Exhibit 10.2
SUBSIDIARY GUARANTY AND SECURITY AGREEMENT
SUBSIDIARY GUARANTY AND SECURITY AGREEMENT (as the same may be
amended, supplemented or otherwise modified from time to time, this
"Agreement"), dated as of June 26, 1997, by and among HELICON CAPITAL CORP., a
Delaware corporation (the "Current Guarantor"), such other Persons which from
time to time may become party hereto (the "Additional Guarantors", and
collectively with the Current Guarantor, the "Guarantors"), THE HELICON GROUP,
L.P., a Delaware limited partnership (the "Borrower"), and BANQUE PARIBAS, as
agent for the Lenders and the Rate Protection Lenders (in such capacity, the
"Agent").
RECITALS
I. Reference is made to the Credit Agreement, dated as of the date
hereof, by and among the Borrower, the Lenders party thereto and Banque Paribas,
as Agent (as the same may be amended, supplemented or otherwise modified from
time to time, the "Credit Agreement").
II. It is a condition precedent to the making of the Loans and all other
extensions of credit under the Credit Agreement that the Guarantors shall have
executed and delivered this Agreement.
III. Each Guarantor is a Subsidiary of the Borrower and, as such, expects
to derive substantial benefit from the Credit Agreement and the transactions
contemplated thereby and, in furtherance thereof, has agreed to execute and
deliver this Agreement.
Therefore, in consideration of the Recitals, the terms and conditions
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Guarantors, the Borrower and
the Agent hereby agree as follows:
1. Defined Terms
(a) Capitalized terms used herein which are not otherwise defined
herein shall have the respective meanings ascribed thereto in the Credit
Agreement.
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(b) When used in this Agreement, the following capitalized terms
shall have the respective meanings ascribed thereto as follows:
"Xxxx Notes": the note, dated as of August 20, 1992, in the
original principal amount of $5,000,000 issued by Helicon Group Ltd. to Xxxxxxxx
Xxxx.
"Borrower Obligations": all of the obligations and liabilities of
the Borrower under the Loan Documents and under each Rate Hedging Agreement
entered into by the Borrower with a Rate Protection Lender, in each case whether
fixed, contingent, now existing or hereafter arising, created, assumed, incurred
or acquired, and whether before or after the occurrence of any Insolvency Event,
as such obligations and liabilities may be amended, increased, modified,
renewed, refinanced, refunded or extended by the Agent, the Lenders and the Rate
Protection Lenders from time to time, and including (i) any obligation or
liability in respect of any breach of any representation or warranty, and (ii)
all post-petition interest and funding losses, whether or not allowed as a claim
in any proceeding arising in connection with an Insolvency Event.
"Collateral": as defined in Section 4.
"Collateral Account": as defined in the Senior Indenture.
"Consideration": as of any date of determination and with respect
to each Guarantor, an amount equal to the lesser of (i) the total "value"
(within the meaning of Section 548 of the Bankruptcy Code as in effect on the
date hereof) given, directly or indirectly, to such Guarantor during the period
commencing on the date such Guarantor became a party to this Agreement and
ending on such date of determination, in exchange for its execution and delivery
of this Agreement, and (ii) the amount of "fair consideration" (within the
meaning of Article 10 of the New York Debtor Creditor Law as in effect on the
date hereof) given, directly or indirectly, to such Guarantor during the period
commencing on the date such Guarantor became a party to this Agreement and
ending on such date of determination in exchange for its execution and delivery
of this Agreement.
"Copyright Collateral": all Copyrights,
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whether now owned or hereafter acquired by any Guarantor, including each
Copyright identified in Schedule 5(l) hereto.
"Copyrights": all copyrights, copyright registrations and
applications for copyright registrations, including, without limitation, all
renewals and extensions thereof, the right to recover for all past, present and
future infringements thereof, and all other rights of any kind whatsoever
accruing thereunder or pertaining thereto.
"Equity Interest": (i) with respect to a corporation, the capital
stock thereof, (ii) with respect to a partnership, a partnership interest
therein, all rights of a partner in such partnership, whether arising under the
partnership agreement of such partnership or otherwise; (iii) with respect to a
limited liability company, a membership interest therein, all rights of a member
of such limited liability company, whether arising under the limited liability
company agreement of such limited liability company or otherwise; (iv) with
respect to any other firm, association, trust, business enterprise or other
entity which is similar to any other Person listed in clauses (i), (ii) and
(iii), and this clause (iv), of this definition, any equity interest therein,
any interest therein which entitles the holder thereof to share in the revenue,
income, earnings or losses thereof or to vote or otherwise participate in any
election of one or more members of the Managing Person thereof, and (v) all
warrants and options in respect of any of the foregoing and all other securities
which are convertible or exchangeable therefor.
"Event of Default": as defined in Section 8.
"Financing Statements": the UCC financing statements executed by
the Guarantor and delivered pursuant to Section 5 of the Credit Agreement.
"Franchise": with respect to any Person, a franchise, license,
authorization or right to construct, own, operate, promote, extend and/or
otherwise exploit any cable television system operated or to be operated by such
Person granted by any state, county, city, town, village or other local
government authority or by the FCC.
"Grants of Security Interests": collectively, the Grant of
Security Interest (Patents) and the Grant of Security Interest (Trademarks), in
the form of Annexes C-1 and C-2 hereto, respectively, in each case appropriately
completed
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and signed by the Guarantor.
"Guarantor Obligations": with respect to each Guarantor, all of
the obligations and liabilities of such Guarantor hereunder, whether fixed,
contingent, now existing or hereafter arising, created, assumed, incurred or
acquired.
"Insolvency Event": any Event of Default under Section 8.1(h) or
(i) of the Credit Agreement.
"Intellectual Property": with respect to any Guarantor, all
Copyright Collateral, all Patent Collateral and all Trademark Collateral,
together with (i) all inventions, processes, production methods, proprietary
information, know-how and trade secrets; (ii) all licenses or user or other
agreements granted to such Guarantor with respect to any of the foregoing, in
each case whether now or hereafter owned or used including, without limitation,
the licenses or other agreements with respect to the Copyright Collateral, the
Patent Collateral or the Trademark Collateral, listed in Schedule 5(l) hereto;
(iii) all information, customer lists, identification of suppliers, data, plans,
blueprints, specifications, designs, drawings, recorded knowledge, surveys,
engineering reports, test reports, manuals, materials standards, processing
standards, performance standards, catalogs, computer and automatic machinery
software and programs; (iv) all field repair data, sales data and other
information relating to sales or service of products now or hereafter
manufactured; (v) all accounting information and all media in which or on which
any information or knowledge or data or records may be recorded or stored and
all computer programs used for the compilation or printout of such information,
knowledge, records or data; (vi) all licenses, consents, permits, variances,
certifications and approvals of governmental agencies now or hereafter held by
such Guarantor; and (vii) all causes of action, claims and warranties now or
hereafter owned or acquired by such Guarantor in respect of any of the items
listed above. Notwithstanding the foregoing, Intellectual Property shall not
include any Franchise, any network affiliation, programming or other similar
contract, any agreement for the transmission and delivery of programming or any
pole rental lease.
