EXHIBIT 10.2.4
SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
By and Among
CORESTATES BANK, N.A., for itself
and as Agent
DRESDNER BANK AG, and
PNC BANK, NATIONAL ASSOCIATION
and
▇▇▇▇▇ CABLE INCOME FUND I-B/C VENTURE
May 7, 1997
TABLE OF CONTENTS
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ARTICLE I - LOANS AND NOTE................................................ 2
1.1. Revolving Credit Facility ..................................... 2
1.2. Use of Proceeds................................................ 4
1.3. Commitment Fee................................................. 4
1.4. Facility Fee................................................... 4
1.5. Termination or Reduction of the Commitment..................... 4
1.6. Prepayment .................................................... 5
1.7. Rate of Interest............................................... 6
(a) Prime Rate Loans........................................... 6
(b) Eurodollar Loans........................................... 6
1.8. Interest Periods............................................... 6
1.9. Funding Costs.................................................. 7
1.10. Other Increased Costs.......................................... 7
1.11. Payments....................................................... 8
1.12. Special Provisions Applicable to Eurodollar Loans.............. 8
(a) Change of LIBO Rate........................................ 8
(b) Unavailability of Eurodollar Funds......................... 9
1.13. Taxes.......................................................... 9
ARTICLE II - ADMINISTRATION OF CREDIT.....................................11
2.1. Borrowing Procedure............................................11
2.2. Computations; Non-Business Days................................11
2.3. Application of Payments........................................12
2.4. Pro Rata, Treatment............................................12
2.5. Deposits; Set Off..............................................12
SECTION 2A - LETTERS OF CREDIT............................................13
2A.1 Availability of Credit.........................................13
2A.2 Conunitment Availability.......................................13
2A.3 Approval and Issuance..........................................13
2A.4 Obligations of the Company.....................................14
2A.5 Payment by Banks on Letters of Credit..........................15
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2A.6 Collateral Security................................. 15
2A.7 General Terms of Credits............................ 16
ARTICLE III - CONDITIONS PRECEDENT OF BORROWING................ 17
3.1. Representations..................................... 17
3.2. Subordination....................................... 17
3.3. Security Agreement.................................. 17
3.4. Insurance Certificate............................... 18
3.5. Counsel Opinion..................................... 18
3.6. Proceedings Satisfactory............................ 18
ARTICLE IV - REPRESENTATIONS AND WARRANTIES.................... 18
4.1. Organization........................................ 18
4.2. Authority........................................... 18
4.3. Investment Company Act of 1940...................... 19
4.4. Employee Retirement Income Security Act............. 19
4.5. Financial Statements................................ 19
4.6. Liens............................................... 19
4.7. Contingent Liabilities.............................. 19
4.8. Partnership Tax Matters............................. 20
4.9. Absence of Litigation............................... 20
4.10. Absence of Default.................................. 20
4.11. Material Agreements................................. 20
4.12. Partnerships; Joint Ventures........................ 21
4.13. Full Disclosure..................................... 21
4.14. Fiscal Year......................................... 21
4.15. Franchises, Licenses, etc........................... 21
4.16. Cable Systems....................................... 21
4.17. Hazardous Wastes, Substances and Petroleum Products. 22
4.18. Compliance.......................................... 22
4.19. Perfection of Security Interests.................... 22
ARTICLE V - NEGATIVE COVENANTS................................. 23
5.1. Restriction of Indebtedness......................... 23
5.2. Amendments and Prepayments.......................... 23
5.3. Restriction on Liens................................ 23
5.4. Sale and Leaseback.................................. 23
5.5. Acquisitions, Loans and Investments................. 23
5.6. Liquidation; Merger; Disposition of Assets.......... 24
5.7. Accounts Receivable................................. 25
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5.8. Contingent Liabilities.................................. 25
5.9. Affiliates.............................................. 25
5.10 Management Fees and Home Office Allocations............. 25
5.11. Restricted Payments..................................... 25
5.12. Partnerships; Joint Ventures; Partnership Documents..... 26
ARTICLE VI - AFFIRMATIVE COVENANTS................................. 26
6.1. Financial Covenants..................................... 26
6.2. Insurance............................................... 26
6.3. Partnership Existence; Obligations...................... 27
6.4. Business Activities; Management......................... 27
6.5. Properties.............................................. 27
6.6. Accounting Records; Reports............................. 27
6.7. Inspection of Records; Information...................... 29
6.8. Compliance; Notification ............................... 29
ARTICLE VII - DEFAULTS............................................. 30
7.1. Default in Payment...................................... 30
7.2. Default on Certain Covenants............................ 30
7.3. Default in Performance of Other Agreements.............. 30
7.4. Representations or Statements False..................... 30
7.5. Default on Other Obligations............................ 30
7.6. Judgments............................................... 30
7.7. Bankruptcy; Insolvency.................................. 31
7.8. Validity................................................ 31
7.9. ERISA................................................... 31
7.10. Revocation of Franchise, etc............................ 31
7.11. Termination or Dissolution of the Company, etc.......... 32
7.12. Environmental Matters................................... 32
ARTICLE VIII - THE AGENT........................................... 33
8.1. Appointment and Powers.................................. 33
8.2. Application of Payments................................. 33
8.3. Modifications and Waivers............................... 33
8.4. Obligations Several..................................... 34
8.5. Responsibility.......................................... 34
8.6. Agent's Indemnification................................. 34
8.7. Action on Instruction of Banks; Right to Indemnity...... 35
8.8. Rights as a Lender...................................... 35
8.9. Credit Investigation.................................... 35
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8.10. Resignation, Removal of Agent............................. 36
8.11. Successor Agent........................................... 36
8.12. Collateral Security....................................... 36
8.13. Enforcement by Agent...................................... 36
ARTICLE IX - MISCELLANEOUS........................................... 37
9.1. Accounting Terms; Definitions............................. 37
(a) "Affiliate".......................................... 37
(b) "Annualized Cash Flow"............................... 37
(c) "Applicable Margin".................................. 37
(d) "Bank"............................................... 38
(e) "Base Rate".......................................... 38
(f) "Basic Subscribers".................................. 38
(g) "Business Day"....................................... 38
(h) "Capitalized Lease".................................. 38
(i) "Cash Flow".......................................... 38
(j) "Controlled Group"................................... 38
(k) "Debt Service"....................................... 38
(1) "Default"............................................ 38
(m) "Environmental Control Statutes"..................... 39
(n) "ERISA".............................................. 39
(o) "Eurodollar Loan".................................... 39
(p) "Federal Funds Rate"................................. 39
(q) "Gross Operating Revenues"........................... 39
(r) "Home Office Allocations"............................ 39
(s) "Intercompany Subordinated Debt"..................... 39
(t) "Interest Expense"................................... 40
(u) "Letter of Credit"................................... 40
(v) "Letter of Credit Request Form"...................... 40
(w) "Letter of Credit Sublimit".......................... 40
(x) "Leverage Ratio"..................................... 40
(y) "LIBO Rate".......................................... 40
(z) "Loan"............................................... 40
(aa) "LOC Contribution"................................... 40
(bb) "London Business Day"................................ 40
(cc) "Management Fees".................................... 41
(dd) "Maximum Permitted Indebtedness"..................... 41
(ee) "Note" and "Notes"................................... 41
(ff) "Permitted Liens".................................... 41
(gg) "Plan"............................................... 42
(hh) "Prime Rate"......................................... 42
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(ii) "Prime Rate Loan"................................... 42
(jj) "Proforma Debt Service"............................. 42
(kk) "Pro rata" or "Ratably"............................. 42
(11) "Reportable Event".................................. 42
(mm) "Required Banks".................................... 43
(nn) "Restricted Payments"............................... 43
(oo) "Security Agreement"................................ 43
(pp) "Subordination Agreement"........................... 43
(qq) "Subsidiary"........................................ 43
(rr) "Termination Date".................................. 43
(ss) "Total Debt"........................................ 43
9.2. Expenses and Attorneys' Fees............................. 43
9.3. Securities Act of 1933................................... 44
9.4. Successors............................................... 44
9.5. Survival................................................. 44
9.6. Pennsylvania Law; Amendment.............................. 44
9.7. Counterparts............................................. 44
9.8. Notices.................................................. 44
9.9. Limitation on Recourse to Partners....................... 45
9.10. Indemnification and Release Provisions................... 46
9.11. Participations and Assignments........................... 46
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SECOND AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
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THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this
"Agreement") is made this 7th day of May, 1997, by and among ▇▇▇▇▇ CABLE INCOME
FUND 1-B/C VENTURE, a Colorado general partnership (the "Company"); CORESTATES
BANK, N.A., a national banking association with offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CoreStates", and in its capacity as agent for the
Banks, "Agent"); DRESDNER BANK AG, a bank organized under the laws of Germany
acting through its branch office at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
("Dresdner"); and PNC Bank, National Association, a national banking association
with offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("PNC") (CoreStates,
Dresdner and PNC each individually a "Bank" and collectively the "Banks").
W I T N E S S E T H:
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WHEREAS, the Company is a Colorado joint venture general partnership
in which ▇▇▇▇▇ Cable Income Fund 1-B, Ltd. and ▇▇▇▇▇ Cable Income Fund 1-C,
Ltd., each a Colorado limited partnership (the "Partnerships"), are the sole
partners, and ▇▇▇▇▇ Intercable, Inc., a Colorado corporation ("JII"), is the
sole general partner of each of the Partnerships;
WHEREAS, the Company, Agent, Banks and First National Bank of Maryland
("First Maryland") are parties to an Amended and Restated Revolving Credit
Agreement dated September 30, 1994 (as amended prior to the date hereof, the
"Existing Credit Agreement"), which was the first full amendment and restatement
of that certain Revolving Credit Agreement by and among the parties dated
September 29, 1988;
WHEREAS, First Maryland has requested the Company, Agent and the Banks
to consent to First Maryland's resignation as a Bank under the Existing Credit
Agreement, and the Company, Agent, and the Banks have agreed to such
resignation;
WHEREAS, the Company, has sold its Brighton and Broomfield, Colorado
cable television systems and has applied a portion of the net proceeds of such
sales to reduce the Company's outstanding indebtedness under the Existing Credit
Agreement;
WHEREAS, the existing Credit Agreement is due to expire June 30, 1997,
and the Company, Agent and Banks have agreed to amend and restate the Existing
Credit Agreement in its entirety to extend the term thereof to June 30, 2005,
reduce the Commitment thereunder and make certain amendments thereto as set
forth herein, all subject to the terms and conditions hereof;
WHEREAS, the amendment and restatement of the Existing Credit
Agreement hereunder, the amendment and restatement of related documents in
connection herewith, and the resignation of First Maryland, are not intended by
the parties to constitute a novation, discharge
or satisfaction of the indebtedness of the Company under the Existing Credit
Agreement or any collateral security therefor, all of which indebtedness and
collateral security shall remain outstanding under this Agreement and documents
executed in connection herewith.
NOW, THEREFORE, in consideration of the premises and the agreements
herein set forth and intending to be legally bound hereby, the parties hereby
amend and restate the Existing Credit Agreement in its entirety as follows:
ARTICLE I
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LOANS AND NOTE
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1.1. Revolving Credit Facility.
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(a) Loans. Subject to the requirements of Article III hereof, from
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time to time prior to the earlier of (i) June 30, 2005 or (ii) the termination
in full of the Commitments (in either case the "Termination Date"), the Company
may obtain Loans from the Banks, on a pro rata basis, up to the amount of such
Bank's outstanding Commitment as set forth in subsection (b) below (as reduced
in connection with outstanding Letters of Credit pursuant to Section 2A.2
hereof), repay such Loans and reborrow hereunder. Each Loan shall be in a
minimum amount of One Hundred Thousand Dollars ($100,000).
(b) Banks' Several Commitments. The amount of each Bank's several
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Commitment is set forth next to its name below:
Banks Commitment amounts
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CoreStates $11,500,000
Dresdner $ 8,000,000
PNC $ 8,000,000
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TOTAL $27,500,000
(c) On and as of the date of this Agreement (prior to any funding of
any Loans requested by the Company), each Bank shall transfer to Agent, in
immediately available funds, the difference between its respective pro rata
share (based on the Commitments set forth in (b) above) of the total outstanding
principal amount of the Loans and its pro rata shares of the aggregate
outstanding amount of Loans under the Existing Credit Agreement immediately
prior to the effectiveness of this Agreement. Agent shall transfer such amounts,
in immediately available funds, to First Maryland in an amount sufficient to
cause First Maryland to be repaid all of its remaining Loans outstanding under
the Existing Credit Agreement. Such transfers of funds by the Banks shall be
deemed for all purposes under the Existing Credit
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Agreement to be Loans to the Company by such Banks, outstanding hereunder on and
as of the date of this Agreement. On the date of this Agreement (prior to the
funding of any Loans requested by the Company), the Company shall transfer to
Agent, in immediately available funds, payments of all Commitment Fees and
interest accrued under the Existing Credit Agreement since the last date of
payment thereof, and Agent shall transfer such amounts to the Banks and First
Maryland in accordance with the amount of their respective Commitments under the
Existing Credit Agreement immediately prior to the transactions contemplated
pursuant to this Agreement.
(d) Notes.
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(i) The indebtedness of the Company to each Bank under this
Agreement will be evidenced by a Note executed by the Company in favor of such
Bank in the form of Exhibit A hereto. The original principal amount of each
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Bank's Note from the Company will be the amount identified in Section 1.1(b)
hereof as its respective Commitment Amount; provided, however, that
notwithstanding the face amount of each such Note, the Company's liability under
each such Note shall be limited at all times to its aggregate actual
indebtedness, including principal, interest and fees, and obligations under
Letters of Credit and unreimbursed draws under Letters of Credit then
outstanding in connection with the applicable Bank's Commitment hereunder.
(ii) The Notes issued hereunder collectively amend and restate in
their entireties, and are substituted for, the Company's Fourth Amended and
Restated Revolving Credit Promissory Notes and the Company's three Revolving
Credit Promissory Notes, each dated May 31, 1994, and issued pursuant to the
Existing Credit Agreement, without any discharge, satisfaction or novation of
the underlying indebtedness or any collateral security therefor, all of which
indebtedness and collateral security remain outstanding under this Agreement and
the Note issued pursuant hereto and continue to be secured pursuant to the
Collateral Security Documents.
(iii) Although the Notes are payable in the full amount of each Bank's
Commitment, the Company shall be obligated to pay only the amounts actually
disbursed to or for the account of the Company, together with interest on the
unpaid balance of sums so disbursed which remains outstanding from time to time,
at the rates and on the dates specified in the Notes and in Sections 1.7 and 1.8
hereof, together with the fees and expenses provided herein. The Company agrees
that, if the Banks, in their sole discretion, agree to extend the Termination
Date or increase the Commitment, the Company will execute and deliver such
amended, restated or revised notes or other instruments and documents, and take
such other action, as the Banks may deem necessary or appropriate in connection
with any such extension of the Termination Date or increase in the Commitment.
(e) Maturity. The Company hereby agrees that on the Termination Date
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the entire outstanding balance under this Agreement, principal, interest, fees
and expenses,
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shall be due and payable in full and the Company hereby agrees to make such
payment on such date.
1.2. Use of Proceeds. The Company represents, warrants and agrees that:
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(a) The proceeds of the Loans made to the Company hereunder have been
or shall be used by the Company solely (i) to finance capital expenditures, (ii)
for general working capital purposes, and (iii) for payment to JII of advances
made by JII to the Company and Management Fees and Home Office Allocations
incurred in the ordinary course of business, to the extent permitted hereunder.
