EXHIBIT 99.(a)
CREDIT AGREEMENT
[Tranche A]
among
▇▇▇▇▇ CABLE HOLDINGS II, INC.,
as the Borrower
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO
THE BANK OF NOVA SCOTIA,
NATIONSBANK OF TEXAS, N.A. and
SOCIETE GENERALE,
as the Managing Agents
THE BANK OF NOVA SCOTIA,
as the Administrative Agent
NATIONSBANK OF TEXAS, N.A.,
as the Documentation Agent
and
SOCIETE GENERALE,
as the Syndication Agent
Dated as of October 29, 1996
TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS..................................................................1
1.1 Defined Terms..............................................................1
1.2 Other Definitional Provisions.............................................20
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS.............................................21
2.1 Commitments...............................................................21
2.2 Notes.....................................................................21
2.3 Procedure for Borrowing...................................................21
2.4 Repayment of Loans........................................................22
SECTION 3. LETTERS OF CREDIT...........................................................23
3.1 L/C Commitment............................................................23
3.2 Procedure for Issuance of Letters of Credit...............................23
3.3 Fees, Commissions and Other Charges.......................................23
3.4 L/C Participations........................................................24
3.5 Reimbursement Obligation of the Borrower..................................25
3.6 Obligations Absolute......................................................26
3.7 Letter of Credit Payments.................................................26
3.8 Application...............................................................26
SECTION 4. GENERAL PROVISIONS APPLICABLE TO
LOANS AND LETTERS OF CREDIT.....................................................27
4.1 Interest Rates and Payment Dates..........................................27
4.2 Optional and Mandatory Commitment Reductions and Prepayments..............27
4.3 Commitment Fees, etc......................................................29
4.4 Computation of Interest and Fees..........................................30
4.5 Conversion and Continuation Options.......................................30
4.6 Minimum Amounts of Tranches...............................................31
4.7 Inability to Determine Interest Rate......................................31
4.8 Pro Rata Treatment and Payments...........................................31
4.9 Requirements of Law.......................................................32
4.10 Taxes.....................................................................33
4.11 Indemnity.................................................................35
4.12 Change of Lending Office..................................................36
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SECTION 5. REPRESENTATIONS AND WARRANTIES..............................................36
5.1 Financial Condition........................................................36
5.2 No Change..................................................................37
5.3 Existence; Compliance with Law.............................................37
5.4 Power; Authorization; Enforceable Obligations..............................37
5.5 No Legal Bar...............................................................38
5.6 No Material Litigation.....................................................38
5.7 No Default.................................................................39
5.8 Ownership of Property; Intellectual Property...............................39
5.9 No Burdensome Restrictions.................................................39
5.10 Taxes......................................................................39
5.11 Federal Regulations........................................................39
5.12 ERISA......................................................................40
5.13 Investment Company Act; Other Regulations..................................40
5.14 Subsidiaries...............................................................40
5.15 Insurance..................................................................40
5.16 Certain Cable Television Matters...........................................41
5.17 Environmental Matters......................................................41
5.18 Accuracy of Information....................................................43
5.19 Security Documents.........................................................43
5.20 Solvency...................................................................43
5.21 Indebtedness...............................................................43
5.22 Labor Matters..............................................................43
5.23 Prior Names................................................................44
5.24 Franchises.................................................................44
5.25 Chief Executive Office; Chief Place of Business............................45
5.26 Full Disclosure............................................................45
5.27 Intercompany Subordinated Debt.............................................45
SECTION 6. CONDITIONS PRECEDENT........................................................45
6.1 Conditions to Initial Extensions of Credit.................................45
6.2 Conditions to Each Extension of Credit.....................................47
SECTION 7. AFFIRMATIVE COVENANTS.......................................................48
7.1 Financial Statements.......................................................48
7.2 Certificates; Other Information............................................49
7.3 Payment of Obligations.....................................................50
7.4 Conduct of Business and Maintenance of Existence, etc......................50
7.5 Maintenance of Property; Insurance.........................................50
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7.6 Inspection of Property; Books and Records; Discussions.....................50
7.7 Notices....................................................................51
7.8 Environmental Laws.........................................................51
7.9 Collateral.................................................................52
7.11 New Subsidiaries...........................................................53
SECTION 8. NEGATIVE COVENANTS..........................................................53
8.1 Financial Condition Covenants..............................................54
8.2 Limitation on Indebtedness.................................................54
8.3 Limitation on Liens........................................................55
8.4 Limitation on Fundamental Changes..........................................56
8.5 Limitation on Sale of Assets...............................................56
8.6 Restricted/Unrestricted Designation of Subsidiaries........................57
8.7 Limitation on Restricted Payments; Other Payment Limitations...............58
8.8 Limitation on Acquisitions.................................................58
8.9 Investments, Loans, Etc....................................................59
8.10 Limitation on Transactions with Affiliates.................................60
8.11 Certain Intercompany Matters...............................................60
8.12 Limitation on Restrictions on Subsidiary Distributions.....................60
8.13 Limitation on Lines of Business............................................60
8.14 No Negative Pledge.........................................................60
8.15 Tax Sharing Agreement......................................................61
8.16 Limitation on the Borrower's Ownership of Assets...........................61
8.17 Limitation on Issuance of Capital Stock....................................61
SECTION 9. EVENTS OF DEFAULT...........................................................61
SECTION 10. THE ADMINISTRATIVE AGENT....................................................64
10.1 Appointment................................................................64
10.2 Delegation of Duties.......................................................65
10.3 Exculpatory Provisions.....................................................65
10.4 Reliance by the Administrative Agent.......................................65
10.5 Notice of Default..........................................................66
10.6 Non-Reliance on the Administrative Agent and the Other Lenders.............66
10.7 Indemnification............................................................66
10.8 The Administrative Agent in Its Individual Capacity........................67
10.9 Successor Administrative Agent.............................................67
10.10 Managing Agents and Co-Agents..............................................68
SECTION 11. NEW RESTRICTED SUBSIDIARIES.................................................69
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SECTION 12. MISCELLANEOUS..............................................................69
12.1 Amendments and Waivers...................................................69
12.2 Notices..................................................................70
12.3 No Waiver; Cumulative Remedies...........................................70
12.4 Survival of Representations and Warranties...............................71
12.5 Payment of Expenses and Taxes............................................71
12.6 Successors and Assigns; Participations and Assignments...................71
12.7 Adjustments; Set-off.....................................................75
12.8 Counterparts; When Effective.............................................75
12.9 Severability.............................................................75
12.10 Integration..............................................................76
12.11 GOVERNING LAW............................................................76
12.12 SUBMISSION TO JURISDICTION; WAIVERS......................................76
12.13 Acknowledgements.........................................................77
12.14 WAIVERS OF JURY TRIAL....................................................77
12.15 Confidentiality..........................................................77
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SCHEDULES
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Schedule 1.1 Commitments and Addresses of the Lenders
Schedule 5.1 Financial Disclosure
Schedule 5.4 Required Consents and Authorizations
Schedule 5.6 Litigation Disclosure
Schedule 5.14 Subsidiaries and Designation
Schedule 5.24 Franchise Agreements
Schedule 5.25 Chief Executive Office/Chief Places of Business
Schedule 6.1(f) Stock Ownership of the Borrower and the Restricted Subsidiaries
Schedule 8.10 Existing Affiliated Transactions
EXHIBITS
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A Form of Assignment and Acceptance
B Form of Compliance Certificate
C Form of Intercompany Subordinated Debt Agreement
D-1 ▇▇▇▇▇ Cable Holdings II, Inc. Negative Pledge Agreement
D-2 Restricted Subsidiary Negative Pledge Agreement
E Form of Intercompany Subordinated Note
F Form of Pledge Agreement(s)
G Form of Note
H-1 Form of Notice of Borrowing
H-2 Form of Notice of Conversion/Continuation
I Form of Closing Certificate
J Form of Legal Opinion of the General Counsel or the acting General Counsel of the Borrower
K Form of FCC Opinion
L Form of Alternative Note
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THIS CREDIT AGREEMENT [TRANCHE A] is entered into as of October
29, 1996, among ▇▇▇▇▇ CABLE HOLDINGS II, INC., a Colorado corporation (the
"Borrower"), the several lenders from time to time parties to this Agreement
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(the "Lenders"), THE BANK OF NOVA SCOTIA, NATIONSBANK OF TEXAS, N.A. and SOCIETE
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GENERALE, as the Managing Agents (in such capacity, the "Managing Agents"), THE
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BANK OF NOVA SCOTIA, as the Administrative Agent for the Lenders hereunder,
NATIONSBANK OF TEXAS, N.A., as the Documentation Agent (in such capacity, the
"Documentation Agent") and SOCIETE GENERALE, as the Syndication Agent (in such
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capacity, the "Syndication Agent").
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WITNESSETH:
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WHEREAS, (i) the Borrower has purchased or will purchase from
▇▇▇▇▇ Cable Holdings, Inc., a Colorado corporation ("JCH") 100% of the Capital
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Stock of ▇▇▇▇▇ Communications of Georgia/South Carolina, Inc. ("JCG") and ▇▇▇▇▇
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Communications of Arizona, Inc. ("JCA") and (ii) prior to or contemporaneously
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with the purchase of such Capital Stock by the Borrower, JCH will sell to JCG
the Cable Systems serving North Augusta, South Carolina, Augusta, Georgia and
Savannah, Georgia and sell to JCA the Cable System serving Pima County, Arizona
(the transactions described in subsections (i) and (ii) above being collectively
referred to herein as the "Stock Purchase"); and
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WHEREAS, the Borrower has requested the Lenders to furnish the
extensions of credit provided for herein, which shall be used by the Borrower
(a) to finance a portion of the cost to purchase the Capital Stock of JCG and
JCA and to finance other permitted acquisitions, (b) for capital expenditures to
expand and upgrade the Cable Systems, (c) to make dividends or distributions
permitted under this Agreement and (d) for general corporate purposes;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
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shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
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to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect
on such day and (b) the Federal Funds Effective Rate in effect on such day
plus 1/2 of 1%. For purposes hereof: "Prime Rate" shall mean the rate of
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interest per annum publicly announced from time to time by the
Administrative Agent as its prime rate in effect at its principal office in
New York City (the Prime Rate not being intended to be the lowest rate of
interest charged by the Administrative Agent in connection with extensions
of credit to debtors); and "Federal Funds
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1
Effective Rate" shall mean, for any day, the weighted average of the rates
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on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of
the quotations for the day of such transactions received by the
Administrative Agent from three federal funds brokers of recognized standing
selected by it. Any change in the ABR due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate or the
Federal Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
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upon the ABR.
"Acquired Assets": as defined in Section 7.9(c).
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"Acquired Systems": the Cable Systems serving North Augusta, South
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Carolina, Augusta, Georgia, Savannah, Georgia and Pima County Arizona,
transferred by JCH to certain of the Restricted Subsidiaries of the Borrower
on or before the Initial Funding Date.
"Administrative Agent": Scotiabank, together with its affiliates, as
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the agent for the Lenders under this Agreement and the other Loan Documents.
"Affiliate": as to any Person, any other Person which, directly or
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indirectly, is in control of, is controlled by, or is under common control
with, such Person. A Person shall be deemed to control another Person if
such Person (acting alone or with a group of Persons acting in concert)
possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of such other Person, whether
through ownership of voting securities, by contract or otherwise.
"Aggregate Outstanding Extensions of Credit": as to any Lender at any
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time, an amount equal to the sum of (a) the aggregate principal amount of
all Loans made by such Lender then outstanding and (b) such Lender's
Specified Percentage of the L/C Obligations then outstanding.
"Agreement": this Credit Agreement [Tranche A], as amended,
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supplemented or otherwise modified from time to time.
"Alternative Note": as defined in Section 12.6(d).
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"Alternative Noteholder": as defined in Section 12.6(e).
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"Annualized Operating Cash Flow": for the most recently ended fiscal
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quarter, an amount equal to Operating Cash Flow for such period multiplied
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by four.
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2
"Applicable Margin": at the time of any determination thereof, for
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purposes of all Loans, the margin of interest over the ABR or the Eurodollar
Rate, as the case may be, which is applicable at the time of any
determination of interest rates under this Agreement, which Applicable
Margin shall be subject to adjustment (upwards or downwards, as appropriate)
based on the Leverage Ratio, as follows:
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Applicable Margin Applicable Margin for
Leverage Ratio for ABR Loans Eurodollar Rate Loans
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Greater than or equal to 5.50 to 0.250% 1.250%
1.00
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Less than 5.50 to 1.00 but greater
than or equal to 5.00 to 1.00 0.000% 1.000%
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Less than 5.00 to 1.00 but greater
than or equal to 4.50 to 1.00 0.000% 0.750%
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Less than 4.50 to 1.00 0.000% 0.500%
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For the purposes of this definition, the Applicable Margin shall be
determined as at the end of each of the first three quarterly periods of
each fiscal year of the Borrower and as at the end of each fiscal year of
the Borrower, based on the relevant financial statements delivered pursuant
to Section 7.1(a) or (b) and the Compliance Certificate delivered pursuant
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to Section 7.2(b); changes in the Applicable Margin shall become effective
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on the date which is the earlier of (i) two Business Days after the date the
Administrative Agent receives such financial statements and the
corresponding Compliance Certificate and (ii) the 60th day after the end of
each of the first three quarterly periods of each fiscal year or the 120th
day after the end of each fiscal year, as the case may be, and shall remain
in effect until the next change to be effected pursuant to this definition;
provided, that (a) until the first such financial statements and Compliance
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Certificate are delivered after the date hereof, the Applicable Margin shall
be determined by reference to the Leverage Ratio set forth in the Closing
Certificate delivered to the Administrative Agent pursuant to Section 6.1(b)
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and (b) if any financial statements or the Compliance Certificate referred
to above are not delivered within the time periods specified above, then,
for the period from and including the date on which such financial
statements and Compliance Certificate are required to be delivered to but
not including the date on which such financial statements and Compliance
Certificate are delivered, the Applicable Margin as at the end of the fiscal
period that would have been covered thereby shall be deemed to be the
Applicable Margin which would be applicable when the Leverage Ratio is
greater than or equal to 5.50 to 1.00.
"Application": an application, in form and substance consistent with
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this Agreement and mutually satisfactory to the Borrower and the Issuing
Lender, requesting the Issuing Lender to open a Letter of Credit.
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"Assignee": as defined in Section 12.6(c).
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"Assignment and Acceptance": an Assignment and Acceptance
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substantially in the form of Exhibit A.
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"Authorizations": all filings, recordings and registrations with, and
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all validations or exemptions, approvals, orders, authorizations, consents,
Licenses, certificates and permits from, the FCC, applicable public utilities
and other Governmental Authorities, including, without limitation, Franchises,
FCC Licenses and Pole Agreements.
"Available Commitment": at any time, as to any Lender, an amount equal
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to (a) the amount of such Lender's Commitment at such time, minus (b) such
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Lender's Aggregate Outstanding Extensions of Credit at such time.
"BCI": ▇▇▇▇ Canada International Inc.
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"Board": the Board of Governors of the Federal Reserve System or any
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successor.
"Borrower": as defined in the preamble hereto.
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"Borrowing Date": any Business Day specified in a notice pursuant to
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Section 2.3 as a date on which the Borrower requests the Lenders to make Loans
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hereunder.
"Business": as defined in Section 5.17(c).
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"Business Day": a day other than a Saturday, Sunday or other day on
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which commercial banks in New York, New York are authorized or required by law
to close and, with respect to Eurodollar Loans, a day on which dealings in
Dollar deposits are carried out in the London interbank market.
"Cable Systems": all cable television facilities and distribution
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systems that are owned, operated and maintained by the Borrower or a Restricted
Subsidiary pursuant to the terms of the related licenses, franchises and permits
issued under federal, state or municipal laws from time to time in effect, which
authorize a person to receive or distribute, or both, by cable, optical,
antennae, microwave, satellite or otherwise, audio, video, digital, other
broadcast signals or information or telecommunications and visual signals within
a defined geographical area for the purpose of providing entertainment or other
services, together with all the property, tangible and intangible, owned or used
in connection with the services provided pursuant to said licenses, franchises
and permits, and each other cable television facility from time to time operated
by the Borrower and the Restricted Subsidiaries. A Cable System means one of
such Cable Systems.
4
"Capital Lease Obligations": as to any Person, the obligations of such
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Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP and, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation, any
and all classes of partnership interests (including, without limitation,
general, limited and preference units) in a partnership, any and all equivalent
ownership interests in a Person (other than a corporation or partnership), and
any and all warrants or options to purchase any of the foregoing.
"Cash Equivalents": (a) securities with maturities of one year or
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less from the date of acquisition issued or fully guaranteed or insured by the
United States Government or any agency thereof, (b) certificates of deposit and
eurodollar time deposits with maturities of one year or less from the date of
acquisition and overnight bank deposits of any Lender or of any commercial bank
having capital and surplus in excess of $500,000,000, (c) repurchase obligations
of any Lender or of any commercial bank satisfying the requirements of clause
(b) of this definition, having a term of not more than 30 days, with respect to
securities issued or fully guaranteed or insured by the United States
Government, (d) commercial paper of a domestic issuer rated at least A-1 by
Standard and Poor's Ratings Group ("S&P") or P-1 by ▇▇▇▇▇'▇ Investors Service,
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Inc. ("Moody's"), (e) securities with maturities of one year or less from the
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date of acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States, or by any political subdivision or taxing
authority of any such state, commonwealth or territory, the securities of which
state, commonwealth, territory, political subdivision, taxing authority (as the
case may be) are rated at least A by S&P or A-2 by Moody's, or (f) shares of
money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (e) of this definition.
"Change of Control": shall be deemed to have occurred at such time as
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any of the following occur:
(a) if ▇▇▇▇▇ ▇. ▇▇▇▇▇ and/or BCI shall no longer have the power to
elect a majority of the board of directors of JIC or to direct or cause the
direction of the management and policies of JIC through the ownership of voting
securities; or
(b) (i) if ▇▇▇▇▇ ▇. ▇▇▇▇▇ and/or BCI shall no longer have the
power, directly or indirectly, to elect a majority of the board of the Borrower
or to direct or cause the direction of the management and policies of the
Borrower and/or any Restricted Subsidiary or (ii) JIC shall create, incur,
assume or suffer to exist any Lien on any Capital Stock of the Borrower.
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"Closing Certificate": as defined in Section 6.1(b).
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"Co-Agents": CoreStates Bank, N.A., Credit Lyonnais New York Branch,
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PNC Bank, National Association, Mellon Bank, N.A., Royal Bank of Canada, The
Chase Manhattan Bank, Toronto Dominion (Texas), Inc., Banque Paribas and Bank of
America.
"Code": the Internal Revenue Code of 1986, as amended from time to
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time.
"Collateral": all Acquired Assets, if any, and all Capital Stock of
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all the Restricted Subsidiaries, now owned or hereinafter acquired.
"Commitment": as to any Lender, its obligation, if any, to make Loans
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to, and/or issue or participate in Letters of Credit issued on behalf of, the
Borrower in an aggregate amount not to exceed at any one time outstanding the
amount set forth opposite such Lender's name in Schedule 1.1 under the heading
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"Commitment" or, in the case of any Lender that is an Assignee, the amount of
the assigning Lender's Commitment assigned to such Assignee pursuant to Section
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12.6(c) and set forth in the applicable Assignment and Acceptance (in each case,
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as the same may be increased, reduced or otherwise adjusted from time to time as
provided herein).
"Commonly Controlled Entity": an entity, whether or not incorporated,
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which is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes the Borrower and which is
treated as a single employer under Section 414(b) or (c) of the Code.
"Compliance Certificate": a certificate of a Responsible Officer of
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the Borrower, substantially in the form of Exhibit B.
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"Contractual Obligation": as to any Person, any provision of any
----------------------
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 9, whether or not
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any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Disposition": as defined in Section 8.5.
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"Documentation Agent": as defined in the preamble hereto.
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"Dollars" and "$": dollars in lawful currency of the United States of
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America.
"Effective Date": as defined in Section 12.8.
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"Environmental Laws": any and all Federal, state, local or municipal
------------------
laws, rules, orders, regulations, statutes, ordinances, codes, decrees,
requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
---------------------------------
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
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Regulation D of such Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day during each
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Interest Period at which Scotiabank is offered Dollar deposits at or about 11:00
A.M., New York City time, two Business Days prior to the beginning of such
Interest Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations in respect of its Eurodollar Loans are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the amount
of its Eurodollar Loan to be outstanding during such Interest Period.
"Eurodollar Loans": Loans, the rate of interest applicable to which
----------------
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest Period
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pertaining to a Eurodollar Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%):
Eurodollar Base Rate
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1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 9,
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provided that any requirement for the giving of notice, the lapse of time, or
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both, or any other condition, has been satisfied.
"Facility": the Commitments and the extensions of credit made
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thereunder.
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"FCC": the Federal Communications Commission and any successor
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thereto.
"FCC License": any community antenna relay service, broadcast
-----------
auxiliary license, earth station registration, business radio, microwave or
special safety radio service license issued by the FCC pursuant to the
Communications Act of 1934, as amended.
"Franchise": any franchise, permit, wire agreement or easement,
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License or other Authorization granted by any Governmental Authority, including
all laws, regulations and ordinances relating thereto, for the construction,
operation and maintenance of a Cable System or satellite master antenna
television system and the reception and transmission of signals by microwave,
and shall include, without limitation, all FCC Licenses and all certificates of
compliance and cable television registration statements which are required to be
issued by or filed with the FCC.
