THIS PAGE MUST BE KEPT WITH THE DOCUMENT.
AMENDED AND RESTATED LOAN AGREEMENT
04/25/97 12:58 pm
Exhibit 10.1
AMENDED AND RESTATED
LOAN AGREEMENT
AMONG
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P., AS BORROWER,
TORONTO DOMINION (TEXAS), INC. AND CHEMICAL BANK,
AS DOCUMENTATION AGENTS,
TORONTO DOMINION (TEXAS), INC.,
CHEMICAL BANK, CIBC INC.,
CREDIT LYONNAIS CAYMAN ISLAND BRANCH AND
NATIONSBANK, N.A. (CAROLINAS),
AS MANAGING AGENTS,
BANQUE PARIBAS AND UNION BANK,
AS CO-AGENTS,
THE SIGNATORY BANKS HERETO
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT
As of September 29, 1995
INDEX
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Page
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RECITALS ................................................ 1
ARTICLE 1 Definitions..................................... 3
ARTICLE 2 Loans........................................... 24
2.1 The Loans....................................... 24
2.2 Manner of Borrowing and Disbursement............ 25
2.3 Interest........................................ 28
2.4 Commitment Fee.................................. 30
2.5 Revolving Loan Commitment Reductions............ 31
2.6 Prepayment...................................... 32
2.7 Repayment....................................... 32
2.8 Notes; Loan Accounts............................ 35
2.9 Manner of Payment............................... 35
2.10 Reimbursement................................... 37
2.11 Pro Rata Treatment.............................. 38
2.12 Capital Adequacy................................ 39
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Page
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ARTICLE 3 Conditions Precedent............................ 40
3.1 Conditions Precedent to Initial Advance and
Closing......................................... 40
3.2 Conditions Precedent to Each Advance............ 43
ARTICLE 4 Representations and Warranties.................. 44
4.1 Representations and Warranties.................. 44
4.2 Survival of Representations and Warranties,
etc............................................. 52
ARTICLE 5 General Covenants............................... 52
5.1 Preservation of Existence and Similar Matters... 53
5.2 Business; Compliance with Applicable Law........ 53
5.3 Maintenance of Properties....................... 53
5.4 Accounting Methods and Financial Records........ 53
5.5 Insurance....................................... 54
5.6 Payment of Taxes and Claims..................... 54
5.7 Visits and Inspections.......................... 55
5.8 Payment of Indebtedness; Loans.................. 55
5.9 Use of Proceeds................................. 55
5.10 Management Services............................. 55
5.11 Indemnity....................................... 55
5.12 Interest Rate Hedging........................... 56
5.13 Covenants Regarding Formation of Subsidiaries... 56
5.14 Payment of Wages................................ 57
ARTICLE 6 Information Covenants........................... 58
6.1 Quarterly Financial Statements and Information.. 58
6.2 Annual Financial Statements and Information;
Certificate of No Default....................... 58
6.3 Monthly Operating Reports....................... 59
6.4 Performance Certificates........................ 59
6.5 Copies of Other Reports......................... 60
6.6 Notice of Litigation and Other Matters.......... 62
ARTICLE 7 Negative Covenants.............................. 63
7.1 Indebtedness of the Borrower.................... 63
7.2 Limitation on Liens............................. 64
7.3 Amendment and Waiver............................ 64
7.4 Liquidation, Change in Ownership, Disposition
or Acquisition of Assets........................ 65
7.5 Limitation on Guaranties........................ 66
7.6 Investments..................................... 67
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Page
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7.7 Restricted Payments and Purchases............... 67
7.8 Leverage Ratio.................................. 69
7.9 Annualized Operating Cash Flow to Fixed Charges
Ratio........................................... 69
7.10 Annualized Operating Cash Flow to Pro Forma
Debt Service.................................... 70
7.11 Affiliate Transactions.......................... 70
7.12 Real Estate..................................... 70
7.13 Limitation on Leases............................ 70
7.14 ERISA Liabilities............................... 71
7.15 Capital Expenditures............................ 71
7.16 No Limitation on Upstream Dividends by
Subsidiaries.................................... 71
ARTICLE 8 Default......................................... 72
8.1 Events of Default............................... 72
8.2 Remedies........................................ 78
ARTICLE 9 The Agents...................................... 79
9.1 Appointment and Authorization................... 79
9.2 Interest Holders................................ 80
9.3 Consultation with Counsel....................... 80
9.4 Documents....................................... 80
9.5 Agents and Affiliates........................... 80
9.6 Responsibilities of the......................... 80
9.7 Collateral...................................... 81
9.8 Action by the Administrative Agent.............. 81
9.9 Notice of Default or Event of Default........... 81
9.10 Responsibility Disclaimed....................... 82
9.11 Indemnification................................. 82
9.12 Credit Decision................................. 83
9.13 Successor Administrative Agent and
Documentation Agents............................ 83
9.14 Managing Agents................................. 84
9.15 Co-Agents....................................... 84
ARTICLE 10 Change in Circumstances Affecting Fixed Rate
Advances........................................ 84
10.1 Fixed Rate Basis Determination Inadequate or
Unfair.......................................... 84
10.2 Illegality...................................... 84
10.3 Increased Costs................................. 85
10.4 Effects on Other Advances....................... 86
10.5 Claims for Increased Costs and Taxes............ 87
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Page
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ARTICLE 11 Miscellaneous................................... 87
11.1 Notices......................................... 87
11.2 Expenses........................................ 90
11.3 Waivers......................................... 91
11.4 Set-Off......................................... 92
11.5 Assignment...................................... 92
11.6 Accounting Principles; Calculations............. 94
11.7 Counterparts.................................... 95
11.8 Governing Law................................... 95
11.9 Severability.................................... 95
11.10 Interest........................................ 95
11.11 Headings........................................ 96
11.12 Amendment and Waiver............................ 96
11.13 Entire Agreement................................ 97
11.14 Other Relationships............................. 97
11.15 Agreement to Transfer and Consent............... 97
ARTICLE 12 Waiver of Jury Trial............................ 98
12.1 Waiver of Jury Trial............................ 98
EXHIBITS
Exhibit A - Form of Assignment of Rights by General Partner
Exhibit B - Form of Assignment of Rights by Limited Partner
Exhibit C - Form of Certificate of Financial Condition
Exhibit D - Form of Request for Advance
Exhibit E - Form of Revolving Loan Notes
Exhibit F - Form of Security Agreement
Exhibit G - Form of Subordination Agreement
Exhibit H - Form of Subordination of Management and Financial Advisory
Fees Agreement
Exhibit I - Form of Term Loan Notes
Exhibit J - Form of General Partner Loan Certificate
Exhibit K - Form of Limited Partners Loan Certificate
Exhibit L - Form of Manager Loan Certificate
Exhibit M - Form of Monthly Operating Report
Exhibit N - Form of Assignment and Assumption Agreement
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SCHEDULES
Schedule 1 - Licenses
Schedule 2 - Pole Agreements
Schedule 3 - Subsidiaries
Schedule 4 - Overbuilding
Schedule 5 - Lien Search Results
Schedule 6 - Real Property
Schedule 7 - Litigation
Schedule 8 - Agreements with Affiliates
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AMENDED AND RESTATED
LOAN AGREEMENT
BY AND AMONG
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P. (THE "BORROWER"),
TORONTO DOMINION (TEXAS), INC. AND CHEMICAL BANK,
AS DOCUMENTATION AGENTS,
(THE "DOCUMENTATION AGENTS"),
TORONTO DOMINION (TEXAS), INC.,
CHEMICAL BANK, CIBC INC.,
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
AND NATIONSBANK, N.A. (CAROLINAS),
AS MANAGING AGENTS (THE "MANAGING AGENTS"),
BANQUE PARIBAS AND UNION BANK,
as CO-AGENTS (THE "CO-AGENTS"),
THE SIGNATORY BANKS HERETO (THE "BANKS")
AND
TORONTO DOMINION (TEXAS), INC.,
AS ADMINISTRATIVE AGENT (THE "ADMINISTRATIVE AGENT"),
RECITALS
WHEREAS, CCA Acquisition Corp., a Delaware corporation (the "General
Partner"), the Documentation Agents, the Managing Agents, the Co-Agents, the
Administrative Agent and the Banks are all parties to that certain Loan
Agreement dated as of January 18, 1995 (the "Prior Loan Agreement"); and
WHEREAS, pursuant to this Agreement, the Documentation Agents, the Managing
Agents, the Co-Agents, the Administrative Agent and the Banks have consented to
the transfer on the Agreement Date (as defined herein) of substantially all of
the assets and all of the liabilities of the General Partner, other than the
General Partner's ownership of the stock of Cencom (as defined herein),
including, without limitation, the General Partner's liabilities under the Prior
Loan Agreement, to CCELP (as defined herein) and to the transfer on the
Agreement Date of the remainder of the General Partner's assets (other than the
General Partner's ownership of the stock of Cencom) to CCT (as defined herein),
all of which assets and liabilities shall be transferred by CCELP and CCT,
respectively, to the Borrower on the Agreement Date; and
WHEREAS, pursuant to this Agreement, the Documentation Agents, the Managing
Agents, the Co-Agents, the Administrative Agent and the Banks have consented to
the transfer on the Agreement Date of all assets and liabilities of Cencom to
CCELP, which assets and liabilities shall be transferred on the Agreement Date
to the Borrower; and
WHEREAS, immediately upon the transfer to CCELP and CCT of all of the
assets and liabilities of the General Partner and Cencom, as described above,
CCELP and CCT shall transfer all such assets and liabilities to the Borrower;
and
WHEREAS, pursuant to this Agreement, the Borrower has agreed, effective
upon completion of the transfer of all assets and liabilities from the General
Partner and Cencom to CCELP and CCT and the subsequent transfer of all such
assets and liabilities to the Borrower, to assume the Obligations (as defined in
the Prior Loan Agreement) of the General Partner and to be bound by all of the
terms and conditions set forth in the Prior Loan Agreement; and
WHEREAS, the Documentation Agents, the Managing Agents, the Co-Agents, the
Administrative Agent and the Banks have agreed to amend and restate the Prior
Loan Agreement in its entirety as set forth herein; and
WHEREAS, the Borrower acknowledges and agrees that the Security Interest
(as defined in the Prior Loan Agreement) granted to the Banks pursuant to the
Prior Loan Agreement, shall remain outstanding and in full force and effect in
accordance with the Prior Loan Agreement and shall continue to secure the
Obligations (as defined herein); and
WHEREAS, the Borrower acknowledges and agrees that (i) the Obligations (as
defined herein) represent, among other things, the amendment, restatement,
renewal, extension, consolidation and modification of the Obligations (as
defined in the Prior Loan Agreement) arising in connection with the Prior Loan
Agreement and the other Loan Documents (as defined in the Prior Loan Agreement)
executed in connection therewith; (ii) the parties hereto intend that the Prior
Loan Agreement and the other Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith and the collateral pledged
thereunder shall secure, without interruption or impairment of any kind, all
existing Indebtedness under the Prior Loan Agreement and the other Loan
Documents (as defined in the Prior Loan Agreement) executed in connection
therewith as so amended, restated, renewed, extended, consolidated and modified
hereunder, together with all other Obligations hereunder; (iii) all Liens
evidenced by the Prior Loan Agreement and the other Loan Documents (as defined
in the Prior Loan Agreement) executed in connection therewith are hereby
ratified, confirmed and continued; and (iv) the Loan Documents (as defined
herein) are intended to restate, renew, extend, consolidate, amend and modify
the Prior Loan Agreement and the other Loan Documents (as defined in the Prior
Loan Agreement) executed in connection therewith; and
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WHEREAS, the parties hereto intend that (i) the provisions of the Prior
Loan Agreement and the other Loan Documents (as defined in the Prior Loan
Agreement) executed in connection therewith, to the extent restated, renewed,
extended, consolidated, amended and modified hereby, are hereby superseded and
replaced by the provisions hereof and of the Loan Documents (as defined herein);
and (ii) the Notes (as hereinafter defined) amend, renew, extend, modify,
replace, are substituted for and supersede in their entirety, but do not
extinguish the indebtedness arising under, the promissory notes issued pursuant
to the Prior Loan Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto, the
parties hereby amend and restate the Prior Loan Agreement as follows:
ARTICLE 1
Definitions
-----------
For the purposes of this Agreement:
"Administrative Agent" shall mean Toronto Dominion (Texas), Inc., a
--------------------
Delaware corporation, acting as administrative agent for the other Agents and
the Banks.
"Administrative Agent's Office" shall mean the office of the Administrative
-----------------------------
Agent located at Toronto Dominion (Texas), Inc., ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or such other office as may be designated pursuant to the
provisions of Section 11.1 of this Agreement.
"Advance" or "Advances" shall mean amounts advanced by the Banks to the
------- --------
Borrower pursuant to Article 2 hereof on the occasion of any borrowing.
"Affiliate" shall mean any Person directly or indirectly controlling,
---------
controlled by, or under common control with, the Borrower. For purposes of this
definition, "control" when used with respect to any Person includes, without
limitation, the direct or indirect beneficial ownership of more than five
percent (5%) of the voting securities or voting equity of such Person or the
power to direct or cause the direction of the management and policies of such
Person, whether by contract or otherwise.
"Agents" shall mean, collectively, the Documentation Agents, the Managing
------
Agents, the Co-Agents and the Administrative Agent.
-3-
"Agreement" shall mean this Amended and Restated Loan Agreement.
---------
"Agreement Date" shall mean the date as of which this Agreement is dated.
--------------
"Annual Excess Cash Flow" shall mean, for any fiscal year of the Borrower
-----------------------
and its Subsidiaries on a consolidated basis, as determined based upon the
audited annual financial statements for such year required to be provided under
Section 6.2 hereof, the remainder of (a) the Operating Cash Flow for such year,
but without giving effect to the last sentence of the definition of "Operating
Cash Flow," less (b) the sum, without duplication, of the following items for
such year: (i) Capital Expenditures made; (ii) management fees and expenses
paid in cash to the Manager pursuant to the Financial Advisory Agreement; (iii)
financial advisory fees and expenses paid in cash to ▇▇▇▇▇ pursuant to the
Financial Advisory Agreement; (iv) cash Interest Expense paid; (v) scheduled
repayments of principal on Indebtedness for Money Borrowed to the extent
actually paid, which shall mean, with respect to the Loans, principal payments
required pursuant to Sections 2.5(a) and 2.7(a) hereof; (vi) scheduled payments
under Capitalized Lease Obligations to the extent actually paid; (vii) voluntary
prepayments of the Term Loan under Section 2.6 hereof; (viii) voluntary
prepayments of the Revolving Loans under Section 2.6 hereof, provided that there
is a corresponding reduction of the Revolving Loan Commitment; and (ix) Tax
Distributions made with respect to such fiscal year.
"Annualized Operating Cash Flow" shall mean an amount equal to Operating
------------------------------
Cash Flow for the calendar quarter specified, multiplied by four (4).
"Applicable Law" shall mean, in respect of any Person, all provisions of
--------------
constitutions, statutes, rules, regulations and orders of governmental bodies or
regulatory agencies applicable to such Person, including, without limiting the
foregoing, the Licenses, the Federal Communications Act of 1934 and Title 47 of
the United States Code, and all orders and decrees of all courts and arbitrators
in proceedings or actions to which the Person in question is a party or by which
it is bound.
"Applicable Margin" shall mean the interest rate margin applicable to Base
-----------------
Rate Advances, LIBOR Advances and CD Rate Advances, as the case may be, in each
case determined in accordance with Section 2.3(g) hereof.
"Assessment Rate" shall mean, for any Interest Period for a CD Rate
---------------
Advance, the highest current annual assessment rate (rounded upward, if
necessary, to the nearest hundredth (1/100th)
-4-
of one percent) payable by any Bank which is a bank to the Federal Deposit
Insurance Corporation (or any successor) for insuring time deposits made in
dollars at offices of such Bank in the United States as determined by the
Administrative Agent on the first day of such Interest Period.
"Asset Sales" shall have the meaning ascribed to such term in Section
-----------
2.7(b) hereof.
"Assignment of Rights by General Partner" shall mean that certain
---------------------------------------
Assignment of Rights by General Partner between CCA Holdings Corp., a Delaware
corporation, which is the sole general partner of the Borrower, on the one hand,
and the Administrative Agent, on the other hand, substantially in the form of
Exhibit A attached hereto.
---------
"Assignment of Rights by Limited Partner" shall mean, collectively, the
---------------------------------------
Assignment of Rights by Limited Partner between CCT, which is a limited partner
of the Borrower, on the one hand, and the Administrative Agent, on the other
hand, and the Assignment of Rights by Limited Partner between CCELP, which is a
limited partner of the Borrower, on the one hand, and the Administrative Agent,
on the other hand, each one substantially in the form of Exhibit B attached
---------
hereto.
"Authorized Officer" shall mean any officer of the Borrower holding the
------------------
office of Vice President or above.
"Authorized Signatory" shall mean such senior officer of the General
--------------------
Partner as may be duly authorized and designated in writing by the General
Partner to execute documents, agreements and instruments on behalf of the
Borrower or any of its Subsidiaries, as applicable.
"Banks" shall mean those financial institutions whose names are set forth
-----
on the signature pages hereof as "Banks" and any assignees thereof pursuant to
and in accordance with Section 11.5 hereof; and "Bank" shall mean any one of the
----
foregoing Banks.
"Base Rate" shall mean, at any time, the greater of (a) the rate of
---------
interest adopted by The Toronto-Dominion Bank as its reference rate for the
determination of interest rates for loans of varying maturities in United States
dollars to United States residents of varying degrees of creditworthiness and
being quoted at such time by The Toronto-Dominion Bank as its "prime rate," and
(b) the sum of (i) the Federal Funds Rate and (ii) five-eighths of one percent
(5/8%). The Base Rate is not necessarily the lowest rate of interest charged to
borrowers of The Toronto-Dominion Bank.
-5-
"Base Rate Advance" shall mean an Advance which the Borrower requests to be
-----------------
made as a Base Rate Advance or is reborrowed as a Base Rate Advance in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $1,000,000 and in an integral multiple of $100,000,
except for a Base Rate Advance which is in an amount equal to the unused amount
of the Term Loan Commitment or the Revolving Loan Commitment, which Advance may
be in such amount, as applicable.
"Base Rate Basis" shall mean a simple interest rate equal to the sum of (a)
---------------
the Base Rate and (b) the Applicable Margin. The Base Rate Basis shall be
adjusted automatically as of the opening of business on the effective date of
each change in the Base Rate and the Applicable Margin to account for such
changes.
"Basic Subscriber" shall mean a dwelling unit, including an apartment which
----------------
is separately billed for cable television services within an apartment building,
in respect of which the Borrower or any of its Subsidiaries has in effect an
agreement to provide one or more of the basic cable television subscription
services offered by the Borrower or such Subsidiary and for which the Borrower
or any of its Subsidiaries or, during the period prior to the Agreement Date,
the General Partner, has received at least one full month's payment at the rate
customarily charged by such Person within the applicable franchise area, except
for those dwelling units for which payment is more than sixty (60) days past
due, or for which notices of termination of service have been sent by the
Borrower, any such Subsidiary, the General Partner or the customer. As to bulk
subscribers, such as hotels, motels, and apartments, billed on a bulk basis, the
number of Basic Subscribers for the Borrower and its Subsidiaries shall be
computed by dividing the monthly basic cable revenues received by the Borrower
and its Subsidiaries from any such bulk subscribers by the average monthly
subscription price received by the Borrower and its Subsidiaries from other
Basic Subscribers within the portion of the System serving such bulk subscriber.
"Borrower" shall mean Charter Communications Entertainment I, L.P., a
--------
Delaware limited partnership, having the General Partner as its sole general
partner and the Limited Partners as its sole limited partners.
"Business Day" shall mean a day on which banks and foreign exchange markets
------------
are open for the transaction of business required for this Agreement in London,
England, St. Louis, Missouri, Houston, Texas and New York, New York, as relevant
to the determination to be made or the action to be taken.
"Capital Expenditures" shall mean, in respect of any Person, expenditures
--------------------
for the purchase or construction of fixed assets,
-6-
plant and equipment which are capitalized in accordance with GAAP.
"Capitalized Lease Obligation" shall mean that portion of any obligation of
----------------------------
a Person as lessee under a lease which at the time would be required to be
capitalized on the balance sheet of such lessee in accordance with GAAP.
"CCELP" shall mean Charter Communications Entertainment, L.P., a Delaware
-----
limited partnership.
"CCT" shall mean CCT Holdings Corp., a Delaware corporation.
---
"CD Rate" shall mean, for any Interest Period, the interest rate per annum
-------
determined by the Administrative Agent to be the average of the prevailing rates
bid at 10:00 a.m. (New York time) or as soon thereafter as practicable, on the
Business Day on which the relevant Interest Period commences, by two or more New
York certificate of deposit dealers of recognized standing for the purchase at
face value from each of the Reference Banks of its certificates of deposit
having a maturity comparable to the duration of the Interest Period and in the
amount of the CD Rate Advance requested by the Borrower.
"CD Rate Advance" shall mean an Advance which the Borrower requests to be
---------------
made as a CD Rate Advance or which is reborrowed as a CD Rate Advance, in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $1,000,000.00 and in an integral multiple of
$100,000.00.
"CD Rate Basis" shall mean a simple per annum interest rate (rounded
-------------
upward, if necessary, to the nearest one-hundredth (1/100th) of one percent)
equal to the sum of (a) the quotient of (i) the CD Rate divided by (ii) one
minus the Domestic Reserve Percentage, stated as a decimal, plus (b) the
Assessment Rate, plus (c) the Applicable Margin. The CD Rate Basis shall apply
to Interest Periods of thirty (30), sixty (60), ninety (90), one hundred eighty
(180), two hundred seventy (270) and, subject to availability as determined by
the Administrative Agent, three hundred sixty (360) days and, once determined,
shall remain unchanged during the applicable Interest Period, except for changes
to reflect adjustments in the Domestic Reserve Percentage, the Applicable
Margin, and the Assessment Rate.
"Cencom" shall mean Cencom Cable Entertainment, Inc., a Delaware
------
corporation.
"Certificate of Financial Condition" shall mean a certificate of financial
----------------------------------
condition of the Borrower and its
-7-
Subsidiaries on a consolidated basis, substantially in the form of Exhibit C
---------
attached hereto, and signed by an Authorized Signatory of the Borrower.
"Charter Communications Group" shall mean Charter Communications Group, a
----------------------------
Missouri general partnership.
"Co-Agents" shall mean Banque Paribas and Union Bank, and "Co-Agent" shall
--------- --------
mean any one of the foregoing Co-Agents.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
----
to time.
"Collateral" shall mean any property of any kind constituting collateral
----------
for the Obligations under this Agreement or any of the Security Documents.
"Commission" shall mean the Federal Communications Commission or any
----------
successor thereto.
"Commitment Ratios" shall mean the percentages in which the Banks are
-----------------
severally bound to make Advances to the Borrower under the Revolving Loan
Commitment and in which the Banks made the Term Loan, as set forth below
(together with dollar amounts) as of the Agreement Date:
Portion of Revolving Term Loan Revolving Loan
Term Loan Loan Total Dollar Commitment Commitment
Banks Commitment Commitment Commitment Ratio Ratio
----------------------------- -------------- ------------- ------------ ------------- ---------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇▇), $ 9,856,000.01 $ 703,999.99 $ 10,560,000 3.520000001% 3.519999983%
Inc.
Chemical Bank 13,189,333.33 2,370,666.67 15,560,000 4.710476190% 11.853333333%
CIBC Inc. 33,189,333.33 2,370,666.67 35,560,000 11.853333333% 11.853333333%
Credit Lyonnais Cayman 33,189,333.33 2,370,666.67 35,560,000 11.853333333% 11.853333333%
Island Branch
NationsBank, N.A. 33,189,333.33 2,370,666.67 35,560,000 11.853333333% 11.853333333%
(Carolinas)
Banque Paribas 19,026,666.67 2,073,333.33 21,100,000 6.795238095% 10.366666667%
Union Bank 29,026,666.67 2,073,333.33 31,100,000 10.366666667% 10.366666667%
CoreStates Bank, N.A. 14,000,000.00 1,000,000.00 15,000,000 5.000000000% 5.000000000%
The Long-Term Credit 14,000,000.00 1,000,000.00 15,000,000 5.000000000% 5.000000000%
Bank of Japan, Ltd.
Mercantile Bank of St. 14,000,000.00 1,000,000.00 15,000,000 5.000000000% 5.000000000%
Louis National Association
-8-
Portion of Revolving Term Loan Revolving Loan
Term Loan Loan Total Dollar Commitment Commitment
Banks Commitment Commitment Commitment Ratio Ratio
----------------------------- -------------- ------------- ------------ ------------- ---------------
NatWest Bank N.A. 14,000,000.00 1,000,000.00 15,000,000 5.000000000% 5.000000000%
First National Bank of 14,000,000.00 1,000,000.00 15,000,000 5.000000000% 5.000000000%
Maryland
Van ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Prime 30,000,000.00 0.00 30,000,000 10.714285714% 0.000000000%
Rate Income Trust
Banque Francaise du 9,333,333.33 666,666.67 10,000,000 3.333333332% 3.333333350%
Commerce Exterieur
===========================================================================
Total $ 280,000,000 $ 20,000,000 $300,000,000 100% 100%
"Commitments" shall mean, collectively, the Term Loan Commitment and the
-----------
Revolving Loan Commitment.
"Default" shall mean any Event of Default, and any of the events specified
-------
in Section 8.1 hereof regardless of whether there shall have occurred any
passage of time or giving of notice or both that would be necessary for such
event to be an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to the sum
------------
of (a) the Base Rate Basis (calculated using the highest Applicable Margin for
the Base Rate Basis set forth in Section 2.3(g) hereof, without giving effect to
the Leverage Ratio then in effect) plus (b) two percent (2%).
"Documentation Agents" shall mean Toronto Dominion (Texas), Inc. and
--------------------
Chemical Bank, and "Documentation Agent" shall mean either one of the foregoing
-------------------
Documentation Agents.
"Domestic Reserve Percentage" shall mean, for any day, the percentage which
---------------------------
is in effect on such day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor thereto) for determining the maximum reserve
requirement (including, without limitation, any basic, supplemental, emergency
or marginal reserves) for a member bank of the Federal Reserve System with
deposits exceeding $5 billion in respect of new non-personal time deposits in
dollars in the United States having a maturity comparable to the duration of the
Interest Period and in an amount of $250,000.00 or more. The CD Rate Basis for
any CD Rate Advance shall be adjusted automatically on and as of the effective
date of any change in the Domestic Reserve Percentage.
-9-
"Environmental Laws" shall mean all environmental, health and safety laws,
------------------
regulations, resolutions, and ordinances applicable to the Borrower or any of
its Subsidiaries, or any of their respective assets or properties, including,
without limitation, all laws, regulations, resolutions, ordinances and decrees
relating to the release of any toxic or hazardous waste or other chemical
substance, pollutant or contaminant into the environment or the generation,
treatment, storage or disposal of any toxic or Hazardous Substances.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
-----
in effect on the Agreement Date and as amended thereafter from time to time.