(b) No part of the proceeds of any Loan made hereunder will be used to
"purchase" or "carry" any "margin stock" or to extend credit to others for the
purpose of "purchasing" or "carrying" any "margin stock" (as such terms are
defined in the Regulation U of the Board of Governors of the Federal Reserve
System), and the assets of the Company do not include, and the Company has no
present intention of acquiring, any such security.
1.3. Commitment Fee. The Company shall pay to Agent, for distribution
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by the Agent to the Banks in accordance with their pro rata shares, a commitment
fee computed at the rate of 3/8% per annum on the difference existing from time
to time between (a) the aggregate amount of the Banks' Commitments (as they may
be reduced pursuant to Sections 1.5 and 2A.3), and (b) the outstanding unpaid
principal balance of sums disbursed to the Company by the Banks hereunder. Such
commitment fees shall accrue for the period from the date of this Agreement to
and including the Termination Date, and shall be payable in arrears on the last
day of March, June, September and December of each year, commencing June 30,
1997.
1.4. Facility Fee. Upon the execution of this Agreement, the Company
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shall pay to Agent, for distribution by Agent to the Banks in accordance with
their pro rata shares, a facility fee equal to three-eighths of one percent
(3/8%) of the aggregate amount of the Commitments.
1.5. Termination or Reduction of the Commitment.
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(a) Voluntary Reductions. The Company shall have the right, upon two
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Business Days' prior written notice to Agent, to ratably reduce in part the
Commitments at any time, provided, however, that each partial reduction of the
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Commitments shall be in a minimum amount of $1,000,000 in the aggregate and in
$100,000 multiples in excess thereof and provided, however, that no reduction
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shall reduce the Commitment of any Bank to an amount less than the aggregate
amount of the Loans of such Bank and such Bank's pro rata share of Letters of
Credit outstanding hereunder at the time. The entire Commitments of the Banks
may be terminated in whole at any time upon two Business Days' prior written
notice to Agent.
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(b) Scheduled Reductions. On the last day of each fiscal quarter
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during the periods set forth in the left hand column below, the Company shall
reduce each Bank's Commitment by the percentage in the right hand column below
multiplied by such Bank's Commitment as in effect at the opening of business on
September 30, 2000.
Percentage Reduction
of each Bank's
September 30, 2000 Commitment
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Period
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July 1, 2001 through December 31, 2000 2.5%
January 1, 2001 through December 31, 2001 3.75%
January 1, 2002 through December 31, 2003 5.0%
January 1, 2004 through December 31, 2004 6.25%
January 1, 2005 through June 30, 2005 7.5%
(c) Mandatory Reductions. In addition, the Company shall be required
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to reduce the Commitments on a pro rata basis (and the foregoing $1,000,000
minimum reduction shall not be applicable thereto), in connection with any sale
of a cable television system owned by the Company from time to time (all such
cable systems which are owned or hereafter acquired by the Company are
hereinafter referred to as the "Cable Systems"), in the amount determined
pursuant to Section 5.6 hereof. If the Company effectuates the third (3rd) sale
of a Cable System after September 30, 2000, and the Company reduces the
Commitments pursuant to this Section 1.5 and Section 5.6 hereof, then the amount
of such a reduction shall be applied against the scheduled reductions under
Section 1.5(b) in inverse order until the entire amount is so applied.
1.6. Prepayment. Subject to the provisions of Section 1.9 of this
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Agreement, the Company may prepay the Loans in whole or in part at any time
without premium or penalty; and the prepayments prior to the Termination Date
shall not reduce the Commitments and may be reborrowed. All prepayments shall be
made and applied pro rata against the Notes then outstanding. Prepayments shall
be not less than $1,000,000 in the aggregate and $100,000 multiples in excess
thereof. The Company shall notify the Agent at least one (1) Business Day in
advance of any such prepayments on a Prime Rate Loan and at least two (2)
Business Days in advance of any such prepayments of a Eurodollar Loan. In
addition to the foregoing, the Company shall be required to make a payment (and
the foregoing $1,000,000 minimum reduction shall not be applicable thereto) in
connection with any sale of a Cable System, in the amount determined pursuant to
Section 5.6 hereof.
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1.7. Rate of Interest. The Company shall pay interest on the unpaid
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principal amount of each Loan from the date of such Loan until the date the
principal balance of such Loan is paid in full at the following rates:
(a) Prime Rate Loans: During the periods that such Loan is a Prime
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Rate Loan, a rate equal to the Base Rate plus the Applicable Margin per annum,
with such interest rate changing when and as the Base Rate changes and when and
as the Applicable Margin changes;
(b) Eurodollar Loans: During each Interest Period of a Eurodollar
----------------
Loan, a rate equal to LIBO Rate for the Interest Period plus the Applicable
Margin per annum, with such rate to change when and as the Applicable Margin
changes;
provided, that, in each case, the unpaid principal balance of a Loan
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shall bear interest upon the occurrence and during the continuance of an Event
of Default at a rate equal to two percent (2%) per annum plus the Base Rate,
with such rate changing when and as such Base Rate changes.
1.8. Interest Periods. If and for so long as any Loan shall be maintained
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as a Eurodollar Loan, the period commencing on the date of such Loan and ending
on the date of payment in full shall be divided into "Interest Periods." The
initial Interest Period shall be selected by the Company in the applicable
notice required by section 2.1. The Company may select a subsequent Interest
Period for each Loan by notifying the Agent thereof at least one (1) Business
Day (in the case of a Prime Rate Loan) and two (2) London Business Days (in the
case of a Eurodollar Loan) prior to the first day of the new Interest Period.
Within 5 Business Days after the commencement of each Interest Period, the
Company shall deliver to the Agent written confirmation of the interest rate
applicable to the Eurodollar Loan to which such Interest Period relates and the
term of such Interest Period. If the Company fails to select a subsequent
Interest Period at the termination of an applicable Interest Period for any
Eurodollar Loan in accordance with the preceding sentence, such Loan shall be a
Prime Rate Loan thereafter, until such time that an Interest Period is selected.
The selection of Interest Periods is subject to the following provisions:
(a) Each Interest Period for a Eurodollar Loan shall be a period of
one (1), two (2), three (3) or six (6) months' duration, or such other periods
requested by the Company which are reasonably available from all the Banks in
their sole discretion in the case of Eurodollar Loans of $1,000,000 or more.
(b) Interest on each Loan (other than Loans bearing interest at the
rate for Prime Rate Loans) shall accrue from and including the first day of its
Interest Period to, but excluding, the day on which such Interest Period
expires.
(c) If any Interest Period would otherwise end on a day which is not a
London Business Day, such Interest Period shall be extended to the next
succeeding London
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Business Day unless such London Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding London Business
Day, as applicable (subject to Section 1.8(d) below).
(d) Any Interest Period for a Eurodollar Loan which begins on the
last London Business Day of a calendar Month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such Interest
Period) shall end on the last London Business Day of a calendar month.
(e) No Interest Period for a Loan may extend beyond the Termination
Date.
(f) No more than eight separate Interest Periods may be in effect at
any one time.
1.9. Funding Costs. In connection with any prepayment or repayment of
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a Eurodollar Loan made on other than the last day of the applicable Interest
Period, whether such prepayment or repayment is voluntary, mandatory, by demand,
acceleration or otherwise, and in connection with any failure by the Company to
fulfill on or before the date specified in a request for an advance of a
Eurodollar Loan the applicable conditions as set forth in this Agreement, the
Company shall pay to Banks all funding costs (other than loss of the Applicable
Margin) which may arise in connection with such prepayment or repayment or
failure to fund, as calculated by Agent in accordance with Exhibit B.
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1.10. Other Increased Costs. If, as a result of any (a) change in any
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law or regulation, or in the interpretation thereof by any court or
administrative or governmental authority, (b) charge generally imposed on banks
which are similarly situated to the Banks which affects any Bank in its dealings
in the London Interbank market, (c) violation by the Company of the terms of
this Agreement, or (d) the adoption of or change in any law, rule, regulation or
guideline affecting capital adequacy or compliance by a Bank (or any lending
office of such Bank) or such Bank's holding company with any request or
directive regarding capital adequacy of any court, administrative or
governmental authority, or central bank:
(i) the basis of taxation of payments to any Bank of the
principal of or interest on any Loan or any other amounts payable
under this Agreement (other than taxes imposed on the overall net
income of such Bank) is changed;
(ii) any reserve (including, without limitation, the
Certificate Reserve Percentage), special deposit or similar
requirement relating to any extension of credit or other asset of, or
any deposits with or other liabilities of any Bank which affects the
making or maintaining by such Bank of Loans hereunder is imposed,
modified or deemed applicable;
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(iii) any other condition or cost affecting this Agreement or
the making or maintaining by any Bank of Loans made hereunder is
imposed on such Bank by law or regulation; or
(iv) the rate of return on any Bank's capital or on the capital
of such Bank's holding company, if any, as a consequence of this
Agreement, the Commitments or the Loans is or would be reduced
and such Bank reasonably determines that, by reason thereof, the cost to it of
making or maintaining any Loan hereunder is increased, or any amount receivable
by it hereunder in respect to any such Loan is reduced, then the Bank so
affected shall notify the Company thereof within a reasonable time and the
Company shall pay to such Bank, upon written request (which request shall
describe the occurrence and include a calculation of such additional cost or
reduction), such additional amount or amounts as will, in the reasonable
determination of such Bank, compensate such Bank for such additional costs or
reduction; provided, however, that the Company's liability for additional
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amounts computed in accordance with this section shall neither be changed nor
waived by a failure of such Bank to give such notice.
1.11. Payments. Interest on Prime Rate Loans shall be due and payable
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quarterly on the last day of each March, June, September, and December,
commencing on the first of such days to occur after the date thereof; interest
on Eurodollar Loans shall be due and payable on the expiration date of each
applicable Interest Period and, if the Interest Period is longer than 90 days,
on the last day of each March, June, September and December commencing on the
first of such days to occur after the commencement of such Interest Period. In
addition, interest shall be due and payable on the Termination Date. The Agent
shall give the Company telephonic advice of the amount of each scheduled
principal and interest payment which shall be due on the Notes and shall
thereafter mail a ▇▇▇▇ to the Company therefor, but failure of the Agent to give
such telephonic advice or to mail any such ▇▇▇▇ shall not relieve the Company of
its obligations to make timely payments of principal and interest on the Notes.
1.12. Special Provisions Applicable to Eurodollar Loans.
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(a) Change of LIBO Rate. The LIBO Rate may be automatically adjusted
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by Agent on a prospective basis to take into account the additional or increased
cost of maintaining any necessary reserves for Eurodollar deposits or increased
costs due to changes in applicable law occurring subsequent to the commencement
of the then applicable Interest Period, including but not limited to changes in
tax laws (except changes of general applicability in corporate income tax laws)
and changes in the reserve requirements imposed by the Board of Governors of the
Federal Reserve System (or any successor) that increase the cost to Banks of
funding any Eurodollar Loan; provided, however, that each Bank shall use
reasonable efforts to minimize such costs, subject, in any event, to such Bank's
sole discretion. Agent shall give the Company notice of such a determination and
adjustment, which determination and adjustment made in good faith shall be prima
facie evidence of the correctness of the fact and the amount of
-8-
such adjustment. The Company may, by notice to Agent, (A) request Agent to
furnish to the Company a statement setting forth the basis for adjusting such
LIBO Rate and the method for determining the amount of such adjustment; and/or
(B) repay the Eurodollar Loan with respect to which such adjustment is made
pursuant to the requirements of Sections 1.6 and 1.19 hereof.
(b) Unavailability of Eurodollar Funds. In the event that the Company
----------------------------------
shall have requested a Eurodollar Loan in accordance with Section 1.8 hereof and
any Bank shall have reasonably determined that Eurodollar deposits equal to the
principal amount of such Eurodollar Loan and for the Interest Period specified
are unavailable or that the LIBO Rate will not adequately and fairly reflect the
cost of making or maintaining the principal amount of such Eurodollar Loan
during the Interest Period specified or that by reason of circumstances
affecting Eurodollar markets, adequate and reasonable means do not enlist for
ascertaining the LIBO Rate applicable to the specified Interest Period, Agent on
behalf of such Bank shall promptly give notice of such determination to the
Company that the LIBO Rate is not available. A determination by Agent hereunder
made in good faith shall be prima facie evidence of the correctness of such
fact. Upon such a determination, (i) the obligation to advance or maintain
Eurodollar Loans shall be suspended until Agent shall have notified the Company
and Banks that such conditions shall have ceased to exist, and (ii) the Company
shall elect the Prime Rate to be applicable to such Loan in accordance with
Section 1.8 hereof.
1.13. Taxes. Any and all payments by the Company to the Banks hereunder
-----
shall be made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding in the case of each Bank, (i) taxes
---------
assessed solely on the income of such Bank, (ii) taxes arising solely from a
connection between such Bank and the jurisdiction imposing such tax, other than
a connection arising from the activities of such Bank solely in connection with
this Agreement, and (iii) United States withholding tax payable with respect to
payments hereunder under laws (including, without limitation, any statute,
treaty, ruling, determination or regulation) in effect on the Initial Date (as
hereinafter defined) for such Bank, provided that any United States withholding
tax payable as a result of any changes in such laws occurring after the Initial
Date shall not be excluded (all such non-excluded taxes, levies, imposts,
deductions, charges, withholding and liabilities being hereinafter referred to
as "Taxes"). For purposes of this Section 1.13, the term "Initial Date" shall
mean, in the case of each Bank, the date of this Agreement and, in the case of
each assignee (for purposes of this Section 1.13, "Assignee"), the date of the
applicable assignment of the Loan. If any Taxes shall be required by law to be
deducted from or in respect of any sum payable hereunder or under any Note to
any Bank or Assignee, (i) the sum payable by the Company shall be increased as
may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 1.13) such
Bank or Assignee (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, but shall be decreased to
take into account any credit, deduction or offset available in any other
jurisdiction as a result of such payment, and (ii) the Company shall make such
deductions and pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law. The Company shall not,
-9-
however, be required to pay any amounts pursuant to clause (i) of the preceding
sentence to any Bank organized under the laws of a jurisdiction outside of the
United States, unless such Bank has provided to the Company either (x) a
facially complete Internal Revenue Service Form 4224 or Form 100 1 or other
applicable form, certificate or document prescribed by the United States
Internal Revenue Service certifying as to such Bank's entitlement to an
exemption from, or reduction of, United States withholding tax on payments to be
made hereunder or under the Notes or (y) a letter stating that such Bank is
unable lawfully to provide a properly completed and executed Form 4224 or Form
1001 or (z) other facially complete documents satisfactory to the Agent and the
Company indicating that all payments that will be made to such Bank are exempt
from or subject to a reduced rate of United States withholding tax.
The Company hereby agrees to pay each Bank the full amount of Taxes
(including, without limitation, any Taxes imposed by any jurisdiction on amounts
payable under this Section 1.13) paid by such Bank decreased to take into
account the effect of any credit, deduction or offset, as determined and
certified by such Bank's tax or accounting department to Company in good faith,
available in any other jurisdiction on account of the payment of Taxes, and any
liability (including penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto. Each Bank subject to Taxes agrees either, at
its option, to contest the payment of Taxes or to pay or permit the Company to
pay such Taxes when due and payable and, if any such Bank receives a rebate,
refund or other return of Taxes paid by the Company, such Bank will turn over to
the Company the amount rebated, refunded or returned. Payment under this
provision shall be made within thirty (30) days from the date such Bank makes
written demand therefor.
Within (30) days after the date of any payment of Taxes, the Company will
furnish to the Agent or the applicable Bank the original or a certified copy of
a receipt or other documents reasonably acceptable to the Agent evidencing
payment thereof.
