
</TABLE>
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<PAGE> 85
<TABLE>
<S> <C> <C>
5.1.6 Borrower Pledge Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.1.7 Subsidiary Guaranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.1.8 Opinions of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.1.9 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.1.10 Closing Fees, Expenses, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.2 All Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.2.1 Compliance with Warranties, No Default, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.2.2 Borrowing Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.2.3 Satisfactory Legal Form . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE VI REPRESENTATIONS AND WARRANTIES
6.1 Organization, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6.2 Due Authorization, Non-Contravention, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
6.3 Validity, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.4 Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.5 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.6 Compliance with Applicable Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.7 FCC and Copyright Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.8 Franchises, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6.9 Government Approval, Regulation, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.10 Litigation, Labor Controversies, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.11 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.12 Ownership of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.13 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.15 Environmental Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.16 Regulations G, U and X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.17 Accuracy of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE VII COVENANTS
7.1 Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
7.1.1 Financial Information, Reports, Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
7.1.2 Compliance with Laws, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.1.3 Maintenance of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
7.1.4 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.1.5 Books and Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.1.6 Environmental Covenant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.1.7 Future Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.1.8 Additional Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
7.2 Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.2.1 Business Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
7.2.2 Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
7.2.3 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
7.2.4 Financial Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.2.5 Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
7.2.6 Restricted Payments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
7.2.7 Rental Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7.2.8 Consolidation, Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.2.9 Asset Dispositions, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.2.10 Modification of Certain Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
7.2.11 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
7.2.12 Negative Pledges, Restrictive Agreements, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE VIII EVENTS OF DEFAULT
8.1 Listing of Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
8.1.1 Non-Payment of Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.1.2 Breach of Warranty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.1.3 Non-Performance of Certain Covenants and Obligations . . . . . . . . . . . . . . . . . . . . . . . . 66
8.1.4 Non-Performance of Other Covenants and Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.1.5 Default on Other Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.1.6 Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
8.1.7 Pension Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
8.1.8 Control of the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
8.1.9 Bankruptcy, Insolvency, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
8.2 Action if Bankruptcy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
8.3 Action if Other Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
ARTICLE IX THE ADMINISTRATIVE AGENT
9.1 Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
9.2 Funding Reliance, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
9.3 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
9.4 Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
9.5 Loans by Scotiabank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.6 Credit Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
9.7 Copies, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
ARTICLE X MISCELLANEOUS PROVISIONS
10.1 Waivers, Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.3 Payment of Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.4 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.5 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
10.6 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.8 Execution in Counterparts, Effectiveness, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.9 Governing Law; Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.10 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
10.11 Sale and Transfer of Loans and Notes; Participations in Loans and Notes . . . . . . . . . . . . . . 76
10.11.1 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
10.11.2 Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
10.11.3 Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.12 Other Transactions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.13 Forum Selection and Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
10.14 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
</TABLE>
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SCHEDULE I - Disclosure Schedule
EXHIBIT A - Form of Note
EXHIBIT B - Form of Intercompany Debt Subordination Agreement
EXHIBIT C - Form of Compliance Certificate
EXHIBIT D - Form of Borrowing Request
EXHIBIT E - Form of Continuation/Conversion Notice
EXHIBIT F - Form of Lender Assignment Agreement
EXHIBIT G - Form of International Pledge Agreement
EXHIBIT H - Form of Borrower Pledge Agreement
EXHIBIT I - Form of Subsidiary Guaranty
EXHIBIT J - Form of Opinion of Counsel to the Borrower
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EXHIBIT A
NOTE
$
----------- ----- --, ----
FOR VALUE RECEIVED, the undersigned, TCI CABLEVISION OF PUERTO RICO,
INC., a Delaware corporation (the "Borrower"), promises to pay to the order of
_______________________ (the "Lender") on March 31, 2006, the principal sum of
___________ _______ DOLLARS ($___________) or, if less, the aggregate unpaid
principal amount of all Loans (and any continuation thereof) made by the Lender
pursuant to that certain Credit Agreement, dated as of April 30, 1997 (together
with all amendments and other modifications, if any, from time to time
thereafter made thereto, the "Credit Agreement"), among the Borrower, THE BANK
OF NOVA SCOTIA, as Administrative Agent, and the various financial institutions
(including the Lender) as are, or may from time to time become, parties
thereto.
The Borrower also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until maturity
(whether by acceleration or otherwise) and, after maturity, until paid, at the
rates per annum and on the dates specified in the Credit Agreement.
Payments of both principal and interest are to be made in lawful money
of the United States of America in same day or immediately available funds to
the account designated by the Administrative Agent pursuant to the Credit
Agreement.
This Note is one of the Notes referred to in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a statement of the terms and conditions on which the Borrower is permitted
and required to make prepayments and repayments of principal of the
Indebtedness evidenced by this Note, on which the Borrower is required to
collateralize such Indebtedness and on which such Indebtedness may be declared
to be immediately due and payable. Unless otherwise defined, terms used herein
have the meanings provided in the Credit Agreement.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of
dishonor.
<PAGE> 89
THIS NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
TCI CABLEVISION OF PUERTO RICO, INC.
By
----------------------------------
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<PAGE> 90
EXHIBIT B
INTERCOMPANY SUBORDINATION AGREEMENT
THIS INTERCOMPANY SUBORDINATION AGREEMENT (this "Subordination
Agreement"), dated as of ________, ____, made by and among each of the
undersigned Persons (such capitalized term, and other terms used herein without
definition, to have the meanings ascribed thereto in Section 1 below) and such
other Persons that may from time to time become a party hereto pursuant to the
terms hereof or of the Credit Agreement referred to below (collectively, the
"Subordinated Creditors"), and TCI CABLEVISION OF PUERTO RICO, INC., a Delaware
corporation (the "Borrower"), in favor of the Administrative Agent and each of
the Lenders,
W I T N E S S E T H:
WHEREAS, the Borrower has entered into a Credit Agreement, dated as of
April 30, 1997 (as amended, supplemented, amended and restated or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
various financial institutions as are, or may from time to time become, parties
thereto (together with their successors, transferees and assigns, the
"Lenders") and The Bank of Nova Scotia, as administrative agent (the
"Administrative Agent") for the Lenders, pursuant to which the Lenders have
agreed to make Loans on the terms and subject to the conditions set forth
therein;
WHEREAS, as a condition precedent to the making of the Loans
(including the initial Borrowing) under the Credit Agreement, the Subordinated
Creditors and the Borrower are required to execute and deliver this
Subordination Agreement;
WHEREAS, each Subordinated Creditor has duly authorized the execution,
delivery and performance of this Subordination Agreement; and
WHEREAS, it is in the best interests of each Subordinated Creditor to
execute this Subordination Agreement inasmuch as each Subordinated Creditor
will derive substantial direct and indirect benefits from the Loans made from
time to time to the Borrower by the Lenders pursuant to the Credit Agreement;
NOW, THEREFORE, in consideration of the above premises and in order to
induce the Lenders to continue to make Loans to the Borrower pursuant to the
Credit Agreement, and for other good and
<PAGE> 91
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as set forth above and as
follows:
AGREEMENT
SECTION 2. Definitions. Terms used but not defined herein have the
meanings given to them in the Credit Agreement. As used in this Subordination
Agreement, the following terms shall have the meanings specified below:
"Administrative Agent" is defined in the first recital.
"Borrower" is defined in the preamble.
"Credit Agreement" is defined in the first recital.
"Intercompany Debt" means, on any date, any Indebtedness of the
Borrower or any of its Restricted Subsidiaries related to or resulting from any
loan or advance from, or any non-equity investment by, or any management or
similar fees payable to, or any obligation to pay for goods or services to, an
Affiliate of the Borrower (excluding, however, any obligation of the Borrower
or a Restricted Subsidiary (x) in respect of Cash Management Advances and (y)
to pay for programming arising out of a transaction entered into in the
ordinary course of the Borrower's or such Restricted Subsidiary's business with
an Affiliate of the Borrower).
"Lender" is defined in the first recital.
"Senior Indebtedness" is defined in clause (a) of Section 2.
"Subordinated Creditor" is defined in the preamble.
"Subordination Agreement" is defined in the preamble.
SECTION 3. Agreement to Subordinate.
(a) The Borrower and each of the Subordinated Creditors agree
that the Intercompany Debt is and shall be subject, subordinate and
rendered junior, to the extent and in the manner hereinafter set
forth, in right of payment, to the prior payment in cash in full of
all Obligations of the Borrower now existing or hereafter arising,
whether for (i) principal, (ii) interest (including, without
limitation, interest accruing after the filing of a petition
initiating any proceeding referred to in clause (a) of Section 3,
whether or not allowed as a claim in such proceeding), (iii)
reasonable costs, (iv) reasonable fees (including, without limitation,
reasonable attorneys' fees and disbursements),
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(v) reasonable expenses, and (vi) otherwise (the Obligations specified
in clauses(a)(i) through (a)(vi) above are referred to collectively as
the "Senior Indebtedness"). For purposes of this Subordination
Agreement, the Senior Indebtedness shall not be deemed to have been
paid in cash in full until the Lenders shall have received full
payment of the Senior Indebtedness in cash, which payment shall have
been retained by the Lenders for a period of time in excess of all
applicable preference or other similar periods under applicable
bankruptcy, insolvency or creditors' rights laws. Each of the Borrower
and the Subordinated Creditors waive notice of acceptance of this
Subordination Agreement by the Lenders, and the Subordinated Creditors
waive notice of and consent to the making, amount and terms of the
Senior Indebtedness which may exist or be created from time to time
and any renewal, extension, amendment or modification thereof, and any
other lawful action which any Lender or Lenders in its and their sole
and absolute discretion may take or omit to take with respect thereto.
The provisions of this Section shall constitute a continuing offer
made for the benefit of and to all Lenders and each Lender is hereby
irrevocably authorized to enforce such provisions.
(b) In the event that the Borrower shall make, and/or any
Subordinated Creditor shall receive from any source whatsoever, any
payment on Intercompany Debt in contravention of this Subordination
Agreement or the terms of the Credit Agreement, then and in any such
event such payment shall be deemed to be the property of, segregated,
received and held in trust for the benefit of and shall be promptly
paid over and delivered to the Administrative Agent for the pro rata
benefit of the Lenders.
(c) The Borrower shall not make, and no Subordinated Creditor
shall receive or accept from any source whatsoever, any payment in
respect of any Intercompany Debt if any Default of the type described
in Section 8.1.1 or 8.1.9 of the Credit Agreement or Event of Default
shall have occurred and be continuing or would result therefrom,
unless and until (i) the Senior Indebtedness has been paid in cash in
full, (ii) in the case of an Event of Default referred to above other
than a Default of the nature set forth in Section 8.1.9 of the Credit
Agreement, such Event of Default has been cured or waived or (iii) the
Administrative Agent has otherwise consented in writing.
SECTION 4. In Furtherance of Subordination.
(a) Upon any distribution of all or any of the assets of the
Borrower in the event of
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<PAGE> 93
(i) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative
to the Borrower, or to its creditors, as such, or to its
assets,
(ii) any liquidation, dissolution or other winding
up of the Borrower, whether voluntary or involuntary and
whether or not involving insolvency or bankruptcy, or
(iii) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the
Borrower,
then, and in any such event, unless the Administrative Agent shall
otherwise agree in writing, the Lenders shall receive payment in cash
in full of all amounts due or to become due (whether or not the Senior
Indebtedness has been declared due and payable prior to the date on
which the Senior Indebtedness would otherwise have become due and
payable) on or in respect of all Senior Indebtedness (including
post-petition interest) before the Subordinated Creditors or anyone
claiming through or on their behalf (including any receiver, trustee,
or otherwise) are entitled to receive from any source whatsoever any
payment on account of principal of (or premium, if any) or interest on
or other amounts payable in respect of the Intercompany Debt, and to
that end, any payment or distribution of any kind or character,
whether in cash, property or securities, which may be payable or
deliverable in respect of the Intercompany Debt in any such case,
proceeding, dissolution, liquidation or other winding up or event,
shall be paid or delivered directly to the Administrative Agent for
the application (in the case of cash) to, or as collateral (in the
case of non-cash property or securities) for, the payment or
prepayment of the Senior Indebtedness until the Senior Indebtedness
shall have been paid in cash in full.
(b) If any proceedings, liquidation, dissolution or winding
up referred to in clause (a) above is commenced by or against the
Borrower,
(i) the Administrative Agent or the Lenders are
hereby irrevocably authorized and empowered (in their own
names or in the name of the Borrower or otherwise), but shall
have no obligation, to demand, sue for, collect and receive
every payment or distribution in respect of the Intercompany
Debt above and give acquittance therefor and to file claims
and proofs of claim and take such other action (including,
without limitation, voting the Intercompany Debt or enforcing
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any security interest or other lien securing payment of the
Intercompany Debt) as the Lenders or the Administrative Agent
may reasonably deem necessary or advisable for the exercise
or enforcement of any of the rights or interests of the
Lenders or the Administrative Agent hereunder; provided that
in the event the Administrative Agent or the Lenders take
such action, the Administrative Agent or the Lenders shall
apply all proceeds first, to the payment of the costs of
enforcement of this Subordination Agreement, and second, to
the pro rata payment of the Senior Indebtedness; and
(ii) the Subordinated Creditors shall duly and
promptly take such action as the Lenders or the
Administrative Agent may request (A) to collect the
Intercompany Debt for the account of the Lenders and the
Administrative Agent and to file appropriate claims or proofs
of claim in respect of the Intercompany Debt, (B) to execute
and deliver to the Lenders or the Administrative Agent such
powers of attorney, assignments, or other instruments as the
Lenders or the Administrative Agent may reasonably request in
order to enable them to enforce any and all claims with
respect to, and any security interests and other liens
securing payment of, the Intercompany Debt and (C) to collect
and receive any and all payments or distributions which may
be payable or deliverable upon or with respect to the
Intercompany Debt.
