Exibit 10.42
CREDIT AGREEMENT
Dated as of April 15, 1997
CITIZENS CENTURY CABLE TELEVISION VENTURE, a joint venture organized
under the laws of Delaware ("Borrower"), SOCIETE GENERALE, NEW YORK BRANCH, as
agent (the "Agent") for the financial institutions (the "Lenders") listed on the
signature pages hereof, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
(the "Syndication Agent"), CORESTATES BANK, N.A., THE FIRST NATIONAL BANK OF
BOSTON, LTCB TRUST COMPANY and PNC BANK, NATIONAL ASSOCIATION, as co-agents (the
"Co-Agents"), and the Lenders agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"A Advance" means an advance by a Lender to the Borrower as part of an
A Borrowing and refers to a Base Rate Advance or a Eurodollar Rate Advance, each
of which shall be a "Type" of A Advance.
"A Borrowing" means a borrowing consisting of simultaneous A Advances
of the same Type made by each of the Lenders pursuant to Section 2.01.
"A Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-1, evidencing the
aggregate indebtedness of the Borrower to such Lender resulting from the A
Advances made by such Lender.
"Additional Unsecured Debt" has the meaning
specified in Section 5.02(b)(viii).
"Advance" means an A Advance or a B Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with such
Person or is a director or officer of such Person. For purposes of this
definition, the term "control" (including the terms "controlling, "controlled
by" and "under common control with") of a Person means the possession, direct or
indirect, of the power to vote 5% or more of the Voting Stock of such Person or
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or otherwise.
"Agent" has the meaning specified in the recital of parties to this
Agreement.
"Agreement" means this Credit Agreement.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and such
Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Advance and,
in the case of a B Advance, the office of such Lender notified by such Lender to
the Agent as its Applicable Lending Office with respect to such B Advance.
"Approved Acquisition" means any acquisition, approved by the Majority
Lenders, of cable television assets or 100% of the ownership interests of a
company or other Person that owns, directly or through one or more other wholly
owned companies or other Persons, all or substantially all of such assets.
"Approved Company" means a company or other Person whose cable
television assets or ownership interests will be acquired in an Approved
Acquisition.
"Asset EBIDT" has the meaning specified in Section 5.02(e).
"Asset Purchase Agreements" means the Xxxxx Oxnard Asset Purchase
Agreement, the Xxxxx Walnut Asset Purchase Agreement and the Xxxxx Xxxxx Xxxxx
Asset Purchase Agreement.
"Assignment and Acceptance" means an assignment and acceptance entered
into by a Lender and an Eligible Assignee, and accepted by the Agent, in
substantially the form of Exhibit H.
"B Advance" means an advance by a Lender to the Borrower as part of a
B Borrowing resulting from the auction bidding procedure described in Section
2.03.
"B Borrowing" means a borrowing consisting of simultaneous B Advances
from each of the Lenders whose offer to make one or more B Advances as part of
such borrowing has been accepted by the Borrower under the auction bidding
procedure described in Section 2.03.
"B Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A-2, evidencing the
indebtedness of the Borrower to such Lender resulting from a B Advance made by
such Lender.
"B Reduction" has the meaning specified in Section 2.01.
"Base Rate" means, for any period, a fluctuating interest rate per
annum as shall be in effect from time to time,
which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest from time to time announced by
Societe Generale in New York, New York, as its prime rate (which
announced rate is not necessarily the lowest rate offered by Societe
Generale, and any other extension of credit by Societe Generale may be
at rates above, below or at such announced rate); and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an A Advance which bears interest as
provided in Section 2.07(a)(i).
"Basic Subscribers" means Subscribers to whom no separate charge in
addition to that paid by all Subscribers is assessed for any particular
programming and Subscribers to a group of channels of programming which are not
offered individually to Subscribers; provided that, in the case of a
multiple-unit building, the number of Basic Subscribers shall be computed by
dividing the monthly revenues derived from such services to such building by the
prevailing basic rate charged for such services to Subscribers in single-unit
buildings.
"Borrower" has the meaning specified in the recital of parties to this
Agreement.
"Borrowing" means an A Borrowing or a B Borrowing.
"Business Day" means a day of the year on which commercial banks are
not required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurodollar Rate Advances, on which dealings are
carried on in the London interbank market.
"Capital Lease" means a lease which shall have been, or should be, in
accordance with generally accepted accounting principles, recorded as a capital
lease.
"Century Communications" means Century Communications Corp., a New
Jersey corporation.
"Century Telecommunications" means Century Telecommunications Venture
Corp., a Delaware corporation.
"Century/Texas" means Century Communications Corp., a Texas
corporation.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended from time to time.
"Citizens Cable" means Citizens Cable Company, a Delaware corporation.
"Citizens Utilities" means Citizens Utilities Co., a Delaware
corporation.
"Commercial Paper" means one or more unsecured instruments of
indebtedness issued from time to time by the Borrower having a maturity of 270
days or less and denominated in Dollars (including euronotes, eurobonds,
domestic notes, domestic bonds and other types of commercial paper).
"Commitment" has the meaning specified in Section 2.01.
"Consolidated" refers to the consolidation of accounts of the Borrower
with the accounts of its Subsidiaries, all in accordance with generally accepted
accounting principles, including principles of consolidation consistent with
those applied in the preparation of consolidated financial statements of the
Borrower.
"Converts", "Conversion" and "Converted" each refers to a conversion
of A Advances of one Type into A Advances of another Type pursuant to Section
2.08, 2.09, 2.11 or 2.12.
"Debt" of any Person means (i) indebtedness for borrowed money or for
the deferred purchase price of property or services in respect of which such
Person is liable, contingently or otherwise, as obligor, guarantor or otherwise,
or in respect of which such Person otherwise assures a creditor against loss,
(ii) obligations evidenced by bonds, debentures, notes or other similar
instruments, including, but not limited to, Commercial Paper, (iii) obligations,
contingent or otherwise, under acceptance, letter of credit or similar
facilities, (iv) obligations as lessee under Capital Leases or Synthetic Leases,
and (v) obligations under direct or indirect guaranties in respect of, and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (i) through (iv)
above; provided that Debt shall not include (x) trade accounts payable unless
payment thereof has been deferred by agreement beyond the customary period in
the industry or (y) obligations under Hedging Agreements or guaranties of such
obligations.
"Debt Service" means, for any period and for any Debt, the sum of all
amounts payable (whether or not actually paid) during such period by the
Borrower and its Subsidiaries to any other Person on account of (a) principal of
such Debt (including the principal component of Capital Lease and Synthetic
Lease payments and trade accounts payable with respect to which payment has been
deferred by agreement beyond the customary period in the industry but excluding
amounts which the Borrower has a right to reborrow at the time such amount is
payable under this Agreement
or a comparable revolving credit agreement, as the case may be, amounts payable
under Section 2.11(b) and amounts required to be paid as the result of an
optional election to pay on the part of the obligor of any Debt) and (b)
interest on, or commitment, letter of credit, agency or other fees with respect
to, such Debt.
"Deferred Amount" has the meaning specified in Section 2.10(b)(ii).
"Dollars" and "$" means lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite its
name on Schedule I or in the Assignment and Acceptance pursuant to which it
became a Lender, or such other office of such Lender as such Lender may from
time to time specify to the Borrower and the Agent.
"EBIDT" means, for any period, the sum of the Consolidated net income
or loss for such period, excluding gains or losses from extraordinary items, of
the Borrower and its Subsidiaries plus the sum of interest expense, depreciation
and amortization expense and provision for income taxes to the extent deducted
in computing such net income or loss (but excluding from the calculation of such
Consolidated net income or loss, (i) that percentage of the accounts of each
Minority Entity equal to the percentage ownership interest of such Minority
Entity which is not owned by the Borrower or any of its Subsidiaries and (ii)
interest income and interest expense in respect of any advance made by the
Borrower to any such Subsidiary, by any such Subsidiary to the Borrower, by any
such Subsidiary to any other Subsidiary of the Borrower or by the Borrower to
the Parent Companies). Amounts that become payable under Section 2.11(b) shall
not be included in calculating EBIDT except, to the extent actually paid, for
the purposes of Section 2.10. In computing EBIDT for any period, the following
conventions shall be applied:
(i) If the Borrower or any of its Subsidiaries has made an acquisition
permitted by Section 5.02(f)(i) or 5.02(f)(ii) during any Fiscal Period for
which EBIDT is to be computed (or, solely for purposes of calculating EBIDT in
determining the Rate Ratio, during the period from the last day of the Fiscal
Period for which EBIDT is to be computed to and including the date as of which
the Rate Ratio is being calculated), then EBIDT shall be computed as if such
system had been owned by the Borrower or such Subsidiary throughout such Fiscal
Period. Each computation of EBIDT for such system shall be based on the
following financial statements to the extent available on the date on which the
computation is made:
(a) the most recent Qualified annual statements of
operations and cash flows for such system, or
(b) if such annual statements are not available, the
statements described in (I) or (II) below, whichever is applicable,
annualized for such Fiscal Period,
(I) the most recent Qualified statements of operations
and cash flows for such system, if such statements cover at least
three consecutive months out of the twelve months preceding the
date as of which EBIDT is to be computed, or
(II) if none of the foregoing statements is available,
pro forma statements of the operations and cash flows of such
system for the then most recent Fiscal Period prepared by the
Borrower so as to be Qualified and otherwise reasonably
satisfactory to the Majority Lenders,
where the term "Qualified" means financial statements which reflect
the expenses and income of such system in a manner consistent with
that used in financial reports of the Borrower for systems it has then
been operating for at least one Fiscal Period.
(ii) If the Borrower or any of its Subsidiaries has sold or otherwise
disposed of any cable television system during any Fiscal Quarter or Fiscal
Period for which EBIDT is to be computed (or, solely for purposes of calculating
EBIDT in determining the Rate Ratio, during the period from the last day of any
such Fiscal Period to and including the date as of which the Rate Ratio is being
calculated), EBIDT shall be computed as if such system had not been owned by the
Borrower or such Subsidiary during any part of such Fiscal Quarter or Fiscal
Period, as the case may be.
"Effective Date" means the earliest date on which all of the
conditions precedent set forth in Section 3.01 shall have been satisfied.
"Eligible Assignee" means a Person (a) (i) that is (A) a commercial
bank organized under the laws of the United States, or any State thereof, and
having total assets in excess of $500,000,000; (B) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development ("OECD"), or a political subdivision of any
such country, and having total assets in excess of $500,000,000, provided that
such bank is acting through a branch or agency located in the United States or
another country which is also a member of OECD; or (C) a Lender or an Affiliate
of any Lender immediately prior to an assignment and (ii) whose long-term public
senior debt securities are rated at least "BBB-" by Standard & Poor's, a
division of XxXxxx-Xxxx, Inc., or at least "Baa3" by Xxxxx'x Investors Service,
Inc.; or (b) that is approved by the Borrower, the Agent and the Lenders (each
of which approvals shall not be unreasonably withheld).
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of non-compliance or
violation, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law or any Environmental Permit,
including (a) any claim by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or damages
pursuant to any Environmental Law and (b) any claim by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from Hazardous Materials or arising from alleged
injury or threat of injury to health, safety or the environment.
"Environmental Law" means any federal, state or local law, rule,
regulation, order, writ, judgment, injunction, decree, determination or award
relating to the environment, health, safety or Hazardous Materials, including
CERCLA, the Resource Conservation and Recovery Act, the Hazardous Materials
Transportation Act, the Clean Water Act, the Toxic Substances Control Act, the
Clean Air Act, the Safe Drinking Water Act, the Atomic Energy Act, the Federal
Insecticide, Fungicide and Rodenticide Act and the Occupational Safety and
Health Act.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
the regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person who for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of the Internal Revenue
Code of 1986 and the regulations promulgated and rulings issued thereunder.
"ERISA Event" means, with respect to any Person, (a) the occurrence of
a reportable event, within the meaning of Section 4043 of ERISA, with respect to
any Plan of such Person or any of its ERISA Affiliates unless the 30-day notice
requirement with respect to such event has been waived by the PBGC; (b) the
provision by the administrator of any Plan of such Person or any of its ERISA
Affiliates of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan amendment
referred to in Section 4041(e) of ERISA); (c) the cessation of operations at a
facility of such Person or any of its ERISA Affiliates in the circumstances
described in Section 4062(e) of ERISA; (d) the withdrawal by such Person or any
of its ERISA Affiliates from a Multiple Employer Plan during a plan year for
which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(e) the failure by such Person or any of its ERISA Affiliates to make a payment
to a Plan required under Section 302(f)(1) of
ERISA; (f) the adoption of an amendment to a Plan of such Person or any of its
ERISA Affiliates requiring the provision of security to such Plan, pursuant to
Section 307 of ERISA; or (g) the institution by the PBGC of proceedings to
terminate a Plan of such Person or any of its ERISA Affiliates, pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition described in
Section 4042 of ERISA that could constitute grounds for the termination of, or
the appointment of a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Eurodollar Lending Office" opposite its
name on Schedule I or in the Assignment and Acceptance pursuant to which it
became a Lender (or, if no such office is specified, its Domestic Lending
Office), or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each Eurodollar
Rate Advance comprising part of the same A Borrowing, an interest rate per annum
equal to the average (rounded upward to the nearest whole multiple of 1/16 of 1%
per annum, if such average is not such a multiple) of the rates per annum at
which deposits in Dollars are offered by the principal office of the Reference
Bank in London, England to prime banks in the London interbank market at 11:00
A.M. (London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to the Reference Bank's Eurodollar Rate
Advance comprising part of such Borrowing and for a period equal to such
Interest Period. The Eurodollar Rate for any Interest Period for each Eurodollar
Rate Advance comprising part of the same Borrowing shall be determined by the
Agent on the basis of applicable rates furnished to and received by the Agent
from the Reference Bank two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means an A Advance which bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for each
Eurodollar Rate Advance comprising part of the same A Borrowing means the
reserve percentage applicable two Business Days before the first day of such
Interest Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or including
Eurocurrency
Liabilities (or with respect to any other category of liabilities that includes
deposits by reference to which the interest rate on Eurodollar Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means, for any Fiscal Quarter, the amount by which
(i) EBIDT for such Fiscal Quarter exceeds
(ii) the sum of
(A) the Consolidated amount of all interest expense paid to
third parties by the Borrower and its Subsidiaries during such Fiscal
Quarter on account of Debt,
(B) the Consolidated amount of all income taxes paid by the
Borrower and its Subsidiaries during such Fiscal Quarter,
(C) the Consolidated amount of all principal amounts
required to be paid by the Borrower and its Subsidiaries during such
Fiscal Quarter with respect to Debt of the Borrower and its
Subsidiaries, and
(D) the amount equal to the capital expenditures made by the
Borrower and its Subsidiaries for such Fiscal Quarter.