Any Bank or Assignee organized under the laws of a jurisdiction other than
the United States (or any political subdivision thereof) shall provide from time
to time if requested by the Company and the Agent or required by the Internal
Revenue Service of the United States, (i) a facially complete Internal Revenue
Service Form 4224 (or any successor form) certifying that all payments made to
such Bank are effectively connected with its conduct of trade or business in the
United States and will be includable in its gross income or (ii) a facially
complete Internal Revenue Service Form 1001 (or any successor form) certifying
as to its status for purposes of determining the applicability of a reduced rate
of United States withholding taxes with respect to all payments to be made
hereunder to such Bank pursuant to a double tax treaty obligation of the United
States, or (iii) other facially complete documents satisfactory to the Agent and
Company indicating that all payments that will be made to such Bank are exempt
from or subject to a reduced rate of United States withholding tax. Unless the
Company and Agent have received such forms of such documents validly indicating
that payments hereunder are not subject to United States withholding tax or are
subject to such tax at a rate reduced by an applicable double tax treaty, the
Company or the Agent shall withhold taxes from such payments to such Bank at the
applicable statutory rate.
-10-
Notwithstanding any other provision contained herein to the contrary, the
Company and the Agent shall be entitled to deduct and withhold United States
withholding taxes with respect to all payments to be made hereunder to or for
any Bank or Assignee as may be required by United States law due to an
assignment and such Bank or Assignee shall indemnify and hold harmless the
Company and the Agent from and against any tax, interest, penalty or other
expense that the Company and the Agent may incur as a consequence of any failure
to withhold United States taxes applicable because of any assignment that is not
disclosed to them.
ARTICLE II
----------
ADMINISTRATION OF CREDIT
------------------------
2.1. Borrowing Procedure. Loans hereunder shall be made at the principal
-------------------
banking office of the Agent located in Philadelphia, Pennsylvania (or, in the
case of a successor Agent, the office identified by such successor Agent), upon
telephonic notice from the Company to the Agent specifying (i) the date, which
must be a Business Day, of the proposed borrowing (hereinafter referred to as a
"Funding Date") (ii) the principal amount and type of the proposed Loan and
(iii) in the case of a Eurodollar Loan, the initial Interest Period for such
Loan. Such telephonic notice shall be given to the Agent not later than 2:00
p.m., Agent's local time on the first (1st) Business Day prior to the Funding
Date, in the case of Prime Rate Loans, and not later than 2:00 p.m., Agent's
local time on the second (2nd) Business Day prior to the Funding Date in the
case of Eurodollar Loans. Upon its receipt of such telephonic notice from the
Company, the Agent shall promptly give telephonic notice to each other Bank, and
each such Bank shall have its portion of the Loans available to the Agent in
Agent's principal banking office in immediately available funds on the Funding
Date. Out of the funds received from the Banks for the making of the Loans
hereunder, the Agent will make a Loan to the Company in such amount on behalf of
such Bank. The failure of any of the Banks to lend in accordance with its
Commitment shall not relieve the other Banks of their several obligations
hereunder, but no Bank shall be liable in respect to the obligation of any other
Bank hereunder or be obligated in any event to lend in excess of its Commitment.
Documents delivered to the Agent for the account of each Bank shall be promptly
delivered to such Bank, or in accordance with instructions received from it,
together with copies of such other documents received in connection with the
borrowing as such Bank shall request. Within five (5) Business Days after each
Funding Date, the Company shall deliver to the Agent a written certification,
dated as of the Funding Date in the form of Exhibit C attached hereto confirming
---------
the matters set forth in clauses (i) through (iii) of this Section 2.1.
2.2. Computations: Non-Business Days. All interest payable on Eurodollar
-------------------------------
Loans shall be computed for the actual number of days elapsed using a daily rate
determined by dividing the annual rate by 360, and all interest payable on Prime
Rate Loans and the commitment fees under Section 1.3 hereof and the Letter of
Credit Fees under Section 2A.4(a)(iii) shall be computed on the basis of a year
of 365 or 366 days, as appropriate, for the actual number of days elapsed.
Whenever any payment to be made hereunder or under any Note
-11-
shall be stated to be due on a Saturday, Sunday or a public holiday under the
laws of the Commonwealth of Pennsylvania, such payment may be made on the next
succeeding Business Day, and such extension of time shall be included in the
computation of interest under the Notes, or commitment fees hereunder, as the
case may be.
2.3. Application of Payments. All payments and prepayments of principal,
-----------------------
interest and fees under this Agreement and the Notes shall be made to the Agent
at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ no later than 2:00
p.m. Philadelphia, Pennsylvania time on the due date thereof in immediately
available funds, for the ratable account of the Banks. The Agent shall promptly
distribute to each such Bank, pro rata, the amount of principal, interest or
fees received by the Agent for the account of such Bank. Any payment to the
Agent for the account of a Bank or a holder of a Note under this Agreement shall
constitute a payment by the Company to such Bank or holder of the amount so paid
to the Agent, and any Notes or portions thereof so paid shall not be considered
outstanding for any purpose after the date of such payment to the Agent.
2.4. Pro Rata Treatment. All payments or prepayments of principal, interest
------------------
or fees shall be made pro rata in accordance with the amounts of the Notes then
outstanding. In the event that any Bank shall receive from the Company or any
other source (other than the sale of a participation to another commercial
lender in the ordinary course of business) any payment of, on account of, or for
any obligation of the Company hereunder or under the Notes (whether pursuant to
the exercise of any right of set off, banker's lien, realization upon any
security held for or appropriated to such obligation, counterclaim or otherwise)
other than as above provided, then such Bank shall immediately purchase, without
recourse and for cash, an interest in the obligations of the same nature held by
the other Bank so that each Bank shall thereafter have a percentage interest in
all of such obligations equal to the percentage interest which such Bank held in
the Notes outstanding immediately before such payment; provided, that if any
payment so received shall be recovered in whole or in part from such purchasing
Bank, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest. The Company specifically
acknowledges and consents to the preceding sentence.
2.5. Deposits: Set Off. The Company grants each Bank, as security for the
-----------------
Note of such Bank, a lien and security interest in any and all monies, balances,
accounts and deposits of the Company at such Bank now or at any time hereafter.
If any Event of Default occurs hereunder or any attachment of any balance of the
Company occurs, such Bank may offset and apply any such security toward the
payment of the Note held by such Bank (subject to the requirements of Section
2.4 hereof), whether or not such Note or any part thereof, shall then be due.
Promptly upon its charging any account of the Company pursuant to this section,
the Bank shall give the Company notice thereof.
-12-
SECTION 2A
----------
LETTERS OF CREDIT
-----------------
2A.1 Availability of Credit. Subject to the terms and conditions set
----------------------
forth herein, the Banks shall from time to time prior to the Termination Date
participate in the issuance by the Agent of Letters of Credit for the account of
the Company on the following terms and conditions:
(a) at the time of issuance of the Letter of Credit, the unborrowed
portion of the Commitments shall equal or exceed the sum of the amount available
to be drawn under such Letter of Credit and the amount available to be drawn
under, and any unreimbursed draws under, all other Letters of Credit;
(b) at the time of issuance of a Letter of Credit, the amount
available to be drawn under such Letter of Credit and all other Letters of
Credit then outstanding hereunder plus any unreimbursed draws under all other
Letters of Credit shall not exceed, in the aggregate, the Letter of Credit
Sublimit;
(c) the final expiration date of each Letter of Credit shall be
on or before the earlier of (i) one year from the date of issuance thereof and
(ii) the Termination Date;
(d) there shall not exist at the time of issuance of the Letter of
Credit, and as a result thereof, any Default or Event of Default; and
(e) each Letter of Credit issued under this Section 2A shall be
required by the Company in the ordinary course of its business.
Upon issuance of each Letter of Credit, each Bank shall have a
participation interest therein based on its pro rata share of the Commitment as
set forth in Section 1.1(b) of this Agreement.
2A.2 Commitment Availability. The amount available under the
-----------------------
Commitments as from time to time in effect shall be reduced by the amount
available to be drawn under all outstanding Letters of Credit and unreimbursed
amounts of any draws under Letters of Credit. The amount by which the Commitment
is so reduced shall not be available for Loans under Section 1.1 hereof, except
Loans thereunder which are made to reimburse Agent for draws under the Letters
of Credit as permitted pursuant to Section 2A.4(b) hereof.
2A.3 Approval and Issuance.
---------------------
(a) The Company shall provide Agent not less than three (3) Business
Days' prior written notice of each request for the issuance of a Letter of
Credit by delivery of a Letter of Credit Request Form in the form attached as
Exhibit D hereto and Agent's Letter of
---------
-13-
Credit Application in either the form attached as Exhibit E ("Standby Letter of
---------
Credit Application") or Exhibit F ("Commercial Letter of Credit Application")
---------
hereto. Each Letter of Credit Request Form submitted by the Company to Agent
requesting the issuance of a Letter of Credit shall be certified by the Chief
Executive Officer, Chief Financial Officer, the President, a Vice President or
Treasurer of JII ("Authorized Officer(s)"), and shall, in addition to the
matters described in Section 2.1 hereof, list all Letters of Credit outstanding
for the account of the Company at that time and, for each Letter of Credit so
listed, its face amount, outstanding undrawn balance and expiration date. It
shall be a condition to the issuance of any Letter of Credit that Agent shall
have received a Letter of Credit Request Form and either a Standby Letter of
Credit Application or a Commercial Letter of Credit Application as described
above.
(b) Agent will promptly provide to Banks written or telephonic
notification of Agent's receipt of the Letter of Credit Request Form and the
Letter of Credit Application which shall state (i) the amount of the Letter of
Credit requested and (ii) the expiration date of the requested Letter of Credit.
2A.4 Obligations of the Company.
--------------------------
(a) The Company agrees to pay to Agent in connection with each Letter
of Credit issued hereunder: (i) immediately upon the demand of Agent on behalf
of all Banks, the amount paid by each Bank with respect to such Letter of
Credit; (ii) immediately upon demand of Agent, the amount of any draft presented
purporting to be drawn under such Letter of Credit provided that the draft and
accompanying documents conform to the terms of the Letter of Credit but subject
to the terms of Section 2A.7 (whether or not Agent has at such time honored such
draft) and any other amounts paid thereunder (it being understood that Agent is
not required to make demand upon or proceed against any Bank or other party or
to resort to any Collateral before obtaining payment from Company); (iii) on the
date of issuance of each Letter of Credit and on the effective date of any
extension or renewal of any Letter of Credit a non-refundable fee for the
benefit of Banks in accordance with each Bank's pro rata share of the face
amount of such Letter of Credit equal to the Applicable Margin in effect for the
LIBO Rate interest option on such date; (iv) interest on any indebtedness
outstanding with respect to such Letter of Credit, whether for funds paid on
drafts on such Letter of Credit, or otherwise (but such indebtedness shall not
include undrawn balances of such Letter of Credit issued hereunder) at the rate
applicable to Prime Rate Loans under Section 1.7(a) hereof from the date of
payment by Agent (if not reimbursed by the Company on the same day) to the date
one (1) Business Day after notice to the Company of such payment, and thereafter
at the rate of 2% per annum plus the Base Rate. Interest under the preceding
clause (iv) shall be paid at the times and in the manner set forth in Section
1.7(a) hereof, and shall accrue on amounts paid on a Letter of Credit (if not
reimbursed by the Company on the same day) from the date of payment by Agent,
whether or not demand is made, until such amounts are reimbursed by the Company
whether before, at or after demand.
(b) On or before the Termination Date, in the absence of a Default or
Event of Default, and subject to the provisions of Section 2.1 hereof, Banks
hereby agree to advance
-14-
funds to the Company under the Commitment to make the payments required under
Sections 2A.4(a)(i) and (ii) hereof. If any payment by the Agent of a draft
drawn under a Letter of Credit is for any reason (including without limitation
the occurrence or continuation of a Default or Event of Default hereunder) not
reimbursed prior to or on the date of such payment, the amount of such payment
shall thereupon be deemed for purposes hereof a Loan under Section 2.1 hereof
but payable upon the demand of Agent at the direction of Required Banks. Such
demand reimbursement obligation shall be otherwise subject to all the terms and
conditions thereof as if loaned by Banks pursuant to Section 2.1 hereof (but
without duplication).
2A.5 Payment by Banks on Letters of Credit.
-------------------------------------
(a) With respect to each Letter of Credit, each Bank agrees that it is
irrevocably obligated to pay to Agent, for each such Letter of Credit, such
Bank's Pro Rata Share of each and every payment made or to be made by Agent
under such Letter of Credit (each such payment to be made, a "LOC
Contribution"). Each Bank's LOC Contribution shall be due from such Bank
immediately upon, and in any event no later than the same day as, receipt of
written notice (which may be sent by telex or telecopier) from Agent (except
that if such notice is received after 3:00 p.m. on any Business Day, payment may
be made on the following Business Day, together with interest equal to the
effective rate for overnight funds in New York as reported by the Federal
Reserve Lender of New York for such day (or, if such day is not a Business Day,
for the next preceding Business Day)) that (i) it has made a payment or (ii) a
draft has been presented purporting to be drawn on a Letter of Credit issued
hereunder. Such payment shall be made at Agent's offices in immediately
available federal funds.
(b) The obligation of each Bank to make its LOC Contribution hereunder
is absolute, continuing and unconditional, and Agent shall not be required first
to make demand upon or proceed against the Company or any guarantor or surety,
or any others liable with respect to the applicable Letter of Credit and shall
not be required first to resort to any Collateral. LOC Contributions shall be
made without regard to termination of this Agreement or the Commitment, the
existence of an Event of Default or Default hereunder, the acceleration of
indebtedness hereunder or any other event or circumstance.
2A.6 Collateral Security.
-------------------
(a) The indebtedness, liabilities and obligations of the Company under
this Section 2A, however created or incurred, whether now existing or hereafter
arising, due or to become due, absolute or contingent, direct or indirect,
secured or unsecured, are among the obligations secured by the security
interests, liens and encumbrances created by the Collateral Security Documents
delivered to Agent, and Agent and the Banks are entitled to the benefit of the
collateral security granted thereunder with respect to such indebtedness.
(b) Notwithstanding the payment in full of all the Loans made under
the Commitment, the termination of the Commitment or the occurrence of the
Termination Date, the
-15-
Collateral shall continue to secure the indebtedness, liabilities and
obligations of the Company under this Section 2A until all Letters of Credit
shall have expired and all indebtedness, liabilities and obligations under this
Section 2A shall have been paid in full.
(c) On the Termination Date and the occurrence of an Event of Default,
Required Banks may require (and in the case of an Event of Default occurring
under Section 7.7 it shall be required automatically) that the Company deliver
to Agent, cash or U.S. Treasury Bills with maturities of not more than 90 days
from the date of delivery (discounted in accordance with customary banking
practice to present value to determine amount) in an amount equal at all times
to one hundred ten percent (110%) of the outstanding undrawn amount of all
Letters of Credit, such cash or U.S. Treasury Bills and all interest earned
thereon to constitute cash collateral for all such Letters of Credit. At such
time as such collateral is required to be and has not been deposited, Agent on
behalf of Banks shall be entitled to liquidate such of the other collateral for
the Loan (if any) as is necessary or appropriate in its sole judgment so as to
create such cash collateral.
(d) Any cash collateral deposited under subparagraph (c) above, and
all interest earned thereon, shall be held by Agent and invested and reinvested
at the expense and the written direction of the Company, in U.S. Treasury Bills
with maturities of no more than ninety (90) days from the date of investment.