(c) All payments from any source whatsoever or distributions
of assets of the Borrower, whether in cash, property or securities
upon or with respect to the Intercompany Debt which are received by
the Subordinated Creditors contrary to the provisions of this
Subordination Agreement shall be received in trust for the pro rata
benefit of the Lenders, shall be segregated from other funds and
property held by the Subordinated Creditors and shall be forthwith
paid over to the Administrative Agent in the same form as so received
(with any necessary indorsement) to be applied, pro rata (in the case
of cash) to, or held as collateral (in the case of noncash property or
securities) for, the payment or prepayment of the Senior Indebtedness,
whether matured or unmatured, in accordance with the terms of this
Subordination Agreement.
(d) The Lenders and the Administrative Agent are hereby
authorized to demand specific performance of this Subordination
Agreement, whether or not the Borrower or any Subordinated Creditor
shall have complied with any of the provisions hereof applicable to
it, at any time when the Subordinated Creditors or any one of them
shall have failed
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to comply with any of the provisions of this Subordination Agreement
applicable to it. The Subordinated Creditors hereby irrevocably waive
any defense (other than the defense of payment in full of the Senior
Indebtedness) based on the adequacy of a remedy at law which might be
asserted as a bar to such remedy of specific performance.
SECTION 5. No Enforcement or Commencement of Any Proceedings. Each
Subordinated Creditor agrees that, so long as any Senior Indebtedness shall
remain unpaid, or any Commitment shall be in effect, it will not accelerate the
maturity of the Intercompany Debt or commence, or join with any creditor other
than the Lenders in commencing any proceeding referred to in clause (a) of
Section 3.
SECTION 6. Rights of Subrogation. The Subordinated Creditors agree
that no payment or distribution to the Lenders or the Administrative Agent
pursuant to the provisions of this Subordination Agreement shall entitle the
Subordinated Creditors to exercise any rights of subrogation in respect thereof
until all Senior Indebtedness has been paid in cash in full and the Commitments
have been terminated. The Subordinated Creditors agree that the subordination
provisions contained herein shall not be affected by any action, or failure to
act, by the Administrative Agent or the Lenders which results, or may result,
in affecting, impairing or extinguishing any right of reimbursement or
subrogation or other right or remedy of the Subordinated Creditors against the
Borrower.
SECTION 7. Subordination Legend; Further Assurances. The Subordinated
Creditors and the Borrower will cause each note and instrument (if any)
evidencing the Intercompany Debt to be endorsed with the following legend:
"The indebtedness evidenced by this instrument is
subordinated to the prior payment in cash in full of the Senior
Indebtedness (as defined in the Intercompany Subordination Agreement,
dated as of April 30, 1997) pursuant to, and to the extent provided
in, the Intercompany Subordination Agreement by the maker hereof and
payee named herein in favor of the Lenders and any person now or
hereafter designated as their agent."
Each of the Subordinated Creditors and the Borrower hereby agrees to mark its
books of account in such a manner as shall be effective to give proper notice
of the effect of this Subordination Agreement and will, in the case of any
Intercompany Debt which is not evidenced by any note or instrument, following
the occurrence and subject to the continuation of a Default of the type
described in Section 8.1.1 or 8.1.9 of the Credit Agreement or Event of
Default, upon the Administrative Agent's
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request, cause such Intercompany Debt to be evidenced by an appropriate note or
instrument or instruments endorsed with the above legend. Each of the
Subordinated Creditors and the Borrower will at its expense and at any time and
from time to time promptly execute and deliver all further instruments and
documents and take all further action that may be necessary or that the Lenders
or the Administrative Agent may reasonably request in order to protect any
right or interest granted or purported to be granted hereunder or to enable the
Lenders or the Administrative Agent to exercise and enforce their rights and
remedies hereunder.
SECTION 8. No Change in or Disposition of Intercompany Debt. The
Subordinated Creditors will not, without the prior written consent of the
Administrative Agent:
(a) sell, assign to any Person other than a Subordinated
Creditor, transfer, endorse, pledge, encumber or otherwise dispose of
any of the Intercompany Debt;
(b) permit the terms of any of the Intercompany Debt to be
changed in such a manner as to have a material adverse effect upon the
rights or interests of the Lenders or the Administrative Agent; or
(c) upon the occurrence and during the continuation of any
Default of the type described in Section 8.1.1 or 8.1.9 of the Credit
Agreement or Event of Default, take, or permit to be taken, any action
to assert, collect or enforce the Intercompany Debt or any part
thereof.
SECTION 9. Agreement by the Borrower. The Borrower agrees that it will
not make any payment on any of the Intercompany Debt, or take any other action,
in contravention of the provisions of this Subordination Agreement.
SECTION 10. Obligations Hereunder Not Affected. All rights and
interest of the Lenders and the Administrative Agent hereunder, and all
agreements and obligations of the Subordinated Creditors and the Borrower
hereunder, shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any document
evidencing Senior Indebtedness;
(b) any change in the time, manner or place of payment of, or
any other term of, all or any of the Senior Indebtedness, or any other
amendment or waiver of or any consent to departure from any of the
documents evidencing or relating to the Senior Indebtedness;
(c) any exchange, release or non-perfection of any
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<PAGE> 97
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty or Loan Document, for all or any of the
Senior Indebtedness;
(d) any failure of any Lender or the Administrative Agent to
assert any claim or to enforce any right or remedy against any other
party hereto under the provisions of this Subordination Agreement, the
Credit Agreement or any other Loan Document other than this
Subordination Agreement;
(e) any reduction, limitation, impairment or termination of
the Senior Indebtedness for any reason (other than the defense of
payment in full of the Senior Indebtedness), including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and the Borrower and each Subordinated Creditor hereby
waive any right to or claim of) any defense (other than the defense of
payment in full of the Senior Indebtedness) or setoff, counterclaim,
recoupment or termination whatsoever by reason of invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Senior
Indebtedness; and
(f) any other circumstance which might otherwise constitute a
defense (other than the defense of payment in full of the Senior
Indebtedness) available to, or a discharge of, the Borrower in respect
of the Senior Indebtedness or the Subordinated Creditors in respect of
this Subordination Agreement.
This Subordination Agreement shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the Senior
Indebtedness is rescinded or must otherwise be returned by any Lender or the
Administrative Agent upon the insolvency, bankruptcy or reorganization of the
Borrower or otherwise, all as though such payment had not been made. The
Subordinated Creditors acknowledge and agree that the Lenders and the
Administrative Agent may in accordance with the terms of the Credit Agreement,
without notice or demand and without affecting or impairing the Subordinated
Creditors' obligations hereunder, from time to time (i) renew, compromise,
extend, increase, accelerate or otherwise change the time for payment of, or
otherwise change the terms of the Senior Indebtedness or any part thereof,
including, without limitation, to increase or decrease the rate of interest
thereon or the principal amount thereof; (ii) take or hold security for the
payment of the Senior Indebtedness and exchange, enforce, foreclose upon, waive
and release any such security; (iii) apply such security and direct the order
or manner of sale thereof as the Administrative Agent and the Lenders, in their
sole discretion, may determine; (iv) release and substitute one or more
endorsers, warrantors,
-8-
<PAGE> 98
borrowers or other obligors; and (v) exercise or refrain from exercising any
rights against the Borrower or any other Person.
SECTION 11. Representations and Warranties. Each of the Subordinated
Creditors, in respect of itself and the Intercompany Debt owing to it, and the
Borrower, as the case may be, hereby represents and warrants as follows:
(a) the Subordinated Creditors own the Intercompany Debt now
outstanding free and clear of any Lien other than pursuant to any
General Security Agreement then in effect;
(b) this Subordination Agreement constitutes a legal, valid
and binding obligation of each Subordinated Creditor and the Borrower,
enforceable in accordance with its terms (subject to the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good
faith and fair dealing).
SECTION 12. Amendments, Waivers. No amendment or waiver of any
provision of this Subordination Agreement nor consent or any departure by the
Subordinated Creditors or the Borrower herefrom, shall in any event be
effective unless the same shall be in writing and signed by the Administrative
Agent and the other parties hereto, and then such waiver, amendment or consent
shall be effective only in the specific instance and for the specific purpose
for which given. Any waiver, forbearance, failure or delay by the
Administrative Agent or the Lenders in exercising, or the exercise or beginning
of exercise by the Administrative Agent or the Lenders of, any right, power or
remedy, simultaneous or later shall not preclude the further, simultaneous or
later exercise thereof, and every right, power or remedy of the Administrative
Agent and the Lenders shall continue in full force and effect until such right,
power or remedy is specifically waived in a writing executed or authorized by
such Lenders.
SECTION 13. Expenses. The Subordinated Creditors and the Borrower
jointly and severally agree to pay, upon demand, to the Administrative Agent or
the Lenders, as applicable, any and all reasonable costs and expenses,
including, without limitation, reasonable attorneys' fees and disbursements
which the Lenders or the Administrative Agent may incur in connection with the
exercise or enforcement of any of the rights or interest of the Lenders or the
Administrative Agent hereunder.
SECTION 14. Address for Notices. All notices and other communications
provided for hereunder shall be in writing and, if to the Subordinated
Creditors, mailed (registered or certified, return receipt requested) or
telecopied or hand delivered to it
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<PAGE> 99
at its address set forth below its name on the signature pages hereto, if to
the Borrower, the Administrative Agent or any Lender, mailed (registered or
certified, return receipt requested) or hand delivered to it, addressed to it
the address of the Borrower or such Lender or the Administrative Agent (as the
case may be) listed in the Credit Agreement, or as to each party or other
Person at such other address as shall be designated by such party or Person in
a written notice to each other party complying as to delivery with the terms of
this Section. All such notices and communications shall be effective when
received, if sent by mail or delivery service or when transmitted by telecopy,
each in the manner provided above.
SECTION 15. Entire Agreement; Severability. This Subordination
Agreement contains the entire subordination agreement among the parties hereto
with respect to the subject matter hereof. If any of the provisions of this
Subordination Agreement shall be held invalid or unenforceable, this
Subordination Agreement shall be construed as if not containing those
provisions, and the rights and obligations of the parties hereto shall be
construed and enforced accordingly.
SECTION 16. Cumulative Rights. The rights, powers and remedies of the
Lenders and the Administrative Agent under this Subordination Agreement shall
be in addition to all rights, powers and remedies given to the Lenders and the
Administrative Agent by virtue of any contract, statute or rule of law, all of
which rights, powers and remedies shall be cumulative and may be exercised
successively or concurrently. The parties hereto expressly acknowledge and
agree that the Lenders and the Administrative Agent are intended, and by this
reference expressly made, third party beneficiaries of the provisions of this
Subordination Agreement.
SECTION 17. Continuing Agreement; Transfer of Notes. This
Subordination Agreement is a continuing agreement of subordination and the
Lenders may, from time to time and without notice to the Subordinated
Creditors, extend credit to or make other financial arrangements with the
Borrower in reliance hereon. This Subordination Agreement shall (a) remain in
full force and effect until the Senior Indebtedness shall have been paid in
cash in full and all Commitments terminated, (b) be binding upon the
Subordinated Creditors, the Borrower and their respective successors,
transferees and assigns, and (c) inure to the benefit of and be enforceable by
the Administrative Agent and each Lender and their respective successors,
transferees and assigns. Without limiting the generality of the foregoing, any
Lender may, subject to the provisions of the Credit Agreement, assign or
otherwise transfer the Senior Indebtedness held by it to any other Person,
subject to Section 10.11.1 of the Credit Agreement and such other Person shall
thereupon become vested with all the rights in respect thereof granted to such
Lender
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<PAGE> 100
herein or otherwise.
SECTION 18. Governing Law. THIS SUBORDINATION AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
SECTION 18. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
SUBORDINATION AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT
OR ANY OF THE LENDERS OR ANY SUBORDINATED CREDITOR OR THE BORROWER SHALL BE
BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE
BORROWER AND EACH SUBORDINATED CREDITOR HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGEMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE
BORROWER AND EACH SUBORDINATED CREDITOR HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE BORROWER OR SUCH
SUBORDINATED CREDITOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH OF THE BORROWER AND
EACH OF SUCH SUBORDINATED CREDITORS HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN
RESPECT OF ITS OBLIGATIONS UNDER THIS SUBORDINATION AGREEMENT.
SECTION 19. Waiver of Jury Trial. THE BORROWER AND EACH SUBORDINATED
CREDITOR AND, BY ACCEPTING THIS SUBORDINATION AGREEMENT AND THE BENEFITS
THEREOF, THE ADMINISTRATIVE AGENT AND ANY LENDER HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION
WITH, THIS SUBORDINATION AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE BORROWER OR SUCH
SUBORDINATED CREDITOR AND EACH
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<PAGE> 101
SUCH PERSON ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE LENDERS CONTINUING TO MAKE LOANS THE CREDIT AGREEMENT AND
FOR THE SUBORDINATED CREDITOR ENTERING INTO THIS SUBORDINATION AGREEMENT .
SECTION 20. Execution in Counterparts. This Subordination Agreement
may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and the
same agreement.
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<PAGE> 102
IN WITNESS WHEREOF, the parties have caused this Subordination
Agreement to be duly executed and delivered as of the date first above written.
TCI CABLEVISION OF PUERTO RICO, INC.
By:
-----------------------------------
Name:
Title:
Address:
------------------------------
------------------------------
Facsimile No.: (___) ___-____
Attention:
----------------------------
[THE SUBORDINATED CREDITOR'S FULL NAME]
By:
-----------------------------------
Name:
Title:
Address:
------------------------------
------------------------------
Facsimile No.: (___) ___-____
Attention:
----------------------------
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<PAGE> 103
EXHIBIT C
COMPLIANCE CERTIFICATE
The Bank of Nova Scotia,
as Administrative Agent
One Liberty Plaza
New York, New York 10006
Attention: Margot C. Bright
TCI CABLEVISION OF PUERTO RICO, INC.