"Event of Default" shall mean any of the events specified in Section 8.1
----------------
hereof, provided that any requirement for notice or lapse of time has been
satisfied.
"Federal Funds Rate" shall mean, as of any date, the weighted average of
------------------
the rates on overnight federal funds transactions with the members of the
Federal Reserve System arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the quotations for such day
on such transactions received by the Administrative Agent from three (3) federal
funds brokers of recognized standing selected by the Administrative Agent.
"Financial Advisory Agreement" shall mean that certain Financial Advisory
----------------------------
Agreement dated as of the Agreement Date between ▇▇▇▇▇ and the Borrower, whereby
▇▇▇▇▇ agrees to provide financial advisory services to the Borrower and its
Subsidiaries.
"Fixed Charges" shall mean with respect to the Borrower and its
-------------
Subsidiaries on a consolidated basis, for any period, without duplication, the
sum of (a) cash Interest Expense paid during such period, (b) Capital
Expenditures made during such period, (c) scheduled payments of principal made
on its Indebtedness for Money Borrowed during such period to the extent actually
paid, which shall mean, with respect to the Loans, principal required to be paid
pursuant to Sections 2.5(a) and 2.7(a) hereof and, with respect to the Revolving
Loans in particular, the principal amount required to be paid with respect
thereto during any such period shall be deemed to be the difference, if
positive, between (i) the aggregate principal amount of the Revolving Loans
outstanding on the first day of such period, and (ii) the amount of the
Revolving Loan Commitment on the last day of such period, (d) Tax Distributions
made during such period, (e) management
-10-
fees and expenses paid in cash to the Manager during such period, (f) financial
advisory fees and expenses paid in cash to ▇▇▇▇▇ during such period, and (g) the
portion of scheduled payments with respect to Capitalized Lease Obligations
which constitutes imputed principal for such period to the extent actually paid.
"Fixed Rate Advances" shall mean LIBOR Advances and CD Rate Advances.
-------------------
"GAAP" shall mean, as in effect from time to time, generally accepted
----
accounting principles in the United States, consistently applied.
"General Partner" shall mean CCA Acquisition Corp., a Delaware corporation.
---------------
"Guaranty" or "Guaranteed," as applied to an obligation, shall mean and
-------- ----------
include (a) a guaranty, direct or indirect, in any manner, of any part or all of
such obligation or (b) any other agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of any part
or all of such obligation, including, without limiting the foregoing, any
reimbursement obligations as to amounts drawn down by beneficiaries of
outstanding letters of credit.
"Hallmark Subordinated Debt" shall have the meaning ascribed to the term
--------------------------
"Subordinated Debt" in the Subordination Agreement.
"Hazardous Substance" shall mean any hazardous substance, hazardous or
-------------------
toxic waste, hazardous material, pollutant or contaminant, as those or similar
terms are used in the Environmental Laws and shall include, without limitation,
asbestos and asbestos-related products, chlorofluorocarbons, oils or petroleum-
derived compounds, polychlorinated biphenyls, pesticides and radon.
"Holdings" shall mean CCA Holdings Corp., a Delaware corporation.
--------
"Indebtedness" shall mean, with respect to any Person, without duplication,
------------
the sum of (a) all items, which, in accordance with GAAP, would be included in
determining total liabilities as shown on the liability side of a balance sheet
of such Person, except (i) accounts payable which by their terms are less than
sixty (60) days past due or which are being contested in good faith and as to
which adequate reserves shall have been set aside in accordance with GAAP, if
any such reserves are so required to be set aside in accordance with GAAP, (ii)
items of
-11-
stockholders' equity or capital stock or surplus, or (iii) items of general
contingency or deferred tax reserves, (b) all direct or indirect obligations
secured by any Lien to which any property or asset owned by such Person is
subject (but if the obligation secured thereby shall not have been assumed, then
only to the extent of the higher of the fair market value or the book value of
the property or asset subject to such Lien), (c) all Capitalized Lease
Obligations of such Person and all obligations of such Person with respect to
leases constituting part of a sale and lease-back arrangement, (d) all
reimbursement obligations with respect to outstanding letters of credit, and (e)
all obligations of such Person under Interest Rate Hedge Agreements.
"Indebtedness for Money Borrowed" shall mean, with respect to any Person,
-------------------------------
money borrowed and Indebtedness represented by notes payable and drafts accepted
representing extensions of credit, all obligations evidenced by bonds,
debentures, notes or other similar instruments, all Indebtedness upon which
interest charges are customarily paid, and all Indebtedness issued or assumed as
full or partial payment for property or services, whether or not any such notes,
drafts, obligations or Indebtedness represent Indebtedness for money borrowed.
For purposes of this definition, interest which is accrued but not paid on the
original due date for such interest shall be deemed Indebtedness for Money
Borrowed. Where obligations are evidenced by bonds, debentures, notes or other
similar instruments whose face amount exceeds the amount received by such Person
with respect thereto, only the amount received plus debt discount amortized as
of the calculation date need be taken into account as Indebtedness for Money
Borrowed.
"Interest Expense" shall mean, for any period, the aggregate amount of all
----------------
interest paid or accrued, as well as fees payable to the Agents and the Banks
hereunder, in respect of Indebtedness for Money Borrowed and the portion of
payments under Capitalized Lease Obligations which constitutes imputed interest,
in each case, of the Borrower and its Subsidiaries on a consolidated basis
during such period as determined in accordance with GAAP.
"Interest Period" shall mean, (a) in connection with any Base Rate Advance,
---------------
the period beginning on the date of such Advance is made and ending on the last
day of the quarter (based upon quarters ending December 31, March 31, June 30,
and September 30) in which such Advance is made, provided, however, that if a
Base Rate Advance is made on the last day of any such quarter, it shall have an
Interest Period ending on, and its Payment Date shall be, the last day of the
following such quarter (based upon quarters ending December 31, March 31, June
30, and September 30); and (b) in connection with any Fixed Advance, the term of
such Advance selected by the Borrower or otherwise
-12-
determined in accordance with this Agreement. Notwithstanding the foregoing,
however, (i) any applicable Interest Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day unless, with respect to LIBOR Advances only, such Business Day falls in
another calendar month, in which case such Interest Period shall end on the next
preceding Business Day, (ii) any applicable Interest Period, with respect to
LIBOR Advances only, which begins on a day for which there is no numerically
corresponding day in the calendar month during which such Interest Period is to
end shall (subject to clause (i) above) end on the last day of such calendar
month, and (iii) no Interest Period shall extend beyond the Maturity Date or
such earlier date as would cause the Borrower to incur reimbursement obligations
under Section 2.10 hereof in light of the Borrower's scheduled repayment
obligations under Sections 2.5 and 2.7 hereof. Interest shall be due and
payable with respect to any Advance as provided in Section 2.3 hereof.
"Interest Rate Basis" shall mean the Base Rate Basis, the LIBOR Basis, or
-------------------
the CD Rate Basis, as appropriate.
"Interest Rate Hedge Agreement" shall mean the obligations of any Person
-----------------------------
pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest on
a stated notional amount in exchange for periodic payments made by such other
Person calculated by applying a fixed or a floating rate of interest on the same
notional amount and shall also include, without limitation, interest rate swaps,
caps, swaptions, captions, floors, collars and similar agreements.
"ISDA" shall mean the International Swap Dealers Association.
----
"▇▇▇▇▇" shall mean ▇▇▇▇▇ & Company, L.P., a Delaware limited partnership.
-----
"Leverage Ratio" shall mean the ratio of Total Debt as of a specified date
--------------
to Annualized Operating Cash Flow for the most recent fiscal quarter for which
financial statements are required to have been delivered pursuant to Section 6.1
hereof.
"LIBOR" shall mean, for any Interest Period, the average (rounded upward to
-----
the nearest one-sixteenth (1/16th) of one percent) of the interest rates per
annum at which deposits in United States dollars for such Interest Period are
offered to the Reference Banks, in the London interbank borrowing market at
approximately 11:00 a.m. (London time), two (2) Business Days
-13-
before the first day of such Interest Period, in an amount approximately equal
to the principal amount of, and for a length of time approximately equal to the
Interest Period for, the LIBOR Advance sought by the Borrower.
"LIBOR Advance" shall mean an Advance which the Borrower requests to be
-------------
made as a LIBOR Advance or which is reborrowed as a LIBOR Advance, in accordance
with the provisions of Section 2.2 hereof, and which shall be in a principal
amount of at least $1,000,000 and in an integral multiple of $100,000.
"LIBOR Basis" shall mean a simple per annum interest rate equal to the sum
-----------
of (a) the quotient of (i) LIBOR divided by (ii) one minus the LIBOR Reserve
Percentage, stated as a decimal, plus (b) the Applicable Margin. The LIBOR
Basis shall apply to Interest Periods of one (1), two (2), three (3), six (6),
nine (9) and, subject to availability as determined by the Administrative Agent,
twelve (12) months and, once determined, shall remain unchanged during the
applicable Interest Period, except for changes to reflect adjustments in the
LIBOR Reserve Percentage and the Applicable Margin.
"LIBOR Reserve Percentage" shall mean the percentage which is in effect
------------------------
from time to time under Regulation D of the Board of Governors of the Federal
Reserve System, as such regulation may be amended from time to time, as the
maximum reserve requirement applicable with respect to Eurocurrency Liabilities
(as that term is defined in Regulation D), whether or not any Bank has any
Eurocurrency Liabilities subject to such reserve requirement at that time. The
LIBOR Basis for any LIBOR Advance shall be adjusted as of the effective date of
any change in the LIBOR Reserve Percentage.
"Licenses" shall mean any rights, whether based upon any agreement,
--------
statute, ordinance or otherwise, granted by any governmental authority to the
Borrower or any of its Subsidiaries to own and operate cable television systems,
described as of the Agreement Date on Schedule 1 attached hereto, and any other
----------
such rights subsequently obtained by the Borrower or any of its Subsidiaries,
together with any amendment, modification or replacement with respect thereto.
"Lien" shall mean, with respect to any property, any mortgage, lien,
----
pledge, assignment, charge, security interest, title retention agreement, levy,
execution, seizure, attachment, garnishment or other encumbrance of any kind in
respect of such property, whether or not ▇▇▇▇▇▇, vested or perfected.
"Limited Partners" shall mean, collectively, CCT and CCELP.
----------------
-14-
"Loan Documents" shall mean, without limitation, this Agreement, the Notes,
--------------
the Security Documents, the Subordination of Management and Financial Advisory
Fees Agreement, the Subordination Agreement, all Requests for Advances, all
Interest Rate Hedge Agreements between the Borrower, on the one hand, and the
Banks and the Agents, or any of them, on the other hand, and all other documents
and agreements executed and delivered in connection with the making of the
Loans.
"Loans" shall mean, collectively, the Term Loan and the Revolving Loans.
-----
"Majority Banks" shall mean, at any time, (a) if there are no Loans
--------------
outstanding, Banks the total of whose Commitment Ratios equals or exceeds sixty-
six and two-thirds percent (66-2/3%), or (b) if there are Loans outstanding,
Banks the total of whose Loans outstanding equals or exceeds sixty-six and two-
thirds percent (66-2/3%) of the total principal amount of the Loans outstanding
hereunder.
"Management Agreement" shall mean any management agreement between the
--------------------
Manager and the Borrower or any of its Subsidiaries, whereby the Manager agrees
to provide management services to the Borrower or any of its Subsidiaries
regarding the daily operation of the System, including programming, development
of advertising, marketing and sales programs, supervision of construction,
preparation of financial reports, budgets, forecasts and reports to governmental
and regulatory agencies, and liaison with federal, state and local governmental
officials.
"Manager" shall mean Charter Communications, Inc., a Delaware corporation,
-------
or any assignee, successor or transferee manager of the System agreed to in
writing by the Majority Banks.
"Managing Agents" shall mean, collectively, Toronto Dominion (Texas), Inc.,
---------------
Chemical Bank, CIBC Inc., Credit Lyonnais Cayman Island Branch and NationsBank,
N.A. (Carolinas); and "Managing Agent" shall mean any one of the foregoing
--------------
Managing Agents.
"Materially Adverse Effect" shall mean any materially adverse effect upon
-------------------------
the business, assets, liabilities, financial condition, results of operations or
business prospects of the Borrower and its Subsidiaries on a consolidated basis,
taken as a whole, or upon the ability of the Borrower and its Subsidiaries to
construct, operate and maintain the System, taken as a whole, or to ensure
performance under the Licenses (taken as a whole), this Agreement or any other
Loan Document by the Borrower and its Subsidiaries, resulting from any act,
omission, situation, status, event or undertaking, either singly or taken
together.
-15-
"Maturity Date" shall mean December 31, 2003, or such earlier date as
-------------
payment of the Loans shall be due (whether by acceleration or otherwise).
"Mortgage" shall mean that certain Open-End Mortgage and Security Agreement
--------
of even date herewith given by the Borrower in favor of the Administrative
Agent, for itself and for the benefit of the Banks and the other Agents.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3)
------------------
of ERISA.
"Necessary Authorizations" shall mean all material approvals and licenses
------------------------
from, and all material filings and registrations with, any governmental or other
regulatory authority, including, without limiting the foregoing, the Licenses
and all material approvals, licenses, filings and registrations under the
Federal Communications Act of 1934, necessary in order to enable the Borrower
and its Subsidiaries to acquire, construct, maintain and operate the System.
"Net Income" shall mean, as applied to any Person for any fiscal period,
----------
the aggregate amount of net income (or net loss) of such Person, after taxes,
for such period as determined in accordance with GAAP.
"Net Proceeds" shall mean, with respect to any sale, lease, transfer, or
------------
other disposition of the assets of the Borrower or any of its Subsidiaries
permitted hereunder, the gross cash sales price for the assets being sold,
leased, transferred or otherwise disposed of (including, without limitation, any
payments received for non-competition covenants), net of (a) amounts reserved,
if any, for Tax Distributions payable with respect to the sale after the
application of any available losses, credits, or other offsets, (b) reasonable
and customary transaction costs payable by the Borrower or any of its
Subsidiaries, (c) contingencies with respect to such sale, lease, transfer or
other disposition appropriately reserved for by the Borrower or any of its
Subsidiaries, and (d) until actually received by the Borrower or any of its
Subsidiaries, any portion of the sales price held in escrow or paid in
installments.
"Notes" shall mean, collectively, the Term Loan Notes and the Revolving
-----
Loan Notes.
"Obligations" shall mean (a) all payment and performance obligations of the
-----------
Borrower and its Subsidiaries to the Banks, and the Agents under this Agreement
and the other Loan Documents, as they may be amended from time to time, or as a
result of making the Loans, (b) all payment and performance obligations of
-16-
all obligors (other than the Borrower and its Subsidiaries) to the Banks and the
Agents under the Loan Documents, as they may be amended from time to time, and
(c) the obligation to pay an amount equal to the amount of any and all damage
which the Banks and the Agents, or any of them, may suffer by reason of a breach
by the Borrower, any of its Subsidiaries, or any other obligor of any
obligation, covenant or undertaking with respect to this Agreement or any other
Loan Document.
"Operating Cash Flow" shall mean, for the Borrower and its Subsidiaries on
-------------------
a consolidated basis in respect of any quarterly or annual period, as
applicable, without duplication, the remainder of (a) the sum of Net Income,
plus, to the extent deducted in calculating Net Income, (i) Interest Expense,
(ii) depreciation, (iii) amortization, (iv) management fees and expenses paid in
cash to the Manager pursuant to the Management Agreement, (v) financial advisory
fees and expenses paid in cash to ▇▇▇▇▇ pursuant to the Financial Advisory
Agreement, (vi) income tax expense and (vii) other non-cash items, less (b)
extraordinary income, all as determined in accordance with GAAP. If the
Borrower or any of its Subsidiaries acquires (or disposes of) cable television
systems during a fiscal period, Operating Cash Flow for that period shall be
determined as if the systems so acquired (or disposed of) had been acquired (or
disposed of) on the first day of such fiscal period, and the operating results
of any acquired system for that portion of any fiscal period in which it was not
owned by the Borrower or any of its Subsidiaries shall be determined by
reference to financial information prepared by the prior owners thereof, subject
to such adjustments as the Managing Agents may reasonably require.
"Partners" shall mean, collectively, the General Partner and the Limited
--------
Partners, the only partners of the Borrower.
"Payment Date" shall mean the last day of any Interest Period.
------------
"Permitted Asset Swap" shall mean the exchange (whether effected pursuant
--------------------
to a sale of stock or assets or otherwise) by the Borrower and its Subsidiaries
of (a) that portion of the System located in the State of Connecticut in return
for (b) cable television assets located in, or in geographical areas contiguous
to, St. Louis, Missouri (other than those then owned by the Borrower or any of
its Subsidiaries) or all or any substantial part of the ownership interests of
any Person or Persons owning such St. Louis, Missouri cable television assets,
pursuant to terms which are reasonably satisfactory to the Managing Agents.
"Permitted Liens" shall mean, as applied to any Person:
---------------
-17-
(a) any Lien in favor of the Administrative Agent or any Bank or
other Agent given to secure the Obligations;
(b) (i) Liens on real estate for real estate taxes not yet
delinquent and (ii) Liens for taxes, assessments, judgments, governmental
charges or levies or claims the non-payment of which is being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves have been set aside on such Person's books, but only so long as no
foreclosure, distraint, sale or similar proceedings have been commenced with
respect thereto and remain unstayed for a period of thirty (30) days after their
commencement;
(c) Liens of carriers, warehousemen, mechanics, laborers and
materialmen incurred in the ordinary course of business for sums not yet due or
being diligently contested in good faith, if such reserve or appropriate
provision, if any, as shall be required by GAAP shall have been made therefor;
(d) Liens incurred in the ordinary course of business in connection
with worker's compensation and unemployment insurance;
(e) Restrictions on the transfer of assets imposed by any of the
Licenses as presently in effect or by the Federal Communications Act of 1934 and
any regulations thereunder;
(f) Liens created under Pole Agreements on cables and other property
affixed to transmission poles;
(g) Easements, rights-of-way, restrictions and other similar
encumbrances on the use of real property which do not materially interfere with
the ordinary conduct of the business of such person, or Liens incidental to the
conduct of the business of such Person or to the ownership of its properties
which were not incurred in connection with Indebtedness or other extensions of
credit and which do not in the aggregate materially detract from the value of
such properties or materially impair their use in the operation of the business
of such Person; and
(h) Liens securing Indebtedness permitted under Section 7.1(e) hereof
to the extent incurred in connection with the acquisition of any property or
assets by the Borrower or any of its Subsidiaries permitted hereunder, and Liens
securing Capitalized Lease Obligations permitted under Section 7.1(c) hereof;
provided, that
--------
(1) such Lien shall attach only to the property or asset
acquired in such transaction and shall not extend
-19-
to or cover any other assets or properties of the Borrower or any of its
Subsidiaries; and
(2) the Indebtedness secured or covered by such Lien shall not
exceed the cost of the asset or property acquired and shall not be renewed
or extended by the Borrower or any of its Subsidiaries.
"Person" shall mean an individual, corporation, partnership, limited
------
liability company, trust or unincorporated organization, or a government or any
agency or political subdivision thereof.
"Plan" shall mean an employee benefit plan within the meaning of Section
----
3(3) of ERISA maintained for employees of any Person or any affiliate of such
Person.
"Pole Agreements" shall mean the agreements between the Borrower or any of
---------------
its Subsidiaries and the parties referred to in Schedule 2 to this Agreement, as
----------
more particularly described therein, and any other agreement entered into by the
Borrower or any of its Subsidiaries permitting the Borrower or any of its
Subsidiaries to make use of the transmission poles or conduits of such parties
in distributing its cable television signals. Schedule 2 attached hereto sets
----------
forth a description of all Pole Agreements in effect on the Agreement Date as to
which payments scheduled to be made by the Borrower or any of its Subsidiaries
during the term of this Agreement exceed $50,000 in the aggregate.
"Prior Loan Agreement" shall have the meaning ascribed thereto in the
--------------------
recitals to this Agreement.
"Pro Forma Debt Service" shall mean, with respect to the Borrower and its
----------------------
Subsidiaries on a consolidated basis for the next succeeding four (4) calendar
quarters following the calculation date, the sum, without duplication, of (a)
cash Interest Expense for such period, (b) scheduled payments of principal
during such period in respect of the Loans required to be paid pursuant to
Sections 2.5(a) and 2.7(a) hereof or in respect of any other Indebtedness for
Money Borrowed and the principal component of payments for such period in
respect of Capitalized Lease Obligations, (c) management fees and expenses
anticipated to be paid in cash to the Manager during such period pursuant to the
Management Agreement, (d) financial advisory fees and expenses anticipated to be
paid in cash to ▇▇▇▇▇ during such period pursuant to the Financial Advisory
Agreement, and (e) fees payable during such period in respect of Indebtedness
for Money Borrowed. For purposes of calculating Pro Forma Debt Service
hereunder, when interest payments for the four-quarter period immediately
succeeding the calculation date are not fixed by way
-19-
of Interest Rate Hedge Agreements, Fixed Rate Advances, or otherwise for the
entire period, interest shall be calculated on such Indebtedness for Money
Borrowed for periods for which interest payments are not so fixed at the LIBOR
Basis (based on the then current adjustment under Section 2.3(g) hereof) for a
LIBOR Advance having an Interest Period of three (3) months as determined on the
date of calculation; provided, however, that if such LIBOR Basis cannot be
-------- -------
determined in the reasonable opinion of the Administrative Agent, such interest
shall be calculated using the Base Rate Basis as then in effect.
"Purchase Agreement" shall mean that certain Stock Purchase Agreement dated
------------------
as of July 1, 1994, as amended, among HC Crown Corp., a Delaware corporation, CM
Acquisition Corp., a Delaware corporation, Marcus Cable Partners, L.P., a
Delaware limited partnership, Charter Communications, Inc., a Delaware
corporation, the General Partner, and Charter Communications II, L.P., a
Delaware limited partnership, together with every exhibit, appendix and schedule
thereto.
"Reference Banks" shall mean The Toronto-Dominion Bank, Credit Lyonnais
---------------
Cayman Island Branch, and Chemical Bank.
"Reportable Event" shall have the meaning set forth in Title IV of ERISA.
----------------
"Request for Advance" shall mean any certificate signed by an Authorized
-------------------
Signatory of the Borrower requesting an Advance hereunder, which certificate
shall be denominated a "Request for Advance," and shall be in substantially the
form of Exhibit D attached hereto. Each Request for Advance shall, among other
---------
things, (a) specify the date of the Advance, which shall be a Business Day, the
amount of the Advance, the type of Advance and, with respect to Fixed Rate
Advances, the Interest Period selected by the Borrower, (b) specify the
Commitment under which the Advance is to be made, (c) state that there shall not
exist, on the date of the requested Advance and after giving effect thereto, a
Default, and (d) specify the use of the proceeds of the Loans being requested.
"Restricted Payment" shall mean (a) any direct or indirect distribution,
------------------
dividend or other payment to any Person on account of any capital stock, general
or limited partnership interest, or other ownership interest (whether common or
preferred) in, or other equity securities of, the Borrower or any of its
Subsidiaries or in connection with any tax sharing agreement, including, without
limitation, Tax Distributions; and (b) any management, consulting, advisory,
search, acquisition or other similar fees or payments, or any interest thereon,
payable by the Borrower or any of its Subsidiaries to any Affiliate or to any
-20-
other Person, including but not limited to payments to the Manager under the
Management Agreement and payments to ▇▇▇▇▇ under the Financial Advisory
Agreement.
"Restricted Purchase" shall mean any payment on account of the purchase,
-------------------
redemption or other acquisition or retirement of any capital stock, general or
limited partnership interest, or other ownership interest in, or other
securities of, the Borrower or any of its Subsidiaries.
"Revolving Loan Commitment" shall mean the several obligations of the Banks
-------------------------
issuing a Revolving Loan Commitment to advance the sum of up to $20,000,000 at
any one time outstanding, in accordance with their respective Commitment Ratios,
to the Borrower pursuant to the terms hereof, as such obligations may be reduced
from time to time pursuant to the terms hereof.
"Revolving Loan Notes" shall mean those certain amended and restated
--------------------
revolving promissory notes in the aggregate principal amount of $20,000,000, one
such note issued to each of the Banks having a Revolving Loan Commitment
hereunder by the Borrower, each one substantially in the form of Exhibit E
---------
attached hereto, and any extensions, renewals, amendments or substitutions to
any of the foregoing.
"Revolving Loans" shall mean, collectively, the amounts advanced by the
---------------
Banks issuing a Revolving Loan Commitment to the Borrower under the Revolving
Loan Commitment, not to exceed the amount of the Revolving Loan Commitment, and
evidenced by the Revolving Loan Notes.
"Security Agreement" shall mean that certain Security Agreement of even
------------------
date by and between the Borrower and the Administrative Agent, for itself and on
behalf of the Banks and the other Agents, in substantially the form of Exhibit F
---------
attached hereto.
"Security Documents" shall mean the Security Agreement, the Assignment of
------------------
Rights by General Partner, the Assignment of Rights by Limited Partner, the
Mortgage, any other agreement or instrument providing collateral for the
Obligations whether now or hereafter in existence, and any filings, instruments,
agreements, and documents related thereto or to this Agreement, and providing
collateral for the Obligations.
"Security Interest" shall mean all Liens in favor of the Administrative
-----------------
Agent for itself and on behalf of the Banks and the other Agents created under
this Agreement or any of the Security Documents to secure the Obligations.
-21-
"Subordination Agreement" shall mean that certain Subordination Agreement
-----------------------
dated as of January 18, 1995, by and among the Agents, the Banks, Holdings and
HC Crown Corp., a Delaware corporation, in the form of Exhibit G attached
---------
hereto.
"Subordination of Management and Financial Advisory Fees Agreement" shall
-----------------------------------------------------------------
mean that certain Subordination of Management and Financial Advisory Fees
Agreement of even date herewith by and among the Manager, ▇▇▇▇▇ and the
Administrative Agent, for itself and on behalf of the Banks and the other
Agents, substantially in the form attached hereto as Exhibit H.
---------
"Subsidiary" shall mean, as applied to any Person, (a) any corporation of
----------
which fifty percent (50%) or more of the outstanding stock (other than
directors' qualifying shares) having ordinary voting power to elect a majority
of its board of directors, regardless of the existence at the time of a right of
the holders of any class or classes of securities of such corporation to
exercise such voting power by reason of the happening of any contingency, or any
partnership of which fifty percent (50%) or more of the outstanding partnership
interests, is at the time owned by such Person, or by one or more Subsidiaries
of such Person, or by such Person and one or more Subsidiaries of such Person,
and (b) any other entity which is controlled or susceptible to being controlled
by such Person, or by one or more Subsidiaries of such Person, or by such Person
and one or more Subsidiaries of such Person. Unless the context otherwise
requires, "Subsidiaries" as used herein shall mean the Subsidiaries of the
------------
Borrower. The Subsidiaries of the Borrower as of the Agreement Date are set
forth on Schedule 3 attached hereto.