"Excess Cash Flow Surplus" means, with respect to any Fiscal Quarter
that ends after the Termination Date, that portion of Excess Cash Flow for the
immediately preceding Fiscal Quarter which remains after the Borrower has either
(i) made the prepayment required by Section 2.10(b)(ii) in respect of Excess
Cash Flow for such immediately preceding Fiscal Quarter or (ii) if, pursuant to
the proviso contained in Section 2.10(b)(ii), the Borrower's obligation to make
such prepayment has been deferred, reserved amounts equal to the prepayment the
Borrower would otherwise have made in respect of Excess Cash Flow for such
immediately preceding Fiscal Quarter pursuant to such Section 2.10(b)(ii).
"FCC" means the Federal Communications Commission.
"Federal Bankruptcy Code" means title I of the Bankruptcy Reform Act
of 1978, Pub. L. Xx. 00-000, 00 Xxxx. 0000 (1978), as amended, and as set forth
in sections 101 et seq. of title 11, United States Code, and any succeeding
statute.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, 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 Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means, as to any Person, the chief executive
officer, the chief financial officer, the treasurer or the controller of that
Person.
"Fiscal Period" means the period of four consecutive Fiscal Quarters
ended on the last day of March, June, September or December, as the case may be.
"Fiscal Quarter" means the period of three calendar months ending on
the last day of March, June, September or December, as the case may be.
"Fiscal Year" means the period from and including January 1 of any
calendar year to and including December 31 of such calendar year (made up of
four Fiscal Quarters), and when followed by the designation of a year shall mean
such period ending on December 31 of such year.
"Foreign Subsidiary" shall mean any Subsidiary of any Person that is
incorporated or organized under the laws of any jurisdiction other than the
United States or any state thereof, the U.S. Virgin Islands or Puerto Rico and
does substantially all of its business outside the United States, the U.S.
Virgin Islands or Puerto Rico.
"Franchise" shall mean a franchise, license, authorization or right to
construct, own, operate, promote, extend and/or otherwise exploit any cable
television system, television station or radio station operated or to be
operated by the Borrower or any of its Subsidiaries granted by the FCC (or any
successor agency of the federal government) or any state, county, city, town,
village or other local Governmental Person.
"Governmental Approvals" means any authorization, consent, approval,
license, franchise, lease, ruling, permit, waiver, exemption, filing,
registration or notice by or with any Governmental Person.
"Governmental Person" means any national (Federal or foreign), state
or local government, any political subdivision or any governmental,
quasi-governmental, judicial, public or statutory instrumentality, authority,
agency, body or entity, including the PBGC, Federal Deposit Insurance
Corporation, the
Comptroller of the Currency, the Board of Governors of the Federal Reserve
System, any central bank or any comparable authority.
"Governmental Rules" means any law, rule, regulation, ordinance,
order, code, judgment, decree, directive, guideline, policy, or any similar form
of decision of, or any interpretation or administration of any of the foregoing
by, any Governmental Person.
"Guarantee Agreement" means that certain Guarantee Agreement made by
each of the Borrower's Subsidiaries in favor of the Agent in substantially the
form of Exhibit C.
"Hazardous Materials" means (a) petroleum or petroleum products,
natural or synthetic gas, asbestos in any form that is or could become friable,
urea formaldehyde foam insulation and radon gas, (b) any substances defined as
or included in the definition of "hazardous substances," "hazardous wastes,"
"hazardous materials," "extremely hazardous wastes," "restricted hazardous
wastes," "toxic substances," "toxic pollutants," "contaminants" or "pollutants,"
or words of similar import, under any Environmental Law and (c) any other
substance exposure to which is regulated under any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
interest rate future, interest rate option, interest rate swap, interest rate
cap or other interest rate hedge or arrangement.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of ERISA.
"Intercompany Debt" means Debt owing (i) by any Subsidiary of the
Borrower to the Borrower or to any other Subsidiaries of the Borrower and (ii)
by the Borrower to a Subsidiary of the Borrower.
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same A Borrowing, the period commencing on the date of such A
Advance or the date of the Conversion of any A Advance into such an A Advance
and ending on the last day of the period selected by the Borrower and,
thereafter, each subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period selected by
the Borrower pursuant to the provisions below. The duration of each such
Interest Period shall be one, two, three, six or, if offered by all Lenders,
nine or twelve months, in each case as the Borrower may, upon notice received by
the Agent not later than 11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period, select; provided, however,
that:
(i) the Borrower may not select any Interest Period
which ends after any principal repayment installment date unless,
after giving effect to such selection, the aggregate unpaid principal
amount of Base Rate Advances and Advances having Interest Periods
which end on or prior to such principal repayment installment date
shall be at least equal to the principal amount of Advances due and
payable on and prior to such date;
(ii) Interest Periods commencing on the same date for A
Advances comprising part of the same A Borrowing shall be of the same
duration; and
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day, provided, in the case of any Interest Period for a
Eurodollar Rate Advance, that, if such extension would cause the last
day of such Interest Period to occur in the next following calendar
month, the last day of such Interest Period shall occur on the next
preceding Business Day.
"Interim Certificate" has the meaning specified in Section 2.07(c).
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any capital stock, joint venture or
partnership interest, asset (other than purchases or other acquisitions from
vendors of operating assets of such Person in the ordinary course of business),
warrant, right, option, obligation or other security of such Person, any capital
contribution to such Person or any other investment in such Person, including
any arrangement pursuant to which the investor incurs Debt of the types referred
to in clause (v) of the definition of "Debt" in respect of such Person.
"Xxxxx Acquisitions" means the Xxxxx Oxnard Acquisition, the Xxxxx
Walnut Acquisition and the Xxxxx Xxxxx Xxxxx Acquisition.
"Xxxxx Acquisition Price" means (a) in the case of the Xxxxx Oxnard
Acquisition, $70,507,314, (b) in the case of the Xxxxx Walnut Acquisition,
$33,492,686 and (c) in the case of the Xxxxx Xxxxx Xxxxx Acquisition,
$36,000,000, subject, in each case, to the adjustments provided for in the Asset
Purchase Agreements.
"Xxxxx Growth" means Xxxxx Growth Partners II L.P., a Colorado limited
partnership.
"Xxxxx Intercable" means Xxxxx Intercable, Inc., a Colorado
corporation.
"Xxxxx Oxnard Acquisition" means the acquisition of
certain cable television assets of Xxxxx Intercable in Oxnard, California and
certain surrounding areas pursuant to the terms of the Xxxxx Oxnard Asset
Purchase Agreement.
"Xxxxx Oxnard Asset Purchase Agreement" means that certain Asset
Purchase Agreement dated August 16, 1996 between Xxxxx Intercable and the
Borrower (by assignment from Century Communications dated September 1, 1996)
with respect to the Xxxxx Oxnard Acquisition.
"Xxxxx Properties" means the cable television assets to be purchased
by the Borrower pursuant to the Asset Purchase Agreements.
"Xxxxx Walnut Acquisition" means the acquisition of certain cable
television assets of Xxxxx Intercable in Walnut, California and certain
surrounding areas pursuant to the terms of the Xxxxx Walnut Asset Purchase
Agreement.
"Xxxxx Walnut Asset Purchase Agreement" means that certain Asset
Purchase Agreement dated August 16, 1996 between Xxxxx Intercable and the
Borrower (by assignment from Century Communications dated September 1, 1996)
with respect to the Xxxxx Walnut Acquisition.
"Xxxxx Xxxxx Xxxxx Acquisition" means the acquisition of certain cable
television assets of Xxxxx Growth in Yorba Linda, California and certain
surrounding areas pursuant to the terms of the Xxxxx Xxxxx Xxxxx Asset Purchase
Agreement.
"Xxxxx Xxxxx Xxxxx Asset Purchase Agreement" means that certain Asset
Purchase Agreement dated August 16, 1996 between Xxxxx Intercable, Xxxxx Growth
and the Borrower (by assignment from Century Communications dated September 1,
1996) with respect to the Xxxxx Xxxxx Xxxxx Acquisition.
"Lender Agents" means the Agent, the Syndication Agent and each of the
Co-Agents.
"Lenders" means the lenders listed on Schedule II under the caption
"LENDERS" and each Eligible Assignee that shall become a party hereto after the
Effective Date pursuant to Section 8.07.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including the lien or retained security title of a conditional vendor, any lien
or security interest created in connection with a sale/leaseback transaction and
any easement, right of way or other encumbrance on title to real property.
"Loan Documents" means this Agreement, the Notes, the Guarantee
Agreement and the Negative Pledge Agreements.
"Majority Lenders" means at any time Lenders holding at least 51% of
the then aggregate unpaid principal amount of the A Notes held by the Lenders,
or, if no such principal amount is then outstanding, Lenders having at least 51%
of the Commitments.
"Management Agreement" means the Management Agreement dated as of
September 22, 1994 between Century/Texas and the Borrower.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance or
properties of the Borrower and its Subsidiaries taken as a whole, (b) the rights
and remedies of the Agent or any Lender under any Loan Document or (c) the
ability of the Borrower or any Guarantor to perform its obligations under any
Loan Document to which it is a party.
"Minority Entity" means any corporation less than 50% of the Voting
Rights of which corporation are at the time directly or indirectly owned by the
Borrower, by the Borrower and one or more of its Subsidiaries, or by one or more
other Subsidiaries.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is making or
accruing an obligation to make contributions, or has within any of the preceding
five plan years made or accrued an obligation to make contributions, such plan
being maintained pursuant to one or more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of the
Borrower or an ERISA Affiliate and at least one Person other than the Borrower
and its ERISA Affiliates or (ii) was so maintained and in respect of which the
Borrower or an ERISA Affiliate could have liability under Section 4064 or 4069
of ERISA in the event such plan has been or were to be terminated.
"Negative Pledge Agreements" means those certain Negative Pledge
Agreements made by each of the Venturers, Century/Texas and the Parent Companies
in favor of the Agent in substantially the form of Exhibit D.
"Net Cash Proceeds" means, with respect to any sale,
lease, transfer or other disposition of any asset or the sale, issuance or
incurrence of any Additional Unsecured Debt, the aggregate amount of cash
received from time to time by or on behalf of such Person in connection with
such transaction after deducting therefrom only (a) reasonable and customary
brokerage commissions, underwriting fees and discounts, legal fees, finder's
fees, rating agency fees and other similar fees and commissions, (b) the amount
of taxes payable in connection with or as a result of such transaction and (c)
the amount of any Debt secured by a Lien on such asset that, by the terms of
such transaction, is required to be repaid upon such disposition, in each case
to the extent, but only to the extent, that the amounts so deducted are, at the
time of receipt of such cash, actually paid to a Person that is not an Affiliate
of the Person making such payment (other than payments made to a director of any
Person in his capacity as a member or partner of a law firm or partnership
rendering legal services to such Person; provided that the terms of such
compensation are fair and reasonable and no less favorable to such Person than
it would obtain in a comparable arm's-length transaction with a Person not an
Affiliate) and are properly attributable to such transaction or to the asset
that is the subject thereof.
"Note" means an A Note or a B Note.
"Notice of A Borrowing" has the meaning specified in Section 2.02(a).
"Notice of B Borrowing" has the meaning specified in Section
2.03(a)(i).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including any
liability of such Person on any claim, whether or not the right of any creditor
to payment in respect of such claim is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, disputed, undisputed, legal,
equitable, secured or unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to in Section 6.01(g).
Without limiting the generality of the foregoing, the Obligations of the
Borrower under the Loan Documents include (a) the obligation to pay principal,
interest, charges, expenses, fees, attorneys' fees and disbursements,
indemnities and other amounts payable by the Borrower under the Loan Documents
and (b) the obligation of the Borrower to reimburse any amount in respect of any
of the foregoing that any Lender, in its sole discretion, may elect to pay or
advance on behalf of the Borrower.
"Obligors" means, collectively, the Borrower, the Subsidiaries of the
Borrower, the Venturers, Century/Texas and the Parent Companies.
"Parent Companies" means Century Communications and
Citizens Utilities.
"Pay TV Units" means the aggregate number of premium or pay television
services to which Subscribers subscribe.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Cable System" means (i) any one or more of the cable
television systems listed on Schedule 6.01(c), including, but not limited to,
all of the property, real or personal, tangible or intangible (including, but
not limited to, all Franchises), owned or used in connection with the operation
of such system or (ii) capital stock representing 100% of the Voting Rights of
one or more corporations owning any one or more of such cable television
systems; provided that at the time of contribution of any such system or capital
stock to the Borrower pursuant to Section 6.01(c), such system (i) operates
under a valid Franchise (or under other authority reasonably acceptable to the
Majority Lenders) which shall be duly assigned to the Borrower or a Subsidiary
of the Borrower at the time of such contribution and for which assignment all
necessary governmental consents and approvals shall have been duly obtained and
be in full force and effect, (ii) has suffered no material adverse change in its
business, condition (financial or otherwise), operations, performance or
properties since the Effective Date and (iii) prior to such contribution is
owned by one or more Persons other than the Borrower or any of its Subsidiaries;
and provided further that prior to the contribution of any such system or
capital stock to the Borrower, the Borrower shall have delivered to the Agent
and the Lenders such information as shall have been reasonably requested by any
Lender through the Agent as being necessary to the Agent's and the Lenders'
determination of compliance with the foregoing conditions to contribution,
including the most recent Qualified statements of operations and cash flows or
other financial statements of such system. For the purposes of this definition,
the term "Qualified" means financial statements which reflect the expenses and
income of such system in a manner consistent with that used in financial reports
of the Borrower for systems it has then been operating for at least one Fiscal
Period.
"Person" means an individual, corporation (including a business
trust), joint stock company, trust, unincorporated association, joint venture,
partnership, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pro-Forma Debt Service Ratio" means, as of the last day of any Fiscal
Quarter, the ratio of (i) EBIDT of the Borrower and its Subsidiaries for the
four consecutive Fiscal Quarters just ended less the aggregate amount of taxes
paid by any of them during such four Fiscal Quarters to (ii) the sum of (A)
projected
interest expense of the Borrower and its Subsidiaries for the succeeding four
Fiscal Quarters (calculated using the weighted average of interest rates at the
time of calculation and at the principal outstanding at the time of calculation
after giving effect to any scheduled payments of principal during such four
Fiscal Quarters) plus (B) the aggregate principal amounts of all Debt required
to be paid during the same succeeding four Fiscal Quarters by the Borrower and
its Subsidiaries.
"Ratable Amount" has the meaning specified in Section 2.10(b)(iv).
"Rate Ratio" means, as of any date, the ratio of
(a) Total Debt as of such date to
(b) EBIDT for the most recent Fiscal Period which ends on
or before such date.
"Reference Bank" means Societe Generale.
"Register" has the meaning specified in Section 8.07(c).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System.