"Motor Vehicles": shall mean motor vehicles, tractors, trailers
and other like property, whether or not the title thereto is governed by a
certificate of title or ownership and including fuel, tires and spare parts
therefor.
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"Net Worth": as of any date and with respect to each Guarantor,
the lesser of the following:
(a)(i) all of such Guarantor's "property, at a fair
valuation" (within the meaning of Section 101(32) of the Bankruptcy Code as
in effect on the date hereof) on such date, minus (ii) the sum of such
Guarantor's "debts" (within the meaning of Section 101(12) of the
Bankruptcy Code as in effect on the date hereof) on such date other than
such Guarantor's liability hereunder, and
(b)(i) the "fair salable value of the assets" (within the
meaning of Article 10 of the New York Debtor Creditor Law as in effect on
the date hereof) of such Guarantor on such date, minus (ii) "the amount
that will be required to pay such Guarantor's probable liability on its
existing debts as they become absolute and matured" (as such phrase would
be construed under Article 10 of the New York Debtor Creditor Law as in
effect on the date hereof) on such date other than such Guarantor's
liability hereunder.
"NYUCC": the UCC as in effect in the State of New York on the
date hereof.
"Office Location": as defined in Section 5(c).
"Patent Collateral": all Patents, whether now owned or hereafter
acquired by any Guarantor, including each Patent identified in Schedule 5(l).
"Patents": all patents and patent applications, including,
without limitation, the inventions and improvements described and claimed
therein together with the reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof, all income, royalties, damages and
payments now or hereafter due and/or payable under and with respect thereto,
including, without limitation, damages and payments for past or future
infringements thereof, the right to xxx for past, present and future
infringements thereof, and all rights corresponding thereto throughout the
world.
"Proceeds": as defined in the NYUCC, together with (i) all
dividends, distributions and income on and in
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respect of all of the Securities and Instruments and all other rights and
benefits in respect thereof, and (ii) with respect to the Patents and
Trademarks, all renewals thereof, all proceeds of infringement suits, all rights
to xxx for infringement, all license royalties, all reissues, divisions,
continuations, extensions and continuations-in-part thereof.
"Registrations": (i) patents issued under the laws of the United
States of America, (ii) patent applications filed with the United States Patent
and Trademark Office, and (iii) all registered trademarks.
"Senior Indenture": the Indenture dated as of October 15, 1993
between the Borrower and Helicon Capital Corp. and the Trustee, as the same may
be amended, modified or otherwise supplemented in accordance with Section 7.11
of the Credit Agreement.
"Supplement": a Supplement to this Agreement, duly completed, in
the form of Annex A hereto.
"Trademark Collateral": all Trademarks, whether now owned or
hereafter acquired by any Guarantor, including each Trademark identified in
Schedule 5(l) hereto. Notwithstanding the foregoing, the Trademark Collateral
does not and shall not include any Trademark which would be rendered invalid,
abandoned, void or unenforceable by reason of its being included as part of the
Trademark Collateral.
"Trademarks": all trade names, trademarks and service marks,
logos, trademark and service xxxx registrations, and applications for trademark
and service xxxx registrations, including, without limitation, all renewals of
trademark and service xxxx registrations, all rights corresponding thereto
throughout the world, the right to recover for all past, present and future
infringements thereof, all other rights of any kind whatsoever accruing
thereunder or pertaining thereto, together, in each case, with the product lines
and goodwill of the business connected with the use of, and symbolized by, each
such trade name, trademark and service xxxx.
"Transaction Statement": a transaction statement in the form of
Annex B hereto.
"Trustee": Fleet National Bank (formerly known as Shawmut Bank
Connecticut, National Association), as Trustee
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under the Senior Indenture, its successors and assigns.
"UCC": with respect to any jurisdiction, Articles 1, 8 and 9 of
the Uniform Commercial Code as from time to time in effect in such jurisdiction.
(c) When used in this Agreement, the following capitalized terms
shall have the respective meanings ascribed thereto in the NYUCC: "Certificated
Security", "Issuer", "Secured Party", "Security", "Security Interest" and
"Uncertificated Security".
2. Guaranty
(a) Subject to Section 2(b) hereof, each Guarantor hereby absolutely,
irrevocably and unconditionally guarantees the full and prompt payment when due
(whether at stated maturity, by acceleration or otherwise) of the Borrower
Obligations. This Agreement constitutes a guaranty of payment and neither the
Agent nor any Lender shall have any obligation to enforce any Loan Document or
any Rate Hedging Agreement or exercise any right or remedy with respect to any
collateral security thereunder by any action, including making or perfecting any
claim against any Person or any collateral security for any of the Borrower
Obligations, prior to being entitled to the benefits of this Agreement. The
Agent may, at its option, proceed against the Guarantors, or any one or more of
them, in the first instance, to enforce the Guarantor Obligations without first
proceeding against the Borrower or any other Person, and without first resorting
to any other rights or remedies, as the Agent may deem advisable. In
furtherance hereof, if the Agent or any Lender is prevented by law from
collecting or otherwise hindered from collecting or otherwise enforcing any
Borrower Obligation in accordance with its terms, the Agent or such Lender, as
the case may be, shall be entitled to receive hereunder from the Guarantors
after demand therefor, the sums which would have been otherwise due had such
collection or enforcement not been prevented or hindered.
(b) Notwithstanding anything to the contrary contained in this
Agreement, the maximum liability of each Guarantor hereunder shall not, as of
any date of determination, exceed the lesser of (i) the highest amount that is
valid and enforceable against such Guarantor under principles of New York State
contract law, and (ii) the sum of (A) all Consideration received by such
Guarantor as of such date of determination,
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plus (B) 95% of the Net Worth of such Guarantor on such date of determination.
(c) Each Guarantor agrees that the Guarantor Obligations may at any
time and from time to time exceed the maximum liability of such Guarantor
hereunder without impairing this Agreement or affecting the rights and remedies
of the Agent or any Lender hereunder.