"Franchise Agreement": any ordinance, agreement, contract or other
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document stating the terms and conditions of any Franchise, including, without
limitation, all exhibits and schedules thereto, all amendments thereof and
consents, waivers and extensions issued thereunder, any documents incorporated
therein by reference and the application from which such Franchise was granted.
"GAAP": generally accepted accounting principles in the United States
----
of America in effect from time to time.
"Governmental Authority": any nation or government, any state or other
----------------------
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
-------------------- -------------------
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
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of any other third Person (the "primary obligor") in any manner, whether
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directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
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Guarantee Obligation shall not include endorsements of
8
instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed to
be the lower of (a) an amount equal to the stated or determinable principal
amount of the primary obligation in respect of which such Guarantee Obligation
is made and (b) the maximum principal amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum principal amount for
which such guaranteeing person may be liable are not stated or determinable, in
which case the amount of such Guarantee Obligation shall be the principal amount
of such guaranteeing person's reasonably anticipated liability in respect
thereof as determined by the Borrower in good faith. For the purposes of
Section 8.2, Guarantee Obligations by the Borrower or any of the Restricted
-----------
Subsidiaries in respect of Indebtedness of the Borrower or any of the Restricted
Subsidiaries shall be calculated without duplication of any other Indebtedness.
It is understood that obligations pursuant to indemnities which (a) are granted
in the ordinary course of business, are related to officer or director liability
for officers and directors of the Borrower or the Restricted Subsidiaries, or
made in connection with asset Dispositions and (b) do not cover Indebtedness of
the types described in clauses (a) through (d) of the definition thereof shall
not constitute "Guarantee Obligations" for the purposes of this Agreement.
"Indebtedness": of any Person at any date, (a) all indebtedness of
------------
such Person for borrowed money or which is evidenced by a note, bond, debenture
or similar instrument, (b) all indebtedness of such Person for the deferred
purchase price of property or services (other than current trade liabilities
incurred in the ordinary course of business and payable in accordance with
customary practices), (c) all Capital Lease Obligations of such Person, (d) all
obligations of such Person in respect of the principal amount of acceptances or
letters of credit issued or created for the account of such Person, (e) all
Guarantee Obligations of such Person and (f) all liabilities of the type
described in clauses (a) through (e) above secured by any Lien on any property
owned by such Person even though such Person has not assumed or otherwise become
liable for the payment thereof; provided that the amount of any nonrecourse
--------
Indebtedness of such Person shall be not more than an amount equal to the fair
market value of the property subject to such Lien, as determined by the Borrower
in good faith. The Indebtedness of any Person shall include the Indebtedness of
any partnership in which such Person is a general partner, other than to the
extent that the instrument or agreement evidencing such Indebtedness expressly
limits the liability of such Person in respect thereof.
"Information": written information, including, without limitation,
-----------
certificates, reports, statements (other than financial statements, budgets,
projections and similar financial data) and documents.
"Initial Funding Date": the date when the initial extensions of
--------------------
credit have been made hereunder and all of the conditions precedent set forth in
Section 6 have been satisfied in full or waived.
---------
9
"Insolvency": with respect to any Multiemployer Plan, the condition
----------
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
---------
"Intercompany Subordinated Debt": any Indebtedness of the Borrower
------------------------------
related to or resulting from any loan or advance from, or any non-equity
investment in the Borrower by, or any management or similar fees payable by the
Borrower to, or any other obligation of the Borrower to pay to, BCI or an
Affiliate of the Borrower (excluding a Restricted Subsidiary), and all such
present and future Indebtedness of the Borrower owing to, or non-equity
investment in the Borrower by, or management or similar fees payable by the
Borrower to, or any other obligation of the Borrower to pay to, BCI or an
Affiliate of the Borrower (excluding a Restricted Subsidiary) now or hereafter
existing (whether created directly or acquired by assignment or otherwise),
fixed, contingent, liquidated, unliquidated, joint, several, or joint and
several, whether evidenced in writing or not, and interest, premiums and fees,
if any, thereon and other amounts payable in respect thereof, and all rights and
remedies of such obligees with respect thereto. Notwithstanding the foregoing,
Intercompany Subordinated Debt shall not include (a) payments under the
agreements described in Schedule 8.10, or (b) payments relating to any purchase,
-------------
sale, lease or exchange of property or the rendering of any service, with any
Affiliate of the Borrower (other than a Restricted Subsidiary) which is (i)
entered into in the ordinary course of the Borrower's business, (ii) the terms
of which are fair and reasonable and in the best interests of the Borrower and
(iii) which is approved by the Board of Directors of the Borrower.
"Intercompany Subordinated Debt Agreement": the agreement executed and
----------------------------------------
delivered pursuant to Section 6.1(a) by and among JIC, the Borrower and any
--------------
other Affiliate of the Borrower who becomes a party thereto pursuant to the
terms thereof, substantially in the form of Exhibit C.
---------
"Intercompany Subordinated Note": a note substantially in the form of
------------------------------
Exhibit E, evidencing Intercompany Subordinated Debt.
---------
"Interest Expense": for any fiscal quarter or fiscal year of the
----------------
Borrower, as applicable, the aggregate of all letter of credit fees, commitment
fees and interest accrued or paid by the Borrower or any of the Restricted
Subsidiaries, during such period in respect of Total Debt, all as determined on
a consolidated basis in accordance with GAAP.
"Interest Payment Date": (a) as to any ABR Loan, (i) the last
---------------------
Business Day of each March, June, September and December prior to the
Termination Date and (ii) the Termination Date, (b) as to any Eurodollar Loan
having an Interest Period of three months or less, the last day of such Interest
Period and (c) as to any Eurodollar Loan having an Interest Period longer than
three months, each day which is three months or a whole multiple thereof, after
the first day of such Interest Period and the last day of such Interest Period.
10
"Interest Period": with respect to any Eurodollar Loan:
---------------
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar
Loan and ending one, two, three or six months thereafter (or, to the
extent available from all Lenders, nine or twelve months thereafter),
as selected by the Borrower in its Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, given with respect
thereto; and
(b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Eurodollar Loan and ending
one, two, three or six months thereafter (or, to the extent available
from all Lenders, nine or twelve months thereafter), as selected by the
Borrower by irrevocable notice to the Administrative Agent not less
than three Business Days prior to the last day of the then current
Interest Period with respect thereto;
provided that, all of the foregoing provisions relating to Interest Periods are
--------
subject to the following:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event
such Interest Period shall end on the immediately preceding Business
Day;
(ii) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
(iii) any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Interest Rate Hedge Agreement": any interest rate protection
-----------------------------
agreement, interest rate futures contract, interest rate option, interest rate
cap or other interest rate hedge arrangement, to or under which the Borrower or
any Restricted Subsidiary is a party or a beneficiary.
"Investments": as defined in Section 8.9.
----------- -----------
"Issuing Lender": Scotiabank, provided that, in the event that
-------------- --------
Scotiabank shall be replaced as the Administrative Agent pursuant to
Section 10.9, (i) no Letter of Credit shall be issued by Scotiabank on or
------------
after the date of such replacement and (ii) the replacement Administrative Agent
shall be an Issuing Lender from and after the date of such replacement.
11
"JCA": as defined in the recitals.
---
"JCG": as defined in the recitals.
---
"JCH": as defined in the recitals.
---
"JIC": ▇▇▇▇▇ Intercable, Inc., a Colorado corporation.
---
"JIC Negative Pledge": the Negative Pledge Agreement to be executed and
-------------------
delivered by JIC, substantially in the form of Exhibit D-1, as the same may be
-----------
amended, supplemented or otherwise modified from time to time, whereby JIC
agrees not to create, incur, assume or suffer to exist any Lien upon the Capital
Stock of the Borrower nor upon any Intercompany Subordinated Debt from the
Borrower in favor of JIC.
"L/C Fee Payment Date": the last Business Day of each March, June,
--------------------
September and December.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
---------------
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of all unpaid Reimbursement Obligations.
"Lenders": as defined in the preamble hereto.
-------
"Letters of Credit": as defined in Section 3.1(a).
----------------- --------------
"Leverage Ratio": as of the last day of the most recently ended fiscal
--------------
quarter, the ratio of (i) Total Debt as of such day to (ii) Annualized Operating
Cash Flow based on such fiscal quarter.
"License": as to any Person, any license, permit, certificate of need,
-------
authorization, certification, accreditation, franchise, approval, or grant of
rights by any Governmental Authority or other Person necessary or appropriate
for such Person to own, maintain, or operate its business or property, including
FCC Licenses.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
----
12
"Loan Documents": this Agreement, the Applications, all Intercompany
--------------
Subordinated Notes, the Intercompany Subordinated Debt Agreement, the Notes, the
JIC Negative Pledge, all Restricted Subsidiary Negative Pledges, any Interest
Rate Hedge Agreements with any of the Lenders and the Security Documents.
"Loan Parties": the collective reference to the Borrower and the
------------
Restricted Subsidiaries.
"Majority Lenders": at any time when no Loans or L/C Obligations are
----------------
outstanding, the Lenders having Commitments greater than 50% of the Total
Commitment, and at any time when Loans or L/C Obligations are outstanding, the
Lenders with outstanding Loans and participations in L/C Obligations having an
unpaid principal balance and face amount, respectively, greater than 50% of all
Loans and L/C Obligations outstanding, excluding from such calculation the
Lenders which have failed or refused to fund a Loan or their respective portion
of an unpaid Reimbursement Obligation.
"Managing Agents": as defined in the preamble hereto.
---------------
"Managing Agents Fee Letter": the letter agreement, dated September
--------------------------
25, 1996, among the Borrower, NationsBank, Scotiabank, and Societe.
"Material Adverse Effect": a material adverse effect on (a) the
-----------------------
business, assets, operations or condition (financial or otherwise) of the
Borrower or any of the Restricted Subsidiaries, (b) the ability of any Loan
Party to perform its obligations under the Loan Documents or (c) the rights or
remedies of the Administrative Agent or the Lenders under this Agreement or any
of the other Loan Documents.
"Materials of Environmental Concern": any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including, without limitation, asbestos,
polychlorinated biphenyls and urea-formaldehyde insulation.
"Maximum Permitted Indebtedness": shall mean, at the date of
------------------------------
determination, an amount equal to the product of (i) Annualized Operating Cash
Flow based on the preceding fiscal quarter and (ii) the Leverage Ratio permitted
pursuant to Section 8.1(a) on the date of determination.
--------------
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
------------------
in Section 4001(a)(3) of ERISA.
"NationsBank": NationsBank of Texas, N.A.
-----------
13
"Net Unrestricted Designated Subsidiaries Three Month Cash Flow":
--------------------------------------------------------------
shall mean, for any period, the excess, if any, of (i) the Three Month Cash
Flow attributable to all Restricted Subsidiaries which have been designated
during such period as Unrestricted Subsidiaries pursuant to Section 8.6,
-----------
including, if applicable, the Three Month Cash Flow attributable to any
Restricted Subsidiary which is then being designated as an Unrestricted
Subsidiary pursuant to Section 8.6 (calculated at the time of each such
-----------
designation), over (ii) the Three Month Cash Flow attributed to all
Unrestricted Subsidiaries which have been designated during such period as
Restricted Subsidiaries pursuant to Section 8.6, including, if applicable,
-----------
the Three Month Cash Flow attributable to any Unrestricted Subsidiary which
is then being designated as a Restricted Subsidiary pursuant to Section 8.6
-----------
(calculated at the time of each such designation).
"Non-Excluded Taxes": as defined in Section 4.10(a).
------------------ ---------------
"Non-U.S. Lender": as defined in Section 4.10(b).
--------------- ---------------
"Notes": as defined in Section 2.2.
----- -----------
"Notice of Borrowing": as defined in Section 2.3.
------------------- -----------
"Notice of Conversion/Continuation": as defined in Section 4.5.
--------------------------------- -----------
"Obligations": the unpaid principal of and interest on (including,
-----------
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Loan Party, whether or
not a claim for post-filing or post-petition interest is allowed in such
proceeding) the Loans and Reimbursement Obligations and all other
obligations and liabilities of any Loan Party to the Administrative Agent
or to any Lender (or, in the case of any Interest Rate Protection
Agreement, any affiliate of any Lender), whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the Letters of Credit, any Interest
Rate Protection Agreement entered into with any Lender (or any affiliate of
any Lender) or any other document made, delivered or given in connection
herewith or therewith, whether on account of principal, interest,
reimbursement obligations, fees, indemnities, costs, expenses (including,
without limitation, all reasonable fees, charges and disbursements of
counsel to the Administrative Agent or to any Lender that are required to
be paid by any Loan Party pursuant hereto) or otherwise.
"Operating Cash Flow": for any period the total revenues
-------------------
(excluding the gain on the sale of any assets to the extent included
therein) of the Borrower and the Restricted Subsidiaries, less the sum of
(a) operating expenses of the Borrower and the Restricted Subsidiaries for
such period, and (b) general and administrative expenses of the Borrower
14
and the Restricted Subsidiaries for such period, in each case determined
and consolidated in accordance with GAAP and calculated after giving effect
to acquisitions, exchanges and dispositions of assets of the Borrower and
any of the Restricted Subsidiaries (and designations of the Restricted
Subsidiaries and the Unrestricted Subsidiaries) during such period as if
such transactions had occurred on the first day of such period; provided,
--------
that for purposes of determining Operating Cash Flow for any such period
during which (a) the Borrower or any of the Restricted Subsidiaries
acquired or disposed of any assets, or (b) any Restricted Subsidiaries were
designated Unrestricted Subsidiaries or Unrestricted Subsidiaries were
designated Restricted Subsidiaries, then such Operating Cash Flow shall be
increased (in the case of asset acquisitions or the designation of a
Unrestricted Subsidiary as a Restricted Subsidiary) or reduced (in the case
of asset dispositions or the designation of a Restricted Subsidiary as an
Unrestricted Subsidiary), by the Operating Cash Flow that would have been
contributed by such assets or Restricted Subsidiary or Unrestricted
Subsidiary, as the case may be during such period, determined on a pro
forma basis in a manner reasonably satisfactory to the Managing Agents, as
though the Borrower or the relevant Restricted Subsidiary acquired or
disposed of such assets or the designations of the Restricted Subsidiaries
or the Unrestricted Subsidiaries took place, on the first day of such
period.
"Participant": as defined in Section 12.6(b).
----------- ---------------
"PBGC": the Pension Benefit Guaranty Corporation established
----
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Line of Business": as defined in Section 8.13.
-------------------------- ------------
"Person": an individual, partnership, corporation, limited
------
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
----
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) a "contributing sponsor" as
defined in Section 4001(a)(13) of ERISA or a member of such contributing
sponsor's "control group" as defined in Section 4001(a)(14) of ERISA.
"Pledge Agreements": the Pledge Agreements to be executed and
-----------------
delivered by the Borrower and each of the Restricted Subsidiaries,
substantially in the form of Exhibit F hereto, as the same may be amended,
---------
supplemented or otherwise modified from time to time.
"Pledged Subsidiary": any Restricted Subsidiary of the Borrower.
------------------
15
"Pole Agreement": any pole attachment agreement or underground
--------------
conduit use agreement entered into in connection with the operation of any
Cable System.
"Prime Rate": as defined in the definition of "ABR".
----------
"Pro Forma Debt Service": on any date of determination, without
----------------------
duplication, for the succeeding twelve-month period from the end of the
most recently ended fiscal quarter, the sum of (a) all Interest Expense
scheduled to be paid on Total Debt during such twelve-month period
(including without limitation any amounts scheduled to be paid pursuant to
any Interest Rate Hedge Agreement), plus (b) all rentals (other than
insurance premiums and property taxes) scheduled to be paid under Capital
Lease Obligations during such twelve-month period, plus (c) required
principal payments on Total Debt and/or payments associated with reductions
in the Total Commitment for such twelve-month 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.
"Properties": as defined in Section 5.17(e).
---------- ---------------
"Quarterly Percentage Reduction": as defined in Section 4.2(c).
------------------------------ --------------
"Register": as defined in Section 12.6(g).
-------- ---------------
"Reimbursement Obligations": the obligations of the Borrower to
-------------------------
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn
-----------
under Letters of Credit.
"Reorganization": with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b)
----------------
of ERISA, other than those events as to which the thirty day notice period
is waived under Sections .13, .14, .16, .18, .19 or .20 of PBGC Reg. (S)
2615.
"Requirement of Law": as to any Person, the Certificate of
------------------
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority (including any
Authorization), in each case applicable to or binding upon such Person or
any of its property or to which such Person or any of its property is
subject.
"Responsible Officer": the chief executive officer, the president,
-------------------
the chief financial officer or the treasurer of the relevant Loan Party.
16
"Restricted Payments": as defined in Section 8.7.
------------------- -----------
"Restricted Subsidiary": (a) each of the Subsidiaries designated
---------------------
as such on Schedule 5.14 attached hereto, (b) any Subsidiary created or
-------------
acquired after the Effective Date pursuant to Section 8.9(e), unless and
-------------
until designated as an Unrestricted Subsidiary pursuant to Section 8.6 and
-----------
(c) as of the date of such designation, any Unrestricted Subsidiary
designated as a Restricted Subsidiary pursuant to Section 8.6.
-----------
"Restricted Subsidiary Negative Pledge": the Negative Pledge
-------------------------------------
Agreement to be executed and delivered by each Restricted Subsidiary in the
form of Exhibit D-2, as the same may be amended, supplemented or otherwise
-----------
modified from time to time, whereby the Restricted Subsidiaries agree not
to create, incur, assume or suffer to exist any Lien upon any of their
assets except as permitted under Section 8.3 of the Tranche B Agreement and
-----------
this Agreement.
"Scotiabank": The Bank of Nova Scotia.
----------
"Scotiabank Fee Letter": the letter agreement, dated September 25,
---------------------
1996, between the Borrower and Scotiabank.
"Security Documents": the collective reference to the Pledge
------------------
Agreements and any other security documents hereafter delivered to the
Administrative Agent granting a Lien on any asset or assets of any Person
to secure the obligations and liabilities of the Borrower hereunder and
under any of the other Loan Documents or to secure any guarantee of any
such obligations and liabilities.
"Single Employer Plan": any Plan which is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Societe": Societe Generale.
-------
"Solvent": when used with respect to any Person, means that, as of
-------
any date of determination, (a) the amount of the "fair value" or "present
fair saleable value" of the assets of such Person will, as of such date,
exceed the amount of all "liabilities of such Person, contingent or
otherwise", as of such date, as such quoted terms are determined in
accordance with applicable federal and state laws governing determinations
of the insolvency of debtors, (b) the fair value or present fair saleable
value of the assets of such Person will, as of such date, be greater than
the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not
have, as of such date, an unreasonably small amount of capital with which
to conduct its business, and (d) such Person will be able to pay its debts
as they mature. For purposes of this definition, (i) "debt" means liability
on a "claim", (ii) "claim" means any (x) right to payment, whether or not
such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent,
17
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured or (y) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to
an equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured and (iii)
unliquidated, contingent, disputed and unmatured claims shall be valued at
the amount that can be reasonably expected to be actual and matured.
"Specified Percentage": at any time, as to any Lender, the
--------------------
percentage of the Total Commitment then constituted by such Lender's
Commitment.
"Stock Purchase": as defined in the recitals hereto.
--------------
"Subsidiary": as to any Person, a corporation, partnership or
----------
other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors (or Persons holding equivalent
positions) of such corporation, partnership or other entity are at the time
owned, or the management and policies of which are otherwise ultimately
controlled, directly or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower.
"Syndication Agent": as defined in the preamble hereto.
-----------------
"Tax Sharing Agreement": that certain ▇▇▇▇▇ Intercable, Inc. and
---------------------
its Qualifying Subsidiaries Income Tax Sharing Agreement, dated as of
October 31, 1995, among JIC and certain of its Subsidiaries, as amended
solely to include the Borrower and the Restricted Subsidiaries as parties
thereto.
"Termination Date": the earlier of (i) December 31, 2005, (ii) the
----------------
date the Lenders' Commitments to lend under this Agreement are otherwise
cancelled or terminated and (iii) the date any Note shall become due and
payable, whether at stated maturity, by acceleration or otherwise.
"Three Month Cash Flow": for a Person or group of Persons or the
---------------------
assets of any Person as the context requires that portion of Operating Cash
Flow derived from or produced by such Person, Persons or assets for the
three-month period ending on the last day of the month immediately
preceding the date of designation, transfer, sale or exchange of such
Person, Persons or assets or, in the case of the Borrower and the
Restricted Subsidiaries, immediately prior to the date of determination
thereof.
"Total Available Commitment": the sum of the Available Commitments
--------------------------
of all the Lenders.
18
"Total Commitment": the sum of the Commitments (in each case, as
----------------
the same may be increased, reduced or otherwise adjusted from time to time
as provided herein) not to exceed $300,000,000.
"Total Debt": for the Borrower and the Restricted Subsidiaries as
----------
of any date, without duplication, the sum of (a) Indebtedness outstanding
on such date excluding any Intercompany Subordinated Debt, provided that
--------
the Intercompany Subordinated Debt is unsecured and subordinated pursuant
to the terms of the Intercompany Subordinated Debt Agreement, (b) Capital
Lease Obligations outstanding on such date and (c) Guarantee Obligations,
determined on a consolidated basis in accordance with GAAP.