"Reserve Amount" means (a) if all of the Xxxxx Acquisitions have been
consummated, $0 or (b) if fewer than all of the Xxxxx Acquisitions have been
consummated, $140,000,000 less the sum of (i) the amount that has been paid to
consummate the Xxxxx Acquisitions that have been so consummated, and (ii) the
amount that has been paid to consummate each Approved Acquisition.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, which (i) is maintained for employees of the
Borrower or an ERISA Affiliate and no Person other than the Borrower and its
ERISA Affiliates or (ii) was so maintained and in respect of which the Borrower
or an ERISA Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Solvent" means, with respect to any Person on a particular date, that
on such date (a) the fair value of the property of such Person is not less than
the total amount of its liabilities (including liabilities on all claims,
whether or not reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, unmatured, disputed, undisputed, legal, equitable, secured or
unsecured) of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its existing debts as they become absolute
and matured, (c) such Person is able to realize upon its assets and
pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (d) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature and (e) such Person is not engaged in business or a transaction, and is
not about to engage in business or a transaction, for which such Person's
property would constitute unreasonably small capital after giving due
consideration to the prevailing practice in each respective industry in which
such Person is engaged; it being understood that in applying the foregoing
criteria in respect of any Person:
(i) the value of the property and assets of such Person includes the
value of its interest in its Subsidiaries and any rights to contribution
(whether by equity or loan) from any of its Affiliates, and
(ii) its ability to pay its debts and liabilities may be measured by
reference to, among other things, amounts received or to be received in respect
of any such property or assets.
"Subscriber" means a Person who subscribes to one or more of the cable
television services of (i) the Borrower or (ii) any Subsidiary of the Borrower
and includes both Basic Subscribers and Persons who subscribe to Pay TV Units,
but excludes each such Person whose account is more than 90 days past due.
"Subsidiary" means any corporation 50% or more of the Voting Rights of
which corporation are at the time directly or indirectly owned by the Borrower,
by the Borrower and one or more other Subsidiaries, or by one or more other
Subsidiaries of the Borrower.
"Synthetic Lease" means each arrangement, however described, under
which the obligor accounts for its interest in the property covered thereby
under generally accepted accounting principles as lessee of a lease which is not
a Capital Lease and accounts for its interest in the property covered thereby
for federal income tax purposes as the owner.
"Termination Date" means April 15, 2000 or the earlier date of
termination in whole of the Commitments pursuant to Section 2.05 or 6.01.
"Total Debt" means, as of any date, the Consolidated Debt of the
Borrower and its Subsidiaries, including Capital Leases and Synthetic Leases,
guaranties and obligations with respect to letters of credit and trade accounts
payable for which payment has been deferred by agreement beyond the customary
period in the industry.
"Unsecured Debt Documents" means the agreement or
agreements pursuant to which the Borrower shall sell, issue or incur
Additional Unsecured Debt, together with all other agreements, documents,
certificates and instruments relating to, arising out of, or in any way
connected with the sale, issuance or incurrence of Additional Unsecured Debt of
the Borrower or any of the transactions contemplated thereby, as such
agreements, documents, certificates and instruments may be amended, supplemented
or otherwise modified from time to time.
"Venturers" means Century Telecommunications and Citizens Cable.
"Voting Rights" means, as to any corporation, ordinary voting power
(whether associated with outstanding common stock or outstanding preferred
stock, or both) to elect members of the Board of Directors of such corporation
(irrespective of whether or not at the time capital stock of any class or
classes of such corporation shall or might have voting power or additional
voting power upon the occurrence of any contingency).
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or Persons performing similar functions) of such Person, even though the right
so to vote has been suspended by the happening of such a contingency.
"Wholly-Owned Subsidiary" means any corporation of which 100% of the
Voting Rights are at the time directly or indirectly owned by the Borrower, by
the Borrower and one or more of its other Wholly-Owned Subsidiaries, or by one
or more of its other Wholly-Owned Subsidiaries.
"Withdrawal Liability" has the meaning specified in Part I of Subtitle
E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods; Interpretation. In this
Agreement in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding." In this Agreement, unless otherwise
indicated, the singular includes the plural and plural the singular; words
importing any gender include the other gender; references to statutes or
regulations are to be construed as including all statutory or regulatory
provisions consolidating, amending or replacing the statute or regulation
referred to; references to "writing" include printing, typing, lithography and
other means of reproducing words in a tangible visible form; the words
"including," "includes" and "include" shall be deemed to be followed by the
words "without limitation"; references to articles, sections (or subdivisions of
sections), exhibits, annexes or schedules are to this Agreement; references to
agreements and other contractual instruments shall be deemed
to include all subsequent amendments, extensions and other modifications to such
instruments (without, however, limiting any prohibition on any such amendments,
extensions and other modifications by the terms of this Agreement); and
references to Persons include their respective permitted successors and assigns
and, in the case of Governmental Persons, Persons succeeding to their respective
functions and capacities.
SECTION 1.03. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Sections 4.01(e) and 4.01(f), as modified
from time to time by changes in accounting principles which are required by
generally accepted accounting principles in effect from time to time.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The A Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make A Advances to the Borrower
in Dollars from time to time on any Business Day during the period from the date
hereof until the Termination Date in an aggregate amount not to exceed at any
time outstanding the amount set forth opposite such Lender's name on Schedule II
or, if such Lender has entered into any Assignment and Acceptance after the
Effective Date, set forth for such Lender in the Register maintained by the
Agent pursuant to Section 8.07(c), as such amount may be reduced pursuant to
Section 2.05 (such Lender's "Commitment"), minus, except in the case of a
Borrowing described in Section 3.04 or 3.05, such Lender's ratable share of the
Reserve Amount, based on such Lender's share of the aggregate amount of the
Commitments of the Lenders, provided that the aggregate amount of the
Commitments of the Lenders shall be in each case deemed used from time to time
to the extent of the aggregate amount of the B Advances then outstanding and
such deemed use of the aggregate amount of the Commitments shall be applied to
the Lenders ratably according to their respective Commitments (such deemed use
of the aggregate amount of the Commitments being a "B Reduction"), and provided
further that Advances made under Section 3.04 or 3.05 shall not exceed in the
aggregate, either (i) the aggregate of the Xxxxx Acquisition Prices, if all of
the Xxxxx Acquisitions have been consummated, or (ii) $140,000,000 (less the
Xxxxx Acquisition Price for each of the Xxxxx Acquisitions that have been
consummated) if all of the Xxxxx Acquisitions have not been consummated. Each A
Borrowing shall be in an aggregate amount not less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof (or, if less, an aggregate
amount equal to the difference between the aggregate amount of a proposed B
Borrowing requested by the Borrower and the aggregate amount of B Advances
offered to be made by the Lenders and accepted by the Borrower in respect of
such B Borrowing, if such B Borrowing is made on the same date as such A
Borrowing) and shall consist of A Advances of the same Type made on the same day
by the Lenders ratably according to their respective Commitments. Within the
limits of each Lender's Commitment, the Borrower may borrow, prepay pursuant to
Section 2.10 and reborrow under this Section 2.01.
SECTION 2.02. Making the A Advances. (a) Each A Borrowing shall be
made on notice, given not later than 11:00 A.M. (New York City time) on the
third (or, in the case of a Base Rate Advance, the first) Business Day prior to
the date of the proposed A Borrowing, by the Borrower to the Agent, which shall
give to each Lender prompt notice thereof by telecopier, telex or cable. Each
such notice of an A Borrowing (a "Notice of A Borrowing") shall be by
telecopier, telex or cable confirmed immediately by mail or delivery in writing,
in substantially the form of Exhibit B-1, specifying therein the requested (i)
date of such A Borrowing, (ii) Type of A Advances comprising such A Borrowing,
(iii) aggregate amount of such A Borrowing, and (iv) in the case of an A
Borrowing comprised of Eurodollar Rate Advances, initial Interest Period for
each such A Advance. Each Lender shall, before 11:00 A.M. (New York City time)
on the date of such A Borrowing, make available for the account of its
Applicable Lending Office to the Agent at its address referred to in Section
8.02, in same day funds, such Lender's ratable portion of such A Borrowing.
After the Agent's receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Agent will make such funds available to
the Borrower at the Agent's aforesaid address.
(b) Anything in subsection (a) above to the contrary notwithstanding,
the Borrower may not select Eurodollar Rate Advances for any A Borrowing if the
aggregate amount of such A Borrowing is less than $5,000,000 or if the
obligation of the Lenders to make Eurodollar Rate Advances shall then be
suspended pursuant to Section 2.08.
(c) Each Notice of A Borrowing shall be irrevocable and binding on the
Borrower. In the case of any A Borrowing which the related Notice of A Borrowing
specifies is to be comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of A Borrowing for such A Borrowing the applicable conditions set forth
in Article III, including any loss, cost or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to fund the A Advance to be made by such Lender as part of such A Borrowing when
such A Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender prior to
the date of any A Borrowing that such Lender will
not make available to the Agent such Lender's ratable portion of such A
Borrowing, the Agent may assume that such Lender has made such portion available
to the Agent on the date of such A Borrowing in accordance with subsection (a)
of this Section 2.02 and the Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable portion available to
the Agent, such Lender and the Borrower severally agree to repay to the 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 Agent, at (i) in the case of the Borrower,
the interest rate applicable at the time to A Advances comprising such A
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall repay to the Agent such corresponding amount, such amount so repaid
shall constitute such Lender's A Advance as part of such A Borrowing for
purposes of this Agreement.
(e) The failure of any Lender to make the A Advance to be made by it
as part of any A Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its A Advance on the date of such A Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the A
Advance to be made by such other Lender on the date of any A Borrowing.
SECTION 2.03. The B Advances. (a) Each Lender severally agrees that
the Borrower may make B Borrowings in Dollars under this Section 2.03 from time
to time on any Business Day during the period from the date hereof until the
date occurring 30 days prior to the Termination Date in the manner set forth
below; provided that, following the making of each B Borrowing, (x) the
aggregate amount of the B Advances of all Lenders then outstanding shall not
exceed $20,000,000 and (y) the aggregate amount of the Advances then outstanding
shall not exceed the aggregate amount of the Commitments of the Lenders
(computed without regard to any B Reduction).
(i) The Borrower may request a B Borrowing under this
Section 2.03 by delivering to the Agent, by telecopier, telex or
cable, confirmed immediately by mail or delivery in writing, a notice
of a B Borrowing (a "Notice of B Borrowing") in substantially the form
of Exhibit B-2, specifying the date and aggregate amount of the
proposed B Borrowing, the maturity date for repayment of each B
Advance to be made as part of such B Borrowing (which maturity date
may not be earlier than the date occurring 30 days after the date of
such B Borrowing or later than the Termination Date), the interest
payment date or dates relating thereto, and any other terms to be
applicable to such B Borrowing, not later than 10:00 A.M. (New York
City time) (A) at least two Business Days prior to the date of the
proposed B Borrowing, if the Borrower shall specify in the Notice of B
Borrowing that the rates of interest to be offered by the Lenders
shall be fixed rates per annum and (B) at least five Business Days
prior to the date of the proposed B Borrowing, if the Borrower shall
instead specify in the Notice of B Borrowing the basis to be used by
the Lenders in determining the rates of interest to be offered by
them. The Agent shall in turn promptly notify each Lender of each
request for a B Borrowing received by it from the Borrower by sending
such Lender a copy of the related Notice of B Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects
to do so, irrevocably offer to make one or more B Advances to the
Borrower as part of such proposed B Borrowing at a rate or rates of
interest specified by such Lender in its sole discretion, by notifying
the Agent (which shall give prompt notice thereof to the Borrower),
before 10:00 A.M. (New York City time) (A) on the date of such
proposed B Borrowing, in the case of a Notice of B Borrowing delivered
pursuant to clause (A) of paragraph (i) above and (B) three Business
Days before the date of such proposed B Borrowing, in the case of a
Notice of B Borrowing delivered pursuant to clause (B) of paragraph
(i) above, of the minimum amount and maximum amount of each B Advance
which such Lender would be willing to make as part of such proposed B
Borrowing (which amounts may, subject to the proviso to the first
sentence of this Section 2.03(a), exceed such Lender's Commitment),
the rate or rates of interest therefor and such Lender's Applicable
Lending Office with respect to such B Advance; provided that if the
Agent in its capacity as a Lender shall, in its sole discretion, elect
to make any such offer, it shall notify the Borrower of such offer
before 9:30 A.M. (New York City time) on the date on which notice of
such election is to be given to the Agent by the other Lenders. If any
Lender shall elect not to make such an offer, such Lender shall so
notify the Agent, before 10:00 A.M. (New York City time) on the date
on which notice of such election is to be given to the Agent by the
other Lenders, and such Lender shall not be obligated to, and shall
not, make any B Advance as part of such B Borrowing; provided that the
failure by any Lender to give such notice shall not cause such Lender
to be obligated to make any B Advance as part of such proposed B
Borrowing.
(iii) The Borrower shall, in turn, (A) before 11:00 A.M.
(New York City time) on the date of such proposed B Borrowing, in the
case of a Notice of B Borrowing delivered pursuant to clause (A) of
paragraph (i) above and (B) before 1:00 P.M. (New York City time)
three Business Days before the date of such proposed B Borrowing, in
the case of a Notice of B Borrowing delivered pursuant to clause (B)
of paragraph (i) above, either:
(x) cancel such B Borrowing by giving the Agent
notice to that effect, or
(y) accept one or more of the offers made by any Lender
or Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving notice to the Agent of the amount of
each B Advance (which amount shall be equal to or greater
than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the Agent on
behalf of such Lender for such B Advance pursuant to
paragraph (ii) above) to be made by each Lender as part of
such B Borrowing, and reject any remaining offers made by
Lenders pursuant to paragraph (ii) above by giving the Agent
notice to that effect.
(iv) If the Borrower notifies the Agent that such B
Borrowing is cancelled pursuant to paragraph (iii)(x) above, the Agent
shall give prompt notice thereof to the Lenders and such B Borrowing
shall not be made.
(v) If the Borrower accepts one or more of the offers made
by any Lender or Lenders pursuant to paragraph (iii)(y) above, the
Agent shall in turn promptly notify (A) each Lender that has made an
offer as described in paragraph (ii) above, of the date and aggregate
amount of such B Borrowing and whether or not any offer or offers made
by such Lender pursuant to paragraph (ii) above have been accepted by
the Borrower, (B) each Lender that is to make a B Advance as part of
such B Borrowing, of the amount of each B Advance to be made by such
Lender as part of such B Borrowing, and (C) each Lender that is to
make a B Advance as part of such B Borrowing, upon receipt, that the
Agent has received forms of documents appearing to fulfill the
applicable conditions set forth in Article III. Each Lender that is to
make a B Advance as part of such B Borrowing shall, before 12:00 noon
(New York City time) on the date of such B Borrowing specified in the
notice received from the Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice
from the Agent pursuant to clause (C) of the preceding sentence, make
available for the account of its Applicable Lending Office to the
Agent at its address referred to in Section 8.02 such Lender's portion
of such B Borrowing, in same day funds. Upon fulfillment of the
applicable conditions set forth in Article III and after receipt by
the Agent of such funds, the Agent will make such funds available to
the Borrower at the Agent's aforesaid address. Promptly after each B
Borrowing the Agent will notify each Lender of the amount of the B
Borrowing, the consequent B Reduction and the dates upon which such B
Reduction commenced and will terminate.