3. Absolute Obligation
No Guarantor shall be released from liability hereunder unless and
until either (a) the Credit Agreement shall have been terminated and the
Borrower shall have paid in full in cash the outstanding principal balance of
the Loans, together with all accrued interest thereon and all other sums then
due and owing under the Loan Documents and the Rate Hedging Agreements, or (b)
the Guarantor Obligations of such Guarantor shall have been paid in full in
cash. Each Guarantor acknowledges and agrees that (i) neither the Agent nor any
Lender has made any representation or warranty to such Guarantor with respect to
the Borrower, its Subsidiaries, any Loan Document, any Rate Hedging Agreement,
or any agreement, instrument or document executed or delivered in connection
therewith, or any other matter whatsoever, and (ii) such Guarantor shall be
liable hereunder, and such liability shall not be affected or impaired,
irrespective of (A) the validity or enforceability of any Loan Document, any
Rate Hedging Agreement, or any agreement, instrument or document executed or
delivered in connection therewith, or the collectability of any of the Borrower
Obligations, (B) the preference or priority ranking with respect to any of the
Borrower Obligations, (C) the existence, validity, enforceability or perfection
of any security interest or collateral security under any Loan Document, or any
Rate Hedging Agreement, or the release, exchange, substitution or loss or
impairment of any such security interest or collateral security, (D) any
failure, delay, neglect or omission by the Agent or any Lender to realize upon,
enforce or protect any direct or indirect collateral security, indebtedness,
liability or obligation, any Loan Document, any Rate Hedging Agreement, or any
agreement, instrument or document executed or delivered in connection therewith,
or any of
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the Borrower Obligations, (E) the existence or exercise of any right of set- off
by the Agent or any Lender, (F) the existence, validity or enforceability of any
other guaranty with respect to any of the Borrower Obligations, the liability of
any other Person in respect of any of the Borrower Obligations, or the release
of any such Person or any other guarantor of any of the Borrower Obligations,
(G) any act or omission of the Agent or any Lender in connection with the
administration of any Loan Document, any Rate Hedging Agreement, or any of the
Borrower Obligations, (H) the bankruptcy, insolvency, reorganization or
receivership of, or any other proceeding for the relief of debtors commenced by
or against, any Person, (I) the disaffirmance or rejection, or the purported
disaffirmance or purported rejection, of any of the Borrower Obligations, any
Loan Document, any Rate Hedging Agreement, or any agreement, instrument or
document executed or delivered in connection therewith, in any bankruptcy,
insolvency, reorganization or receivership, or any other proceeding for the
relief of debtor, relating to any Person, (J) any law, regulation or decree now
or hereafter in effect which might in any manner affect any of the terms or
provisions of any Loan Document, any Rate Hedging Agreement, or any agreement,
instrument or document executed or delivered in connection therewith or any of
the Borrower Obligations, or which might cause or permit to be invoked any
alteration in the time, amount, manner or payment or performance of any of the
Borrower's obligations and liabilities (including the Borrower Obligations), (K)
the merger or consolidation of the Borrower into or with any Person, (L) the
sale by the Borrower of all or any part of its assets, (M) the fact that at any
time and from time to time none of the Borrower Obligations may be outstanding
or owing to the Agent or any Lender, (N) any amendment or modification of, or
supplement to, any Loan Document or any Rate Hedging Agreement or (O) any other
reason or circumstance which might otherwise constitute a defense available to
or a discharge of the Borrower in respect of its obligations or liabilities
(including the Borrower Obligations) or of such Guarantor in respect of any of
the Guarantor Obligations (other than by the performance in full thereof).
4. Grant of Security Interest
To secure the prompt and complete payment, observance and performance
of the Guarantor Obligations, each Guarantor hereby grants to the Agent, for its
benefit and the ratable benefit of the Lenders and the Rate Protection Lenders,
a Security Interest in and to all of such Guarantor's right, title and interest
in and to the following:
(a) the shares of common stock evidenced by the certificates
identified in Schedule 4(e) hereto and all other shares of capital stock of
whatever class of any Subsidiary,
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now or hereafter owned by such Guarantor, in each case together with the
certificates evidencing the same (collectively, the "Pledged Stock");
(b) all shares, securities, moneys or property representing a
dividend on any of the Pledged Stock, or representing a distribution or return
of capital upon or in respect of the Pledged Stock, or resulting from a
split-up, revision, reclassification or other like change of the Pledged Stock
or otherwise received in exchange therefor, and any subscription, warrants,
rights or options issued to the holders of, or otherwise in respect of, the
Pledged Stock;
(c) without affecting the obligations of such Guarantor under any
provision prohibiting such action under any of the Loan Documents, in the event
of any consolidation or merger in which any issuer of Stock Collateral is not
the surviving corporation, all shares of each class of the capital stock owned
by such Guarantor of the successor corporation formed by or resulting from such
consolidation or merger (the Pledged Stock, together with all other
certificates, shares, securities, properties or moneys as may from time to time
be pledged hereunder pursuant to clause (a) or (b) above and this clause (c)
being herein collectively called the "Stock Collateral";
(d) the general or limited partnership interest identified on
Schedule 4(e) hereto and all other partnership interest of whatever type of any
Subsidiary, now or hereafter owned by such Guarantor (collectively, the "Pledged
Partnership Interest");
(e) all partnership interests, securities, moneys or property
representing a distribution or return of capital upon or in respect of the
Pledged Partnership Interest, or resulting from a revision, reclassification or
other like change of the Pledged Partnership Interest or otherwise received in
exchange therefor, and any subscription, warrants, rights or options issued to
the holders of, or otherwise in respect of, the Pledged Partnership Interest;
(f) without affecting the obligations of such Guarantor under any
provision prohibiting such action under any of the Loan Documents, in the event
of any consolidation or merger, or a like combination in which any issuer of
Partnership Collateral is not the surviving entity, all partnership interests
owned by such Guarantor of the successor
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entity formed by or resulting from such consolidation or merger or a like
combination (the Pledged Partnership Interest, together with all other
partnership interests, securities, properties or moneys as may from time to time
be pledged hereunder pursuant to clause (d) or (e) above and this clause (f)
being herein collectively called the "Partnership Collateral");
(g) all accounts and general intangibles (each as defined in the
NYUCC) of such Guarantor constituting any right to the payment of money,
including (but not limited to) all moneys due and to become due to such
Guarantor in respect of any loans or advances due to such Guarantor in respect
of any loans or advances or for Inventory or Equipment or other good sold or
leased or for services rendered, all moneys due and to become due to such
Guarantor under any guarantee (including a letter of credit) of the purchase
price of Inventory or Equipment sold by such Guarantor and all tax refunds (such
accounts, general intangibles and moneys due and to become due being herein
collectively called "Accounts");
(h) all instruments, chattel paper and letters of credit (each as
defined in the NYUCC) of such Guarantor evidencing, representing, arising from
or existing in respect of, relating to, securing or otherwise supporting the
payment of, any of the Accounts, including (but no limited to) promissory notes,
drafts, bills or exchange and trade acceptances (herein collectively called
"Instruments");
(i) all inventory (as defined in the NYUCC) of such Guarantor,
including spare parts (other than for Motor Vehicles), all goods obtained by