----------
"System" shall mean, collectively, those certain cable systems and other
------
assets described as the "Missouri/Connecticut System" under the Purchase
Agreement, together with any other cable television systems acquired by the
General Partner or Cencom on or prior to the Agreement Date or hereafter
acquired by the Borrower or any of its Subsidiaries in accordance with the terms
and conditions of this Agreement.
"Tax Distributions" shall mean all amounts distributed in cash by the
-----------------
Borrower to the Partners to pay the Federal and state income tax liability of
the Partners (or their indirect or direct partners or shareholders who are
ultimately liable for such taxes) on the earnings of the Borrower and its
Subsidiaries, and any state franchise taxes with respect to the Borrower or any
of its Subsidiaries, after giving effect to all available losses, offsets,
credits, or other tax benefits; provided, however, the amount of such
-------- -------
distributions shall not exceed the actual aggregate tax liability (including
estimated taxes) of such
-22-
Persons generated as a result of the Borrower's and its Subsidiaries' earnings
or the aggregate amount of such franchise taxes, as applicable, and shall be
distributed to the Partners no later than thirty (30) days after such taxes have
been paid by any such Persons.
"Taxes" shall have the meaning ascribed to such term in Section 2.9(b)
-----
hereof.
"Term Loan" shall mean, collectively, the amounts advanced by the Banks
---------
issuing a Term Loan Commitment to the General Partner on January 18, 1995 under
the Term Loan Commitment in an aggregate principal amount equal to the Term Loan
Commitment, which "Term Loan" is hereby assumed by the Borrower as of the
Agreement Date and which is evidenced by the Term Loan Notes.
"Term Loan Commitment" shall mean the several obligations of the Banks
--------------------
issuing a Term Loan Commitment to advance the sum of $280,000,000 to the General
Partner on January 18, 1995, in accordance with their respective Commitment
Ratios pursuant to the terms of the Prior Loan Agreement.
"Term Loan Notes" shall mean those certain amended and restated term
---------------
promissory notes in the aggregate principal amount of $280,000,000, one such
note issued to each of the Banks having a Term Loan Commitment by the Borrower,
each one substantially in the form of Exhibit I attached hereto, and any
---------
extensions, renewals, amendments or substitutions to any of the foregoing.
"Total Debt" shall mean, for the Borrower and its Subsidiaries on a
----------
consolidated basis as of any date, the sum of (a) Indebtedness for Money
Borrowed, plus (b) Capitalized Lease Obligations, plus (c) all reimbursement
obligations with respect to outstanding letters of credit, plus (d) all
obligations under Guaranties in respect of Indebtedness for Money Borrowed and
Capitalized Lease Obligations of any other Person.
"Upstream Dividends" shall have the meaning ascribed to such term in
------------------
Section 7.16 hereof.
Each definition of an agreement in this Article 1 shall include such
agreement as amended from time to time (with, to the extent required hereunder,
the prior written consent of the Banks or the Majority Banks, as provided in
Section 11.12 hereof).
-23-
ARTICLE 2
Loans
-----
Section 2.1 The Loans.
---------
(a) Term Loans. The Banks who issued a Term Loan Commitment agreed
----------
to lend to the General Partner, on January 18, 1995, an amount not to exceed, in
the aggregate, the amount of the Term Loan Commitment. The Borrower hereby
assumes all of the "Obligations" of the General Partner which were previously
assumed by CCELP, as such term is defined under the Prior Loan Agreement,
including, without limitation, all obligations of the General Partner with
respect to "Advances" outstanding under the "Term Loan" (as such terms are
defined in the Prior Loan Agreement). For all purposes hereafter, all such
"Advances" under the "Term Loan" under the Prior Loan Agreement shall be deemed
to have been made to the Borrower as Advances of the Term Loan hereunder and
shall constitute a portion of the Obligations. Advances under the Term Loan
Commitment may be repaid and reborrowed as provided in Section 2.2(b), Section
2.2(c) and Section 2.2(d) hereof in order to effect changes in the Interest Rate
Bases applicable to the Advances thereunder, provided, however, that there shall
be no net increase in the aggregate principal amount outstanding under the Term
Loan Commitment.
(b) Revolving Loans. The Banks who have issued a Revolving Loan
---------------
Commitment agree, severally in accordance with their respective Commitment
Ratios relating to the Revolving Loan Commitment and not jointly, upon the terms
and subject to the conditions of this Agreement, to lend and relend to the
Borrower from time to time amounts which do not exceed in the aggregate at any
one time outstanding the amount of the Revolving Loan Commitment as in effect
from time to time. The Borrower hereby assumes all "Obligations" of the General
Partner which were previously assumed by CCELP in respect of "Advances"
outstanding under the "Revolving Loan Commitment" (as such terms are defined in
the Prior Loan Agreement). For all purposes hereafter, all such outstanding
"Advances" shall be deemed to have been made to the Borrower as Advances under
the Revolving Loan Commitment hereunder and shall constitute a portion of the
Obligations. Advances under the Revolving Loan Commitment may be repaid and
then reborrowed as provided in Section 2.2(b), Section 2.2(c) and Section
2.2(d).
-24-
Section 2.2 Manner of Borrowing and Disbursement.
------------------------------------
(a) Choice of Interest Rate, Etc. Any Advance shall, at the option
----------------------------
of the Borrower as provided in Section 2.2 hereof, be made as a Base Rate
Advance, a LIBOR Advance or a CD Rate Advance; provided, however, that the
-------- -------
Borrower may not receive a Fixed Rate Advance after the occurrence and during
the continuance of a Default hereunder. Fixed Rate Advances shall in all cases
be subject to Section 2.3(f) and Article 10 hereof. Any notice given to the
Administrative Agent in connection with a requested Advance hereunder shall be
given to the Administrative Agent prior to 11:00 a.m. (Houston, Texas time) in
order for such Business Day to count toward the minimum number of Business Days
required.
(b) Base Rate Advances.
------------------
(i) Advances. The Borrower shall give the Administrative Agent
--------
in the case of Base Rate Advances at least one (1) Business Day's
irrevocable written notice in the form of a Request for Advance, or
telecopied notice followed immediately by an original Request for Advance;
provided, however, that the Borrower's failure to confirm any telecopied
-------- -------
notice with an original Request for Advance shall not invalidate any notice
so given.
(ii) Repayments and Reborrowings. Subject to the provisions of
---------------------------
Section 2.3(f) hereof, the Borrower may repay or prepay a Base Rate Advance
without regard to its Payment Date and (i) upon at least one (1) Business
Day's irrevocable prior written notice to the Administrative Agent,
reborrow all or a portion of the principal amount thereof as one or more
Base Rate Advances, (ii) upon at least three (3) Business Days' irrevocable
prior written notice to the Administrative Agent, reborrow all or a portion
of the principal thereof as one or more Fixed Rate Advances, or (iii) not
reborrow all or any portion of such Base Rate Advance. On the date
indicated by the Borrower, such Base Rate Advance shall be so repaid and,
as applicable, reborrowed.
(c) LIBOR Advances.
--------------
(i) Advances. Upon request, the Administrative Agent, whose
--------
determination shall be conclusive, shall determine the available LIBOR
Bases and shall notify the Borrower of such LIBOR Bases. The Borrower
shall give the Administrative Agent in the case of LIBOR Advances at least
three (3) Business Days' irrevocable written notice in the form of a
Request for Advance, or telecopied notice followed
-25-
immediately by an original Request for Advance; provided, however, that the
-------- -------
Borrower's failure to confirm any telecopied notice with an original
Request for Advance shall not invalidate any notice so given. Upon receipt
of such notice from the Borrower, the Administrative Agent shall promptly
notify each Bank by telephone or telecopy of the contents thereof.
(ii) Repayments and Reborrowings. At least three (3) Business
---------------------------
Days prior to each Payment Date for a LIBOR Advance, the Borrower shall
give the Administrative Agent written notice specifying whether all or a
portion of any LIBOR Advance outstanding on the Payment Date (i) is to be
repaid and then reborrowed in whole or in part as a LIBOR Advance, (ii) is
to be repaid and then reborrowed in whole or in part as a CD Rate Advance,
(iii) is to be repaid and then reborrowed in whole or in part as one or
more Base Rate Advances, or (iv) is to be repaid and not reborrowed. Upon
such Payment Date such LIBOR Advance will, subject to the provisions
hereof, be so repaid and, as applicable, reborrowed.
(d) CD Rate Advances.
----------------
(i) Advances. Upon request, the Administrative Agent, whose
--------
determination shall be conclusive, shall determine the available CD Rate
Bases and shall notify the Borrower of such CD Rate Bases. The Borrower
shall give the Administrative Agent in the case of CD Rate Advances at
least three (3) Business Days' irrevocable written notice in the form of a
Request for Advance, or telecopied notice followed immediately by an
original Request for Advance; provided, however, that the Borrower's
-------- -------
failure to confirm any telecopied notice with an original Request for
Advance shall not invalidate any notice so given. Upon receipt of such
notice from the Borrower, the Administrative Agent shall promptly notify
each Bank by telephone or telecopy of the contents thereof.
(ii) Repayments and Reborrowings. At least three (3) Business
---------------------------
Days prior to each Payment Date for a CD Rate Advance, the Borrower shall
give the Administrative Agent written notice specifying whether all or a
portion of any CD Rate Advance outstanding on the Payment Date (i) is to be
repaid and then reborrowed in whole or in part as a CD Rate Advance, (ii)
is to be repaid and then reborrowed in whole or in part as a LIBOR Advance,
(iii) is to be repaid and then reborrowed in whole or in part as one or
more Base Rate Advances, or (iv) is to be repaid and not reborrowed. Upon
such Payment Date such CD Rate Advance will, subject to the
-26-
provisions hereof, be so repaid and, as applicable, reborrowed.
(e) Notification of Banks. Upon receipt of a Request for Advance, or
---------------------
a notice from the Borrower with respect to any outstanding Advance prior to the
Payment Date for such Advance, the Administrative Agent shall notify each Bank
by telephone or telecopy of the contents thereof and the amount of such Bank's
portion of the Advance on the same day such Request for Advance or notice is
received by the Administrative Agent, provided that such Request for Advance or
notice is received by the Administrative Agent prior to 11:00 a.m. (Houston,
Texas time). Each Bank shall, not later than 12:00 noon (Houston, Texas time)
on the date specified in such notice, make available to the Administrative Agent
at the Administrative Agent's Office, or at such account as the Administrative
Agent shall designate, the amount of its portion of the Advance in immediately
available funds.
(f) Disbursement. Prior to 1:00 p.m. (Houston, Texas time) on the
------------
date of an Advance hereunder, the Administrative Agent shall, subject to the
satisfaction of the conditions set forth in Article 3, disburse the amounts made
available to the Administrative Agent by the Banks (or as otherwise provided
below) in like funds by (i) transferring the amounts so made available (or as
otherwise provided below) by wire transfer pursuant to the Borrower's
instructions, or (ii) in the absence of such instructions, crediting the amounts
so made available (or as otherwise provided below) to the account of the
Borrower maintained with the Administrative Agent. Unless the Administrative
Agent shall have received notice from a Bank prior to the date of any borrowing
that such Bank will not make available to the Administrative Agent such Bank's
ratable portion of such borrowing, the Administrative Agent may assume that such
Bank has made such portion available to the Administrative Agent on the date of
such borrowing and the Administrative Agent may, in its sole discretion and in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent such Bank shall not have so made
such ratable portion available to the Administrative Agent, such Bank agrees to
repay to the Administrative Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to the
Administrative Agent, at the Federal Funds Rate for three (3) Business Days and
thereafter at the Base Rate. If such Bank shall repay to the Administrative
Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Loan as part of such borrowing for purposes of this Agreement. If such
Bank does not repay such corresponding amount immediately
-27-
upon the Administrative Agent's demand therefor, the Administrative Agent shall
notify the Borrower and the Borrower shall immediately pay such corresponding
amount to the Administrative Agent. The failure of any Bank to make the Loan to
be made by it as part of any borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its Loan on the date of such borrowing,
but no Bank shall be responsible for any such failure of any other Bank. In the
event that, at any time when the Borrower is not in Default and the conditions
to borrowing set forth in Sections 3.1 and 3.2 hereof, as applicable, have been
satisfied, a Bank for any reason fails or refuses to fund its portion of an
Advance, then, until such time as such Bank has funded its portion of such
Advance (which late funding shall not absolve such Bank from any liability it
may have to the Borrower), or all other Banks have received payment in full from
the Borrower (whether by repayment or prepayment) or otherwise of the principal
and interest due in respect of such Advance, such non-funding Bank shall not
have the right (A) to vote regarding any issue on which voting is required or
advisable under this Agreement or any other Loan Document, and the amount of the
Loans of such Bank shall not be counted as outstanding for purposes of
determining "Majority Banks" hereunder, and (B) to receive payments of
principal, interest or fees from the Borrower, the Administrative Agent or the
other Banks in respect of its Loans.
Section 2.3 Interest.
--------
(a) On Base Rate Advances. Interest on each Base Rate Advance shall
---------------------
be computed on the basis of a year of 365/366 days for the actual number of days
elapsed and shall be payable at the Base Rate Basis for such Advance on the
applicable Payment Date. Interest on Base Rate Advances then outstanding shall
also be due and payable on the Maturity Date.
(b) On LIBOR Advances. Interest on each LIBOR Advance shall be
-----------------
computed on the basis of a 360-day year for the actual number of days elapsed
and shall be payable at the LIBOR Basis for such Advance in arrears on the
applicable Payment Date, and, in addition, if the Interest Period for a LIBOR
Advance exceeds three (3) months, interest on such LIBOR Advance shall also be
due and payable in arrears on each three-month anniversary of the date of such
LIBOR Advance during such Interest Period. Interest on LIBOR Advances then
outstanding shall also be due and payable on the Maturity Date.
(c) On CD Rate Advances. Interest on each CD Rate Advance shall be
-------------------
computed on the basis of a 360-day year for the actual number of days elapsed
and shall be payable at the CD Rate Basis for such Advance in arrears on the
applicable Payment Date,
-28-
and, in addition, if the Interest Period for a CD Rate Advance exceeds ninety
(90) days, interest on such CD Rate Advance shall also be due and payable in
arrears on every ninetieth day anniversary of the date of such CD Rate Advance
during such Interest Period. Interest on CD Rate Advances then outstanding
shall also be due and payable on the Maturity Date.
(d) Interest if no Notice of Selection of Interest Rate Basis. If the
---------------------------------------------------------
Borrower fails to give the Administrative Agent timely notice of its selection
of a LIBOR Basis or a CD Rate Basis, or if for any reason a determination of a
LIBOR Basis or a CD Rate Basis for any Advance is not timely concluded and the
Administrative Agent has used reasonable efforts to make such determination, the
Base Rate Basis shall apply to such Advance.
(e) Interest Upon Default. Immediately upon the occurrence and during
---------------------
the continuance of an Event of Default, interest on the outstanding principal
balance of the Loans shall accrue at the Default Rate from the date of such
Event of Default. Such interest shall be payable on the earlier of demand or
the Maturity Date and shall accrue until the earlier of (i) waiver or cure (to
the satisfaction of the Majority Banks) of the applicable Event of Default, (ii)
agreement by the Majority Banks to rescind the charging of interest at the
Default Rate, or (iii) payment in full of the Obligations. The Banks shall not
be required to (1) accelerate the maturity of the Loans, (2) exercise any other
rights or remedies under the Loan Documents, or (3) give notice to the Borrower
of the decision to charge interest on the Loans at the Default Rate in
accordance herewith, prior to or in conjunction with the effective date of the
commencement of any accrual of interest at the Default Rate.
(f) Fixed Rate Contracts. At no time may the sum of the number of
--------------------
outstanding Fixed Rate Advances exceed eight (8).
(g) Applicable Margin. With respect to any Advance under the Term
-----------------
Loan Commitment or the Revolving Loan Commitment, the Applicable Margin shall be
as set forth in the table set forth below based upon the Leverage Ratio as of
the end of the most recently completed calendar quarter. Changes to the
Applicable Margin shall be effective as of the second (2nd) Business Day after
the day on which the financial statements are required to be delivered to the
Administrative Agent and the Banks pursuant to Section 6.1 hereof; provided,
--------
that, if such financial statements are not delivered to the Administrative Agent
----
and the Banks within five (5) days after the date specified in such Section, the
Leverage Ratio shall be deemed to be greater than 6.00:1, and the Applicable
Margin shall be deemed to be the highest Applicable Margin set forth in the
table set forth below, until the second (2nd) Business Day after the date on
which such
-29-
financial statements are actually delivered to the Administrative Agent and the
Banks. Upon its receipt of such delinquent financial statements, the
Administrative Agent shall recalculate the Leverage Ratio and the Applicable
Margin by reference to such financial statements, and any change in the
Applicable Margin shall be effective as of the second (2nd) Business Day after
the Administrative Agent's receipt thereof.
the the the
Applicable Applicable Applicable
Margin for Margin for Margin for
If the Base Rate LIBOR CD Rate
Leverage Advances Advances Advances
Ratio is: then shall be and shall be and shall be
-------- ---------- ---------- ----------
Greater than 6.00:1 1.375% 2.375% 2.500%
Greater than 5.50:1,
but less than or
equal to 6.00:1 1.125% 2.125% 2.250%
Greater than 5.00:1,
but less than or
equal to 5.50:1 0.875% 1.875% 2.000%
Greater than 4.50:1,
but less than or
equal to 5.00:1 0.625% 1.625% 1.750%
Greater than 4.00:1,
but less than or
equal to 4.50:1 0.375% 1.375% 1.500%
Less than or equal to
4.00:1 0% 1.125% 1.250%
(h) Interest on Advances Outstanding under Prior Loan Agreement.
-----------------------------------------------------------
Interest on "Advances" outstanding under the Prior Loan Agreement shall be
payable to the Banks by the Borrower in accordance with the terms and conditions
of the Prior Loan Agreement.
Section 2.4 Commitment Fee. The Borrower agrees to pay to the Banks, in
--------------
accordance with their respective Commitment Ratios, a commitment fee on the
aggregate unborrowed balance of the Revolving Loan Commitment at a rate of
three-eighths of one percent (3/8%) per annum for each day from the Agreement
Date until the Maturity Date. Such commitment fee shall be computed on the
basis of a year of 365/366 days for the actual number of days elapsed, shall be
payable quarterly in arrears on each March 31, June 30, September 30 and
December 31, commencing on September 29, 1995 and on the Maturity Date, and
shall be fully earned when due and non-refundable when paid. The commitment fee
payable under the Prior Loan Agreement shall be paid to the Banks
-30-
by the Borrower in accordance with the terms and conditions of the Prior Loan
Agreement.
Section 2.5 Revolving Loan Commitment Reductions.
------------------------------------
(a) Mandatory. Commencing March 31, 1997 and at the end of each
---------
calendar quarter thereafter, the Revolving Loan Commitment as in effect on March
30, 1997 shall be automatically reduced by the percentages set forth below:
Quarterly Percentage
Reduction of Revolving
Loan Commitment as in
Dates of Reduction Effect on March 30, 1997
------------------ ------------------------
March 31, 1997, June 30,
1997, September 30, 1997
and December 31, 1997 0.9500%
March 31, 1998, June 30,
1998, September 30, 1998
and December 31, 1998 1.8000%
March 31, 1999, June 30,
1999, September 30, 1999
and December 31, 1999 2.7750%
March 31, 2000, June 30,
2000, September 30, 2000
and December 31, 2000 3.5750%
March 31, 2001, June 30,
2001, September 30, 2001
and December 31, 2001 4.4750%
March 31, 2002, June 30,
2002, September 30, 2002
and December 31, 2002 5.5250%
March 31, 2003, June 30,
2003, September 30, 2003
and December 31, 2003 5.9000%
The Borrower shall make a repayment of the Revolving Loans
outstanding, together with accrued interest thereon, on or before the effective
date of each reduction in the Revolving Loan Commitment under this Section
2.5(a), such that the aggregate principal amount of the Revolving Loans
outstanding at no time exceeds the Revolving Loan Commitment as so reduced. In
-31-
addition, any remaining unpaid principal and interest under the Revolving Loan
Commitment shall be due and payable in full on the Maturity Date.
(b) Optional. The Borrower may without penalty at any time terminate
--------
or permanently reduce the Revolving Loan Commitment by giving the Administrative
Agent and the Banks at least ten (10) Business Days' notice thereof; provided,
--------
however, that any reduction shall reduce the Revolving Loan Commitment in a
-------
principal amount of at least $1,000,000 and an integral multiple of $1,000,000.
The Borrower shall make a repayment of the Loans outstanding under the Revolving
Loan Commitment plus accrued interest on such outstanding Revolving Loans,
together with any costs incurred on account of such repayment under Section
2.10, on or before the effective date of the reduction of the Revolving Loan
Commitment, such that the principal amount of the Revolving Loans outstanding
after such repayment does not exceed the Revolving Loan Commitment as so
reduced. The Borrower shall not have any right to rescind any termination or
reduction pursuant to this Section 2.5.
Section 2.6 Prepayment. The principal amount of any Base Rate Advance
----------
may be prepaid in full or in part at any time, without penalty and without
regard to the Payment Date for such Advance, upon three (3) Business Days' prior
written notice to the Administrative Agent of such prepayment. Fixed Rate
Advances may be prepaid prior to the applicable Payment Date, upon three (3)
Business Days' prior written notice to the Administrative Agent, provided that
-------- ----
the Borrower shall reimburse the Banks on the earlier of demand or the Maturity
Date, for any loss or out-of-pocket expense incurred by the Banks in connection
with such prepayment, as set forth in Section 2.10. Any notice of prepayment
shall be irrevocable and all amounts prepaid on the Loans pursuant to Sections
2.5(b) or 2.6 hereof shall be applied to principal, in inverse order of
maturity. Partial prepayments shall be in a principal amount of at least
$500,000 and integral multiples of $100,000. All prepayments shall be
accompanied by a payment of all accrued but unpaid interest on the principal
amounts so prepaid. Upon receipt of any notice of prepayment, the
Administrative Agent shall promptly notify each Bank of the contents thereof by
telephone or telecopy and of such Bank's portion of the prepayment.
Section 2.7 Repayment.
---------
(a) Scheduled Repayments. Commencing March 31, 1997, the principal
--------------------
balance of the Term Loan shall be amortized in consecutive quarterly
installments on March 31, June 30, September 30, and December 31 of each year
until paid in full, in such amounts as follows:
-32-
Percent of Principal
Due on Last Day
Payment Dates of Each Quarter
------------- ---------------
March 31, 1997, June 30, 1997,
September 30, 1997 and
December 31, 1997 0.9500%
March 31, 1998, June 30, 1998,
September 30, 1998 and
December 31, 1998 1.8000%
March 31, 1999, June 30, 1999,
September 30, 1999 and
December 31, 1999 2.7750%
March 31, 2000, June 30, 2000,
September 30, 2000 and
December 31, 2000 3.5750%
March 31, 2001, June 30, 2001,
September 30, 2001 and
December 31, 2001 4.4750%
March 31, 2002, June 30, 2002,
September 30, 2002 and
December 31, 2002 5.5250%
March 31, 2003, June 30, 2003,
September 30, 2003 and
December 31, 2003 5.9000%
A final payment of all principal amounts and other Obligations then outstanding
shall be due and payable on the Maturity Date.
(b) Repayments Upon Sales of Assets and Asset Swaps. Except as
-----------------------------------------------
provided below with respect to Permitted Asset Swaps, in the event of any sale,
lease, transfer or other disposition of assets permitted hereunder, excluding
any such sale, lease, transfer or other disposition of assets by the Borrower or
any of its Subsidiaries in the ordinary course of business (collectively, "Asset
Sales"), to the extent that the Net Proceeds with respect thereto (when taken
together with the Net Proceeds of all other Asset Sales made subsequent to the
Agreement Date) are in excess of $5,000,000 in the aggregate for all Asset Sales
made during the period from the Agreement Date to the Maturity Date, the
Borrower shall, on the date of such sale, lease, transfer or other disposition,
make a repayment of the principal of the Term Loan then outstanding in an amount
equal to
-33-
the Net Proceeds in excess of the first $5,000,000 of all such Asset Sales. Any
such Net Proceeds which constitute a portion of the sales price which was
previously held in escrow or paid in installments shall be paid to the extent
required by the terms hereof to the Banks as a repayment of principal at such
time as such Net Proceeds are received by the Borrower. In the event the
Borrower elects to enter into a Permitted Asset Swap, the Borrower shall, on the
date it sells, leases, transfers or otherwise disposes of all or substantially
all of its interests in the cable television system owned by the Borrower or any
of its Subsidiaries in the State of Connecticut, deposit in an escrow account
with the Administrative Agent an amount equal to the Net Proceeds of such sale,
lease, transfer or other disposition. The amount deposited in such escrow
account shall be held in such escrow account until the earlier to occur of the
consummation of the Permitted Asset Swap or the first anniversary of the sale,
lease, transfer or other disposition of such Connecticut assets or interests
relating thereto. Amounts held in such escrow account may be invested as
permitted under Section 7.6(i), (ii) and (iii) hereof, or as otherwise agreed to
by the Borrower and the Administrative Agent. Net Proceeds held in escrow by
the Administrative Agent may be used by the Borrower at any time prior to the
first anniversary of such sale, lease, transfer or other disposition of
Connecticut assets or interests to consummate a Permitted Asset Swap or to repay
the principal amount of the Term Loan. All Net Proceeds remaining in escrow
with the Administrative Agent pursuant to this Section 2.7(b) on such first
anniversary date shall be immediately applied to repay the principal amount of
the Term Loan. All amounts paid by the Borrower pursuant to this subsection
shall be applied to principal of the Term Loan pro rata over the scheduled
repayment schedule set forth in Section 2.7(a) above.
(c) Annual Excess Cash Flow Recapture. In addition to the foregoing,
---------------------------------
the Borrower agrees that on April 30, 1998 and on each April 30th thereafter
during the term of this Agreement, the Borrower shall make a repayment of the
principal of the Term Loan then outstanding in an amount equal to (i) seventy-
five percent (75%) of Annual Excess Cash Flow for the Borrower's preceding
fiscal year if the Leverage Ratio as of the end of such preceding fiscal year
(but before giving effect to such repayment) is greater than or equal to 5.5:1,
or (ii) fifty percent (50%) of Annual Excess Cash Flow for the Borrower's
preceding fiscal year if the Leverage Ratio at the time of such payment (but
before giving effect to such repayment) is less than 5.5:1, together, in any
case, with accrued interest on the portion of the Term Loan so repaid. All
amounts paid by the Borrower pursuant to this subsection in respect of the
principal of the Term Loan shall be applied to such principal in inverse order
of maturity.