(b) Each B Borrowing shall be in an aggregate amount not less than
$5,000,000 or an integral multiple of $1,000,000 in excess thereof and,
following the making of each B Borrowing, the
Borrower and each Lender shall be in compliance with the limitations set forth
in the proviso to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this Section
2.03, the Borrower may from time to time borrow under this Section 2.03, repay
or prepay pursuant to subsection (d) below, and reborrow under this Section
2.03, provided that a B Borrowing shall not be made within three Business Days
of the date of any other B Borrowing.
(d) The Borrower shall repay to the Agent for the account of each
Lender which has made a B Advance to the Borrower, on the maturity date of each
such B Advance (such maturity date being that specified by the Borrower for
repayment of such B Advance in the related Notice of B Borrowing delivered
pursuant to subsection (a)(i) above and provided in the B Note evidencing such B
Advance), the then unpaid principal amount of such B Advance. The Borrower shall
have no right to prepay any principal amount of any B Advance unless, at the
time of such prepayment, no Event of Default (or event which would constitute an
Event of Default but for the requirement that notice be given or time elapse or
both) has occurred and is continuing, and unless, and then only on the terms,
specified by the Borrower for such B Advance in the related Notice of B
Borrowing delivered pursuant to subsection (a)(i) above and set forth in the B
Note evidencing such B Advance.
(e) The Borrower shall pay interest on the unpaid principal amount of
each B Advance made to it from the date of such B Advance to the date the
principal amount of such B Advance is repaid in full, at the rate of interest
for such B Advance specified by the Lender making such B Advance in its notice
with respect thereto delivered pursuant to subsection (a)(ii) above, payable on
the interest payment date or dates specified by the Borrower for such B Advance
in the related Notice of B Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the B Note evidencing such B Advance, which interest
payment date or dates shall occur no less frequently than on the last day of
each three month period occurring during the term of each B Advance;
(f) The indebtedness of the Borrower resulting from each B Advance
made to the Borrower as part of a B Borrowing shall be evidenced by a separate B
Note payable to the order of the Lender making such B Advance.
SECTION 2.04. Fees. (a) Commitment Fee. The Borrower agrees to pay to
the Agent for the account of each Lender a commitment fee on the average daily
unused portion of such Lender's Commitment (determined without giving effect to
any B Reduction) from the Effective Date (or, in the case of each Eligible
Assignee that becomes a Lender after the Effective Date, from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender)
until the
Termination Date at the rate of (i) 3/8 of 1% per annum during each period in
which the applicable Rate Ratio is greater than or equal to 5.0:1, and (ii) 1/4
of 1% per annum during each period in which the applicable Rate Ratio is less
than 5.0:1, payable on the last day of each March, June, September and December
during the term of such Lender's Commitment, commencing on the first such day
after the Effective Date, and on the Termination Date. Each retroactive change
in the Rate Ratio pursuant to Section 2.07(d) shall be given retroactive effect
in determining the applicable commitment fee rate pursuant to this Section
2.04(a) for a period of time identical to that given such retroactive change in
the Rate Ratio. If any such retroactive change occurs in the commitment fee rate
payable for a period for which the Borrower has already paid commitment fees,
then any overpayment of commitment fees by the Borrower resulting therefrom
shall be credited to future commitment fees or other payment obligations of the
Borrower and any underpayment of commitment fees by the Borrower resulting
therefrom shall be paid by the Borrower to the Agent for the account of the
Lenders upon demand by the Agent.
(b) Agent Fee. The Borrower agrees to pay to the Agent, for its own
account, the fees set forth in the letter agreement between the Agent and the
Borrower dated as of the date hereof.
SECTION 2.05. Reduction of the Commitments.
(a) Mandatory. On each date on which a prepayment is required under
Section 2.10(b)(i), (iii) or (iv), the respective Commitments of the Lenders
shall be automatically and permanently reduced by an amount for each Lender
equal to the amount of such prepayment which is to be applied under Section
2.10(c) to A Advances owing to such Lender (assuming, solely for purposes of
this Section 2.05(a), that the then outstanding amount of such A Advances equals
or exceeds the amount of such prepayment).
(b) Optional. The Borrower shall have the right, upon at least five
Business Days' notice to the Agent, to terminate in whole or permanently reduce
ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in the aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof.
SECTION 2.06. Repayment of A Advances. The Borrower shall repay the
principal amount of each A Advance made to the Borrower owing to each Lender on
each of the principal installment dates listed below commencing June 30, 2000
and ending March 31, 2005 and the amount to be paid on each such principal
repayment installment date shall equal the product obtained by multiplying (x)
the unpaid principal amount of such A Advance outstanding on the Termination
Date by (y) the percentage set forth below for that principal repayment
installment date:
Last day of Last day of Last day of Last day of
Year March June September December
----- ----------- ----------- ------------ ------------
2000 XXX 2.33334% 2.33333% 2.33333%
2001 4.00000% 4.00000% 4.00000% 4.00000%
2002 5.00000% 5.00000% 5.00000% 5.00000%
2003 5.25000% 5.25000% 5.25000% 5.25000%
2004 7.12500% 7.12500% 7.12500% 7.12500%
2005 7.50000% XXX XXX XXX
provided, however, that the last such installment shall be in the amount
necessary to repay in full the unpaid principal amount of such A Advance.
SECTION 2.07. Interest on the A Advances. (a) Ordinary Interest. The
Borrower shall pay interest on the unpaid principal amount of each A Advance
made to the Borrower owing to each Lender in accordance with the A Note to the
order of such Lender at the following rates per annum:
(i) Base Rate Advances. During such periods as such A
Advance is a Base Rate Advance, a rate per annum equal at all times to
the sum of the Base Rate in effect from time to time plus:
(A) 5/8 of 1% per annum during each period in which the
applicable Rate Ratio is greater than or equal to 6.0:1,
(B) 3/8 of 1% per annum during each period in which the
applicable Rate Ratio is less than 6.0:1 and greater than or
equal to 5.5:1,
(C) 1/8 of 1% per annum during each period in which the
applicable Rate Ratio is less than 5.5:1 and greater than or
equal to 5.0:1, and
(D) 0% per annum during each period in which the
applicable Rate Ratio is less than 5.0:1,
payable in arrears on the last day of each March, June, September and December
during such period and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurodollar Rate Advance. During such periods as such A Advance is a
Eurodollar Rate Advance, a rate per annum equal at all times during each
Interest Period for such A Advance to the sum of the Eurodollar Rate for such
Interest Period for such A Advance plus:
(A) 1 and 5/8% per annum during each period in which
the applicable Rate Ratio is greater than or equal to 6.0:1,
(B) 1 and 3/8% per annum during each period in which
the applicable Rate Ratio is less than 6.0:1
and greater than or equal to 5.5:1,
(C) 1 and 1/8% per annum during each period in which
the applicable Rate Ratio is less than 5.5:1 and greater
than or equal to 5.0:1,
(D) 1% per annum during each period in which the
applicable Rate Ratio is less than 5.0:1 and greater than or
equal to 4.5:1,
(E) 7/8 of 1% per annum during each period in which the
applicable Rate Ratio is less than 4.5:1 and greater than or
equal to 4.0:1, and
(F) 5/8 of 1% per annum during each period in which the
applicable Rate Ratio is less than 4.0:1,
payable in arrears on the last day of such Interest Period
and, if such Interest Period is greater than three months,
on the last day of each three-month period during such
Interest Period.
(b) Default Interest. The Borrower shall pay interest, to the maximum
extent permitted by law, on the unpaid principal amount of each A Advance made
to the Borrower that is not paid when due and on the unpaid amount of all
interest, fees and other amounts payable hereunder by the Borrower that is not
paid when due, payable on demand, at a rate per annum equal at all times to (i)
in the case of any amount of principal, 2% per annum above the rate per annum
required to be paid on such A Advance immediately prior to the date on which
such amount became due (provided that, if any principal of a Eurodollar Rate
Advance is in default and the due date for such principal is a day other than
the last day of the Interest Period for such Advance, such Advance shall bear
interest (x) for the period from and including such due date to but excluding
the last day of such Interest Period at the rate provided for above in this
clause (i) and (y) thereafter at a rate per annum equal to 2% per annum above
the rate per annum required to be paid on Base Rate Advances from time to time
to Section 2.07(a)(i)) and (ii) in the case of all other amounts payable by the
Borrower, 2% per annum above the Base Rate in effect from time to time.
(c) Rate Ratio Certificates. The Borrower shall deliver a certificate,
in substantially the form of Exhibit E, to the Agent (i) on each date on which
financial statements are delivered pursuant to Sections 5.03(b) and 5.03(c)
(each such certificate being a "Periodic Certificate"), (ii) on the date of each
Borrowing and (iii) on each other date on which Total Debt shall change by an
amount in excess of $5,000,000 from Total Debt when the most recent prior
certificate was delivered under this Section 2.07(c) (each certificate delivered
pursuant to clause (ii) or (iii) being an "Interim Certificate").
(A) Each Periodic Certificate shall certify the Rate
Ratio in effect on each day during the period commencing on
the last day of the most recent Fiscal Period which ends on
or before the date on which such certificate is delivered
and ending on the date on which such certificate is
delivered, based in each case upon EBIDT for such most
recent Fiscal Period and Total Debt as of each date for
which a Rate Ratio is certified after giving effect to all
changes of Total Debt on each such date.
(B) Each Interim Certificate shall certify the Rate
Ratio in effect on the date on which such certificate is
delivered, except that, if such certificate is delivered
before financial statements have been delivered pursuant to
Section 5.03(b) or 5.03(c) for the most recent Fiscal Period
which ends on or before the date on which such certificate
is delivered, such certificate shall certify a provisional
Rate Ratio based upon EBIDT for the Fiscal Period
immediately preceding such most recent Fiscal Period and
upon Total Debt as of the date on which such certificate is
delivered after giving effect to all changes of Total Debt
on such date.
Each certificate shall have attached to it financial statements certified by a
Financial Officer of the Borrower on the date on which such certificate is
delivered as the then most currently available financial statements of the
Borrower and its Subsidiaries, and each certificate shall provide, in reasonable
detail, the calculations (and the basis for such calculations) used in
determining the Rate Ratio for each date for which a calculation is to be made
by that certificate, including but not limited to the calculation of EBIDT as
derived from the attached financial statements.
(d) Effective Dates for Rate Ratios. Each Rate Ratio certified in any
Periodic Certificate or Interim Certificate shall (absent manifest error) become
effective on the date such certificate is delivered in compliance with this
Agreement. The Rate Ratio certified for the date on which such certificate is
delivered shall apply to each date thereafter until the delivery in compliance
with this Agreement of the next certificate called for by Section 2.07(c),
except that such Rate Ratio shall be a provisional Rate Ratio as applied to any
date on or after the last day of the Fiscal Period which first ends after the
Fiscal Period with respect to which EBIDT was determined in calculating such
Rate Ratio. The Rate Ratio certified in a Periodic Certificate for any date
prior to the date on which such certificate is delivered shall be applied
retroactively to supersede each provisional Rate Ratio certified for the same
date in an Interim Certificate or a Periodic Certificate previously delivered.
Notwithstanding the foregoing, (i) in no event will any Rate Ratio certified in
any Periodic Certificate or Interim Certificate be given retroactive effect for
a date in any Fiscal Quarter other than the Fiscal Quarter in which such
Periodic
Certificate or Interim Certificate is delivered and (ii) if the Borrower fails
to deliver financial statements and the related Periodic Certificate when
required by Section 5.03(b) or 5.03(c), as the case may be, then the applicable
Rate Ratio shall be deemed to be greater than or equal to 6.0 to 1.0 for each
day during the period beginning on the date on which such Periodic Certificate
should have been delivered and shall continue in effect until a certificate in
compliance with this Section 2.07 is delivered.
(e) Retroactive Interest Adjustment. Each retroactive change in the
Rate Ratio pursuant to Section 2.07(d) shall be given retroactive effect in
determining the applicable interest rates for A Advances pursuant to Section
2.07(a) for a period of time identical to that given such retroactive change in
the Rate Ratio. If any such retroactive change occurs in the interest rate
payable on account of an A Advance for a period for which the Borrower has
already paid interest, then any overpayment of interest by the Borrower
resulting therefrom shall be credited to future interest or other payment
obligations of the Borrower with respect to that Advance and any underpayment of
interest by the Borrower resulting therefrom shall be paid by the Borrower to
the Agent for the account of the Lender to whom such Advance is owed upon demand
by the Agent.
SECTION 2.08. Interest Rate Determination and Protection. (a) The
Reference Bank agrees to furnish to the Agent timely information for the purpose
of determining each Eurodollar Rate.
(b) The Agent shall give prompt notice to the Borrower and the Lenders
of the applicable interest rate determined by the Agent for purposes of Section
2.07(a)(i) or (ii), and the applicable rate, if any, furnished by the Reference
Bank for the purpose of determining the applicable interest rate under Section
2.07(a)(ii).
(c) If the Reference Bank does not furnish timely information to the
Agent for determining the Eurodollar Rate for any Eurodollar Rate Advances,
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such
Eurodollar Rate Advances,
(ii) each such Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base
Rate Advance (or if such Advance is then a Base Rate Advance, will
continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make, or to Convert A
Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no longer
exist.
(d) If, with respect to any Eurodollar Rate Advances, the Majority
Lenders notify the Agent that the Eurodollar Rate for any Interest Period for
such Advances will not adequately reflect the cost to such Majority Lenders of
making, funding or maintaining their respective Eurodollar Rate Advances for
such Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon
(i) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance, and
(ii) the obligation of the Lenders to make, or to Convert A
Advances into, Eurodollar Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
(e) If the Borrower shall fail to select the duration of any Interest
Period for any Eurodollar Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Borrower and the Lenders and the Borrower will be deemed
to have selected, for the Interest Period immediately succeeding the then
existing Interest Period therefor, an Interest Period for such Advance of three
months' duration.