Gentlemen:
This Compliance Certificate is delivered to you pursuant to Section
{5.1.5}{7.1.1} of the Credit Agreement, dated as of April 30, 1997 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
"Credit Agreement"), among TCI Cablevision of Puerto Rico, Inc., a Delaware
corporation (the "Borrower"), the various financial institutions as are or may
become parties thereto (collectively, the "Lenders"), and The Bank of Nova
Scotia acting through certain of its U.S. branches or agencies ("Scotiabank"),
as administrative agent (the "Administrative Agent") for the Lenders. Unless
otherwise defined in this Compliance Certificate, terms used herein (including
the Attachments hereto) have the meanings provided in the Credit Agreement.
Each reference to a Section is to the relevant Section of the Credit Agreement.
The Borrower hereby certifies and warrants that this Compliance
Certificate has been calculated {on a pro forma basis as if the Loans to be
made on the date of the initial Borrowing had been made, and the Reorganization
and Acquisition had occurred, as of December 31, 1996}{as of _______,____}(the
"Computation Date"):
1. Certain Indebtedness.
(a) The aggregate outstanding principal amount of all
Indebtedness of the Borrower and its Restricted Subsidiaries
(x) to a vendor of any assets to finance the acquisition
thereof was $_________ and (y) in respect of Capitalized
Lease Liabilities was $_______.
The maximum aggregate principal amount of all such
Indebtedness permitted by clause (k) of Section 7.2.2 to be
outstanding pursuant to clauses (c) and (e) of
<PAGE> 104
such Section is $10,000,000 and, accordingly, the limitation
of such clause (k) has [not] been satisfied.
(b) The aggregate outstanding principal amount of all
Subordinated Intercompany Working Capital Debt was $_______.
The maximum aggregate principal amount of Subordinated
Intercompany Working Capital Debt permitted by clause (g)(ii)
of Section 7.2.2 to be outstanding is $7,500,000, and,
accordingly, the limitation of such clause (g)(ii) has [not]
been satisfied.
(c) The aggregate outstanding principal amount of all unsecured
Indebtedness of the Borrower and its Restricted Subsidiaries
not otherwise permitted pursuant to any of clauses (a)
through (h) of Section 7.2.2 was $____________.
The maximum aggregate principal amount of all such
Indebtedness permitted by clause (i) of Section 7.2.2 to be
outstanding is $10,000,000, and, accordingly, the limitation
of such clause (i) has [not] been satisfied.
2. Financial Covenants.
(a) The Leverage Ratio was _____:1.00, as computed on Attachment
1 hereto.
The maximum Leverage Ratio then permitted by clause (a) of
Section 7.2.4 is _____:1.00, and, accordingly, the
requirement of such clause (a) has [not] been satisfied.
(b) The Annualized Cash Flow to Interest Expense Ratio was
_____:1.00, as computed on Attachment 2 hereto.
The minimum Annualized Cash Flow to Interest Expense Ratio
permitted by clause (b) of Section 7.2.4 is 2.00:1.00, and,
accordingly, the requirement of such clause has [not] been
satisfied.
(c) The Annualized Cash Flow to Pro-Forma Debt Service Ratio was
_____:1.00, as computed on Attachment 3 hereto.
The minimum Annualized Cash Flow to Pro-Forma Debt Service
Ratio permitted by clause (c) of Section 7.2.4 is 1.15:1.00,
and, accordingly, the requirement of such clause has [not]
been satisfied.
3. Investments. {At no time during the Fiscal Quarter ending
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<PAGE> 105
on the Computation Date did the Leverage Ratio exceed 4.50:1.00
(including on a pro forma basis after making any Investment pursuant
to clause (f) of Section 7.2.5.}{At all times during the Fiscal
Quarter ending on the Computation Date when the Leverage Ratio
exceeded 4.50:1.00 (including on a pro forma basis after making any
Investment pursuant to clause (f) of Section 7.2.5), the aggregate
amount of Investments made by the Borrower and its Restricted
Subsidiaries pursuant to clause (f), together with all such
Investments made prior to the commencement of such Fiscal Quarter when
the Leverage Ratio shall have exceeded 4.50:1.00 (including on a pro
forma basis as aforesaid) which shall not have been followed by an
interval in time when the Leverage Ratio shall have been less than
4.50:1.00 (including on a pro forma basis as aforesaid), was
$__________, excluding, however, the amount of all such Investments
made from time to time in accordance with clause (f)(i) of Section
7.2.5.
The maximum amount of such Investments permitted by clause (f)(ii) of
Section 7.2.5 by the Borrower and its Restricted Subsidiaries was
limited to $10,000,00, and, accordingly, the limitation of such clause
has [not] been satisfied.}
4. Restricted Payments. The Borrower and its Restricted Subsidiaries
[have][have not] made payments of the nature expressly prohibited by
the provisions of Section 7.2.6, and, accordingly, the limitations of
Section 7.2.6 have [not] been satisfied.
5. Rental Obligations. The aggregate amount of rental obligations of the
Borrower and its Restricted Subsidiaries under arrangements (other
than those giving rise to Capitalized Lease Liabilities) involving the
leasing of real or personal property (excluding, however, maintenance,
repairs, insurance, taxes, assessments and other similar charges)
payable during any Fiscal Year is $_________ and during the remaining
terms of such arrangements is $___________.
The maximum aggregate amount of such rental obligations of the
Borrower and its Restricted Subsidiaries permitted by Section 7.2.7 to
be payable during any Fiscal year is $__________ and during the
remaining terms of such arrangements is $_________, and, accordingly,
the limitations of Section 7.2.7 have [not] been satisfied.
6. Absence of other Defaults. Except as disclosed in Items 1 through 5 of
this Certificate or in Attachment 4 hereto, no Default had occurred
and was continuing on the Computation Date.
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<PAGE> 106
IN WITNESS WHEREOF, the Borrower has caused this Certificate to be
duly executed and delivered by its chief executive, financial or accounting
Authorized Officer this ___ day of _____, ____.
TCI CABLEVISION OF PUERTO RICO, INC.
By
-----------------------------------
Title:
Name:
-4-
<PAGE> 107
ATTACHMENT 1
(to __/__/__ Compliance
Certificate)
LEVERAGE RATIO
on ________, ____ (the "Computation Date")
<TABLE>
<S> <C>
1. The outstanding principal amount of all Indebtedness of the Borrower and its Restricted $_______
Subsidiaries (excluding, however, any liabilities which are treated as Indebtedness
solely in accordance with clause (d) or (f) of such term)................................
2. Subordinated Intercompany Debt........................................................... $_______
3. Debt: Item 1 minus Item 2............................................................... $_______
4. Operating income of the Borrower and its Restricted Subsidiaries for the Fiscal Quarter $_______
ending on the Computation Date determined in accordance with GAAP and consistently with
the 1996 Audited Financials..............................................................
5. To the extent not deducted in determining Item 4, $_______
(a) management fees.................................................................
(b) adjustments for certain specified transactions occurring during the Fiscal $_______
Quarter ending on the Computation Date..........................................
(c) sum of Items 5(a) and 5(b)...................................................... $_______
6. Operating Income: Item 4 minus Item 5(c)................................................ $_______
7. To the extent reflected in Item 6, $_______
(a) Operating Income attributable to Unrestricted Subsidiaries......................
(b) as a contribution to Operating Income, deferred management fees and non-cash $_______
charges.........................................................................
(c) extra-ordinary or non-recurring gains........................................... $_______
(d) sum of Items 7 (a) through 7 (c)................................................ $_______
$_______
8. To the extent not deducted in determining Item 6, adjustments for certain specified
transactions occurring during the Fiscal Quarter.........................................
</TABLE>
<PAGE> 108
<TABLE>
<S> <C>
9. Sum of Item 7(d) plus Item 8............................................................. $_______
10. To the extent deducted in determining Item 6,
(a) depreciation, amortization, deferred management fees and other non-cash charges. $_______
(b) extra-ordinary or non-recurring losses.......................................... $_______
(c) sum of Item 9(a) plus Item 9(b)................................................. $_______
11. Cash Flow: Item 6 minus Item 9 plus Item 10(c).......................................... $_______
12. Item 11 multiplied by four............................................................... $_______
13. Tax expense of the Borrower and its Restricted Subsidiaries for the four Fiscal Quarters $_______
ending on the Computation Date...........................................................
14. To the extent included in Item 11
(a) deferred taxes.................................................................. $_______
(b) capital gains taxes resulting from the sale or other disposition of assets...... $_______
(c) Sum of Item 14(a) and Item 14(b)................................................ $_______
15. Item 13 minus Item 14(c)................................................................. $_______
16. Annualized Cash Flow: Excess of Item 11 over Item 15..................................... $_______
17. Leverage Ratio: ratio of Item 3 to Item 16.............................................. __:1.00
</TABLE>
<PAGE> 109
ATTACHMENT 2
(to __/__/__ Compliance
Certificate)
ANNUALIZED CASH FLOW TO INTEREST EXPENSE RATIO
on ________, ____ (the "Computation Date")
<TABLE>
<S> <C>
1. Annualized Cash Flow (from Attachment 1, Item 16) .............................. $_______
2. The total interest expense of the Borrower and its Restricted Subsidiaries on a $_______
consolidated basis, whether paid or accrued (including the interest component of
Capitalized Lease Liabilities), for the 12 month period ending on the
Computation Date................................................................
3. To the extent included in Item 2, $_______
(a) interest expense not payable in cash (including amortization of
discount)..............................................................
(b) interest accrued and not paid on Subordinated Intercompany Debt........ $_______
(c) sum of Items 3 (a) and 3 (b)........................................... $_______
4. To the extent not deducted in determining Item 2, adjustments for certain $_______
specified transactions occurring during such 12-month period....................
5. To the extent not included in Item 2, commitment fees payable under the Credit $_______
Agreement for the 12-month period ending on the Computation Date................
6. Interest Expense: Item 2 minus Items 3(c) and 4 plus Item 5..................... $_______
7. Annualized Cash Flow to Total Interest Expense Ratio: The ratio of Item 1 to
Item 6.......................................................................... _ :1.00
</TABLE>
<PAGE> 110
ATTACHMENT 3
(to __/__/__ Compliance
Certificate)
ANNUALIZED CASH FLOW TO PRO FORMA DEBT SERVICE RATIO
on ________, ____ (the "Computation Date")
<TABLE>
<S> <C>
1. Annualized Cash Flow (from Attachment 1, Item 16)........................................ $_______
2. Pro-forma interest expense on all Debt of the Borrower and its Restricted Subsidiaries $_______
calculated for the period of the four Fiscal Quarters immediately following the
Computation Date*........................................................................
3. To the extent included in Item 2, interest expense with respect to
(a) Subordinated Intercompany Debt.................................................. $_______
(b) Debt permitted by clause (b) of Section 7.2.2................................... $_______
(c) Cash Management Advances........................................................ $_______
(d) Sum of Items 3 (a) through 3 (c)................................................ $_______
4. To the extent not included in Item 2, all commitment or line of credit fees (no mater how $_______
designated) payable by the Borrower and its Restricted Subsidiaries which, without
duplication, is scheduled to be paid or will accrue during such calculation period,
including the commitment fees payable under the Credit Agreement.........................
5. Pro Forma Interest Expense: Item 2 minus Item 3 plus..............................Item 4 $_______
</TABLE>
- --------
* For purposes of calculating pro-forma interest expense (x) where any item of
interest on any Debt varies or depends upon a variable rate of interest
(including, the Base Rate or the LIBO Rate), such rate shall be assumed to
equal the rate in effect on the Computation Date and (y) the principal amount
outstanding under any revolving or line of credit facility shall be assumed to
be the outstanding principal balance thereunder on the Computation Date,
adjusted to give effect to any mandatory commitment reductions which are
scheduled to occur during such calculation period.
<PAGE> 111
<TABLE>
<S> <C>
6. To the extent included in Item 5, all Pro Forma Interest Expense which could be $_______
refinanced on the Computation Date with Substitute Long Term Debt and which the Borrower
elects for the purposes of this calculation to treat as being refinanced on the
Computation Date.........................................................................
7. All Interest Expense with respect to Substitute Long Term Debt treated in Item 6 as being $_______
incurred on Computation Date.............................................................
8. Item 5 minus Item 6 plus Item 7.......................................................... $_______
9. All scheduled principal payments, including current maturities, due during such $_______
calculation period on Debt of the Borrower and its Restricted Subsidiaries on a
consolidated basis outstanding on the Computation Date...................................
10. To the extent included in Item 9, all principal payments with respect to
(a) Subordinated Intercompany Debt.................................................. $_______
(b) Debt permitted by clause(b) of Section 7.2.2.................................... $_______
(c) Cash Management Advances........................................................ $_______
(d) Sum of Items 10(a) through 10(c)................................................ $_______
11. All scheduled principal payments, including current maturities, due during such $_______
calculation period on Substitute Long Term Debt treated in Item 6 as being incurred on
the Computation Date.....................................................................
12. Item 9 minus Item 10(d) plus Item 11..................................................... $_______
13. Annualized Cash Flow to Pro Forma Debt Service Ratio: The ratio of Item 1 to the sum of __:1:00
Item 8 and Item 12.......................................................................
</TABLE>
<PAGE> 112
EXHIBIT D
BORROWING REQUEST
The Bank of Nova Scotia
One Liberty Plaza
26th Floor
New York, New York 10015
Attention: Margot Bright
TCI CABLEVISION OF PUERTO RICO, INC.
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section 2.3 of the
Credit Agreement, dated as of April 30, 1997 (together with all amendments, if
any, from time to time made thereto, the "Credit Agreement"), among TCI
Cablevision of Puerto Rico, Inc., a Delaware corporation (the "Borrower"),
certain financial institutions and The Bank of Nova Scotia (the "Administrative
Agent"). Unless otherwise defined herein or the context otherwise requires,
terms used herein have the meanings provided in the Credit Agreement.
The Borrower hereby requests that a Loan be made in the aggregate principal
amount of $ on _____ __, as a {LIBO Rate Loan having an Interest Period of
________ months }{Base Rate Loan}.
The Borrower hereby acknowledges that, pursuant to Section 5.2.2 of the Credit
Agreement, each of the delivery of this Borrowing Request and the acceptance by
the Borrower of the proceeds of the Loans requested hereby constitute a
representation and warranty by the Borrower that, on the date of such Loans,
and before and after giving effect thereto and to the application of the
proceeds therefrom, all statements set forth in Section 5.2.1 are true and
correct in all material respects.