-34-
(d) Reimbursement. In addition to any principal repayment required to
-------------
be made under Section 2.5 or Sections 2.7(a), (b) or (c) hereof, the Borrower
shall reimburse the Banks pursuant to Section 2.10 hereof for any loss or out-
of-pocket expense incurred by the Banks in connection with such repayment.
Section 2.8 Notes; Loan Accounts.
--------------------
(a) The Loans shall be repayable in accordance with the terms and
provisions set forth herein, and shall be evidenced by the Notes. One Term Loan
Note and one Revolving Loan Note shall be payable to the order of each Bank for
such Commitment, in accordance with the respective Commitment Ratio of such Bank
for the applicable Commitment. The Notes shall be issued by the Borrower to
each Bank and each Note shall be duly executed and delivered by the Authorized
Signatories.
(b) Each Bank may open and maintain on its books in the name of the
Borrower one or more loan accounts with respect to the Loans and interest
thereon. Each Bank which opens such loan accounts shall debit such loan
accounts for the principal amount of each Advance made by it and accrued
interest thereon, and shall credit such loan accounts for each payment on
account of principal of or interest on its Loans. The records of a Bank with
respect to the loan account maintained by it shall be prima facie evidence of
----- -----
the Loans and accrued interest thereon.
Section 2.9 Manner of Payment.
-----------------
(a) Each payment (including any prepayment) by the Borrower on account
of the principal of or interest on the Loans, commitment fees, and any other
amount owed to the Banks or the Agents under this Agreement or the other Loan
Documents shall be made not later than 1:00 p.m. (Houston, Texas time) on the
date specified for payment under this Agreement to the Administrative Agent at
the Administrative Agent's Office, for the account of the Banks and the Agents,
or any of them, as the case may be, in lawful money of the United States of
America in immediately available funds. If any payment is stated to be due
hereunder on the last day of any calendar or fiscal quarter and such day is not
a Business Day, the due date for such payment shall be, instead, the immediately
preceding Business Day in such quarter. Any payment received by the
Administrative Agent after 1:00 p.m. (Houston, Texas time) shall be deemed
received on the next Business Day. Receipt by the Administrative Agent of any
payment intended for any Bank or any Agent hereunder prior to 1:00 p.m.
(Houston, Texas time) on any Business Day shall be deemed to constitute receipt
by such Bank or such Agent (as appropriate) on such Business Day. In the case
of a payment for the account of a Bank or an Agent, the Administrative Agent
will promptly
-35-
thereafter distribute the amount so received in like funds to such Bank or such
Agent, as the case may be. If the Administrative Agent shall not have received
any payment from the Borrower as and when due, the Administrative Agent will
promptly notify the Banks accordingly.
(b) The Borrower agrees to pay principal, interest, fees and all other
amounts due hereunder or under the Notes or the other Loan Documents without
set-off or counterclaim or any deduction whatsoever, including withholding
taxes, excluding, (i) in the case of each Bank and each Agent, taxes measured by
its net income, and franchise taxes imposed on it by the jurisdiction under the
laws of which it is organized or any political subdivision thereof, (ii) in the
case of each Bank, taxes (including, but not limited to, the Branch Profits Tax
under Section 884 of the Code) measured by its net income, and franchise taxes
imposed on it, by the jurisdiction of such Bank's applicable lending office or
any political subdivision thereof and (iii) in the case of any Bank organized
under the laws of a jurisdiction outside the United States, United States
federal withholding tax payable with respect to payments by the Borrower which
would not have been imposed had such Bank, to the extent then required
thereunder, delivered to the Borrower and the Administrative Agent the forms
prescribed by Section 2.9(d) hereof (all such non-excluded taxes being
hereinafter referred to as "Taxes").
(c) Prior to the acceleration of the Loans under Section 8.2 hereof,
if some but less than all amounts due from the Borrower are received by the
Administrative Agent, the Administrative Agent shall distribute such amounts in
the following order of priority, all in accordance where applicable with the
respective Commitment Ratios of the Banks for the applicable Commitment: (i) to
the costs and expenses, if any, incurred by the Administrative Agent in the
collection of such amounts under this Agreement or any of the other Loan
Documents; (ii) to the payment of all fees then due and payable hereunder; (iii)
to the payment of interest then due and payable on the Loans; (iv) to the
payment of all other amounts not otherwise referred to in this Section 2.9(c)
then due and payable hereunder or under the Notes or the other Loan Documents;
and (v) to the payment of principal then due on the Term Loan and then due on
the Revolving Loans, which payments shall be applied against outstanding
Advances in the following order of priority: (A) Advances, the Interest Period
for which is expiring concurrently with such payment, (B) Base Rate Advances,
(C) CD Rate Advances, and (D) LIBOR Advances. Subsequent to any acceleration of
the Loans under Section 8.2 hereof, all amounts received from any source
whatsoever by the Administrative Agent or any of the Banks with respect to the
Borrower shall be paid to
-36-
and distributed by the Administrative Agent in the manner provided in Section
2.11(c) hereof.
(d) Prior to the date on which any Person becomes a Bank hereunder,
and from time to time thereafter if either required by law due to a change in
circumstances or reasonably requested by the Borrower or the Administrative
Agent (unless such Bank is unable to do so by reasons of change in law), each
Bank organized under the laws of a jurisdiction outside the United States shall
provide the Administrative Agent and the Borrower with an IRS Form 4224 or Form
1001 or other applicable form, certificate or document prescribed by the IRS
certifying as to such Bank's entitlement to full exemption from United States
withholding tax with respect to all payments to be made to such Bank hereunder
and under any Note. Unless the Borrower and the Administrative Agent have
received forms or other documents satisfactory to them indicating that payments
hereunder or under any Note are not subject to United States withholding tax (or
there is a change in law preventing delivery thereof), the Borrower or the
Administrative Agent shall, in the case of payments to or for any Bank organized
under the law of a jurisdiction outside the United States, (i) withhold taxes
from such payments at the applicable statutory rate, or at a rate reduced by an
applicable tax treaty (provided that the Borrower and the Administrative Agent
have received forms or other documents satisfactory to them indicating that such
reduced rate applies) and (ii) pay such Bank such payment net of any taxes
withheld. To the extent that the Borrower is obligated hereunder, the Borrower
shall provide evidence that such taxes of any nature whatsoever in respect of
this Agreement, any Loan or any Note shall have been paid to the appropriate
taxing authorities by delivery to the Bank on whose account such payment was
made of the official tax receipts or notarized copies of such receipts within
thirty (30) days after payment of such tax. If the Borrower fails to make any
such payment when due, the Borrower shall indemnify the Banks for any
incremental taxes, interest or penalties that may become payable by any Bank as
a result of any such failure.
Section 2.10 Reimbursement.
-------------
(a) Whenever any Bank shall sustain or incur any losses or out-of-
pocket expenses in connection with (i) failure by the Borrower to borrow any
Fixed Rate Advance after having given notice of its intention to borrow in
accordance with Section 2.2 hereof (whether by reason of the Borrower's election
not to proceed or the non-fulfillment of any of the conditions set forth in
Article 3 hereof), or (ii) prepayment or repayment of any Fixed Rate Advance in
whole or in part (including a prepayment pursuant to Sections 10.2 and 10.3(b)
hereof) prior to
-37-
its Payment Date, the Borrower agrees to pay to such Bank, upon the earlier of
such Bank's demand or the Maturity Date, an amount sufficient to compensate such
Bank for all such losses and out-of-pocket expenses. Such Bank's good faith
determination of the amount of such losses or out-of-pocket expenses, absent
manifest error, shall be binding and conclusive.
(b) Loss subject to reimbursement hereunder shall be any loss incurred
by any Bank in connection with the re-employment of funds prepaid, repaid, not
borrowed, or paid, as the case may be, and the amount of such loss shall be the
excess, if any, of (i) interest or other costs to such Bank of the deposit or
other sources of funding used to make any such Fixed Rate Advance for the
remainder of its Interest Period over (ii) the interest earned (or to be earned)
by such Bank upon the re-lending or other redeployment of the amount of such
Fixed Rate Advance for the remainder of its putative Interest Period.
Section 2.11 Pro Rata Treatment.
------------------
(a) Advances. Each Advance from the Banks under the Revolving Loan
--------
Commitment or the Term Loan Commitment shall be made pro rata on the basis of
the respective Commitment Ratios of the Banks applicable to the particular
Commitment.
(b) Payments Prior to Declaration of Event of Default. Prior to the
-------------------------------------------------
acceleration of the Loans under Section 8.2 hereof, each payment and prepayment
of the Loans, and, except as provided in Article 10 hereof, each payment of
interest on the Loans, shall be made to the Banks pro rata on the basis of their
respective unpaid principal amounts outstanding under the applicable Commitment
immediately prior to such payment or prepayment. If any Bank shall obtain any
payment (whether involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Loans made by it in excess of its ratable share of
the Loans under its Commitment Ratio for the applicable Commitment, such Bank
shall forthwith purchase from the other Banks having Commitment Ratios with
respect to the applicable Commitment such participations in the Loans made by
them as shall be necessary to cause such purchasing Bank to share the excess
payment ratably with each of them; provided, however, that if all or any portion
-------- -------
of such excess payment is thereafter recovered from such purchasing Bank, such
purchase from each Bank shall be rescinded and such Bank shall repay to the
purchasing Bank the purchase price to the extent of such recovery. The Borrower
agrees that any Bank so purchasing a participation from another Bank pursuant to
this Section may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully
-38-
as if such Bank were the direct creditor of the Borrower in the amount of such
participation.
(c) Payments Subsequent to Declaration of Event of Default.
------------------------------------------------------
Subsequent to the acceleration of the Loans under Section 8.2 hereof, payments
and prepayments made to the Administrative Agent, the other Agents or the Banks
or otherwise received by any of them (from realization on Collateral for the
Obligations or otherwise) shall be distributed as follows: first, to the
-----
Administrative Agent's reasonable costs and expenses, if any, incurred in
connection with the collection of such payment or prepayment, including, without
limitation, any reasonable costs incurred in connection with the sale or
disposition of any Collateral for the Obligations; second, to the payment of
------
fees then due and payable to the Banks and any costs and expenses, if any,
incurred by any of the Banks under Section 11.2(c) hereof, pro rata on the basis
of the amount of such Obligations; third, to any unpaid interest which may have
-----
accrued on the Obligations, pro rata on the basis of the amount of such
Obligations; fourth, to any unpaid principal of the Obligations, pro rata on the
------
basis of the amount of such Obligations; fifth, to damages incurred by the
-----
Administrative Agent or any Bank by reason of any breach hereof or of any other
Loan Document, pro rata on the basis of the amount of such Obligations; and
sixth, upon satisfaction in full of all Obligations, to the Borrower or as
-----
otherwise required by law.
Section 2.12 Capital Adequacy. If any Bank shall determine that the
----------------
adoption, after the date hereof, of any Applicable Law regarding the capital
adequacy of banks or bank holding companies, or any change therein or in any
Applicable Law existing as of the date hereof, or any change in the
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital as a consequence of
its commitment of its obligations to fund or maintain Advances hereunder to a
level below that which it could have achieved but for such adoption, change or
compliance (taking into consideration such Bank's policies with respect to
capital adequacy immediately before such adoption, change or compliance and
assuming that such Bank's capital was fully utilized prior to such adoption,
change or compliance) by an amount deemed by such Bank in good faith to be
material, then, upon the earlier of demand by such Bank or the Maturity Date,
the Borrower shall immediately pay to such Bank, such additional amounts as
shall be sufficient to compensate such Bank for such reduced return,
-39-
together with interest on such amount from the fourth (4th) day after the date
of demand or the Maturity Date, as applicable, until payment in full thereof at
the Default Rate. Any Bank claiming compensation under this Section 2.12 shall
notify the Borrower of any event occurring after the date of this Agreement
entitling such Bank to such compensation as promptly as practicable, but in any
event within forty-five (45) days, after such Bank obtains actual knowledge
thereof; provided that if such Bank fails to give such notice within forty-five
--------
(45) days after it obtains actual knowledge of such an event, such Bank shall,
with respect to such compensation in respect of any costs resulting from such
event, only be entitled to payment under the Section 2.12 for costs incurred
from and after the date forty-five (45) days prior to the date that such Bank
does give such notice. A certificate of such Bank setting forth the amount to
be paid to such Bank by the Borrower as a result of any event referred to in
this paragraph shall, absent manifest error, be conclusive, and, at the
Borrower's request, such Bank shall set forth the basis for such determination.
ARTICLE 3
Conditions Precedent
--------------------
Section 3.1 Conditions Precedent to Initial Advance and Closing. The
---------------------------------------------------
obligation of the Banks to undertake the Commitments, to permit the General
Partner's assignment to CCELP, with a subsequent assignment to the Borrower of,
and the Borrower's assumption of, the General Partner's "Obligations" under the
Prior Loan Agreement, and to make the initial Advances hereunder is subject to
the prior fulfillment of each of the following conditions:
(a) The Administrative Agent or the Banks, as appropriate, shall have
received each of the following, in form and substance satisfactory to the
Administrative Agent and the Banks:
(i) duly executed Notes;
(ii) duly executed Subordination of Management and Financial
Advisory Fees Agreement;
iii) duly executed Security Agreement, together with appropriate
UCC-1 financing statements;
(iv) duly executed Mortgage, together with appropriate title
insurance and related documentation;
-40-
(v) duly executed Assignment of Rights by General Partner,
together with appropriate UCC-1 financing statements;
(vi) duly executed Assignment of Rights by Limited Partner from
each of the Limited Partners, together with appropriate UCC-1 financing
statements;
(vii) opinions or comfort letters of general counsel, FCC
counsel and in-house counsel to the Borrower and its Subsidiaries,
addressed to the Banks and the Administrative Agent and satisfactory to the
Administrative Agent and its special counsel, dated the Agreement Date;
(viii) the loan certificate of the General Partner dated as of
the Agreement Date, in substantially the form attached hereto as Exhibit J,
---------
including a certificate of incumbency with respect to each Authorized
Signatory of the General Partner, together with appropriate attachments
which shall include, without limitation, the following items: (A) a copy
of the Certificate of Incorporation of the General Partner, certified to be
true, complete and correct by the Delaware Secretary of State, (B) a true,
complete and correct copy of the By-Laws of the General Partner, as in
effect on the date hereof, (C) a true, complete and correct copy of the
resolutions of the General Partner authorizing it to execute, deliver and
perform this Agreement and the other Loan Documents on behalf of the
Borrower, (D) certificates of good standing from appropriate jurisdictions
for the General Partner, (E) true, complete and correct copies of all
shareholders agreements or voting trust agreements among the shareholders
of the General Partner, (F) a true, complete and correct copy of the
Partnership Agreement of the Borrower as in effect on the Agreement Date,
and (G) certificates of good standing for the Borrower issued by the
Secretary of State or similar state official for each state in which the
Borrower is required to qualify to do business;
(ix) the loan certificate of the Limited Partners dated as of the
Agreement Date, in substantially the form attached hereto as Exhibit K,
---------
including a certificate of incumbency with respect to each authorized
signatory of the CCT, together with appropriate attachments which shall
include, without limitation, the following items: (A) a copy of the
Certificate of Incorporation of CCT, certified to be true, complete and
correct by the Delaware Secretary of State, (B) a true, complete and
correct copy of the By-Laws of CCT, as in effect on the date hereof, (C) a
true, complete and correct copy of the resolutions of CCT
-41-
authorizing it to execute, deliver and perform the Loan Documents to which
the Limited Partners are party, for itself and on behalf of CCELP, (D)
certificates of good standing from appropriate jurisdictions for the CCT,
(E) a true, complete and correct copy of the Partnership Agreement of CCELP
as in effect on the Agreement Date, and (F) certificates of good standing
for CCELP issued by the Secretary of State or similar state official for
each state in which the Borrower is required to qualify to do business;
(x) the loan certificate of the Manager dated as of the
Agreement Date, in substantially the form attached hereto as Exhibit L,
---------
including a certificate of incumbency with respect to each authorized
signatory of the Manager, together with appropriate attachments
which shall include, without limitation, the following items:
(A) a copy of the Certificate of Incorporation of the Manager,
certified to be true, complete and correct by the Delaware
Secretary of State, (B) a true, complete and correct copy of the
By-Laws of the Manager, as in effect on the date hereof, (C) a
true, complete and correct copy of the resolutions of the
Manager authorizing it to execute, deliver and perform the Loan
Documents to which it is party, and (D) certificates of good
standing from appropriate jurisdictions for the Manager;
(xi) true, complete and correct copies of the Management
Agreement and the Financial Advisory Agreement;
(xii) copies of all approvals or consents regarding the transfer
of all franchises and contracts to the Borrower;
(xiii) a duly executed Certificate of Financial Condition;
(xiv) copies of insurance binders or certificates covering the
assets of the Borrower and its Subsidiaries, and otherwise meeting the
requirements of Section 5.5 hereof;
(xv) copies of all documents related to the transfer of all
assets and liabilities of the General Partner and Cencom to CCELP and the
subsequent transfer of such assets and liabilities to the Borrower;
(xvi) a copy of the notice to HC Crown Corp., a Delaware
corporation, regarding the transactions contemplated hereby, together with
all related documentation, including, without limitation, copies of all
guaranties and other agreements provided or to be provided
-42-
to HC Crown Corp. in connection therewith and all correspondence relating
thereto;
(xvii) duly executed Request for Advance for any Advance of the
Loans on the Agreement Date;
(xviii) pro forma balance sheet with respect to the Borrower and
its Subsidiaries on a consolidated basis, after giving effect to the
transactions contemplated hereby, including, without limitation, the
assumption by the Borrower of all obligations of the General Partner under
the Prior Loan Agreement and the making of any new Advances hereunder on
the Agreement Date; and
(xix) all such other documents as the Administrative Agent or
any Bank may reasonably request, certified by an appropriate governmental
official or an Authorized Signatory if so reasonably requested.
(b) The Licenses shall be in form and substance satisfactory to the
Administrative Agent and the Banks, and the Administrative Agent and the Banks
shall have received evidence reasonably satisfactory to them that all Necessary
Authorizations, including all necessary consents to the closing of this
Agreement and the transactions contemplated hereby, from the grantors of the
Licenses have been obtained or made, are in full force and effect and are not
subject to any pending or threatened reversal or cancellation, and the
Administrative Agent and the Banks shall have received a certificate of an
Authorized Signatory so stating.
Section 3.2 Conditions Precedent to Each Advance. The obligation of the
------------------------------------
Banks to make each Advance, including the initial Advances under Section 3.1, is
subject to the fulfillment of each of the following conditions immediately prior
to or contemporaneously with such Advance:
(a) All of the representations and warranties of the Borrower under
this Agreement (including, without limitation, all representations and
warranties with respect to the Borrower's Subsidiaries), which, pursuant to
Section 4.2 hereof, are made at and as of the time of such Advance, shall be
true and correct at such time in all material respects, both before and after
giving effect to the making of the Advance and application of the proceeds of
the Advance;
(b) The incumbency of the Authorized Signatories shall be as stated in
the certificate of incumbency contained in the General Partner's loan
certificate delivered pursuant to Section 3.1(a) hereof or as subsequently
modified and reflected
-43-
in a certificate of incumbency delivered to the Administrative Agent and the
Banks;
(c) With respect to Advances which, if funded, would increase the
aggregate amount of Loans outstanding hereunder, the Administrative Agent and
the Banks shall have received a duly executed Request for Advance; and
(d) There shall not exist, on the date of the making of the Advance
and after giving effect thereto, a Default hereunder, and, with respect to
Advances which increase the outstanding principal amount of the Loans hereunder,
there shall not have occurred any event which could have or which has had a
Materially Adverse Effect.
ARTICLE 4
Representations and Warranties
------------------------------
Section 4.1 Representations and Warranties. The Borrower hereby agrees,
------------------------------
represents and warrants to the Agents and the Banks that:
(a) Organization; Ownership; Power; Qualification; Capitalization.
-------------------------------------------------------------
The Borrower is a limited partnership duly organized, validly existing and in
good standing under the laws of the State of Delaware. The Borrower has the
partnership power and authority to own its properties and to carry on its
business as now being and hereafter proposed to be conducted. Each Subsidiary
of the Borrower is a corporation or partnership duly organized, validly existing
and in good standing under the laws of the state of its incorporation or
formation and has the corporate or partnership power and authority to own its
properties and to carry on its business as now being and hereafter proposed to
be conducted. The Borrower and each of its Subsidiaries are duly qualified, in
good standing and authorized to do business in each jurisdiction in which the
character of their respective properties or the nature of their respective
businesses requires such qualification or authorization. The General Partner is
the sole general partner of the Borrower and the Limited Partners are the sole
limited partners of the Borrower.
(b) Authorization; Enforceability. The Borrower has the partnership
-----------------------------
power and has taken all necessary partnership action to authorize it to borrow
hereunder, to execute, deliver and perform this Agreement and each of the other
Loan Documents to which it is a party in accordance with their respective terms,
and to consummate the transactions contemplated hereby and
-44-
thereby. This Agreement has been duly executed and delivered by the Borrower
and is, and each of the other Loan Documents to which the Borrower is party is,
a legal, valid and binding obligation of the Borrower enforceable in accordance
with its terms, except as such enforceability may be limited by (a) bankruptcy,
insolvency, reorganization, moratorium or similar laws of general applicability
affecting the enforcement of creditors' rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
(c) Subsidiaries: Authorization; Enforceability. The Borrower's
--------------------------------------------
Subsidiaries and its direct and indirect ownership thereof are as set forth as
of the Agreement Date on Schedule 3 attached hereto, and to the extent such
----------
Subsidiaries are corporations, the Borrower has the unrestricted right to vote
the issued and outstanding shares of the Subsidiaries shown thereon; such shares
of such Subsidiaries have been duly authorized and issued and are fully paid and
nonassessable. Each Subsidiary of the Borrower has the corporate or partnership
power and has taken all necessary corporate or partnership action to authorize
it to execute, deliver and perform each of the Loan Documents to which it is a
party in accordance with their respective terms and to consummate the
transactions contemplated by this Agreement and by such Loan Documents. Each of
the Loan Documents to which any Subsidiary of the Borrower is party is a legal,
valid and binding obligation of such Subsidiary enforceable against such
Subsidiary in accordance with its terms, except as such enforceability may be
limited by (a) bankruptcy, insolvency, reorganization, moratorium or similar
laws of general applicability affecting the enforcement of creditors' rights,
and (b) the application of general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(d) Compliance with Other Loan Documents and Contemplated
-----------------------------------------------------
Transactions. The execution, delivery and performance, in accordance with their
respective terms, by the Borrower of this Agreement, and by the Borrower and its
Subsidiaries of each of the other Loan Documents to which they are respectively
party, and the consummation of the transactions contemplated hereby and thereby,
do not and will not (i) require any consent or approval not already obtained,
(ii) violate any material Applicable Law respecting the Borrower or any
Subsidiary of the Borrower, (iii) conflict with, result in a breach of, or
constitute a default under the certificate or articles of incorporation, by-
laws, certificate of limited partnership or partnership agreements, as the case
may be, as amended, of the Borrower or of any Subsidiary of the Borrower, under
the Licenses, the Management Agreement or the Financial Advisory
-45-
Agreement, or, in any material respect, under any material indenture, agreement,
or other instrument to which the Borrower or any Subsidiary of the Borrower is a
party or by which any of them or any of their respective properties may be
bound, including, without limitation, the Pole Agreements, or (iv) result in or
require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by the Borrower or any Subsidiary of
the Borrower except Permitted Liens.
(e) Business. The Borrower and its Subsidiaries are engaged primarily
--------
in the business of acquiring, constructing, operating and maintaining the cable
television systems owned, leased or managed by them, respectively, and of
investing in other cable television systems and engaging in other activities
relating to the cable television industry.
(f) Licenses, etc. The Licenses have been duly authorized by the
--------------
grantors thereof and are in full force and effect. The Borrower and its
Subsidiaries are in compliance in all material respects with all of the
provisions thereof. The Borrower and its Subsidiaries have secured all
Necessary Authorizations and all such Necessary Authorizations are in full force
and effect. Neither any License nor any Necessary Authorization is the subject
of any pending or, to the best of the Borrower's knowledge, threatened attack or
revocation. Except as described on Schedule 4 attached hereto, and except for
----------
services operating on a national or regional basis and affecting the cable
television industry generally (for example, the DirecTV DBS service), there is
no Person currently overbuilding any territory within the System.
(g) Compliance with Law. The Borrower and its Subsidiaries are in
-------------------
compliance with all Applicable Laws, non-compliance with which could have a
Materially Adverse Effect.
(h) Title to Assets. Except as set forth on Schedule 5 attached
--------------- ----------
hereto, the Borrower has good, legal and marketable title to, or a valid
leasehold interest in, all of its assets. Each of the Borrower's Subsidiaries
has good, legal and marketable title to, or a valid leasehold interest in, all
of its assets. To the best of the Borrower's knowledge and as disclosed on the
lien searches described in Schedule 5 hereto, none of such properties or assets
----------
is subject to any Liens, except for Permitted Liens. To the best of the
Borrower's knowledge and as disclosed on the lien searches described in Schedule
--------
5 hereto, no financing statement under the Uniform Commercial Code as in effect
-
in any jurisdiction and no other filing which names the Borrower or any of its
Subsidiaries as debtor or which covers or purports to cover any of the assets of
the Borrower or any of its
-46-
Subsidiaries is on file in any state or other jurisdiction, and neither the
Borrower nor any of its Subsidiaries has signed any such financing statement or
filing or any security agreement authorizing any secured party thereunder to
file any such financing statement or filing. Neither the Borrower nor any of
its Subsidiaries owns any parcel of real estate with a fair market value in
excess of $750,000, except as set forth on Schedule 6 attached hereto.
----------
(i) Litigation. Except as described on Schedule 7 attached hereto,
---------- ----------
there is no action, suit, proceeding or investigation pending against, or, to
the best of the Borrower's knowledge, threatened against or in any other manner
relating adversely to, the Borrower or any of its Subsidiaries or any of their
respective properties, including, without limitation, the Licenses, in any court
or before any arbitrator of any kind or before or by any governmental body, and
no such action, suit, proceeding or investigation (i) calls into question the
validity of this Agreement or any other Loan Document, or (ii) could, if
determined adversely to the Borrower or any of its Subsidiaries, have a
Materially Adverse Effect.