(f) On the date on which the aggregate unpaid principal amount of A
Advances comprising any A Borrowing shall be reduced, by payment or prepayment
or otherwise, to less than $5,000,000, such A Advances shall, if they are
Eurodollar Rate Advances, automatically Convert into Base Rate Advances, and on
and after such date the right of the Borrower to Convert such Advances into
Eurodollar Rate Advances shall terminate; provided, however, that, if and so
long as each such A Advance shall have the same Interest Period as Eurodollar
Rate Advances comprising another A Borrowing or other A Borrowings, and the
aggregate unpaid principal amount of all such A Advances shall equal or exceed
$5,000,000, the Borrower shall have the right to continue all such A Advances as
Eurodollar Rate Advances having such Interest Period.
SECTION 2.09. Voluntary Conversion of A Advances. The Borrower may on
any Business Day, upon notice given to the Agent not later than 11:00 A.M. (New
York City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.08, 2.11 and 2.12,
Convert all A Advances of one Type comprising the same Borrowing into Advances
of another Type; provided, however, that any Conversion of any Eurodollar Rate
Advances into Advances of another Type shall be made on, and only on, the last
day of an
Interest Period for such Eurodollar Rate Advances. Each such notice of a
Conversion shall, within the restrictions specified above, specify (i) the date
of such Conversion, (ii) the A Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the Interest Period
for each such A Advance.
SECTION 2.10. Prepayments of A Advances. (a) Optional. The Borrower
may, upon at least three Business Days' notice to the Agent stating the proposed
date and aggregate principal amount of the prepayment, and if such notice is
given the Borrower shall, prepay (without premium or penalty but subject to the
obligation of the Borrower to reimburse the Lenders as set forth in the proviso
below) the outstanding principal amount of the A Advances comprising part of the
same A Borrowing in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid; provided, however,
that (x) each partial prepayment shall be in an aggregate principal amount not
less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and, if made after the Termination Date, shall be applied ratably to the
respective principal repayment installments of such A Advances and (y) in the
event of any such prepayment of a Eurodollar Rate Advance, the Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to Section
8.04(b).
(b) Mandatory. (i) Sales of Assets. The Borrower shall, on each date
on which the Borrower or any of its Subsidiaries receives any Net Cash Proceeds
from the sale, lease, transfer or other disposition (each, a "Disposition") of
any asset of the Borrower or any such Subsidiary (other than sales of assets in
the ordinary course of business and any exchange of assets permitted by Section
5.02(e)(iv)), prepay an aggregate principal amount of the A Advances comprising
part of the same A Borrowings equal to such Net Cash Proceeds (or, if less, the
aggregate unpaid principal amount of all A Advances), together with accrued
interest to the date of such prepayment on the principal amount prepaid and all
amounts, if any, then owing under Section 8.04(b) in respect of such prepayment.
Notwithstanding the foregoing, the Borrower shall not be required to make a
prepayment pursuant to this paragraph (b)(i) with respect to the Net Cash
Proceeds from any Disposition (a "Relevant Disposition") if (1) the applicable
Rate Ratio is less than or equal to 5.0:1 on the date of receipt of such Net
Cash Proceeds, (2) the Borrower advises the Agent at the time the Net Cash
Proceeds from such Relevant Disposition are received that it intends to reinvest
such Net Cash Proceeds in replacement assets pursuant to a transaction permitted
under Section 5.02(f) hereof, (3) such Net Cash Proceeds are in fact committed
to be reinvested by the Borrower pursuant to a purchase contract providing for
the acquisition of such replacement assets that is executed by the Borrower (or
any of its Subsidiaries) and the related seller within 180 days from the date of
such Relevant Disposition and
(4) the acquisition of such replacement assets occurs within 180 days from the
date on which such purchase contract is so executed and delivered. If at any
time after the occurrence of a Relevant Disposition and prior to the acquisition
of the related replacement assets the 180-day period provided in clause (3) or
(4) of the preceding sentence shall elapse without execution of the related
purchase contract (in the case of said clause (3)) or the occurrence of the
related acquisition (in the case of said clause (4)), then the Borrower shall
immediately prepay the A Advances in the amount described in the first sentence
of this Section 2.10(b)(i).
(ii) Excess Cash Flow. On the last day of each Fiscal
Quarter commencing after the Termination Date, the Borrower shall
prepay the outstanding principal amount of the A Advances in an
aggregate amount equal to the sum of (A) 50% of Excess Cash Flow for
the Borrower for the immediately preceding Fiscal Quarter plus (B) the
Deferred Amount (as defined below) as of such last day (or, if less
than such sum, the aggregate unpaid principal amount of all A
Advances), together with accrued interest to the date of such
prepayment on the principal amount prepaid and all amounts then owing,
if any, under Section 8.04(b) in respect of such prepayment; provided,
however, that if such sum shall be less than $500,000, the time when
such prepayment shall become due shall be deferred until the earlier
of (x) the last day of the first Fiscal Quarter thereafter on which
such sum (including all Deferred Amounts) shall equal or exceed
$500,000 or (y) the occurrence of an Event of Default. "Deferred
Amount" means, as of any day, the cumulative unpaid amount of all
prepayments which were required to be made under this Section
2.10(b)(ii) prior to such day but whose due date has been deferred at
any time pursuant to the proviso set forth in the preceding sentence.
(iii) Sale, Issuance or Incurrence of Additional Unsecured
Debt. The Borrower shall, on each date on which the Borrower or any of
its Subsidiaries receives any Net Cash Proceeds from the sale,
issuance or incurrence of Additional Unsecured Debt, prepay the A
Advances comprising part of the same A Borrowings in an aggregate
principal amount equal to such Net Cash Proceeds (or, if less, the
aggregate unpaid principal amount of all A Advances), together with
accrued interest to the date of such prepayment on the principal
amount prepaid and all amounts then owing, if any, under Section
8.04(b) in respect of such prepayment.
(iv) Optional Prepayment or Repurchase of Additional
Unsecured Debt. To the extent that the Unsecured Debt Documents permit
optional prepayments, on each date on which the Borrower or any of its
Subsidiaries shall voluntarily prepay, redeem, purchase, defease or
otherwise acquire all or any portion of the Additional Unsecured Debt
in a transaction permitted by Section 5.02(m), the Borrower shall
prepay the A Advances in an aggregate principal amount equal to the
Ratable Amount (as defined below) as of such date, together with
accrued interest to the date of such prepayment on the principal
amount prepaid and all amounts then owing, if any, under Section
8.04(b) in respect of such prepayment. "Ratable Amount" means, as of
any date, the product obtained by multiplying the entire unpaid
principal amount of the A Advances made to the Borrower then
outstanding times a fraction the numerator of which shall be the
principal amount of the Additional Unsecured Debt of the Borrower
being prepaid, redeemed, purchased, defeased or otherwise acquired and
the denominator of which shall be the entire unpaid principal amount
of such Additional Unsecured Debt then outstanding.
(v) Notice. The Borrower shall give the Agent at least five
Business Days' prior written notice of each prepayment required by
this Section 2.10(b) stating the aggregate amount (or in the case of
each prepayment required pursuant to Section 2.10(b)(i) and 2.10
(b)(iii), stating the approximate aggregate amount) of such prepayment
and the date on which such prepayment shall be made; provided that
failure by the Borrower to give any notice shall not relieve the
Borrower of its obligation to make such prepayment.
(c) Application of Prepayment Proceeds. Each prepayment by the
Borrower under Section 2.10(b) made before the Termination Date shall be applied
ratably to all A Advances then outstanding. Each prepayment by the Borrower
under Section 2.10(b) made after the Termination Date shall be applied ratably
to the respective principal repayment installments of the A Advances being
prepaid.
SECTION 2.11. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances, then, if such costs are
or will be charged to customers of such Lender generally, the Borrower shall
from time to time, upon demand by such Lender (with a copy of such demand to the
Agent), pay to the Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost. A certificate as
to the amount of such increased costs setting forth in reasonable detail the
calculations used in determining such increased costs, submitted to the Borrower
and the Agent by such Lender, shall be conclusive and binding for all purposes,
absent manifest error. Notwithstanding anything to the contrary contained in
this subsection (a), a Lender shall only be entitled to receive reimbursement
for such increased costs to the extent incurred within 90 days prior to, and at
any time after,
the date on which such Lender gives to the Borrower a notice that an event has
occurred as a result of which such increased costs will arise or a notice that
the Borrower is obligated to pay increased costs, whichever first occurs.
(b) If, due to either (i) the introduction of any change in or in the
interpretation of any law or regulation occurring on or after the effective date
hereof or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
issued on or after the 90th day prior to the Effective Date, any Lender
determines in the exercise of its reasonable judgment that there shall be any
increase in the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender as a result of or based upon
the existence of such Lender's commitment to lend hereunder, then, upon demand
by such Lender (with a copy of such demand to the Agent), the Borrower shall
immediately pay to the Agent for the account of such Lender, from time to time
as specified by such Lender, additional amounts (without duplication) sufficient
to compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's commitment
to lend hereunder. A certificate as to such amounts setting forth in reasonable
detail the calculations used in determining such amounts, submitted to the
Borrower and the Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error. Notwithstanding anything to the contrary
contained in this subsection (b), a Lender shall only be entitled to receive
reimbursement for such additional amounts pursuant to this subsection (b) to the
extent incurred within 90 days prior to, and at any time after, the date on
which such Lender gives to the Borrower a notice that an event has occurred as a
result of which such additional amounts will arise or a notice that the Borrower
is obligated to pay such additional amounts, whichever first occurs.
(c) Upon the occurrence and during the continuance of any Event of
Default, (i) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(ii) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
(d) Any Lender claiming any additional amounts payable pursuant to
Section 2.11(a) or 2.11(b) shall, upon request from the Borrower delivered to
such Lender and the Agent specifying an Eligible Assignee willing and able to
assume and accept all of such Lender's rights and obligations under this
Agreement and the other Loan Documents, assign, in accordance with the
provisions of Section 8.07, all of its rights and obligations under this
Agreement and the other Loan Documents to another Lender or an Eligible Assignee
in consideration for (i) the payment by such
assignee to the Lender of the principal of, and interest on, the Note or Notes
of such Lender accrued to the date of such assignment, together with any and all
other amounts owing to such Lender under any provision of this Agreement or the
other Loan Documents accrued to the date of such assignment and (ii) the release
of such Lender from any further liability hereunder. The processing and
recordation fee required under Section 8.07(a) shall be paid by the Borrower
under this Section 2.11(d).
SECTION 2.12. Illegality. Notwithstanding any other provisions of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation shall make it unlawful, or any central bank or other
governmental authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or to continue to fund or maintain Eurodollar Rate
Advances hereunder, then, on notice thereof and demand therefor by such Lender
to the Borrower through the Agent (which notice shall identify in reasonable
detail the relevant law or regulation or other basis upon which such
unlawfulness is asserted), (i) each Eurodollar Rate Advance will automatically,
upon such demand, Convert into a Base Rate Advance and (ii) the obligation of
the Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall
be suspended until the Agent shall notify the Borrower that such Lender has
determined that the circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes not later than 11:00 A.M. (New York
City time) on the day when due in U.S. dollars to the Agent at its address
referred to in Section 8.02 in same day funds. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or commitment fees ratably (other than amounts payable
pursuant to Section 2.03 (except to the extent set forth in the proviso to this
sentence), 2.11, 2.14, or 2.16) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement; provided, however, so long as an Event of Default shall
have occurred and be continuing under Section 6.01(a) or the Advances shall have
been declared or shall become due and payable in accordance with the last
paragraph of Section 6.01, then the Agent will cause to be distributed all funds
relating to the payment of principal or interest in respect of A Advances and B
Advances received by the Agent from the Borrower ratably to the Lenders based on
the A Advances and B Advances then outstanding. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(c), from and after the effective date
specified in such Assignment and Acceptance, the Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to such Assignment
and Acceptance shall make all appropriate adjustments in such payments for
periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender in not made when due hereunder or under any Note
held by such Lender, to charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate (except to the
extent calculated by reference to the Federal Funds Rate) and of commitment fees
shall be made by the Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Eurodollar Rate and
the Federal Funds Rate (including in connection with calculations of the Base
Rate) shall be made by the Agent, and all computations of interest pursuant to
Section 2.16 shall be made by a Lender, on the basis of a year of 360 days, in
each case for the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or commitment fees
are payable. Each determination by the Agent (or, in the case of Section 2.16,
by a Lender) of an interest rate hereunder shall be conclusive and binding for
all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated
to be due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or commitment fees, as the
case may be; provided, however, if such extension would cause payment of
interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Agent shall have received notice from the Borrower
prior to the date on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
hereunder or under the A Notes shall be made, in
accordance with Section 2.13, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction of such Lender's Applicable Lending
Office or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder or under any A
Note to any Lender or the Agent, (i) the sum payable shall be increased as may
be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.14) such Lender or
the Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower agrees to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or under the A Notes
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or the A Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes or Other Taxes (including any Taxes or Other Taxes imposed
by any jurisdiction on amounts payable under this Section 2.14) paid by such
Lender or the Agent (as the case may be) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be made within 30 days from the date such Lender or the
Agent (as the case may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Agent, at its address referred to in Section 8.02,
the original or a certified copy of a receipt evidencing payment thereof. If no
Taxes are payable in respect of any payment hereunder or under the A Notes, the
Borrower will furnish to the Agent, at such address, a certificate from each
appropriate taxing authority, or an opinion of counsel acceptable to the Agent,
in either case stating that such payment is exempt from or not subject to Taxes.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each initial Lender and on the date of the Assignment
and Acceptance pursuant to which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower with Internal Revenue Service form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service, certifying that
such Lender is entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of withholding tax on payments
of interest or certifying that the income receivable pursuant to this Agreement
is effectively connected with the conduct of a trade or business in the United
States. If the form provided by a Lender at the time such Lender first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from "Taxes" as defined in Section 2.14(a).
(f) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form described in Section 2.14(e)
(other than if such failure is due to a change in law occurring subsequent to
the date on which a form originally was required to be provided, or if such form
otherwise is not required under the first sentence of subsection (e) above),
such Lender shall not be entitled to indemnification under Section 2.14(a) with
respect to Taxes imposed by the United States; provided, however, should a
Lender become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the Lender shall reasonably
request to assist the Lender to recover such Taxes.