such Guarantor in exchange for such inventory, and any products made or
processed from such inventory including all substances, if any, commingled
therewith or added thereto (herein collectively called "Inventory");
(j) all other accounts and general intangibles (each as defined in
the NYUCC) of such Guarantor not constituting Accounts;
(k) all equipment (as defined in the NYUCC) owned by such Guarantor,
including all furniture, fixtures, office supplies, machinery, head-ends,
cameras and other studio equipment, amplifiers, transmitters, converters and
similar equipment, cables, antennae, earth stations, connections, towers and
associated equipment, all other tangible personal
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property used in the operation of any cable television systems or franchises
(herein collectively called "Equipment");
(l) each contract and other agreement of such Guarantor relating to
the sale or other disposition of Inventory or Equipment;
(m) all documents of title (as defined in the NYUCC) or other
receipts of such Guarantor covering, evidencing or representing Inventory or
Equipment (herein collectively called "Documents");
(n) all rights, claims and benefits of such Guarantor against any
Person arising out of, relating to or in connection with Inventory or Equipment
purchased by such Guarantor, including, without limitation, any such rights,
claims or benefits against any Person storing or transporting such Inventory or
Equipment;
(o) the balance from time to time in the Collateral Account;
(p) to the extent permitted by the terms thereof, (i) all Franchises,
including, without limitation, each of the Franchises described in Part A of
Schedule 4(p) attached hereto; (ii) all other franchises, licenses,
authorizations or rights to construct, own, operate, promote, extend and/or
otherwise exploit any cable television system operated or to be operated by such
Guarantor granted by the state, county, city, town, village or other local
government authority and other governmental licenses, franchises, permits,
operating rights and other rights; (iii) all construction, engineering,
management and related or similar contracts or binding commitments or
understandings, with respect to the construction, installation and operation of
cable television systems, including, without limitation, each of the contracts
and agreements described in Part B of Schedule 4(p) attached hereto; (iv) all
network affiliation, programing, retransmission and other similar contracts and
agreements with licensed common carriers or others for the transmission or
retransmission and delivery of programming to subscribers or others (including,
without limitation, the non-cancelable assignment and sublease of all such
contracts and agreements made by Helicon Corp. for the benefit of a Guarantor),
including, without limitation, each of the contracts and agreements described in
Part C of Schedule 4(p) attached hereto; (v) to the extent permitted by the
terms thereof, all
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leases of property, whether real, personal or mixed, including, without
limitation, the leases described in Part D of Schedule 4(p) attached hereto;
(vi) all pole rental leases and similar agreements, including, without
limitation, the agreements described in Part E of Schedule 4(p) hereto, to the
extent permitted by the terms thereof; and (vii) all contracts, agreements and
understandings with subscribers and all subscribers, customer and vendor lists;
(q) all other tangible and intangible property of such Guarantor,
including, without limitation, all Proceeds, products, accessions, rents,
profits, income, benefits, substitutions and replacements of and to any of the
property of such Guarantor described in the preceding clauses of this Section 4
(including, without limitation, any proceeds of insurance thereof (subject to
the right to use such proceeds for repair or replacement specified in Section
6.5(b) of the Credit Agreement and, to the extent related to any property
described in said clauses or such Proceeds, products and accessions, all books,
correspondence, credit files, records, invoices and other papers, including
without limitation all tapes, cards, computer runs and other papers and
documents in the possession or under the control of such Guarantor or any
computer bureau or service company from time to time acting for such Guarantor;
provided that, notwithstanding the foregoing to the contrary, the Security
Interest granted herein shall not include Motor Vehicles or agreements that by
their terms cannot be assigned after the use by such Guarantor of its reasonable
best efforts to obtain consent to assignment;
(all of the foregoing, collectively, the "Collateral").
5. Representations and Warranties
Each Guarantor hereby represents and warrants to the Agent as follows:
(a) Binding Obligation. This Agreement constitutes the valid and
binding obligation of such Guarantor, enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws related to or affecting
the enforcement of creditors' rights generally.
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(b) Solvency. Such Guarantor (if the Current Guarantor, both
immediately before and after giving effect to this Agreement and to all
Indebtedness incurred by the Borrower in connection with the Loan Documents or,
if an Additional Guarantor, immediately before and after giving effect to this
Agreement) (i) is not insolvent, (ii) is not engaged, and is not about to
engage, in any business or transaction, for which it has unreasonably small
capital, and (iii) does not intend to incur, and does not believe that it would
incur, debts that would be beyond its ability to pay such debts as they mature,
in each case referred to above within the meaning of both the Bankruptcy Code
and Article 10 of New York Debtor Credit Law, each as in effect on the date
hereof.
(c) Chief Executive Office. As of the date hereof, such
Guarantor's place of business or, if such Guarantor has more than one place of
business, its chief executive office, is, and has been continuously for the
immediately preceding 5 month period, located (the "Office Location") at, (i) if
such Guarantor is the Current Guarantor, the address set forth in Section 12, or
(ii) if such Guarantor is an Additional Guarantor, the address therefor set
forth on Schedule 5(c) to the Supplement delivered by such Additional Guarantor.
Such Guarantor, (i) in the case of the Current Guarantor, has not changed its
legal name since its formation, and (ii) in the case of an Additional Guarantor,
has not changed its legal name during the 6 year period immediately preceding
the date it became a Guarantor hereunder, except as otherwise disclosed on the
Supplement delivered by such Additional Guarantor.
(d) Information. If such Guarantor is the Current Guarantor, all
of the information with respect to such Guarantor, or any of its Property, set
forth on each of the Schedules hereto is true, complete and correct as of the
date hereof. If such Guarantor is an Additional Guarantor, all of the
information with respect to such Guarantor, or any of its Property, set forth on
each of the Schedules to the Supplement delivered by such Additional Guarantor
is true, complete and correct as of the date of such Supplement. All of such
Guarantor's books, records and documents relating to its Guarantor Collateral
are in all material respects what they purport to be.
(e) Security Interest. This Agreement, together with the
delivery to the Agent of the Certificated
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Securities constituting Collateral and the continuous possession thereof by the
Agent in the State of New York, creates a continuing "enforceable" Security
Interest in the Collateral in favor of the Agent. Upon (i) the presentation for
filing of the Financing Statements at the respective offices listed thereon
together with the appropriate filing fee therefor, (ii) the delivery to the
Agent of the Instruments constituting the Collateral, (iii) the registration, in
accordance with Article 8 of the NYUCC, of the Security Interest granted hereby
on the books of each Person which is an Issuer of an Uncertificated Security
constituting the Collateral, and (iv) the filing of the Grants of Security
Interests in the United States Patent and Trademark Office with respect to
Patents, Registrations, and Trademarks, (A) such Security Interest shall be
perfected, and (B) assuming that the Agent has acted in "good faith and without
notice of any adverse claim" within the meaning of Article 8 of the NYUCC, the
Agent shall be a "bona fide purchaser", within the meaning of such Article, with
respect to the Collateral consisting of Securities.