2A.7 General Terms of Credits. The following terms and conditions
------------------------
apply with respect to each Letter of Credit (a "Credit") notwithstanding
anything to the contrary contained herein:
(a) the Company assumes all risks of the acts or omissions of the
beneficiary of each Credit with respect to the use of the Credit or with respect
to the beneficiary's obligations to the Company. None of the Banks nor any of
their officers or directors shall be liable or responsible for, and the Banks
hereby agree to ratably indemnify and hold Agent and any issuer of a Credit
harmless (except for the issuer's gross negligence or willful misconduct) with
respect to: (i) the use which may be made of the Credit or for any acts or
omissions of the beneficiary in connection therewith; (ii) the accuracy, truth,
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should in fact prove to be in any or all
respects false, misleading, inaccurate, invalid, insufficient, fraudulent, or
forged; (iii) the payment by Agent against presentation of documents which do
not comply with the terms of the Credit, including failure of any documents to
bear any reference or adequate reference to a Credit; (iv) any other
circumstances whatsoever in making or failing to make payment under a Credit; or
(v) any inaccuracy, interruption, error or delay in transmission or delivery of
correspondence or documents by post, telegraph or otherwise. In furtherance and
not in limitation of the foregoing, Agent may accept documents that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary.
(b) Notwithstanding the foregoing, with respect to any Credit, the
Company shall have a claim against Agent, and Agent shall be liable to the
Company, to the extent,
-16-
but only to the extent, of any direct, as opposed to indirect or consequential,
damages suffered by the Company caused by the Agent's willful misconduct or
gross negligence.
(c) To the extent not inconsistent with this Agreement, the Uniform
Customs and Practices for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, are hereby made a part of this
Agreement with respect to obligations in connection with each Credit.
ARTICLE III
-----------
CONDITIONS PRECEDENT OF BORROWING
---------------------------------
Without limiting any of the other terms of this Agreement, the Banks
shall not be required to make any Loan to the Company hereunder, and the Agent
shall not be required to issue any Letters of Credit for the benefit of the
Company, unless the requirements of Section 3.1 below are satisfied on the
Funding Date for such Loan or the date of issuance of the Letter of Credit. This
Second Amended and Restated Revolving Credit Agreement shall become effective
when executed by the Company, Agent and each Bank and when the conditions set
forth in Sections 3.1 to 3.6, inclusive, below are satisfied.
3.1. Representations. On the date hereof and on the date of each Loan
---------------
or Letter of Credit, the representations and warranties contained in Article IV
hereof and in Section 3 of the Security Agreement (hereinafter defined) continue
to be true and correct in all material respects; no Default or Event of Default
hereunder shall have occurred and be continuing; and the Agent shall have
received a telephonic request therefor at the times and containing the
information required under Section 2.1 above. Each such telephonic request for a
Loan shall constitute a certification by the Company that the matters set forth
in clauses (a), (b) and (c) of Exhibit C hereto are true as of the date thereof.
---------
If no Interest Period is specified by the Company, the Loan request shall be
deemed a request for a Prime Rate Loan.
3.2. Subordination. The Partnerships and JII shall have executed and
-------------
delivered to Agent a second amended and restated subordination agreement (as
amended from time to time hereafter, the "Subordination Agreement") in the form
attached hereto as Exhibit G.
---------
3.3. Security Agreement. The Company shall have executed and delivered to
------------------
Agent (i) an amended and restated security agreement in the form attached hereto
as Exhibit H (as amended and from time to time hereafter, the "Security
---------
Agreement") covering all tangible and intangible personal property of the
Company comprising, relating to or arising from the Cable Systems of the
Company, and (ii) to the extent not already filed, financing statements, in form
satisfactory to the Agent, covering the collateral described in the Security
Agreement.
-17-
3.4. Insurance Certificate. Agent shall have received evidence
---------------------
satisfactory to it that the Company maintains hazard insurance coverage
reasonably satisfactory to Banks.
3.5. Counsel Opinion. Each Bank shall have received from counsel for
---------------
the Company and JII, satisfactory opinions as to such matters relating to the
Company and JII, the validity and enforceability of this Agreement, the Loans
made and to be made hereunder and the other documents required by this Article
III and Federal Communications Commission ("FCC"), U.S. Copyright Office and
franchise matters as Banks shall reasonably require. The Company shall execute
and/or deliver to each Bank or its counsel such documents concerning its
partnership status and the authorization of such transactions as may be
reasonably requested.
3.6. Proceedings Satisfactory. All proceedings taken in connection
------------------------
with the transactions contemplated by this Agreement, and all instruments,
authorizations and other documents applicable thereto, shall be satisfactory in
form and substance to each Bank and its counsel.
ARTICLE IV
----------
REPRESENTATIONS AND WARRANTIES
------------------------------
In order to induce the Banks to enter into this Agreement and to make
the Loans as provided herein, the Company represents and warrants to each of the
Banks as follows:
4.1. Organization. The Company is a joint venture partnership duly
------------
formed and validly existing under the laws of the State of Colorado and has all
requisite partnership power and authority to conduct its business and to own its
properties. The Company has no subsidiaries or investments in or loans to any
other individuals or business entities other than loans and investments
permitted by Section 5.5. The Partnerships are the sole joint venturers or
partners with an ownership interest in the Company, and JII is the sole general
partner of each of the Partnerships. The Company, the Partnerships and JII are
each duly licensed or qualified to do business in the States of Michigan,
California, Colorado, Nebraska, Oregon and Indiana and all other jurisdictions
in which the nature of their activities or the character of their properties
requires such qualification, and failure to so qualify would have a material
adverse effect on the property, financial condition or business operations of
the Company. All joint venture and partnership interests in the Company are
validly existing and the creation and sale thereof are in compliance with all
applicable federal and state securities laws and other applicable laws in all
material respects.
4.2. Authority. The execution, delivery and performance of this Agreement,
---------
the Notes and the documents required by Article III (the "Collateral Documents")
are within the partnership powers of the Company, have been duly authorized by
all necessary partnership action and do not and will not (i) require any consent
or approval of the joint venture partners of the Company which has not been
obtained (and evidence thereof delivered to the Banks), (ii) violate any
-18-
provision of the joint Venture Agreement of the Company dated October 21, 1987
(as amended, the "Joint Venture Agreement") or of any law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award presently in
effect having applicability to the Company; (iii) except as set forth in
Exhibit I hereto, require the consent or approval of, or filing or registration
---------
with, any governmental body, agency or authority; or (iv) result in a material
breach of or constitute a default under, or result in the imposition of any
lien, charge or encumbrance upon any property of the Company pursuant to, any
indenture or other material agreement or instrument under which the Company is a
party or by which it or its properties may be bound or affected, except for
Permitted Liens. This Agreement constitutes, and the Notes and each of the
documents required by Article III when executed and delivered hereunder will
constitute, legal, valid and binding obligations of the Company or other
signatory enforceable in accordance with its respective terms, except as such
enforceability may be limited by bankruptcy or similar laws affecting the
enforceability of creditors' rights generally.
4.3. Investment Company Act of 1940. The Company is not an "investment
------------------------------
company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
4.4. Employee Retirement Income Security Act. The Company does not
---------------------------------------
presently maintain, nor is the Company required to contribute to, any Plan on
behalf of any of its employees.
4.5. Financial Statements. The balance sheet of the Company as of
--------------------
December 31, 1996, and the income statement of the Company for the year ended on
such date, as audited by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. and heretofore furnished to the
Banks, are correct and complete and fairly represent the financial condition and
the results of its operations for the fiscal year ended on such date. Other than
as described in Exhibit I attached hereto, since such date there has been no
----------
material adverse change in the property, business, financial condition or
operations of the Company or the Cable Systems.
4.6. Liens. The Company has good and marketable title to all of its
-----
assets, real and personal, free and clear of all liens, security interests,
mortgages and encumbrances of any kind, except Permitted Liens. All owned and
leased buildings and equipment of the Company are in good condition, repair and
working order in all material respects and, to the best of the Company's
knowledge and belief, conform in all material respects to all applicable laws,
regulations and ordinances.
4.7. Contingent Liabilities. The Company has no guarantees or other
----------------------
contingent liabilities outstanding (including, without limitation, liabilities
by way of agreement, contingent or otherwise, to purchase, to provide funds for
payment, to supply funds to or otherwise invest in the debtor or otherwise to
assure the creditor against loss), except those permitted by Section 5.8 hereof.
-19-
4.8. Partnership Tax Matters.
-----------------------
(a) Except as set forth on Exhibit I, the Company has duly and timely
---------
filed all information and tax returns and reports with any federal, state, local
or foreign governmental taxing authority, body or agency, and all taxes,
including without limitation income, gross receipt, sales, use, excise and any
other taxes, and any governmental charges, penalties, interest or fines with
respect thereto, due and payable by the Company, have been paid, withheld or
reserved for in accordance with GAAP or, to the extent they relate to periods on
or prior to the date of the financial statements referenced in Section 4.5
hereof (the "Financial Statements"), are reflected as a liability on the
Financial Statements in accordance with GAAP.
(b) As of the date of this Agreement, none of the Company's federal
income tax information returns have been audited. Except as set forth on
Exhibit I, the Company has not entered into any agreements for the extension of
---------
time for the assessment of any tax or tax delinquency, and the Company has
received no outstanding and unresolved notices from the Internal Revenue Service
or other state, local or foreign taxing authority, agency or body of any
proposed examination or of any proposed change in reported information which may
result in a deficiency or assessment against the Company or any partner in the
Company and there are no suits, actions, claims, investigations, inquiries or
proceedings now pending against the Company in respect of taxes, governmental
charges or assessments.
4.9. Absence of Litigation. Except as set forth in Exhibit I hereto,
--------------------- ---------
neither the Company, JII nor any Partnership is a party to any litigation or
administrative proceeding, nor so far as is known by the Company is any
litigation or administrative proceeding threatened against any of them, (i)
which relates to the execution, delivery or performance of this Agreement, the
Notes or any other document required hereunder, or (ii) which, if adversely
determined, would be reasonably likely to cause any material adverse change in
the property, financial condition or business operations of the Company.
4.10. Absence of Default. No event has occurred which either of itself or
------------------
with the lapse of time or the giving of notice or both, would give any creditor
of the Company the right to accelerate the maturity of any indebtedness of the
Company for borrowed money. The Company is not in default under any other
material lease, agreement or instrument, or any law, rule, regulation, order,
writ, injunction, decree, determination or award, non-compliance with which
could materially adversely affect its property, financial condition or business
operations.
4.11. Material Agreements. The Company is not a party to any agreement,
-------------------
instrument or undertaking, or subject to any other restriction, (i) which
materially adversely affects or may in the future so affect the property,
financial condition or business operations of the Company, or (ii) under or
pursuant to which the Company is or will be required to place (or under which
any other person may place) a lien upon any of its properties securing
indebtedness either upon demand or upon the happening of a condition, with or
without such demand (other than the Collateral Documents required by this
Agreement).
-20-
4.12. Partnerships; Joint Ventures. The Company is not a member of any
----------------------------
partnership or joint venture.
4.13. Full Disclosure. No information, exhibit or report furnished by
---------------
Company or JII to any Bank in connection with the negotiation or execution of
this Agreement contained any material misstatement of fact as of the date when
made or omitted to state a material fact or any fact necessary to make the
statements contained therein not misleading as of the date when made.
4.14. Fiscal Year. The fiscal year of the Company ends on December 31 of
-----------
each year.
4.15. Franchises, Licenses, etc.
-------------------------
(a) On the date hereof the Company holds, and at all times hereafter
it will continue to hold all licenses, franchises, permits and approvals of,
governmental authorities and agencies, including FCC licenses and local
municipal licenses, permits and franchises and rights with respect thereto
(herein collectively called "Cable Licenses"), and has made all necessary
filings with and given all necessary notices to governmental authorities and
agencies, including the U.S. Copyright Office, required or necessary for the
ownership and operation of its Cable Systems. The Company is in compliance in
all material respects with such Cable Licenses, without any known conflict with
the rights of others which might result in a material adverse effect on the
Company, and in each case subject to no mortgage, pledge, lien, lease
encumbrance or option except Permitted Liens. Attached hereto as Exhibit J is a
---------
complete and accurate list of all Cable Licenses held by the Company (copies of
such Cable Licenses having been delivered to the Banks) the name of the
municipality or other entity granting the same, the expiration date thereof and
the date such Cable License was issued or transferred to the Company. No event
has occurred which permits, or after notice or lapse of time or both would
permit, the revocation or termination of any such Cable License, or which would
materially adversely affect the rights of the Company thereunder.
(b) On the date hereof and at all times hereafter, the Company has
and will have, by ownership or contract, all pole attachment and conduit use
rights necessary for the operation of its Cable Systems and is and will be party
to all agreements with public utilities and with microwave transmission
companies that are required in connection with the conduct of its business, and
will duly perform and observe in all material respects the terms and conditions
thereof, and no revocation, suspension or termination of any such agreement
shall have occurred which would have a material adverse affect on the Company,
its business or operations. The Company shall deliver to each Bank at its
request, complete and correct copies of all said agreements.
4.16. Cable Systems. The Company owns the Cable Systems described in
-------------
Exhibit K attached hereto, which sets forth a description of the franchises
---------
(including the expiration dates thereof), locations and Basic Subscriber counts
of such Cable Systems as March 31, 1997, and a description of the headend and
office facilities, and the record owners of such locations and descriptions of
any leases covering the Company's lease of any of such facilities from others.
-21-
4.17. Hazardous Wastes, Substances and Petroleum Products.
---------------------------------------------------
(a) The Company has received all permits and filed all notifications
necessary to carry on its business(es) under, and is in compliance in all
material respects with, all Environmental Control Statutes.
(b) The Company has not given any written or oral notice to the
Environmental Protection Agency ("EPA") or any state or local agency with regard
to any actual or imminently threatened removal, spill, release or discharge of
hazardous or toxic wastes, substances or petroleum products on properties owned
or leased by the Company or in connection with the conduct of its business and
operations.
(c) The Company has not received notice that it is potentially
responsible for costs of cleanup of any actual or imminently threatened spill,
release or discharge of hazardous or toxic wastes or substances or petroleum
products pursuant to any Environmental Control Statute.
4.18. Compliance. The Company is in compliance in all material
----------
respects with all applicable laws and regulations, federal, state and local
(including without limitation those administered by the FCC and all state and
local authorities regulating the Company's Cable Systems), material to the
conduct of its business and operations; the Company has properly withheld all
amounts required by law to be withheld for income taxes and unemployment taxes
including without limitation, all amounts required with respect to social
security and unemployment compensation, relating to its employees, and has
remitted such withheld amounts in a timely manner to the appropriate taxing
authority, agency or body; the Company possesses all the franchises, permits,
licenses, certificates of compliance and approval and grants of authority
necessary or required in the conduct of its business and the same are valid,
binding, enforceable and subsisting without any material defaults thereunder and
are not subject to any proceedings or claims opposing the issuance, development
or use thereof or contesting the validity thereof.
4.19. Perfection of Security Interests. The Company has no knowledge
--------------------------------
of any further action, including any filing or recording of any documents, which
would be necessary in order to establish, perfect and maintain the first
priority security interest of Banks in the personal property assets of the
Company covered by the Security Agreement, except for the periodic filing of
continuation statements with respect to financing statements filed under the
Uniform Commercial Code of applicable jurisdictions.