(g) Notwithstanding any contrary provisions of this Agreement, in the
event that a Lender that originally provided such form as may be required under
Section 2.14(e) thereafter ceases to qualify for complete exemption from United
States withholding tax, such Lender may assign its interest under this Agreement
to any assignee and such assignee shall be entitled to the same benefits under
this Section 2.14 as the assignor provided that the rate of United States
withholding tax applicable to such assignee shall not exceed the rate then
applicable to the assignor.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and Obligations of the Borrower contained in
this Section 2.14 shall survive the payment in full of principal and interest
hereunder and under the A Notes.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of
the A Advances made by it (other than pursuant to Section 2.11, 2.14 or 2.16) in
excess of its ratable share of payments on account of the A Advances obtained by
all the Lenders, such Lender shall forthwith purchase from the other Lenders
such participations in the A Advances made by them as shall be necessary to
cause such purchasing Lender to share the excess payment ratably with each of
them; provided, however, if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 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 as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.16. Additional Interest on Eurodollar Rate Advances. The
Borrower shall pay to each Lender, so long as such Lender shall be required
under regulations of the Board of Governors of the Federal Reserve System to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities, additional interest on the unpaid principal
amount of each Eurodollar Rate Advance of such Lender made to the Borrower, from
the date of such A Advance until such principal amount is paid in full, at an
interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the Eurodollar Rate for such Interest Period for such A Advance
from (ii) the rate obtained by dividing such Eurodollar Rate by a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage of such Lender for
such Interest Period, payable on each date on which interest is payable on such
A Advance. Such additional interest shall be determined by such Lender and
notified to the Borrower through the Agent.
SECTION 2.17. Use of Proceeds. The proceeds of each Advance shall be
used by the Borrower solely for one or more of the following: (a) to finance
working capital requirements of the Borrower and its Subsidiaries, (b) to pay to
each seller of assets or stock being acquired in a transaction permitted by
Section 5.02(f) the purchase price of such assets or stock, as the case may be,
up to an amount permitted under clauses (i) and (ii), as applicable, of Section
5.02(f), (c) to make capital expenditures and (d) in the case of a Borrowing
described in Section 3.04 or 3.05, solely to finance the Xxxxx Acquisitions or
an Approved Acquisition, as the case may be.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Advances. The obligation
of each Lender to make its initial Advance is subject to the following
conditions precedent:
(a) The Agent shall have received from the Borrower A Notes payable to
the order of each of the Lenders, respectively, duly executed by the Borrower.
(b) The Lenders shall be reasonably satisfied with the corporate and
legal structure and capitalization of the Borrower and each Subsidiary of the
Borrower, including the terms and conditions of, as the case may be, the joint
venture agreement, charter, bylaws and each class of capital stock or other
equity interest of the Borrower and each such Subsidiary and of each agreement
or instrument relating to such structure or capitalization and the amount,
parties, terms and conditions of the existing Debt of the Borrower and each such
Subsidiary.
(c) The Borrower shall have paid all accrued fees and expenses of the
Lender Agents (including the accrued fees and disbursements of counsel to the
Agent).
(d) The Lenders shall be reasonably satisfied with the insurance
maintained by the Borrower and each of its Subsidiaries.
(e) The Agent shall have received on or before the day of the initial
Borrowing the following, each dated such day (unless otherwise specified), in
form and substance satisfactory to the Agent and (except for the B Notes) in
sufficient copies for each Lender:
(i) With respect to the Borrower and each of its
Subsidiaries, (A) a certificate of the Secretary of the Borrower
certifying (I) that attached thereto is a true and complete copy of
the joint venture agreement of the Borrower and all amendments thereto
as in effect on the date of such certificate, (II) that attached
thereto is a true and complete copy of the bylaws of each Subsidiary
of the Borrower as in effect on the date of such certificate and such
bylaws of such Subsidiaries as in effect at all times since a date
prior to the date of the resolutions described in item (III) below,
(III) that attached thereto is a true and complete copy of the
resolutions adopted by the management board of the Borrower and by the
board of directors of each Subsidiary of the Borrower authorizing, as
the case may be, the execution, delivery and performance of this
Agreement, the Notes, the Guarantee Agreement and each other document
or instrument which is to be delivered by it in connection with this
Agreement after the date hereof and
authorizing the Borrowings hereunder or otherwise, and that such
resolutions have not been modified, rescinded or amended and are in
full force and effect, (IV) that the certificate or articles of
incorporation of the Subsidiaries of the Borrower have not been
amended since the date of the last amendment thereto shown on the
certificate furnished pursuant to clause (B) below and (V) as to the
incumbency and specimen signature of each of the officers of the
Borrower and its Subsidiaries executing, as the case may be, this
Agreement, the Notes and the Guarantee Agreement, or any other
document or instrument delivered in connection herewith or therewith;
(B) a copy of the certificate or articles of incorporation, as
amended, of each of the Borrower's Subsidiaries, certified by the
Secretary of State or other appropriate official of the state of its
organization as of a date reasonably near the initial Borrowing; and
(C) all documents evidencing other necessary corporate action and
governmental and third party consents and approvals (including good
standing certificates), if any, reasonably requested by the Agent or
any Lender through the Agent.
(ii) With respect to each of the Venturers, Century/Texas
and the Parent Companies, (A) a certificate of the Secretary or an
Assistant Secretary of such Person certifying (I) that attached
thereto is a true and complete copy of the resolutions of the Board of
Directors of such Person (x) approving its Negative Pledge Agreement
and (y) authorizing the execution and delivery of its Negative Pledge
Agreement and each other document or instrument which is to be
delivered by it in connection with this Agreement after the date
hereof and (II) as to the incumbency and specimen signature of each of
the officers of such Person executing its Negative Pledge Agreement or
any other document or instrument delivered in connection herewith or
therewith and (B) all documents evidencing other necessary corporate
action and governmental and third party consents and approvals, if
any, with respect to such Persons and the Negative Pledge Agreements
(including good standing certificates).
(iii) The Guarantee Agreement, duly executed by each of the
Borrower's Subsidiaries (if any).
(iv) The Negative Pledge Agreements, duly executed by each
of the Venturers, Century/Texas and the Parent Companies.
(v) A certificate of the Secretary of the Borrower
certifying that attached thereto is a true and complete copy of the
Management Agreement as in effect on the date of such certificate.
(vi) A certificate of the Secretary of the
Borrower certifying that attached thereto is a true and complete copy
of the Asset Purchase Agreements as in effect on the date of such
certificate, together with copies of the assignments by which all
right, title and interest of Century Communications in such Asset
Purchase Agreements have been assigned to the Borrower.
(vii) A certificate of the Chief Financial Officer of the
Borrower, in substantially the form of Exhibit G, attesting to the
Solvency of the Borrower and the Borrower and its Subsidiaries taken
as whole after giving effect to the transactions contemplated hereby.
(viii) A certificate as to the Rate Ratio substantially in
the form of Exhibit E.
(ix) A favorable opinion of (A) Xxxxx Xxxxxxxxxx & Xxxxx,
counsel for the Borrower, substantially in the form of Exhibit I-1 and
(B) internal counsel to Citizens Utilities and Citizens Cable,
substantially in the form of Exhibit I-2.
(x) A favorable opinion of Xxxx, Raywid & Xxxxxxxxx, special
communications counsel for the Borrower, substantially in the form of
Exhibit J.
(xi) A favorable opinion of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx
LLP, counsel for the Agent, in form and substance satisfactory to the
Agent.
(xii) Such other documents as the Agent or any Lender
through the Agent may reasonably request.
SECTION 3.02. Conditions Precedent to Each A Borrowing. The obligation
of each Lender to make an A Advance on the occasion of each A Borrowing
(including the initial A Borrowing) shall be subject to the further conditions
precedent that on the date of such A Borrowing (a) the following statements
shall be true (and each of the giving of the applicable Notice of A Borrowing
and the acceptance by the Borrower of the proceeds of such A Borrowing shall
constitute a representation and warranty by the Borrower that on the date of
such A Borrowing such statements are true):
(i) The representations and warranties contained in Section 4.01 and
in each other Loan Document are correct on and as of the date of such A
Borrowing, before and after giving effect to such A Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date,
and
(ii) No event has occurred and is continuing, or would result from
such A Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or would constitute an Event of Default but
for the requirement that
notice be given or time elapse or both; and (b) the Agent shall have received
such other approvals, opinions or documents as any Lender through the Agent
may reasonably request.
SECTION 3.03. Conditions Precedent to Each B Borrowing. The obligation
of each Lender which is to make a B Advance on the occasion of a B Borrowing
(including the initial B Borrowing) to make such B Advance as part of such B
Borrowing is subject to the conditions precedent that (i) the Agent shall have
received the written confirmatory Notice of B Borrowing with respect thereto,
(ii) on or before the date of such B Borrowing, but prior to such B Borrowing,
the Agent shall have received from the Borrower a B Note payable to the order of
such Lender for each of the one or more B Advances to be made by such Lender as
part of such B Borrowing, in a principal amount equal to the principal amount of
the B Advance to be evidenced thereby and otherwise on such terms as were agreed
to for such B Advance in accordance with Section 2.03, and (iii) on the date of
such B Borrowing the following statements shall be true (and each of the giving
of the applicable Notice of B Borrowing and the acceptance by the Borrower of
the proceeds of such B Borrowing shall constitute a representation and warranty
by the Borrower that on the date of such B Borrowing such statements are true):
(a) The representations and warranties contained in Section 4.01 and
in each other Loan Document are correct on and as of the date of such B
Borrowing, before and after giving effect to such B Borrowing and to the
application of the proceeds therefrom, as though made on and as of such date,
(b) No event has occurred and is continuing, or would result from
such B Borrowing or from the application of the proceeds therefrom, which
constitutes an Event of Default or which would constitute an Event of Default
but for the requirement that notice be given or time elapse or both, and
(c) No event has occurred and no circumstance exists as a result of
which the information concerning the Borrower that has been provided to the
Agent and each Lender by the Borrower in connection herewith would include an
untrue statement of a material fact or omit to state any material fact or any
fact necessary to make the statements contained therein, in the light of the
circumstances under which they were made, not misleading.
SECTION 3.04. Conditions Precedent to Borrowings for the Xxxxx
Acquisitions. The obligation of each Lender to make an Advance any proceeds of
which are to be used to finance the Xxxxx Oxnard Acquisition, the Xxxxx Walnut
Acquisition or the Xxxxx Xxxxx Xxxxx Acquisition shall be subject to the
conditions precedent that (a) coincident with the making of such Advance, the
Borrower shall own directly or through one or more Wholly-Owned Subsidiaries all
of the Xxxxx Properties sold in such Xxxxx Acquisition, (b) there shall exist no
action, suit, investigation, litigation or proceeding that purports to affect
the legality, validity or enforceability of such Xxxxx Acquisition or the
agreements and other documents to be entered into in connection with such Xxxxx
Acquisition or consummation of such Xxxxx Acquisition or that purports to
restrict the Borrower's control or operation of the Xxxxx Properties being
acquired, (c) since December 31, 1996 there shall have been no material adverse
change in the Xxxxx Properties subject to such Xxxxx Acquisition or their
financial condition, taken as a whole, other than changes relating to matters or
circumstances described in clauses (A), (B) and (C) of Section 8.1(j)(i) of the
Asset Purchase Agreements, and (d) the Agent shall have received evidence in
form and substance reasonably satisfactory to the Agent and in sufficient copies
for each Lender, coincident with the making of such Advance, as to the
consummation of such Xxxxx Acquisition on terms substantially the same as those
contained in the Asset Purchase Agreement relating to such Xxxxx Acquisition (as
such Asset Purchase Agreement may have been amended with the consent of the
Majority Lenders).
SECTION 3.05. Conditions Precedent to Borrowings for an Approved
Acquisition. The obligation of each Lender to make an Advance any proceeds of
which are to be used to finance an Approved Acquisition shall be subject to the
conditions precedent that (a) one or more of the Asset Purchase Agreements shall
have been terminated in accordance with its terms pursuant to Section 10.1 or
10.2 thereof, (b) the Borrower shall have presented the terms of the proposed
acquisition to the Lenders prior to being legally obligated to consummate such
acquisition and in any event no less than 30 days prior to consummating such
acquisition (the Lenders agreeing to attempt in good faith to respond to such
request within such 30-day period), (c) the purchase price of the assets
proposed to be acquired in such acquisition shall not exceed the purchase price
for the assets that were to be acquired pursuant to the Asset Purchase Agreement
or Asset Purchase Agreements referred to in clause (a) above, (d) there shall
exist no action, suit, investigation, litigation or proceeding that purports to
affect the legality, validity or enforceability of such acquisition or the
agreements and other documents to be entered into in connection with such
acquisition or the consummation of such acquisition or that purports to restrict
the Borrower's control or operation of the cable television assets or ownership
interests being acquired from the Approved Company, and (e) the Agent shall have
received evidence, in form and substance reasonably satisfactory to the Agent
and in sufficient copies for each Lender, coincident with the making of such
Advance, as to the consummation of such acquisition on terms that have not
changed in a manner materially adverse to the Borrower making such Approved
Acquisition from those presented to the Lenders and approved by the Majority
Lenders.
SECTION 3.06. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to the Lenders unless an officer of the Agent responsible for
the transactions contemplated by the Loan Documents shall have received notice
from such Lender prior to the initial Borrowing specifying its objection thereto
and such Lender shall not have made available to the Agent such Lender's ratable
portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) The Borrower is a joint venture that would be treated as a general
partnership under the laws of the State of Delaware and each of the Subsidiaries
of the Borrower is a corporation, in each case duly organized, validly existing
and (in the case of each Subsidiary) in good standing under the laws of the
jurisdiction of its organization; each such Person (i) is duly qualified to do
business and (in the case of each Subsidiary) in good standing in each other
jurisdiction in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the failure to so
qualify or be licensed would not have a Material Adverse Effect and (ii) has all
requisite corporate or other power and authority to own or lease and operate its
properties and to carry on its business as now conducted and as proposed to be
conducted. All of the joint venture interests in the Borrower are directly owned
by the Venturers in equal shares free and clear of all Liens; all of the
outstanding capital stock of Century Telecommunications has been validly issued,
is fully paid and non-assessable and is owned by Century/Texas free and clear of
all Liens; all of the outstanding capital stock of Century/Texas has been
validly issued, is fully paid and non-assessable and is owned by Century
Communications free and clear of all Liens; and all of the outstanding capital
stock of Citizens Cable has been validly issued, is fully paid and
non-assessable and is owned by Citizens Utilities free and clear of all Liens.
(b) The execution, delivery and performance by the Borrower and each
other Obligor of this Agreement, the Notes and the other Loan Documents and each
other document to which it is or is to be a party, and the acquisition by the
Borrower of any Subsidiary and the acquisition by any Subsidiary of any other
Subsidiary and the other transactions contemplated hereby, are within the
corporate or other powers of the Borrower, such Subsidiaries and such other
Obligors, as the case may be, have been duly authorized by all necessary
corporate or other action, and do not (i) contravene the joint venture agreement
of the Borrower or the charter or bylaws of any other Obligors, as the case may
be, (ii) violate any Governmental Rules (including
Regulation X of the Board of Governors of the Federal Reserve System), (iii)
conflict with or result in the breach of, or constitute a default under, any
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting such Obligor, any of its Subsidiaries or any
of their properties or (iv) result in or require the creation or imposition of
any Lien upon or with respect to any of the properties of any such Obligor or
any of its Subsidiaries. No Obligor is in violation of any such Governmental
Rules or in breach of any such contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument, the violation or breach of which is
reasonably likely to have a Material Adverse Effect.