The Borrower agrees that if prior to the time of the Borrowing requested
hereby any matter certified to herein by it will not be true and correct at
such time as if then made, it will immediately so notify the Administrative
Agent. Except to the extent, if any, that prior to the time of the Borrowing
requested hereby the Administrative Agent shall receive written notice to the
contrary from the Borrower, each matter certified to herein shall be deemed
once again to be certified as true and correct at
<PAGE> 113
the date of such Borrowing as if then made.
Please wire transfer the proceeds of the Borrowing to the accounts of the
following persons at the financial institutions indicated respectively:
<TABLE>
<CAPTION> Person to be Paid
Amount to be ----------------- Name, Address, etc.
Transferred Name Account No. of Transferee Lender
- -------------- --------------- ----------- --------------------
<S> <C> <C> <C>
$
------------- --------------- ----------- --------------------
--------------------
Attention:
----------
$
------------- --------------- ----------- --------------------
--------------------
Attention:
----------
Balance of The Borrower
such proceeds -------------------------------------
--------------------
Attention:
----------
</TABLE>
The Borrower has caused this Borrowing Request to be executed and
delivered, and the certification and warranties contained herein to be made, by
its duly Authorized Officer this _____ day of ____________ , _____.
TCI CABLEVISION OF PUERTO RICO,
INC.
By:
------------------------------
Title:
D-2
<PAGE> 114
EXHIBIT E
CONTINUATION/CONVERSION NOTICE
The Bank of Nova Scotia
One Liberty Plaza
26th Floor
New York, New York 10006
Attention: Margot Bright
TCI CABLEVISION OF PUERTO RICO, INC.
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you pursuant to
Section 2.4 of the Credit Agreement, dated as of April 30, 1997 (together with
all amendments, if any, from time to time made thereto, the "Credit
Agreement"), among TCI Cablevision of Puerto Rico, Inc., a Delaware corporation
(the "Borrower"), certain financial institutions and The Bank of Nova Scotia,
(the "Administrative Agent"). Unless otherwise defined herein or the context
otherwise requires, terms used herein have the meanings provided in the Credit
Agreement.
The Borrower hereby requests that on __________, _____,
(1) $___ of the presently outstanding principal amount of the
Loans originally made on __________, ______,
(2) and all presently being maintained as {Base Rate Loans}
{LIBO Rate Loans},
(3) be {converted into}{continued as},
(4) {LIBO Rate Loans having an Interest Period of ______
months}{Base Rate Loans}.
<PAGE> 115
The Borrower hereby:
(a) certifies and warrants that no Default has
occurred and is continuing; and
(b) agrees that if prior to the time of such
continuation or conversion any matter certified to herein by
it will not be true and correct at such time as if then made,
it will immediately so notify the Administrative Agent.
Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Administrative Agent shall receive written
notice to the contrary from the Borrower, each matter certified to herein shall
be deemed to be certified at the date of such continuation or conversion as if
then made.
The Borrower has caused this Continuation/Conversion Notice to be
executed and delivered, and the certification and warranties contained herein
to be made, by its Authorized Officer this ___ day of __________, _____.
TCI CABLEVISION OF PUERTO RICO,
INC.
By:
------------------------------
Title:
E-2
<PAGE> 116
EXHIBIT F
LENDER ASSIGNMENT AGREEMENT
To: TCI Cablevision of Puerto Rico, Inc.
[Address]
To: The Bank of Nova Scotia,
as the Administrative Agent
One Liberty Plaza
26th Floor
New York, New York 10006
TCI CABLEVISION OF PUERTO RICO, INC.
Gentlemen and Ladies:
We refer to clause (d) of Section 10.11.1 of the Credit Agreement,
dated as of April 30, 1997 (together with all amendments and other
modifications, if any, from time to time thereafter made thereto, the "Credit
Agreement"), among TCI Cablevision of Puerto Rico, Inc., a Delaware corporation
(the "Borrower"), the various financial institutions (the "Lenders") as are, or
shall from time to time become, parties thereto, and The Bank of Nova Scotia,
as administrative agent (the "Administrative Agent") for the Lenders. Unless
otherwise defined herein or the context otherwise requires, terms used herein
have the meanings provided in the Credit Agreement.
This agreement is delivered to you pursuant to clause (d) of Section
10.11.1 of the Credit Agreement and also constitutes notice to each of you,
pursuant to clause (c) of Section 10.11.1 of the Credit Agreement, of the
assignment and delegation to _______________ (the "Assignee") of ___% of the
Loans and Commitment of _____________ (the "Assignor") outstanding under the
Credit Agreement on the date hereof. After giving effect to the foregoing
assignment and delegation, the Assignor's and the Assignee's Percentages for
the purposes of the Credit Agreement are set forth opposite such Person's name
on the signature pages hereof.
[Add paragraph dealing with accrued interest and fees with respect to
the Loans assigned.]
The Assignee hereby acknowledges and confirms that it has
<PAGE> 117
received a copy of the Credit Agreement and the exhibits related thereto,
together with copies of the documents which were required to be delivered under
the Credit Agreement as a condition to the making of the Loans thereunder. The
Assignee further confirms and agrees that in becoming a Lender and in making
its Commitments and Loans under the Credit Agreement, such actions have and
will be made without recourse to, or representation or warranty by the
Administrative Agent.
Except as otherwise provided in the Credit Agreement, effective as of
the date of acceptance hereof by the Administrative Agent
(a) the Assignee
(i) shall be deemed automatically to have become a
party to the Credit Agreement, have all the rights and
obligations of a "Lender" under the Credit Agreement and the
other Loan Documents as if it were an original signatory
thereto to the extent specified in the second paragraph
hereof;
(ii) agrees to be bound by the terms and conditions
set forth in the Credit Agreement and the other Loan
Documents as if it were an original signatory thereto; and
(b) the Assignor shall be released from its obligations under
the Credit Agreement and the other Loan Documents to the extent
specified in the second paragraph hereof.
The Assignor and the Assignee hereby agree that the
{Assignor}{Assignee} will pay to the Administrative Agent the processing fee
referred to in Section 10.11.1 of the Credit Agreement upon the delivery
hereof.
The Assignee hereby advises each of you of the following
administrative details with respect to the assigned Loans and Commitments and
requests the Administrative Agent to acknowledge receipt of this document:
(A) Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
F-2
<PAGE> 118
Facsimile:
Telex (Answerback):
LIBOR Office:
Telephone:
Facsimile:
Telex (Answerback):
(B) Payment Instructions:
The Assignee agrees to furnish the tax form required by the last
sentence of Section 4.5 (if so required) of the Credit Agreement no later than
the date of acceptance hereof by the Administrative Agent.
This Agreement may be executed by the Assignor and Assignee in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
Adjusted Percentage [THE ASSIGNOR'S FULL NAME]
Loan Commitment
and Loans: __%
Percentage [THE ASSIGNEE'S FULL NAME]
Loan Commitment
and Loans: __%
Accepted and Acknowledged
this __ day of _______, _____
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By:________________________
Title:
F-3
<PAGE> 119
[MBP DRAFT -- 04/25/97]
EXHIBIT G
INTERNATIONAL PLEDGE AGREEMENT
This INTERNATIONAL PLEDGE AGREEMENT (as amended, supplemented, amended
and restated or otherwise modified from time to time, this "Pledge Agreement"),
dated as of ______ __, ____, is made by TELE-COMMUNICATIONS INTERNATIONAL,
INC., a Delaware corporation (the "Pledgor"), in favor of THE BANK OF NOVA
SCOTIA ("Scotiabank"), as administrative agent (together with any successor(s)
thereto in such capacity, the "Administrative Agent") for each of the Secured
Parties.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of April 30, 1997
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Credit Agreement"), among TCI Cablevision of Puerto Rico, Inc., a
Delaware corporation (the "Borrower"), the various financial institutions as
are or may become parties thereto (each, individually, a "Lender", and
collectively, the "Lenders") and the Administrative Agent, the Lenders have
extended Commitments to make Loans to, and have made Loans to, the Borrower;
WHEREAS, as the result of certain actions initiated by the Pledgor, an
Event of Default will occur pursuant to Sections 7.1.8 and 8.1.3 of the Credit
Agreement unless the Pledgor executes and delivers this Pledge Agreement; and
WHEREAS, the Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the
Lenders to continue as outstanding Loans, and to make additional Loans from
time to time hereafter to the Borrower pursuant to the Credit Agreement, the
Pledgor agrees, for the benefit of each Secured Party, as follows:
ARTICLE II
DEFINITIONS
SECTION II.1. Certain Terms. The following terms (whether
<PAGE> 120
or not underscored) when used in this Pledge Agreement, including its preamble
and recitals, shall have the following meanings (such definitions to be equally
applicable to the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect
to any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Lender" and "Lenders" are defined in the first recital.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower to the Administrative Agent or the Lenders arising under or in
connection with the Credit Agreement, the Notes and each other Loan Document.
"Pledge Agreement" is defined in the preamble.
"Pledged Property" means all Pledged Shares and all other pledged
shares of capital stock or promissory notes, all other securities, all
assignments of any amounts due or to become due, all other instruments which
are now being delivered by the Pledgor to the Administrative Agent or may from
time to time hereafter be delivered or required to be delivered by the Pledgor
to the Administrative Agent for the purpose of pledge under this Pledge
Agreement or any other Loan Document, and all proceeds of any of the foregoing.
"Pledged Shares" means all shares of capital stock of the Borrower
which are delivered by the Pledgor to the Administrative Agent as Pledged
Property hereunder.
"Pledgor" is defined in the preamble.
"Securities Act" is defined in Section 6.2.
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<PAGE> 121
"U.C.C." means the Uniform Commercial Code, as in effect from time to
time in the State of New York.
SECTION II.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Pledge Agreement,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION II.3. U.C.C. Definitions. Unless otherwise defined herein or
the Credit Agreement or the context otherwise requires, terms for which
meanings are provided in the U.C.C. are used in this Pledge Agreement,
including its preamble and recitals, with such meanings.
ARTICLE III
PLEDGE
SECTION III.1. Grant of Security Interest. The Pledgor hereby
pledges, hypothecates, assigns, charges, mortgages, delivers, and transfers to
the Administrative Agent, for its benefit and the ratable benefit of each of
the Secured Parties, and hereby grants to the Administrative Agent, for its
benefit and the ratable benefit of the Secured Parties, a continuing security
interest in, all of the following property (the "Collateral"):
(a) all issued and outstanding shares of capital stock of the
Borrower identified in Attachment 1 hereto;
(b) all other Pledged Shares issued from time to time;
(c) all other Pledged Property, whether now or hereafter
delivered or required to be delivered to the Administrative Agent in
connection with this Pledge Agreement;
(d) all Dividends, Distributions, interest, and other
payments and rights with respect to any Pledged Property; and
(e) all proceeds of any of the foregoing.
SECTION III.2. Security for Obligations. This Pledge Agreement secures
the payment in full in cash of all Obligations now or hereafter existing,
whether for principal, interest, costs, fees, expenses, or otherwise.
SECTION III.3. Delivery of Pledged Property. All certificates or
instruments representing or evidencing any
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<PAGE> 122
Collateral, including all Pledged Shares, shall be delivered to and held by or
on behalf of the Administrative Agent pursuant hereto, shall be in suitable
form for transfer by delivery, and shall be accompanied by all necessary
instruments of transfer or assignment, duly executed in blank.
SECTION III.4. Dividends on Pledged Shares. In the event that any
Dividend is to be paid on any Pledged Share at a time when no Default of the
nature referred to in Section 8.1.1 or 8.1.9 of the Credit Agreement or Event
of Default has occurred and is continuing, such Dividend or payment may be paid
directly to the Pledgor and retained by such Pledgor. If any such Default or
Event of Default has occurred and is continuing, then any such Dividend or
payment shall be paid directly to the Administrative Agent.
SECTION III.5. Continuing Security Interest; Transfer of Note. This
Pledge Agreement shall create a continuing security interest in the Collateral
and shall
(a) remain in full force and effect until payment in full in
cash of all Obligations and the termination of all Commitments,
(b) be binding upon the Pledgor and its successors,
transferees and assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative
Agent and each other Secured Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the
provisions of Section 10.11 and Article IX of the Credit Agreement. Upon (i)
the sale, transfer or other disposition of Collateral in accordance with the
Credit Agreement or (ii) the payment in full in cash of all Obligations and the
termination of all Commitments, the security interest granted herein shall
automatically terminate with respect to (x) such Collateral (in the case of
clause (i)) or (y) all Collateral (in the case of clause (ii)). Upon any such
termination, the Administrative Agent will, at the Pledgor's sole expense,
deliver to the Pledgor, without any representations, warranties or recourse of
any kind whatsoever, all certificates and instruments representing or
evidencing all Pledged Shares, together with all other Collateral held by the
Administrative Agent hereunder, and execute and deliver to the Pledgor such
documents as the Pledgor
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shall reasonably request to evidence such termination.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION IV.1. Representations and Warranties, etc. The Pledgor
represents and warrants unto each Secured Party, as at the date of each pledge
and delivery hereunder (including each pledge and delivery of Pledged Shares)
by the Pledgor to the Administrative Agent of any Collateral, as set forth in
this Article.
SECTION 3.1.1. Ownership, No Liens, etc. The Pledgor is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) such Collateral, free and clear of all
liens, security interests, options, or other charges or encumbrances, except
any lien or security interest granted pursuant hereto in favor of the
Administrative Agent.
SECTION 3.1.2. Valid Security Interest. The delivery of such
Collateral to the Administrative Agent is effective to create a valid,
perfected, first priority security interest in such Collateral and all proceeds
thereof, securing the Obligations. No filing or other action will be necessary
to perfect or protect such security interest.
SECTION 3.1.3. As to Pledged Shares. In the case of any Pledged Shares
constituting such Collateral, all of such Pledged Shares are duly authorized
and validly issued, fully paid, and non-assessable, and constitute all of the
issued and outstanding shares of capital stock of the Borrower.