-22-
ARTICLE V
---------
NEGATIVE COVENANTS
------------------
For so long as the Commitments of the Banks (or any Bank) to the Company
under this Agreement remain available and while any part of the principal of or
interest on the Loans remains unpaid, the Company shall not do any of the
following without the prior written consent of Required Banks:
5.1. Restriction of Indebtedness. Create, incur, assume or have outstanding
---------------------------
any indebtedness for borrowed money or for the deferred purchase price of any
asset (including obligations under Capitalized Leases), except trade
indebtedness in the normal and ordinary course of business for value received,
and (i) the Notes; (ii) indebtedness arising under this Agreement; (iii)
indebtedness existing on the date of this Agreement and listed on Exhibit L
---------
hereto, and approved by the Banks; (iv) Intercompany Subordinated Debt; and (v)
other indebtedness, including indebtedness and obligations incurred to purchase
or lease fixed or capital assets not exceeding, at any time, five percent (5%)
of the Company's Maximum Permitted Indebtedness.
5.2. Amendments and Prepayments. Agree to any amendment, modification or
--------------------------
supplement, or obtain any waiver or consent in respect of compliance with any
of the terms of, or call or redeem, or make any purchase or prepayment of or
with respect to, any instrument or agreement evidencing or relating to any
indebtedness for borrowed money or for the deferred purchase price of any asset,
including Capitalized Leases, if such action would have a material adverse
effect on the Company or its financial condition or business operations.
5.3. Restriction on Liens. Create or permit to be created or allow to
--------------------
exist any mortgage, pledge, encumbrance or other lien upon or security interest
in any property or asset now owned or hereafter acquired by the Company
(including, without limitation, assets comprising the Cable Systems), except (i)
liens existing on the date hereof and identified on Exhibit L, securing
---------
indebtedness specified on Exhibit L hereto and approved by the Banks, (ii)
---------
Permitted Liens, and (iii) liens securing indebtedness permitted pursuant to
clause (v) of Section 5.1 above, provided the liens or security interest are
limited to the assets leased or purchased with the proceeds of such
indebtedness, or agree or covenant with or promise any person or entity other
than the Banks that it will not pledge its assets or properties or otherwise
grant any liens, security interests or encumbrances on its property on terms
similar to those set forth in this Section 5.3.
5.4. Sale and Leaseback. Enter into any agreement providing for the
------------------
leasing by the Company of property which has been or is to be sold or
transferred by the Company to the lessor thereof, or which is substantially
similar in purpose to property so sold or transferred.
5.5. Acquisitions, Loans and Investments. Acquire any other business
-----------------------------------
or any Cable System (or interest therein) not owned on the date of the Existing
Credit Agreement, or make any loan, advance or extension of credit to, or
investment in, any other person, corporation or other
-23-
entity, including investments acquired in exchange for partnership interests or
other securities or obligations of any nature of the Company, or create or
participate in the creation of any Subsidiary or joint venture, except:
(a) investments in (i) commercial paper maturing in 270 days or less
from the date of acquisition which is rated A1 or better by Standard & Poor's
Rating Services or P1 or better by ▇▇▇▇▇'▇ Investors Services, Inc.; (ii)
direct obligations of the United States of America or obligations of any agency
thereof which are guaranteed by the United States of America, provided that such
obligations mature within twelve (12) months of the date of acquisition thereof;
and (iii) certificates of deposit maturing within one (1) year from the date of
acquisition thereof issued by a Bank or bank or trust company organized under
the laws of the United States or any state thereof, having capital, surplus and
undivided profits aggregating at least $500,000,000 and indebtedness rated A or
better by ▇▇▇▇▇'▇ Investors Services, Inc. or equivalent by Standard & Poor's
Rating Services;
(b) loans and advances made to employees, subcontractors and suppliers
in the ordinary course of business not to exceed $25,000 in the aggregate
principal amount outstanding at any time; and
(c) if no Default or Event of Default exists at the time thereof, or
would be caused as a result thereof, acquisitions of assets related to the
operation of Cable Systems, not to exceed One Million Dollars ($1,000,000) in
the aggregate from the date hereof to the Termination Date.
5.6. Liquidation; Merger; Disposition of Assets. Liquidate or dissolve
-------------------------------------------
or discontinue any substantial part of its operations or business; or merge with
or into or consolidate with or into any other corporation, partnership or other
entity; or sell, lease, transfer or otherwise dispose of all or any material
part of its property, assets or business (other than sales made in the ordinary
course of business for value received), or any stock or capital interest in any
Subsidiary; provided, however, that the Company may sell or dispose of any Cable
System for fair value if (a) the Company gives the Agent written notice of such
sale or disposition at least 15 days prior to the date thereof, (b) prior to and
after giving effect to the proposed sale or disposition of such Cable System
(and any required reduction of the Commitments and payment on the Notes with the
proceeds of such sale or disposition pursuant to Sections 1.5 and 1.6 hereof)
(i) no Default or Event of Default under this Agreement is continuing, (ii) the
Company's Leverage Ratio after giving effect to such sale or disposition is no
greater than such ratio immediately prior to such sale or disposition and (iii)
the Company is otherwise in compliance with the terms, provisions and covenants
of this Agreement in all material respects, (c) the Company shall use the net
proceeds of the third (3rd) such sale or disposition of a Cable System to pay
Loans on a pro rata, basis pursuant to Section 1.6 hereof to the extent
necessary to cause the Company's Leverage Ratio (based on the most recently
delivered financial statements and excluding Cash Flow attributable to the sold
Cable System(s)) to be equal to or less than 2.50 to 1, and shall permanently
reduce the Commitments pursuant to Sections 1.5 of the Credit Agreement on a pro
rata basis in the amount of such payment, and (d) the Company
-24-
shall use the net proceeds of the fourth (4th) such sale or disposition of a
Cable System (together with other funds as needed) to repay the Loans in full
and shall terminate the Commitments upon such payment.
5.7. Accounts Receivable. Except in connection with the sale of the
-------------------
accounts receivable of a Cable System as part of a sale by the Company of such
Cable System which is otherwise permitted under Section 5.6 hereof, discount or
sell with recourse, or sell for less than the face amount thereof, any of its
notes or accounts receivable, whether now owned or hereafter acquired.
5.8. Contingent Liabilities. Guarantee or become a surety or otherwise
----------------------
contingency liable (including, without limitation, liable by way of agreement,
contingent or otherwise, to purchase, to provide funds for payment, to supply
funds to or otherwise invest in the debtor or otherwise to assure the creditor
against loss) for any obligations of others, except pursuant to the deposit and
collection of checks and similar terms in the ordinary course of business.
5.9. Affiliates. Suffer or permit any transaction with any Affiliate,
----------
except on terms not less favorable to the Company than would be usual and
customary in similar transactions with non-affiliated persons; provided that
this Section 5.9 shall not prohibit the payment of (i) Intercompany Subordinated
Debt except as the same may be restricted by the terms hereof and under the
Subordination Agreement and (ii) commissions to The ▇▇▇▇▇ Group, Ltd. as
described in Paragraph 2 of Article XII of the Joint Venture Agreement.
5.10. Management Fees and Home Office Allocations. Pay, or obligate or
-------------------------------------------
legally bind itself to pay, Management Fees or Home Office Allocations;
provided, however, that in the absence of a Default or an Event of Default (and
if such payment, together with any payments made pursuant to this Section 5.10
and Section 5.11 hereof will not create a Default or an Event of Default) the
Company may: (i) pay Management Fees for any fiscal quarter of the Company not
to exceed five percent (5%) of the Gross Operating Revenues of the Company for
such quarter (excluding revenues from the sale of any Cable Systems or Licenses)
and (ii) pay Home Office Allocations in amounts not to exceed reasonable levels
for such payments based on JII's and the Company's historic practices, taking
into account inflation and fluctuations in the cost of the items comprising Home
Office Allocations. Management Fees and Home Office Allocations accrued but
unpaid for any fiscal quarter shall be deferred and subordinated to indebtedness
of the Company to the Banks pursuant to the Subordination Agreement; provided,
however, that so long as there exists no Default or Event of Default under this
Agreement (and such payment, together with any payments made pursuant to this
Section 5.10 and Section 5.11 hereof, will not create a Default or Event of
Default), (i) such deferred Management Fees and Home Office Allocations may be
paid in any subsequent fiscal quarter, and (ii) the Company may pay accrued
interest on deferred Management Fees and Home Office Allocations at a rate not
to exceed JII's cost of capital.
5.11. Restricted Payments. Make any Restricted Payments; provided,
-------------------
however that the Company may, in the absence of a Default or Event of Default
under this Agreement (and if such
-25-
payment, together with any payments permitted to be made pursuant to Section
5.10 hereof, will not create a Default or Event of Default), (i) make
distributions to its joint venture partners consistent with distributions
contemplated by the Partnerships to their partners as set forth in the
Prospectus dated January 10, 1986, as amended September 29, 1986 and December
19, 1986 in respect to ▇▇▇▇▇ Cable Income Fund 1 previously delivered to the
Banks, (ii) make interest payments to JII at a rate not to exceed JII's cost of
capital on any indebtedness subordinated pursuant to the Subordination Agreement
and (iii) in connection with a sale of a Cable System permitted by Section 5.6
hereof, make distributions to the Partnerships to the extent the proceeds
thereof are not required thereunder to be used to make a payment of the Loans.
5.12. Partnerships; Joint Ventures; Partnership Documents. Become a member
---------------------------------------------------
of any partnership or joint venture; or amend or permit any amendments of the
Joint Venture Agreement.
ARTICLE VI
----------
AFFIRMATIVE COVENANTS
---------------------
For so long as the Commitments of the Banks (or any Bank) to the Company
under this Agreement remain available and while any part of the principal of or
interest on the Loans remains unpaid, and unless waived in writing by the Banks,
the Company shall:
6.1. Financial Covenants. (a) Maintain at all times during the periods
-------------------
set forth in the left-hand column below a Leverage Ratio as of the date of
determination as of the last day of the most recently ended quarter of not
greater than the amount set forth in the right-hand column:
Period Maximum Ratio
------ -------------
Closing through 06/30/99 3.50 to 1
07/01/99 and at all times thereafter 3.00 to 1
(b) Maintain at all times a ratio of the Company's Annualized Cash
Flow as of the last day of the most recently ended quarter to Proforma Debt
Service for the period commencing on the first day of the current quarter of not
less than 1.50 to 1.
6.2. Insurance. Maintain insurance in such amounts and against such risks
---------
as is customary by companies engaged in the same or similar businesses and
similarly situated under policies requiring the insurer to furnish reasonable
notice to the Agent and opportunity to cure any non-payment of premiums prior to
termination of coverage; and furnish each Bank with certificates of such
insurance and cause Agent to be named as the lender loss payee thereof, as its
interest may appear.
-26-
6.3. Partnership Existence; Obligations. Do all things necessary to:
----------------------------------
(i) maintain its partnership existence and all rights and franchises necessary
or desirable for the conduct of its business (except for transactions permitted
by Section 5.6); (ii) comply in all material respects with all applicable laws,
rules, regulations and ordinances, and all restrictions imposed by governmental
authorities, including those relating to environmental standards and controls;
and (iii) pay, before the same become delinquent and before penalties accrue
thereon, all taxes, assessments and other governmental charges against it or its
property, and all of its other liabilities, except to the extent and so long as
the same are being contested in good faith by appropriate proceedings in such
manner as not to cause any material adverse effect upon its property, financial
condition or business operations, with adequate reserves provided for such
payments.
6.4. Business Activities; Management. Continue to carry on its business
-------------------------------
activities in substantially the manner such activities are conducted on the date
of this Agreement and not make any material change in the nature of its
business. Without limiting the generality of the foregoing, the Company shall
cause its Cable Systems to continue to be managed by JII in substantially the
same manner and on substantially the same terms as such Cable Systems are
managed by JII on the date hereof.
6.5. Properties. Keep its properties (whether owned or leased) in good
----------
condition, repair and working order, ordinary wear and tear and obsolescence
excepted, and make or cause to be made from time to time all necessary repairs
thereto (including external or structural repairs) and renewals and replacements
thereof.
6.6. Accounting Records; Reports. Maintain a standard and modern system
---------------------------
for accounting in accordance with generally accepted principles of accounting
consistently applied throughout all accounting periods; and furnish to the Agent
which shall promptly furnish to the Banks such information respecting the
business, assets and financial condition of the Company as it may reasonably
request and, without request, furnish to the Agent:
(a) Within 60 days after the end of each of the first three quarters
of each fiscal year of the Company (i) a balance sheet of the Company as of the
close of such quarter and of the preceding fiscal year-end; and (ii) statements
of income and surplus of the Company for such quarter and for that part of the
fiscal year ending with such quarter; all in reasonable detail and certified as
true and correct (subject to audit and normal year-end adjustments) by an
Authorized Officer; and
(b) As soon as available, and in any event within 120 days after the
close of each fiscal year of the Company, a copy of the audit opinion for such
year and accompanying financial statements of the Company as audited by
independent public accountants of recognized standing selected by the Company to
the effect that the same fairly present the financial condition of the Company
and the results of its operations as of the relevant dates thereof; together
with copies of any management letters (or portions thereof) issued by such
accountants in connection with such audit regarding matters which relate to or
adversely effect the Company; and
-27-
(c) As soon as available, copies of all reports or materials (in
respect to matters which may have a material adverse effect on the business or
financial condition of the Company) filed with the FCC, the Securities Exchange
Commission or other governmental agency having regulatory authority over the
Company or with any national securities exchange; the Company shall also deliver
to the Agent a copy of all information (in respect to matters which may have a
material adverse effect on the business or financial condition of the Company)
sent by the Company to its joint venture partners or the limited partners of the
Partnerships within ten (10) days after the date such information shall have
been sent to such joint venture partners or limited partners, as the case may
be; and
(d) Upon request, evidence that insurance policies are in force
covering all property of the Company; and
(e) Promptly, and in any event within 10 days after the Company has
knowledge thereof, a statement of an Authorized Officer describing: (i) in
detail any event which, either of itself or with the lapse of time or the giving
of notice or both, would constitute a Default or an Event of Default hereunder
or under any other material agreement to which the Company is a party, the
period of existence thereof together with a statement of the actions which the
Company has taken or proposes to take with respect thereto; and (ii) any pending
or threatened litigation or administrative proceeding of the type described in
Section 4.9; and
(f) Together with the financial statements referred to in (a) and (b)
above, a certificate signed on behalf of the Company by an Authorized Officer,
demonstrating in reasonable detail compliance by the Company with the
requirements of Sections 5.10, 5.11 and 6.1 hereof; and
(g) Within 30 days after the end of each calendar quarter, a report,
in form and substance satisfactory to each of the Banks, showing with respect to
the Cable Systems of the Company (individually and in the aggregate) (i) the
number of Basic Subscribers at the end of such quarter and (ii) any other
information reasonably requested by the Banks.
(h) (i) Promptly, and in any event within 30 days after the Company
knows that any Reportable Event with respect to any Plan has occurred, a
statement of an Authorized Officer setting forth details as to such Reportable
Event and the action which the Company proposes to take with respect thereto,
together with a copy of any notice of such Reportable Event given to the Pension
Benefit Guaranty Corporation if a copy of such notice is available to the
Company, (ii) promptly after the filing thereof with the Internal Revenue
Service, copies of each annual report with respect to each Plan administered by
the Company and (iii) promptly after receipt thereof, a copy of any notice
(other than a notice of general application) the Company, any Subsidiary or any
member of the Controlled Group may receive from the Pension Benefit Guaranty
Corporation or the Internal Revenue Service with respect to any Plan
administered by the Company.
The financial statements referred to in (a) and (b) above shall be
accompanied by a certificate by the chief financial officer or Treasurer of JII
that, as of the close of the last period covered in such
-28-
financial statements, no condition or event had occurred which constitutes an
Event of Default or a Default hereunder.