(c) No authorization or approval or other action by, and no notice to
or filing with, any Governmental Person or any other third party (including the
FCC) is required for the due execution, delivery and performance by any Obligor
of this Agreement, the Notes or the other Loan Documents to which such Obligor
is a party or any Borrowing hereunder or for the ownership or control by the
Borrower of all Subsidiaries or for the ownership or control by any Subsidiary
of any other Subsidiary owned or controlled by it.
(d) This Agreement is and the Notes and each other Loan Document to
which any Obligor is a party when delivered hereunder will be, legal, valid and
binding obligations of such Obligor enforceable against such Obligor in
accordance with their respective terms, subject, in the case of enforceability,
(i) to the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium or similar law affecting creditors' rights generally and (ii) to the
effect of general principles of equity, including concepts of materiality,
reasonableness, good faith and fair dealing (regardless of whether considered in
a proceeding in equity or at law).
(e) The Consolidated and combining balance sheet of the Borrower and
its Subsidiaries as at December 31, 1996, and the related Consolidated and
combining statements of income and cash flows of the Borrower and its
Subsidiaries for the Fiscal Year then ended, accompanied by (in the case of the
Consolidated balance sheet and statements of income and cash flows) an opinion
of Deloitte & Touche, independent public accountants, duly certified by the
chief financial officer of the Borrower, copies of which have been furnished to
each Lender, fairly present the Consolidated and combining financial condition
of the Borrower and its Subsidiaries as at such date and the Consolidated and
combining results of the operations of the Borrower and its Subsidiaries for the
period ended on such date, all in accordance with generally accepted accounting
principles consistently applied, and since December 31, 1996 there has been no
Material Adverse Change.
(f) The Consolidated pro forma balance sheet of the Borrower and its
Subsidiaries as at December 31, 1996 (which
balance sheet (x) gives effect to the Xxxxx Acquisitions as if the same had
occurred as of such date and (y) assumes that such acquisitions were funded with
Debt of the Borrower as of such date), copies of which have been furnished to
each Lender, fairly present the Consolidated pro forma financial condition of
the Borrower and its Subsidiaries as at such date in accordance with generally
accepted accounting principles consistently applied, and since December 31, 1996
there has been no Material Adverse Change.
(g) The Consolidated and consolidating forecasted statements of income
and cash flows of the Borrower and its Subsidiaries for each Fiscal Year ending
December 31, 1996, through December 31, 2005, copies of which have been
furnished to each Lender, were prepared in good faith on the basis of the
assumptions stated therein, which assumptions were reasonable in light of
conditions existing at the time of delivery of such forecasts, and represented,
at the time of delivery, the Borrower's best estimate of its future financial
performance.
(h) No information, exhibit, report, document, certificate or written
statement, including this Agreement, furnished in writing to any Lender by or on
behalf of the Borrower or any other Obligor to the Agent or any Lender in
connection with the negotiation of the Loan Documents or pursuant to the terms
of the Loan Documents contained as of the date so furnished any untrue statement
of a material fact or omitted as of the date so furnished to state a material
fact necessary to make the statements contained therein, in light of the
circumstances under which such information, exhibit, report or other written
information is or is to be used, not misleading, nor did such information,
exhibits, reports, documents, certificates and statements, taken as a
whole,contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements contained therein not
misleading. There is no fact known to the Borrower or any officer of the
Borrower which the Borrower has not disclosed to the Lenders in writing which in
the reasonable judgment of the Borrower and such officers would have a Material
Adverse Effect.
(i) There is no pending or (to the knowledge of the Borrower)
threatened action, suit, investigation or proceeding against any Obligor before
any Governmental Person which (i) could be reasonably likely to have a Material
Adverse Effect or (ii) purports to affect the legality, validity or
enforceability of this Agreement, any Note or any other Loan Document or the
consummation of the transactions contemplated hereby.
(j) None of the Obligors is engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no proceeds
of any Advance will be used to purchase or carry any Margin Stock or to extend
credit to others for the purpose of purchasing or carrying any Margin Stock.
(k) Following application of the proceeds of each Advance, not more
than 25 percent of the value of the assets (either of the Borrower only or of
the Borrower and its Subsidiaries on a Consolidated basis) subject to the
provisions of Section 5.02(a) or 5.02(e), or subject to any restriction
contained in any agreement or instrument between the Borrower and any Lender or
any Affiliate of any Lender relating to Debt, will be Margin Stock.
(l) Set forth on Schedule 4.01(1), and, after the date hereof, set
forth on the most recent schedule delivered pursuant to Section 5.03(k), is a
complete and accurate list of all Subsidiaries of the Borrower, showing as of
the date hereof or thereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of capital stock authorized,
and the number outstanding, on the date hereof and the percentage of the
outstanding shares of each such class owned (directly or indirectly) by the
Borrower and the number of shares covered by all outstanding options, warrants,
rights of conversion or purchase and similar rights at the date hereof. The
outstanding capital stock of all Wholly-Owned Subsidiaries has been validly
issued, is fully paid and non-assessable and the outstanding capital stock of
all Subsidiaries owned by the Borrower and its Subsidiaries is free and clear of
all Liens, except those permitted by Section 5.02(a).
(m) Set forth in Schedule 4.01(m) is a complete and correct list for
the Borrower of all of the Franchises granted to and held by, as of the date of
the execution and delivery of this Agreement, the Borrower and/or its
Subsidiaries, or for which application has been made or is planned to be made by
the Borrower and/or its Subsidiaries, together with the date on which each such
Franchise expires in accordance with its terms, the issuing authority therefor
and the Person to whom such Franchise has been, or is to be issued. As of such
date, each Franchise is in full force and effect and no other approval,
application, filing, registration, consent or other action of any local, state
or federal authority is required to enable the Borrower and/or its Subsidiaries
to exploit any such Franchise except as is otherwise indicated on said Schedule
4.01(m). As of such date, none of the Borrower or any of its Subsidiaries has
received any notice from the granting body or any other Governmental Person with
respect to any breach of any covenant under, or any default with respect to, any
such Franchise except as is otherwise indicated on said Schedule 4.01(m). As of
such date, before and after giving effect to this Agreement, no material default
has occurred and is continuing under any such Franchise except as is otherwise
indicated on said Schedule 4.01(m).
(n) The operations and properties of the Borrower and each of its
Subsidiaries comply in all material respects with all Environmental Laws, all
necessary Environmental Permits have been obtained and are in effect for the
operations and properties of the Borrower and its
Subsidiaries, the Borrower and its Subsidiaries are in compliance in all
material respects with all such Environmental Permits, and no circumstances
exist that could (i) form the basis of an Environmental Action against any
Borrower or any of its Subsidiaries or any of their properties that could have a
Material Adverse Effect or (ii) cause any such property to be subject to any
restrictions on ownership, occupancy, use or transferability under any
Environmental Law.
(o) None of the properties of the Borrower or any of its Subsidiaries
is listed or proposed for listing on the National Priorities List under CERCLA
or on the Comprehensive Environmental Response, Compensation and Liability
Information System maintained by the Environmental Protection Agency or any
analogous state list of sites requiring investigation or cleanup or is adjacent
to any, such property, and no underground storage tanks, as such term is defined
in 42 U.S.C. 'SS' 6991, are located on any property of the Borrower or any of
its Subsidiaries or, to the best of its knowledge, on any adjoining property.
(p) None of the Borrower or any of its Subsidiaries is (i) an
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company," as such terms are defined in the
Investment Company Act of 1940, (ii) a "holding company," or an "affiliate" of a
"holding company" or a "subsidiary company" of a "holding company," within the
meaning of the Public Utility Holding Company Act of 1935 or (iii) subject to
any other Governmental Rule restricting its or their ability to incur debt.
Neither the making of any Advances, nor the application of the proceeds or
repayment thereof by the Borrower, nor the consummation of the other
transactions contemplated hereby, will violate any provision of any such
Governmental Rule or any Governmental Approval.
(q) The Borrower is, individually and together with its Subsidiaries,
Solvent.
(r) Set forth in Schedule 4.01(r) is a complete, and correct list, as
of the date hereof and as of the date of the initial Borrowing, of all credit
agreements, indentures, purchase agreements, obligations in respect of letters
of credit, guarantees and other instruments presently in effect providing for,
evidencing, securing or otherwise relating to any Debt of the Borrower or any of
its Subsidiaries (other than Debt under the Loan Documents) in a principal or
face amount equal to $500,000 or more, and such list correctly sets forth the
names of the debtor or lessee and creditor or lessor with respect to such Debt
outstanding or to be outstanding, the rate of interest or rentals, a description
of any security given or to be given therefor, and the maturity or maturities or
expiration date or dates thereof.
(s) Each of the Borrower and its Subsidiaries owns and has good title
to the properties shown to be owned by it in the
financial statements referred to in Section 4.01(e) (other than properties
permitted to be disposed of pursuant to Section 5.02(e)). There are no Liens of
any nature whatsoever on any properties of the Borrower nor any Subsidiary of
the Borrower other than (i) those permitted by Section 5.02(a) and (ii)
nonconsensual Liens which could not, individually or in the aggregate, have a
Material Adverse Effect.
(t) None of the Borrower or any of its Subsidiaries is a party to any
indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporate restriction which is
reasonably likely to have a Material Adverse Effect.
(u) (i) The Borrower and each of its Subsidiaries has filed all tax
returns (Federal, State and local) required to be filed, and paid all taxes
shown thereon to be due, including interest and penalties, or provided adequate
reserves for payment thereof, and (ii) the Borrower and each of its Subsidiaries
have timely filed all reports and applications required by the FCC or any other
Governmental Person which has issued a Franchise to the Borrower or any such
Subsidiary, in each case except such filings the failure of which to file is
not, individually or in the aggregate, reasonably likely to have a Material
Adverse Effect.
(v) The Borrower and each of its Subsidiaries is in compliance with
the requirements of all applicable Governmental Rules of all Governmental
Persons the violation of which could have a Material Adverse Effect; and none of
the Borrower or any of its Subsidiaries is the subject of any outstanding
citation, order or investigation by the FCC which could have a Material Adverse
Effect, and no such citation, order or investigation, to the knowledge of the
Borrower or any Subsidiary, is contemplated by the FCC or any such Governmental
Persons.
(w) Set forth in Schedule 4.01(w) is a true and correct summary as of
February 28, 1997 of Subscribers with respect to the cable television systems of
the Borrower and its Subsidiaries indicating the number of Subscribers (in each
case differentiating between Basic Subscribers and Pay TV Units) categorized by
system. The information previously supplied to the Lenders in relation to
Subscribers is a true and correct summary as of the dates there indicated of
Subscribers with respect to the cable television systems of the Borrower and its
Subsidiaries.
(x) None of the Borrower or any ERISA Affiliate has either a
Multiemployer Plan or a Plan, other than a Multiemployer Plan or a Plan to which
the Majority Lenders have given their consent after the date hereof.
(y) The Borrower and each of its Subsidiaries owns all franchises
(including Franchises), licenses, patents, copyrights, trademarks, service marks
or trade names material to the conduct of its businesses.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or any
other amount hereunder shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will, unless the Majority Lenders shall
otherwise consent in writing:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects with all applicable
Governmental Rules (including ERISA) and licensing requirements, such compliance
to include paying before the same become delinquent all taxes, assessments and
governmental charges imposed upon it or upon its property except to the extent
contested in good faith and by appropriate proceedings and with respect to which
adequate reserves for payment have been established.
(b) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable insurance
companies or associations in such amounts and covering such risks as is usually
carried by companies engaged in similar businesses and owning similar properties
in the same general areas in which the Borrower or such Subsidiary operates.
(c) Existence and Approvals. Obtain, preserve and maintain, and cause
each of its Subsidiaries to obtain, preserve and maintain (i) its existence,
rights, franchises (including Franchises) and privileges in the jurisdiction of
its organization, and qualify and remain qualified, and cause each such
Subsidiary to qualify and remain qualified, to do business in each jurisdiction
in which such qualification is necessary or desirable in view of its business
and operations or the ownership of its properties; provided, however, nothing
herein contained shall prevent any merger or consolidation permitted by Section
5.02(d) and (ii) all Governmental Approvals (including Franchises) and other
permissions of all Governmental Persons necessary to enable the Borrower and
each such Subsidiary to operate and maintain its property, business and
operations as the same is currently carried on or as it may hereafter be carried
on in accordance with the Loan Documents.
(d) Visitation Rights. At any reasonable time and from time to time
upon reasonable notice, permit the Agent or any of the Lenders or any agents or
representatives thereof, to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Borrower and
any of its Subsidiaries, and to discuss the affairs, finances and accounts of
the Borrower and any of its Subsidiaries with any of their officers or directors
and with their independent certified accountants.
(e) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct entries
shall be made of all financial transactions and the assets and business of the
Borrower and each such Subsidiary in accordance with generally accepted
accounting principles consistent with those applied in the preparation of the
financial statements referred to in Sections 4.01(e) and 4.01(f), reflecting all
financial transactions of the Borrower and each such Subsidiary.
(f) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, to the extent that the
management of the Borrower in its reasonable business judgment deems such
maintenance and preservation necessary or reasonably useful in the proper
conduct of the business of the Borrower and such Subsidiary, all of its
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted; and at all times
do or cause to be done, and cause each such Subsidiary to do or cause to be
done, all things necessary to obtain, preserve, renew and keep in full force and
effect all Governmental Approvals (including Franchises) and all patents,
copyrights, trademarks, service marker or trade names material to the conduct of
its businesses.
(g) Maintenance of Separateness. Conduct its business and operations
and the business and operations of each Subsidiary of the Borrower separately
from that of the Venturers, Century/Texas, the Parent Companies, each Minority
Entity and each other Affiliate of the Borrower (other than any Subsidiary of
the Borrower), including (i) not commingling funds or other assets of the
Borrower or any such Subsidiary with the funds or other assets of the Venturers,
Century/Texas, the Parent Companies, a Minority Entity or any other Affiliate of
the Borrower; (ii) maintaining separate records (financial and otherwise) and
observing all corporate or other appropriate procedures and formalities for the
Borrower and each such Subsidiary, including (as applicable) the holding of
meetings of shareholders, boards of directors and persons performing similar
functions, the recordation and maintenance of minutes of such meetings, and the
recordation and maintenance of resolutions adopted at such meetings; (iii)
causing each such Subsidiary to pay its liabilities from its assets or from the
assets of the Borrower or another Subsidiary of the Borrower; and (iv) causing
each such Subsidiary to conduct its dealings with third parties in its own name
and as a separate and independent entity.
(h) Pro-Forma Debt Service Ratio. Maintain, as of the last day of each
Fiscal Quarter ending on and after the Termination Date, a Pro-Forma Debt
Service Ratio of at least 1.10:1.