SECTION 3.1.5. Authorization, Approval, etc. No authorization,
approval, or other action by, and no notice to or filing with, any Regulatory
Authority or any other Person is required either
(a) for the pledge by the Pledgor of any Collateral pursuant
to this Pledge Agreement or for the execution, delivery, and
performance of this Pledge Agreement by the Pledgor, or
(b) for the exercise by the Administrative Agent of the
voting or other rights provided for in this Pledge Agreement, or,
except with respect to any Pledged Shares, as may be required in
connection with a disposition of such Pledged Shares by laws affecting
the offering and sale of securities generally, the remedies in respect
of the Collateral pursuant to this Pledge Agreement.
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ARTICLE V
COVENANTS
SECTION V.1. Protect Collateral; Further Assurances, etc. The Pledgor
will not sell, assign, transfer, pledge, or encumber in any other manner the
Collateral (except in favor of the Administrative Agent hereunder). The Pledgor
will warrant and defend the right and title herein granted unto the
Administrative Agent in and to the Collateral (and all right, title, and
interest represented by the Collateral) against the claims and demands of all
Persons whomsoever. The Pledgor agrees that at any time, and from time to time,
at the expense of the Pledgor, the Pledgor will promptly execute and deliver
all further instruments, and take all further action, that may be necessary or
desirable, or that the Administrative Agent may reasonably request, in order to
perfect and protect any security interest granted or purported to be granted
hereby or to enable the Administrative Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral.
SECTION V.2. Stock Powers, etc. The Pledgor agrees that all Pledged
Shares (and all other shares of capital stock constituting Collateral)
delivered by the Pledgor pursuant to this Pledge Agreement will be accompanied
by duly executed undated blank stock powers, or other equivalent instruments of
transfer acceptable to the Administrative Agent. The Pledgor will, from time to
time upon the request of the Administrative Agent, promptly deliver to the
Administrative Agent such stock powers, instruments, and similar documents,
satisfactory in form and substance to the Administrative Agent, with respect to
the Collateral as the Administrative Agent may reasonably request and will,
from time to time upon the request of the Administrative Agent after the
occurrence of any Event of Default, promptly transfer any Pledged Shares or
other shares of common stock constituting Collateral into the name of any
nominee designated by the Administrative Agent.
SECTION V.3. Continuous Pledge. The Pledgor will, at all times, keep
pledged to and shall deliver to the Administrative Agent pursuant hereto all
Pledged Shares and all other shares of capital stock constituting Collateral,
all Dividends and Distributions with respect thereto, and all other Collateral
and other securities, instruments, proceeds, and rights from time to time
received by or distributable to the Pledgor in respect of any Collateral and
will not permit the Borrower to issue any capital stock which shall not have
been immediately duly pledged hereunder on a first priority perfected basis.
SECTION V.4. Voting Rights; Dividends, etc. The Pledgor
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agrees:
(a) after any Default of the nature referred to in Section
8.1.1 or 8.1.9 of the Credit Agreement or Event of Default shall have
occurred and be continuing, promptly upon receipt of notice thereof by
the Pledgor and without any request therefor by the Administrative
Agent, to deliver (properly endorsed where required hereby or
requested by the Administrative Agent) to the Administrative Agent all
Dividends, Distributions, all interest, all principal, all other cash
payments, and all proceeds of the Collateral then held by the Pledgor
or received on or after the occurrence of such Default or Event of
Default, all of which shall be held by the Administrative Agent as
additional Collateral for use in accordance with Section 6.4; and
(b) after any Default of the nature referred to in Section
8.1.1 or 8.1.9 or Event of Default shall have occurred and be
continuing and the Administrative Agent has notified the Pledgor of
the Administrative Agent's intention to exercise its voting power
under this Section 4.4(b)
(i) the Administrative Agent may exercise (to the
exclusion of the Pledgor) the voting power and all other
incidental rights of ownership with respect to any Pledged
Shares or other shares of capital stock constituting
Collateral and the Pledgor hereby grants the Administrative
Agent an irrevocable proxy, exercisable under such
circumstances, to vote the Pledged Shares and such other
Collateral; and
(ii) promptly to deliver to the Administrative Agent
such additional proxies and other documents as may be
necessary to allow the Administrative Agent to exercise such
voting power.
All Dividends, Distributions, interest, principal, cash payments, and proceeds
which may at any time and from time to time be held by the Pledgor but which
the Pledgor is then obligated to deliver to the Administrative Agent, shall,
until delivery to the Administrative Agent, be held by the Pledgor separate and
apart from its other property in trust for the Administrative Agent. The
Administrative Agent agrees that unless an Event of Default shall have occurred
and be continuing and the Administrative Agent shall have given the notice
referred to in Section 4.4(b), the Pledgor shall have the exclusive voting
power with respect to any shares of capital stock (including any of the Pledged
Shares) constituting Collateral and the Administrative Agent shall, upon the
written request of the Pledgor, promptly deliver such proxies and other
documents, if any, as shall be reasonably requested by the Pledgor which are
necessary to allow the Pledgor to exercise voting power with respect to any
such share of capital stock
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(including any of the Pledged Shares) constituting Collateral; provided,
however, that no vote shall be cast, or consent, waiver, or ratification given,
or action taken by the Pledgor that would impair any Collateral or be
inconsistent with or violate any provision of the Credit Agreement or any other
Loan Document (including this Pledge Agreement).
SECTION V.5. Additional Undertakings. The Pledgor will not, without
the prior written consent of the Administrative Agent take or omit to take any
action the taking or the omission of which would result in any impairment or
alteration of any instrument constituting Collateral.
ARTICLE VI
THE ADMINISTRATIVE AGENT
SECTION VI.1. Administrative Agent Appointed Attorney-in-Fact. The
Pledgor hereby irrevocably appoints the Administrative Agent the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, from time to time in the
Administrative Agent's discretion, to take any action and to execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Pledge Agreement, including after the
occurrence and continuance of a Default of the nature referred to in Section
8.1.1 or 8.1.9 of the Credit Agreement or an Event of Default:
(a) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause
(a) above; and
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Administrative Agent with respect to any of
the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable and coupled with an interest.
SECTION VI.2. Administrative Agent May Perform. If the Pledgor fails
to perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent
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incurred in connection therewith shall be payable by the Pledgor pursuant to
Section 6.4.
SECTION VI.3. Administrative Agent Has No Duty. The powers conferred
on the Administrative Agent hereunder are solely to protect its interest (on
behalf of the Secured Parties) in the Collateral and shall not impose any duty
on it to exercise any such powers. Except for reasonable care of any Collateral
in its possession and the accounting for moneys actually received by it
hereunder, the Administrative Agent shall have no duty as to any Collateral or
responsibility for
(a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative
to any Pledged Property, whether or not the Administrative Agent has
or is deemed to have knowledge of such matters, or
(b) taking any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral.
SECTION VI.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose as the Pledgor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Default of the nature referred to in Section
8.1.1 or 8.1.9 or Event of Default, but failure of the Administrative Agent to
comply with any such request at any time shall not in itself be deemed a
failure to exercise reasonable care.
ARTICLE VII
REMEDIES
SECTION VII.1. Certain Remedies. If any Default of the nature referred
to in Section 8.1.9 or Event of Default shall have occurred and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies provided for
herein or otherwise available to it, all the rights and remedies of a
secured party on default under the U.C.C. (whether or not the U.C.C.
applies to the affected Collateral) and also may, without notice
except as specified below, sell the Collateral or any part thereof in
one or more parcels at public or private sale, at any of the
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Administrative Agent's offices or elsewhere, for cash, on credit or
for future delivery, and upon such other terms as the Administrative
Agent may deem commercially reasonable. The Pledgor agrees that, to
the extent notice of sale shall be required by law, at least ten days'
prior notice to the Pledgor of the time and place of any public sale
or the time after which any private sale is to be made shall
constitute reasonable notification. The Administrative Agent shall not
be obligated to make any sale of Collateral regardless of notice of
sale having been given. The Administrative Agent may adjourn any
public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(b) The Administrative Agent may
(i) transfer all or any part of the Collateral into
the name of the Administrative Agent or its nominee, with or
without disclosing that such Collateral is subject to the
lien and security interest hereunder,
(ii) notify the parties obligated on any of the
Collateral to make payment to the Administrative Agent of any
amount due or to become due thereunder,
(iii) enforce collection of any of the Collateral by
suit or otherwise, and surrender, release or exchange all or
any part thereof, or compromise or extend or renew for any
period (whether or not longer than the original period) any
obligations of any nature of any party with respect thereto,
(iv) endorse any checks, drafts, or other writings
in the Pledgor's name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral,
and
(vi) execute (in the name, place and stead of the
Pledgor) endorsements, assignments, stock powers and other
instruments of conveyance or transfer with respect to all or
any of the Collateral.
SECTION VII.2. Securities Laws. If the Administrative Agent shall
determine to exercise its right to sell all or any of the Collateral pursuant
to Section 6.1, the Pledgor agrees that, upon request of the Administrative
Agent, the Pledgor will, at its own expense:
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(a) execute and deliver, and cause each issuer of the
Collateral contemplated to be sold and the directors and officers
thereof to execute and deliver, all such instruments and documents,
and do or cause to be done all such other acts and things, as may be
necessary or, in the opinion of the Administrative Agent, advisable to
register such Collateral under the provisions of the Securities Act of
1933, as from time to time amended (the "Securities Act"), and to
cause the registration statement relating thereto to become effective
and to remain effective for such period as prospectuses are required
by law to be furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity
with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable
thereto;
(b) use its best efforts to qualify the Collateral under the
state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Collateral, as requested by
the Administrative Agent;
(c) cause each such issuer to make available to its security
holders, as soon as practicable, an earnings statement that will
satisfy the provisions of Section 11(a) of the Securities Act; and
(d) do or cause to be done all such other acts and things as
may be necessary to make such sale of the Collateral or any part
thereof valid and binding and in compliance with applicable law.
The Pledgor further acknowledges the impossibility of ascertaining the amount
of damages that would be suffered by the Administrative Agent or the Secured
Parties by reason of the failure by the Pledgor to perform any of the covenants
contained in this Section and, consequently, agrees that, if the Pledgor shall
fail to perform any of such covenants, it shall pay, as liquidated damages and
not as a penalty, an amount equal to the value (as determined by the
Administrative Agent) of the Collateral on the date the Administrative Agent
shall demand compliance with this Section.
SECTION VII.3. Compliance with Restrictions. The Pledgor agrees that
in any sale of any of the Collateral whenever an Event of Default shall have
occurred and be continuing, the Administrative Agent is hereby authorized to
comply with any limitation or restriction in connection with such sale as it
may be advised by counsel is necessary in order to avoid any violation of
applicable law (including compliance with such procedures as may restrict the
number of prospective bidders and
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purchasers, require that such prospective bidders and purchasers have certain
qualifications, and restrict such prospective bidders and purchasers to persons
who will represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or resale of such
Collateral), or in order to obtain any required approval of the sale or of the
purchaser by any governmental regulatory authority or official, and the Pledgor
further agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially reasonable manner,
nor shall the Administrative Agent be liable nor accountable to the Pledgor for
any discount allowed by the reason of the fact that such Collateral is sold in
compliance with any such limitation or restriction.
SECTION VII.4. Application of Proceeds. All cash proceeds received by
the Administrative Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral may, in the discretion of
the Administrative Agent, be held by the Administrative Agent as additional
collateral security for, or then or at any time thereafter be applied (after
payment of any amounts payable to the Administrative Agent pursuant to Section
10.3 of the Credit Agreement and Section 6.5) in whole or in part by the
Administrative Agent against, all or any part of the Obligations in such order
as the Administrative Agent shall elect.
Any surplus of such cash or cash proceeds held by the Administrative
Agent and remaining after payment in full in cash of all the Obligations and
the termination of all Commitments, shall be paid over to the Pledgor or to
whomsoever may be lawfully entitled to receive such surplus.
SECTION VII.5. Indemnity and Expenses. The Pledgor hereby indemnifies
and holds harmless the Administrative Agent from and against any and all
claims, losses, and liabilities arising out of or resulting from this Pledge
Agreement (including enforcement of this Pledge Agreement), except claims,
losses, or liabilities resulting from the Administrative Agent's gross
negligence or wilful misconduct. Upon demand, the Pledgor will pay to the
Administrative Agent the amount of any and all reasonable expenses, including
the reasonable fees and disbursements of its counsel and of any experts and
agents, which the Administrative Agent may incur in connection with:
(a) the administration of this Pledge Agreement, the Credit
Agreement and each other Loan Document;
(b) the custody, preservation, use, or operation of, or the
sale of, collection from, or other realization upon, any of the
Collateral;
(c) the exercise or enforcement of any of the rights
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of the Administrative Agent hereunder; or
(d) the failure by the Pledgor to perform or observe any of
the provisions hereof.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION VIII.1. Loan Document. This Pledge Agreement is a Loan
Document executed pursuant to the Credit Agreement and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof.
SECTION VIII.2. Amendments, etc. No amendment to or waiver of any
provision of this Pledge Agreement nor consent to any departure by the Pledgor
herefrom shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent (on behalf of the Lenders or the
Required Lenders, as the case may be), and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it is given.
SECTION VIII.3. Protection of Collateral. The Administrative Agent may
from time to time, at its option, perform any act which the Pledgor agrees
hereunder to perform and which the Pledgor shall fail to perform after being
requested in writing so to perform (it being understood that no such request
need be given after the occurrence and during the continuance of any Event of
Default of the nature referred to in Section 8.1.1 or 8.1.9 or an Event of
Default) and the Administrative Agent may from time to time take any other
action which the Administrative Agent reasonably deems necessary for the
maintenance, preservation or protection of any of the Collateral or of its
security interest therein.