(j) Taxes. All federal, state and other tax returns of the Borrower
-----
and each of its Subsidiaries required by law to be filed have been duly filed
and all federal, state and other taxes, including, without limitation,
withholding taxes, assessments and other governmental charges or levies required
to be paid by the Borrower or any of its Subsidiaries or imposed upon the
Borrower or any of its Subsidiaries or any of their respective properties,
income, profits or assets, which are due and payable, have been paid, except any
such (x) the payment of which the Borrower or any of its Subsidiaries is
diligently contesting in good faith by appropriate proceedings, (y) for which
adequate reserves have been provided on the books of the Borrower or the
Subsidiary of the Borrower involved, and (z) as to which no Lien other than a
Permitted Lien has attached and no foreclosure, distraint, sale or similar
proceedings have been commenced. The charges, accruals and reserves on the
books of the Borrower and each of its Subsidiaries in respect of taxes are, in
the judgment of the Borrower, adequate. All pro forma financial information
provided to the Agents and the Banks in connection with this Agreement has been
based upon reasonable assumptions and prepared in good faith.
(k) Financial Statements. The pro forma financial statements of the
--------------------
Borrower, with respect to the System, furnished to the Agents and the Banks by
the Borrower on or prior to the Agreement Date are, to the best of the
Borrower's knowledge, complete and correct in all material respects and present
fairly, in accordance with GAAP, the financial position of the Borrower
-47-
and its Subsidiaries on a consolidated basis, with respect to the System, on and
as at the date thereof, and the results of operations for the period then ended.
The pro forma financial statements of the General Partner, with respect to the
System, furnished to the Agents and the Banks by the General Partner on or prior
to the Agreement Date are, to the best of the Borrower's knowledge, complete and
correct in all material respects and present fairly, in accordance with GAAP,
the financial position of the General Partner and its Subsidiaries on a
consolidated basis, with respect to the System, on and as at the date thereof,
and the results of operations for the period then ended. When furnished to the
Administrative Agent and the Banks in accordance with Sections 6.1 and 6.2
hereof, all copies of the balance sheets and statements of income for the
Borrower and its Subsidiaries on a consolidated basis shall be complete and
correct in all material respects and shall present fairly, in accordance with
GAAP, the financial position of the Borrower and its Subsidiaries on a
consolidated basis on and as at the date thereof and the results of operations
for the periods then ended. Neither the Borrower nor any of its Subsidiaries
shall have material liabilities, contingent or otherwise, other than as
disclosed in the financial statements referred to in the preceding sentence for
the most recently ended fiscal year or quarter, as appropriate, and there shall
be no material unrealized losses of the Borrower or any of its Subsidiaries and
no material anticipated losses of the Borrower or any of its Subsidiaries other
than those which have been previously disclosed in writing to the Administrative
Agent and the Banks and identified to the Administrative Agent and the Banks as
such.
(l) ERISA. The Borrower and each Subsidiary of the Borrower and each
-----
of their respective Plans are in material compliance with ERISA and the Code
and neither the Borrower nor any of its Subsidiaries has incurred any
accumulated funding deficiency with respect to any such Plan within the meaning
of ERISA or the Code. The Borrower, each of its Subsidiaries and each other
Person which is affiliated with the Borrower within the meaning of Section 414
of the Code have materially complied with all requirements of ERISA Sections 601
through 608 and Code Section 4980B. Neither the Borrower nor any of its
Subsidiaries has made any promises of retirement or other benefits to employees,
except as set forth in any Plan. Neither the Borrower nor any of its
Subsidiaries has incurred any material liability to the Pension Benefit Guaranty
Corporation in connection with any such Plan. The assets of each such Plan
which is subject to Title IV of ERISA, if any, are sufficient to provide the
benefits under such Plan payment of which the Pension Benefit Guaranty
Corporation would guarantee if such Plan were terminated, and such assets are
also sufficient to provide all other "benefit liabilities" (as defined in ERISA
Section 4001(a)(1b)) due under
-48-
the Plan upon termination. No Reportable Event has occurred and is continuing
with respect to any such Plan. No such Plan or trust created thereunder, or
party in interest (as defined in Section 3(14) of ERISA), or any fiduciary (as
defined in Section 3(21) of ERISA), has engaged in a "prohibited transaction"
(as such term is defined in Section 406 of ERISA or Section 4975 of the Code)
which would subject such Plan or any other Plan of the Borrower or any of its
Subsidiaries, any trust created thereunder, or any such party in interest or
fiduciary, or any party dealing with any such Plan or any such trust to the
penalty or tax on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code. Neither the Borrower nor any of its Subsidiaries is a
participant in, and is not obligated to make any payment to, any Multiemployer
Plan.
(m) Compliance with Regulations G, T, U and X. Neither the Borrower
-----------------------------------------
nor any of its Subsidiaries is engaged principally in, or has as one of its
important activities, the business of extending credit for the purpose of
purchasing or carrying, and neither the Borrower nor any of its Subsidiaries
owns or presently intends to acquire, any "margin security" or "margin stock" as
defined in Regulations G, T, U, and X (12 C.F.R. Parts 221 and 224) of the Board
of Governors of the Federal Reserve System (herein called "margin stock"). None
of the proceeds of the Loans will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin stock or for the purpose of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry margin stock or for any other purpose which might constitute this
transaction a "purpose credit" within the meaning of said Regulations G, T, U,
and X. Neither the Borrower, its Subsidiary, nor any bank acting on their
behalf has taken or will take any action which might cause this Agreement or the
Notes to violate Regulation G, T, U, or X or any other regulation of the Board
of Governors of the Federal Reserve System or to violate the applicable
provisions of the Securities Exchange Act of 1934, in each case as now in effect
or as the same may hereafter be in effect. If so requested by any Bank, the
Borrower and its Subsidiaries will furnish such Bank with (i) a statement or
statements in conformity with the requirements of Federal Reserve Forms G-3
and/or U-1 referred to in Regulations G and U of said Board of Governors and
(ii) other documents evidencing its compliance with the margin regulations,
including without limitation an opinion of counsel in form and substance
satisfactory to such Bank. Neither the making of the Loans nor the use of
proceeds thereof will violate, or be inconsistent with, the provisions of
Regulation G, T, U, or X of said Board of Governors.
(n) Investment Company Act. Neither the Borrower nor any of its
----------------------
Subsidiaries is required to register under the
-49-
provisions of the Investment Company Act of 1940, as amended, and neither the
entering into or performance by the Borrower and its Subsidiaries of this
Agreement and the other Loan Documents nor the issuance of the Notes violates
any provision of such Act or requires any consent, approval or authorization of,
or registration with, the Securities and Exchange Commission or any other
governmental or public body or authority pursuant to any provisions of such Act.
(o) Government Regulation. Neither the Borrower nor any of its
---------------------
Subsidiaries is required to obtain any consent, approval, authorization, permit
or license which has not already been obtained from, or effect any filing or
registration which has not already been effected with, any federal, state or
local regulatory authority in connection with the execution and delivery of this
Agreement or any other Loan Document. Neither the Borrower nor any of its
Subsidiaries is required to obtain any consent, approval, authorization, permit
or license which has not already been obtained from, or effect any filing or
registration which has not already been effected with, any federal, state or
local regulatory authorization in connection with the performance, in accordance
with their respective terms, of this Agreement or any other Loan Document, or
the borrowing hereunder, other than the filing of Uniform Commercial Code
continuation statements, filings and consents relating to the renewal of
Licenses and ongoing filings and consents relating to the Commission.
(p) Absence of Default. The Borrower and its Subsidiaries are in
------------------
compliance in all material respects with all of the provisions of their
respective partnership agreements or certificates or articles of incorporation
and by-laws, as the case may be, and no event has occurred or failed to occur
(including without limitation any matter which could create an Event of Default
hereunder by cross-default) which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes, or with the passage of time
or giving of notice or both would constitute, (i) an Event of Default or (ii) a
default by the Borrower or any of its Subsidiaries under any material indenture,
agreement or other instrument, including without limiting the foregoing the
Licenses, the Management Agreement, the Financial Advisory Agreement, and
material Pole Agreements, or any judgment, decree or order to which the Borrower
or any of its Subsidiaries is a party or by which the Borrower or any of its
Subsidiaries or any of their respective properties may be bound or affected.
(q) Accuracy and Completeness of Information. All information,
----------------------------------------
reports, prospectuses and other papers and data relating to the Borrower or any
of its Subsidiaries and furnished
-50-
by or on behalf of the Borrower or any of its Subsidiaries to the Agents and the
Banks, or any of them, were, at the time furnished, complete and correct in all
material respects to the extent necessary to give the recipients true and
accurate knowledge of the subject matter thereof. Notwithstanding the
foregoing, with respect to projections of the future performance of the Borrower
and its Subsidiaries, such representations and warranties are made in good faith
and to the best of the Borrower's knowledge. No fact or situation is currently
known to the Borrower which has had or which could reasonably be foreseen to
have a Materially Adverse Effect.
(r) Agreements with Affiliates and Management Agreement. Except for
---------------------------------------------------
the Management Agreement, the Financial Advisory Agreement and as set forth on
Schedule 8 attached hereto, neither the Borrower nor any of its Subsidiaries has
----------
(i) any agreements or binding arrangements of any kind with any Affiliates or
(ii) any management or consulting agreements of any kind with any third party
(including Affiliates).
(s) Payment of Wages. The Borrower and each of its Subsidiaries are
----------------
in compliance with the Fair Labor Standards Act, as amended, and the Borrower
and each of its Subsidiaries have paid all minimum and overtime wages required
by law to be paid to their respective employees.
(t) Priority. The Security Interest is a valid and, upon the due
--------
filing of appropriate UCC-1 financing statements, perfected security interest in
the Collateral securing, in accordance with the terms of the Security Documents,
the Obligations, and the Security Interest is subject to no Liens that are prior
to, on a parity with or junior to the Security Interest other than Permitted
Liens, and the Security Documents are enforceable as security for the
Obligations in accordance with their terms with respect to the Collateral
against the Borrower and its Subsidiaries and all other third parties other than
holders of the Permitted Liens, except as such enforceability may be limited by
(a) bankruptcy, insolvency, reorganization, moratorium or similar laws of
general applicability affecting the enforcement of creditors' rights and (b) the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) (insofar as
any such law relates to the bankruptcy, insolvency or similar event of the
Borrower or any of its Subsidiaries, as the case may be, or any other Person
pledging Collateral to secure the Obligations).
(u) No Adverse Change. Since December 31, 1994, there has occurred no
-----------------
event which has had or which could have a Materially Adverse Effect.
-51-
(v) Environmental Laws. Except as consistent with applicable
------------------
Environmental Laws, no Hazardous Substances are present on or below the surface
of the real property or, to the Borrower's knowledge, leased premises which
could give rise to any event or condition which could have a Materially Adverse
Effect. None of the soil, ground water, or surface water of such real property,
or, to the best of the Borrower's knowledge, such leased premises, is
contaminated in any material respect by any Hazardous Substance which could have
a Materially Adverse Effect. To the best of the Borrower's knowledge, there are
no incinerators, septic tanks, or cesspools located on such real property or on
such leased premises; all sewage is discharged into a public sanitary sewer
system; and no Hazardous Substances are emitted, discharged or released in any
material respect from such real property or leased premises, directly or
indirectly, into the atmosphere or any body of water. To the best of the
Borrower's knowledge, neither the Borrower nor any of its Subsidiaries nor any
present or former owner or operator of such real property (including, without
limitation, the Borrower) or such leased premises, has been identified as a
potentially responsible party for cleanup liability with respect to the
emission, discharge, or release of any Hazardous Substance. As of the date
hereof, no permits, licenses, or other authorizations issued pursuant to the
Environmental Laws are required for Borrower's ownership of the Collateral,
present use or occupancy of the real property or leased premises included in the
Collateral, or the present operation of the Systems the absence of which would
have a Materially Adverse Effect.
Section 4.2 Survival of Representations and Warranties, etc. All
-----------------------------------------------
representations and warranties made under this Agreement shall be deemed to be
made, and shall be true and correct, at and as of the Agreement Date, and shall
be true and correct in all material respects on the date of each Advance, except
to the extent any such representation or warranty relates solely, by its terms,
to an earlier date or time period. All representations and warranties made
under this Agreement shall survive, and not be waived by, the execution hereof
by the Agents and the Banks, any investigation or inquiry by any of the Agents
and the Banks, or the making of any Advance.
ARTICLE 5
General Covenants
-----------------
So long as any of the Obligations is outstanding and unpaid or the Borrower
shall have the right to borrow hereunder (whether or not the conditions to
borrowing have been or can be
-52-
fulfilled), and unless the Majority Banks shall otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. The Borrower
---------------------------------------------
will, and will cause each of its Subsidiaries to:
(a) preserve and maintain its existence in the state of its formation,
its material rights, franchises, licenses and privileges, including, without
limiting the foregoing, the Licenses (to the extent required to prevent the
occurrence of a Default under Section 8.1(o) hereof), all material Pole
Agreements, and all other Necessary Authorizations, and
(b) qualify and remain qualified and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
businesses requires such qualification or authorization.
Section 5.2 Business; Compliance with Applicable Law. The Borrower
----------------------------------------
will, and will cause each of its Subsidiaries to, (a) engage solely in the
business of constructing, maintaining and operating the System and of investing
in other cable television systems and engaging in other activities relating to
the cable television industry, and (b) comply in all material respects with the
requirements of Applicable Law.
Section 5.3 Maintenance of Properties. The Borrower will, and will
-------------------------
cause each of its Subsidiaries to, maintain or cause to be maintained in the
ordinary course of business in good repair, working order and condition
(reasonable wear and tear excepted) all properties used in their respective
businesses (whether owned or held under lease), and from time to time make or
cause to be made all needed and appropriate repairs, renewals, replacements,
additions, betterments and improvements thereto. The Borrower will, and will
cause each of its Subsidiaries to, operate all property owned or leased by it
such that no material obligation, including a cleanup obligation, shall arise
under any Environmental Law and Regulation, which obligation would constitute a
Lien (other than a Permitted Lien) or charge (prior to that in favor of the
Administrative Agent under the Security Documents) on any property of the
Borrower or any of its Subsidiaries.
Section 5.4 Accounting Methods and Financial Records. The Borrower
----------------------------------------
will, and will cause each of its Subsidiaries on a consolidated basis with the
Borrower to, maintain a system of accounting established and administered in
accordance with GAAP, keep adequate records and books of account in which
complete entries will be made in accordance with such accounting
-53-
principles consistently applied and reflecting all transactions required to be
reflected by such accounting principles, and keep accurate and complete records
of their respective properties and assets. The Borrower and its Subsidiaries
will maintain a fiscal year ending on December 31.
Section 5.5 Insurance. The Borrower will, and will cause each of its
---------
Subsidiaries to:
(a) Maintain insurance including, but not limited to, public liability
coverage insurance from responsible companies in such amounts and against such
risks to the Borrower and each of its Subsidiaries as shall be standard in the
cable television industry for cable television companies similar in size and
location to the Borrower and its Subsidiaries.
(b) Keep their respective assets insured by insurers on terms and in a
manner acceptable to the Majority Banks against loss or damage by fire, theft,
burglary, loss in transit, explosions and hazards insured against by extended
coverage, in amounts which are standard in the cable television industry for
cable television companies similar in size and location to the Borrower and its
Subsidiaries, all premiums thereon to be paid by the Borrower and its
Subsidiaries.
(c) Require that each insurance policy provide for at least thirty
(30) days' prior written notice to the Administrative Agent of any termination
of or proposed cancellation or nonrenewal of such policy, and that each
insurance policy insuring assets pledged to the Administrative Agent as
Collateral for the Obligations name the Administrative Agent as additional named
loss payee and additional insured to the extent of the Obligations secured by
such assets. All such amounts paid in respect of any such policy directly to
the Administrative Agent shall, provided no Default then exists, be applied to
the prepayment of the Obligations or the rebuilding or repairing of the portion
of the System giving rise to the payment of insurance benefits, as the Borrower
may elect; if a Default then exists, such amounts shall be applied by the
Administrative Agent, (i) prior to the acceleration of the Loans, as provided in
Section 2.9(c) hereof or, if the Majority Banks so elect, to the prepayment of
the Obligations or to the rebuilding or repairing of the portion of the System
giving rise to the payment of insurance benefits, and any balance thereof
remaining after payment in full of the Obligations shall be paid to the Borrower
or as otherwise required by law, and (ii) after the acceleration of the Loans,
as provided under Section 2.11(c) hereof.
Section 5.6 Payment of Taxes and Claims. The Borrower will, and will
---------------------------
cause each of its Subsidiaries to, pay and
-54-
discharge all taxes, including, without limitation, withholding taxes,
assessments and governmental charges or levies required to be paid by them or
imposed upon them or their income or profits or upon any properties belonging to
them prior to the date on which penalties attach thereto, and all lawful claims
for labor, materials and supplies which, if unpaid, might become a Lien or
charge upon any of their properties; except that no such tax, assessment,
charge, levy or claim need be paid which is being diligently contested in good
faith by appropriate proceedings and for which adequate reserves shall have been
set aside on the appropriate books, but only so long as such tax, assessment,
charge, levy or claim does not become a Lien or charge other than a Permitted
Lien and no foreclosure, distraint, sale or similar proceedings shall have been
commenced. The Borrower and each of its Subsidiaries shall timely file all
information returns required by federal, state or local tax authorities.
Section 5.7 Visits and Inspections. The Borrower will, and will cause
----------------------
each of its Subsidiaries to, permit representatives of the Administrative Agent
and the Banks upon two (2) days' prior notice, to (a) visit and inspect the
properties of the Borrower or any of its Subsidiaries at all reasonable times,
(b) inspect and make extracts from and copies of its books and records, and (c)
discuss with the principal officers of the Partners and the Manager, their
respective businesses, assets, liabilities, financial positions, results of
operations and business prospects.
Section 5.8 Payment of Indebtedness; Loans. Subject to any provisions
------------------------------
regarding subordination herein or in any other Loan Document, the Borrower will,
and will cause each of its Subsidiaries to, pay any and all of its Indebtedness
when and as it becomes due, other than amounts diligently disputed in good
faith.
Section 5.9 Use of Proceeds. The Borrower will use the aggregate
---------------
proceeds of the Loans (as set forth in the Requests for Advances issued from
time to time hereunder) to assume the liabilities of the General Partner under
the Prior Loan Agreement, which liabilities were previously assumed by CCELP, to
finance Capital Expenditures, for working capital and for other general
partnership needs as permitted under this Agreement.
Section 5.10 Management Services. The Borrower will obtain management
-------------------
services for the operation of the System from the Manager under the terms of the
Management Agreement.
Section 5.11 Indemnity. The Borrower, for itself and on behalf of each
---------
of its Subsidiaries, jointly and severally, will indemnify and hold harmless
each Bank, each Agent, and each of
-55-
their respective employees, representatives, officers and directors from and
against any and all claims, liabilities, losses, damages, actions, attorneys'
fees and demands by any party against the Banks and Agents, or any of them, (a)
resulting from any breach or alleged breach by the Borrower or any Subsidiary of
the Borrower of any representation or warranty made hereunder, or (b) arising
out of (i) the making or administration of the Loans, (ii) allegations of any
participation by the Banks and the Agents, or any of them, in the affairs of the
Borrower or any Subsidiary of the Borrower, or allegations that the Banks, and
the Agents, or any of them, has any joint liability with the Borrower or any
Subsidiary of the Borrower for any reason, or (iii) any claims against the Banks
and the Agents, or any of them, by any investor in or lender to the Borrower or
any Subsidiary of the Borrower, for any reason whatsoever; unless, in any case
referred to above, the Person seeking indemnification hereunder is determined to
have acted or failed to act with gross negligence or willful misconduct by a
non-appealable judicial order of a court of competent jurisdiction.
Section 5.12 Interest Rate Hedging. As of the Agreement Date, the
---------------------
Borrower shall have entered into (and shall at all times thereafter maintain)
one or more Interest Rate Hedge Agreements with respect to the Borrower's
interest obligations hereunder or under the Notes in an aggregate principal
amount of not less than fifty percent (50%) of the Obligations outstanding from
time to time. Such Interest Rate Hedge Agreements shall provide such interest
rate protection in conformity with the standards promulgated under the most
recent edition of ISDA's Code of Standard Wording, Assumptions and Provisions
for Swaps and for a weighted average period of not less than eighteen (18)
months from the date of such Interest Rate Hedge Agreement or, if earlier, until
the Maturity Date on terms reasonably acceptable to the Administrative Agent,
such terms to include consideration of the creditworthiness of the other party
to such Interest Rate Hedge Agreements. Any such Interest Rate Hedge Agreement
shall provide that the Borrower's obligations to pay interest in respect of the
notional amount thereunder shall not exceed, during the term of such Agreement,
two percent (2%) per annum in excess of the United States Treasury rate
currently in effect for an instrument of similar duration to the Interest Rate
Hedge Agreement in question, as such Treasury rate is in effect on the date of
such Agreement. All obligations of the Borrower to any of the Agents or the
Banks pursuant to any Interest Rate Hedge Agreement shall rank pari passu with
---- -----
the other Obligations.
Section 5.13 Covenants Regarding Formation of Subsidiaries. At the time
---------------------------------------------
of (i) any acquisition permitted hereunder, (ii) any Permitted Asset Swap
hereunder, (iii) the purchase by the Borrower or any of its Subsidiaries of all
-56-
minority (or remaining) interests in any Subsidiary of the Borrower, or (iv) the
formation of any new Subsidiary of the Borrower or any of its Subsidiaries which
is permitted under this Agreement, the Borrower will, and will cause its
Subsidiaries, as appropriate, to (a) provide to the Administrative Agent an
executed Subsidiary Security Agreement for such new Subsidiary, in substantially
the form attached to the Prior Loan Agreement as Exhibit J, together with
appropriate UCC-1 financing statements, as well as an executed Subsidiary
Guaranty for such new Subsidiary, in substantially the form attached to the
Prior Loan Agreement as Exhibit I, which shall constitute both Security
Documents and Loan Documents for purposes of this Agreement, as well as a loan
certificate for such new Subsidiary, in substantially the form attached to the
Prior Loan Agreement as Exhibit P, together with appropriate attachments; (b)
pledge to the Administrative Agent all of the stock or partnership interests (or
other instruments or securities evidencing ownership) of such Subsidiary or
Person which is acquired or formed, beneficially owned by the Borrower or any of
the Borrower's Subsidiaries, as the case may be, as additional Collateral for
the Obligations to be held by the Administrative Agent in accordance with the
terms of a pledge agreement in form and substance satisfactory to the Managing
Agents, and execute and deliver to the Administrative Agent all such
documentation for such pledge as, in the reasonable opinion of the Managing
Agents, is appropriate; and (c) with respect to any acquisition permitted
hereunder, any Permitted Asset Swap hereunder, or the formation of any new
Subsidiary which Subsidiary has assets or liabilities, or both, provide revised
financial projections for the remainder of the fiscal year and for each
subsequent year until the Maturity Date which reflect the effects of such
transaction, certified by the chief financial officer of the Borrower, together
with a statement by such Person that no Default exists or would be caused by
such acquisition or formation, and all other documentation, including one or
more opinions of counsel, reasonably satisfactory to the Managing Agents which
in their reasonable opinion is appropriate with respect to such transaction.
Any document, agreement or instrument executed or issued pursuant to this
Section 5.13 shall be a "Loan Document" for purposes of this Agreement.
Section 5.14 Payment of Wages. The Borrower and each of its Subsidiaries
----------------
shall at all times comply in all material respects with the requirements of the
Fair Labor Standards Act, as amended, including, without limitation, the
provisions of such Act relating to the payment of minimum and overtime wages as
the same may become due from time to time.
-57-
ARTICLE 6
Information Covenants
---------------------
So long as any of the Obligations is outstanding and unpaid or the Borrower
has a right to borrow hereunder (whether or not the conditions to borrowing have
been or can be fulfilled) and unless the Majority Banks shall otherwise consent
in writing, the Borrower will furnish or cause to be furnished to each Bank and
each Agent at their respective offices:
Section 6.1 Quarterly Financial Statements and Information. Within
----------------------------------------------
forty-five (45) days after the last day of each quarter in each fiscal year, the
balance sheet of the Borrower and its Subsidiaries on a consolidated basis as at
the end of such quarter and the related statement of income and statements of
cash flows of the Borrower and its Subsidiaries on a consolidated basis for such
quarter and for the elapsed portion of the year ended with the last day of such
quarter, which shall be certified by the chief financial officer of the
Borrower, to be, in his or her opinion, complete and correct in all material
respects and to present fairly, in accordance with GAAP, the financial position
of the Borrower and its Subsidiaries on a consolidated basis as at the end of
such period and the results of operations for such period, and for the elapsed
portion of the year ended with the last day of such period, subject only to
normal year-end adjustments. With respect to periods prior to the Agreement
Date, financial information of the General Partner and its Subsidiaries shall be
substituted for the financial information of the Borrower and its Subsidiaries
as if such financial information were that of the Borrower and its Subsidiaries.
Section 6.2 Annual Financial Statements and Information; Certificate of
-----------------------------------------------------------
No Default. Within one hundred twenty (120) days after the end of each fiscal
----------
year of the Borrower, (i) the audited consolidated balance sheet of the Borrower
and its Subsidiaries at the end of such fiscal year and the related statement of
income and retained earnings and related statement of cash flows of the Borrower
and its Subsidiaries for such fiscal year, which financial statements, shall set
forth in comparative form such figures as at the end of and for the previous
fiscal year, as applicable, and shall be accompanied by an opinion of
independent certified public accountants of recognized standing reasonably
satisfactory to the Majority Banks, together with a statement of such
accountants (A) to the effect that their audit examination has included a review
of Sections 7.7, 7.8, 7.9, 7.10 and 7.15 of the terms of this Agreement and the
Notes as they relate to accounting matters, (B) as to whether, in connection
with their audit examination,
-58-
any Default has come to their attention and if such a Default has come to their
attention, specifying the nature and period of existence thereof, and (C) that
such accountants have authorized the Borrower to deliver such financial
statements and opinion thereon to the Agents and the Banks pursuant to this
Agreement; and (ii) the statement of income of the Borrower and its Subsidiaries
for each grouping of the System then utilized by the Borrower and its
Subsidiaries (it being understood that the Borrower's current groupings are (1)
Western Connecticut, (2) Northeast Connecticut, and (3) St. Louis, Missouri) as
at the end of each fiscal year of the Borrower and its Subsidiaries, which shall
be certified by the chief financial officer of the Borrower, to be, in his or
her opinion, complete and correct in all material respects and to present
fairly, in accordance with GAAP, the financial position of such grouping as at
the end of such period and the results of operations for such period. With
respect to periods prior to the Agreement Date, the financial information of the
General Partner and its Subsidiaries shall be substituted for the financial
information of the Borrower and its Subsidiaries as if such financial
information were that of the Borrower and its Subsidiaries.
Section 6.3 Monthly Operating Reports. To the extent that the Leverage
-------------------------
Ratio for the most recently reported fiscal quarter exceeded 5.5:1, within
forty-five (45) days from the last day of each month, a monthly operating report
of the Borrower and its Subsidiaries on a consolidated basis, in substantially
the form attached hereto as Exhibit M. With respect to periods prior to the
---------
Agreement Date, the financial information of the General Partner and its
Subsidiaries shall be substituted for the financial information of the Borrower
and its Subsidiaries as if such financial information were that of the Borrower
and its Subsidiaries.