"Total Extensions of Credit": at any time, the sum of the
--------------------------
Aggregate Outstanding Extensions of Credit of all of the Lenders at such
time.
"Tranche": the collective reference to Eurodollar Loans, the then
-------
current Interest Periods of which begin on the same date and end on the
same later date (whether or not such Loans shall originally have been made
on the same day).
"Tranche B Agreement": the Credit Agreement [Tranche B] among the
-------------------
Borrower, the several Lenders from time to time parties thereto, the
Managing Agents, the Syndication Agent, the Documentation Agent and the
Administrative Agent, of even date herewith, as amended, supplemented or
otherwise modified from time to time.
"Transferee": as defined in Section 12.6(i).
---------- ---------------
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
----
Loan.
"Uniform Customs": the Uniform Customs and Practice for
---------------
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
"Unrestricted Subsidiary": (a) any Subsidiary created or acquired
-----------------------
after the Effective Date, pursuant to Section 8.9(f) and/or any Subsidiary
-------------
that is designated as an Unrestricted Subsidiary in accordance with the
terms of Section 8.6 and (b) any Subsidiary of any such Unrestricted
-----------
Subsidiary, provided, that (i) at no time shall any creditor of any such
--------
Subsidiary have any claim (whether pursuant to a Guarantee Obligation or
otherwise) against the Borrower or any of its other Subsidiaries (other
than another Unrestricted Subsidiary) in respect of any Indebtedness or
other obligation of any such Subsidiary; (ii) neither the Borrower nor any
of its Subsidiaries (other than another Unrestricted Subsidiary) shall
become a general partner of any such Subsidiary; (iii) no default with
respect to any Indebtedness of any such Subsidiary (including any right
which the holders thereof may have to take enforcement action against any
such Subsidiary) shall permit (upon notice, lapse of time or both) any
holder of any Indebtedness of the Borrower or its other Subsidiaries (other
19
than another Unrestricted Subsidiary) to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable
prior to its final scheduled maturity; (iv) no such Subsidiary shall own
any Capital Stock of, or own or hold any Lien on any property of, the
Borrower or any other Subsidiary of the Borrower (other than another
Unrestricted Subsidiary); (v) no Investments may be made in any such
Subsidiary by the Borrower or any of its Subsidiaries (other than another
Unrestricted Subsidiary except pursuant to Section 8.9(f)); and (vi) at the
-------------
time of such designation, no Default or Event of Default shall have
occurred and be continuing or would result therefrom. It is understood that
the Unrestricted Subsidiaries shall be disregarded for the purposes of any
calculation pursuant to this Agreement relating to financial matters with
respect to the Borrower.
"Unrestricted Subsidiary Designation": as defined in Section 8.6.
----------------------------------- -----------
"Wholly Owned Subsidiary": as to any Person, any other Person at
-----------------------
least 100% of the Capital Stock of which (other than directors' qualifying
shares required by law) is owned by such Person directly or indirectly
through one or more other Wholly Owned Subsidiaries.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
-----------------------------
therein, all terms defined in this Agreement shall have the defined meanings
when used in any other Loan Document or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) Unless otherwise specified herein, all accounting terms used
herein (and in any other Loan Document and any certificate or other document
made or delivered pursuant hereto or thereto) shall be interpreted, all
accounting determinations shall be made, and all financial statements required
to be delivered hereunder shall be prepared, in accordance with GAAP as in
effect from time to time; provided, however, that if the Borrower notifies the
-------- -------
Administrative Agent that the Borrower wishes to amend any covenant in Section 8
---------
to eliminate the effect of any change in GAAP on the operation of such covenant
(or if the Administrative Agent notifies the Borrower that the Majority Lenders
wish to amend Section 8 for such purpose), then compliance with such covenant
---------
shall be determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either such notice is withdrawn
or such covenant is amended in a manner satisfactory to the Borrower and the
Majority Lenders.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
20
(e) References in this Agreement or any other Loan Document to
knowledge by the Borrower or any Restricted Subsidiary of events or
circumstances shall be deemed to refer to events or circumstances of which any
Responsible Officer has actual knowledge or reasonably should have knowledge.
(f) References in this Agreement or any other Loan Document to
financial statements shall be deemed to include all related schedules and notes
thereto.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. (a) Subject to and in reliance upon the terms,
-----------
conditions, representations and warranties contained in the Loan Documents, each
Lender severally agrees to make revolving credit Loans to the Borrower from time
to time until the Termination Date, provided that in no event shall the
Aggregate Outstanding Extensions of Credit of any Lender at any time exceed such
Lender's Commitment. Until the Termination Date, the Borrower may use the
Available Commitments by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) The Loans may from time to time be (i) Eurodollar Loans,
(ii) ABR Loans or (iii) a combination thereof, as determined by the Borrower
and notified to the Administrative Agent in accordance with Sections 2.3 and
------------
4.5, provided that no Loan shall be made as a Eurodollar Loan after the day
--- --------
that is one month prior to the Termination Date.
2.2 Notes. In order to evidence the Loans, the Borrower will
-----
execute and deliver to each Lender a promissory note substantially in the form
of Exhibit G, with appropriate insertions as to payee, date and principal amount
---------
(each, as amended, supplemented, replaced or otherwise modified from time to
time, a "Note"), payable to the order of each Lender and in a principal amount
----
equal to each such Lender's Commitment. Each Note shall (x) be dated the
Effective Date or the date of any reissuance of such Note, (y) be stated to
mature on the Termination Date and (z) provide for the payment of interest in
accordance with Section 4.1.
-----------
2.3 Procedure for Borrowing. Subject to the terms and conditions
-----------------------
contained in the Loan Documents, the Borrower may borrow under the Available
Commitments, prior to the Termination Date, on any Business Day by delivery to
the Administrative Agent of an irrevocable notice substantially in the form of
Exhibit H-1 (a "Notice of Borrowing"). A Notice of Borrowing must be received
----------- -------------------
by the Administrative Agent prior to 12:00 Noon, New York City time, (a) three
Business Days prior to the requested Borrowing Date, if all or any part of the
requested Loans are to be initially Eurodollar Loans, or (b) on the requested
Borrowing Date. A Notice of Borrowing shall specify (i) the amount to be
borrowed, (ii) the requested Borrowing Date, (iii) whether the borrowing is to
be of Eurodollar Loans, ABR Loans or a combination thereof and (iv) if the
borrowing is to be entirely or partly of Eurodollar Loans, the respective
amounts of each Tranche and the respective lengths of the initial Interest
Periods therefor. Each borrowing under the Total Available Commitment shall be
in an amount equal to (x) in the case of ABR Loans, $5,000,000 or
21
a whole multiple of $1,000,000 in excess thereof (or, if the then Total
Available Commitment is less than $5,000,000, such lesser amount) and (y) in the
case of Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such Notice of Borrowing from the Borrower, the
Administrative Agent shall promptly notify each Lender thereof. Each such
Lender will make the amount of its pro rata share of each borrowing available to
the Administrative Agent for the account of the Borrower at the office of the
Administrative Agent specified in Section 12.2 prior to 2:00 P.M., New York City
------------
time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower by the Administrative Agent crediting the account of
the Borrower as so directed by the Borrower in a Notice of Borrowing with the
aggregate of the amounts made available to the Administrative Agent by the
Lenders and in like funds as received by the Administrative Agent.
2.4 Repayment of Loans. (a) The Borrower hereby unconditionally
------------------
promises to pay to the Administrative Agent for the account of each Lender, (i)
the then unpaid principal amount of each Loan of such Lender, on the Termination
Date (or such earlier date on which the Loans become due and payable pursuant to
Section 9) and (ii) the amounts specified in Section 4.2, on the dates specified
--------- -----------
in Section 4.2. The Borrower hereby further agrees to pay interest on the
-----------
unpaid principal amount of the Loans from time to time outstanding from the date
hereof until payment in full thereof at the rates per annum, and on the dates,
set forth in Section 4.1.
-----------
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant
to Section 12.6(g), and a subaccount therein for each Lender, in which shall be
--------------
recorded (i) the amount of each Loan made hereunder, the Type thereof and each
Interest Period, if any, applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 12.6(g) shall, to the extent permitted by
--------------
applicable law, be prima facie evidence of the existence and amounts of the
----- -----
obligations of the Borrower therein recorded; provided, however, that the
-------- -------
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Lender in accordance with the terms of this Agreement.
22
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
--------------
hereof, Issuing Lender, in reliance on the agreements of the other Lenders set
forth in Section 3.4(a), agrees to issue letters of credit ("Letters of Credit")
------------- -----------------
for the account of the Borrower on any Business Day in such form as may be
approved from time to time by such Issuing Lender; provided that Issuing Lender
--------
shall not issue any Letter of Credit if, after giving effect to such issuance,
either (i) the L/C Obligations would exceed $30,000,000 or (ii) the Total
Extensions of Credit would exceed the Total Commitment. Each Letter of Credit
shall (i) be denominated in Dollars and shall be either (x) a standby letter of
credit issued for the account of the Borrower, which finances the working
capital and business needs of the Borrower and/or the Subsidiaries of the
Borrower, including, without limitation, good faith deposits in connection with
permitted acquisitions by the Borrower and/or the Subsidiaries of the Borrower,
or (y) a commercial letter of credit issued for the account of the Borrower in
respect of the purchase of goods or services by the Borrower and/or any of the
Subsidiaries of the Borrower and (ii) expire no later than the earlier of (x)
the Termination Date and (y) the date which is 12 months after its date of
issuance.
(b) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(c) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any other Lender to exceed any limits imposed by,
any applicable Requirement of Law.
3.2 Procedure for Issuance of Letters of Credit. The Borrower may
-------------------------------------------
from time to time request that the Issuing Lender issue a Letter of Credit by
delivering to the Issuing Lender, at its address for notices specified herein,
an Application therefor, completed to the reasonable satisfaction of the Issuing
Lender, and such other certificates, documents and other papers and information
as the Issuing Lender may reasonably request. Upon receipt of any Application,
the Issuing Lender will process such Application and the certificates, documents
and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby (but in no event shall the Issuing Lender be required
to issue any Letter of Credit earlier than three Business Days after its receipt
of the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Borrower. The Issuing Lender shall furnish a copy of such
Letter of Credit to the Borrower promptly following the issuance thereof.
3.3 Fees, Commissions and Other Charges. (a) The Borrower shall
-----------------------------------
pay to the Administrative Agent, for the account of each Lender, a letter of
credit fee with respect to each Letter of Credit, computed for the period from
and including the date of issuance of such Letter of Credit to the date such
Letter of Credit is no longer outstanding, computed at a percentage rate per
annum equal to the Applicable Margin from time to time applicable to Loans
bearing interest at the
23
Eurodollar Rate, calculated on the basis of a 360-day year, of the aggregate
average daily amount available to be drawn under such Letter of Credit for the
period as to which payment of such fee is made, payable on each L/C Fee Payment
Date to occur while such Letter of Credit remains outstanding and on the date
such Letter of Credit expires, is cancelled or is drawn upon. Such fee shall be
nonrefundable.
(b) In addition to the foregoing fees, the Borrower shall pay to the
Issuing Lender the fees set forth in the Scotiabank Fee Letter.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to each Lender all fees received by the Administrative Agent
for each such Lender's account pursuant to this Section.
3.4 L/C Participations. (a) The Issuing Lender irrevocably agrees
------------------
to grant and hereby grants to each Lender, and, to induce the Issuing Lender to
issue Letters of Credit hereunder, each Lender irrevocably agrees to accept and
purchase and hereby accepts and purchases from the Issuing Lender, on the terms
and conditions hereinafter stated, for such Lender's own account and risk an
undivided interest equal to such Lender's Specified Percentage in the Issuing
Lender's obligations and rights under each Letter of Credit issued by the
Issuing Lender and the amount of each draft paid by the Issuing Lender
thereunder. Each Lender unconditionally and irrevocably agrees with the Issuing
Lender that, if a draft is paid under any Letter of Credit issued by the Issuing
Lender for which the Issuing Lender is not reimbursed in full by the Borrower in
accordance with Section 3.5(a), such Lender shall pay to the Issuing Lender upon
--------------
demand at the Issuing Lender's address for notices specified herein an amount
equal to such Lender's Specified Percentage of the amount of such draft, or any
part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any Lender to the Issuing
Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion of any
--------------
payment made by the Issuing Lender under any Letter of Credit is paid to the
Issuing Lender within three Business Days after the date such payment is due,
such Lender shall pay to the Issuing Lender on demand an amount equal to the
product of (i) such amount, times (ii) the daily average Federal Funds Effective
-----
Rate during the period from and including the date such payment is required to
the date on which such payment is immediately available to the Issuing Lender,
times (iii) a fraction the numerator of which is the number of days that elapse
-----
during such period and the denominator of which is 360. If any such amount
required to be paid by any Lender pursuant to Section 3.4(a) is not in fact made
--------------
available to the Issuing Lender by such Lender within three Business Days after
the date such payment is due, the Issuing Lender shall be entitled to recover
from such Lender, on demand, such amount with interest thereon calculated from
such due date at a rate per annum equal to the ABR plus the Applicable Margin.
----
A certificate of the Issuing Lender submitted to any Lender with respect to any
amounts owing under this Section shall be conclusive in the absence of manifest
error.
24
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any Lender its pro rata share
--- ----
of such payment in accordance with Section 3.4(a), the Issuing Lender receives
--------------
any payment related to such Letter of Credit (whether directly from the Borrower
or otherwise, including proceeds of Collateral applied thereto by the Issuing
Lender), or any payment of interest on account thereof, the Issuing Lender will,
if such payment is received prior to 1:00 p.m., New York City time, on a
Business Day, distribute to such Lender its pro rata share thereof on the same
--- ----
Business Day or if received later than 1:00 p.m. on the next succeeding Business
Day; provided, however, that in the event that any such payment received by the
-------- -------
Issuing Lender shall be required to be returned by the Issuing Lender, such
Lender shall return to the Issuing Lender the portion thereof previously
distributed by the Issuing Lender to it.
(d) Notwithstanding anything to the contrary in this Agreement, each
Lender's obligation to make the Loans referred to in Section 3.5(b) and to
--------------
purchase and fund participating interests pursuant to Section 3.4(a) shall be
--------------
absolute and unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any setoff, counterclaim, recoupment, defense
or other right which such Lender or the Borrower may have against the Issuing
Lender, the Borrower or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of a Default or an Event of Default or the failure to
satisfy any of the other conditions specified in Section 6; (iii) any adverse
---------
change in the condition (financial or otherwise) of any Loan Party; (iv) any
breach of this Agreement or any other Loan Document by any Loan Party or any
Lender; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
3.5 Reimbursement Obligation of the Borrower. (a) The Borrower
----------------------------------------
agrees to reimburse the Issuing Lender (it being understood that such
reimbursement shall be effected by means of a borrowing of Loans unless the
Managing Agents shall determine in their sole discretion that such Loans may not
be made for such purpose as a result of a Default or Event of Default pursuant
to Section 9(f)), upon receipt of notice from the Issuing Lender of the date and
------------
amount of a draft presented under any Letter of Credit and paid by the Issuing
Lender, for the amount of (i) such draft so paid and (ii) any taxes, fees,
charges or other costs or expenses incurred by the Issuing Lender in connection
with such payment. Each such payment shall be made to the Issuing Lender, at
its address for notices specified herein in Dollars and in immediately available
funds, on the date on which the Borrower receives such notice, if received prior
to 1:00 P.M., New York City time, on a Business Day and otherwise on the next
succeeding Business Day.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this Section 3.5, (i) from the date the draft
-----------
presented under the affected Letter of Credit is paid to the date on which the
Borrower is required to pay such amounts pursuant to paragraph (a) above at a
rate per annum equal to the ABR plus the Applicable Margin and (ii) thereafter
----
until payment in full at the rate which would be payable on any Loans which were
then overdue. Except as otherwise specified in Section 3.5(a), each drawing
--------------
under any Letter of Credit shall constitute a request by the Borrower to the
Administrative Agent for a borrowing of Loans that are ABR Loans pursuant to
Section 2.3 in the amount of such drawing. The Borrowing Date with
-----------
25
respect to such borrowing shall be the date of payment of such drawing and the
proceeds of such Loans shall be applied by the Administrative Agent to reimburse
the Issuing Lender for the amounts paid under such Letter of Credit.
3.6 Obligations Absolute. Subject to the penultimate sentence of
--------------------
this Section 3.6, the Borrower's obligations under this Section 3 shall be
----------- ---------
absolute and unconditional under any and all circumstances and irrespective of
any set-off, counterclaim or defense to payment which the Borrower may have or
have had against the Issuing Lender, any Lender or any beneficiary of a Letter
of Credit. The Borrower also agrees with the Issuing Lender that the Issuing
Lender and the Lenders shall not be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5(a) shall not be affected by, among
--------------
other things, (i) the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or (ii) any dispute between or among the Borrower
and any beneficiary of any Letter of Credit or any other party to which such
Letter of Credit may be transferred or (iii) any claims whatsoever of the
Borrower against any beneficiary of such Letter of Credit or any such
transferee. The Issuing Lender and the Lenders shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions caused by such Person's gross negligence
or willful misconduct. The Borrower agrees that any action taken or omitted by
the Issuing Lender under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of either the Issuing Lender or
any Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
-------------------------
payment under any Letter of Credit, the Issuing Lender shall promptly notify the
Borrower and the Lenders of the date and amount thereof. Subject to Section 3.6,
-----------
the responsibility of the Issuing Lender to the Borrower in connection with any
draft presented for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment appear on their face to be
in conformity with such Letter of Credit.
3.8 Application. To the extent that any provision of any Application
-----------
related to any Letter of Credit is inconsistent with the provisions of this
Agreement, the provisions of this Agreement shall apply.
26
SECTION 4. GENERAL PROVISIONS APPLICABLE TO
LOANS AND LETTERS OF CREDIT
4.1 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
--------------------------------
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin in effect for such day.
----
(b) Each ABR Loan shall bear interest for each day that it is
outstanding at a rate per annum equal to the ABR for such day plus the
----
Applicable Margin in effect for such day.
(c) (i) After the occurrence and during the continuance of an Event
of Default, all Loans and Reimbursement Obligations shall bear interest at a
rate per annum which is equal to (x) in the case of the Loans, the rate that
would otherwise be applicable thereto pursuant to the foregoing provisions of
this Section 4.1 plus 2% or (y) in the case of Reimbursement Obligations, at a
----------- ----
rate per annum equal to the ABR plus the Applicable Margin plus 2% and (ii) if
---- ----
all or a portion of any interest payable on any Loan or Reimbursement Obligation
or any commitment fee or other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to ABR plus the Applicable
----
Margin plus 2%, in each case, with respect to clauses (i) and (ii) above, from
----
the date of such non-payment until such amount is paid in full (as well after as
before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this Section
--------
shall be payable from time to time on demand.
4.2 Optional and Mandatory Commitment Reductions and Prepayments.
------------------------------------------------------------
(a) The Borrower may at any time and from time to time prepay the Loans, in
whole or in part, without premium or penalty (it being understood that amounts
payable pursuant to Section 4.11 do not constitute premium or penalty), upon at
------------
least three Business Days' irrevocable notice to the Administrative Agent (in
the case of Eurodollar Loans) or at least one Business Day's irrevocable notice
to the Administrative Agent (in the case of ABR Loans), specifying the date and
amount of prepayment and whether the prepayment is of Eurodollar Loans, ABR
Loans or a combination thereof, and, in each case if a combination thereof, the
principal amount allocable to each. Upon the receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with interest accrued to the date of such
prepayment and (if a Eurodollar Loan is prepaid other than at the end of the
Interest Period applicable thereto) any amounts payable pursuant to
Section 4.11. Partial prepayments of Loans shall be in an aggregate principal
------------
amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof.
(b) The Borrower shall have the right, upon not less than three
Business Days' notice to the Administrative Agent (which will promptly notify
the Lenders thereof), to terminate the Total Commitment or, from time to time,
to reduce the amount of the Total Commitment;
27
provided that no such termination or reduction of the Total Commitment shall be
--------
permitted if, after giving effect thereto and to any prepayments of the Loans
made on the effective date thereof, the sum of the Aggregate Outstanding
Extensions of Credit of all the Lenders then in effect would exceed the
aggregate Total Commitment as so reduced. Any such reduction shall be in a
minimum amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof
and shall reduce permanently the Total Commitment then in effect.
(c) On the last Business Day of each March, June, September and
December, commencing March 31, 2000, through the Termination Date, the Total
Commitment shall automatically and permanently be reduced by the percentage (the
"Quarterly Percentage Reduction") of the original Total Commitment, as set forth
------------------------------
below. Notwithstanding anything contained in this Agreement to the contrary, on
the Termination Date the Total Commitment shall automatically reduce to zero.