SECTION VIII.4. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic communication) and mailed or telecopied or delivered to either
party hereto, addressed to such party at such party's address specified in the
Credit Agreement. All such notices and other communications, when mailed and
properly addressed with postage prepaid or if properly addressed and sent by
pre-paid courier service, shall be deemed given when received; any such notice
or communication, if transmitted by telecopier, shall be deemed given when
transmitted and electronically confirmed.
SECTION VIII.5. Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and
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shall not affect the construction of this Pledge Agreement.
SECTION VIII.6. Severability. Wherever possible each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Pledge
Agreement.
SECTION VIII.7. Governing Law, Entire Agreement, etc. THIS PLEDGE
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. THIS
PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
SECTION VIII.8. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
PLEDGE AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE AGENT OR ANY OF
THE LENDERS OR THE PLEDGOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK. THE PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGEMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE
PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE
LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO
ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT THE PLEDGOR HAS OR HEREAFTER MAY ACQUIRE
ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
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THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF
EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE PLEDGOR
HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER
THIS PLEDGE AGREEMENT.
SECTION VIII.9. Waiver of Jury Trial. THE PLEDGOR AND, BY ACCEPTING
THIS PLEDGE AGREEMENT AND THE BENEFITS THEREOF, THE ADMINISTRATIVE AGENT AND
ANY LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS PLEDGE AGREEMENT OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE PLEDGOR AND EACH SUCH PERSON ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS CONTINUING TO MAKE LOANS
UNDER THE CREDIT AGREEMENT AND FOR THE PLEDGOR ENTERING INTO THIS PLEDGE
AGREEMENT.
SECTION VIII.10. Counterparts. This Pledge Agreement may be executed
by the parties hereto in several counterparts, each of which shall be deemed to
be an original and all of which shall constitute together but one and the same
agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
TELE-COMMUNICATIONS INTERNATIONAL, INC.
By
------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as Administrative Agent
By
------------------------------------
Name:
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ATTACHMENT 1
to International
Pledge Agreement
Pledged Shares
<TABLE>
<CAPTION>
Common Stock
---------------------------------------
Authorized Outstanding % of Shares
Shares Shares Pledged
---------- ----------- -----------
<S> <C> <C>
</TABLE>
TCI Cablevision of Puerto
Rico, Inc.
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<PAGE> 136
[MBP DRAFT -- 04/25/97]
EXHIBIT H
BORROWER PLEDGE AGREEMENT
This BORROWER PLEDGE AGREEMENT (as amended, supplemented, amended and
restated or otherwise modified from time to time, this "Pledge Agreement"),
dated as of _____ __, ____, is made by TCI CABLEVISION OF PUERTO RICO, INC., a
Delaware corporation (the "Pledgor"), in favor of THE BANK OF NOVA SCOTIA
("Scotiabank"), as administrative agent (together with any successor(s) thereto
in such capacity, the "Administrative Agent") for each of the Secured Parties.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of April 30, 1997
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Credit Agreement"), among the Pledgor, the various financial
institutions as are or may become parties thereto (each, individually, a
"Lender", and collectively, the "Lenders") and the Administrative Agent, the
Lenders have extended Commitments to make Loans to, and have made Loans to, the
Pledgor;
WHEREAS, pursuant to Section 7.1.7 of the Credit Agreement, the
Pledgor is required to execute and deliver this Pledge Agreement; and
WHEREAS, the Pledgor has duly authorized the execution, delivery and
performance of this Pledge Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in order to induce the
Lenders to continue as outstanding Loans, and to make additional Loans from
time to time hereafter to the Pledgor pursuant to the Credit Agreement, the
Pledgor agrees, for the benefit of each Secured Party, as follows:
ARTICLE II
DEFINITIONS
SECTION II.1. Certain Terms. The following terms (whether or not
underscored) when used in this Pledge Agreement, including its preamble and
recitals, shall have the following meanings
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(such definitions to be equally applicable to the singular and plural forms
thereof):
"Administrative Agent" is defined in the preamble.
"Collateral" is defined in Section 2.1.
"Credit Agreement" is defined in the first recital.
"Distributions" means all stock dividends, liquidating dividends,
shares of stock resulting from (or in connection with the exercise of) stock
splits, reclassifications, warrants, options, non-cash dividends, mergers,
consolidations, and all other distributions (whether similar or dissimilar to
the foregoing) on or with respect to any Pledged Shares or other shares of
capital stock constituting Collateral, but shall not include Dividends.
"Dividends" means cash dividends and cash distributions with respect
to any Pledged Shares or other Pledged Property made in the ordinary course of
business and not a liquidating dividend.
"Lender" and "Lenders" are defined in the first recital.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower to the Administrative Agent or the Lenders arising under or in
connection with the Credit Agreement, the Notes and each other Loan Document.
"Pledge Agreement" is defined in the preamble.
"Pledged Property" means all Pledged Shares and all other pledged
shares of capital stock or promissory notes, all other securities, all
assignments of any amounts due or to become due, all other instruments which
are now being delivered by the Pledgor to the Administrative Agent or may from
time to time hereafter be delivered or required to be delivered by the Pledgor
to the Administrative Agent for the purpose of pledge under this Pledge
Agreement or any other Loan Document, and all proceeds of any of the foregoing.
"Pledged Share Issuer" means each Person identified in Item A of
Attachment 1 hereto, as such Attachment may from time to time hereafter be
supplemented (including pursuant to Section 7.1.7 of the Credit Agreement), as
the issuer of the Pledged Shares identified opposite the name of such Person.
"Pledged Shares" means all shares of capital stock of any Pledged
Share Issuer which are delivered by the Pledgor to the Administrative Agent as
Pledged Property hereunder.
"Pledgor" is defined in the preamble.
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"Securities Act" is defined in Section 6.2.
"U.C.C." means the Uniform Commercial Code, as in effect from time to
time in the State of New York.
SECTION II.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Pledge Agreement,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
SECTION II.3. U.C.C. Definitions. Unless otherwise defined herein or
the Credit Agreement or the context otherwise requires, terms for which
meanings are provided in the U.C.C. are used in this Pledge Agreement,
including its preamble and recitals, with such meanings.
ARTICLE III
PLEDGE
SECTION III.1. Grant of Security Interest. The Pledgor hereby
pledges, hypothecates, assigns, charges, mortgages, delivers, and transfers to
the Administrative Agent, for its benefit and the ratable benefit of each of
the Secured Parties, and hereby grants to the Administrative Agent, for its
benefit and the ratable benefit of the Secured Parties, a continuing security
interest in, all of the following property (the "Collateral"):
(a) all issued and outstanding shares of capital stock of
each Pledged Share Issuer identified in Item A of Attachment 1 hereto;
(b) all other Pledged Shares issued from time to time;
(c) all other Pledged Property, whether now or hereafter
delivered or required to be delivered to the Administrative Agent in
connection with this Pledge Agreement;
(d) all Dividends, Distributions, interest, and other
payments and rights with respect to any Pledged Property; and
(e) all proceeds of any of the foregoing.
SECTION III.2. Security for Obligations. This Pledge Agreement secures
the payment in full in cash of all Obligations now or hereafter existing,
whether for principal, interest,
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costs, fees, expenses, or otherwise.
SECTION III.3. Delivery of Pledged Property. All certificates or
instruments representing or evidencing any Collateral, including all Pledged
Shares, shall be delivered to and held by or on behalf of the Administrative
Agent pursuant hereto, shall be in suitable form for transfer by delivery, and
shall be accompanied by all necessary instruments of transfer or assignment,
duly executed in blank.
SECTION III.4. Dividends on Pledged Shares. In the event that any
Dividend is to be paid on any Pledged Share at a time when no Default of the
nature referred to in Section 8.1.1 or 8.1.9 of the Credit Agreement or Event
of Default has occurred and is continuing, such Dividend or payment may be paid
directly to the Pledgor and retained by such Pledgor. If any such Default or
Event of Default has occurred and is continuing, then any such Dividend or
payment shall be paid directly to the Administrative Agent.
SECTION III.5. Continuing Security Interest; Transfer of Note. This
Pledge Agreement shall create a continuing security interest in the Collateral
and shall
(a) remain in full force and effect until payment in full in
cash of all Obligations and the termination of all Commitments,
(b) be binding upon the Pledgor and its successors,
transferees and assigns, and
(c) inure, together with the rights and remedies of the
Administrative Agent hereunder, to the benefit of the Administrative
Agent and each other Secured Party.
Without limiting the foregoing clause (c), any Lender may assign or otherwise
transfer (in whole or in part) any Note or Loan held by it to any other Person
or entity, and such other Person or entity shall thereupon become vested with
all the rights and benefits in respect thereof granted to such Lender under any
Loan Document (including this Pledge Agreement) or otherwise, subject, however,
to any contrary provisions in such assignment or transfer, and to the
provisions of Section 10.11 and Article IX of the Credit Agreement. Upon (i)
the sale, transfer or other disposition of Collateral in accordance with the
Credit Agreement or (ii) the payment in full in cash of all Obligations and the
termination of all Commitments, the security interest granted herein shall
automatically terminate with respect to (x) such Collateral (in the case of
clause (i)) or (y) all Collateral (in the case of clause (ii)). Upon any such
termination, the Administrative Agent will, at the Pledgor's sole expense,
deliver to the Pledgor, without any representations, warranties or
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recourse of any kind whatsoever, all certificates and instruments representing
or evidencing all Pledged Shares, together with all other Collateral held by
the Administrative Agent hereunder, and execute and deliver to the Pledgor such
documents as the Pledgor shall reasonably request to evidence such termination.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION IV.1. Representations and Warranties, etc. The Pledgor
represents and warrants unto each Secured Party, as at the date of each pledge
and delivery hereunder (including each pledge and delivery of Pledged Shares)
by the Pledgor to the Administrative Agent of any Collateral, as set forth in
this Article.
SECTION 3.1.1. Ownership, No Liens, etc. The Pledgor is the legal and
beneficial owner of, and has good and marketable title to (and has full right
and authority to pledge and assign) such Collateral, free and clear of all
liens, security interests, options, or other charges or encumbrances, except
any lien or security interest granted pursuant hereto and under the Borrower
Security Agreement in favor of the Administrative Agent.
SECTION 3.1.2. Valid Security Interest. The delivery of such
Collateral to the Administrative Agent is effective to create a valid,
perfected, first priority security interest in such Collateral and all proceeds
thereof, securing the Obligations. No filing or other action will be necessary
to perfect or protect such security interest.
SECTION 3.1.3. As to Pledged Shares. In the case of any Pledged Shares
constituting such Collateral, all of such Pledged Shares are duly authorized
and validly issued, fully paid, and non-assessable, and constitute all of the
issued and outstanding shares of capital stock of each Pledged Share Issuer.
The Pledgor has no Subsidiaries other than the Pledged Share Issuers, except as
set forth in Item B of Attachment 1.
SECTION 3.1.5. Authorization, Approval, etc. No authorization,
approval, or other action by, and no notice to or filing with, any Regulatory
Authority or any other Person is required either
(a) for the pledge by the Pledgor of any Collateral pursuant
to this Pledge Agreement or for the execution, delivery, and
performance of this Pledge Agreement by the Pledgor, or
(b) for the exercise by the Administrative Agent of
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the voting or other rights provided for in this Pledge Agreement, or,
except with respect to any Pledged Shares, as may be required in
connection with a disposition of such Pledged Shares by laws affecting
the offering and sale of securities generally, the remedies in respect
of the Collateral pursuant to this Pledge Agreement.
ARTICLE V
COVENANTS
SECTION V.1. Protect Collateral; Further Assurances, etc. The Pledgor
will not sell, assign, transfer, pledge, or encumber in any other manner the
Collateral (except in favor of the Administrative Agent hereunder). The Pledgor
will warrant and defend the right and title herein granted unto the
Administrative Agent in and to the Collateral (and all right, title, and
interest represented by the Collateral) against the claims and demands of all
Persons whomsoever. The Pledgor agrees that at any time, and from time to time,
at the expense of the Pledgor, the Pledgor will promptly execute and deliver
all further instruments, and take all further action, that may be necessary or
desirable, or that the Administrative Agent may reasonably request, in order to
perfect and protect any security interest granted or purported to be granted
hereby or to enable the Administrative Agent to exercise and enforce its rights
and remedies hereunder with respect to any Collateral.
SECTION V.2. Stock Powers, etc. The Pledgor agrees that all Pledged
Shares (and all other shares of capital stock constituting Collateral)
delivered by the Pledgor pursuant to this Pledge Agreement will be accompanied
by duly executed undated blank stock powers, or other equivalent instruments of
transfer acceptable to the Administrative Agent. The Pledgor will, from time to
time upon the request of the Administrative Agent, promptly deliver to the
Administrative Agent such stock powers, instruments, and similar documents,
satisfactory in form and substance to the Administrative Agent, with respect to
the Collateral as the Administrative Agent may reasonably request and will,
from time to time upon the request of the Administrative Agent after the
occurrence of any Event of Default, promptly transfer any Pledged Shares or
other shares of common stock constituting Collateral into the name of any
nominee designated by the Administrative Agent.
SECTION V.3. Continuous Pledge. The Pledgor will, at all times, keep
pledged to and shall deliver to the Administrative Agent pursuant hereto all
Pledged Shares and all other shares of capital stock constituting Collateral,
all Dividends and Distributions with respect thereto, and all other Collateral
and other securities, instruments, proceeds, and rights from time to
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time received by or distributable to the Pledgor in respect of any Collateral
and will not permit any Pledged Share Issuer to issue any capital stock which
shall not have been immediately duly pledged hereunder on a first priority
perfected basis.