Section 6.4 Performance Certificates. At the time the financial
------------------------
statements are furnished pursuant to Sections 6.1 and 6.2, a certificate of an
Authorized Officer in form and substance satisfactory to the Majority Banks:
(a) setting forth as at the end of such quarterly period or fiscal
year, as the case may be, the arithmetical calculations required to establish
(i) the Leverage Ratio, Fixed Charges and Pro Forma Debt Service and (ii)
whether or not the Borrower was in compliance with the requirements of Sections
7.7, 7.8, 7.9, 7.10, and 7.15 hereof; and
(b) stating that, to the best of his or her knowledge, no Default or
Event of Default has occurred as at the end of such quarterly period or year, as
the case may be, or, if a Default or an Event of Default has occurred,
disclosing each such Default or
-59-
Event of Default and its nature, when it occurred, whether it is continuing and
the steps being taken by the Borrower with respect to such Default or Event of
Default.
With respect to periods prior to the Agreement Date, the financial information
of the General Partner and its Subsidiaries shall be substituted for the
financial information of the Borrower and its Subsidiaries as if such financial
information were that of the Borrower and its Subsidiaries.
Section 6.5 Copies of Other Reports.
-----------------------
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower in connection with an audit of the Borrower by the
Borrower's independent public accountants, including, without limitation, any
management report prepared in connection with the annual audit referred to in
Section 6.2.
(b) No later than January 31 of each year, a copy of the annual budget
for the Borrower and its Subsidiaries on a consolidated basis for such calendar
year, including the budget for Capital Expenditures.
(c) Promptly upon receipt thereof by an Authorized Officer, copies of
any material notice or report regarding any License from the grantor of such
License or regarding the System or any License from the Commission with respect
to (i) the suspension, revocation or modification of any License, (ii) a denial
of a request for a rate change, (iii) disciplinary proceedings involving the
Borrower or any of its Subsidiaries, (iv) notice of default or other non-
compliance by the Borrower or any of its Subsidiaries under any License, or (v)
any similar event or occurrence.
(d) Promptly upon receipt thereof by an Authorized Officer, copies of
any material correspondence from HC Crown Corp., a Delaware corporation, or any
of its Affiliates with respect to the Hallmark Subordinated Debt.
(e) From time to time and promptly upon each request, such data,
certificates, reports, statements, opinions of counsel, documents or further
information regarding the business, assets, liabilities, financial position,
projections, results of operations or business prospects of the Borrower or any
of its Subsidiaries, as the Administrative Agent or any Bank reasonably may
request.
(f) As soon as possible, and in any event within fifteen (15) days
after the Borrower knows that any of the events
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or conditions set forth below have occurred or exist, a statement signed by an
Authorized Officer setting forth details respecting such event or condition and
the action which the Borrower (or the applicable Subsidiary) proposes to take
with respect thereto (and a copy of any notices or other communications received
or given by the Borrower or the applicable Subsidiary, with respect thereto):
(i) any judgment, action, proceeding or investigation pending before
any court or governmental authority, bureau or agency, including, without
limitation, any environmental regulatory body, with respect to or
threatened against or affecting the Borrower or any of its Subsidiaries or
relating to the assets or liabilities of any of them (including, without
limitation, in respect of any "facility" owned, leased or operated by any
of them under the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, or under any state, local or municipal
statute, ordinance or regulation in respect thereof, in connection with any
release of any toxic or hazardous waste or chemical substance, pollutant or
contaminant into the environment, or with the generation, storage or
disposal of any toxic or hazardous wastes or other chemical substances),
which could have a Materially Adverse Effect or materially impair the value
of the Collateral;
(ii) any liability or threatened liability of the Borrower or any of
its Subsidiaries (a) under any Applicable Law for any release of a
hazardous substance caused by the seeping, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
dumping or disposing of hazardous wastes or other chemical substances,
pollutants or contaminants into the environment, or (b) for the costs of
any cleanup or other remedial action including, without limitation, costs
arising out of security fencing, alternative water supplies, temporary
evacuation and housing and other emergency assistance undertaken by any
environmental regulatory body having jurisdiction over the Borrower or any
of its Subsidiaries to prevent or minimize any actual or threatened release
by the Borrower or any of its Subsidiaries, of any hazardous wastes or
other chemical substances, pollutants and contaminants into the environment
which would endanger the public health or the environment which could in
either case have a Materially Adverse Effect; and
(iii) any change or proposed change in any law, rule, regulation or
order (including without limitation, Environmental Laws) of any
governmental body or regulatory
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authority, other than proposed changes of general applicability, which
could have a Materially Adverse Effect.
Section 6.6 Notice of Litigation and Other Matters. Prompt notice of
--------------------------------------
the following events after an Authorized Officer has received notice or
otherwise become aware thereof:
(a) the commencement of all proceedings and investigations by or
before any governmental body and all actions and proceedings in any court or
before any arbitrator against or to the extent known to the Borrower or any of
its Subsidiaries in any other way relating materially adversely and directly to
the Borrower or any Subsidiary of the Borrower, CCELP, the General Partner or
the Manager, or any of their respective properties, assets or businesses or any
License;
(b) any material adverse change with respect to the business, assets,
liabilities, financial position, results of operations or business prospects of
the Borrower or any Subsidiary of the Borrower, the Manager, CCELP or the
General Partner, other than changes in the ordinary course of business which
have not had and are not likely to have a Materially Adverse Effect;
(c) any material amendment or change to any budget submitted under
Section 6.5(b) hereof for the operation of the System;
(d) any Default or the occurrence or non-occurrence of any event (i)
which constitutes, or which with the passage of time or giving of notice or both
would constitute a default by the Borrower or any Subsidiary of the Borrower,
CCELP or the General Partner under any material agreement other than this
Agreement to which the Borrower, or any Subsidiary of the Borrower, CCELP or the
General Partner is party or by which any of its respective properties may be
bound, or (ii) which could have a Materially Adverse Effect, giving in each case
the details thereof and specifying the action proposed to be taken with respect
thereto;
(e) the occurrence of any Reportable Event or a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975 of
the Code) with respect to any Plan of the Borrower or any Subsidiary of the
Borrower or the institution or threatened institution by the Pension Benefit
Guaranty Corporation of proceedings under ERISA to terminate or to partially
terminate any such Plan or the commencement or threatened commencement of any
litigation regarding any such Plan or naming it or the trustee of any such Plan
with respect to such Plan; and
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(f) the occurrence of any event subsequent to the Agreement Date
which, if such event had occurred prior to the Agreement Date, would have
constituted an exception to the representation and warranty in Section 4.1(l) of
this Agreement.
ARTICLE 7
Negative Covenants
------------------
So long as any of the Obligations is outstanding and unpaid or the Borrower
has a right to borrow hereunder (whether or not the conditions to borrowing have
been or can be fulfilled) and unless the Majority Banks shall otherwise give
their prior consent in writing:
Section 7.1 Indebtedness of the Borrower. The Borrower shall not, and
----------------------------
shall not permit any of its Subsidiaries to, create, assume, incur or otherwise
become or remain obligated in respect of, or permit to be outstanding, any
Indebtedness except:
(a) Indebtedness arising under this Agreement, the Notes and the other
Loan Documents;
(b) Accounts payable, subscriber deposits, accrued expenses and
customer advance payments incurred in the ordinary course of business, which are
(1) current or (2) being contested in good faith by appropriate proceedings and
for which the Borrower or any of its Subsidiaries, as the case may be, has
established adequate reserves on its respective books;
(c) Capitalized Lease Obligations in an amount not in excess of
$3,000,000 in the aggregate;
(d) Accrued but unpaid management fees and financial advisory fees and
any interest thereon due pursuant to the Management Agreement and the Financial
Advisory Agreement, respectively, subject to the terms of the Subordination of
Management and Financial Advisory Fees Agreement;
(e) Any other Indebtedness (including, without limitation,
Indebtedness secured by Permitted Liens) in an aggregate outstanding principal
amount at any time not to exceed $5,000,000;
(f) Obligations under Interest Rate Hedge Agreements; and
(g) Indebtedness arising under payment and performance bonds and
letters of credit issued for the Borrower's account, or
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the account of a Subsidiary of the Borrower, in the ordinary course of the
Borrower's or such Subsidiary's business in favor of the grantors of the
Licenses and the Pole Agreements, in an aggregate amount not to exceed
$3,000,000.
Section 7.2 Limitation on Liens. The Borrower shall not, and shall not
-------------------
permit any of its Subsidiaries to, create, assume, incur or permit to exist or
to be created, assumed, incurred or permitted to exist, directly or indirectly,
any Lien on any of its properties or assets, whether now owned or hereafter
acquired, except for Permitted Liens, and the Borrower shall not, and shall not
permit any of its Subsidiaries to, undertake, covenant or agree with any third
party that it will not create, assume, incur or permit to exist or to be
created, assumed, incurred or permitted to exist any Lien on any of its assets
or properties (other than property subject to a Permitted Lien referred to in
clause (e) or (h) of the definition of Permitted Liens).
Section 7.3 Amendment and Waiver. The Borrower shall not, and shall not
--------------------
permit any of its Subsidiaries to, enter into any amendment of, or agree to or
accept or consent to any waiver of any of the provisions of (a) its certificate
or articles of incorporation, by-laws or partnership agreement, as the case may
be, (b) the Management Agreement which materially alters the duties and
obligations of the Manager thereunder, (c) the Financial Advisory Agreement
which materially alters the duties and obligations of ▇▇▇▇▇ thereunder, (d) any
Loan Document, or (e) any License (other than amendments and waivers in
connection with the renewal thereof). The foregoing notwithstanding, (A) any
such certificate or articles of incorporation, by-laws or partnership agreement
may be amended or modified without the prior written consent of any of the Banks
provided (i) no such amendment or modification adversely affects the rights of
the Agents or the Banks under the Loan Documents, and (ii) copies of all
documents evidencing or related to such amendment or modification are furnished
to the Agents and the Banks within five (5) days prior to its effective date,
and (B) any Licenses may be amended or modified without the prior written
consent of any of the Banks in connection with renewals thereof in any case, and
otherwise, provided such Licenses account for less than (i) five percent (5%) of
--------
the Basic Subscribers of the Borrower and its Subsidiaries in the aggregate
during any calendar year and (ii) twenty percent (20%) of the Basic Subscribers
of the Borrower and its Subsidiaries in the aggregate during the term of this
Agreement.
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Section 7.4 Liquidation, Change in Ownership, Disposition or Acquisition
------------------------------------------------------------
of Assets.
---------
(a) The Borrower shall not, and shall not permit any of its
Subsidiaries to, at any time (i) liquidate, dissolve or terminate itself (or
suffer any liquidation, dissolution or termination) or otherwise wind up,
provided that the Borrower may dissolve such of its Subsidiaries as have no
assets and no liabilities, (ii) enter into any merger, other than, so long as no
Default then exists or would be caused thereby, a merger or consolidation among
the Borrower and one or more of its Subsidiaries, provided that the Borrower is
the surviving entity, or a merger or consolidation among two (2) or more
Subsidiaries of the Borrower, (iii) create any Subsidiary, unless no Default
then exists or would be caused by the creation of any such Subsidiary and unless
the Borrower first complies with the terms of Section 5.13 hereof, or (iv)
except pursuant to a Permitted Asset Swap, sell, lease, abandon, transfer or
otherwise dispose of any of its assets, property or business to the extent that
the fair market value of such assets exceeds $5,000,000 in the aggregate during
the term hereof (excluding such sales, leases, transfers or other dispositions
in the ordinary course of the Borrower's or any of its Subsidiaries' business).
All Net Proceeds received by the Borrower or any of its Subsidiaries from any
sale, lease, transfer or other disposition of assets permitted hereunder
(excluding such sales, leases, transfers or other dispositions in the ordinary
course of the Borrower's or any of its Subsidiaries' business) shall be used to
repay or prepay on the closing date of such sale an identical amount of the
outstanding principal amount of the Loans to the extent required under Section
2.7 hereof. In the event the Borrower or any of its Subsidiaries sells or
otherwise disposes of any assets in accordance with this Section, the Agents and
the Banks will, upon receipt of the Net Proceeds of such sale or other
disposition in repayment of the Loans to the extent required under Section 2.7
hereof, release their Liens on the assets so sold, leased, transferred or
otherwise disposed.
(b) The Borrower shall not, and shall not permit any of its
Subsidiaries to, at any time acquire any assets, property or business of any
other Person, or acquire stock, partnership or other ownership interests in any
other Person, other than (i) the acquisition of the assets of the General
Partner and Cencom from CCELP on the Agreement Date, (ii) in the ordinary course
of business of the Borrower or its Subsidiaries, (iii) as permitted by the
limitations on Capital Expenditures set forth in Section 7.15 hereof, (iv) so
long as no Default hereunder then exists or would be caused thereby,
acquisitions of cable television systems for a purchase price not to exceed
$5,000,000 in the aggregate in any fiscal year and $10,000,000 in the aggregate
during the term
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hereof, plus the aggregate amount of any Excess Cash Flow which, in accordance
with Section 7.7(c) hereof, would be permitted to be distributed to the Partners
and which are not so distributed, (v) pursuant to a Permitted Asset Swap, (vi)
as permitted pursuant to Section 7.7(c) hereof, (vii) to acquire assets with
insurance proceeds as permitted by Section 5.5(c) hereof, and (viii) with
respect to the transfer of assets between and among the Borrower or any of its
Subsidiaries, subject to the provisions of Section 5.13 hereof.
(c) So long as no Default then exists or would be caused thereby, the
Borrower or one or more of its Subsidiaries may enter into a Permitted Asset
Swap, so long as (i) not less than thirty (30) days prior to the execution of
contracts or agreements (other than substantially non-binding letters of intent)
relating to any such Permitted Asset Swap, the Borrower provides the Agents and
the Banks with written notice of its intent to enter into such a transaction,
together with copies of all material documents and any other information which
may be reasonably requested by the Administrative Agent or any Bank with respect
thereto, (ii) not less than ten (10) days prior to the execution of contracts or
agreements (other than substantially non-binding letters of intent) relating to
any such transaction, the Borrower provides the Agents and the Banks with a
certificate of its chief financial officer stating that no Default then exists
or would be caused by the consummation of the Permitted Asset Swap and setting
forth calculations specifically demonstrating the Borrower's pro forma
compliance with Sections 7.8, 7.9 and 7.10 hereof through the remaining term of
this Agreement, after giving effect to the consummation of such transaction, and
(iii) the Net Proceeds of any sale, lease, transfer or other disposition of any
assets constituting a part of such Permitted Asset Swap are delivered to the
Administrative Agent and distributed in the manner set forth in Section 2.7(b)
hereof.
Upon any acquisition by the Borrower and its Subsidiaries, the Borrower shall
immediately cause all assets and other properties, of whatever nature, to be
pledged to the Administrative Agent as Collateral for the Obligations pursuant
to Section 5.13 hereof to the extent that the existing Security Documents do not
already so provide.
Section 7.5 Limitation on Guaranties. The Borrower shall not, and shall
------------------------
not permit any of its Subsidiaries to, at any time Guaranty, assume, be
obligated with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person other than (a) Guaranties by endorsement of
negotiable instruments for collection in the ordinary course of business, (b)
obligations under agreements of the Borrower or any of its
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Subsidiaries entered into in connection with the acquisition of services,
supplies and equipment in the ordinary course of business of the Borrower or any
of its Subsidiaries, and (c) Guaranties described in Section 7.1(g) hereof.
Section 7.6 Investments. The Borrower shall not, and shall not permit
-----------
any of its Subsidiaries to, make any loan or advance, or otherwise acquire for a
consideration evidences of Indebtedness, capital stock or other securities of or
equity interests in any Person, except that so long as no Event of Default then
exists or would be caused thereby, the Borrower or any of its Subsidiaries may
(i) purchase marketable, direct obligations of the United States of America
maturing within three hundred sixty-five (365) days of the date of purchase,
(ii) purchase commercial paper issued by corporations, each of which conducts a
substantial part of its business in the United States of America, maturing
within one hundred and eighty (180) days from the date of the original issue
thereof, and rated "P-1" or better by ▇▇▇▇▇'▇ Investors Service, (iii) purchase
repurchase agreements and certificates of deposit maturing within three hundred
sixty-five (365) days of the date of purchase which are issued by any Bank or by
a United States national or state bank having capital, surplus and undivided
profits totaling more than $250 million and rated "A" or better by ▇▇▇▇▇'▇
Investors Service, (iv) make acquisitions as permitted pursuant to Section 7.4
hereof, (v) make loans and advances to officers and employees (other than
officers and employees, if any, who are shareholders of ▇▇▇▇▇ or the Manager),
in an aggregate outstanding amount not to exceed $750,000, in the ordinary
course of the Borrower's business, and (vi) make loans or advances to, and other
investments in, the Borrower or any wholly-owned Subsidiaries of the Borrower.
Section 7.7 Restricted Payments and Purchases. The Borrower shall not,
---------------------------------
and shall not permit any of its Subsidiaries to, directly or indirectly declare
or make any Restricted Payment or Restricted Purchase, except that Subsidiaries
of the Borrower may make Restricted Payments to the Borrower and to other
wholly-owned Subsidiaries of the Borrower, and except further that the Borrower
may:
(a) accrue management fees under the Management Agreement and accrue
financial advisory fees under the Financial Advisory Agreement, subject to the
provisions of the Subordination of Management and Financial Advisory Fees
Agreement and this Agreement;
(b) so long as no Default hereunder then exists or would be caused
thereby, during the period from January 18, 1995 through and including December
31, 1998, pay management fees and
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expenses and financial advisory fees and expenses in an aggregate amount for any
fiscal year not to exceed $3,650,000, except that with respect to the fiscal
year ending December 31, 1995, such amount shall not exceed the difference
between (i) $3,650,000 minus (ii) management fees and expenses and financial
-----
advisory fees and expenses paid by the General Partner for the period from and
after January 18, 1995 through and including the Agreement Date, as the same may
become due and payable under the Management Agreement and the Financial Advisory
Agreement, or, in the case of the General Partner, the predecessors to such
Agreements;
(c) subject to the provisions of Section 2.7(c) hereof, so long as no
Default hereunder then exists or would be caused thereby, and so long as the
Leverage Ratio is less than 5.5:1, on or after April 30, 1998 and on or after
each April 30th thereafter, use up to fifty percent (50%) of Annual Excess Cash
Flow for the most recently ended fiscal year of the Borrower to (i) make
distributions to the Partners, or (ii) make acquisitions otherwise permitted
under Section 7.4(b) hereof;
(d) not less than five (5) days prior to the making of any such
payment described in Section 7.7(b) or (c) above, the Borrower shall notify the
Agents and the Banks in writing of its intent to make such a payment (making
reference to this Section 7.7) and the proposed amount and nature of such
payment, and shall provide the Agents and the Banks with calculations
specifically demonstrating the Borrower's compliance with Sections 7.8, 7.9 and
7.10 hereof, both before and after giving effect to such payment;
(e) so long as no Default hereunder then exists or would be caused
thereby, make Tax Distributions to the Partners;
(f) so long as no Default hereunder then exists or would be caused
thereby, distribute to the General Partner the amount of any accounting fees and
any fees of other professionals with respect to the preparation of financial
statements and tax returns of the General Partner solely with respect to matters
involving the Borrower and its Subsidiaries and related matters arising in the
ordinary course of business of the General Partner with respect to the Borrower
and its Subsidiaries; and
(g) so long as no Default hereunder then exists or would be caused
thereby, pay fees of technical and other consultants in the ordinary course of
the Borrower's and its Subsidiaries' business, so long as such consultants are
not Affiliates.
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Section 7.8 Leverage Ratio. (a) As of the end of any calendar quarter,
--------------
and (b) at the time of any Advance which increases the outstanding principal
amount of the Loans (after giving effect to such Advance), the Borrower shall
not permit the Leverage Ratio for the calendar quarter end being tested in the
case of Section 7.8(a) above, or the most recent quarter end for which financial
statements are required to have been provided to the Agents and the Banks
pursuant to Section 6.1 hereof in the case of Section 7.8(b) above and after
giving effect to the Advance as of such date, to exceed the ratios set forth
below for calculation dates using financial statements for periods ending during
the periods shown below:
Leverage
Period Ratio
------ -----
From January 18, 1995
through December 31, 1995 6.50:1
From January 1, 1996
through June 30, 1996 6.25:1
From July 1, 1996
through December 31, 1996 6.00:1
From January 1, 1997
through June 30, 1997 5.75:1
From July 1, 1997
through December 31, 1997 5.50:1
From January 1, 1998
through December 31, 1998 5.00:1
From January 1, 1999
through December 31, 1999 4.50:1
From January 1, 2000
and thereafter 4.00:1
Section 7.9 Annualized Operating Cash Flow to Fixed Charges Ratio. As
-----------------------------------------------------
of March 31, 1997 and as of the end of each calendar quarter thereafter, the
Borrower shall not permit the ratio of Annualized Operating Cash Flow for the
calendar quarter end being tested to Fixed Charges for the four (4) calendar
quarters immediately preceding the calculation date to be less than 1.0 to 1.0.
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Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt Service.
--------------------------------------------------------
(a) As of the end of any calendar quarter, and (b) at the time of any Advance
which increases the outstanding principal amount of the Loans (after giving
effect to such Advance), the Borrower shall not permit the ratio of Annualized
Operating Cash Flow for the calendar quarter end being tested in the case of
Section 7.10(a) above, or the most recent quarter end for which financial
statements are required to be delivered to the Agents and the Banks pursuant to
Section 6.1 hereof in the case of Section 7.10(b) above, to Pro Forma Debt
Service for the immediately succeeding four (4) calendar quarters, to be less
than the ratio set forth below for calculation dates using financial statements
for quarters ending during the periods set forth below:
Period Ratio
------ -----
From January 18, 1995
through December 31, 1997 1.20:1
From January 1, 1998
and thereafter 1.10:1
Section 7.11 Affiliate Transactions. Except as specifically provided in
----------------------
Section 7.7 hereof and otherwise specifically provided herein, the Borrower
shall not, and shall not permit any of its Subsidiaries to, at any time engage
in any transaction with an Affiliate, nor make an assignment or other transfer
of any of its properties or assets to any Affiliate on terms less advantageous
to the Borrower or such Subsidiary than would be the case if such transactions
had been effected on an arm's length basis with a non-Affiliate. In addition,
the Borrower and any of its Subsidiaries shall receive the full benefit of any
discounts, rebates or special payment terms for pay television programming
available to the Manager which the Manager is permitted to pass through to the
Borrower or such Subsidiary, but which are not available to the Borrower or such
Subsidiary from a non-Affiliate.
Section 7.12 Real Estate. The Borrower shall not, and shall not permit
-----------
any of its Subsidiaries to, purchase or become obligated to purchase real estate
(other than easements, rights-of-way, restrictions and other similar
encumbrances on the use of real property), other than purchases, with a value of
less than $500,000 for any single purchase, and less than $1,000,000 in the
aggregate for all purchases after the Agreement Date.
Section 7.13 Limitation on Leases. The Borrower shall not make or be or
--------------------
become obligated to make, or permit any of its
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Subsidiaries to make or be or become obligated to make, any payment in respect
of any obligations as lessee under a lease, except for (x) payments under leases
to be used in connection with the operation of its business which, when
aggregated with all other payments under such leases by the Borrower and its
Subsidiaries would not exceed in the aggregate during any one fiscal year of the
Borrower, $1,500,000, and during the term of this Agreement, $10,000,000, and
(y) payments relating to Capitalized Lease Obligations permitted hereby.
Section 7.14 ERISA Liabilities. The Borrower shall not, and shall not
-----------------
permit any of its Subsidiaries to, allow any of their respective Plans to have
an accumulated funding deficiency as defined in Code Section 4971(c)(ii) and
measured at the end of any Plan year. The Borrower shall not, and shall not
permit any of its Subsidiaries to become a participant in any Multiemployer
Plan.
Section 7.15 Capital Expenditures. The Borrower shall not permit the
--------------------
aggregate amount of Capital Expenditures made by the Borrower and its
Subsidiaries (and, prior to the Agreement Date, by the General Partner and its
Subsidiaries), on a consolidated basis, in any period set forth below to exceed
as of the end of such period the sum of (a) the limit for such period, as set
forth below, plus (b) any unexpended portion of the Capital Expenditures limit
set forth below for the preceding period.
Capital
Period Expenditures Limit
------ ------------------
From January 18, 1995
through December 31, 1995 $ 23,500,000
From January 1, 1996
through December 31, 1996 $ 18,500,000
There shall be no dollar limitation on Capital Expenditures after December 31,
1996.
Section 7.16 No Limitation on Upstream Dividends by Subsidiaries. The
---------------------------------------------------
Borrower shall not permit any of its Subsidiaries to enter into or agree, or
otherwise become subject, to any agreement, contract or other arrangement with
any Person pursuant to the terms of which (a) such Subsidiary is or would be
prohibited from declaring or paying any cash dividends or distributions on any
class of its stock or any partnership interests owned directly or indirectly by
the Borrower or from making any other distribution on account of any class of
any such
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stock or any such partnership interests (herein referred to as "Upstream
Dividends") or (b) the declaration or payment of Upstream Dividends by a
Subsidiary of the Borrower to the Borrower or to another Subsidiary of the
Borrower, on an annual or cumulative basis, is or would be otherwise limited or
restricted.