Quarterly Percentage Total Percentage Reduction
Calendar Year Reduction for the Calendar Year
------------- --------- ---------------------
2000 1.875% 7.50%
2001 3.750% 15.00%
2002 4.375% 17.50%
2003 5.000% 20.00%
2004 5.000% 20.00%
2005 5.000% 20.00%
(d) If at any time the sum of the Aggregate Outstanding Extensions
of Credit of all the Lenders exceeds the Total Available Commitment then in
effect, the Borrower shall, without notice or demand, immediately repay the
Loans in an aggregate principal amount equal to such excess, together with
interest accrued to the date of such payment or repayment and any amounts
payable under Section 4.11. To the extent that, after giving effect to any
------------
prepayment of the Loans required by the preceding sentence, the sum of the
Aggregate Outstanding Extensions of Credit of all the Lenders still exceeds the
Total Available Commitment then in effect, the Borrower shall, without notice or
demand, immediately cash collateralize the then outstanding L/C Obligations in
an amount equal to such excess upon terms reasonably satisfactory to the
Administrative Agent.
(e) In the case of any reduction of the Total Commitment the
Borrower shall, if applicable, comply with the requirements of Section 4.2(d).
--------------
Each repayment of the Loans under this Section 4.2 shall be accompanied by
-----------
accrued interest to the date of such repayment on the amount repaid. Any amounts
deposited in any cash collateral account established pursuant to this Section
-------
28
4.2 shall be invested in Cash Equivalents having a one-day maturity or such
---
other Cash Equivalents as shall be acceptable to the Administrative Agent and
the Borrower.
4.3 Commitment Fees, etc. (a) The Borrower agrees to pay to the
--------------------
Administrative Agent for the account of each Lender, a commitment fee, on the
average daily amount of the Total Available Commitment computed at a rate per
annum based on the Leverage Ratio in effect for the fiscal quarter preceding the
payment date, determined as follows:
Leverage Ratio Commitment Fee
-------------- --------------
(greater than) 5.00:1.00 0.375%
(less than or equal to) 5.00:1.00 0.250%
For purposes of calculating the commitment fee due hereunder, the Leverage Ratio
shall be determined as at the end of each of the first three quarterly periods
of each fiscal year of the Borrower and as at the end of each fiscal year of the
Borrower, based on the relevant financial statements delivered pursuant to
Section 7.1(a) or (b) and the Compliance Certificate delivered pursuant to
-------------- ---
Section 7.2(b); changes in the Leverage Ratio shall become effective on the date
--------------
which is the earlier of (i) two Business Days after the date the Administrative
Agent receives such financial statements and the corresponding Compliance
Certificate and (ii) the 60th day after the end of each of the first three
quarterly periods of each fiscal year or the 120th day after the end of each
fiscal year, as the case may be, and shall remain in effect until the next
change to be effected pursuant to this Section 4.3; provided, that (a) until the
----------- --------
first such financial statements and Compliance Certificate are delivered after
the date hereof, the Applicable Margin shall be determined by reference to the
Leverage Ratio set forth in the Closing Certificate delivered to the
Administrative Agent pursuant to Section 6.1(b), and (b) if any financial
--------------
statements or the Compliance Certificate referred to above are not delivered
within the time periods specified above, then, for the period from and including
the date on which such financial statements and Compliance Certificate are
required to be delivered until the date on which such financial statements and
Compliance Certificate are delivered, then the Leverage Ratio as at the end of
the fiscal period that would have been covered thereby shall be deemed to be
greater than 5.00 to 1.00.
Such commitment fee shall be (i) payable quarterly in arrears on the last
Business Day of each March, June, September and December and on the date on
which all of the Commitments shall have terminated and (ii) fully earned and
non-refundable upon payment thereof.
(b) The Borrower shall pay (without duplication of any other fee
payable under this Section 4.3) to the Managing Agents, for their respective
-----------
accounts, the fees in the amounts and on the dates agreed to in the Managing
Agents Fee Letter.
29
(c) The Borrower shall pay (without duplication of any other fee
payable under this Section 4.3) to the Administrative Agent, the fees in the
-----------
amounts and on the dates agreed to in the Scotiabank Fee Letter.
4.4 Computation of Interest and Fees. (a) Interest based on the
--------------------------------
Eurodollar Rate and fees shall be calculated on the basis of a 360-day year for
the actual days elapsed; and interest based on the ABR shall be calculated on
the basis of a 365- (or 366-, as the case may be) day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable notify the
Borrower and the Lenders of each determination of a Eurodollar Rate. Any change
in the interest rate on a Loan resulting from a change in the ABR or the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing in reasonable detail the calculations used by the
Administrative Agent in determining any interest rate pursuant to
Section 4.1(a).
--------------
4.5 Conversion and Continuation Options. (a) The Borrower may
-----------------------------------
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent an irrevocable notice substantially in the form of
Exhibit H-2 (a "Notice of Conversion/Continuation"), at least one Business Day
----------- ---------------------------------
prior to such election, provided that any such conversion of Eurodollar Loans
--------
may only be made on the last day of an Interest Period with respect thereto. The
Borrower may elect from time to time to convert ABR Loans to Eurodollar Loans or
to continue Eurodollar Loans as Eurodollar Loans by giving the Administrative
Agent a Notice of Conversion/Continuation at least three Business Days' prior to
such election. Any such Notice of Conversion/Continuation to Eurodollar Loans
shall specify the length of the initial Interest Period or Interest Periods
therefor. Upon receipt of any such Notice of Conversion/Continuation the
Administrative Agent shall promptly notify each Lender thereof. All or any part
of outstanding Eurodollar Loans and ABR Loans may be converted as provided
herein, provided that (i) no Loan may be converted into a Eurodollar Loan when
--------
any Event of Default has occurred and is continuing and (ii) no Loan may be
converted into a Eurodollar Loan if the Interest Period selected therefor would
expire after the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, of the length of
the next Interest Period to be applicable to such Loans, determined in
accordance with the applicable provisions of the term "Interest Period" set
forth in Section 1.1, provided that no Eurodollar Loan may be continued as such
----------- --------
(i) when any Event of Default has occurred and is continuing or (ii) after the
date that is one month prior to the Termination Date, and provided, further,
-------- -------
that if the Borrower shall fail to give any required notice as described
30
above in this paragraph or if such continuation is not permitted pursuant to the
preceding proviso such Loans shall be automatically converted to ABR Loans on
the last day of such then expiring Interest Period. Upon receipt of any such
notice of continuation pursuant to this Section 4.5(b), the Administrative Agent
--------------
shall promptly notify each Lender thereof.
4.6 Minimum Amounts of Tranches. All borrowings, conversions,
---------------------------
continuations and payments of Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, after giving effect thereto, the aggregate principal amount
of the Eurodollar Loans comprising each Tranche shall be equal to $5,000,000 or
a whole multiple of $1,000,000 in excess thereof. In no event shall there be
more than six Tranches outstanding at any time.
4.7 Inability to Determine Interest Rate. If prior to the first
------------------------------------
day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period; or
(b) the Administrative Agent shall have received notice from the
Majority Lenders that the Eurodollar Rate determined or to be determined
for such Interest Period will not adequately and fairly reflect the cost to
such Lenders (as conclusively certified by such Lenders) of making or
maintaining their affected Loans during such Interest Period,
the Administrative Agent shall give facsimile notice thereof to the Borrower and
the Lenders as soon as practicable thereafter. If such notice is given (x) any
Eurodollar Loans requested to be made on the first day of such Interest Period
shall be made as ABR Loans, (y) any Loans that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
ABR Loans and (z) any outstanding Eurodollar Loans shall be converted, on the
first day of such Interest Period, to ABR Loans. Until such notice has been
withdrawn by the Administrative Agent or the Majority Lenders, as the case may
be, no further Eurodollar Loans shall be made or continued as such, nor shall
the Borrower have the right to convert Loans to Eurodollar Loans.
4.8 Pro Rata Treatment and Payments. (a) Each borrowing of Loans
-------------------------------
hereunder shall be made, each payment by the Borrower on account of any
commitment fee hereunder shall be allocated by the Administrative Agent, and any
reduction of the Total Commitment shall be allocated by the Administrative
Agent, pro rata according to the respective Specified Percentages of the
--- ----
Lenders. Each payment (including each prepayment) by the Borrower on account of
principal of and interest on, or commitment fees related to, the Loans or
Reimbursement Obligations shall be allocated by the Administrative Agent to the
Lenders pro rata according to the respective Specified Percentages of such Loans
--- ----
and Reimbursement Obligations then held by the Lenders. All payments (including
prepayments) to be made by the Borrower hereunder and under any Notes, whether
on
31
account of principal, interest, fees, Reimbursement Obligations or otherwise,
shall be made without set-off or counterclaim and shall be made prior to 2:00
P.M., New York City time, on the due date thereof to the Administrative Agent,
for the account of the Lenders, at the Administrative Agent's office specified
in Section 12.2, in Dollars and in immediately available funds. Payments
------------
received by the Administrative Agent after such time shall be deemed to have
been received on the next Business Day. If any payment hereunder becomes due
and payable on a day other than a Business Day, the maturity of such payment
shall be extended to the next succeeding Business Day, (and, with respect to
payments of principal, interest thereon shall be payable at the then applicable
rate during such extension) unless, with respect to payments of Eurodollar Loans
only, the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal Funds Effective
Rate for the period until such Lender makes such amount immediately available to
the Administrative Agent. A certificate of the Administrative Agent submitted
to any Lender with respect to any amounts owing under this Section 4.8 shall be
-----------
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the Administrative Agent
shall notify the Borrower of the failure of such Lender to make such amount
available to the Administrative Agent and the Administrative Agent shall also be
entitled to recover, on demand from the Borrower, such amount with interest
thereon at a rate per annum equal to the ABR plus the Applicable Margin in
----
effect on the Borrowing Date.
4.9 Requirements of Law. (a) If the adoption of or any change in
-------------------
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note or any Eurodollar Loan made by it,
or change the basis of taxation of payments to such Lender in respect
thereof (except for Non-Excluded Taxes covered by Section 4.10, net income
------------
taxes and franchise taxes (imposed in lieu of net income taxes));
32
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances, loans
or other extensions of credit by, or any other acquisition of funds by, any
office of such Lender which is not otherwise included in the determination
of the Eurodollar Rate; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or to reduce any amount receivable
hereunder in respect thereof, then, in any such case, the Borrower shall
promptly pay such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduced amount receivable.
(b) If any Lender shall have determined in good faith that the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount reasonably deemed by
such Lender to be material, then from time to time, the Borrower shall promptly
pay to such Lender such additional amount or amounts as will compensate such
Lender for such reduction.
(c) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section 4.9, it shall promptly deliver a certificate to the
-----------
Borrower (with a copy to the Administrative Agent), setting forth in reasonable
detail an explanation of the basis for requesting such compensation. Such
certificate as to any additional amounts payable pursuant to this Section 4.9
-----------
submitted by such Lender to the Borrower (with a copy to the Administrative
Agent) shall be conclusive in the absence of manifest error. The Borrower shall
pay each Lender the amount shown as due on any such certificate delivered by it
within 15 days after the Borrower's receipt thereof. The agreements in this
Section 4.9 shall survive the termination of this Agreement and the payment of
-----------
the Loans and all other amounts payable hereunder.
4.10 Taxes. (a) All payments made by the Borrower under this
-----
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding (i) net income taxes; (ii) franchise and doing
business taxes imposed on the Administrative Agent or any Lender as a result of
a present or former connection between the Administrative Agent or such Lender
and the jurisdiction of the Governmental
33
Authority imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
Note); (iii) any Taxes, levies, imposts, deductions, charges or withholdings
that are in effect and that would apply to a payment to such Lender as of the
Effective Date; and (iv) if any Person acquires any interest in this Agreement
or any Note pursuant to the provisions hereof, including without limitation a
participation (whether or not by operation of law), or a foreign Lender changes
the office in which the Loan is made, accounted for or booked (any such Person
or such foreign Lender in that event being referred to as a "Tax Transferee"),
--------------
any Taxes, levies, imposts, deductions, charges or withholdings to the extent
that they are in effect and would apply to a payment to such Tax Transferee as
of the date of the acquisition of such interest or change in office, as the case
may be. If any such non-excluded taxes, levies, imposts, duties, charges, fees
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
------------------
from any amounts payable to the Administrative Agent or any Lender hereunder or
under any Note, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the Administrative
Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
-------- -------
increase any such amounts payable to any Non-U.S. Lender if such Lender fails to
comply with the requirements of paragraph (b) of this Section. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Administrative Agent for its own
account or for the account of such Lender, as the case may be, a certified copy
of an original official receipt received by the Borrower showing payment
thereof. If, when the Borrower is required by this Section 4.10(a) to pay any
---------------
Non-Excluded Taxes, the Borrower fails to pay such Non-Excluded Taxes when due
to the appropriate taxing authority or fails to remit to the Administrative
Agent the required receipts or other required documentary evidence, the Borrower
shall indemnify the Administrative Agent and the Lenders for any incremental
taxes, interest or penalties that may become payable by the Administrative Agent
or any Lender as a result of any such failure.
(b) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America, or any estate
or trust that is subject to federal income taxation regardless of the source of
its income (a "Non-U.S. Lender") shall deliver to the Borrower and the
---------------
Administrative Agent (or, in the case of a Participant, to the Lender from which
the related participation shall have been purchased) two copies of either U.S.
Internal Revenue Service Form 1001 or Form 4224, or, in the case of a Non-U.S.
Lender claiming exemption from U.S. federal withholding tax under Section 871(h)
or 881(c) of the Code with respect to payments of "portfolio interest", a Form
W-8, or any subsequent versions thereof or successors thereto (and, if such Non-
U.S. Lender delivers a Form W-8, an annual certificate representing that such
Non-U.S. Lender (i) is not a "bank" for purposes of Section 881(c) of the Code
(and is not subject to regulatory or other legal requirements as a bank in any
jurisdiction, and has not been treated as a bank in any filing with or
submission made to any Governmental Authority or rating agency), (ii) is not a
10-percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of the Borrower and (iii) is
34
not a controlled foreign corporation related to the Borrower (within the meaning
of Section 864(d)(4) of the Code)), properly completed and duly executed by such
Non-U.S. Lender claiming complete exemption from, U.S. federal withholding tax
on all payments by the Borrower under this Agreement and the other Loan
Documents, along with such other additional forms as the Borrower, the
Administrative Agent (or, in the case of a Participant, the Lender from which
the related participation shall have been purchased) may reasonably request to
establish the availability of such exemption. Such forms shall be delivered by
each Non-U.S. Lender on or before the date it becomes a party to this Agreement
(or, in the case of any Participant, on or before the date such Participant
purchases the related participation). In addition, each Non-U.S. Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall
promptly notify the Borrower at any time it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of Section 4.10, a Non-U.S.
------------
Lender shall not be required to deliver any form pursuant to this Section
-------
4.10(b) that such Non-U.S. Lender is not legally able to deliver, it being
-------
understood and agreed that, in the event that a Non-U.S. Lender fails to deliver
any forms otherwise required to be delivered pursuant to this Section 4.10(b),
---------------
or notifies the Borrower that any previously delivered certificate is no longer
in force, the Borrower shall withhold such amounts as the Borrower shall
reasonably determine are required by law and shall not be required to make any
additional payment with respect thereto to the Non-U.S. Lender, unless such
failure to deliver or notify is a result of change in law subsequent to the date
hereof.
(c) If a Lender (or Transferee) or the Administrative Agent shall
become aware that it is entitled to receive a refund in respect of Non-Excluded
Taxes paid by the Borrower, or as to which it has been indemnified by the
Borrower, which refund in the good faith judgment of such Lender (or Transferee)
is allocable to such payment made pursuant to this Section 4.10, it shall
------------
promptly notify the Borrower of the availability of such refund and shall,
within 30 days after receipt of a request by the Borrower, apply for such
refund. If any Lender (or Transferee) or the Administrative Agent receives a
refund in respect of any Non-Excluded Taxes paid by the Borrower, or as to which
it has been indemnified by the Borrower, which refund in the good faith judgment
of such Lender (or Transferee) is allocable to such payment made pursuant to
this Section 4.10, it shall promptly notify the Borrower of such refund and
------------
shall, within 15 days after receipt, repay such refund to the Borrower. The
agreements in this Section 4.10 shall survive the termination of this Agreement
------------
and the payment of the Loans and all other amounts payable hereunder.
4.11 Indemnity. The Borrower agrees to indemnify each Lender and to
---------
hold each Lender harmless from any loss or expense which such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of Eurodollar
Loans after the Borrower has given a notice thereof in accordance with the
provisions of this Agreement or (c) the making of a prepayment of Eurodollar
Loans on a day which is not the last day of an Interest Period with respect
thereto. Such indemnification may include an amount equal to the
35
excess, if any, of (i) the amount of interest which would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to, but not including, the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein over (ii) the amount of interest
(as reasonably determined by such Lender) which would have accrued to such Bank
on such amount by placing such amount on deposit for a comparable period with
leading banks in the interbank eurodollar market. This covenant shall survive
the termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
4.12 Change of Lending Office. Each Lender agrees that if it makes
------------------------
any demand for payment under Section 4.9 or 4.10(a), it will use reasonable
----------- -------
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce or obviate the need for the
Borrower to make payments under Section 4.9 or 4.10(a) or would eliminate or
----------- -------
reduce the effect of any adoption or change described in Section 4.9.
-----------
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans and to issue Letters of Credit, the Borrower
hereby represents and warrants to the Administrative Agent and each Lender that:
5.1 Financial Condition. (a) The consolidated balance sheet of JIC
-------------------
and its consolidated Subsidiaries at June 30, 1996 and the related consolidated
statements of income and of cash flows for the fiscal year ended on such date,
reported on by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P., copies of which have heretofore been
furnished to each Lender, present fairly in all material respects the
consolidated financial condition of JIC and its consolidated Subsidiaries as at
such date, and the consolidated results of their operations and their
consolidated cash flows for the fiscal year then ended. All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants and as disclosed therein).
Neither JIC, the Borrower nor any of their consolidated Subsidiaries had, as of
June 30, 1996, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or foreign currency
swap or exchange transaction, which is not reflected in the foregoing statements
or in the schedules or notes thereto. Except as set forth on Schedule 5.1,
------------
during the period from June 30, 1996 to and including the date hereof there has
been no sale, transfer or other disposition by JIC or any of its consolidated
Subsidiaries of any material part of its business, assets or property and no
purchase or other acquisition of any business, assets or property (including any
Capital Stock of any other Person) material in relation to the
36
consolidated financial condition of JIC and its consolidated Subsidiaries at
June 30, 1996, other than the Stock Purchase.
(b) The financial statements of the Borrower and the Restricted
Subsidiaries and other information most recently delivered under Sections 7.1(a)
---------------
and (b) were prepared in accordance with GAAP and present fairly the
---
consolidated financial condition, results of operations, and cash flows of the
Borrower and the Restricted Subsidiaries as of, and for the portion of the
fiscal year ending on the date or dates thereof (subject in the case of interim
statements only to normal year-end audit adjustments). There were no material
liabilities, direct or indirect, fixed or contingent, of the Borrower or the
Restricted Subsidiaries as of the date or dates of such financial statements
which are not reflected therein or in the notes thereto. Except for
transactions directly related to, or specifically contemplated by, the Loan
Documents, there have been no changes in the consolidated financial condition of
the Borrower or the Restricted Subsidiaries from that shown in such financial
statements after such date which could reasonably be expected to have a Material
Adverse Effect, nor has the Borrower or any Restricted Subsidiary incurred any
liability (including, without limitation, any liability under any Environmental
Law), direct or indirect, fixed or contingent, after such date which could
reasonably be expected to have a Material Adverse Effect.
5.2 No Change. From June 30, 1996, through and including the
---------
Effective Date there has been no development or event which has had or could
reasonably be expected to have a material adverse effect on the financial
condition and business operations of the Acquired Systems. Since the Effective
Date there has been no development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
5.3 Existence; Compliance with Law. The Borrower and each of its
------------------------------
Subsidiaries (a) is duly organized, validly existing and, where applicable, in
good standing under the laws of the jurisdiction of its organization, (b) has
the corporate or partnership power and authority, and the legal right, to own
and operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly qualified
and, where applicable, in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification, except where the failure to be so
qualified could not reasonably be expected to have a Material Adverse Effect,
and (d) is in compliance with all Requirements of Law except to the extent that
the failure to comply therewith could not reasonably be expected to have a
Material Adverse Effect.
5.4 Power; Authorization; Enforceable Obligations. Each Loan Party
---------------------------------------------
has the power and authority, and the legal right, to make, deliver and perform
each of the Loan Documents to which it is a party and, in the case of the
Borrower, to borrow hereunder, and has taken all necessary corporate or
partnership action to authorize the execution, delivery and performance of each
of the Loan Documents to which it is a party and, in the case of the Borrower,
to authorize the borrowings on the terms and conditions of this Agreement.
Except as set forth on Schedule 5.4, no consent or authorization of, filing
------------
with, notice to or other act by or in respect of, any Governmental Authority or
any other Person (including any partner or shareholder of any Loan Party or any
37
Affiliate of any Loan Party) is required to be obtained or made by any Loan
Party or any other Person, in connection with the Stock Purchase other than
those that have been obtained or made and are in full force and effect;
provided, that with respect to third party approvals necessary for the Stock
--------
Purchase, Schedule 5.4 lists only the material third party approvals required.
------------
No consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person (including any
partner or shareholder of JIC, any Loan Party or any Affiliate of JIC or any
Loan Party) is required to be obtained or made by JIC or any Loan Party or any
Subsidiary of any Loan Party in connection with the borrowings hereunder or with
the execution, delivery, performance, validity or enforceability of the Loan
Documents other than those that have been obtained or made and are in full force
and effect. Each Loan Document to which JIC and each Loan Party is a party has
been duly executed and delivered on behalf of JIC and each such Loan Party.