SECTION V.4. Voting Rights; Dividends, etc. The Pledgor agrees:
(a) after any Default of the nature referred to in Section
8.1.1 or 8.1.9 of the Credit Agreement or Event of Default shall have
occurred and be continuing, promptly upon receipt of notice thereof by
the Pledgor and without any request therefor by the Administrative
Agent, to deliver (properly endorsed where required hereby or
requested by the Administrative Agent) to the Administrative Agent all
Dividends, Distributions, all interest, all principal, all other cash
payments, and all proceeds of the Collateral then held by the Pledgor
or received on or after the occurrence of such Default or Event of
Default, all of which shall be held by the Administrative Agent as
additional Collateral for use in accordance with Section 6.4; and
(b) after any Default of the nature referred to in Section
8.1.1 or 8.1.9 or Event of Default shall have occurred and be
continuing and the Administrative Agent has notified the Pledgor of
the Administrative Agent's intention to exercise its voting power
under this Section 4.4(b)
(i) the Administrative Agent may exercise (to the
exclusion of the Pledgor) the voting power and all other
incidental rights of ownership with respect to any Pledged
Shares or other shares of capital stock constituting
Collateral and the Pledgor hereby grants the Administrative
Agent an irrevocable proxy, exercisable under such
circumstances, to vote the Pledged Shares and such other
Collateral; and
(ii) promptly to deliver to the Administrative Agent
such additional proxies and other documents as may be
necessary to allow the Administrative Agent to exercise such
voting power.
All Dividends, Distributions, interest, principal, cash payments, and proceeds
which may at any time and from time to time be held by the Pledgor but which
the Pledgor is then obligated to deliver to the Administrative Agent, shall,
until delivery to the Administrative Agent, be held by the Pledgor separate and
apart from its other property in trust for the Administrative Agent. The
Administrative Agent agrees that unless an Event of Default shall have occurred
and be continuing and the Administrative Agent shall have given the notice
referred to in Section 4.4(b), the Pledgor shall have the exclusive voting
power with respect to
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any shares of capital stock (including any of the Pledged Shares) constituting
Collateral and the Administrative Agent shall, upon the written request of the
Pledgor, promptly deliver such proxies and other documents, if any, as shall be
reasonably requested by the Pledgor which are necessary to allow the Pledgor to
exercise voting power with respect to any such share of capital stock
(including any of the Pledged Shares) constituting Collateral; provided,
however, that no vote shall be cast, or consent, waiver, or ratification given,
or action taken by the Pledgor that would impair any Collateral or be
inconsistent with or violate any provision of the Credit Agreement or any other
Loan Document (including this Pledge Agreement).
SECTION V.5. Additional Undertakings. The Pledgor will not, without
the prior written consent of the Administrative Agent take or omit to take any
action the taking or the omission of which would result in any impairment or
alteration of any instrument constituting Collateral.
ARTICLE VI
THE ADMINISTRATIVE AGENT
SECTION VI.1. Administrative Agent Appointed Attorney-in-Fact. The
Pledgor hereby irrevocably appoints the Administrative Agent the Pledgor's
attorney-in-fact, with full authority in the place and stead of the Pledgor and
in the name of the Pledgor or otherwise, from time to time in the
Administrative Agent's discretion, to take any action and to execute any
instrument which the Administrative Agent may deem necessary or advisable to
accomplish the purposes of this Pledge Agreement, including after the
occurrence and continuance of a Default of the nature referred to in Section
8.1.1 or 8.1.9 of the Credit Agreement or an Event of Default:
(a) to ask, demand, collect, sue for, recover, compromise,
receive and give acquittance and receipts for moneys due and to become
due under or in respect of any of the Collateral;
(b) to receive, endorse, and collect any drafts or other
instruments, documents and chattel paper, in connection with clause
(a) above; and
(c) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or
desirable for the collection of any of the Collateral or otherwise to
enforce the rights of the Administrative Agent with respect to any of
the Collateral.
The Pledgor hereby acknowledges, consents and agrees that the power of attorney
granted pursuant to this Section is irrevocable
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and coupled with an interest.
SECTION VI.2. Administrative Agent May Perform. If the Pledgor fails
to perform any agreement contained herein, the Administrative Agent may itself
perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by the
Pledgor pursuant to Section 6.4.
SECTION VI.3. Administrative Agent Has No Duty. The powers conferred
on the Administrative Agent hereunder are solely to protect its interest (on
behalf of the Secured Parties) in the Collateral and shall not impose any duty
on it to exercise any such powers. Except for reasonable care of any Collateral
in its possession and the accounting for moneys actually received by it
hereunder, the Administrative Agent shall have no duty as to any Collateral or
responsibility for
(a) ascertaining or taking action with respect to calls,
conversions, exchanges, maturities, tenders or other matters relative
to any Pledged Property, whether or not the Administrative Agent has
or is deemed to have knowledge of such matters, or
(b) taking any necessary steps to preserve rights against
prior parties or any other rights pertaining to any Collateral.
SECTION VI.4. Reasonable Care. The Administrative Agent is required to
exercise reasonable care in the custody and preservation of any of the
Collateral in its possession; provided, however, the Administrative Agent shall
be deemed to have exercised reasonable care in the custody and preservation of
any of the Collateral, if it takes such action for that purpose as the Pledgor
reasonably requests in writing at times other than upon the occurrence and
during the continuance of any Default of the nature referred to in Section
8.1.1 or 8.1.9 or Event of Default, but failure of the Administrative Agent to
comply with any such request at any time shall not in itself be deemed a
failure to exercise reasonable care.
ARTICLE VII
REMEDIES
SECTION VII.1. Certain Remedies. If any Default of the nature referred
to in Section 8.1.9 or Event of Default shall have occurred and be continuing:
(a) The Administrative Agent may exercise in respect of the
Collateral, in addition to other rights and remedies
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provided for herein or otherwise available to it, all the rights and
remedies of a secured party on default under the U.C.C. (whether or
not the U.C.C. applies to the affected Collateral) and also may,
without notice except as specified below, sell the Collateral or any
part thereof in one or more parcels at public or private sale, at any
of the Administrative Agent's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the
Administrative Agent may deem commercially reasonable. The Pledgor
agrees that, to the extent notice of sale shall be required by law, at
least ten days' prior notice to the Pledgor of the time and place of
any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. The Administrative Agent
shall not be obligated to make any sale of Collateral regardless of
notice of sale having been given. The Administrative Agent may adjourn
any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
(b) The Administrative Agent may
(i) transfer all or any part of the Collateral into
the name of the Administrative Agent or its nominee, with or
without disclosing that such Collateral is subject to the
lien and security interest hereunder,
(ii) notify the parties obligated on any of the
Collateral to make payment to the Administrative Agent of any
amount due or to become due thereunder,
(iii) enforce collection of any of the Collateral by
suit or otherwise, and surrender, release or exchange all or
any part thereof, or compromise or extend or renew for any
period (whether or not longer than the original period) any
obligations of any nature of any party with respect thereto,
(iv) endorse any checks, drafts, or other writings
in the Pledgor's name to allow collection of the Collateral,
(v) take control of any proceeds of the Collateral,
and
(vi) execute (in the name, place and stead of the
Pledgor) endorsements, assignments, stock powers and other
instruments of conveyance or transfer with respect to all or
any of the Collateral.
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SECTION VII.2. Securities Laws. If the Administrative Agent shall
determine to exercise its right to sell all or any of the Collateral pursuant
to Section 6.1, the Pledgor agrees that, upon request of the Administrative
Agent, the Pledgor will, at its own expense:
(a) execute and deliver, and cause each issuer of the
Collateral contemplated to be sold and the directors and officers
thereof to execute and deliver, all such instruments and documents,
and do or cause to be done all such other acts and things, as may be
necessary or, in the opinion of the Administrative Agent, advisable to
register such Collateral under the provisions of the Securities Act of
1933, as from time to time amended (the "Securities Act"), and to
cause the registration statement relating thereto to become effective
and to remain effective for such period as prospectuses are required
by law to be furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion of the
Administrative Agent, are necessary or advisable, all in conformity
with the requirements of the Securities Act and the rules and
regulations of the Securities and Exchange Commission applicable
thereto;
(b) use its best efforts to qualify the Collateral under the
state securities or "Blue Sky" laws and to obtain all necessary
governmental approvals for the sale of the Collateral, as requested by
the Administrative Agent;
(c) cause each such issuer to make available to its security
holders, as soon as practicable, an earnings statement that will
satisfy the provisions of Section 11(a) of the Securities Act; and
(d) do or cause to be done all such other acts and things as
may be necessary to make such sale of the Collateral or any part
thereof valid and binding and in compliance with applicable law.
The Pledgor further acknowledges the impossibility of ascertaining the amount
of damages that would be suffered by the Administrative Agent or the Secured
Parties by reason of the failure by the Pledgor to perform any of the covenants
contained in this Section and, consequently, agrees that, if the Pledgor shall
fail to perform any of such covenants, it shall pay, as liquidated damages and
not as a penalty, an amount equal to the value (as determined by the
Administrative Agent) of the Collateral on the date the Administrative Agent
shall demand compliance with this Section.
SECTION VII.3. Compliance with Restrictions. The Pledgor agrees that
in any sale of any of the Collateral whenever an
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Event of Default shall have occurred and be continuing, the Administrative
Agent is hereby authorized to comply with any limitation or restriction in
connection with such sale as it may be advised by counsel is necessary in order
to avoid any violation of applicable law (including compliance with such
procedures as may restrict the number of prospective bidders and purchasers,
require that such prospective bidders and purchasers have certain
qualifications, and restrict such prospective bidders and purchasers to persons
who will represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or resale of such
Collateral), or in order to obtain any required approval of the sale or of the
purchaser by any governmental regulatory authority or official, and the Pledgor
further agrees that such compliance shall not result in such sale being
considered or deemed not to have been made in a commercially reasonable manner,
nor shall the Administrative Agent be liable nor accountable to the Pledgor for
any discount allowed by the reason of the fact that such Collateral is sold in
compliance with any such limitation or restriction.
SECTION VII.4. Application of Proceeds. All cash proceeds received by
the Administrative Agent in respect of any sale of, collection from, or other
realization upon, all or any part of the Collateral may, in the discretion of
the Administrative Agent, be held by the Administrative Agent as additional
collateral security for, or then or at any time thereafter be applied (after
payment of any amounts payable to the Administrative Agent pursuant to Section
10.3 of the Credit Agreement and Section 6.5) in whole or in part by the
Administrative Agent against, all or any part of the Obligations in such order
as the Administrative Agent shall elect.
Any surplus of such cash or cash proceeds held by the Administrative
Agent and remaining after payment in full in cash of all the Obligations and
the termination of all Commitments, shall be paid over to the Pledgor or to
whomsoever may be lawfully entitled to receive such surplus.
SECTION VII.5. Indemnity and Expenses. The Pledgor hereby indemnifies
and holds harmless the Administrative Agent from and against any and all
claims, losses, and liabilities arising out of or resulting from this Pledge
Agreement (including enforcement of this Pledge Agreement), except claims,
losses, or liabilities resulting from the Administrative Agent's gross
negligence or wilful misconduct. Upon demand, the Pledgor will pay to the
Administrative Agent the amount of any and all reasonable expenses, including
the reasonable fees and disbursements of its counsel and of any experts and
agents, which the Administrative Agent may incur in connection with:
(a) the administration of this Pledge Agreement, the Credit
Agreement and each other Loan Document;
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(b) the custody, preservation, use, or operation of, or the
sale of, collection from, or other realization upon, any of the
Collateral;
(c) the exercise or enforcement of any of the rights of the
Administrative Agent hereunder; or
(d) the failure by the Pledgor to perform or observe any of
the provisions hereof.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION VIII.1. Loan Document. This Pledge Agreement is a Loan
Document executed pursuant to the Credit Agreement and shall (unless otherwise
expressly indicated herein) be construed, administered and applied in
accordance with the terms and provisions thereof.
SECTION VIII.2. Amendments, etc. No amendment to or waiver of any
provision of this Pledge Agreement nor consent to any departure by the Pledgor
herefrom shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent (on behalf of the Lenders or the
Required Lenders, as the case may be), and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it is given.
SECTION VIII.3. Protection of Collateral. The Administrative Agent may
from time to time, at its option, perform any act which the Pledgor agrees
hereunder to perform and which the Pledgor shall fail to perform after being
requested in writing so to perform (it being understood that no such request
need be given after the occurrence and during the continuance of any Default of
the nature referred to in Section 8.1.1 or 8.1.9 or Event of Default) and the
Administrative Agent may from time to time take any other action which the
Administrative Agent reasonably deems necessary for the maintenance,
preservation or protection of any of the Collateral or of its security interest
therein.
SECTION VIII.4. Addresses for Notices. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic communication) and mailed or telecopied or delivered to either
party hereto, addressed to such party at such party's address specified in the
Credit Agreement. All such notices and other communications, when mailed and
properly addressed with postage prepaid or if properly addressed and sent by
pre-paid courier service, shall be deemed given when received;
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any such notice or communication, if transmitted by telecopier, shall be deemed
given when transmitted and electronically confirmed.
SECTION VIII.5. Section Captions. Section captions used in this Pledge
Agreement are for convenience of reference only, and shall not affect the
construction of this Pledge Agreement.
SECTION VIII.6. Severability. Wherever possible each provision of this
Pledge Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Pledge Agreement shall
be prohibited by or invalid under such law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Pledge
Agreement.
SECTION VIII.7. Counterparts. This Pledge Agreement may be executed by
the parties hereto in several counterparts, each of which shall be deemed to be
an original and all of which shall constitute together but one and the same
agreement.
SECTION VIII.8. Governing Law, Entire Agreement, etc. THIS PLEDGE
AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST
HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. THIS
PLEDGE AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER
HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT
THERETO.
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IN WITNESS WHEREOF, the parties hereto have caused this Pledge
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the day and year first above written.
TCI CABLEVISION OF PUERTO
RICO, INC.
By
----------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA, as Administrative
Agent
By
----------------------------------------
Name:
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<PAGE> 151
ATTACHMENT 1
to Borrower
Pledge Agreement
Item A. Pledged Shares
<TABLE>
<CAPTION>
Common Stock
---------------------------------------
Authorized Outstanding % of Shares
Pledged Share Issuer Shares Shares Pledged
- --------------------- ---------- ----------- -----------
<S> <C> <C> <C>
</TABLE>
Item B. Unrestricted Subsidiaries
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<PAGE> 152
[MBP DRAFT -- 04/25/97]
[EXHIBIT I]
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY (as amended, supplemented, amended and
restated or otherwise modified from time to time, this "Guaranty"), dated as of
_____ __, ____, is made by _____________, a __________ __________ (the
"Guarantor"), in favor of THE BANK OF NOVA SCOTIA ("Scotiabank"), as
administrative agent (the "Administrative Agent") for each of the Secured
Parties.