ARTICLE 8
Default
-------
Section 8.1 Events of Default. Each of the following shall constitute
-----------------
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
(a) Any representation or warranty made under this Agreement shall
prove incorrect or misleading in any material respect when made or deemed to be
made pursuant to Section 4.2 hereof;
(b) The Borrower shall default in the payment of (i) any interest
under the Notes, or any of them, or fees or other amounts payable hereunder or
under any other Loan Document (other than as provided in Section 8.1(b)(ii)
hereof), when due, which Default is not cured within three (3) days from the
date such payment shall become due, or (ii) any principal under the Notes, or
any of them, when due;
(c) The Borrower shall default (i) in the performance or observance of
any agreement or covenant contained in Article 7 hereof, (ii) in the performance
or observance of any negative covenant contained in any of the Loan Documents,
or (iii) in providing any financial statement or report under Article 6 hereof
which would permit the Agents and the Banks to determine whether the Borrower
was in Default under Article 7 hereof;
(d) The Borrower shall default in the performance or observance of any
other agreement or covenant contained in this Agreement not specifically
referred to elsewhere in this Section 8.1, and such default shall not be cured
to the Majority Banks' satisfaction within a period of thirty (30) days from the
date on which any Authorized Officer becomes aware of or receives notice of the
occurrence of such default;
(e) There shall occur any default in the performance or observance of
any agreement or covenant or material breach of
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any representation or warranty contained in any of the Loan Documents (other
than this Agreement or as otherwise provided in Section 8.1 of this Agreement),
which shall not be cured to the Majority Banks' satisfaction within a period of
thirty (30) days from the date on which any Authorized Officer becomes aware or
receives notice of the occurrence of such default;
(f) There shall be entered a decree or order for relief in respect of
the Manager, CCELP, the General Partner, the Borrower or any of the Borrower's
Subsidiaries under Title 11 of the United States Code, as now constituted or
hereafter amended, or any other applicable Federal or state bankruptcy law or
other similar law, or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or similar official of the Manager, CCELP, the General
Partner, the Borrower or any of the Borrower's Subsidiaries or of any
substantial part of its respective properties, or ordering the winding-up or
liquidation of the affairs of the Manager, CCELP, the General Partner, the
Borrower or any of the Borrower's Subsidiaries or an involuntary petition shall
be filed against the Manager, CCELP, the General Partner, the Borrower or any of
the Borrower's Subsidiaries, and (i) such petition shall not be diligently
contested, or (ii) any such petition shall continue undismissed for a period of
sixty (60) consecutive days;
(g) The Borrower, the Manager, CCELP, the General Partner, or any of
the Borrower's Subsidiaries shall file a petition, answer or consent seeking
relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other applicable Federal or state bankruptcy law or other
similar law, or the Manager, CCELP, the General Partner, the Borrower or any of
the Borrower's Subsidiaries shall consent to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment or taking
of possession of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Manager, CCELP, the General
Partner, the Borrower or any of the Borrower's Subsidiaries or of any
substantial part of its respective properties, or the Manager, CCELP, the
General Partner, the Borrower or any of the Borrower's Subsidiaries shall fail
generally to pay its debts as they become due (other than to the extent required
with respect to the General Partner, under the Subordination Agreement and the
terms of the Hallmark Subordinated Debt), or the Manager, CCELP, the General
Partner, the Borrower or any of the Borrower's Subsidiaries shall take any
action in furtherance of any such action;
(h) A final judgment shall be entered by any court against the
Borrower or any of the Borrower's Subsidiaries for the payment of money which
exceeds any insurance coverage which
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is uncontested by the insurance carrier by $3,000,000 or more, or a warrant of
attachment or execution or similar process shall be issued or levied against
property of the Borrower or any of the Borrower's Subsidiaries which, together
with all other such property of the Borrower or any of the Borrower's
Subsidiaries subject to other such process, exceeds in value any insurance
coverage which is uncontested by the insurance carrier by $3,000,000 or more in
the aggregate, and if, within thirty (30) days after the entry, issue or levy
thereof, such judgment, warrant or process shall not have been paid or
discharged or stayed pending appeal, or if, after the expiration of any such
stay, such judgment, warrant or process shall not have been paid or discharged;
(i) There shall be at any time any "accumulated funding deficiency," as
defined in ERISA or in Section 412 of the Code, with respect to any Plan
maintained by the Borrower or any of its Subsidiaries, or to which the Borrower
or any of its Subsidiaries has any liabilities, or any trust created thereunder;
or a trustee shall be appointed by a United States District Court to administer
any such Plan; or the Pension Benefit Guaranty Corporation shall institute
proceedings to terminate any such Plan; or the Borrower or any of its
Subsidiaries shall incur any liability to the Pension Benefit Guaranty
Corporation in connection with the termination of any such Plan; or any Plan or
trust created under any Plan of the Borrower or any of its Subsidiaries shall
engage in a "prohibited transaction" (as such term is defined in Section 406 of
ERISA or Section 4975 of the Code) which would subject any such Plan, any trust
created thereunder, any trustee or administrator thereof, or any party dealing
with any such Plan or trust to the tax or penalty on "prohibited transactions"
imposed by Section 502 of ERISA or Section 4975 of the Code; or the Borrower or
any of its Subsidiaries shall enter into or become obligated to contribute to a
Multiemployer Plan;
(j) Any Materially Adverse Effect shall occur, or any event shall
occur which has a materially adverse effect upon the business, assets,
liabilities, financial condition, results of operations or business prospects of
CCELP or the General Partner;
(k) There shall occur any failure by the Borrower or any of the
Borrower's Subsidiaries to pay any Indebtedness when due (after any applicable
cure period) or there shall occur any default which entitles the holders to
accelerate the maturity thereof under, in either case, any agreement or
instrument evidencing Indebtedness of the Borrower or any of the Borrower's
Subsidiaries in an aggregate principal amount exceeding $3,000,000; or there
shall occur any material default under any
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Interest Rate Hedge Agreement having a notional principal amount of $3,000,000
or more;
(1) There shall occur any default which entitles the holders to
accelerate the maturity thereof under any agreement or instrument evidencing
Indebtedness for Money Borrowed of Holdings, CCELP or the General Partner, in an
aggregate principal amount exceeding $3,000,000;
(m) The Borrower shall at any time fail to obtain management services
pursuant to the Management Agreement, for itself and its Subsidiaries, from the
Manager or any permitted transferee, successor or assignee Manager agreed to in
writing by the Majority Banks for a period of thirty (30) consecutive days, or
there shall occur any event which could have a materially adverse effect upon
the ability of the Manager or any permitted transferee, successor or assignee
Manager agreed to in writing by the Majority Banks to fulfill its obligations
under the Management Agreement and the possibility that such event could have
such a materially adverse effect shall continue to exist on the thirty-first
(31st) day after the occurrence of such event;
(n) Any one or more of the following shall occur with respect to
Licenses which account for five percent (5%) or more of the Basic Subscribers:
(i) any License shall be revoked and such revocation shall not be waived
or stayed, or there shall occur a material default by the Borrower or any
of its Subsidiaries under any License which shall not have been waived
within thirty (30) days of the occurrence thereof, or any proceedings shall
in any way be brought to challenge (and shall continue uncontested for a
period of thirty (30) days) the validity or enforceability of any License,
or
(ii) a proceeding for the renewal of any License shall not be commenced
at least one year prior to its expiration, or
(iii) any License shall expire due to termination, nonrenewal or for any
other reason, which, together with any other such Licenses described in
this Section 8.1(n), account for five percent (5%) or more of the Basic
Subscribers;
(o) Any material provision of any Loan Document shall at any time and
for any reason be declared to be null and void, or a proceeding shall be
commenced by the Borrower or any of its Subsidiaries, or by any governmental
authority (other than the grantor of any License in a proceeding pertaining to
such
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License) having jurisdiction over the Borrower or any of its Subsidiaries,
seeking to establish the invalidity or unenforceability thereof (exclusive of
questions of interpretation of any provision thereof), or the Borrower or any of
its Subsidiaries shall deny that it has any liability or obligation for the
payment of principal or interest purported to be created under any Loan
Document;
(p) Any Security Document shall for any reason (other than failure to
file UCC continuation statements), fail or cease (except by reason of lapse of
time) to create a valid and perfected and, except to the extent permitted by the
terms hereof or thereof, first priority lien on or security interest in any
material portion of the Collateral purported to be covered thereby;
(q) ▇▇▇▇▇ shall for any reason fail to own, directly or indirectly,
beneficially and of record, (i) prior to an initial public offering of its
capital stock by the General Partner, at least fifty-one percent (51%), and (ii)
after an initial public offering of its capital stock by the General Partner, at
least thirty-five percent (35%) of all economic ownership interests in, and
voting rights with respect to the capital stock of, the General Partner; or
▇▇▇▇▇ shall for any reason fail to have the power to elect a majority of the
board of directors of the General Partner; or ▇▇▇▇▇ shall for any reason fail to
be the shareholder which owns, legally and beneficially, the largest percentage
of all classes of the issued and outstanding capital stock of the General
Partner;
(r) ▇▇▇▇▇ shall for any reason fail to own, directly or indirectly,
beneficially and of record, at least fifty-one percent (51%) of all economic
ownership interests in, and voting rights with respect to CCELP; or ▇▇▇▇▇ shall
for any reason fail to have, directly or indirectly, the largest share of voting
rights with respect to CCELP; or ▇▇▇▇▇ shall for any reason fail to be the
entity which owns, directly or indirectly, legally and beneficially, the largest
percentage of all partnership interests in CCELP;
(s) The General Partner shall cease to be the managing general
partner of the Borrower or the sole general partner of the Borrower; or CCELP
shall cease to own, directly or indirectly, beneficially and of record, at least
seventy-five percent (75%) of all economic ownership interests in, and voting
rights with respect to the Borrower;
(t) Unless the Majority Banks have otherwise agreed in writing:
(i) (1) each of ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (or any
substitute general partner which is not
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rejected by the Majority Banks, as provided below) shall cease for any reason to
be a general partner of Charter Communications Group, or (2) Charter
Communications Group shall for any reason fail to be controlled, directly or
indirectly, by at least one of such individuals, or (3) a majority of the voting
equity of and economic interests in Charter Communications Group shall for any
reason fail to be owned by at least one of such individuals; provided, however,
that if any of the events described in clause (1), (2) or (3) above occurs
solely as a result of the death, disability or legal incapacity of any such
individual (or any substitute general partner which is not rejected by the
Majority Banks, as provided below), such event shall not constitute an Event of
Default unless (w) thirty (30) days after the occurrence of such event, the
Borrower shall have failed to provide the Agents and the Banks with a written
proposal as to the identity of one or more willing substitute general partners
of Charter Communications Group, together with a list of the names of the
Charter Communications Group, or (x) the Majority Banks shall have rejected, in
writing, any such proposal given (within such thirty (30) day period) by the
Borrower or (y) any such substitute general partner shall fail to become a
general partner of Charter Communications Group within a reasonable time
thereafter or (z) the senior management proposed by the Borrower as set forth in
clause (w) above, or any combination thereof, shall for any reason fail to
engage in senior management of Charter Communications Group; or (ii) Charter
Communications Group shall for any reason fail to control Charter
Communications, Inc., a Delaware corporation, at any time it is the Manager,
directly or indirectly, or Charter Communications Group shall for any reason
fail to own a majority of the voting equity of Charter Communications, Inc., a
Delaware corporation, at any time it is the Manager; provided that for purposes
of this Section 8.1(t), "control" shall mean the possession of the power to
direct or cause the direction of management and policies of the Person in
question, whether through the ownership of voting securities, by contract or
otherwise;
(u) The Borrower shall fail to have provided to the Administrative
Agent and the Banks, by December 15, 1995: (i) evidence satisfactory to the
Administrative Agent that all necessary consents to the Commission to the
transfer to the borrower of all Commission Licenses held by the General Partner
and Cencom, or either of them, on or prior to the Agreement Date have been
received, together with an opinion of Commission counsel which is substantially
similar to the opinion of Commission counsel previously delivered in connection
with the Prior Loan Agreement; or (ii) evidence satisfactory to the
Administrative Agent that all necessary consents to the transfer or assignment
to the Borrower of all Pole Agreements set forth on
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Schedule 2 hereto and all "material" contracts and agreements (as such term is
----------
defined in the Security Agreement) held by the General Partner and Cencom, or
either of them, have been received; or (iii) evidence satisfactory to the
Administrative Agent that the Borrower has used its best efforts to obtain all
necessary consents to the collateral assignment of such contracts and agreements
to the Administrative Agent, for itself and on behalf of the Banks, in
accordance with the terms of the Security Agreement; or
(v) Any demand for payment shall be made under the Guaranty issued
by CCELP in favor of HC Crown Corp. in respect of the Hallmark Subordinated
Debt.
Section 8.2 Remedies. If an Event of Default shall have occurred and
--------
shall be continuing:
(a) With the exception of an Event of Default specified in Section
8.1(f) or (g), the Administrative Agent, at the direction of the Majority Banks,
shall (i) terminate the Commitments, and (ii) declare the principal of and
interest on the Loans and the Notes and all other amounts owed under this
Agreement, the Notes and the other Loan Documents to be forthwith due and
payable without presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived, anything in this Agreement, the Notes, or the other
Loan Documents to the contrary notwithstanding.
(b) Upon the occurrence and continuance of an Event of Default
specified in Section 8.1(f) or Section 8.1(g), such principal, interest and
other amounts shall thereupon and concurrently therewith become due and payable
and the Commitments shall forthwith terminate, all without any action by any of
the Administrative Agent and the Banks or the Majority Banks or the holders of
the Notes and without presentment, demand, protest or other notice of any kind,
all of which are expressly waived, anything in this Agreement, the Notes or the
other Loan Documents to the contrary notwithstanding.
(c) The Administrative Agent, with the concurrence of the Majority
Banks, shall exercise all of the post-default rights granted to it and to them
under the Loan Documents or under Applicable Law.
(d) The Administrative Agent shall have the right (but not the
obligation) to operate the System in accordance with the terms of the Licenses
and subject to any limitations contained in the Security Documents and, within
guidelines established by the Majority Banks, to make any and all payments and
expenditures necessary or desirable in connection therewith, including,
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without limitation, payment of wages as required under the Fair Labor Standards
Act, as amended, and of any necessary withholding taxes to state or federal
authorities. In the event the Majority Banks fail to agree upon the guidelines
referred to in the preceding sentence within six (6) Business Days' after the
Administrative Agent has begun to operate the System, the Administrative Agent
may, after giving notice to the Banks of its intention to do so, make such
payments and expenditures as it deems reasonable and advisable in its sole
discretion to maintain the normal day-to-day operation of the System. Such
payments and expenditures in excess of receipts shall constitute Advances under
this Agreement, notwithstanding any limitation that might otherwise be imposed
on Advances by the amount of the Commitments. Advances made pursuant to this
Section 8.2(d) shall bear interest as provided in Section 2.3(e) and shall be
payable on the earlier of demand or the Maturity Date. The making of one or
more Advances under this Section 8.2(d) shall not create any obligation on the
part of the Banks to make any additional Advances hereunder. No exercise by the
Administrative Agent of the rights granted to it under this Section 8.2(d) shall
constitute a waiver of any other rights and remedies granted to the
Administrative Agent and the Banks, or any of them, under this Agreement or at
law. The Borrower hereby irrevocably appoints the Administrative Agent, the
true and lawful attorney of the Borrower, in its name and stead and on its
behalf, to execute, receipt for or otherwise act in connection with any and all
contracts, instruments or other documents in connection with the completion and
operation of the System in the exercise of the Administrative Agent's and the
Banks' rights under this Section 8.2(d).
(e) The rights and remedies of the Administrative Agent and the Banks
hereunder shall be cumulative, and not exclusive.
ARTICLE 9
The Agents
----------
Section 9.1 Appointment and Authorization. Each Bank hereby irrevocably
-----------------------------
appoints and authorizes, and hereby agrees that it will require any transferee
of any of its interest in its Loans and in its Note irrevocably to appoint and
authorize, the Administrative Agent and the Documentation Agents to take such
actions as its agents on its behalf and to exercise such powers hereunder as are
delegated by the terms hereof, together with such powers as are reasonably
incidental thereto. Neither the Administrative Agent nor the Documentation
Agents, nor any of their respective directors, officers, employees or agents
shall
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be liable for any action taken or omitted to be taken by it or them hereunder or
in connection herewith, except for its or their own gross negligence or willful
misconduct as determined by a final order of a court of competent jurisdiction.
Section 9.2 Interest Holders. The Agents may treat each Bank, or the
----------------
Person designated in the last notice filed with the Administrative Agent under
this Section, as the holder of all of the interests of such Bank in its Loans
and in its Note until written notice of transfer, signed by such Bank (or the
Person designated in the last notice filed with the Administrative Agent) and by
the Person designated in such written notice of transfer, in form and substance
satisfactory to the Administrative Agent, shall have been filed with the
Administrative Agent.
Section 9.3 Consultation with Counsel. The Agents may consult with such
-------------------------
legal counsel selected by them and shall not be liable for any action taken or
suffered by them in good faith.
Section 9.4 Documents. The Agents shall be under no duty to examine,
---------
inquire into, or pass upon the validity, effectiveness or genuineness of this
Agreement, any Note or any instrument, document or communication furnished
pursuant hereto or in connection herewith, and the Agents shall be entitled to
assume that they are valid, effective and genuine, have been signed or sent by
the proper parties and are what they purport to be.
Section 9.5 Agents and Affiliates. With respect to the Commitments and
---------------------
the Loans, the affiliates of the Agents which are Banks shall have the same
rights and powers hereunder as any other Bank, and the Agents and their
respective affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower, any of its Subsidiaries, any
Affiliates of, or Persons doing business with, the Borrower, as if it were not
affiliated with the Agents and without any obligation to account therefor. The
Banks acknowledge that the Agents and their respective affiliates have other
lending and investment relationships with the Borrower, its Subsidiaries, and
its Affiliates and in the future may enter into additional such relationships.
Section 9.6 Responsibilities of the Agents. The duties and obligations
------------------------------
of the Agents under this Agreement are only those expressly set forth in this
Agreement. Each of the Agents shall be entitled to assume that no Default or
Event of Default has occurred and is continuing unless it has actual knowledge,
or has been notified by the Borrower, of such fact, or has been notified by a
Bank that such Bank considers that a Default or an Event of
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Default has occurred and is continuing, and such Bank shall specify in detail
the nature thereof in writing. None of the Agents shall be liable hereunder for
any action taken or omitted to be taken except for its own gross negligence or
willful misconduct as determined by a final order of a court of competent
jurisdiction. The Administrative Agent shall provide each Bank with copies of
such documents received from the Borrower as such Bank may reasonably request.
Section 9.7 Collateral. The Administrative Agent is hereby authorized
----------
to act on behalf of the Banks, in its own capacity and through other agents and
sub-agents appointed by it, under the Security Documents, provided that the
Administrative Agent shall not agree to the release of any Collateral, or any
property encumbered by any mortgage, pledge or security interest except in
compliance with Section 11.12 hereof.
Section 9.8 Action by the Administrative Agent and the Documentation
--------------------------------------------------------
Agents.
------
(a) The Administrative Agent and the Documentation Agents shall be
entitled to use their discretion with respect to exercising or refraining from
exercising any rights which may be vested in them by, and with respect to taking
or refraining from taking any action or actions which they may be able to take
under, or in respect of, this Agreement, unless the Administrative Agent or
either Documentation Agent shall have been instructed by the Majority Banks to
exercise or refrain from exercising such rights or to take or refrain from
taking such action; provided that the Administrative Agent shall not exercise
any rights under Section 8.2(a) or 8.2(c) of this Agreement without the request
of the Majority Banks. Each Administrative Agent and each Documentation Agent
shall not incur any liability under, or in respect of, this Agreement with
respect to anything which it may do or refrain from doing in the reasonable
exercise of its judgment or which may seem to it to be necessary or desirable in
the circumstances, except for its gross negligence or willful misconduct as
determined by a final order of a court of competent jurisdiction.
(b) Neither the Administrative Agent nor any Documentation Agent shall
be liable to the Banks or to any Bank in acting or refraining from acting under
this Agreement in accordance with the instructions of the Majority Banks, and
any action taken or failure to act pursuant to such instructions shall be
binding on all Banks.
Section 9.9 Notice of Default or Event of Default. In the event that
-------------------------------------
any of the Agents or any Bank shall acquire actual knowledge, or shall have been
notified, of any Default or Event
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of Default, such Agent or such Bank shall promptly notify the Banks and the
other Agents, and the Administrative Agent shall take such action and assert
such rights under this Agreement as the Majority Banks shall request in writing,
and the Administrative Agent shall not be subject to any liability by reason of
its action pursuant to any such request. If the Majority Banks shall fail to
request the Administrative Agent to take action or to assert rights under this
Agreement in respect of any Default or Event of Default within ten (10) days
after their receipt of the notice of any Default or Event of Default from the
Administrative Agent, or shall request inconsistent action with respect to such
Default or Event of Default, the Administrative Agent may, but shall not be
required to, take such action and assert such rights (other than rights under
Article 8 hereof) as it deems in its discretion to be advisable for the
protection of the Banks, except that, if the Majority Banks have instructed the
Administrative Agent not to take such action or assert such right, in no event
shall the Administrative Agent act contrary to such instructions.
Section 9.10 Responsibility Disclaimed. The Agents shall be under no
-------------------------
liability or responsibility whatsoever as Agents:
(a) To the Borrower or any other Person as a consequence of any
failure or delay in performance by or any breach by, any Bank of any of its or
their obligations under this Agreement;
(b) To any Bank, as a consequence of any failure or delay in
performance by, or any breach by, (i) the Borrower of any of its obligations
under this Agreement or the Notes or any other Loan Document, or (ii) any
Subsidiary of the Borrower or any other obligor under any other Loan Document;
or
(c) To any Bank, for any statements, representations or warranties in
this Agreement, or any other document contemplated by this Agreement, or any
information provided pursuant to this Agreement, any other Loan Document, or any
other document contemplated by this Agreement, or for the validity,
effectiveness, enforceability or sufficiency of this Agreement, the Notes, any
other Loan Document, or any other document contemplated by this Agreement.
Section 9.11 Indemnification. The Banks agree to indemnify the Agents
---------------
(to the extent not reimbursed by the Borrower) pro rata according to their
respective Commitment Ratios, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including fees and expenses of experts, agents, consultants and
counsel), or disbursements of any kind or nature
-82-
whatsoever which may be imposed on, incurred by or asserted against the Agents
in any way relating to or arising out of this Agreement, any other Loan
Document, or any other document contemplated by this Agreement or any action
taken or omitted by such Agent under this Agreement, any other Loan Document, or
any other document contemplated by this Agreement, except that no Bank shall be
liable to any Agent for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses, or disbursements
resulting from the gross negligence or willful misconduct of such Agent as
determined by a final order of a court of competent jurisdiction.
Section 9.12 Credit Decision. Each Bank represents and warrants to each
---------------
other and to the Agents that:
(a) In making its decision to enter into this Agreement and to make
its Advances it has independently taken whatever steps it considers necessary to
evaluate the financial condition and affairs of the Borrower and the Borrower's
Subsidiaries and that it has made an independent credit judgment, and that it
has not relied upon information provided by any of the Agents; and
(b) So long as any portion of the Loans remains outstanding, it will
continue to make its own independent evaluation of the financial condition and
affairs of the Borrower and the Borrower's Subsidiaries.
Section 9.13 Successor Administrative Agent and Documentation Agents.
-------------------------------------------------------
The Administrative Agent and either of the Documentation Agents may resign at
any time by giving written notice thereof to the Banks and the Borrower, and may
be removed at any time for cause by the Majority Banks. Upon any such
resignation or removal, the Majority Banks shall have the right to appoint a
successor Administrative Agent or Documentation Agent. If no successor
Administrative Agent or Documentation Agent shall have been so appointed by the
Majority Banks and shall have accepted such appointment within ten (10) days
after the retiring Administrative Agent's or Documentation Agent's giving of
notice of resignation or the Majority Banks' removal of the retiring
Administrative Agent or Documentation Agent, then the retiring Administrative
Agent or Documentation Agent may, on behalf of the Banks, appoint a successor
Administrative Agent or Documentation Agent, as the case may be, which shall be
any Bank or a commercial bank organized under the laws of the United States of
America or any political subdivision thereof which has combined capital and
reserves in excess of $500,000,000. Such successor Administrative Agent or
Documentation Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges, duties and obligations of the retiring
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Administrative Agent or Documentation Agent, and the retiring Administrative
Agent or Documentation Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's or Documentation Agent's
resignation or removal hereunder as Administrative Agent or Documentation Agent,
the provisions of this Article shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting as
Administrative Agent or Documentation Agent.
Section 9.14 Managing Agents. The Managing Agents shall have no duties
---------------
or obligations under this Agreement or the other Loan Documents in their
capacities as Managing Agents.
Section 9.15 Co-Agents. The Co-Agents shall have no duties or
---------
obligations under this Agreement or the other Loan Documents in their capacities
as Co-Agents.
ARTICLE 10
Change in Circumstances
Affecting Fixed Rate Advances
-----------------------------
Section 10.1 Fixed Rate Basis Determination Inadequate or Unfair. If
---------------------------------------------------
with respect to any proposed Fixed Rate Advance for any Interest Period, the
Administrative Agent determines that deposits in dollars (in the applicable
amount) are not being offered in the relevant market for such Interest Period,
or if the Majority Banks determine that the rate quoted by the Administrative
Agent does not reflect the Banks' actual cost of funding such Advance, the
applicable Banks shall forthwith give notice thereof to the Administrative
Agent, the Borrower and the other Banks, whereupon until the Administrative
Agent notifies the Borrower that the circumstances giving rise to such situation
no longer exist, the obligations of such Bank or all of the Banks, as
applicable, to make such type of Fixed Rate Advances shall be suspended.
Section 10.2 Illegality. If any applicable law, rule or regulation, or
----------
any change therein, or any interpretation or change in interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Bank with any request or directive (whether or not having the force of
law) of any such authority, central bank or comparable agency, shall make it
unlawful or impossible for any Bank to make, maintain or fund its Fixed Rate
Advances (whether LIBOR Advances, CD Rate Advances, or both), such Bank shall
notify the Administrative Agent, and the Administrative Agent
-84-
shall forthwith give notice thereof to the Banks and the Borrower. Before
giving any notice to the Administrative Agent pursuant to this Section, such
Bank shall designate a different lending office if such designation will avoid
the need for giving such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. Upon receipt of such notice,
notwithstanding anything contained in Article 2 hereof, the Borrower shall repay
in full the then outstanding principal amount of each affected Fixed Rate
Advance of such Bank so affected, together with accrued interest thereon, either
(a) on the last day of the then current Interest Period applicable to such
affected Fixed Rate Advances if such Bank may lawfully continue to maintain and
fund such Fixed Rate Advance to such day or (b) immediately if such Bank may not
lawfully continue to fund and maintain such affected Fixed Rate Advances to such
day. Concurrently with repaying each affected Fixed Rate Advance of such Bank
so affected, notwithstanding anything contained in Article 2 hereof, the
Borrower shall borrow a Base Rate Advance (or the other type of Fixed Rate
Advance, if available) from such Bank, and such Bank shall make such Advance in
an amount such that the outstanding principal amount of the Note held by such
Bank shall equal the outstanding principal amount of such Note immediately prior
to such repayment.
Section 10.3 Increased Costs.