(f) Absence of Liens. There are no Liens upon the Collateral
other than Permitted Liens.
(g) Equity Interests. With respect to the Current Guarantor, the
Equity Interests listed on Schedule 5(g) hereto constitute, as of the date
hereof, and with respect to each Additional Guarantor, the Equity Interests
listed on Schedule 5(g) to the Supplement delivered by such Additional Guarantor
constitute, as of the date of such Supplement, all of the Equity Interests in
each Subsidiary in which such Guarantor has any right, title or interest, and
each such Equity Interest issued by a corporate Issuer has been duly authorized,
validly issued and fully paid for, and is non-assessable.
(h) Chattel Paper, Documents and Instruments. With respect to
the Current Guarantor, the chattel paper, documents and instruments listed on
Schedule 5(h) hereto constitute, as of the date hereof, and with respect to each
Additional Guarantor, the chattel paper, documents and instruments listed on
Schedule 5(h) to the Supplement delivered by such Additional Guarantor
constitute, as of the date of such Supplement, all of the material chattel
paper, documents and instruments which constitute the Collateral, and, to the
best of such Guarantor's knowledge, all such Chattel Paper, Documents and
Instruments have been duly authorized, issued and delivered, and constitute the
legal, valid,
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binding and enforceable obligations of the respective makers thereof.
(i) Accounts. As of the date hereof, all records concerning any
Account constituting the Collateral are located at its Office Location, and no
such Account is evidenced by a promissory note or other instrument.
(j) Equipment and Inventory. Except for Equipment and Inventory
in transit with common carriers, such Guarantor has exclusive possession and
control of all Equipment and Inventory constituting the Collateral, all of which
is as of the date hereof and has been continuously for the 5 month period
immediately preceding the date hereof (or, in the case of an Additional
Guarantor, the date of the Supplement delivered by such Additional Guarantor),
located at one or more of the places listed on (i) if such Guarantor is the
Current Guarantor, Schedule 5(j) hereto hereto, and (ii) if such Guarantor is an
Additional Guarantor, Schedule 5(j) hereto to the Supplement delivered by such
Additional Guarantor.
(k) Franchises and Related Agreements. Parts (A) through (E) of
Schedule 4(p) hereto contain, as of the date hereof, a listing, that is true,
correct and complete in all material respects, of the items called for by the
headings contained in each such part in respect of (i) all CATV Franchises
issued in the name of or in which such Guarantor (or its immediate predecessor)
has an interest and (ii) all (A) construction, engineering, management and
related or similar contracts, agreements or binding commitments or
understandings, (B) network affiliation, programming and other similar contracts
and agreements with licensed common carriers or others for the transmission and
delivery of programming to subscribers or others, (C) leases of property,
whether real, personal or mixed, and (D) pole rental leases, to which such
Guarantor (or its immediate predecessor) is party or by which it or its
properties are bound or affected; provided that in the case of each of the
foregoing items that is owned by an immediate predecessor of such Guarantor and
that has not been transferred to such Guarantor because a consent necessary to
effect such transfer has not been obtained, such Guarantor shall describe all
such items in the appropriate parts of Schedule 4(p) hereto and shall designate
such items as lacking a consent to transfer, provided, further, that such
Guarantor shall use its best efforts to obtain all such consents, and provided,
further, that until all such consents have been obtained,
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such Guarantor shall give the Agent written notice, not less often than
quarterly, of which such consents have not been obtained.
(l) Intellectual Property. Schedule 5(l) hereto sets forth under
the name of each Guarantor a complete and correct list of all Copyrights,
Patents and Trademarks owned by such Guarantor on the date hereof; except
pursuant to licenses and other user agreements entered into by such Guarantor in
the ordinary course of business, which are listed in Schedule 5(l) hereto, such
Guarantor owns and possesses the right to use, and has done nothing to authorize
or enable any other Person to use, any Copyright, Patent or Trademark listed in
said Schedule 5(l), and all registrations listed in said Schedule 5(l) are valid
and in full force and effect; except as may be set forth in said Schedule 5(l),
such Guarantor owns and possesses the right to use all Copyrights, Patents and
Trademarks.
6. Covenants
Each Guarantor covenants with the Agent as follows:
(a) Chief Executive Office. Such Guarantor shall maintain its
place of business, or if it has more than one place of business, its chief
executive office, at the Office Location or at such other location in respect of
which (i) such Guarantor shall have provided the Agent with prior written notice
thereof, and (ii) UCC financing statements (or amendments thereto), in form and
substance reasonably satisfactory to the Agent, shall have been filed within two
months of such change.
(b) Further Assurances. Such Guarantor shall, at its own
expense, promptly execute and deliver all certificates, documents, instruments,
financing and continuation statements and amendments thereto, notices and other
agreements, and take all further action, that the Agent may reasonably request
from time to time, in order to perfect and protect the Security Interest granted
hereby or to enable the Agent to exercise and enforce its rights and remedies
hereunder with respect to the Collateral. Such Guarantor hereby irrevocably
appoints the Agent as such Guarantor's true and lawful attorney-in-fact, in the
name, place and stead of such Guarantor, to perform on behalf of such Guarantor
any and all obligations of such Guarantor under this Agreement, and such
Guarantor agrees that the power of attorney herein
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granted constitutes a power coupled with an interest, provided, however, that
the Agent shall have no obligation to perform any such obligation and such
performance shall be at the sole cost and expense of such Guarantor. If such
Guarantor fails to comply with any of its obligations hereunder, the Agent may
do so in such Guarantor's name or in the Agent's name, but at such Guarantor's
expense, and such Guarantor hereby agrees to reimburse the Agent in full for all
reasonable expenses, including reasonable attorney's fees, incurred by the Agent
in connection therewith.
(c) Information. Such Guarantor shall, at its own expense,
furnish to the Agent such information, reports, statements and schedules with
respect to the Collateral as the Agent may reasonably request from time to time.
(d) Defense of Collateral. Such Guarantor shall, at its own
expense, defend the Collateral against all claims of any kind or nature (other
than Permitted Liens, if any) of all Persons at any time claiming the same or
any interest therein adverse to the interests of the Agent, any Rate Protection
Lender or any Lender, and such Guarantor shall not cause, permit or suffer to
exist any Lien upon the Collateral other than Permitted Liens, if any.
(e) Uncertificated Securities. Such Guarantor shall cause each
Person which is an Issuer of an Uncertificated Security constituting the
Collateral (i) to register the Security Interest granted hereby upon the books
of such Person in accordance with Article 8 of the NYUCC, and (ii) to issue to
the Agent an initial Transaction Statement and issue to the Agent subsequent
Transaction Statements in accordance with Section 8-408 of the UCC in effect in
the State of New York.