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of April 30, 1997
(as amended, supplemented, amended and restated or otherwise modified from time
to time, the "Credit Agreement"), among TCI Cablevision of Puerto Rico, Inc., a
Delaware corporation (the "Borrower"), the various financial institutions as
are or may become parties thereto (each, individually, a "Lender", and
collectively, the "Lenders") and the Administrative Agent, the Lenders have
extended Commitments to make Loans to, and have made Loans to, the Borrower;
WHEREAS, as a condition precedent to being designated as a Restricted
Subsidiary under the Credit Agreement and being entitled to the benefits
available thereunder to Restricted Subsidiaries, the Guarantor is required to
execute and deliver this Guaranty;
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial direct and indirect
benefits from the Loans made from time to time to the Borrower by the Lenders
pursuant to the Credit Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, and in order to induce the Lenders to continue to
make Loans to the Borrower pursuant to the Credit Agreement, the Guarantor
agrees, for the benefit of each Secured Party, as follows:
<PAGE> 153
ARTICLE II
DEFINITIONS
SECTION II.1. Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"Administrative Agent" is defined in the preamble.
"Borrower" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender" and "Lenders" are defined in the first recital.
"Obligations" means all obligations (monetary or otherwise) of the
Borrower to the Administrative Agent or the Lenders arising under or in
connection with the Credit Agreement, the Notes and each other Loan Document.
SECTION II.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this Guaranty,
including its preamble and recitals, have the meanings provided in the Credit
Agreement.
ARTICLE III
GUARANTY PROVISIONS
SECTION III.1. Guaranty. The Guarantor hereby absolutely,
unconditionally and irrevocably
(a) guarantees the full and punctual payment when due,
whether at stated maturity, by required prepayment, declaration,
acceleration, demand or otherwise, of all Obligations of the Borrower
and each other Obligor now or hereafter existing, whether for
principal, interest, fees, expenses or otherwise (including all such
amounts which would become due but for the operation of the automatic
stay under Section 362(a) of the United States Bankruptcy Code, 11
U.S.C. ss.362(a), and the operation of Sections 502(b) and 506(b) of
the United States Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)),
and
(b) indemnifies and holds harmless each Secured Party
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and each holder of a Note for any and all costs and expenses
(including reasonable attorney's fees and expenses) incurred by such
Secured Party or such holder, as the case may be, in enforcing any
rights under this Guaranty;
provided, however, that the Guarantor shall be liable under this Guaranty for
the maximum amount of such liability that can be hereby incurred without
rendering this Guaranty, as it relates to the Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and
not for any greater amount. This Guaranty constitutes a guaranty of payment
when due and not of collection, and the Guarantor specifically agrees that it
shall not be necessary or required that any Secured Party or any holder of any
Note exercise any right, assert any claim or demand or enforce any remedy
whatsoever against the Borrower or any other Obligor (or any other Person)
before or as a condition to the obligations of the Guarantor hereunder.
SECTION III.2. Acceleration of Guaranty. The Guarantor agrees that, in
the event of the dissolution or insolvency of the Borrower, any other Obligor
or the Guarantor, or the inability or failure of the Borrower, any other
Obligor or the Guarantor to pay debts as they become due, or an assignment by
the Borrower, any other Obligor or the Guarantor for the benefit of creditors,
or the commencement of any case or proceeding in respect of the Borrower, any
other Obligor or the Guarantor under any bankruptcy, insolvency or similar
laws, and if such event shall occur at a time when any of the Obligations of
the Borrower and each other Obligor may not then be due and payable, the
Guarantor agrees that it will pay to the Lenders forthwith the full amount
which would be payable hereunder by the Guarantor if all such Obligations were
then due and payable.
SECTION III.3. Guaranty Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of the
Borrower and each other Obligor have been paid in full in cash, all obligations
of the Guarantor hereunder shall have been paid in full in cash and all
Commitments shall have terminated. The Guarantor guarantees that the
Obligations of the Borrower and each other Obligor will be paid strictly in
accordance with the terms of the Credit Agreement and each other Loan Document
under which they arise, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Secured Party or any holder of any Note with respect thereto. The
liability of the Guarantor under this Guaranty shall be absolute, unconditional
and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the
Credit Agreement, any Note or any other Loan
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Document;
(b) the failure of any Secured Party or any holder of any
Note
(i) to assert any claim or demand or to enforce any
right or remedy against the Borrower, any other Obligor or
any other Person (including any other guarantor (including
the Guarantor)) under the provisions of the Credit Agreement,
any Note, any other Loan Document or otherwise, or
(ii) to exercise any right or remedy against any
other guarantor (including the Guarantor) of, or collateral
securing, any Obligations of the Borrower or any other
Obligor;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower or
any other Obligor, or any other extension, compromise or renewal of
any Obligation of the Borrower or any other Obligor;
(d) any reduction, limitation, impairment or termination of
any Obligations of the Borrower or any other Obligor for any reason,
including any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to (and the Guarantor hereby
waives any right to or claim of) any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity,
illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Obligations of the
Borrower, any other Obligor or otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms of
the Credit Agreement, any Note or any other Loan Document;
(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to departure from, any other
guaranty, held by any Secured Party or any holder of any Note securing
any of the Obligations of the Borrower or any other Obligor; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the
Borrower, any other Obligor, any surety or any guarantor.
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<PAGE> 156
SECTION III.4. Reinstatement, etc. The Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be,
if at any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any Secured Party or any holder of
any Note, upon the insolvency, bankruptcy or reorganization of the Borrower,
any other Obligor or otherwise, all as though such payment had not been made.
SECTION III.5. Waiver, etc. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Borrower or any other Obligor and this Guaranty and any
requirement that the Administrative Agent, any other Secured Party or any
holder of any Note protect, secure, perfect or insure any security interest or
Lien, or any property subject thereto, or exhaust any right or take any action
against the Borrower, any other Obligor or any other Person (including any
other guarantor) or entity or any collateral securing the Obligations of the
Borrower or any other Obligor, as the case may be.
SECTION III.6. Postponement of Subrogation, etc. The Guarantor agrees
that it will not exercise any rights which it may acquire by way of rights of
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until the prior indefeasible payment in full in cash of all Obligations of the
Borrower and each other Obligor and the termination of all Commitments. Any
amount paid to the Guarantor on account of any such subrogation rights prior to
the payment in full in cash of all Obligations of the Borrower and each other
Obligor shall be held in trust for the benefit of the Secured Parties and each
holder of a Note and shall immediately be paid to the Administrative Agent for
the benefit of the Secured Parties and each holder of a Note and credited and
applied against the Obligations of the Borrower and each other Obligor, whether
matured or unmatured, in accordance with the terms of the Credit Agreement;
provided, however, that if
(a) the Guarantor has made payment to the Secured Parties and
each holder of a Note of all or any part of the Obligations of the
Borrower or any other Obligor, and
(b) all Obligations of the Borrower and each other Obligor
have been indefeasibly paid in full in cash and all Commitments have
been permanently terminated,
each Secured Party and each holder of a Note agrees that, at the Guarantor's
request, the Administrative Agent, on behalf of the Secured Parties and the
holders of the Notes, will execute and deliver to the Guarantor appropriate
documents (without recourse and without representation or warranty) necessary
to evidence the transfer by subrogation to the Guarantor of an interest in the
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Obligations of the Borrower and each other Obligor resulting from such payment
by the Guarantor. In furtherance of the foregoing, for so long as any
Obligations or Commitments remain outstanding, the Guarantor shall refrain from
taking any action or commencing any proceeding against the Borrower or any
other Obligor (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in the respect of
payments made under this Guaranty to any Secured Party or any holder of a Note.
SECTION III.7. Successors, Transferees and Assigns; Transfers of
Notes, etc. This Guaranty shall:
(a) be binding upon the Guarantor, and its successors,
transferees and assigns; and
(b) inure to the benefit of and be enforceable by the
Administrative Agent and each other Secured Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note held by it to any
other Person or entity, and such other Person or entity shall thereupon become
vested with all rights and benefits in respect thereof granted to such Lender
under any Loan Document (including this Guaranty) or otherwise, subject,
however, to any contrary provisions in such assignment or transfer, and to the
provisions of Section 10.11 and Article IX of the Credit Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Guarantor hereby represents and warrants to each Secured Party
that the representations and warranties contained in Article VI of the Credit
Agreement, insofar as the representations and warranties contained therein are
applicable to it and its properties, are true and correct in all material
respects, each such representation and warranty set forth in such Article
(insofar as applicable as aforesaid) and all other terms of the Credit
Agreement to which reference is made therein, together with all related
definitions and ancillary provisions, being hereby incorporated into this
Guaranty by reference as though specifically set forth in this Article.
ARTICLE V
COVENANTS, ETC.
The Guarantor covenants and agrees that, so long as any
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<PAGE> 158
portion of the Secured Obligations shall remain unpaid or any Lender shall have
any outstanding Commitment, it will, unless the Required Lenders shall
otherwise consent in writing, perform, comply with and be bound by all of the
agreements, covenants and obligations contained in Article VII of the Credit
Agreement which are applicable to the Guarantor or its properties, each such
agreement, covenant and obligation contained in such Article and all other
terms of the Credit Agreement to which reference is made herein, together with
all related definitions and ancillary provisions, being hereby incorporated
into this Guaranty by reference as though specifically set forth in this
Article.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION VI.1. Loan Document. This Guaranty is a Loan Document executed
pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof, including Article X thereof.
SECTION VI.2. Binding on Successors, Transferees and Assigns;
Assignment. In addition to, and not in limitation of, Section 2.7, this
Guaranty shall be binding upon the Guarantor and its successors, transferees
and assigns and shall inure to the benefit of and be enforceable by each
Secured Party and each holder of a Note and their respective successors,
transferees and assigns (to the full extent provided pursuant to Section 2.7);
provided, however, that the Guarantor may not assign any of its obligations
hereunder without the prior written consent of all Lenders.
SECTION VI.3. Amendments, etc. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by the Guarantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Administrative Agent (on behalf of the Lenders or the
Required Lenders, as the case may be) and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
SECTION VI.4. Notices. All notices and other communications provided
for hereunder shall be in writing (including telegraphic communication) and,
mailed or telecopied or delivered to the Guarantor, in care of the Borrower at
the address of the Borrower specified in the Credit Agreement. All such notices
and other communications, when mailed and properly addressed with postage
prepaid or if properly addressed and sent by pre-paid courier service, shall be
deemed given when received; any such notice or communication, if transmitted by
telecopier,
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shall be deemed given when transmitted and electronically confirmed.
SECTION VI.5. No Waiver; Remedies. In addition to, and not in
limitation of, Section 2.3 and Section 2.5, no failure on the part of any
Secured Party or any holder of a Note to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION VI.6. Captions. Section captions used in this Guaranty are for
convenience of reference only, and shall not affect the construction of this
Guaranty.
SECTION VI.7. Setoff. In addition to, and not in limitation of, any
rights of any Secured Party or any holder of a Note under applicable law, each
Secured Party and each such holder shall, upon the occurrence of any Default
described in any of clauses (a) through (d) of Section 8.1.9 of the Credit
Agreement or with the consent of the Required Lenders, any Event of Default,
have the right to appropriate and apply to the payment of the obligations of
the Guarantor owing to it hereunder, whether or not then due, and the Guarantor
hereby grants to each Secured Party and each such holder a continuing security
interest in, any and all balances, credits, deposits, accounts or moneys of the
Guarantor then or thereafter maintained with such Secured Party, or such holder
or any agent or bailee for such Secured Party or such holder; provided,
however, that any such appropriation and application shall be subject to the
provisions of Section 4.8 of the Credit Agreement.
SECTION VI.8. Severability. Wherever possible each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION VI.9. Governing Law, Entire Agreement, etc. THIS GUARANTY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS
OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402
OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK). THIS GUARANTY AND THE
OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING AMONG THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR
AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
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<PAGE> 160
SECTION VI.10. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES
OR THE GUARANTOR SHALL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, BE BROUGHT
AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK, NEW YORK
COUNTY OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY
MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. THE GUARANTOR HEREBY EXPRESSLY
AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW
YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER
MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH
COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT
IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE GUARANTOR HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THE
GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
SECTION VI.11. Waiver of Jury Trial. THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE SECURED PARTIES OR THE GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE
CREDIT AGREEMENT.
SECTION VI.12. Counterparts. This Guaranty may be executed
-9-
<PAGE> 161
by the parties hereto in several counterparts, each of which shall be deemed to
be an original and all of which shall constitute together but one and the same
agreement.
-10-
<PAGE> 162
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
[NAME OF GUARANTOR]
By
-------------------------------
Name:
Title:
-11-
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FORM 10-Q
FOR THE QUARTER ENDED MARCH 31, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 6,882
<SECURITIES> 0
<RECEIVABLES> 8,533
<ALLOWANCES> 0
<INVENTORY> 4,951
<CURRENT-ASSETS> 0
<PP&E> 251,776
<DEPRECIATION> 64,369
<TOTAL-ASSETS> 1,667,761
<CURRENT-LIABILITIES> 0
<BONDS> 490,466
0
0
<COMMON> 118,661
<OTHER-SE> 823,631
<TOTAL-LIABILITY-AND-EQUITY> 1,667,761
<SALES> 0
<TOTAL-REVENUES> 65,611
<CGS> 0
<TOTAL-COSTS> 37,685
<OTHER-EXPENSES> 15,713
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 9,438
<INCOME-PRETAX> (59,760)
<INCOME-TAX> (26,305)
<INCOME-CONTINUING> (33,455)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (33,455)
<EPS-PRIMARY> (.28)
<EPS-DILUTED> (.28)
</TABLE>