Each Loan Document constitutes a legal, valid and binding obligation of JIC, to
the extent JIC is a party thereto, and each Loan Party party thereto enforceable
against JIC and each such Loan Party in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent transfer or conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether considered in
a proceeding in equity or at law) and an implied covenant of good faith and fair
dealing.
5.5 No Legal Bar. The Stock Purchase, the execution, delivery and
------------
performance of the Loan Documents, the borrowings hereunder and the use of the
proceeds thereof will not (a) violate, result in a default under or conflict
with any Requirement of Law or any material Contractual Obligation, in any
material respect, of JIC, JCH, the Borrower or of any of the Restricted
Subsidiaries or (b) violate any provision of the charter or bylaws of JIC, JCH,
the Borrower or the Restricted Subsidiaries and will not result in a default
under, or result in or require the creation or imposition of any Lien on any of
their respective properties or revenues pursuant to any such Requirement of Law
or Contractual Obligation (other than pursuant to the Security Documents).
5.6 No Material Litigation. Except as set forth on Schedule 5.6, no
---------------------- ------------
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or any of the Restricted Subsidiaries or
against any of its or their respective properties or revenues (a) with respect
to any of the Loan Documents, the Stock Purchase or any of the transactions
contemplated hereby or thereby, or (b) which could reasonably be expected to
have a Material Adverse Effect. No attachment, prejudgment or judgment Lien
encumbers the Acquired Systems or any asset of the Borrower or any of the
Restricted Subsidiaries other than in respect of (i) claims as to which payment
in full above any applicable customary deductible is covered by insurance or a
bond or (ii) other claims aggregating not more than $10,000,000. No litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of the Borrower, threatened by or
against (i) JCH with respect to the Stock Purchase or (ii) JIC, with respect to
the JIC Negative Pledge.
38
5.7 No Default. Neither JIC, the Borrower nor any of its Restricted
----------
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
5.8 Ownership of Property; Intellectual Property. (a) Each of the
--------------------------------------------
Borrower and the Restricted Subsidiaries has good record and indefeasible title
in fee simple to, or a valid leasehold interest in, all its real property, if
any, and good title to, or a valid leasehold interest in, all its other material
property, if any, and none of such property is subject to any Lien except as
permitted by Section 8.3. Upon the consummation of the Stock Purchase, the
-----------
Borrower or the Restricted Subsidiaries, as applicable, will have good record
and indefeasible title in fee simple to, or a valid leasehold interest in all of
the real property, if any, and all other material property and Franchises
associated with the Acquired Systems.
(b) The Borrower and the Restricted Subsidiaries have the right to
use all trademarks, tradenames, copyrights, technology, know-how or processes
("Intellectual Property") that are necessary for the conduct of the business of
-----------------------
the Borrower or any of the Restricted Subsidiaries.
5.9 No Burdensome Restrictions. No Requirement of Law or
--------------------------
Contractual Obligation of JIC, its Subsidiaries, the Borrower or any of its
Restricted Subsidiaries could reasonably be expected to have a Material Adverse
Effect.
5.10 Taxes. (a) (i) Each of the Borrower and its Subsidiaries has
-----
filed or caused to be filed all tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all taxes shown to be due and
payable by it on said returns and all other material taxes, fees or other
charges (collectively, the "Specified Taxes") imposed on it or any of its
---------------
property by any Governmental Authority due and payable by it and (ii) to the
knowledge of the Borrower, no material claim is being asserted with respect to
any Specified Tax, other than, in each case with respect to this clause (a),
Specified Taxes the amount or validity of which are currently being contested in
good faith by appropriate proceedings diligently pursued and with respect to
which reserves in conformity with GAAP have been provided on the books of the
Borrower or the relevant Subsidiary, as the case may be, and (b) no tax Lien has
been filed with respect to any Specified Tax.
5.11 Federal Regulations. No part of the proceeds of any Loans will
-------------------
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation G or Regulation U of the
Board as now and from time to time hereafter in effect. If requested by any
Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form G-3 or FR Form U-1 referred to in
said Regulation G or Regulation U, as the case may be.
39
5.12 ERISA. Except as, in the aggregate, could not reasonably be
-----
expected to result in a Material Adverse Effect: (a) neither a Reportable Event
nor an "accumulated funding deficiency" (within the meaning of Section 412 of
the Code or Section 302 of ERISA) has occurred during the five-year period prior
to the date on which this representation is made or deemed made with respect to
any Plan, and each Plan has complied in all material respects with the
applicable provisions of ERISA and the Code; (b) no termination of a Single
Employer Plan has occurred, and no Lien in favor of the PBGC or a Plan has
arisen, during such five-year period; (c) the present value of all accrued
benefits under each Single Employer Plan (based on those assumptions used to
fund such Plans) did not, as of the last annual valuation date prior to the date
on which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits; (d) neither the Borrower
nor any Commonly Controlled Entity has had a complete or partial withdrawal from
any Multiemployer Plan, and neither the Borrower nor any Commonly Controlled
Entity would become subject to any liability under ERISA if the Borrower or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made; and (e) no such Multiemployer
Plan is in Reorganization or Insolvent.
5.13 Investment Company Act; Other Regulations. No Loan Party is an
-----------------------------------------
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Federal or State statute or regulation
(other than Regulation X of the Board) which limits its ability to incur
Indebtedness under this Agreement or the other Loan Documents.
5.14 Subsidiaries. Except for changes permitted by this Agreement
------------
pursuant to Sections 8.6, 8.8 or 8.9, Schedule 5.14 sets forth a true and
------------ --- --- -------------
complete list of each of the Borrower's Subsidiaries and accurately designates
as of the date hereof whether each such Subsidiary is a Restricted Subsidiary or
an Unrestricted Subsidiary. The Borrower has or will have delivered to the
Administrative Agent, an updated Schedule 5.14 within 30 days after any changes
-------------
thereto. The outstanding shares of Capital Stock of each Restricted Subsidiary
have been duly authorized and validly issued and are fully paid and non-
assessable, and all of the outstanding shares of each class of the Capital Stock
of each Restricted Subsidiary are owned, directly or indirectly, beneficially
and of record, by the Borrower, free and clear of all Liens.
5.15 Insurance. Each Loan Party maintains with financially sound,
---------
responsible, and reputable insurance companies or associations (or, as to
workers' compensation or similar insurance, with an insurance fund or by self-
insurance authorized by the jurisdictions in which it operates) insurance
covering its properties and businesses against such casualties and contingencies
and of such types and in such amounts (and with co-insurance and deductibles) as
is customary in the case of same or similar businesses.
40
5.16 Certain Cable Television Matters. Except as could not
--------------------------------
reasonably be expected to result in a Material Adverse Effect:
(a) the Borrower and the Restricted Subsidiaries possess all
Authorizations necessary to own, operate and construct the Cable Systems or
otherwise for the operations of their businesses and are not in violation
thereof. All such Authorizations are in full force and effect and no event
has occurred that permits, or after notice or lapse of time could permit,
the revocation, termination or material and adverse modification of any such
Authorization;
(b) neither the Borrower nor any of the Restricted Subsidiaries is
in violation of any duty or obligation required by the Communications Act of
1934, as amended, or any FCC rule or regulation applicable to the operation
of any portion of any of the Cable Systems;
(c) there is not pending or, to the best knowledge of the Borrower,
threatened, any action by the FCC to revoke, cancel, suspend or refuse to
renew any FCC License held by the Borrower or any of the Restricted
Subsidiaries. There is not pending or, to the best knowledge of the
Borrower, threatened, any action by the FCC to modify adversely, revoke,
cancel, suspend or refuse to renew any other Authorization; and
(d) there is not issued or outstanding or, to the best knowledge of
the Borrower, threatened, any notice of any hearing, violation or complaint
against the Borrower or any of the Restricted Subsidiaries with respect to
the operation of any portion of the Cable Systems and the Borrower has no
knowledge that any Person intends to contest renewal of any Authorization.
5.17 Environmental Matters. Except as could not reasonably be
---------------------
expected to result in a Material Adverse Effect:
(a) the facilities and properties owned by the Borrower or any of
its Subsidiaries (the "Owned Properties") do not contain, and, to the
----------------
knowledge of the Borrower to the extent not owned, leased or operated during
the past five years, have not contained during the past five years, any
Materials of Environmental Concern in amounts or concentrations which
constitute or constituted a violation of, or could reasonably be expected to
give rise to liability under, any Environmental Law;
(b) the facilities and properties leased or operated by the Borrower
or any of its Subsidiaries, but not owned by them (the "Leased and Operated
-------------------
Properties"), to the knowledge of the Borrower, do not contain and have not
----------
contained during the past five years, any Materials of Environmental Concern
in amounts or concentrations which constitute or constituted a violation of,
or could reasonably be expected to give rise to liability under, any
Environmental Law;
41
(c) the Owned Properties and all operations at the Owned Properties
are in compliance, and, to the knowledge of the Borrower to the extent not
owned, leased or operated during the past five years, have in the last five
years been in compliance, with all applicable Environmental Laws, and there
is no contamination at, under or about the Owned Properties or violation of
any Environmental Law with respect to the Owned Properties or the business
operated by the Borrower or any of its Subsidiaries (the "Business") which
--------
could interfere with the continued operation of the Owned Properties or
impair the fair saleable value thereof;
(d) to the knowledge of the Borrower, the Leased and Operated
Properties and all operations at the Leased and Operated Properties are in
compliance, and, in the last five years been in compliance, with all
applicable Environmental Laws, and to the knowledge of the Borrower there
is no contamination at, under or about the Leased and Operated Properties
or violation of any Environmental Law with respect to the Leased and
Operated Properties or the Business operated by the Borrower or any of its
Subsidiaries which could interfere with the continued operation of the
Leased and Operated Properties or impair the fair saleable value thereof;
(e) neither the Borrower nor any of its Subsidiaries has received
any notice of violation, alleged violation, non-compliance, liability or
potential liability regarding environmental matters or compliance with
Environmental Laws with regard to any of the Owned Properties or the Leased
and Operated Properties (together, the "Properties") or the Business, nor
----------
does the Borrower have any knowledge that any such notice will be received
or is being threatened;
(f) the Borrower has not transported or disposed of Materials of
Environmental Concern nor, to the Borrower's knowledge, have Materials of
Environmental Concern been transported or disposed of from the Properties
in violation of, or in a manner or to a location which could reasonably be
expected to give rise to liability to the Borrower or any Restricted
Subsidiary under, any Environmental Law, nor has the Borrower generated any
Materials of Environmental Concern nor, to the Borrower's knowledge, have
Materials of Environmental Concerns been generated, treated, stored or
disposed of at, on or under any of the Properties in violation of, or in a
manner that could reasonably be expected to give rise to liability to the
Borrower or any Restricted Subsidiary under, any applicable Environmental
Law;
(g) no judicial proceeding or governmental or administrative action
is pending or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary is or will be
named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any applicable Environmental Law with respect to the
Properties or the Business; and
42
(h) the Borrower has not released, nor, to the Borrower's knowledge,
has there been any release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of the Borrower or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could reasonably be expected to give rise to
liability under Environmental Laws.
5.18 Accuracy of Information. (a) All Information made available to
-----------------------
the Administrative Agent or any Lender by the Borrower pursuant to this
Agreement or any other Loan Document did not, as of the date such Information
was made available, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements contained
therein not materially misleading in light of the circumstances under which such
statements were made.
(b) All pro forma financial information and projections made
--- -----
available to the Administrative Agent or any Lender by the Borrower pursuant to
this Agreement or any other Loan Document have been prepared and furnished to
the Administrative Agent or such Lender in good faith and were based on
estimates and assumptions that were believed by the management of the Borrower
to be reasonable in light of the then current and foreseeable business
conditions of the Borrower and the Subsidiaries. The Administrative Agent and
the Lenders recognize that such pro forma financial information and projections
--- -----
and the estimates and assumptions on which they are based may or may not prove
to be correct.
5.19 Security Documents. The Security Documents are effective to
------------------
create in favor of the Administrative Agent, for the benefit of the Lenders, a
legal, valid and enforceable security interest in the Collateral described
therein and proceeds thereof and, after satisfaction of the conditions specified
in Section 6.1(j), the Security Documents shall constitute a fully perfected
--------------
first priority Lien on, and security interest in, all right, title and interest
of, the Borrower and the Restricted Subsidiaries in such Collateral and the
proceeds thereof (subject to Section 9-306 of the Uniform Commercial Code), as
security for the Obligations (and the Obligations under and as defined in the
Tranche B Agreement), in each case prior and superior in right to any other
Person.
5.20 Solvency. As of the date on which this representation and
--------
warranty is made or deemed made, each Loan Party is Solvent, both before and
after giving effect to the transactions contemplated hereby consummated on such
date and to the incurrence of all Indebtedness and other obligations incurred on
such date in connection herewith and therewith.
5.21 Indebtedness. No Loan Party is an obligor on any Indebtedness
------------
except as permitted under Section 8.2.
-----------
5.22 Labor Matters. There are no actual or overtly threatened
-------------
strikes, labor disputes, slow downs, walkouts, or other concerted interruptions
of operations by the employees of any Loan Party which could reasonably be
expected to have a Material Adverse Effect. Hours
43
worked by and payment made to employees of the Loan Parties have not been in
violation of the Fair Labor Standards Act or any other applicable law dealing
with such matters, other than any such violations, individually or collectively,
which could reasonably be expected to have a Material Adverse Effect. All
payments due from any Loan Party on account of employee health and welfare
insurance have been paid or accrued as a liability on its books, other than any
such nonpayments which could not, individually or collectively, reasonably be
expected to have a Material Adverse Effect.
5.23 Prior Names. Neither the Borrower nor any Restricted Subsidiary
-----------
has used or transacted business under any other corporate or trade name in the
five-year period preceding the Effective Date.
5.24 Franchises. Schedule 5.24, as supplemented to reflect any
---------- -------------
renewals and extensions of Franchise Agreements and to reflect any acquisition,
lists all Franchise Agreements of the Borrower and the Restricted Subsidiaries
relating to the Cable Systems owned by the Borrower and the Restricted
Subsidiaries as of the Initial Funding Date and, with respect to the Cable
Systems acquired after such date, as of the date of acquisition, at any time
thereafter, including but not limited to the Acquired Systems. As of the
Initial Funding Date, JCH and all of the Loan Parties shall have taken all
action required by applicable Governmental Authorities to lawfully transfer or
grant all of the Franchise Agreements relating to the Acquired Systems to the
Loan Parties and, with respect to the Cable Systems acquired after the Initial
Funding Date, all of the Loan Parties have taken all action required by
applicable Governmental Authorities to lawfully transfer or grant such after
acquired Franchise Agreement to the Loan Parties. To the knowledge of the
Borrower, as of the Initial Funding Date and at all times thereafter, all
Franchise Agreements of the Loan Parties were lawfully transferred or granted to
the Borrower or a Restricted Subsidiary pursuant to the rules and regulations of
applicable Governmental Authorities. The Franchise Agreements authorize the
Borrower or a Restricted Subsidiary as indicated on Schedule 5.24 (as
-------------
supplemented to reflect any renewals and extensions of Franchise Agreements and
to reflect any acquisition) to operate one or more Cable Systems until the
respective expiration dates listed on Schedule 5.24 or, will authorize the
-------------
Borrower or a Restricted Subsidiary as indicated on Schedule 5.24 (as
-------------
supplemented to reflect any renewals and extensions of Franchise Agreements and
to reflect any acquisition), and no other further approval, filing or other
action of any Governmental Authority is or will be necessary or advisable as of
the Initial Funding Date or, with respect to the Cable Systems acquired after
such date, as of the date of acquisition, in order to permit the Borrower's or
such Restricted Subsidiaries' operation of the Cable Systems in accordance with
the terms thereof. Schedule 5.24 (as supplemented from time to time) correctly
-------------
identifies the franchisee and accurately describes the franchise area, the
exclusive or nonexclusive nature of each such Franchise Agreement and all
limitations contained in the Franchise Agreement or related statutes on the
assignment, sale or encumbering of the Franchise Agreement or the related Cable
System's assets. The Borrower or the Restricted Subsidiary that is the
franchisee is in compliance in all material respects with all material terms and
conditions of all Franchise Agreements relating to the Cable Systems owned by
it, and on and after the date of acquisition of any Cable System will be in
compliance in all material respects with all material terms and conditions of
all Franchise Agreements relating to such Cable
44
Systems so acquired and no event has occurred or exists which permits, or, after
the giving of notice, or the lapse of time or both would permit, the revocation
or termination of any Franchise Agreement.
5.25 Chief Executive Office; Chief Place of Business. Schedule 5.25
----------------------------------------------- -------------
(as supplemented from time to time) accurately sets forth the location of the
chief executive office and chief place of business (as such terms are used in
the Uniform Commercial Code of each state whose law would purport to govern the
attachment and perfection of the security interests granted by the Security
Documents) of the Borrower and each Restricted Subsidiary.
5.26 Full Disclosure. There is no material fact or condition
---------------
relating to the Loan Documents or the financial condition, business, or property
of any Loan Party which could reasonably be expected to have a Material Adverse
Effect and which has not been disclosed, in writing, to the Managing Agents and
the Lenders.
5.27 Intercompany Subordinated Debt. There is no Intercompany
------------------------------
Subordinated Debt other than the Indebtedness described in Exhibit A (as
---------
supplemented from time to time) to the Intercompany Subordinated Debt Agreement.
SECTION 6. CONDITIONS PRECEDENT
6.1 Conditions to Initial Extensions of Credit. The agreement of
------------------------------------------
each Lender to make the initial extension of credit requested to be made by it
is subject to the satisfaction, immediately prior to or concurrently with the
making of such extension of credit of the following conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received
--------------
(i) this Agreement and the Tranche B Agreement, each duly executed and
delivered by the Borrower; (ii) the Notes, duly executed and delivered by
the Borrower to each of the Lenders; (iii) the Pledge Agreements, duly
executed and delivered by the Borrower and each of the Restricted
Subsidiaries; (iv) the JIC Negative Pledge duly executed and delivered by
JIC; (v) the Restricted Subsidiary Negative Pledges, duly executed and
delivered by each of the Restricted Subsidiaries; and (vi) a copy of the
Intercompany Subordinated Debt Agreement duly executed and delivered by the
Borrower and JIC.
(b) Closing Certificate. The Administrative Agent shall have
-------------------
received a certificate (the "Closing Certificate") of each Loan Party and
-------------------
JIC, dated the date of the initial extension of credit, substantially in
the form of Exhibit I, with appropriate insertions and attachments, in
---------
each case reasonably satisfactory in form and substance to the
Administrative Agent, executed by a Responsible Officer and the Secretary
or any Assistant Secretary of the appropriate Loan Party and JIC.
45
(c) Fees. The Administrative Agent and the Managing Agents shall
----
have received all fees and expenses required to be paid on or before the
date hereof referred to in Section 4.3(b) and the Lenders shall have
--------------
received all fees required to be paid on or before the date hereof
pursuant to the various invitation letters from the Borrower to
prospective lenders forwarded with the Confidential Information
Memorandum, dated September 19, 1996.
(d) Legal Opinions. The Administrative Agent shall have
--------------
received, with a counterpart for each Lender, the following executed
legal opinions:
(i) the executed legal opinion of the General
Counsel or the acting General Counsel of the Borrower,
substantially in the form of Exhibit J; and
---------
(ii) the executed legal opinion of ▇▇▇▇, Raywid &
▇▇▇▇▇▇▇▇▇, L.L.P., substantially in the form of Exhibit K.
---------
(e) Financial Statements. The Lenders shall have received
--------------------
audited consolidated financial statements of JIC for the 1995 fiscal
year, which financial statements shall have been prepared in accordance
with GAAP and shall be accompanied by an unqualified report thereon
prepared by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P.
(f) Satisfactory Organizational and Capital Structure. The stock
-------------------------------------------------
ownership of the Borrower and each of the Restricted Subsidiaries shall
be consistent with the structure described in Schedule 6.1(f). All
---------------
necessary intercreditor arrangements shall be satisfactory to the
Lenders.
(g) Governmental and Third Party Approvals. All governmental
--------------------------------------
approvals and material third party approvals necessary in connection with
the Stock Purchase shall have been obtained and be in full force and
effect. All governmental approvals and material third party approvals
necessary in connection with the financing contemplated hereby shall have
been obtained and be in full force and effect.
(h) No Material Adverse Information. The Lenders shall not have
-------------------------------
become aware of any previously undisclosed materially adverse information
with respect to (i) the ability of the Loan Parties to perform their
respective obligations under the Loan Documents in any material respect
or (ii) the rights and remedies of the Lenders.
(i) No Material Default Under Other Agreements. There shall
------------------------------------------
exist no material event of default (or condition which would constitute
such an event of default with the giving of notice or the passage of
time) under any agreements relating to Capital Stock, or any material
financing agreements, lease agreements or other material Contractual
Obligations, of JIC, the Borrower or any of the Restricted Subsidiaries.
46
(j) Pledged Stock; Stock Powers. The Administrative Agent shall
---------------------------
have received the certificates representing the shares of Capital Stock
pledged pursuant to each Pledge Agreement of the Borrower and each of the
Restricted Subsidiaries, respectively, together with an undated stock
power for each such certificate, if any, executed in blank by a duly
authorized officer of the Borrower and each of the Restricted
Subsidiaries, respectively.