(f) Delivery of Pledged Collateral. Each Certificated Security
representing an Equity Interest in a Person which is or shall become a
Subsidiary of the Borrower shall be promptly delivered to the Agent, to be held
by the Agent pursuant hereto, in suitable form for transfer by delivery or
accompanied by duly executed documents of transfer or assignment in blank, all
in form and substance satisfactory to the Agent. Such Guarantor agrees that
until so delivered, each such Certificated Security shall be held by such
Guarantor in trust for the benefit of the Agent and be segregated from the other
Property of such Guarantor.
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(g) Chattel Paper, Documents and Instruments. All of the
instruments, documents and chattel paper now or hereafter owned by or in the
possession of such Guarantor which constitute the Collateral (other than checks
received in the ordinary course of collection) shall be promptly delivered to
the Agent, to be held by the Agent pursuant hereto, in suitable form for
transfer by delivery or accompanied by duly executed documents of transfer or
assignment in blank, all in form and substance reasonably satisfactory to the
Agent. Such Guarantor agrees that, with respect to all items of the Collateral
which it is or shall hereafter be obligated to deliver to the Agent, until so
delivered such items shall be held by such Guarantor in trust for the benefit of
the Agent and be segregated from the other Property of such Guarantor.
(h) Accounts. Except as otherwise provided in this subsection,
such Guarantor shall continue to collect in accordance with its customary
practice, at its own expense, all amounts due or to become due to such Guarantor
in respect of such Guarantor's Accounts and, prior to the occurrence of an Event
of Default, such Guarantor shall have the right to adjust, settle or compromise
the amount or payment of any such Account, all in accordance with its customary
practices. In connection with such collections, such Guarantor may take and, at
the direction of the Agent at any time that an Event of Default shall have
occurred and be continuing shall take, such action as such Guarantor or the
Agent may reasonably deem necessary or advisable to enforce collection of such
Accounts.
(i) Equipment and Inventory. Such Guarantor shall keep the
Equipment and Inventory constituting the Collateral at the places listed on (i)
if such Guarantor is the Current Guarantor, Schedule 5(l) hereto, and (ii) if
such Guarantor is an Additional Guarantor, Schedule 5(l) to the Supplement
delivered by such Guarantor, and at such other places located within the United
States in respect of which (A) such Guarantor shall have provided the Agent with
prior written notice, and (B) UCC financing statements (or amendments thereto),
in form and substance satisfactory to the Agent, shall have been filed within
two months of such change. Such Guarantor shall promptly furnish to the Agent a
statement respecting any material loss or damage to any of the Equipment or
Inventory constituting the Collateral except to the extent that such loss or
damage shall be insured pursuant to policies required to be maintained pursuant
to the Credit Agreement.
(j) Mortgages. Within six months after the
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date hereof, and promptly upon acquisition of any interest in real estate
acquired after the date hereof, each Guarantor shall execute and file, and
deliver to the Agent evidence of the filing of and a copy of, a mortgage or
assignment, in form and substance satisfactory to the Agent, with respect to
such real estate (and any related fixtures) and, in connection therewith,
deliver to the Agent such title insurance policies, surveys, environmental
reports and other documents as the Agent shall reasonably require, provided that
such Guarantor shall not be required to execute a mortgage with respect to any
interest in real estate that in the judgement of the Board of Directors of the
Borrower, as evidenced by a resolution of its board of directors, is not
material to the operations of the CATV Systems, taken as a whole, and provided,
further, that such Guarantor shall not be required to assign any leasehold
estate if such estate is non- assignable by the terms of the applicable lease
after the use by such Guarantor of its reasonable best efforts to obtain consent
to the assignment. Any such mortgage with respect to property located in or
otherwise related to West Virginia shall contain, in addition to any other
provisions required by the Agent, the substance set forth in Section 19(b) of
this Agreement.
(k) Intellectual Property. Each Guarantor shall give to the
Agent prompt written notice thereof in the event that such Guarantor shall
obtain any right to any new Intellectual Property or to any reissue, division,
continuation, renewal, extension, or continuation-in-part of any Intellectual
Property. Each Guarantor shall prosecute diligently any applications of the
Intellectual Property constituting Collateral pending as of the date of this
Agreement or thereafter, and preserve and maintain all rights in applications of
Intellectual Property constituting Collateral consistent with past practice,
including the payment of all maintenance fees. Each Guarantor shall not abandon
any right to file an application or any pending application for any Intellectual
Property unless the failure so to do could not reasonably be expected to have a
Material Adverse Effect. Each Guarantor agrees that it will not enter into any
agreement, including a license agreement, with respect to any Intellectual
Property which is inconsistent with its past practices of licensing Intellectual
Property as the case may be.
7. Other Agreements of the Guarantors
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(a) No Duty to Preserve. Except as otherwise required by law,
each Guarantor agrees that, with respect to the Collateral, neither the Agent,
any Rate Protection Lender nor any Lender has any obligation to preserve rights
against prior or third parties.
(b) Agent's Duty With Respect to Collateral. Each Guarantor
agrees that the Agent's only duty with respect to the Collateral delivered to
the Agent shall be to use reasonable care in the custody and preservation of the
Collateral, and each Guarantor agrees that if the Agent accords the Collateral
substantially the same kind of care as the Agent accords its own Property, such
care shall conclusively be deemed reasonable. In the event that all or any part
of the Certificated Securities or Instruments constituting the Collateral are
lost, destroyed or wrongfully taken while such Certificated Securities or
Instruments are in the possession of the Agent, each Guarantor agrees that it
will use its best efforts to cause the delivery of new Certificated Securities
or Instruments in place of the lost, destroyed or wrongfully taken Certificated
Securities or Instruments upon request therefor by the Agent, without the
necessity of any indemnity bond or other security, other than the Agent's
agreement of indemnity upon usual and customary terms therefor. Anything herein
to the contrary notwithstanding, the Agent shall not be under any duty to send
notices, perform services, exercise any rights of collection, enforcement,
conversion or exchange, vote, pay for insurance, taxes or other charges or take
any action of any kind in connection with the management of the Collateral.
(c) Liability of Guarantors under Contracts and Agreements
Included in the Collateral. Anything herein to the contrary notwithstanding, (i)
each Guarantor shall remain liable under the contracts and agreements to which
it is a party and which is included in the Collateral to the extent set forth
therein to perform all of its duties and obligations thereunder to the same
extent as if this Agreement had not been executed, (ii) the exercise by the
Agent, any Rate Protection Lender or any Lender of any of its rights hereunder
shall not release any Guarantor from any of its duties or obligations under any
such contract or agreement, (iii) neither the Agent, any Rate Protection Lender
nor any Lender shall have any obligation or liability, including indemnification
obligations, under any such contract or agreement by reason of this Agreement,
nor shall the Agent, any Rate Protection Lender or any Lender be obligated to
perform any of
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the obligations or duties of any Guarantor thereunder, to make any payment, to
make any inquiry as to the nature or sufficiency of any payment received by any
Guarantor or the sufficiency of any performance by any party under any such
contract or agreement or to take any action to collect or enforce any claim for
payment assigned hereunder, and (iv) neither the Agent, any Rate Protection
Lender nor any Lender shall be under any duty to send notices, perform services,
exercise any rights of collection, enforcement, conversion or exchange, vote,
pay for insurance, taxes or other charges or take any action of any kind in
connection with the management of the Collateral.