6.7. Inspection of Records; Information. Permit representatives of each of
----------------------------------
the Banks to visit and inspect any of the properties and examine any of the
books and records of the Company at any reasonable time and as often as may be
reasonably desired on reasonable notice; and provide each of the Banks with all
documents and information regarding the Company and the Cable Systems, financial
or otherwise, reasonably requested by any Bank.
6.8. Compliance; Notification.
------------------------
(a) The Company, each of the Partnerships and JII (with respect to the
Cable Systems) will comply in all material respects with all local, state and
federal laws and regulations applicable to its business and the provisions and
requirements of all franchises, permits, certificates of compliance and approval
issued by regulatory authorities and other like grants of authority held by the
Company; and the Company will notify the Agent immediately in detail of any
actual or alleged failure to comply with or perform, breach, violation or
default under any such laws or regulations or under the terms of any of such
franchises, licenses or grants of authority, the existence of which would be
reasonably likely to have a material adverse effect on the business, operations
or financial condition of the Company; or of the occurrence or existence of any
facts or circumstances which with the passage of time, the giving of notice or
otherwise could create such a breach, violation or default or could occasion the
termination of any of such franchises or grants of authority.
(b) Each of the Company, the Partnerships and JII will notify the
Agent in writing immediately of the institution of any litigation, the
commencement of any administrative proceeding, the happening of any event or the
assertion or threat of any claim, which relates to this Agreement, the Notes or
any Collateral Document or which, if adversely determined, would be reasonably
likely to have a material adverse effect on the business, operations or
financial condition of the Company.
(c) With respect to the Environmental Control Statutes, the Company
shall notify the Agent when, in connection with the conduct of the Company's
business(es) or operations, any person or entity, or any federal, state or local
agency provides oral or written notification to the Company, the Partnerships or
JII with regard to an actual or imminently threatened removal, spill, release or
discharge of hazardous or toxic wastes, substances or petroleum products; and
notify Banks in detail immediately (i) upon the receipt by the Company of an
assertion of liability under the Environmental Control Statutes, (ii) of any
actual or alleged failure to comply with or perform, breach, violation or
default under any such Environmental Control Statutes and (iii) of the
occurrence or existence of any facts, events or circumstances which with the
passage of time, the giving of notice, or both, could create such a breach,
violation or default.
-29-
ARTICLE VII
-----------
DEFAULTS
--------
In the event that any one or more of the following events (each an "Event
of Default") shall occur:
7.1. Default in Payment. The Company shall fail to pay (i) any interest
------------------
on any Note, or any other amount payable to any Bank hereunder (other than a
principal payment on any Note), within three (3) days after the same becomes due
or (ii) any principal amount due on any Note when due;
7.2. Default on Certain Covenants. Default in the performance or
----------------------------
observance of any agreement, covenant, condition, provision or term contained in
Article V or Section 6.1 of this Agreement;
7.3. Default in Performance of Other Agreements. Default by the Company
------------------------------------------
or JII (in the case of the Subordination Agreement) in the performance or
observance of any of the agreements, covenants, conditions, provisions or terms
in this Agreement (other than those which constitute Events of Default under
Section 7.1 or 7.2 above) or any Collateral Document, continuing for a period of
20 days after written notice thereof is given to the Company by the Agent on
behalf of the Banks;
7.4. Representations or Statements False. Any representation or
-----------------------------------
warranty made by the Company or JII herein or in any Collateral Document or
other document, certificate or agreement delivered pursuant hereto, or any
financial statement delivered to the Banks hereunder, shall prove to have been
false in any material respect as of the time when made or given;
7.5. Default on Other Obligations. The Company shall fail to pay all
----------------------------
or any part of the principal of or interest on any indebtedness of or assumed by
it in excess of $ 100,000 as and when due and payable (whether by fixed maturity
or acceleration) and such default shall not be cured within the period or
periods of grace, if any, specified in the instruments governing such
obligations; or default shall occur under any evidence of, or any indenture or
agreement or other instrument governing, such obligation, and such default shall
continue for a period of time sufficient to permit the acceleration of the
maturity of any such indebtedness;
7.6. Judgments. Any judgment, writ, warrant, attachment or execution
---------
or similar process which, together with other outstanding judgments, writs,
warrants, attachments and executions against the Company or its property,
requires payment or presents liability in excess of $500,000 (not covered by
insurance) shall be entered or issued against or levied against the Company or
its property and such judgment or other process shall not be satisfied, waived,
discharged, settled, vacated, fully bonded or stayed within 60 days after the
date of the issuance or levy thereof;
-30-
7.7. Bankruptcy; Insolvency. The Company, either of the Partnerships
----------------------
or JII shall (a) become insolvent; or (b) generally fail to pay its debts as
they mature; or (c) make a general assignment for the benefit of creditors or to
an agent authorized to liquidate any substantial amount of its property; or (d)
become the subject (either voluntarily or involuntarily) of an "order for
relief" within the meaning of the United States Bankruptcy Code; or (e) file an
answer to a creditor's petition (admitting the material allegations thereof) for
liquidation, reorganization or to effect a plan or other arrangement with
creditors; or (f) apply to a court for the appointment of a receiver, trustee or
custodian for any of its assets; or (g) have a receiver, trustee or custodian
appointed for any of its material assets (with or without its consent); or (h)
otherwise become the subject of any insolvency proceeding;
7.8. Validity. This Agreement, any Note or any document required by
--------
Article III shall, at any time after their respective execution and delivery,
and for any reason, cease to be in full force and effect or shall be declared
null and void, or be revoked or terminated, or the validity or enforceability
thereof or hereof shall be contested by the Company, either of the Partnerships
or JII, or the Company shall deny that it has any or further liability or
obligation thereunder or hereunder, as the case may be;
7.9. ERISA. Any Reportable Event, which Required Banks determine in
-----
good faith to constitute grounds for the termination of any Plan by the Pension
Benefit Guaranty Corporation or for the appointment by the appropriate United
States District Court of a trustee to administer any Plan, shall have occurred,
or any Plan shall be terminated within the meaning of Title IV of ERISA, or a
trustee shall be appointed by the appropriate United States District Court to
administer any Plan, or the Pension Benefit Guaranty Corporation shall institute
proceedings to terminate any Plan or to appoint a trustee to administer any
Plan, and in case of any event described in the preceding provisions of this
section 7.9 the Required Banks determine in good faith that the aggregate amount
of the Company's liability to the Pension Benefit Guaranty Corporation under
ERISA shall exceed $500,000 and such liability is not covered, for the benefit
of the Company, by insurance;
7.10. Revocation of Franchise, etc. Custody or control of any substantial
----------------------------
part of the property of the Company, either Partnership or JII shall
be assumed by any governmental agency or any court of competent jurisdiction at
the request of any governmental agency; if any Cable franchise of the Company
shall be suspended, revoked, not renewed or otherwise terminated (including if
the Company is required by any franchising authority or by court order or
administrative order to halt construction or operations under any Cable
franchise and such action shall continue uncorrected for thirty (30) days after
the Company has received notice thereof), and such Cable franchise, together
with all other Cable franchises suspended, revoked, not renewed or otherwise
terminated at the time of such suspension, revocation or termination, has either
singly or in the aggregate in excess of the greater of ten percent (10%) of the
Basic Subscribers covered by all of the Company's Cable franchises on the last
day of the most recently ended fiscal quarter of the Company; or if any
governmental regulatory authority or judicial body shall make any other final
non-appealable determination the effect of which would be to affect materially
and adversely the operations of the Company as now conducted;
-31-
7.11. Termination or Dissolution of the Company, etc. The Partnerships
----------------------------------------------
shall agree to terminate or dissolve the Company; if the Company is terminated
or dissolved and not simultaneously continued; if either Partnership shall
withdraw as a partner of the Company; if JII shall cease to be the general
partner of each of the Partnerships and the manager of the Company; or if the
sole partners of the Company shall cease to be the Partnerships;
7.12. Environmental Matters. Any event or condition shall occur or exist
---------------------
with respect to any activity or substance regulated under the Environmental
Control Statutes and as a result of such event or condition, the Company has
incurred a liability in excess of $500,000 during any consecutive twelve (12)
month period;
THEN:
(a) As to any Event of Default under section 7.1, 7.2, 7.3, 7.4, 7.5,
7.6, 7.8, 7.9, 7.10, 7.11 and 7.12 and at any time thereafter, and in each
case, the Agent at the request of Required Banks may, by written notice to the
Company, immediately terminate the obligations of the Banks to make Loans and
participate in the issuance of Letters of Credit hereunder and/or declare the
unpaid principal balance of the Notes, together with all interest accrued
thereon, to be immediately due and payable; and the unpaid principal balance of
and accrued interest on the Notes shall thereupon be due and payable all without
presentment, demand, protest, or further notice of any kind, all of which are
hereby waived, and notwithstanding anything to the contrary herein or in the
Notes contained.
(b) As to any Event of Default under section 7.7, the obligations of
the Banks to make Loans and participate in the issuance of Letters of Credit
hereunder shall immediately terminate and the unpaid principal balance of the
Notes, together with all interest accrued thereon, shall immediately and
forthwith be due and payable, all without presentment, demand, protest, or
further notice of any kind, all of which are hereby waived, and notwithstanding
anything to the contrary herein or in the Notes contained.
(c) Upon the occurrence of any of said Events of Default, the rights,
powers and privileges provided in this Article VII and all other remedies
available to the Banks under this Agreement, the Collateral Documents or at law
or in equity may be exercised by the Agent on behalf of the Banks at any time
and from time to time, whether or not the indebtedness evidenced by the Notes
and secured by the documents required by Article III hereof shall be due and
payable, and whether or not the Agent on behalf of the Banks shall have
instituted any foreclosure proceedings or other action for the enforcement of
the Banks' rights under the Notes or any of the Collateral Documents securing
the same.
(d) For the purpose of carrying out the provisions and exercising the
rights, powers and privileges granted by this Article VII and the Collateral
Documents, the Company hereby irrevocably constitutes and appoints the Agent its
true and lawful attorney-in-fact, with full power of substitution upon the
occurrence of an Event of Default, to execute, acknowledge, endorse
-32-
and deliver any instruments and do and perform any acts which are referred to in
this Article VII and the Collateral Documents, in the name and behalf of the
Company. The power vested in each said attorney-in-fact is, and shall be deemed
to be, coupled with an interest and cannot be revoked.
(e) In the event that the Notes shall be paid in whole or in part
following acceleration of the maturity thereof while a Eurodollar Loan is
outstanding and such payment date is not the last day of an Interest Period for
such Loan, the Company shall pay to each Bank, on the date of such accelerated
Note payment, the amount required pursuant to Section 1.9 hereof.
ARTICLE VIII
------------
THE AGENT
---------
This Article sets forth the relative rights and duties of Agent and Banks
respecting the Loans and does not confer any enforceable rights on the Company
against Banks or create on the part of Banks any duties or obligations to the
Company.
8.1. Appointment and Powers. Each of the Banks hereby appoints CoreStates
----------------------
as Agent for the Banks hereunder, and authorizes the Agent to take such action
as Agent on its behalf and to exercise such powers as are specifically delegated
to the Agent by the terms hereof, together with such powers as are reasonably
incidental thereto. The duties of the Agent shall be entirely ministerial; the
Agent shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of this Agreement,
the Notes or any related document, or to enforce such performance, or to inspect
the property (including the books and records) of the Company; and the Agent
shall not be required to take any action which exposes the Agent to personal
liability or which is contrary to this Agreement or the Notes or applicable law.
CoreStates agrees to act as Agent upon the express terms and conditions
contained in this Article VIII.
8.2. Application of Payments. Agent shall apply all payments of principal,
------------------------
interest, commitment fee, facility fee, letter of credit fee, or other amounts
hereunder made to Agent by or on behalf of the Company, to Banks on the basis of
their pro rata shares of the outstanding principal balance of indebtedness
hereunder, except any Agent's fee paid in connection herewith which shall be
paid solely to Agent. Such distribution of payments shall be made promptly in
federal funds immediately available at the office of each Bank set forth above.
8.3. Modifications and Waivers. No modification or amendment hereof,
-------------------------
consent hereunder or waiver of Event of Default shall be effective except by
written consent of the Required Banks, provided, however, that the written
consent of all Banks shall be required to modify, amend, waive, discharge,
terminate or suspend compliance with any of the following provisions or matters:
(i) the rate of interest, to the extent it is proposed to be decreased, (ii) the
amount of the Commitments, and of each Bank's respective Commitment, (iii) the
dates of payment hereunder, (iv)
-33-
the commitment fee or the Letter of Credit Fee (v) the release of any Collateral
provided to the Agent on behalf of Banks pursuant to the Collateral Documents
(other than in connection with a sale of a Cable System which is permitted
hereunder) if the Collateral to be released is valued (based on the Company's
good faith estimate) at Fifty Thousand Dollars ($50,000) or more, and (vi) the
provisions of this Section 8.3 or the definition of Required Banks. The Banks
hereby agree to execute such further documents including without limitation
amendments to this Agreement and the Note(s), waivers and certificates and
deliver such opinions as the Agent and its counsel shall so request to implement
any modifications approved in accordance with the terms of this Section 8.3. Any
amendment or waiver made pursuant to this Section 8.3 shall apply to and bind
all of the Banks and any future holder of any Notes. No modification or waiver
of any provision of this Agreement or any Note, nor any consent to any departure
by the Company here from or therefrom, shall in any case be effective unless the
same be in writing, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given. No notice to
or demand on Company in any case shall entitle Company to any other or further
notice or demand in any similar or other circumstances.
8.4. Obligations Several. The obligations of the Banks hereunder are
-------------------
several, and each Bank hereunder shall not be responsible for the obligations of
the other Banks hereunder, nor, will the failure of one Bank to perform any of
its obligations hereunder relieve the other Banks from the performance of their
respective obligations hereunder.
8.5. Responsibility. The Agent (i) makes no representation or warranty
--------------
to any Bank and shall not be responsible to any Bank for any oral or written
recitals, reports, statements, warranties or representations made in or in
connection with this Agreement or any Note; (ii) shall not be responsible for
the due execution, legality, validity, enforceability, genuineness, sufficiency,
collectibility or value of this Agreement or any Note or any other instrument or
document furnished pursuant thereto; (iii) may treat the payee of any Note as
the owner thereof until the Agent receives written notice of the assignment or
transfer thereof signed by such payee and in form satisfactory to the Agent;
(iv) may execute any of its duties under this Agreement by or through employees,
agents and attorneys in fact and shall not be answerable for the default or
misconduct of any such employee, agent or attorney in fact selected by it with
reasonable care; (v) may (but shall not be required to) consult with legal
counsel (including counsel for the Company), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with advice of such
counsel, accountants or experts; (vi) shall be entitled to rely upon any Note,
notice, consent, waiver, amendment, certificate, affidavit, letter, telegram,
telex, cable or other document or communication believed by it to be genuine and
signed or sent by the proper party or parties, and may rely on statements
contained therein without further inquiry or investigation. Neither the Agent
nor any of its directors, officers, agents, or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement on the Notes, except for its or their own gross negligence or
willful misconduct.
8.6. Agent's Indemnification. The Banks agree to indemnify and reimburse
-----------------------
the Agent (to the extent not reimbursed by the Company), ratably from and
against any and all liabilities,
-34-
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent as such in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent under
this Agreement, provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank agrees to
reimburse the Agent promptly upon demand for its ratable share of any out-of-
pocket expenses (including counsel fees) incurred by the Agent in connection
with the preparation, execution, administration or enforcement of, or the
preservation of any rights under, this Agreement to the extent that the Agent is
not reimbursed for such expenses by the Company.