(k) Material Adverse Change. There shall exist no material
-----------------------
adverse change in the financial condition or business operations of the
Acquired Systems since June 30, 1996.
(l) Additional Documentation. All other documentation,
------------------------
including, without limitation, any tax sharing agreement, employment
agreement, management compensation arrangement or other financing
arrangement of the Borrower or any of the Restricted Subsidiaries shall
be reasonably satisfactory in form and substance to the Lenders.
(m) Lien Termination. All Liens covering the Acquired Systems
----------------
shall have been terminated.
(n) The Stock Purchase. The Stock Purchase shall have been
------------------
consummated.
(o) Insurance. The Administrative Agent shall have received
---------
certificates of insurance naming the Administrative Agent as loss payee
for the benefit of the Lenders and as additional insured for the benefit
of the Lenders, as required by Section 7.5(b).
--------------
(p) Tax Sharing Agreement. The Administrative Agent or the
---------------------
Documentation Agent shall have received a copy of the Tax Sharing
Agreement.
(q) Acquired Systems. The Acquired Systems shall have been sold
----------------
and transferred to JCG and JCA and all governmental approvals and
material third party approvals necessary in connection with such sale and
transfer shall have been obtained and in full force and effect such that
JCG shall own good title to the Cable Systems serving North Augusta,
South Carolina, Savannah, Georgia and Augusta, Georgia and JCA will own
good title to the Cable System serving Pima County, Arizona.
(r) Pro Forma Covenant Compliance. The Managing Agents shall
-----------------------------
have received reasonably satisfactory calculations evidencing the
Borrower's pro forma compliance with Sections 8.1(a) and (c), after
--------------- ---
giving effect to the requested borrowing.
6.2 Conditions to Each Extension of Credit. The obligation or
--------------------------------------
agreement of each Lender to make any Loan or to issue any Letter of Credit
requested to be made or issued by it on any date (including, without limitation,
its initial extension of credit) is subject to the satisfaction, immediately
prior to or concurrently with the making of such Loans or the issuing of such
Letters of Credit, of the following conditions precedent:
47
(a) Initial Conditions Satisfied. Each of the conditions
----------------------------
precedent set forth in Section 6.1 shall have been satisfied and shall
-----------
continue to be satisfied on the date of such Loans.
(b) No Material Litigation. Except as disclosed on Schedule 5.6,
---------------------- ------------
no litigation, inquiry, injunction or restraining order shall be pending,
entered or threatened in writing which could reasonably be expected to
have a Material Adverse Effect.
(c) No Material Adverse Effect. There shall not have occurred
--------------------------
any change, development or event which could reasonably be expected to
have a Material Adverse Effect.
(d) Representations and Warranties. Each of the representations
------------------------------
and warranties made by any Loan Party or JIC in or pursuant to the Loan
Documents to which it is a party shall be true and correct in all
material respects on and as of such date as if made on and as of such
date, after giving effect to the Loans requested to be made or the
Letters of Credit to be issued on such date and the proposed use of the
proceeds thereof.
(e) No Default. No Default or Event of Default shall have
----------
occurred and be continuing on such date or will occur after giving effect
to the extension of credit requested to be made on such date and the
proposed use of the proceeds thereof.
(f) Notice of Borrowing; Application. The Borrower shall have
--------------------------------
submitted a Notice of Borrowing in accordance with Section 2.3 and
-----------
certifying to the matters set forth in Section 6.2(a) through and
including (e) and/or an Application in accordance with Section 3.2.
-----------
Each borrowing by or issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the applicable conditions contained in
this Section 6.2 have been satisfied.
-----------
SECTION 7. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as any Commitment remains
in effect, any Loan or Letter of Credit shall be outstanding or any other
Obligation is due and payable to any Lender or the Administrative Agent
hereunder or under any other Loan Document, the Borrower shall and shall cause
each of its Restricted Subsidiaries to:
7.1 Financial Statements. Furnish to the Administrative Agent
--------------------
for subsequent distribution to each Lender:
(a) as soon as available, but in any event within 120 days after
the end of each fiscal year of the Borrower, a copy of the consolidated
balance sheet of the Borrower and the
48
Restricted Subsidiaries as at the end of such year and the related
consolidated statements of income and shareholders' capital (deficit) and
of cash flows for such year, setting forth in each case in comparative
form the figures for the previous year, reported on without a "going
concern" or like qualification or exception, or qualification arising out
of the scope of the audit, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ L.L.P. or other independent
certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 60
days after the end of each of the first three fiscal quarterly periods of
each fiscal year of the Borrower, the unaudited consolidated balance
sheet of the Borrower and the Restricted Subsidiaries as at the end of
such quarter and the related unaudited consolidated statements of income
and of cash flows for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
7.2 Certificates; Other Information. Furnish to the
-------------------------------
Administrative Agent for subsequent distribution to each Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.1(a), a certificate of the independent certified
--------------
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of
any Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial statements
referred to in Sections 7.1(a) or (b), a Compliance Certificate executed
--------------- ---
by a Responsible Officer of the Borrower and each of the Restricted
Subsidiaries;
(c) without duplication of the financial statements delivered
pursuant to Section 7.1, within five days after the same are sent, copies
-----------
of all financial statements and reports which the Borrower sends to the
holders of any class of its debt securities, and within five days after
the same are filed, copies of all financial statements and reports which
the Borrower may make to, or file with, the Securities and Exchange
Commission or any successor or analogous Governmental Authority; and
(d) promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
49
7.3 Payment of Obligations. Pay, discharge or otherwise satisfy
----------------------
at or before maturity or before they become delinquent, as the case may be, all
its material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or the relevant Restricted Subsidiary, as the case may
be.
7.4 Conduct of Business and Maintenance of Existence, etc.
-----------------------------------------------------
(a) Continue to engage in business of the same general type as now conducted by
it, except as otherwise permitted by Section 8.13, and preserve, renew and keep
------------
in full force and effect its organizational existence and take all reasonable
action to maintain all material rights, privileges and franchises necessary in
the normal conduct of its business except as otherwise permitted pursuant to
Section 8.4.
-----------
(b) Comply with all Contractual Obligations and applicable
Requirements of Law, except to the extent that failure to comply therewith could
not reasonably be expected to have a Material Adverse Effect.
7.5 Maintenance of Property; Insurance. (a) Keep all material
----------------------------------
property useful and necessary in its business in good working order and
condition (ordinary wear and tear excepted) consistent with customary practices
in the cable industry; maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to the
Administrative Agent certificates of insurance from time to time received by it
for each such policy of insurance including insurance certificates evidencing
compliance with Section 7.5(b).
--------------
(b) In the event that the provisions of item (ii) of
Section 8.16 apply, then contemporaneously with the Borrower's compliance with
------------
Section 7.9 the Borrower shall cause (i) the Administrative Agent to be named,
-----------
in a manner reasonably satisfactory to the Administrative Agent, (a) as lender
loss payee for the benefit of the Lenders under all policies of casualty
insurance maintained by the Borrower and the Restricted Subsidiaries and (b) as
an additional insured for the benefit of the Lenders on all policies of
liability insurance maintained by the Borrower and the Restricted Subsidiaries;
and (ii) all insurance policies to contain a provision that the policy may not
be cancelled, terminated or modified without thirty (30) days' prior written
notice to the Administrative Agent.
7.6 Inspection of Property; Books and Records; Discussions. Keep
------------------------------------------------------
and maintain a system of accounting established and administered in accordance
with sound business practices and keep and maintain proper books of record and
accounts; and permit representatives of any Lender to visit and inspect any of
its properties and examine and make abstracts from any of its books and records
during normal business hours and as often as may reasonably be requested and
upon reasonable notice and to discuss the business, operations, properties and
financial and other condition of the Borrower and the Restricted Subsidiaries
with officers and employees of the
50
Borrower and the Restricted Subsidiaries and with their independent certified
public accountants; provided that representatives of the Borrower designated by
a Responsible Officer may be present at any such meeting with such accountants.
7.7 Notices. Promptly after the Borrower obtains knowledge
-------
thereof, give notice to the Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of JIC, the Borrower or any of the Restricted Subsidiaries or
(ii) litigation, investigation or proceeding which may exist at any time
between JIC, the Borrower or any of the Restricted Subsidiaries and any
Governmental Authority, which in either case could reasonably be expected
to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any
of the Restricted Subsidiaries (i) which could reasonably be expected to
result in an adverse judgment of $10,000,000 or more and which is not
covered by insurance or (ii) in which injunctive or similar relief is
sought which in the case of this clause (ii) could reasonably be expected
to materially interfere with the ordinary conduct of business of the
Borrower or any of the Restricted Subsidiaries;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows thereof: (i) the occurrence of
any Reportable Event with respect to any Plan, a failure to make any
required contribution to a Plan, the creation of any Lien in favor of the
PBGC or a Plan or any withdrawal from, or the termination, Reorganization
or Insolvency of, any Multiemployer Plan or (ii) the institution of
proceedings or the taking of any other action by the PBGC or the Borrower
or any Commonly Controlled Entity or any Multiemployer Plan with respect
to the withdrawal from, or the terminating, Reorganization or Insolvency
of, any Plan; and
(e) any development or event which could reasonably be expected
to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action is proposed to be taken with respect thereto.
7.8 Environmental Laws. (a) Comply with, and use reasonable
------------------
efforts to require compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply with and maintain, and use
reasonable efforts to require that all tenants and subtenants obtain and comply
with and maintain, any and all licenses, approvals, notifications, registrations
or
51
permits required by applicable Environmental Laws except, in each case, to the
extent that failure to do so could not be reasonably expected to have a Material
Adverse Effect.
(b) Comply with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws except to the extent that
the same are being contested in good faith by appropriate proceedings diligently
pursued.
7.9 Collateral. (a) To ratably secure full and complete payment
----------
and performance of the Obligations (and the Obligations under and as defined in
the Tranche B Agreement), (i) the Borrower shall grant and convey to and create
in favor of, the Administrative Agent for the ratable benefit of the Lenders a
continuing first priority perfected Lien and security interest in, to and on all
of the Capital Stock of each direct or indirect Restricted Subsidiary of the
Borrower and any other direct or indirect Restricted Subsidiary of the Borrower,
now owned or hereafter acquired and/or designated by the Borrower; and (ii) the
Restricted Subsidiaries shall grant and convey to and create in favor of, the
Administrative Agent for the ratable benefit of the Lenders a continuing first
priority perfected Lien and security interest in, to and on all of the Capital
Stock of each Restricted Subsidiary owned by a Restricted Subsidiary, now owned
or hereafter acquired.
(b) With respect to any new Restricted Subsidiary created,
acquired or designated after the date hereof, the Borrower shall and shall cause
each such new Restricted Subsidiary, as applicable, to promptly (but in no event
later than 30 days after the creation, acquisition or designation of a
Restricted Subsidiary) (i) execute and deliver to the Administrative Agent such
new Pledge Agreements and/or amendments to existing Pledge Agreements as the
Administrative Agent deems necessary or advisable in order to grant to the
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Capital Stock of such Restricted Subsidiary and any
Restricted Subsidiaries of such Restricted Subsidiary, (ii) deliver to the
Administrative Agent the certificates representing the Capital Stock of such
Restricted Subsidiary and any Restricted Subsidiary of such Restricted
Subsidiary, together with undated stock powers, in blank, executed and delivered
by a duly authorized officer of the Borrower or such Restricted Subsidiary, as
applicable, (iii) take such other actions as shall be necessary or advisable to
grant to the Administrative Agent for the benefit of the Lenders a perfected
first priority security interest in such Capital Stock, including, without
limitation, the filing of such Uniform Commercial Code financing statements as
may be requested by the Administrative Agent, (iv) execute and deliver to the
Administrative Agent a Restricted Subsidiary Negative Pledge and (v) if
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described in the preceding clauses (i), (ii),
(iii) and (iv), which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
52
(c) With respect to any assets (other than the Capital Stock of
Subsidiaries) from time to time acquired by the Borrower which are not
transferred to a Restricted Subsidiary in accordance with Section 8.16 (each, an
------------
"Acquired Asset" and collectively, the "Acquired Assets"), the Borrower shall,
-------------- ---------------
within 90 days after the date on which the aggregate fair market value of all
Acquired Assets owned by the Borrower exceeds $500,000, execute and deliver or
cause to be delivered to the Administrative Agent in a form reasonably
acceptable to the Administrative Agent (i) one or more mortgages and/or security
agreements which grant to the Administrative Agent a first priority perfected
security interest in the assets of the Borrower, whether then owned or
thereafter acquired (subject to any Liens permitted by Section 8.3) and
-----------
(ii) such additional agreements and other documents as the Administrative Agent
reasonably deems necessary to establish a valid, enforceable and perfected first
priority security interest in such assets (subject to any Liens permitted by
Section 8.3).
-----------
(d) Upon request of the Administrative Agent, promptly execute
and deliver or cause to be executed and delivered to the Administrative Agent in
a form reasonably acceptable to the Administrative Agent such additional
agreements and other documents as the Administrative Agent reasonably deems
necessary to establish a valid, enforceable and perfected first priority
security interest in the Collateral.
7.10 Use of Proceeds. The Borrower shall use the proceeds of the
---------------
Loans and the Letters of Credit only for (a) financing permitted acquisitions,
(b) capital expenditures to expand and upgrade Cable Systems, (c) dividends or
distributions permitted under this Agreement, and (d) general corporate
purposes.
7.11 New Subsidiaries. Immediately upon the creation or
----------------
acquisition thereof, the Borrower shall notify the Administrative Agent of the
designation of any newly created or acquired Subsidiary as a Restricted
Subsidiary or an Unrestricted Subsidiary and shall provide the Administrative
Agent with an updated Schedule 5.14 within 30 days of any changes thereto,
-------------
provided that no designation of any newly created or acquired Subsidiary as an
--------
Unrestricted Subsidiary shall be permitted (except by another Unrestricted
Subsidiary) unless such designation would otherwise be permitted under the
definition thereof and Sections 8.6 and 8.9(f). In addition, the Borrower shall
------------ ------
cause any newly created or acquired Restricted Subsidiary to execute and deliver
to the Administrative Agent, within 30 days of such creation or acquisition, a
Restricted Subsidiary Negative Pledge.
SECTION 8. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as any Commitment remains
in effect, any Loan or Letter of Credit is outstanding, or any other Obligation
is due and payable to any Lender or the Administrative Agent hereunder or under
any other Loan Document, the Borrower shall not, and the Borrower shall not
permit any of the Restricted Subsidiaries to, directly or indirectly:
53
8.1 Financial Condition Covenants.
-----------------------------
(a) Leverage Ratio. Permit the Leverage Ratio at any time during
any period set forth below to be greater than the ratio set forth
opposite such period below:
Period Ratio
------ -----
Effective Date through and including 6/30/99 6.00 to 1.00
7/01/99 through and including 6/30/2000 5.50 to 1.00
7/01/2000 through and including 6/30/2001 5.00 to 1.00
7/01/2001 and thereafter 4.50 to 1.00
(b) Interest Coverage Ratio. Permit the ratio of Operating Cash
Flow for any fiscal quarter of the Borrower ending during any period set
forth below to Interest Expense for such fiscal quarter to be less than
the ratio set forth opposite such period below:
Period Ratio
------ -----
Effective Date through 6/30/2000 1.50 to 1.00
7/1/2000 and thereafter 2.00 to 1.00
(c) Pro Forma Debt Service Ratio. Permit, at any time, the ratio
----------------------------
of Annualized Operating Cash Flow based on the most recently ended fiscal
quarter to Pro Forma Debt Service to be less than 1.10 to 1.00.
8.2 Limitation on Indebtedness. Create, incur, assume or suffer
--------------------------
to exist any Indebtedness of the Borrower or any Restricted Subsidiary of the
Borrower, except:
(a) Indebtedness under this Agreement and the Tranche B
Agreement, other than L/C Obligations of the Borrower that are for the
benefit of or support the obligations of any Person other than the
Borrower or a Restricted Subsidiary;
(b) Indebtedness of the Restricted Subsidiaries resulting from
any loan or advance from the Borrower;
(c) Intercompany Subordinated Debt, provided that the
--------
Intercompany Subordinated Debt is unsecured and subordinated pursuant to
the terms and conditions of the Intercompany Subordinated Debt Agreement;
(d) Interest Rate Hedge Agreements entered into with the Lenders
or any of them for the purpose of hedging against interest rate
fluctuations with respect to variable rate Indebtedness of the Borrower
or any of the Restricted Subsidiaries; and
54
(e) Indebtedness of the Borrower and/or any Restricted
Subsidiary not otherwise permitted by this Section 8.2, provided that
----------- --------
immediately prior to and after giving effect to the creation, incurrence
or assumption of such Indebtedness (i) the aggregate outstanding
principal amount of all such other Indebtedness of the Borrower and the
Restricted Subsidiaries, on a combined basis plus (without duplication)
the aggregate amount of all Indebtedness secured by Liens permitted under
subsection (d) of Section 8.3 shall not at any time exceed 5% of Maximum
-------------- -----------
Permitted Indebtedness and (ii) no Default exists and would then be
continuing.
8.3 Limitation on Liens. Create, incur, assume or suffer to
-------------------
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes, assessments or governmental charges arising
in the ordinary course of business which are not yet due and payable or
which are being contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on
--------
the books of the Borrower or the Restricted Subsidiary, as the case may
be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not yet due and payable;
(c) Liens created pursuant to the Security Documents;
(d) other Liens, provided that immediately prior to and after
--------
giving effect to the creation of any such Liens (i) the aggregate amount
of such Indebtedness secured by Liens permitted under this
subsection (d) plus (without duplication) the aggregate amount of all
--------------
Indebtedness of the Borrower and the Restricted Subsidiaries permitted
under Section 8.2(e) shall not at any time exceed 5% of Maximum Permitted
--------------
Indebtedness and (ii) no Default or Event of Default exists and would
then be continuing;
(e) encumbrances consisting of zoning restrictions, easements,
or other restrictions on the use of real property, none of which impair
in any material respect the use of such property by the Person in
question in the operation of its business, and none of which is violated
by existing or proposed structures or land use; and
(f) any attachment, prejudgment or judgment Lien in existence
less than sixty consecutive calendar days after the entry thereof, or
with respect to which execution has been stayed, or with respect to which
payment in full above any applicable customary deductible is covered by
insurance or a bond.
55
8.4 Limitation on Fundamental Changes. Enter into any merger,
---------------------------------
consolidation or amalgamation with any Person, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all of its
property, business or assets to any Person, or make any material change in its
present method of conducting business, except:
(a) a Restricted Subsidiary may merge into or be acquired by the
Borrower if the Borrower is the survivor thereof;
(b) a Restricted Subsidiary may merge into or be acquired by another
Restricted Subsidiary; and
(c) the Borrower or any Restricted Subsidiary may sell, lease,
transfer or otherwise dispose of any or all of its assets in a transaction
permitted under Section 8.5.
-----------
8.5 Limitation on Sale of Assets. Convey, sell, lease, assign,
----------------------------
exchange, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired to any Person (a "Disposition"), except:
-----------
(a) Dispositions in the ordinary course of business (which shall not
be construed to include the Disposition of any License, Franchise or Cable
System);
(b) subject to the provisions of Section 8.16, Dispositions between
------------
the Borrower and the Restricted Subsidiaries or between the Restricted
Subsidiaries;
(c) the Borrower may designate any Restricted Subsidiary as an
Unrestricted Subsidiary in accordance with Section 8.6 and may make
-----------
Restricted Payments in accordance with Section 8.7; and
-----------
(d) other Dispositions, provided that all of the following
--------
conditions are satisfied: (i) the Borrower or such Restricted Subsidiary
receives consideration that represents the fair market value of such
property or assets at the time of such Disposition, (ii) any such
Disposition shall be on a non-recourse basis, except that the Borrower or
such Restricted Subsidiary may make commercially reasonable
representations, warranties and indemnities with respect to such properties
or assets that are normal and customary in the cable television business
("Permitted Sale Representations"), (iii) no Default or Event of Default
------------------------------
shall have occurred and be continuing either before or after the
consummation of such transaction and (iv) either (1) the Leverage Ratio is
less than or equal to 3.75 to 1.00 after giving effect to such Disposition
or (2) after giving effect to such proposed Disposition (x) the sum,
without duplication, of (A) the Net Unrestricted Designated Subsidiaries
Three Month Cash Flow for the prior twelve month period (or shorter period
commencing on the Effective Date) ending on the date of such proposed
transaction, (B) the Three Month Cash Flow attributable to the
56
properties or assets to be sold, leased, transferred, assigned or otherwise
disposed of and (C) the Three Month Cash Flow attributable to all
properties or assets sold, leased, transferred, assigned or otherwise
disposed of during the prior twelve month period (or shorter period
commencing on the Effective Date) ending on the date of such proposed
transaction shall not exceed 15% of the Three Month Cash Flow of the
Borrower and the Restricted Subsidiaries, and (y) the sum, without
duplication of (A) the Net Unrestricted Designated Subsidiaries Three Month
Cash Flow for the five-year period (or shorter period commencing on the
Effective Date) ending on the date of such proposed transaction, (B) the
Three Month Cash Flow attributable to the properties or assets to be sold,
leased, transferred, assigned or otherwise disposed of and (C) the Three
Month Cash Flow attributable to all assets sold, leased, transferred,
assigned or disposed of during the five-year period (or shorter period
commencing on the Effective Date) ending on the date of such proposed
transaction shall not exceed 30% of the Three Month Cash Flow of the
Borrower and the Restricted Subsidiaries. Notwithstanding anything to the
contrary contained in the foregoing, if the Leverage Ratio is less than or
equal to 3.75 to 1.00 for a period of twelve consecutive months all prior
Dispositions and Unrestricted Subsidiary Designations shall be excluded
from subsequent determinations pertaining to the foregoing clause (y).