---------------
(a) If any applicable law, rule or regulation adopted or promulgated
after the Agreement Date, or any change therein or in any law, rule or
regulation existing as of the Agreement Date, or any interpretation or change in
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof or compliance by any Bank with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(1) shall subject any Bank to any tax, duty or other charge with
respect to its obligation to make Fixed Rate Advances, or shall change the
basis of taxation of payments to any Bank of the principal of or interest
on its Fixed Rate Advances or in respect of any other amounts due under
this Agreement, in respect of its Fixed Rate Advances, or its obligation to
make Fixed Rate Advances (except for Taxes excluded under Section 2.9(b)
hereof); or
(2) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of
the Federal Reserve System, but excluding any included in an applicable
LIBOR Reserve Percentage or Domestic Reserve Percentage), special deposit,
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capital adequacy, assessment or other requirement or condition against
assets of, deposits with or for the account of, or commitments or credit
extended by, any Bank or shall impose on any Bank or the London Interbank
Borrowing Market any other condition affecting its obligation to make such
Fixed Rate Advances or its Fixed Rate Advances;
and the result of any of the foregoing is to increase the cost to such Bank of
making or maintaining any such Fixed Rate Advances, or to reduce the amount of
any sum received or receivable by the Bank under this Agreement or under any of
its Notes with respect thereto, then, on the earlier of a date within fifteen
(15) days after demand by such Bank or the Maturity Date, the Borrower agrees to
pay to such Bank such additional amount or amounts as will compensate such Bank
for such increased costs. Each Bank will promptly notify the Borrower and the
Administrative Agent of any event of which its has knowledge, occurring after
the date hereof, which will entitle such Bank to compensation pursuant to this
Section 10.3 and will designate a different lending office if such designation
will avoid the need for, or reduce the amount of, such compensation and will
not, in the sole judgment of such Bank made in good faith, be otherwise
disadvantageous to such Bank.
(b) A certificate of any Bank claiming compensation under this Section
10.3 and setting forth the additional amount or amounts to be paid to it
hereunder and calculations therefor shall be presumptively correct in the
absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods. If any Bank demands compensation
under this Section 10.3, the Borrower may at any time, upon at least five (5)
Business Days' prior notice to such Bank, prepay in full the then outstanding
affected Fixed Rate Advances of such Bank, together with accrued interest
thereon to the date of prepayment, along with any reimbursement required under
Section 2.10 hereof. Concurrently with prepaying such Fixed Rate Advances the
Borrower shall borrow a Base Rate Advance or a Fixed Rate Advance not so
affected, from such Bank, and such Bank shall make such Advance in an amount
such that the outstanding principal amount of the affected Note or Notes held by
such Bank shall equal the outstanding principal amount of such Note or Notes
immediately prior to such prepayment.
Section 10.4 Effects on Other Advances. If notice has been given
-------------------------
pursuant to Sections 10.1, 10.2 or 10.3 suspending the obligation of any Bank to
make any type of Fixed Rate Advance, or requiring Fixed Rate Advances of any
Bank to be repaid or prepaid, then, unless and until such Bank notifies the
Borrower that the circumstances giving rise to such repayment no longer
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apply, all Advances which would otherwise be made by such Bank as the type of
Fixed Rate Advances affected shall be made instead as Base Rate Advances, or, if
available, the other type of Fixed Rate Advance.
Section 10.5 Claims for Increased Costs and Taxes. In the event that any
------------------------------------
Bank shall decline to make any type of Fixed Rate Advances pursuant to Section
10.1 or 10.2 hereof or shall have notified the Borrower that it is entitled to
claim compensation pursuant to Section 2.12 or 10.3 hereof (each such Bank being
an "Affected Bank"), the Borrower may designate a replacement bank (a
"Replacement Bank") to assume the Commitments and the obligations of any such
Affected Bank hereunder, and to purchase the outstanding Note or Notes of such
Affected Bank and such Affected Bank's rights hereunder and with respect
thereto, without recourse upon, or warranty by, or expense to, such Affected
Bank, for a purchase price equal to the outstanding principal amount of the
Loans of such Affected Bank plus all interest accrued and unpaid thereon and all
other amounts owing to such Affected Bank hereunder, including without
limitation, any amount which would be payable to such Affected Bank pursuant to
Section 2.10, and upon such assumption and purchase by the Replacement Bank,
such Replacement Bank shall be deemed to be a "Bank" for purposes of this
Agreement and such Affected Bank shall cease to be a "Bank" for purposes of this
Agreement and shall no longer have any obligations or rights hereunder (other
than any obligations or rights which according to this Agreement shall survive
the termination of this Agreement).
ARTICLE 11
Miscellaneous
-------------
Section 11.1 Notices.
-------
(a) All notices and other communications under this Agreement shall be
in writing and shall be deemed to have been given three (3) days after deposit
in the mail, designated as certified mail, return receipt requested, post-
prepaid, or one (1) day after being entrusted to a reputable commercial
overnight delivery service, or when delivered to the telegraph office or sent
out by telex or telecopy addressed to the party to which such notice is directed
at its address determined as provided in this Section 11.1. All notices and
other communications under this Agreement shall be given to the parties hereto
at the following addresses:
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(i) If to the Borrower, to it at:
Charter Communications Entertainment I, L.P.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
with a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
(ii) If to the Administrative Agent, to it at:
Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager, Agency
with a copy to:
The Toronto-Dominion Bank
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
and with a copy to:
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
Sixteenth Floor
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
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(iii) If to the Banks, to them at:
Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager, Agency
with a copy to:
The Toronto-Dominion Bank
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CIBC Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Credit Lyonnais Cayman Island Branch
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
NationsBank, N.A. (Carolinas)
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Hutch ▇▇▇▇▇▇▇▇▇
Banque Paribas
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
CoreStates Bank, N.A.
FC 1-8-10-73
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
The Long-Term Credit Bank of Japan, Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇. ▇▇▇▇▇
National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
NatWest Bank N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Union Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Van ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Prime Rate Income Trust
c/o ▇▇▇ ▇▇▇▇▇▇ American Capital
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
First National Bank of Maryland
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇
Banque Francaise du Commerce Exterieur
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇
Copies shall be provided to persons other than parties hereto only in the case
of notices under Article 8 hereof.
(b) Any party hereto may change the address to which notices shall be
directed under this Section 11.1 by giving ten (10) days' written notice of such
change to other parties.
Section 11.2 Expenses. The Borrower will promptly pay:
--------
(a) all reasonable out-of-pocket expenses of the Documentation Agents
and the Administrative Agent in connection with the preparation, negotiation,
execution and delivery of this Agreement and other Loan Documents, and the
transactions contemplated hereunder and thereunder and the making of the initial
Advance hereunder whether or not such Advance is made, including, but not
limited to, the reasonable fees and
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disbursements of Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel for the
Administrative Agent;
(b) all reasonable out-of-pocket expenses of the Administrative Agent
in connection with the administration of the transactions contemplated in this
Agreement or the other Loan Documents (other than routine overhead expenses) and
the preparation, negotiation, execution and delivery of any waiver, amendment or
consent by the Banks relating to this Agreement or the other Loan Documents,
including, but not limited to, the reasonable fees and disbursements of any
experts, agents or consultants and of counsel for the Administrative Agent; and
(c) all reasonable out-of-pocket costs and expenses of the Agents and
the Banks in obtaining performance under this Agreement or the other Loan
Documents and in connection with any restructuring, refinancing or "work out" of
the transactions contemplated hereby and thereby, and all reasonable out-of-
pocket costs and expenses of collection if default is made in the payment of the
Notes, which in each case shall include reasonable fees and out-of-pocket
expenses of any experts, agents, consultants and counsel for the Administrative
Agent and reasonable fees and out-of-pocket expenses of counsel for the other
Banks, collectively (which counsel for the Banks shall be selected by the
Majority Banks).
Section 11.3 Waivers. The rights and remedies of the Agents and the
-------
Banks under this Agreement and the other Loan Documents shall be cumulative and
not exclusive of any rights or remedies which they would otherwise have. No
failure or delay by the Agents, the Majority Banks or the Banks, or any of them,
in exercising any right shall operate as a waiver of such right. The Agents and
the Banks expressly reserve the right to require strict compliance with the
terms of this Agreement in connection with any funding of a request for an
Advance. In the event the Banks decide to fund a request for an Advance at a
time when the Borrower is not in strict compliance with the terms of this
Agreement, such decision by the Banks shall not be deemed to constitute an
undertaking by the Banks to fund any further requests for Advances or preclude
the Banks from exercising any rights available to the Banks under the Loan
Documents or at law or equity. Any waiver or indulgence granted by the Banks or
by the Majority Banks shall not constitute a modification of this Agreement,
except to the extent expressly provided in such waiver or indulgence, or
constitute a course of dealing by the Banks at variance with the terms of the
Agreement such as to require further notice by the Banks of the Banks' intent to
require strict adherence to the terms of the Agreement in the future. Any such
actions shall not in any way affect the ability of the Agents and the Banks, in
their discretion, to exercise any rights
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available to them under this Agreement or under any other agreement, whether or
not the Agents and the Banks are party, relating to the Borrower.
Section 11.4 Set-Off. In addition to any rights now or hereafter granted
-------
under Applicable Law and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and during the continuation thereof, the Banks
and any subsequent holder or holders of the Notes are hereby authorized by the
Borrower at any time or from time to time, without notice to the Borrower or to
any other Person, any such notice being hereby expressly waived, to set-off,
appropriate and apply any and all deposits (general or special, time or demand,
including, but not limited to, Indebtedness evidenced by certificates of
deposit, in each case whether matured or unmatured) and any other Indebtedness
at any time held or owing by the Banks or such holder to or for the credit or
the account of the Borrower, against and on account of the obligations and
liabilities of the Borrower, to the Banks or such holder under this Agreement,
the Notes and any other Loan Document, including, but not limited to, all claims
of any nature or description arising out of or connected with this Agreement,
the Notes or any other Loan Document, irrespective of whether (a) the Banks or
the holder of the Notes shall have made any demand hereunder or (b) the Banks
shall have declared the principal of and interest on the Loans and Notes and
other amounts due hereunder to be due and payable as permitted by Section 8.2
and although such obligations and liabilities, or any of them, shall be
contingent or unmatured. Any sums obtained by any Bank or by any subsequent
holder of the Notes shall be subject to the pro rata treatment provisions of
Section 2.11 hereof. Upon direction by the Administrative Agent with the
consent of the Majority Banks, each Bank holding deposits of the Borrower shall
exercise its set-off rights as so directed. The Administrative Agent will
notify the Borrower after the exercise of set-off rights under this Section.
Section 11.5 Assignment.
----------
(a) The Borrower may not assign or transfer any of its rights or
obligations hereunder, under the Notes or under any other Loan Document without
the prior written consent of each Bank.
(b) Each Bank may sell assignments of up to one hundred percent (100%)
of its interest hereunder to (A) one or more affiliates of such Bank or to any
other Bank, or (B) any Federal Reserve Bank as collateral security pursuant to
Regulation A of the Board of Governors of the Federal Reserve System and any
Operating Circular issued by such Federal Reserve
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Bank, so long as such assignment does not relieve such Bank from its obligations
hereunder.
(c) Each of the Banks may at any time enter into assignment agreements
(but not participations) with one or more other banks or other Persons pursuant
to which each Bank may assign its interest under this Agreement and the other
Loan Documents, including, its interest in any particular Advance or portion
thereof, provided, that (1) all assignments (other than assignments described in
--------
clause (b) hereof) shall be in minimum aggregate principal amounts of $7,500,000
with respect to both Commitments or either Commitment, as applicable (unless
after giving effect to all contemporaneous assignments to such Person, such
Person has a minimum aggregate commitment under the Commitments of $7,500,000),
(2) without the prior consent of the Borrower, no Bank may assign more than
forty-nine percent (49%) of its interest hereunder on the Agreement Date, unless
such Bank is selling one hundred percent (100%) of its interest, and (3) all
assignments (other than assignments described in clause (b) hereof) shall be
subject to the following additional terms and conditions:
(i) No assignment (except assignments permitted in Section
11.5(b) hereof) shall be sold without the prior consent of the
Administrative Agent and, prior to the occurrence and continuation of an
Event of Default, the consent of the Borrower, which consents shall not be
unreasonably withheld and, with respect to any assignment to any Person in
an aggregate principal amount of less than $10,000,000, the Borrower shall
have received not less than ten (10) Business Days' prior notice;
(ii) Any Person purchasing an assignment of the Loans from any
Bank shall be required to represent and warrant that its purchase shall not
constitute a "prohibited transaction" (as defined in Section 4.1(l)
hereof);
(iii) The Borrower, the Agents and the Banks agree that
assignments permitted hereunder may be made with all voting rights, and
shall be made pursuant to an Assignment and Assumption Agreement
substantially in the form of Exhibit N attached hereto. An administrative
---------
fee of $2,500 shall be payable to the Administrative Agent by the assigning
Bank at the time of any assignment hereunder other than with respect to an
assignment to an Affiliate of such Bank;
(iv) Each Bank agrees to provide the Administrative Agent and the
Borrower with prompt written
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notice of the making of any assignments of its interests hereunder;
(v) No assignment of any rights hereunder or under the Notes
shall be effected that would result in any interest requiring registration
under the Securities Act of 1933, as amended, or qualification under any
state securities law;
(vi) No such assignment may be made to any bank or other
financial institution (A) that does not have a minimum capital and surplus
of $500,000,000, (B) with respect to which a receiver or conservator
(including, without limitation, the Federal Deposit Insurance Corporation,
the Resolution Trust Company or the Office of Thrift Supervision) has been
appointed and (C) that is not "adequately capitalized" (as such term is
defined in Section 131(b)(1)(B) of the Federal Deposit Insurance
Corporation Improvement Act as in effect on the Agreement Date); and
(vii) If applicable, each Bank shall cause each of its assignees
to provide to the Administrative Agent on or prior to the effective date of
any assignment an appropriate Internal Revenue Service form as required by
Applicable Law supporting such Bank's position that no withholding by the
Borrower or the Administrative Agent for U.S. income tax payable by such
Bank in respect of amounts received by it hereunder is required. For
purposes of this Agreement, an appropriate Internal Revenue Service form
shall mean Form 1001 (Ownership Exemption or Reduced Rate Certificate of
the U.S. Department of Treasury), or Form 4224 (Exemption from Withholding
of Tax on Income Effectively Connected with the Conduct of a Trade or
Business in the United States), or any successor or related forms adopted
by the relevant U.S. taxing authorities.
(d) Nothing in this Agreement or the Notes, expressed or implied, is
intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy or other claim
under this Agreement or the Notes.
(e) The provisions of this Section 11.5 shall not apply to any
purchase of participations among the Banks pursuant to Section 2.11 hereof.
Section 11.6 Accounting Principles; Calculations. All references in this
-----------------------------------
Agreement to generally accepted accounting principles shall be to such
principles as in effect from time to
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time. All accounting terms used herein without definition shall be used as
defined under GAAP. All calculations required to be made hereunder with respect
to the Borrower and its Subsidiaries shall be made for the Borrower and its
Subsidiaries on a consolidated basis. All calculations for the Borrower and its
Subsidiaries relating to time periods prior to the Agreement Date shall be
deemed to include calculations for the General Partner and its Subsidiaries as
well as the Borrower and its Subsidiaries on a consolidated basis. All
calculations required to be made hereunder with respect to compliance by the
Borrower hereunder, including, without limitation, compliance under Sections
2.7(b), 7.3, 7.4(a), 7.4(b), 7.12, 7.13 and 7.15 hereof, shall be deemed to
include calculations for all activities engaged in, all transactions consummated
by and all events which occurred with respect to the General Partner and its
Subsidiaries for the period from and including January 18, 1995 through the
Agreement Date. For all purposes herein, the phrase "during the term of this
Agreement" or similar phrases used herein shall be deemed to refer to the period
from and including January 18, 1995 through the applicable calculation date.
Section 11.7 Counterparts. This Agreement may be executed in any number
------------
of counterparts, each of which shall be deemed to be an original, but all such
separate counterparts shall together constitute but one and the same instrument.
Section 11.8 Governing Law. This Agreement and the other Loan Documents
-------------
shall be construed in accordance with and governed by the law of the State of
New York.
Section 11.9 Severability. Any provision of this Agreement which is
------------
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 11.10 Interest.
--------
(a) In no event shall the amount of interest due or payable hereunder
or under the Notes exceed the maximum rate of interest allowed by Applicable
Law, and in the event any such payment is inadvertently made by the Borrower or
inadvertently received by any Bank, then such excess sum shall be credited as a
payment of principal, unless the Borrower shall notify such Bank in writing that
it elects to have such excess sum returned forthwith. It is the express intent
hereof that the Borrower not pay and the Banks not receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may
legally be paid by the Borrower under Applicable Law.
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(b) Notwithstanding the use by the Banks of the Base Rate, CD Rate,
LIBOR and the Federal Funds Rate as reference rates for the determination of
interest on the Loans, the Banks shall be under no obligation to obtain funds
from any particular source in order to charge interest to the Borrower at
interest rates tied to such reference rates.
Section 11.11 Headings. Headings used in this Agreement are for
--------
convenience only and shall not be used in connection with the interpretation of
any provision hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any term
--------------------
hereof may be amended orally, nor may any provision hereof be waived orally but
only by an instrument in writing signed by the Majority Banks and, in the case
of an amendment, by the Borrower, except that in the event of (a) any increase
in the amount of either Commitment, (b) reduction of any repayment of the Loans
provided in Section 2.5 or 2.7 hereof, (c) reduction of any required reduction
in the Revolving Loan Commitment provided in Section 2.5 hereof, (d) any
reduction of any principal, interest or fees due hereunder, (e) any postponement
of the timing of payments of principal, interest and fees due hereunder, (f) any
release (other than a release required under Section 7.4 hereof) or impairment
of the value of any Collateral for the Loans, (g) any waiver of any Default due
to the Borrower's failure to pay any sum due hereunder, (h) any amendments or
modifications to the Hallmark Subordinated Debt other than amendments or
modifications which are purely of an administrative nature or which (1) extend
the maturity of principal due thereunder, (2) decrease the rate of interest
payable by Holdings thereunder, (3) modify any reporting requirements or notice
provisions, (4) loosen any covenant of Holdings thereunder, or (5) forgive any
Indebtedness of Holdings arising thereunder, or (i) any amendment of this
Section 11.12 or of the definition of Majority Banks, any amendment or waiver
may be made only by an instrument in writing signed by each of the Banks and, in
the case of an amendment, also by the Borrower. In addition, no Bank's portion
of any Commitment hereunder may be increased without the written consent of such
Bank. Any amendment to any provision hereunder governing the rights,
obligations, or liabilities of any Agent in its capacity as such, may be made
only by an instrument in writing signed by such affected Person and by each of
the Banks. No term or provision of any Security Document may be amended or
waived orally, but only by an instrument in writing signed by the Administrative
Agent with the direction of the Majority Banks and, in the case of an amendment,
by such of the Borrower and its Subsidiaries as are party thereto; provided,
that the written consent of all of the Banks shall be required with respect to
any amendment to or waiver of the provisions of any Security Document which
would have the
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effect of (i) releasing any portion of the Collateral for the Loans, other than
in connection with any permitted asset sale (which shall require no further
approval by the Banks) or (ii) releasing any Guaranty of all or any portion of
the Obligations, except in connection with a merger, sale or other disposition
otherwise permitted hereunder (in either such case as described in clauses (i)
and (ii) of this sentence, such release shall require no further approval by the
Banks). The Agents and the Banks hereby instruct and authorize the
Administrative Agent to enter into the Security Documents (and all other Loan
Documents) referred to in Section 3.1 hereof as of the Agreement Date and any
other Security Documents required to be entered into by the Borrower or any of
its Subsidiaries hereunder after the Agreement Date.
Section 11.13 Entire Agreement. Except as otherwise expressly provided
----------------
herein, this Agreement and the other documents described or contemplated herein
embody the entire agreement and understanding among the parties hereto and
thereto and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof.
Section 11.14 Other Relationships. No relationship created hereunder or
-------------------
under any other Loan Document shall in any way affect the ability of the Agents
and the Banks to enter into or maintain business relationships with the Borrower
or any of its Subsidiaries, the General Partner, either of the Limited Partners,
the Manager, or any of their Affiliates beyond the relationships specifically
contemplated by this Agreement and the other Loan Documents.
Section 11.15 Agreement to Transfer and Consent. By its execution of this
---------------------------------
Agreement, (a) the General Partner agrees (i) to transfer to CCELP on the
Agreement Date substantially all of the General Partner's assets (other than its
ownership of the stock of Cencom) and all of the its liabilities, including,
without limitation, the General Partner's liabilities under the Prior Loan
Agreement, and (ii) to transfer to CCT on the Agreement Date the portion of the
General Partner's assets not transferred to CCELP; (b) CCELP consents to the
transfer to CCELP on the Agreement Date of substantially all of the assets of
the General Partner and all of the assets of Cencom (other than the General
Partner's ownership of the stock of Cencom) and all of the liabilities of the
General Partner and Cencom, including, without limitation, the General Partner's
liabilities under the Prior Loan Agreement; (c) CCT consents to the transfer to
CCT on the Agreement Date of the portion of the assets of the General Partner
not transferred to CCELP; (d) CCELP agrees to transfer to the Borrower on the
Agreement Date all of the assets and liabilities of the General Partner and
Cencom which are
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transferred to CCELP by the General Partner and Cencom; and (e) CCT agrees to
transfer to the Borrower on the Agreement Date all of the assets of the General
Partner which are transferred to CCT by the General Partner. By their execution
of this Agreement, the parties signatory hereto consent to the transactions
contemplated hereby, including, without limitation, (i) the transfer to CCELP on
the Agreement Date of substantially all of the assets (other than the General
Partner's ownership of the stock of Cencom) and all of liabilities of the
General Partner, including, without limitation, the General Partner's
liabilities under the Prior Loan Agreement; (ii) the transfer to CCT on the
Agreement Date of the portion of the assets of the General Partner not
transferred to CCELP; (iii) the transfer by CCELP and CCT to the Borrower on the
Agreement Date of all assets and liabilities of the General Partner previously
transferred to CCELP and CCT, respectively; (iv) the transfer to CCELP on the
Agreement Date of all assets and liabilities of Cencom and the subsequent
transfer on the Agreement Date of such assets and liabilities to the Borrower;
and (v) effective upon completion of the transfer of all assets from the General
Partner and Cencom to CCELP and CCT, respectively, and the transfer of all
liabilities from the General Partner and Cencom to CCELP and the subsequent
transfer to the Borrower by CCELP and CCT, the agreement of the Borrower to
assume all of the Obligations (as defined in the Prior Loan Agreement) of the
General Partner and to be bound by all of the terms and conditions set forth in
the Prior Loan Agreement, as amended and restated hereby.
ARTICLE 12
Waiver of Jury Trial
--------------------
Section 12.1 Waiver of Jury Trial. THE BORROWER, EACH AGENT AND EACH
--------------------
BANK HEREBY AGREE TO WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY
ACTION OR PROCEEDING OF ANY TYPE IN WHICH THE BORROWER, ANY OF THE BORROWER'
SUBSIDIARIES, THE GENERAL PARTNER, EITHER OF THE LIMITED PARTNERS, THE MANAGER,
AND ANY OF THE AGENTS OR THE BANKS, OR ANY OF THEIR RESPECTIVE SUCCESSORS OR
ASSIGNS IS A PARTY, AS TO ALL MATTERS AND THINGS ARISING DIRECTLY OR INDIRECTLY
OUT OF THIS AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS AND THE
RELATIONS AMONG THE PARTIES LISTED IN THIS SECTION 12.1.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused it to be executed under seal by their duly authorized officers, all as of
the day and year first above written.
BORROWER: CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P., a
Delaware limited partnership
By: Its General Partner
CCA ACQUISITION CORP., a Delaware corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:______________________________________________
Its: Executive Vice President
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:______________________________________________
Its: Vice President
DOCUMENTATION AGENTS: TORONTO DOMINION (TEXAS), INC., as a
Documentation Agent
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:______________________________________________
Its: Vice President
CHEMICAL BANK, as a Documentation
Agent
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:______________________________________________
Its: Vice President
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
AMENDED AND RESTATED
LOAN AGREEMENT
SIGNATURE PAGE 1
MANAGING AGENTS: TORONTO DOMINION (TEXAS), INC., as a
Managing Agent
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:______________________________________________
Its: Vice President
CHEMICAL BANK, as a Managing Agent
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:______________________________________________
Its: Vice President
CIBC INC., as a Managing Agent
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:______________________________________________
Its: Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as a Managing Agent
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:______________________________________________
Its: Authorized Signatory
NATIONSBANK, N.A. (CAROLINAS), as a Managing Agent
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By:______________________________________________
Its: Vice President
CO-AGENTS: BANQUE PARIBAS, as a Co-Agent
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By:______________________________________________
Its: Vice President
/s/ ▇▇▇▇ ▇▇▇▇
By:______________________________________________
Its: Vice President
UNION BANK, as a Co-Agent
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
AMENDED AND RESTATED
LOAN AGREEMENT
SIGNATURE PAGE 2
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:______________________________________________
Its: Vice President
BANKS: TORONTO DOMINION (TEXAS), INC., as a
Bank
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:______________________________________________
Its: Vice President
CHEMICAL BANK, as a Bank
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:______________________________________________
Its: Vice President
CIBC INC., as a Bank
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By:______________________________________________
Its: Vice President
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
as a Bank
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:______________________________________________
Its: Authorized Signtory
NATIONSBANK, N.A. (CAROLINAS), as a Bank
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By:______________________________________________
Its: Vice President
BANQUE PARIBAS, as a Bank
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By:_____________________________________________
Its: Vice President
/s/ ▇▇▇▇ ▇▇▇▇
By:______________________________________________
Its: Vice President
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
AMENDED AND RESTATED
LOAN AGREEMENT
SIGNATURE PAGE 3
UNION BANK, as a Bank
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:______________________________________________
Its: Vice President
CORESTATES BANK, N.A., as a Bank
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:______________________________________________
Its: Assistant Vice President
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., as a Bank
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
By:______________________________________________
Its: Vice President
MERCANTILE BANK OF ST. LOUIS
NATIONAL ASSOCIATION, as a Bank
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:______________________________________________
Its: Vice President
NATWEST BANK N.A., as a Bank
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:______________________________________________
Its: Vice President
FIRST NATIONAL BANK OF MARYLAND, as a Bank
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
By:______________________________________________
Its: Vice President
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
AMENDED AND RESTATED
LOAN AGREEMENT
SIGNATURE PAGE ▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ PRIME RATE INCOME TRUST as a Bank
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By:______________________________________________
Its: Vice President
BANQUE FRANCAISE DU COMMERCE EXTERIEUR, as a Bank
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:______________________________________________
Its: Vice President
ACKNOWLEDGED AND, WITH RESPECT TO
SECTION 11.5 HEREOF, AGREED TO:
CCA ACQUISITION CORP., a Delaware corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:_________________________________________
Its: Executive Vice President
CHARTER COMMUNICATIONS ENTERTAINMENT, L.P.,
a Delaware limited partnership
By: Its General Partner
CCT HOLDINGS CORP., a Delaware corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:_____________________________________
Its: Executive Vice President
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
AMENDED AND RESTATED
LOAN AGREEMENT
SIGNATURE PAGE 5
CCT HOLDINGS CORP., a Delaware corporation
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By:__________________________________________
Its: Executive Vice President
CHARTER COMMUNICATIONS ENTERTAINMENT I, L.P.
AMENDED AND RESTATED
LOAN AGREEMENT
SIGNATURE PAGE 6