8.7. Action on Instruction of Banks; Right to Indemnity. Agent shall in all
--------------------------------------------------
cases be fully protected in acting or refraining from acting hereunder in
accordance with written instructions to it signed by Required Banks unless the
consent of all the Banks is expressly required hereunder in which case Agent
shall be so protected when acting in accordance with such instructions from all
the Banks. Such instructions and any action taken or failure to act pursuant
thereto shall be binding on all the Banks, provided that except as otherwise
provided herein, Agent may act hereunder in its own discretion without
requesting such instructions. Agent shall be fully justified in failing or
refusing to take any action hereunder unless it shall first be specifically
indemnified to its satisfaction by the other Banks on a pro rata basis against
any and all liability and expense which it may incur by reason of taking or
continuing to take any such action.
8.8. Rights as a Lender. With respect to its Commitment and the Note
------------------
issued to it, CoreStates, in its individual capacity as a Bank, shall have, and
may exercise, the same rights and powers under this Agreement and the Note
payable to it as the other Bank has under this Agreement and Note, and the terms
"Bank" and "Banks", unless the context otherwise requires, shall include
CoreStates in its individual capacity as a Bank. CoreStates and its affiliates
may accept deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of banking or trust business with, the Company, any
Affiliate of the Company, or any of its subsidiaries and any person, firm or
corporation who may do business with or own securities of the Company, such
Affiliate or any subsidiary, all as if it were not the Agent, and without any
duty to account therefor to the Banks; provided, however, that Agent hereby
agrees that if it agrees to make any loan to the Company (but not any Affiliate
of the Company, or any subsidiary or any person, firm or corporation which may
do business with or own securities of the Company), and the Company provides a
security interest in its assets covered by the Collateral Documents, that any
such security interest shall be junior to the security interests granted to
Agent on behalf of Banks under the Collateral Documents.
8.9. Credit Investigation. Each of the Banks severally represents and
--------------------
warrants to the other Bank and to the Agent that it has made its own independent
investigation and evaluation of the financial condition and affairs of the
Company in connection with such Bank's execution and delivery of this Agreement
and the making of its loans and has not relied on any information or
-35-
evaluation provided by any other Bank or the Agent in connection with any of the
foregoing (other than information provided by the Company to the Agent for
transmittal to the Banks in connection with the foregoing); and each Bank
represents and warrants to the other Bank and to the Agent that it shall
continue to make its own independent investigation and evaluation of the
creditworthiness of the Company while the Commitments and/or the Notes are
outstanding.
8.10. Resignation, Removal of Agent.
-----------------------------
(a) Agent may at any time resign its position as Agent, without
affecting its position as a Bank, by giving written notice to Banks and the
Company. Such resignation shall take effect upon the appointment of a successor
agent in accordance with this Article. In the event Agent shall resign, the
Company shall appoint a successor agent, subject to the consent of the Required
Banks, which shall not be unreasonably withheld. If within thirty (30) days of
the Agent's notice of resignation no successor agent shall have been appointed
by the Company and accepted such appointment, then Agent, in its discretion may
appoint any other Bank as a successor agent, subject to such Bank's acceptance
of such appointment and to approval by the Company, which approval will not be
unreasonably withheld.
(b) All Banks other than the Agent may remove the Agent, without
affecting its position as a Bank, by giving written notice signed by all such
Banks to the Agent. Such removal shall take effect thirty (30) business days
following Agent's receipt of notice of removal. The removal notice shall
identify the successor Agent (which shall be a Bank, or shall have been approved
by Company).
8.11. Successor Agent. The successor Agent appointed pursuant to Section
---------------
8.10 shall execute and deliver to its predecessor and Banks an instrument in
writing accepting such appointment, and thereupon such successor, without any
further act, deed or conveyance, shall become fully vested with all the
properties, rights, duties and obligations of its predecessor Agent. The
predecessor Agent shall deliver to its successor Agent forthwith all collateral
security, documents and moneys held by it as Agent, if any, whereupon such
predecessor Agent shall be discharged from its duties and obligations as Agent
under this Agreement.
8.12. Collateral Security. Agent will hold, administer and manage any
-------------------
collateral security pledged from time to time hereunder either in its own name
or as Agent, but each Bank shall hold a direct, undivided beneficial interest
therein, by reason of and as evidenced by this Agreement.
8.13. Enforcement by Agent. All rights of action under this Agreement
--------------------
and under the Notes and all rights to the collateral security, if any, hereunder
may be enforced by Agent and any suit or proceeding instituted by Agent in
furtherance of such enforcement shall be brought in its name as Agent without
the necessity of joining as plaintiffs or defendants any other Banks, and the
recovery of any judgment shall be for the benefit of Banks subject to the
expenses of Agent.
-36-
ARTICLE IX
----------
MISCELLANEOUS
-------------
9.1. Accounting Terms: Definitions. Except as otherwise provided, all
-----------------------------
accounting terms shall be construed in accordance with generally accepted
accounting principles consistently applied, and financial data submitted
pursuant to this Agreement shall be prepared in accordance with such principles.
As used herein:
(a) "Affiliate" means any person, firm, corporation or partnership,
---------
which, directly or indirectly, controls, is controlled by, or is under common
control with, the Company or a Subsidiary.
(b) "Annualized Cash Flow" means the Company's Cash Flow for the
---------------------
immediately preceding and completed fiscal quarter of the Company multiplied
times four (4).
(c) "Applicable Margin" shall mean (a) in the absence of a Default or
-----------------
an Event of Default, with respect to each Prime Rate and Eurodollar Loan,
respectively, the percentage per annum set forth in the appropriate column below
that corresponds to the Company's Leverage Ratio set forth in the left-hand
column below, as calculated based on the quarterly compliance certificate of the
Company, as follows:
Company's
Leverage Ratio Base Rate LIBO Rate
-------------- --------- ---------
Greater than 3.00 0.375% 1.3750%
2.50 or greater but less
than or equal to 3.00 0.125% 1.1250%
Less than 2.50 0% 0.875%
The Applicable Margin shall be adjusted quarterly by Agent and shall become
effective on the earlier of (i) two (2) Business Days after the receipt by Agent
of the financial statements and quarterly compliance certificates of the Company
pursuant to Sections 6.6(a) and 6.6(f) hereof, and (ii) the last date on which
such financial statements and compliance certificates were to be delivered,
provided, however, that in the event the Company fails to deliver such financial
statements and compliance certificates on a timely basis, the Company's Leverage
Ratio shall be deemed to be "Greater than 3.00" until such financial statements
and compliance certificates are delivered, and in each case the Applicable
Margin shall remain in effect until the next quarterly determination of the
Applicable Margin by Agent.
-37-
(d) "Bank" shall mean individually and "Banks" shall mean individually
---- -----
and collectively, the banks or other financial institutions party to this
Agreement at any time of determination and their respective successors and
assigns, being, CoreStates, Dresdner and PNC on the date hereof.
(e) "Base Rate" means the higher of (a) the Federal Funds Rate plus
----------
one half of one percent (1/2%) per annum or (b) the Prime Rate.
(f) "Basic Subscribers" means the subscribers in the Cable Systems who
-----------------
(a) are currently receiving cable television signals supplied by the Company;
(b) have commenced payment for such signals at the standard monthly fees and
charges for "basic service" (as such term is commonly understood in the cable
television industry) charged by the Company, directly or indirectly, under
subscriptions with the Company; and (c) are not 60 or more days delinquent in
payments as determined on a contractual basis; provided, however, that for
purposes of this definition, senior citizens receiving discounts of not more
than 20% of the otherwise applicable rate shall be deemed to be paying standard
monthly fees and charges for basic service.
(g) "Business Day" means a day other than (i) a Saturday, Sunday or a
------------
day on which national banks or banks located in the Commonwealth of Pennsylvania
are permitted or required by law to close or (ii) in respect to any Eurodollar
Loan, a day on which the London interbank market is closed.
(h) "Capitalized Lease" means any lease which is capitalized on the
-----------------
books of the lessee, or should be so capitalized under generally accepted
accounting principles.
(i) "Cash Flow" means, for any fiscal quarter, total revenues of the
---------
Company for such quarter, determined and consolidated in accordance with
generally accepted accounting principles less the sum of (i) operating expenses
----
of the Company for such quarter and (ii) general and administrative expenses of
the Company for such quarter, in each case determined and consolidated in
accordance with generally accepted accounting principles.
(j) "Controlled Group" means a controlled group of corporations as
----------------
defined in Section 1563 of the Internal Revenue Code of 1986, as amended, of
which the Company is a part.
(k) "Debt Service" means for any period, the sum of (a) all principal
------------
and Interest Expense scheduled to be paid on Total Debt during such period, plus
(b) all rentals (other than insurance premiums and property Taxes) scheduled to
be paid under Capitalized Leases during such period.
(1) "Default" means any event or circumstance which, with the giving
-------
of notice or the passage of time or both, would constitute an Event of Default.
-38-
(m) "Environmental Control Statutes" means any federal, state,
------------------------------
county, regional or local laws governing the control, storage, removal, spill,
release or discharge of Hazardous Substances, including without limitation
CERCLA, the Solid Waste Disposal Act, as amended by the Resource Conservation
and Recovery Act of 1976 and the Hazardous and Solid Waste Amendments of 1984,
the Federal Water Pollution Control Act, as amended by the Clean Water Act of
1977, the Clean Air Act, the Clean Air Act Amendments, the Hazardous Materials
Transportation Act, the Emergency Planning and Community Right to Know Act of
1986, the National Environmental Policy Act of 1975, the Oil Pollution Act of
1990, the Toxic Substances Control Act, any similar or implementing state law,
and in each case including all amendments thereto and all rules and regulations
in effect at any time thereunder and all permits issued in connection therewith.
"Hazardous Substance" means petroleum products and items defined in the
Environmental Control Statutes as "hazardous substances", "hazardous wastes",
"pollutants" or "contaminants" and any other toxic, reactive, corrosive,
carcinogenic, flammable or hazardous substance or other pollutant.
(n) "ERISA" means the Employee Retirement Income Security Act of
-----
1974, as the same may be in effect from time to time.
(o) "Eurodollar Loan" means the portion of a Loan bearing
---------------
interest at the rate specified in section 1.7(b).
(p) "Federal Funds Rate" means, for any day, the effective rate of
------------------
interest for such day, as announced from time to time by the Board of Governors
of the Federal Reserve System as shown in publication H.15 as the "Federal
Funds Rate."
(q) "Gross Operating Revenues" means, for any period for which such
------------------------
sum is being computed, the sum of all revenues and receipts earned by the
Company from the operation of its businesses during such period.
(r) "Home Office Allocations" means, for any period for which such sum
-----------------------
is being computed, the amount of reimbursement payable by the Company to JII for
general overhead and administrative expenses of JII allocated to the Company
pursuant to Paragraph 4 of Article VII of the Joint Venture Agreement (computed
by JII consistently with respect to all partnerships of which it or a Subsidiary
or Affiliate is a general partner or with which it is otherwise affiliated and
payment of which shall be subject to all the terms and provisions of this
Agreement and the Subordination Agreement).
(s) "Intercompany Subordinated Debt" means unsecured and subordinated
------------------------------
indebtedness of the Company to JII, including, without limitation, any advances
by JII to the Company, and any Home Office Allocations and Management Fees which
are deferred in accordance with the terms of this Agreement.
-39-
(t) "Interest Expense" means all interest expense, letter of credit
----------------
fees and commitment fees incurred with respect to Total Debt for the relevant
period, whether accrued or paid.
(u) "Letter of Credit" means individually, and "Letters of Credit"
---------------- -----------------
means individually and collectively, the letter(s) of credit issued hereunder in
the form agreed upon among the Company, the Agent and the beneficiary thereof at
the time of issuance thereof and participated in by the Banks pursuant to the
terms and conditions of Section 2A hereof.
(v) "Letter of Credit Request Form" shall mean the certificate in the
----------------------------
form attached as Exhibit D hereto to be delivered by the Company to Agent as a
---------
condition of each issuance of a Letter of Credit pursuant to 2A.3 hereof.
(w) "Letter of Credit Sublimit" shall mean the portion of the
-------------------------
Commitment up to which Banks have agreed to participate in the issuance by Agent
of Letters of Credit pursuant to Section 2A hereof, being Two Million Dollars
($2,000,000) on the date of this Agreement.
(x) "Leverage Ratio" means the ratio of the Company's Total Debt
--------------
to the Company's Annualized Cash Flow.
(y) "LIBO Rate" means, for each Interest Period for each Eurodollar
---------
Loan, the annual rate of interest obtained by dividing (i) the average rate of
--------
interest (rounded upward, if necessary, to the nearest 1/10th of 1%) at which
deposits in U.S. dollars are offered to prime banks in the London interbank
market at 11 a.m. (London time) two Business Days prior to the commencement of
the applicable Eurodollar Loan Interest Period for a term equal to such Interest
Period and in an amount approximately equal to the principal amount of the
applicable Eurodollar Loan, as reflected on the Telerate electronic
communications terminals in Agent's money center by (ii) a percentage, expressed
as a decimal, equal to 100% minus the reserve percentage applicable to Agent
during such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System for determining the reserve
requirements for Agent with respect to Eurocurrency Liabilities (as defined in
Regulation D) having a term equal to such Interest Period (including without
limitation any marginal, supplemental, special or other reserves which Agent, in
its discretion, determines must be maintained pursuant to applicable laws and
regulations).
(z) "Loan" means a loan made to the Company by any Bank pursuant to
----
Article I of this Agreement.
(aa) "LOC Contribution" shall have the meaning assigned to it in Section
----------------
2.5A hereof.
(bb) "London Business Day" means any Business Day on which the banks of
-------------------
London, England are open for business.
-40-
(cc) "Management Fees" means, for each period for which such sum is
---------------
being computed, management fees payable by the Company to JII pursuant to
Article VII, Section 3 of the Joint Venture Agreement, which fees shall be
calculated and payable monthly (payment of which shall be subject to all of the
terms and provisions of this Agreement and the Subordination Agreement).
(dd) "Maximum Permitted Indebtedness" means, at the date of
------------------------------
determination, the maximum permitted Leverage Ratio of the Company on such date
multiplied by the Company's Annualized Cash Flow for the preceding fiscal
quarter.
(ee) "Note" and "Notes" shall have the meanings set forth in
---- -----
Section 1.1 of this Agreement.
(ff) "Permitted Liens" means:
---------------
(i) liens for taxes, assessments or governmental charges, and
liens incident to construction, which are either not delinquent or are being
contested in good faith by the Company by appropriate proceedings which will
prevent foreclosure of such liens, and against which adequate reserves have been
provided; and zoning restrictions, easements, restrictions, minor title
irregularities and similar matters which have no adverse effect as a practical
matter upon the ownership and use of the affected property by the Company;
(ii) liens or deposits in connection with worker's compensation
or other insurance or to secure customs' duties, public or statutory obligations
in lieu of surety, stay or appeal bonds, or to secure performance of contracts
or bids (other than contracts for the payment of money borrowed), or deposits
required by law or governmental regulations or by any court order, decree,
judgment or rule as a condition to the transaction of business or the exercise
of any right, privilege or license; or other liens or deposits of a like nature
made in the ordinary course of business;
(iii) liens or security interests in favor of the Banks securing
the indebtedness and other obligations of the Company to the Banks under or in
connection with this Agreement, the Notes and the Collateral Documents;
(iv) purchase money liens and security interests in favor of
sellers or lessors securing indebtedness or obligations incurred to acquire or
lease fixed or capital assets permitted under clause (v) of Section 5.1 of this
Agreement (and extension, renewal and replacement liens upon the same property
provided the principal amount secured by each such lien constituting such
extension, renewal or replacement shall not exceed the principal amount secured
by the liens theretofore existing), each such purchase money lien and security
interest to attach only to the specific property the purchase or lease of which
gives rise to the indebtedness or obligation secured thereby;
-41-
(v) In the case of land in which the Company has a leasehold
estate and in the case of any buildings, other structures or fixtures located on
such land, the right, title and interest of the landlord under the lease
creating the leasehold, and in the case of land in which the Company has a
license to construct, own and operate buildings, fixtures and equipment on such
land, the right of the licensor with respect to such land, provided that such
landlord or licensor shall have executed fixtures disclaimers and attornment
agreements if so requested by Agent; and
(vi) liens securing judgments not in excess of $100,000 in
the aggregate arising from legal proceedings, so long as such proceedings are
being contested in good faith by appropriate proceedings diligently conducted
and so long as execution is stayed on all judgments resulting from any such
proceedings.