(d) Intellectual Property. (i) For the purpose of enabling the
Agent to exercise rights and remedies under Section 9 hereof at such time as the
Agent shall be lawfully entitled to exercise such rights and remedies, and for
no other purpose, each Guarantor hereby grants to the Agent, to the extent
assignable, an irrevocable, non-exclusive license (exercisable without payment
of royalty or other compensation to such Guarantor) to use, assign, license or
sublicense any of the Intellectual Property now owned or hereafter acquired by
such Guarantor, wherever the same may be located, including in such license
reasonable access to all media in which any of the licensed items may be
recorded or stored and to all computer programs used for the compilation or
printout thereof.
8. Events of Default
Each of the following shall constitute an "Event of Default":
(a) The failure of any Guarantor to observe or perform any term,
covenant or agreement contained in this Agreement and such failure shall have
continued unremedied for a period of 30 days after such Guarantor shall have
obtained knowledge thereof; or
(b) The occurrence and continuance of an Event of Default under, and
as such term is defined in, the Credit Agreement.
9. Remedies
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof,
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the Agent may:
(i) exercise any and all rights and remedies (A) granted to a
Secured Party by the UCC in effect in the State of New York or otherwise
allowed at law, and (B) otherwise provided by this Agreement, and
(ii) dispose of the Collateral as it may choose, so long as every
aspect of the disposition including the method, manner, time, place and
terms are commercially reasonable, and each Guarantor agrees that, without
limitation, the following are each commercially reasonable: (A) the Agent
shall not in any event be required to give more than 10 days' prior notice
to the Guarantors of any such disposition, (B) any place within the City of
New York or the Counties of Nassau, Suffolk, and Westchester may be
designated by the Agent for disposition, and (C) the Agent may adjourn any
public or private sale from time to time by announcement at the time and
place fixed therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(b) Each Guarantor acknowledges and agrees that the Agent may elect,
with respect to the offer or sale of any or all of the Equity Interests
constituting the Collateral, to conduct such offer and sale in such a manner as
to avoid the need for registration or qualification of such Equity Interests or
the offer and sale thereof under any Federal or state securities laws and that
the Agent is authorized to comply with any limitation or restriction in
connection with such sale as counsel may advise the Agent is reasonably
necessary in order to avoid any violation of applicable law, compliance with
such procedures as may restrict the number of prospective bidders and
purchasers, require that such prospective bidders and purchasers have certain
qualifications, and restrict such prospective bidders and purchasers to Persons
who will represent and agree that they are purchasing for their own account for
investment and not with a view to the distribution or resale of such Equity
Interests, or in order to obtain any required approval of the sale or of the
purchaser by any Governmental Authority. Each Guarantor further acknowledges
and agrees that any such transaction may be at prices and on terms less
favorable than those which may be obtained through a public sale and not subject
to such restrictions and agrees that, notwithstanding the foregoing, the Agent
is under no obligation to conduct any such public
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sale and may elect to impose any or all of the foregoing restrictions, or any
other restrictions which may be reasonably necessary in order to avoid any such
registration or qualification, at its sole discretion or with the consent or
direction of the Required Lenders, and that any such offer and sale so conducted
shall be deemed to have been made in a commercially reasonable manner.
(c) To the extent permitted by law, each Guarantor hereby expressly
waives and covenants not to assert any appraisement, valuation, stay, extension,
redemption or similar laws, now or at any time hereafter in force, which might
delay, prevent or otherwise impede the performance or enforcement of this
Agreement.
10. Voting
Notwithstanding anything to the contrary contained in this Agreement,
each Guarantor shall have the right to vote all Securities constituting its
Collateral and receive and retain all dividends and distributions thereon until
such time, if any, as an Event of Default shall have occurred and be continuing
and the Agent shall have notified such Guarantor that the Agent shall have
elected to terminate the rights of such Guarantor under this Section, at which
time the Agent shall then be vested with the right to vote all Securities
constituting the Collateral and receive and retain all dividends and
distributions thereon, until such time as such Event of Default is cured or
waived.
11. Termination
On any date upon which the Credit Agreement shall have been terminated
and the Obligations shall have been indefeasibly paid in full in cash, the Liens
granted hereby shall cease and the Agent shall, at the Guarantors' expense (A)
execute and deliver all UCC Termination Statements which the Guarantors shall
have reasonably requested, and (B) return to the Guarantors all their respective
Collateral which shall remain in the possession of the Agent at such time.
12. Notices
All notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand,
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one Business Day after having been sent by overnight courier service, or three
Business Days after having been deposited in the mail, first-class postage
prepaid, or, in the case of notice by telecopy, when sent, addressed, in the
case of Agent, to its address set forth in Section 10.2 of the Credit Agreement,
and in the case of each Guarantor, addressed as follows, or addressed to such
other addresses as to which any party hereto may notify the other parties hereto
in writing (except that a notice of change of address shall be deemed to be
effective only when actually received):
Helicon Capital Corp.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx,
Senior VP, CFO and Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy, in the case of notice of the occurrence of an Event of
Default, to:
Helicon Capital Corp.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party hereto may rely on signatures of the parties hereto which are
transmitted by telecopy or other electronic means as fully as if originally
signed.
13. Expenses
Each Guarantor agrees that it shall, upon demand, pay to the Agent any
and all reasonable out-of-pocket sums, costs and expenses which the Agent or any
Lender may pay or incur defending, protecting or enforcing this Agreement
(whether suit is instituted or not), including reasonable attorneys' fees and
disbursements. All sums, costs and expenses which are due and payable pursuant
to this Section shall bear interest, payable on demand, at the highest rate then
payable on the Borrower Obligations.
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14. Repayment in Bankruptcy, etc.
If, at any time or times subsequent to the payment of all or any part
of the Borrower Obligations or the Guarantor Obligations, the Agent or any
Lender shall be required to repay any amounts previously paid by or on behalf of
the Borrower or any Guarantor in reduction thereof by virtue of an order of any
court having jurisdiction in the premises, as a result of an adjudication that
such amounts constituted preferential payments or fraudulent conveyances, the
Guarantors unconditionally agree to pay to the Agent within 10 days after demand
a sum in cash equal to the amount of such repayment, together with interest on
such amount from the date of such repayment by the Agent or such Lender, as the
case may be, to the date of payment to the Agent at the applicable
after-maturity rate set forth in the Credit Agreement.