Upon request by and at the expense of the Borrower, the Administrative Agent
shall release any Liens arising under the Security Documents with respect to any
Collateral which (i) is permitted to be disposed of pursuant to Section 8.5(a),
--------------
(ii) consists of the Capital Stock of a Restricted Subsidiary which is
designated as an Unrestricted Subsidiary pursuant to Section 8.6, or (iii) is
-----------
sold or otherwise disposed of in compliance with the terms of Section 8.5(d).
--------------
8.6 Restricted/Unrestricted Designation of Subsidiaries. Be
---------------------------------------------------
permitted to designate a Restricted Subsidiary as an Unrestricted Subsidiary or
an Unrestricted Subsidiary as a Restricted Subsidiary unless (a) the Borrower
delivers to the Administrative Agent and the Lenders a written notice, not later
than ten (10) days prior to such designation, certifying that all conditions set
forth in this Section 8.6 are satisfied as of the proposed effective date of
-----------
such designation, which certification shall state the proposed effective date of
such designation and shall be signed by a Responsible Officer of the Borrower;
(b) no Default or Event of Default shall exist immediately before or after the
effective date of such designation; (c) after giving effect to such designation,
there shall not be any material and adverse effect on the Borrower and the
Restricted Subsidiaries on a consolidated basis with respect to the prospects
for the future generation of Operating Cash Flow, the general mix of assets or
the condition, quality and development level of technical equipment, and such
designation shall not render the Borrower and the Restricted Subsidiaries on a
consolidated basis insolvent or generally unable to pay its or their respective
debts as they become due; (d) in the case of the designation of an Unrestricted
Subsidiary as a Restricted Subsidiary, such notice shall also serve as the
certification of the Borrower that, with respect to such Restricted Subsidiary,
the representations and warranties contained herein are true and correct on and
as of the effective date of such designation; and (e) in the case of the
designation of any Restricted Subsidiary as an Unrestricted Subsidiary (an
"Unrestricted Subsidiary Designation"), either (1) the Leverage Ratio is less
------------------------------------
than or equal to 3.75 to 1.00 after giving effect to such Unrestricted
Subsidiary Designation
57
or (2) after giving effect to such Unrestricted Subsidiary Designation the
following additional conditions are satisfied as of the effective date of such
proposed designation: (i) the sum, without duplication, of (x) the Net
Unrestricted Designated Subsidiaries Three Month Cash Flow for the prior twelve
month period (or shorter period commencing on the Effective Date) ending on the
date of such proposed designation and (y) the Three Month Cash Flow attributable
to all asset Dispositions made pursuant to Section 8.5(d) during the twelve
--------------
month period (or shorter period commencing on the Effective Date) ending on the
date of such proposed designation shall not exceed fifteen percent (15%) of the
Three Month Cash Flow of the Borrower and the Restricted Subsidiaries, and (ii)
the sum, without duplication, of (x) the Net Unrestricted Designated
Subsidiaries Three Month Cash Flow for the five-year period (or shorter period
commencing on the Effective Date) ending on the date of such proposed
designation and (y) the Three Month Cash Flow attributable to all asset
Dispositions made pursuant to Section 8.5(d) during the five-year period (or
--------------
shorter period commencing on the Effective Date) ending on the date of such
proposed designation shall not exceed thirty percent (30%) of the Three Month
Cash Flow of the Borrower and the Restricted Subsidiaries. Notwithstanding the
foregoing, if the Leverage Ratio is less than or equal to 3.75 to 1.00 for a
period of twelve consecutive months, all previous Unrestricted Subsidiary
Designations and asset Dispositions shall be excluded from subsequent
determinations pertaining to the foregoing clause (ii).
8.7 Limitation on Restricted Payments; Other Payment Limitations.
------------------------------------------------------------
Declare or pay any dividend or distribution in respect of, or make any payment
on account of, or set apart assets for a sinking or other analogous fund for,
the purchase, redemption, defeasance, retirement or other acquisition of, any
shares of or interests in any class of Capital Stock of the Borrower, whether
now or hereafter outstanding, either directly or indirectly, whether in cash or
property or in obligations of the Borrower or any of its Subsidiaries, or make,
or permit any payments of principal, interest, premium or fees on account of
Intercompany Subordinated Debt or make any payment in respect of any fees
payable to any Person (other than to the Borrower or a Restricted Subsidiary)
for management, consulting, oversight or similar services (collectively,
"Restricted Payments"), except that the Borrower and the Restricted Subsidiaries
-------------------
may make Restricted Payments in cash or Capital Stock so long as both
immediately before and after making such Restricted Payment (i) no Default or
Event of Default shall have occurred and be continuing or would result therefrom
and (ii) the Leverage Ratio is less than 5.50 to 1.00. Notwithstanding anything
to the contrary contained in the foregoing, prior to making any Restricted
Payment, the Borrower shall provide the Administrative Agent with a pro forma
calculation of the Leverage Ratio demonstrating that such Leverage Ratio is less
than 5.50 to 1.00 both before and after making such Restricted Payment, which
calculation shall be certified to by the Borrower.
8.8 Limitation on Acquisitions. Purchase any stock, bonds, notes,
--------------------------
debentures or other securities of or any assets constituting all or any
significant part of a business unit of any Person (collectively,
"Acquisitions"), except acquisitions (substantially all of which consist of
------------
Cable Systems or telecommunications systems) through the purchase of stock or
assets in any Permitted Line of Business, provided, that (i) no such acquisition
--------
may be made if a Default or an Event of Default shall have occurred and be
continuing or would result therefrom, (ii) prior to such
58
Acquisition, the Borrower provides evidence of pro forma compliance with all of
the terms and conditions of this Agreement, and in the case of Acquisitions in
excess of $50,000,000 a ten year cash flow projection for any such Cable System
or telecommunications system being acquired, demonstrating such compliance and
(iii) compliance in a timely manner by the Borrower with Section 8.16.
------------
8.9 Investments, Loans, Etc. Purchase or otherwise acquire or
------------------------
invest in the Capital Stock of, or any other equity interest in, any Person
(including, without limitation, the Capital Stock of the Borrower), or make any
loan to, or enter into any arrangement for the purpose of providing funds or
credit to, or, guarantee or become contingently obligated in respect of the
obligations of or make any other investment, whether by way of capital
contribution or otherwise, in, to or with any Person, or permit any Restricted
Subsidiary so to do (all of which are sometimes referred to herein as
"Investments"), provided that, so long as no Default or Event of Default shall
------------ --------
have occurred and be continuing or would result therefrom, nothing contained in
this Section 8.9 shall be deemed to prohibit the Borrower or any Restricted
-----------
Subsidiary from making Investments:
(a) in certificates of deposit with maturities of 270 days or less
from the date of acquisition and overnight bank deposits of any Lender or
of any commercial bank having capital and surplus in excess of
$500,000,000;
(b) in repurchase obligations of any Lender or of any commercial bank
satisfying the requirements of clause (a) of this Section 8.9, having a
-----------
term of not more than 30 days, with respect to securities issued or fully
guaranteed or insured by the United States Government;
(c) in commercial paper of a domestic issuer maturing not in excess
of 270 days from the date of acquisition and rated at least A-1 by S&P or
P-1 by ▇▇▇▇▇'▇;
(d) in indebtedness of a domestic issuer maturing not in excess of
270 days from the date of acquisition and having the highest rating by S&P
and ▇▇▇▇▇'▇;
(e) in Restricted Subsidiaries or for the acquisition or creation of
new Restricted Subsidiaries, provided that (i) in the case of an
--------
acquisition, the Borrower complies with the provisions of Section 8.8, (ii)
-----------
such Restricted Subsidiary is organized under the laws of any state of the
United States or the District of Columbia and (iii) not less than one
hundred percent (100%) of the voting control thereof and not less than one
hundred percent (100%) of the overall economic equity therein, at the time
of which any determination is being made, is owned, directly or indirectly,
beneficially and of record by the Borrower; and
(f) in Unrestricted Subsidiaries through Dispositions under
Section 8.5, designations under Section 8.6 and Acquisitions under
----------- -----------
Section 8.8, provided that such Investments are in compliance with
----------- --------
Sections 8.5, 8.6 and 8.8.
------------ --- ---
59
8.10 Limitation on Transactions with Affiliates. Enter into any
------------------------------------------
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate (other
than a Restricted Subsidiary) other than transactions (a) otherwise permitted
under this Agreement, (b) entered into in the ordinary course of the Borrower's
or such Restricted Subsidiary's business, the terms of which are fair and
reasonable and in the best interests of the Loan Party which is party to the
transaction and which transaction is approved by the Board of Directors of the
Borrower or (c) which are existing transactions set forth on Schedule 8.10 and
-------------
future transactions which are in renewal or replacement of the transactions set
forth in Schedule 8.10 provided that such future transactions are of a type and
------------- --------
upon terms consistent with the transactions set forth on Schedule 8.10.
-------------
8.11 Certain Intercompany Matters. Fail to (i) satisfy customary
----------------------------
formalities with respect to organizational separateness, including, without
limitation, (x) the maintenance of separate books and records and (y) the
maintenance of separate bank accounts in its own name; (ii) act solely in its
own name and through its authorized officers and agents; (iii) commingle any
money or other assets of JIC or any Unrestricted Subsidiary with any money or
other assets of the Borrower or any of the Restricted Subsidiaries; or (iv) take
any action, or conduct its affairs in a manner, which could reasonably be
expected to result in the separate organizational existence of JIC, each
Unrestricted Subsidiary, the Borrower and the Restricted Subsidiaries being
ignored under any circumstance.
8.12 Limitation on Restrictions on Subsidiary Distributions.
------------------------------------------------------
Enter into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Restricted Subsidiary of the Borrower to (a)
pay dividends or make any other distributions in respect of any Capital Stock of
such Restricted Subsidiary held by, or pay any Indebtedness owed to, the
Borrower or any other Restricted Subsidiary of the Borrower, (b) make loans or
advances to the Borrower or any other Restricted Subsidiary of the Borrower or
(c) transfer any of its assets to the Borrower or any other Restricted
Subsidiary of the Borrower, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents or any other agreements in effect on the date hereof, or (ii) any
restrictions with respect to a Restricted Subsidiary imposed pursuant to an
agreement which has been entered into in connection with the sale or disposition
of all or substantially all of the Capital Stock or assets of such Restricted
Subsidiary or any restrictions arising under Franchise Agreements, Pole
Agreements or leases entered into in the ordinary course of business.
8.13 Limitation on Lines of Business. Enter into any business,
-------------------------------
either directly or through any Restricted Subsidiary, except for the domestic
cable and telecommunications business (each, a "Permitted Line of Business").
--------------------------
8.14 No Negative Pledge. Covenant or agree with any other lender
------------------
or other Person, not to create, or not to allow to be created or otherwise
exist, any Lien upon any asset of the Borrower or any of the Restricted
Subsidiaries or covenant or agree with any other lenders or other Persons to any
other arrangement that is functionally equivalent or similar to a negative
pledge.
60
8.15 Tax Sharing Agreement. Pay any Taxes under the Tax Sharing
---------------------
Agreement or other similar agreement greater than the lesser of (i) the amount
that would have been payable by the Borrower if there were no Tax Sharing
Agreement or other similar agreement and (ii) the amount actually paid by JIC in
respect of such Taxes. Amend, supplement or in any manner modify, without the
written consent of the Majority Banks, the terms of the Tax Sharing Agreement.
8.16 Limitation on the Borrower's Ownership of Assets. The
------------------------------------------------
Borrower shall not be permitted to own any Cable System or other material asset
unless the Borrower either (i) transfers any assets it owns or acquires (other
than the Capital Stock of a Subsidiary) to a Restricted Subsidiary or (ii)
complies with the provisions of Section 7.9 within 90 days after the date on
-----------
which the aggregate fair market value of all Acquired Assets (as defined in
Section 7.9(c)) owned by the Borrower exceeds $500,000.
--------------
8.17 Limitation on Issuance of Capital Stock. Issue, sell,
---------------------------------------
assign, pledge or otherwise encumber or dispose of any shares of Capital Stock,
except (i) the Restricted Subsidiaries may issue or sell Capital Stock to the
Borrower, (ii) the Borrower and the Restricted Subsidiaries may pledge the
Capital Stock of the Restricted Subsidiaries pursuant to the Pledge Agreements
and (iii) the Borrower can issue shares of its Capital Stock so long as both
before and after giving effect to such issuance and any related transactions no
Default or Event of Default shall have occurred and be continuing or would
result therefrom.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder, on or prior to the date
which is five days (or, if later, three Business Days) after any such
interest or other amount becomes due in accordance with the terms hereof;
or
(b) Any representation or warranty made or deemed made by JIC, the
Borrower or any other Loan Party herein or in any other Loan Document or
which is contained in any Information furnished at any time under or in
connection with this Agreement or any such other Loan Document shall prove
to have been incorrect in any material respect on or as of the date made or
deemed made; or
(c) The Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in Section 7.7(a) or
-------------
Section 8 of this Agreement or in Section 5(b) of the Pledge Agreements; or
---------
61
(d) The Borrower, JIC or any other Loan Party shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs
(a) through (c) of this Section), and such default shall continue
unremedied for a period of 30 days after the Administrative Agent shall
have given the Borrower notice thereof; or
(e) (i) JIC, the Borrower or any of the Restricted Subsidiaries shall
default in making any payment of any principal of any Indebtedness
(including, without limitation, any Guarantee Obligation, but excluding the
Loans and Reimbursement Obligations) beyond the period of grace or cure, if
any, provided in the instrument or agreement under which such Indebtedness
was created; or (ii) JIC, the Borrower or any of the Restricted
Subsidiaries shall default in making any payment of any interest on any
such Indebtedness beyond the period of grace or cure, if any, provided in
the instrument or agreement under which such Indebtedness was created; or
(iii) JIC, the Borrower or any of the Restricted Subsidiaries shall default
in the observance or performance of any other agreement or condition
relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due or to be purchased or repurchased prior to its
stated maturity (or, in the case of any such Indebtedness constituting a
Guarantee Obligation, to become payable prior to the stated maturity of the
primary obligation covered by such Guarantee Obligation); provided that a
--------
default, event or condition described in clause (i), (ii) or (iii) of this
paragraph (e) shall not constitute an Event of Default under this Agreement
unless, at the time of such default, event or condition one or more
defaults, events or conditions of the type described in clauses (i), (ii)
and (iii) of this paragraph (e) shall have occurred with respect to
Indebtedness the outstanding principal amount of which exceeds in the
aggregate $10,000,000; or
(f) (i) JIC, the Borrower or any of the Restricted Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or JIC, the
Borrower or any of the Restricted Subsidiaries shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against JIC, the Borrower or any of the Restricted Subsidiaries
any case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against
JIC, the Borrower or any of the Restricted Subsidiaries any case,
62
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part
of its assets which results in the entry of an order for any such relief
which shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) JIC, the Borrower or
any of the Restricted Subsidiaries shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in, any of the
acts set forth in clause (i), (ii), or (iii) above; or (v) JIC, the
Borrower or any of the Restricted Subsidiaries shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Majority Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v) the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Majority Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
could reasonably be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against JIC, the
Borrower or any of the Restricted Subsidiaries involving in the aggregate a
liability (not paid or fully covered by insurance) of $10,000,000 or more,
and all such judgments or decrees shall not have been vacated, discharged,
stayed or bonded pending appeal within 60 days after the entry thereof; or
(i) (i) Any material provision of the Loan Documents shall cease, for
any reason, to be in full force and effect, or the Borrower or any other
Loan Party shall so assert or (ii) the Lien created by any of the Security
Documents shall cease to be enforceable and of the same effect and priority
purported to be created thereby;
(j) A Change of Control shall occur;
(k) The Capital Stock of the Borrower or any portion thereof or any
Intercompany Subordinated Debt shall become subject to or covered by the
Lien of any Person; or
63
(l) A default or event of default shall occur under the Tranche B
Agreement.
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section 9 with respect to the
---------
Borrower, automatically the Commitments shall immediately terminate and the
Loans hereunder (with accrued interest thereon) and all other amounts owing
under this Agreement and the other Loan Documents (including, without
limitation, all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the documents
required thereunder) shall immediately become due and payable, and (B) if such
event is any other Event of Default, either or both of the following actions may
be taken: (i) with the consent of the Majority Lenders, the Administrative
Agent may, or upon the request of the Majority Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Commitments to be terminated
forthwith, whereupon such Commitments shall immediately terminate; and (ii) with
the consent of the Majority Lenders, the Administrative Agent may, or upon the
request of the Majority Lenders, the Administrative Agent shall, by notice to
the Borrower, declare the Loans hereunder (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including, without limitation, all amounts of L/C Obligations, whether or not
the beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) to be due and payable forthwith, whereupon
the same shall immediately become due and payable. With respect to all Letters
of Credit with respect to which presentment for honor shall not have occurred at
the time of an acceleration pursuant to this paragraph, the Borrower shall at
such time deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other Obligations of the Borrower hereunder and under the other Loan
Documents. After all such Letters of Credit shall have expired or been fully
drawn upon, all Reimbursement Obligations shall have been satisfied, all Loans
shall have been paid in full and no other Obligations shall be due and payable,
the balance, if any, in such cash collateral account shall be returned to the
Borrower (or such other Person as may be lawfully entitled thereto).
Except as expressly provided above in this Section, presentment,
demand, protest and all other notices of any kind are hereby expressly waived.
SECTION 10. THE ADMINISTRATIVE AGENT
10.1 Appointment. Each Lender hereby irrevocably designates and
-----------
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with
64
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement or any other Loan
Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent.
10.2 Delegation of Duties. The Administrative Agent may execute any
--------------------
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions. Neither the Administrative Agent nor
----------------------
any of its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except for its or such Person's own gross negligence or
willful misconduct) or (ii) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by the Borrower or
any officer thereof contained in this Agreement or any other Loan Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or for any failure of the Borrower to perform its obligations hereunder
or thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of the Borrower.
10.4 Reliance by the Administrative Agent. The Administrative Agent
------------------------------------
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
facsimile, statement, order or other document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Borrower), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent may deem
and treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall be fully
justified in failing or refusing to take any action under this Agreement or any
other Loan Document unless it shall first receive such advice or concurrence of
the Majority Lenders as it deems appropriate or it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
The Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this
65
Agreement and the other Loan Documents in accordance with a request of the
Majority Lenders, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans.
10.5 Notice of Default. The Administrative Agent shall not be
-----------------
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender (except in the case of a Default under Section 9(a)) or the Borrower
------------
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice, the Administrative Agent shall give
notice thereof to the Lenders. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Majority Lenders; provided that unless and until the Administrative Agent
--------
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
10.6 Non-Reliance on the Administrative Agent and the Other
------------------------------------------------------
Lenders. Each Lender expressly acknowledges that neither the Administrative
-------
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact
or affiliates has made any representations or warranties to it and that no act
by the Administrative Agent hereinafter taken, including any review of the
affairs of the Borrower, shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
the Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and made its own decision to make
its Loans hereunder and enter into this Agreement. Each Lender also represents
that it will, independently and without reliance upon the Administrative Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Borrower. Except for notices, reports and
other documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
10.7 Indemnification. The Lenders agree to indemnify the
---------------
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Specified Percentages in effect on the
date on which indemnification is sought (or, if indemnification is sought after
the date
66
upon which the Loans shall have been paid in full, ratably in accordance with
their Specified Percentages immediately prior to such date), from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind whatsoever which
may at any time (including, without limitation, at any time following the
payment of the Loans) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of, the Commitments,
this Agreement, any of the other Loan Documents or any documents contemplated by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
--------
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Administrative Agent's gross negligence or willful
misconduct. The agreements in this Section shall survive the payment of the
Loans and all other amounts payable hereunder.
10.8 The Administrative Agent in Its Individual Capacity. The
---------------------------------------------------
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with the Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
10.9 Successor Administrative Agent. (a) The Administrative
------------------------------
Agent may resign as the Administrative Agent upon 30 days' notice to the Lenders
and the appointment of a successor Administrative Agent as hereinafter set
forth; provided that concurrently with such resignation the Administrative Agent
--------
also resigns as the Administrative Agent for the Tranche B Agreement. If the
Administrative Agent shall resign as the Administrative Agent under this
Agreement, the other Loan Documents and the Tranche B Agreement, then, unless an
Event of Default shall have occurred and be continuing (in which case, the
Majority Lenders shall appoint a successor), the Borrower shall appoint from
among the Lenders a successor Administrative Agent for the Lenders, which
successor Administrative Agent shall be approved by the Majority Lenders (which
approval shall not be unreasonably withheld). If no successor Administrative
Agent shall have been so appointed by the Borrower (or in the case of an Event
of Default, by the Majority Lenders) and such successor Administrative Agent has
not accepted such appointment within 30 days after such resignation, then the
resigning Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which successor Administrative Agent hereunder
shall be either a Lender or, if none of the Lenders is willing to serve as
successor Administrative Agent, a major international bank having combined
capital and surplus of at least $500,000,000. Upon the acceptance of any
appointment as the Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall succeed to the rights, powers
and duties of the Administrative Agent, and the term "Administrative Agent"
shall mean such successor Administrative Agent effective upon such appointment
and approval, and the former Administrative Agent's rights, powers
67
and duties as the Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. After any retiring
Administrative Agent's resignation as the Administrative Agent, the provisions
of this Section 10 shall inure to its benefit as to any actions taken or omitted
----------
to be taken by it while it was the Administrative Agent under this Agreement and
the other Loan Documents.