(gg) "Plan" means any employee pension benefit plan subject to
----
Title IV of ERISA maintained by the Company, any of its Subsidiaries, or any
member of the Controlled Group, or any such plan to which the Company, any of
its Subsidiaries, or any member of the Controlled Group is required to
contribute on behalf of any of its employees.
(hh) "Prime Rate" means the rate of interest announced by Agent
----------
from time to time as its prime rate.
(ii) "Prime Rate Loan" shall mean portion of a Loan bearing
---------------
interest at the rate specified in section 1.7(a).
(jj) "Proforma Debt Service" means, without duplication, for the
---------------------
succeeding twelve-month period from the end of any fiscal quarter or, with
respect to any calculation made as of a date other than the end of a fiscal
quarter, as of the end of the most recently ended fiscal quarter for which the
Company is required to deliver quarterly or annual Financial Statements and the
related certificate pursuant to Sections 6.6(a), 6.6(b) and 6.6(f), Debt Service
during such period; provided that, for purposes of this definition, the rates of
interest payable during any period on Total Debt (x) bearing interest at a
variable rate or at different fixed rates or (y) on which interest does not
become payable until a specified date after the end of such quarter shall, in
each case, be the interest rates per annum payable on such Total Debt as of the
date for which such calculation is made.
(kk) "pro rata" or "ratably" or "for the ratable benefit of
-------- ------- --------------------------
Banks" means each Bank's pro rata share of Loans or Letters of Credit on the
-----
date of determination based on the ratio of the principal amount of the Loans or
Letters of Credit outstanding in favor of such Bank to the aggregate principal
amount of Loans outstanding, or, if no Loans or Letters of Credit are
outstanding, based on the amount of such Bank's Commitment to the aggregate
amount of Commitments of all Banks.
(ll) "Reportable Event" means a reportable event as that term is
----------------
defined in Title IV of ERISA.
-42-
(mm) "Required Banks" means Banks whose outstanding Loans or
--------------
participation in Letters of Credit equal sixty-six and two-thirds percent
(66.2/3%) or more of the aggregate amount of the Loans or participation in
Letters of Credit, or, if no Loans or participation in Letters of Credit are
outstanding, Banks whose Commitments equal sixty-six and two-thirds percent (66
2/3%) or more of the Commitments.
(nn) "Restricted Payments" means redemptions, repurchases,
-------------------
dividends and distributions of any kind in respect of partnership or joint
venture interests in the Company, any payments of principal and interest on
Intercompany Subordinated Debt.
(oo) "Security Agreement" shall mean the Security Agreement
------------------
described in Section 3.3 of this Agreement, as it may be amended, restated,
supplemented or modified from time to time.
(pp) "Subordination Agreement" shall mean the Subordination
-----------------------
Agreement described in Section 3.2 of this Agreement, as it may be amended,
restated, supplemented or modified from time to time.
(qq) "Subsidiary" means a corporation of which the Company owns,
----------
directly or through another Subsidiary, at the date of determination, more than
50% of the outstanding stock or capital interests having ordinary voting power
for the election of directors, irrespective of whether or not at such time stock
or capital interests of any other class or classes might have voting power by
reason of the happening of any contingency.
(rr) "Termination Date" shall have the meaning set forth in
----------------
Section 1.1 of this Agreement.
(ss) "Total Debt" means the sum of all obligations for borrowed
----------
money, all payments required under non-compete agreements, capital lease
obligations, amounts required under installment sale purchases, all debt or
other financial obligations of others guaranteed or endorsed by the Company, and
any amounts for which the Company is contingently liable to provide as equity or
debt advances to other parties; provided, however, that Total Debt shall exclude
all Intercompany Subordinated Debt; provided, however, that such Intercompany
-----------------
Subordinated Debt is expressly subordinated to indebtedness of the Company to
the Banks under this Agreement pursuant to the Subordination Agreement.
9.2. Expenses and Attorneys' Fees. The Company shall be responsible
----------------------------
for the payment of all fees and out-of-pocket disbursements incurred by the
Banks in connection with the preparation, execution, delivery, administration
and enforcement of this Agreement, the Collateral Documents and the Notes,
including all costs of collection, and including without limitation the
reasonable fees and disbursements of counsel for each of the Banks, whether or
not any transaction contemplated by this Agreement is consummated.
-43-
9.3. Securities Act of 1933. Each of the Banks represents that it is
----------------------
acquiring the Note payable to it without any present intention of making a sale
or other distribution of such Note, provided that each Bank reserves the right
to sell the Note payable to it or participations therein. Notwithstanding the
foregoing, each Bank agrees that it will not sell or assign the Note payable to
it, its rights under this Agreement, or participations therein, in whole or in
part, to any party other than one or more banks which are affiliated with such
Bank by reason of their being subsidiaries of the present holding company of
such Bank.
9.4. Successors. The provisions of this Agreement shall inure to the
----------
benefit of any holder of each Note, and shall inure to the benefit of and be
binding upon any successor to any of the parties hereto. No delay on the part of
either Bank or any holder of any Note in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise of any right, power or privilege hereunder preclude other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein specified are cumulative and are not exclusive of
any rights or remedies which the Banks or the holders of the Notes would
otherwise have.
9.5. Survival. All agreements, representations and warranties made
--------
herein shall survive the execution of this Agreement, the making of the loans
hereunder and the execution and delivery of the Notes.
9.6. Pennsylvania Law: Amendment. This Agreement and the Notes issued
---------------------------
hereunder shall be governed by and construed in accordance with the internal
laws of the Commonwealth of Pennsylvania. This Agreement constitutes the entire
agreement of the parties as to the subject matter hereof, and no modification,
waiver or amendment shall be effective unless made in a writing signed by the
appropriate officers of the parties hereto.
9.7. Counterparts. This Agreement may be signed in any number of
------------
counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
9.8. Notices. All communications or notices required under this
---------
Agreement shall be deemed to have been given on the date received if sent by
telecopy, facsimile or overnight courier service, and, if mailed, on the fifth
day after deposited in the United States mail, postage prepaid, and addressed as
follows (unless and until any of such parties advises the other in writing of a
change in such address): (a) if to the Company, with the full name and address
and facsimile number of the Company as shown on this Agreement below; and (b) if
to a Bank with the full name and address and facsimile number of such Bank as
shown on this Agreement below, to the attention of the officer of such Bank
executing the form of acceptance of this Agreement.
-44-
If to the Company:
c/▇ ▇▇▇▇▇ Intercable, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Vice President/Treasurer
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
c/▇ ▇▇▇▇▇ Intercable, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to CoreStates Bank, N.A.
CoreStates Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Dresdner Bank AG:
Dresdner Bank AG
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to PNC Bank, National Association
PNC Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
9.9. Limitation on Recourse to Partners. Anything contained in this
----------------------------------
Agreement or the other Collateral Documents to the contrary notwithstanding, in
any action or proceeding brought on any Note, or on any of the Collateral
Documents or the indebtedness evidenced or secured
-45-
thereby, no deficiency judgment shall be sought or obtained against JII, the
Partnerships or any limited partner of the Partnerships or enforced against the
separate assets of JII, the Partnerships or any limited partner of the
Partnerships, and the liability of JII, the Partnerships and such limited
partners for any amounts due under the Notes, this Agreement or under the
Collateral Documents shall be limited to the interest of JII, the Partnerships
or any limited partner of the Partnerships in the collateral described in the
Collateral Documents and their interests in any other assets of the Company. The
Banks may join any present or future partners or joint venturers of the Company,
in their capacities as general partners or joint venturers, as defendants in any
legal action it undertakes to enforce its rights and remedies under this
Agreement, the Notes and under the Collateral Documents, but any judgment in any
such action may be satisfied by recourse only to the security provided for in
the Collateral Documents and the other assets of the Company, but not by
recourse directly to or by execution on the separate assets of JII, the
Partnerships or any limited partners of the Partnerships. Notwithstanding the
foregoing, (i) nothing set forth herein shall be deemed to prohibit the Banks
from taking any legal action(s) against JII or its assets arising out of JII's
undertakings under the Subordination Agreement or arising by reason of any fraud
or intentional misconduct of JII or the Partnerships and (ii) in the event that
at any time the Company is not a validly existing legal entity, then the Banks
shall have recourse to any and all assets (A) described in any financial
statement of the Company delivered to Banks, (B) represented to Banks at any
time as being owned by the Company and (C) that would have been owned by the
Company if it had existed, and all proceeds of the foregoing.
9.10. Indemnification and Release Provisions. The Company hereby
--------------------------------------
agrees to defend Agent and each Bank and their directors, officers, agents,
employees and counsel from, and hold each of them harmless against, any and all
losses, liabilities (including without limitation settlement costs and amounts,
transfer taxes, documentary taxes, or assessments or charges made by any
governmental authority), claims, damages, interests, judgments, costs, or
expenses, including without limitation reasonable fees and disbursements of
counsel, incurred by any of them arising out of or in connection with or by
reason of this Agreement, the Commitments, the making of the Loans, or issuing
Letters of Credit, or any Collateral Document, or any amendment, waiver or
modification with respect thereto, including without limitation, any and all
losses, liabilities, claims, damages, interests, judgments, costs or expenses
relating to or arising under any Environmental Control Statute or the
application of any such Statute to any of the Company's properties or assets
except with respect to such Bank's or Agent's (as the case may be) own gross
negligence or willful misconduct. The Company hereby releases Agent and each
Bank and their respective directors, officers, agents, employees and counsel
from any and all claims for loss, damages, costs or expenses caused or alleged
to be caused by any act or omission on the part of any of them except with
respect to such Bank's or Agent's (as the case may be) own gross negligence or
willful misconduct. All obligations provided for in this Section 9.10 shall
survive any termination of this Agreement or the Commitments and the repayment
of the Loans and the Letters of Credit.
9.11. Participations and Assignments. The Company hereby acknowledges
------------------------------
and agrees that a Bank may at any time: (A) grant participations in all or any
portion of its Loans, participation in any Letters of Credit, or Note or of its
right, title and interest therein or in or to this
-46-
Agreement (collectively, "Participations") to any other lending office or to any
other bank, lending institution or other entity which has the requisite
sophistication to evaluate the merits and risks of investments in Participations
("Participants"); provided, however, that: (i) all amounts payable by the
Company hereunder shall be determined as if such Bank had not granted such
Participation; and (ii) any agreement pursuant to which any Bank may grant a
Participation: (x) shall provide that such Bank shall retain the sole right and
responsibility to enforce the obligations of the Company hereunder including,
without limitation, the right to approve any amendment, modification or waiver
of any provisions of this Agreement; (y) such participation agreement may
provide that such Bank will not agree to any modification, amendment or waiver
of this Agreement without the consent of the Participant if such modification,
amendment or waiver would reduce the principal of or rate of interest on the
Loans or postpone the date fixed for any payment of principal of or interest on
the Loan; and (z) shall not relieve such Bank from its obligations, which shall
remain absolute, to make Loans and participate in Letters of Credit hereunder;
and (b) assign, with the prior written consent of the Agent and notice to the
Company, together with the payment to the Agent of a $1,500 transfer fee, up to
forty-nine percent (49%) of its Loans, participations in Letters of Credit, and
Commitment.
-47-
IN WITNESS WHEREOF, the undersigned by their duly authorized officers,
have executed this Second Amended and Restated Revolving Credit Agreement the
day and year first written above.
▇▇▇▇▇ CABLE INCOME FUND 1-B/C
VENTURE, a Colorado joint
venture general partnership
BY: ▇▇▇▇▇ Cable Income Fund 1-B, Ltd., a general
partner
BY: ▇▇▇▇▇ Cable Income Fund 1-C, Ltd, a general
partner
By: ▇▇▇▇▇ Intercable, Inc., their general
partner
By: /s/ J. ▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Vice President/Treasurer
CORESTATES BANK, N.A., for itself
and as Agent for the Banks
By:
--------------------------------------
Title:
DRESDNER BANK AG, NEW YORK BRANCH
By:
--------------------------------------
Title:
By:
--------------------------------------
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
-------------------------------------
Title:
-48-
IN WITNESS WHEREOF, the undersigned by their duly authorized officers,
have executed this Second Amended and Restated Revolving Credit Agreement the
day and year first written above.
▇▇▇▇▇ CABLE INCOME FUND 1-B/C
VENTURE, a Colorado joint
venture general partnership
BY: ▇▇▇▇▇ Cable Income Fund 1-B, Ltd., a general
partner
BY: ▇▇▇▇▇ Cable Income Fund 1-C, Ltd, a general
partner
By: ▇▇▇▇▇ Intercable, Inc., their general
partner
By:
----------------------------------
Title:
CORESTATES BANK, N.A., for itself
and as Agent for the Banks
By: [SIGNATURE ILLEGIBLE]
--------------------------------------
Title: Vice President
DRESDNER BANK AG, NEW YORK BRANCH
By:
--------------------------------------
Title:
By:
--------------------------------------
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
-------------------------------------
Title:
-49-
IN WITNESS WHEREOF, the undersigned by their duly authorized officers,
have executed this Second Amended and Restated Revolving Credit Agreement the
day and year first written above.
▇▇▇▇▇ CABLE INCOME FUND 1-B/C
VENTURE, a Colorado joint
venture general partnership
BY: ▇▇▇▇▇ Cable Income Fund 1-B, Ltd., a general
partner
BY: ▇▇▇▇▇ Cable Income Fund 1-C, Ltd, a general
partner
By: ▇▇▇▇▇ Intercable, Inc., their general
partner
By:
----------------------------------
Title:
CORESTATES BANK, N.A., for itself
and as Agent for the Banks
By:
--------------------------------------
Title:
DRESDNER BANK AG, NEW YORK BRANCH
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Title: Assistant Treasurer
PNC BANK, NATIONAL ASSOCIATION
By:
-------------------------------------
Title:
-50-
IN WITNESS WHEREOF, the undersigned by their duly authorized officers,
have executed this Second Amended and Restated Revolving Credit Agreement the
day and year first written above.
▇▇▇▇▇ CABLE INCOME FUND 1-B/C
VENTURE, a Colorado joint
venture general partnership
BY: ▇▇▇▇▇ Cable Income Fund 1-B, Ltd., a general
partner
BY: ▇▇▇▇▇ Cable Income Fund 1-C, Ltd, a general
partner
By: ▇▇▇▇▇ Intercable, Inc., their general
partner
By:
---------------------------------
Title:
CORESTATES BANK, N.A., for itself
and as Agent for the Banks
By:
--------------------------------------
Title:
DRESDNER BANK AG, NEW YORK BRANCH
By:
--------------------------------------
Title:
By:
--------------------------------------
Title:
PNC BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Title: Vice President
-51-