15. Additional Guarantors
Upon the execution and delivery to the Agent of a Supplement by any
Person, appropriately acknowledged, such Person shall be a Guarantor.
16. No Subrogation
Each Guarantor expressly waives any and all rights of subrogation,
reimbursement, indemnity, exoneration, contribution or any other claim which it
may now or hereafter have against the Borrower, any other Guarantor or any other
Person directly or contingently liable for the Obligations, or against or with
respect to the Borrower's or such other Guarantor's Property, arising from the
existence or performance of this Agreement until the Credit Agreement has been
terminated and the Borrower Obligations have been indefeasibly paid in full in
cash.
17. Miscellaneous
(a) Except as otherwise expressly provided in this Agreement, each
Guarantor hereby waives presentment, demand for payment, notice of default,
nonperformance and dishonor, protest and notice of protest of or in respect of
this Agreement, the other Loan Documents, each Rate Hedging Agreement, and the
Borrower Obligations, notice of acceptance of this Agreement and reliance
hereupon by the Agent and each Lender, and the incurrence of any of the Borrower
Obligations, notice
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of any sale of collateral security or any default of any sort.
(b) No Guarantor is relying upon the Agent or any Lender to provide
to such Guarantor any information concerning the Borrower or any of its
Subsidiaries, and each Guarantor has made arrangements satisfactory to such
Guarantor to obtain from the Borrower on a continuing basis such information
concerning the Borrower and its Subsidiaries as such Guarantor may desire.
(c) Each Guarantor agrees that any statement of account with respect
to the Borrower Obligations from the Agent or any Lender to the Borrower which
binds the Borrower shall also be binding upon such Guarantor, and that copies of
said statements of account maintained in the regular course of the Agent's or
such Lender's business, as the case may be, may be used in evidence against such
Guarantor in order to establish its Guarantor Obligations.
(d) Each Guarantor acknowledges that it has received a copy of the
Loan Documents and each Rate Hedging Agreement and has approved of the same. In
addition, such Guarantor acknowledges having read each Loan Document and each
such Rate Hedging Agreement and having had the advice of counsel in connection
with all matters concerning its execution and delivery of this Agreement.
(e) No Guarantor may assign any right, or delegate any duty, it may
have under this Agreement.
(f) This Agreement is the "Subsidiary Guaranty" under, and as such
term is defined in, the Credit Agreement, and is subject to, and should be
construed in accordance with, the provisions thereof. Each of the Agent and the
Guarantors acknowledges that certain provisions of the Credit Agreement,
Sections 1.1 (Definitions), 1.2 (Principles of Construction), 10.1 (Amendments
and Waivers), 10.2 (Notices), 10.3 (No Waiver; Cumulative Remedies), 10.4
(Survival of Representations and Warranties and Certain Obligations), 10.7
(Assignments and Participations), 10.9 (Limitation of Liability), 10.10
(Counterparts), 10.12 (Governmental and Regulatory Authorities), 10.13
(Construction), 10.14 (Governing Law), 10.15 (Headings Descriptive), 10.16
(Severability), 10.17 (Integration), 10.18 (Consent to Jurisdiction), 10.19
(Service of Process), 10.20 (No Limitation on Service or Suit) and 10.21 (WAIVER
OF TRIAL BY JURY) thereof, are made applicable
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to this Agreement and all such provisions are incorporated by reference herein
as if fully set forth herein.
18. Intercreditor Agreement. As between the Agent and the Trustee, this
Agreement is subject to the terms of the Intercreditor Agreement executed and
delivered pursuant to Section 5.26 of the Credit Agreement.
19. Approvals.
(a) In General. Any provisions contained herein to the contrary
notwithstanding, no action shall be taken hereunder by the Agent and/or Lenders
with respect to any item of the Collateral unless and until all applicable
requirements (if any) of any Federal or state or local laws, rules and
regulations of regulatory or governmental bodies applicable to or having
jurisdiction over the cable television industry, and all applicable conditions
(if any) of such item of Collateral that is a contract, Franchise, Franchise
agreement, license or similar operating right held by a Guarantor have been
satisfied with respect to such action and there have been obtained such
consents, approvals and authorizations (if any) as may be required to be
obtained from any Governmental Authority or other Person under the terms of any
Franchise, Franchise agreement, license or similar operating right held by such
Guarantor, or under any other contract to which such Guarantor is a party, that
is included in the Collateral. It is the intention of the parties hereto that
the Liens in favor of the Agent and the Lenders in the Collateral shall in all
relevant respects be subject to and governed by said statutes, rules and
regulations and that nothing in this Agreement shall be construed to diminish
the control exercised by a Guarantor except in accordance with the provisions of
such statutory requirements and rules and regulations. Each Guarantor agrees
that, upon request from time to time by the Agent, it shall use its reasonable
best efforts to obtain any governmental, regulatory or third party consents,
approvals or authorizations referred to in this Section 13(a). Upon the
exercise by the Agent and/or Lenders of any power, right, privilege or remedy
pursuant to this Agreement which requires any such consent, approval or
authorization or any other consent, approval authorization registration or
qualification of any Governmental Authority or other Person, each Guarantor
shall execute and delivery, or shall cause the execution and delivery of, all
applications, certificates, instruments and other documents and papers that the
Agent and/or Lenders may be required to obtain for such consent, approval,
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registration, qualification or authorization.
(b) Certain West Virginia Collateral. Notwithstanding anything to the
contrary in any Loan Document, a default or assignment under any agreements does
not constitute automatic transfer or any Franchise for any CATV System in the
State of West Virginia. The appropriate franchise authority's approval must be
sought before the transfer of any such Franchise in accordance with W. Va. Code
Section 5-18-15 and Rule Section 187-1-11, Series 1.
In the event of any act of default, the parties/petitioners agree to
notify the relevant franchise authorities in the State of West Virginia and West
Virginia Cable Television Advisory Board within seven (7) days of such; this
notification will give such franchise authorities and said Board the opportunity
to determine if such default would cause inadequate, unsafe or unreliable
service in violation of W. Va. Code Section 5-18-17.
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IN EVIDENCE of the agreement by the parties hereto to the terms and
conditions herein contained, each such party has caused this Subsidiary Guaranty
and Security Agreement to be duly executed on its behalf.
HELICON CAPITAL CORP.
By:_______________________________
Name:_____________________________
Title:____________________________
THE HELICON GROUP, L.P.
By: Xxxx Investments, Inc., its
General Partner
By:______________________________
Name:____________________________
Title:___________________________
BANQUE PARIBAS, as Agent
By:_____________________________
Name:___________________________
Title:__________________________
By:
Name:
Title:
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