(b) In the event that the Administrative Agent shall have breached
any of its material obligations to the Lenders hereunder, the Majority Lenders
may remove the Administrative Agent as the Administrative Agent hereunder and
under the Tranche B Agreement, effective on the date specified by them, by
written notice to the Administrative Agent and the Borrower. Upon any such
removal, the Borrower, provided that no Event of Default shall have occurred and
--------
be continuing (in which case the Majority Lenders shall make the appointment),
shall have the right to appoint a successor Administrative Agent hereunder and
under the Tranche B Agreement, which successor Administrative Agent shall be
approved by the Majority Lenders (which approval shall not be unreasonably
withheld). If no successor Administrative Agent shall have been so appointed by
the Borrower (or in the case of an Event of Default, by the Majority Lenders)
and such successor Administrative Agent has not accepted such appointment within
30 days after notification to the Administrative Agent of its removal, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent hereunder and under the Tranche B Agreement, which
successor Administrative Agent shall be either a Lender or, if none of the
Lenders is willing to serve as successor Administrative Agent, a major
international bank having combined capital and surplus of at least $500,000,000.
Such successor Administrative Agent, provided that no Event of Default shall
--------
have occurred and be continuing, shall be reasonably satisfactory to the
Borrower. Upon the acceptance of any appointment as the Administrative Agent
hereunder and under the Tranche B Agreement by a successor Administrative Agent,
such successor Administrative Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement and the Tranche B
Agreement. The Borrower and the Lenders shall execute such documents as shall
be necessary to effect such appointment. After any retiring Administrative
Agent's removal hereunder and under the Tranche B Agreement as the
Administrative Agent, the provisions of this Section 10.9 and Section 10.9 of
------------ ------------
the Tranche B Agreement, respectively, shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative Agent
under this Agreement, the other Loan Documents and the Tranche B Agreement. If
at any time there shall not be a duly appointed and acting Administrative Agent,
the Borrower agrees to make each payment due hereunder and under the Notes
directly to the Lenders entitled thereto during such time.
10.10 Managing Agents and Co-Agents. No Managing Agent or Co-
-----------------------------
Agent in their respective capacities as such shall have any duties or
responsibilities hereunder, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or otherwise exist against any
Managing Agent or Co-Agent in their respective capacities as such.
68
SECTION 11. NEW RESTRICTED SUBSIDIARIES
The Borrower and each Restricted Subsidiary hereby agree to promptly,
after the creation, acquisition and/or designation of a Restricted Subsidiary,
notify the Administrative Agent of the existence thereof and to promptly cause
each such new Restricted Subsidiary to execute and deliver to the Administrative
Agent a Pledge Agreement in the form of Exhibit F hereto.
---------
SECTION 12. MISCELLANEOUS
12.1 Amendments and Waivers. Neither this Agreement nor any
----------------------
other Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section 12.1. The Majority Lenders and each relevant Loan Party may, or, with
------------
the written consent of the Majority Lenders, the Administrative Agent and each
relevant Loan Party may, from time to time, (a) enter into written amendments,
supplements or modifications hereto and to the other Loan Documents for the
purpose of adding any provisions to this Agreement or the other Loan Documents
or changing in any manner the rights of the Lenders or of the Loan Parties
hereunder or thereunder or (b) waive, on such terms and conditions as the
Majority Lenders or the Administrative Agent, as the case may be, may specify in
such instrument, any of the requirements of this Agreement or the other Loan
Documents or any Default or Event of Default and its consequences; provided,
--------
however, that no such waiver and no such amendment, supplement or modification
-------
shall (i) reduce the amount or extend the scheduled date of maturity of any Loan
or of any installment thereof, or reduce the stated rate of any interest or fee
payable hereunder or extend the scheduled date of any payment thereof or
increase the amount or extend the expiration date of any Commitment of any
Lender, or make any change in the method of application of any payment of the
Loans specified in Section 4.2 or Section 4.8, (ii) waive, extend or reduce any
----------- -----------
mandatory Commitment reduction pursuant to Section 4.2, (iii) amend, modify or
-----------
waive any provision of the Intercompany Subordinated Debt Agreement, this
Section 12.1 or reduce any percentage specified in the definition of Majority
------------
Lenders, or consent to the assignment or transfer by any Loan Party of any of
its rights and obligations under this Agreement and the other Loan Documents,
(iv) release the Collateral except for any Collateral which is (x) permitted to
be disposed of pursuant to Section 8.5(a) or (y) the subject of a transaction
--------------
permitted under Sections 8.5(c) or (d), which Collateral may be released by the
--------------- ---
Administrative Agent pursuant to Section 8.5, (v) amend, modify or waive any
-----------
condition precedent to any extension of credit set forth in Section 6, in each
case of (i), (ii), (iii), (iv) and (v) above, without the written consent of all
of the Lenders, (vi) amend, modify or waive any provision of Section 10 without
the written consent of the then Administrative Agent or (vii) amend, modify or
waive any provision of Section 3 without the written consent of the then Issuing
Lender. Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding upon the Loan
Parties, the Lenders, the Administrative Agent and all future holders of the
Notes. In the case of any waiver, the Loan Parties, the Lenders and the
Administrative Agent shall be restored to their former position and rights
hereunder and under the other Loan Documents, and any Default or Event of
Default
69
waived shall be deemed to be cured and not continuing; but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair any
right consequent thereon.
12.2 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three Business Days after
being deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission, when sent and receipt has been confirmed, addressed as
follows in the case of the Borrower, the Restricted Subsidiaries and the
Administrative Agent, and as set forth in Schedule 1.1 (or, with respect to any
------------
Lender that is an Assignee, in the applicable Assignment and Acceptance) in the
case of the other parties hereto, or to such other address as may be hereafter
notified by the respective parties hereto:
The Borrower: ▇▇▇▇▇ Cable Holdings II, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(with a copy to General Counsel)
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Restricted Subsidiaries: c/▇ ▇▇▇▇▇ Cable Holdings II, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(with a copy to General Counsel)
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agent: The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
--------
or the Lenders pursuant to Section 2 or 3 shall not be effective until received.
--------- -
12.3 No Waiver; Cumulative Remedies. No failure to exercise and
------------------------------
no delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Loan
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
70
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
12.4 Survival of Representations and Warranties. All
------------------------------------------
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
12.5 Payment of Expenses and Taxes. The Borrower agrees (a) to
-----------------------------
pay or reimburse the Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan Documents and any such other
documents (including costs and expenses incurred in connection with any
restructure or workout), including, without limitation, the reasonable fees and
disbursements of counsel to each Lender and of counsel to the Administrative
Agent, (c) without duplication of amounts payable pursuant to Sections 4.9 and
------------
4.10, to pay, indemnify, and hold each Lender and the Administrative Agent
----
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) without duplication of
amounts payable pursuant to Sections 4.9 and 4.10, to pay, indemnify, and hold
------------ ----
each Lender, each Issuing Lender and the Administrative Agent, and their
respective officers, directors, employees, affiliates, advisors, agents and
controlling persons (each, an "indemnitee"), harmless from and against any and
----------
all other liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance and
administration of this Agreement, the other Loan Documents and any such other
documents or the use of the proceeds of the Loans (all the foregoing in this
clause (d), collectively, the "indemnified liabilities"), provided, that the
----------------------- --------
Borrower shall have no obligation hereunder to any indemnitee with respect to
indemnified liabilities arising from the gross negligence or willful misconduct
of such indemnitee. The agreements in this Section shall survive repayment of
the Loans and all other amounts payable hereunder.
12.6 Successors and Assigns; Participations and Assignments. (a)
------------------------------------------------------
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Administrative Agent and their respective successors and
assigns, except that neither the Borrower nor the
71
Restricted Subsidiaries may assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each Lender.
(b) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more banks or other
entities ("Participants") participating interests in any Loan owing to such
------------
Lender or any L/C Obligation of such Lender, any Commitment of such Lender or
any other interest of such Lender hereunder and under the other Loan Documents.
In the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event
shall any Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Loans or
any fees payable hereunder, or postpone the date of the final scheduled maturity
of the Loans, in each case to the extent subject to such participation. The
Borrower agrees that if amounts outstanding under this Agreement are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent permitted by applicable law, be deemed to have the right of setoff in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Lender under this Agreement, provided that, in purchasing
--------
such participating interest, such Participant shall be deemed to have agreed to
share with the Lenders the proceeds thereof as provided in Section 12.7(a) as
---------------
fully as if it were a Lender hereunder. The Borrower also agrees that each
Participant shall be entitled to the benefits of Sections 4.9, 4.10 and 4.11
------------ ---- ----
with respect to its participation in the Commitments and the Loans outstanding
from time to time as if it were a Lender; provided that, in the case of Section
-------- -------
4.10, such Participant shall have complied with the requirements of said Section
----
and provided, further, that no Participant shall be entitled to receive any
-------- -------
greater amount pursuant to any such Section than the transferor Lender would
have been entitled to receive in respect of the amount of the participation
transferred by such transferor Lender to such Participant had no such transfer
occurred.
(c) Any Lender may, in the ordinary course of its business and in
accordance with applicable law, at any time and from time to time assign to any
Person (an "Assignee") all or any part of its rights and obligations under this
--------
Agreement and the other Loan Documents pursuant to an Assignment and Acceptance,
substantially in the form of Exhibit A, executed by such Assignee and such
---------
assigning Lender and delivered to the Administrative Agent for its acceptance
and recording in the Register (with a copy to the Borrower); provided that, (i)
--------
no such assignment (other than to any Lender or any affiliate thereof) shall be
in an aggregate principal amount of less than $5,000,000 and $1,000,000
multiples thereof, (ii) after giving effect to any such assignment, the
assigning Lender (together with any Lender which is an affiliate of such
assigning Lender) shall
72
retain no less than 51% of its original Commitment, unless otherwise agreed to
by the Borrower, (iii) no such assignment may be made unless such assigning
Lender also assigns a percentage of its interest in the Tranche B Agreement
equal to the percentage of the Total Commitment being assigned by such Lender
under this Agreement and to the same Assignee receiving such percentage of its
interest hereunder and (iv) each assignment (other than to any Lender or any
affiliate thereof) shall be subject to the prior written consent of the Borrower
(which consent shall not be unreasonably withheld). Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with a Commitment as set
forth therein, and (y) the assigning Lender thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement.
(d) Any Non-U.S. Lender that could become completely exempt from
withholding of any tax, assessment or other charge or levy imposed by or on
behalf of the United States or any taxing authority thereof ("U.S. Taxes") in
----------
respect of payment of any Obligations due to such Non-U.S. Lender under this
Agreement if the Obligations were in registered form for U.S. federal income tax
purposes may request the Borrower (through the Administrative Agent), and the
Borrower agrees thereupon, to exchange any promissory note(s) evidencing such
Obligations for promissory note(s) registered as provided in paragraph (f) below
and substantially in the form of Exhibit L (an "Alternative Note"). Alternative
--------- ----------------
Notes may not be exchanged for promissory notes that are not Alternative Notes.
(e) Each Non-U.S. Lender that could become completely exempt from
withholding of U.S. Taxes in respect of payment of any Obligations due to such
Non-U.S. Lender if the Obligations were in registered form for U.S. Federal
income tax purposes and that holds Alternative Note(s) (an "Alternative
-----------
Noteholder") (or, if such Alternative Noteholder is not the beneficial owner
----------
thereof, such beneficial owner) shall deliver to the Borrower prior to or at the
time such Non-U.S. Lender becomes an Alternative Noteholder a Form W-8
(Certificate of Foreign Status of the U.S. Department of Treasury) (or any
successor or related form adopted by the U.S. taxing authorities), together with
an annual certificate stating that (i) such Alternative Noteholder or beneficial
owner, as the case may be, is not a "bank" within the meaning of Section 881(c)
of the Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign
corporation related to the Company (within the meaning of Section 864(d)(4) of
the Code) and (ii) such Alternative Noteholder or beneficial owner, as the case
may be, shall promptly notify the Borrower if at any time such Alternative
Noteholder or beneficial owner, as the case may be, determines that it is no
longer in a position to provide such certification to the Borrower (or any other
form of certification adopted by the U.S. taxing authorities for such purposes).
(f) An Alternative Note and the Obligation(s) evidenced thereby may
be assigned or otherwise transferred in whole or in part only by registration of
such assignment or transfer of such Alternative Note and the Obligation(s)
evidenced thereby on the Register (and each Alternative
73
Note shall expressly so provide). Any assignment or transfer of all or part of
such Obligation(s) and the Alternative Note(s) evidencing the same shall be
registered on the Register only upon surrender for registration of assignment or
transfer of the Alternative Note(s) evidencing such Obligation(s), duly endorsed
by (or accompanied by a written instrument of assignment or transfer duly
executed by) the Alternative Noteholder thereof, and thereupon one or more new
Alternative Note(s) in the same aggregate principal amount shall be issued to
the designated Assignee(s). No assignment of an Alternative Note and the
Obligation(s) evidenced thereby shall be effective unless it has been recorded
in the Register as provided in this Section 12.6(f).
---------------
(g) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in Section 12.2
------------
a copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders
---------
(including Alternative Noteholders) and the Commitments of, and principal
amounts of the Loans owing to, each Lender from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders may (and, in the case of any
Loan or other obligation hereunder not evidenced by a Note, shall) treat each
Person whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement and
the other Loan Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being made
in the Register. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(h) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee together with payment to the Administrative
Agent of a registration and processing fee of $3,000, the Administrative Agent
shall (i) promptly accept such Assignment and Acceptance and (ii) on the
effective date determined pursuant thereto record the information contained
therein in the Register and give notice of such acceptance and recordation to
the Lenders and the Borrower.
(i) Subject to Section 12.15, the Borrower authorizes each Lender to
-------------
disclose to any Participant or Assignee (each, a "Transferee") and any
----------
prospective Transferee, subject to the Transferee agreeing to be bound by the
provisions of Section 12.15, any and all financial information in such Lender's
-------------
possession concerning the Borrower and the Restricted Subsidiaries which has
been delivered to such Lender by or on behalf of the Borrower pursuant to this
Agreement or which has been delivered to such Lender by or on behalf of the
Borrower in connection with such Lender's credit evaluation of the Borrower and
its Restricted Subsidiaries prior to becoming a party to this Agreement.
(j) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests,
74
including, without limitation, any pledge or assignment by a Lender of any Loan
or Note to any Federal Reserve Bank in accordance with applicable law.
12.7 Adjustments; Set-off. (a) If any Lender (a "benefitted
-------------------- ----------
Lender") shall at any time receive any payment of all or part of its Loans, or
------
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of
the nature referred to in Section 9(f), or otherwise), in a greater proportion
------------
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans, or interest thereon, such benefitted
Lender shall purchase for cash from the other Lenders a participating interest
in such portion of each such other Lender's Loan, or shall provide such other
Lenders with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess payment
or benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
-------- -------
is thereafter recovered from such benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to the Borrower,
any such notice being expressly waived by the Borrower to the extent permitted
by applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise) to set-
off and appropriate and apply against such amount, to the extent permitted by
applicable law, any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of the
Borrower. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender,
provided that, to the extent permitted by applicable law, the failure to give
--------
such notice shall not affect the validity of such set-off and application.
12.8 Counterparts; When Effective. This Agreement may be
----------------------------
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by facsimile transmission), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Borrower and the Administrative Agent. This Agreement
shall become effective when the Administrative Agent has received counterparts
hereof executed by the Borrower, the Administrative Agent and each Lender (such
date herein referred to as the "Effective Date").
--------------
12.9 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
75
12.10 Integration. This Agreement and the other Loan Documents
-----------
represent the agreement of JIC, the Borrower, the Administrative Agent and the
Lenders with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.
12.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
-------------
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
12.12 SUBMISSION TO JURISDICTION; WAIVERS. (a) EACH PARTY HERETO,
-----------------------------------
IN EACH CASE FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH
IT IS A PARTY, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN
RESPECT THEREOF, TO THE NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF
THE STATE OF NEW YORK, THE COURTS OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND APPELLATE COURTS FROM ANY THEREOF;
(ii) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN
SUCH COURTS AND WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO
THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO
PLEAD OR CLAIM THE SAME;
(iii) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING
MAY BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL
(OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE PREPAID, TO IT AT ITS
ADDRESS SET FORTH IN SECTION 12.2 OR SCHEDULE 1.1, AS APPLICABLE, OR AT
------------ ------------
SUCH OTHER ADDRESS OF WHICH THE ADMINISTRATIVE AGENT SHALL HAVE BEEN
NOTIFIED PURSUANT TO SECTION 12.2; AND
------------
(iv) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT
SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT TO ▇▇▇ IN ANY OTHER JURISDICTION.
76
(b) THE BORROWER AND EACH SUBSIDIARY WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION
OR PROCEEDING REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
12.13 Acknowledgements. The Borrower and each Restricted
----------------
Subsidiary hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower or any Subsidiary arising out of
or in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Administrative Agent and the Lenders, on
one hand, and the Borrower or any Subsidiary, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among the Borrower, the Subsidiaries and the Lenders.
12.14 WAIVERS OF JURY TRIAL. THE BORROWER, THE SUBSIDIARIES, THE
---------------------
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
12.15 Confidentiality. Each Lender agrees to keep confidential
---------------
all non-public information provided to it by or on behalf of the Borrower or any
of the Restricted Subsidiaries pursuant to this Agreement or any other Loan
Document; provided that nothing herein shall prevent any Lender from disclosing
--------
any such information (i) to the Administrative Agent or any other Lender, (ii)
to any Assignee or Participant, (iii) to its employees, directors, agents,
attorneys, accountants and other professional advisors, (iv) upon demand of any
Governmental Authority having jurisdiction over such Lender, (v) in response to
any order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (vi) which has been publicly
disclosed other than in breach of this Agreement, or (vii) in connection with
the exercise of any remedy hereunder.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.
SIGNATURE PAGES FOLLOW.]
77
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
▇▇▇▇▇ CABLE HOLDINGS II, INC.
By: /s/ J. ▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: J. ▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Treasurer
---------------------------------
The Administrative Agent, the Documentation
-------------------------------------------
Agent and the Syndication Agent:
-------------------------------
THE BANK OF NOVA SCOTIA,
as the Administrative Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Authorized Signatory
---------------------------------
NATIONSBANK OF TEXAS, N.A.,
as the Documentation Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
SOCIETE GENERALE,
as the Syndication Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
The Managing Agents and the Lenders:
-----------------------------------
THE BANK OF NOVA SCOTIA, as a
Managing Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Authorized Signatory
---------------------------------
NATIONSBANK OF TEXAS, N.A., as a
Managing Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
SOCIETE GENERALE, as a Managing Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
The Co-Agents and the Lenders:
-----------------------------
CORESTATES BANK, N.A., as a Co-Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Assistant Vice President
---------------------------------
CREDIT LYONNAIS NEW YORK
BRANCH, as a Co-Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
PNC BANK, NATIONAL ASSOCIATION,
as a Co-Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Banking Officer
---------------------------------
MELLON BANK, N.A., as a Co-Agent and as
a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
ROYAL BANK OF CANADA, as a Co-Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Senior Manager
---------------------------------
THE CHASE MANHATTAN BANK,
as a Co-Agent and as a Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
TORONTO DOMINION (TEXAS), INC.,
as a Co-Agent and as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
BANQUE PARIBAS, as a Co-Agent and as a
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
BANK OF AMERICA, as a Co-Agent and as
a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
ABN AMRO BANK N.V., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
By: /s/ ▇▇▇▇ ▇. Honda
------------------------------------
Name: ▇▇▇▇ ▇. Honda
----------------------------------
Title: Vice President
---------------------------------
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
---------------------------------
CREDIT AGRICOLE, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Title: Head of Corporate Banking
---------------------------------
THE DAI-ICHI KANGYO BANK, LTD.,
as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Title: Joint General Manager
---------------------------------
FIRST HAWAIIAN BANK, as a Lender
By: /s/
------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
THE FIRST NATIONAL BANK OF
MARYLAND, as a Lender
By: /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
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BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as a Lender
By: /s/ Augustine Chance Jr.
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Name: Augustine Chance Jr.
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Title: Vice President
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SAKURA BANK, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
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Title: Senior Vice President
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THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY,
as a Lender
By: /s/ Genchi Imai
-------------------------------------
Name: Genchi Imai
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Title: Joint General Manager
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THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Lender
By: /s/ Shusai Nagai
------------------------------------
Name: Shusai Nagai
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Title: General Manager
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COLORADO NATIONAL BANK, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Vice President
---------------------------------
THE FUJI BANK, LIMITED, LOS ANGELES
AGENCY, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Title: Joint General Manager
---------------------------------