(i) Ratio of Total Debt to EBIDT. Maintain, as of the last day of each
Fiscal Period whose last day occurs during any
period set out below, the ratio of Total Debt as of such last day to EBIDT for
such Fiscal Period of less than the ratio set out below next to such period:
Period Ratio
------ -----
from the date hereof 6.25:1
through 6/30/98
thereafter through 6.00:1
6/30/99
thereafter through 5.50:1
3/31/00
thereafter through 5.00:1
3/31/01
thereafter through 4.50:1
3/31/02
thereafter 4.00:1
(j) Ratio of EBIDT to Interest Expense for Total Debt. Maintain, as of
the last day of each Fiscal Period, the ratio of
(i) EBIDT for such Fiscal Period, to
(ii) the sum of all amounts payable during such Fiscal Period by
the Borrower and its Subsidiaries on account of interest and
amortization of debt discount and expense, and commitment, letter of
credit, agency and other fees with respect to Total Debt, of at least
1.75:1 for each Fiscal Period ending before December 31, 1998 and at
least 2.00:1 for each Fiscal Period ending on December 31, 1998 and
thereafter.
(k) Pari Passu. Cause the obligations of the Borrower under this
Agreement to rank at least pari passu in right of payment with all Additional
Unsecured Debt, if any, and all other Debt of the Borrower which is not secured
or the subject of any statutory trust or preference or which is not expressly
subordinated in right of payment to any Debt.
(l) Interest Rate Protection. (i) No later than 90 days following the
Effective Date, enter into and maintain one or more Hedging Agreements that
shall provide interest rate protection at all times (A) in respect of at least
25% of the highest principal amount of Debt outstanding under this Agreement
during such 90-day period, (B) having an original term of at least three years
and (C) that is otherwise in form and substance reasonably satisfactory to the
Agent and (ii) no later than 180 days following the Effective Date, enter into
and maintain one or more Hedging Agreements that, together with all Hedging
Agreements entered into pursuant to clause (i) above, shall provide interest
rate protection at all times (A) in respect of at least 50% of the highest
principal amount of Debt outstanding under this Agreement during such 180-day
period, (B) having an original term of at least three years and (C) that is
otherwise in form and substance reasonably satisfactory to the Agent.
SECTION 5.02. Negative Covenants. So long as any Advance or any other
amount hereunder shall remain unpaid or any Lender shall have any Commitment
hereunder, the Borrower will not, without the written consent of the Majority
Lenders:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any Lien on
or with respect to any of its properties, whether personal or real, and whether
tangible or intangible, now owned or hereafter acquired, or sign or file, or
permit any such Subsidiary to sign or file, under the Uniform Commercial Code of
any jurisdiction, a financing statement that names the Borrower or any such
Subsidiary as debtor, or sign, or permit any such Subsidiary to sign, any
security agreement authorizing any secured party thereunder to file such
financing statement, or assign, or permit any such Subsidiary to assign, any
right to receive income, excluding, however, from the operation of the foregoing
restrictions, Liens:
(i) for taxes, assessments or governmental charges or levies on
property of the Borrower or any such Subsidiary if the same shall not
at the time be delinquent or thereafter can be paid without penalty,
or are being contested in good faith and by appropriate proceedings
and for which adequate reserves have been established;
(ii) imposed by law, such as carrier's, warehouseman's and
mechanic's liens and other similar Liens arising in the ordinary
course of business;
(iii) arising out of pledges or deposits under worker's
compensation laws or similar legislation, arising in the ordinary
course of business;
(iv) constituting easements, rights of way and other encumbrances
on title to real property that do not render title to the property
encumbered thereby unmarketable or materially adversely affect the use
of such property for its present purposes;
(v) arising in connection with Capital Leases and Synthetic
Leases permitted by Section 5.02(c) and encumbering only the assets
covered by such Capital Leases or Synthetic Leases; or
(vi) constituting purchase money Liens on or in property acquired
or held by the Borrower or any such Subsidiary in the ordinary course
of business to secure the purchase price of such property or to secure
Debt incurred solely for the purpose of financing the acquisition of
such property, or Liens existing on such property at the time of its
acquisition; provided that the Debt secured thereby does not exceed
the purchase price thereof;
provided, however, the aggregate principal amount of the Debt
secured by the Liens referred to in clauses (v) and (vi) shall not exceed
$5,000,000 at any one time outstanding for the Borrower and its Subsidiaries, on
a Consolidated basis,
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt, except
(i) Debt under the Loan Documents;
(ii) unsecured Intercompany Debt permitted by Section 5.02(f)(v);
provided that such Debt (A) is subordinated in right of payment to the
Debt of the Borrower under this Agreement and its Notes and (B) does
not contravene any other contractual restriction binding on or
affecting the indebted Person;
(iii) Debt secured by any Lien permitted by Section 5.02(a)(v) or
(vi);
(iv) unsecured Debt incurred in the ordinary course of business
for the deferred purchase price of property or services, maturing
within one year from the date created;
(v) Debt consisting of (A) guarantees by endorsement of
negotiable instruments for deposit or collection or similar
transactions in the ordinary course of business and (B) guarantees of
the obligations of the Borrower or any Subsidiary of the Borrower;
(vi) Debt consisting of obligations as lessee permitted by
Section 5.02(c);
(vii) Debt consisting of reimbursement or other obligations with
respect to letters of credit which do not support in any way Debt of a
Person other than such Borrower or any of its Subsidiaries;
(viii) unsecured Debt, evidenced by promissory notes or other
instruments (including Commercial Paper), sold, issued or incurred by
the Borrower from time to time after the date hereof ranking pari
passu with or subordinated in right of payment to the Debt of the
Borrower under this Agreement and its Notes (the "Additional Unsecured
Debt" of the Borrower); provided that (A) all Unsecured Debt Documents
shall have been delivered to the Agent and the Lenders, together with
such other information relating to the sale, issuance or incurrence of
the Additional Unsecured Debt as any Lender through the Agent shall
have reasonably requested, at least 20 days prior to the sale,
issuance or incurrence of such Additional Unsecured Debt, (B) such
Unsecured Debt Documents shall be in form and substance and contain
terms and provisions satisfactory to the Agent and
the Majority Lenders (including, unless the Net Cash Proceeds of the
sale, issuance or incurrence of such Additional Unsecured Debt have
previously been applied to repay in full all amounts outstanding under
this Agreement, the Notes and the other Loan Documents after
termination of the Lenders' Commitments, terms and provisions
providing for scheduled amortization of not more than 25% of the
aggregate principal amount of such Additional Unsecured Debt prior to
December 31, 2005), (C) the Borrower shall have entered into such
amendments to this Agreement and the other Loan Documents as the Agent
and the Lenders shall have reasonably requested as a condition
precedent to their approval of the terms and conditions of the
Additional Unsecured Debt, (D) 100% of the Net Cash Proceeds of the
sale, issuance or incurrence of such Additional Unsecured Debt are
used to prepay the A Advances in accordance with Section 2.10(b)(iii)
and to reduce the respective Commitments of the Lenders pursuant to
Section 2.05, (E) the representations and warranties contained in
Section 4.01 and in each other Loan Document shall be true and correct
on and as of the date of sale, issuance or incurrence of the
Additional Unsecured Debt, before and after giving effect to such
sale, issuance or incurrence, as though made on and as of such date
and (F) no event shall have occurred and be continuing, or would
result from the sale, issuance or incurrence of the Additional
Unsecured Debt or any other action or transaction contemplated
thereby, which constitutes an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both; or
(ix) any extension, refunding or renewal of any Debt permitted by
clauses (i), (ii), (iv), and (vii) hereof, and any extension or
renewal of any Debt permitted by clause (viii) hereof, not resulting
in an increase in the principal amount then outstanding or change in
any direct or contingent obligor thereof;
provided that the aggregate principal amount of Debt referred to in clauses
(iv), (v)(B), (vi) and (vii) shall not exceed $10,000,000 at any one time
outstanding for the Borrower and its Subsidiaries, on a Consolidated basis.
(c) Lease Obligations. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
obligations as lessee (i) for the rental or hire of real or personal property in
connection with any sale and leaseback transaction, or (ii) for the rental or
hire of other real or personal property of any kind under leases or agreements
to lease (including, but not limited to, Capital Leases and Synthetic Leases)
having a term of one year or more which would cause the aggregate, direct or
contingent, liabilities of the Borrower and its Subsidiaries, on a Consolidated
basis, in respect of all such obligations (under clause (i) and under clause
(ii) above taken together) payable in
any period of 12 consecutive calendar months to exceed $5,000,000.
(d) Mergers, Etc. Merge or consolidate with or into, or sell, assign,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to, any Person, or permit or cause any of its Subsidiaries
to do so, except that (i) any of its Wholly-Owned Subsidiaries may merge or
consolidate with or into, or dispose of assets to, or acquire assets of, any of
its other Wholly-Owned Subsidiaries and (ii) any of its Subsidiaries may merge
into, or dispose of assets to, the Borrower, provided in each case that,
immediately prior to and after giving effect to such transaction, no event shall
have occurred or be continuing which constitutes an Event of Default or which,
with the giving of notice or lapse of time or both, would constitute an Event of
Default and in the case of any such merger to which the Borrower is a party, the
Borrower is the surviving Person.
(e) Sales, Etc. of Assets. Sell, assign, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, assign, lease, transfer
or otherwise dispose of, any of its assets (including any sale or discounting of
receivables), including substantially all assets constituting the business of a
division, branch or other unit operation, except:
(i) for sales of assets (excluding receivables) for cash in the
ordinary course of its business,
(ii) for dispositions of obsolete equipment no longer needed in
the conduct of the Borrower's or such Subsidiary's business for cash,
(iii) in a transaction authorized by subsection (d) of this
Section 5.02 or
(iv) for sales of fixed assets for cash or in exchange (by way of
trade or the like) for like operating assets; provided that: (A) the
aggregate Asset EBIDT of all such assets so sold or exchanged by the
Borrower and its Subsidiaries, on a Consolidated basis, during, and
for, the Fiscal Period then most recently ended does not exceed 15% of
EBIDT for such Fiscal Period; (B) the sum of the Asset EBIDT
Percentages for all such assets so sold or exchanged by the Borrower
and its Subsidiaries, on a Consolidated basis, during the period of
five years ending on the date of the relevant sale or exchange does
not exceed 25%; and (C) the Borrower shall have given the Agent at
least 30 days' prior written notice with a copy to the Agent for
delivery to each Lender of each such sale or exchange together with
sufficient information with a copy to the Agent for delivery to each
Lender to enable the Agent to determine the
respective Asset EBIDT of the assets involved in such sale or
exchange. For purposes of this paragraph (iv):
"Asset EBIDT" means, for any asset for any period, the net income
(or loss) attributable to the operation of such asset for such period
plus the sum of interest expense, depreciation and amortization
expense and provision for income taxes to the extent deducted in
computing such net income (or loss).
"Asset EBIDT Percentage" means, for any asset sold or exchanged,
the ratio (expressed as a percentage) of (1) the Asset EBIDT of such
asset for the Fiscal Period ending on or most recently ended prior to
the sale or exchange of such asset to (2) EBIDT for such Fiscal Period
(determined, however, without giving effect to paragraph (ii) of the
definition of EBIDT with respect to the assets so sold or exchanged).
(f) Investments in Other Persons. On or after the date hereof make, or
permit any of its Subsidiaries to make, any Investment in any Person (including
its officers and employees) other than:
(i) the acquisition by the Borrower or any of its Subsidiaries
from any Person not an Affiliate of the Borrower or any of its
Subsidiaries of (A) all or substantially all of the stock or assets of
one or more cable television systems operating under a valid Franchise
(or under other authority reasonably acceptable to the Majority
Lenders) both before and after such acquisition or (B) capital stock
representing at least a majority of the Voting Rights of one or more
corporations which owns directly or through one or more other wholly
owned corporations all or substantially all of such assets;
(ii) the acquisition by the Borrower or any of its Subsidiaries
from any Person not an Affiliate of such Borrower or any of its
Subsidiaries of capital stock representing less than a majority of the
Voting Rights of one or more corporations and capital contributions by
the Borrower or any of its Subsidiaries to Minority Entities in which
such Person has an ownership interest; provided that the aggregate
cost (including cash paid, securities issued and obligations assumed)
of all such acquisitions and contributions does not exceed
$10,000,000; and provided further that, if any such target corporation
is in the cable television business, such corporation owns directly or
through one or more other wholly owned corporations all or
substantially all of the assets of one or more cable television
systems operating under a valid Franchise (or under other authority
reasonably acceptable to the Majority Lenders);
(iii) the acquisition by the Borrower or any of its Subsidiaries
as a capital contribution to it of one or more Permitted Cable Systems
for the purpose of curing a breach of the covenants contained in
Section 5.01(h), (i) or (j), as permitted pursuant to Section 6.01(c);
(iv) purchases by the Borrower or any Subsidiary of shares of, or
capital contributions to, any Person which (A) is a direct,
Wholly-Owned Subsidiary of such Person or (B) in connection with any
acquisition described in clause (i) above, becomes a direct,
Wholly-Owned Subsidiary of such Person;
(v) advances by the Borrower to any Subsidiary, advances by any
such Subsidiary to the Borrower and advances by any such Subsidiary to
any other such Subsidiary;
(vi) advances by the Borrower to the Venturers, Century/Texas or
the Parent Companies in an aggregate amount not to exceed, for any
Fiscal Quarter, the excess, if any, of (i) the amount permitted to be
distributed by the Borrower to the Venturers pursuant to Section
5.02(g)(iii) for such Fiscal Quarter over (ii) (A) the aggregate
amount of distributions actually made by the Borrower to the Venturers
for such Fiscal Quarter pursuant to such Section 5.02(g)(iii);
(vii) purchases of readily marketable direct obligations of the
United States of America, certificates of deposit issued by any
commercial bank of recognized standing operating in the United States
of America with capital in excess of $100,000,000 and readily
marketable and freely transferable short-term Commercial Paper rated
"A-2" or better by Standard & Poor's, a division of XxXxxx-Xxxx, Inc.,
or "P-2" or better by Xxxxx'x Investors Service, Inc.;
(viii) the Xxxxx Acquisitions; and
(ix) an Approved Acquisition;
provided in each case that, immediately prior to and after giving effect to any
such Investments no event shall have occurred or be continuing which constitutes
an Event of Default or which, with the giving of notice or lapse of time or
both, would constitute an Event of Default (and, in the case of any Investment
proposed to be made pursuant to clause (i) or (ii), the Borrower shall, not
later than five Business Days prior to the consummation of such Investment,
deliver to the Agent a certificate, in form and detail reasonably satisfactory
to the Agent, demonstrating pro forma compliance with the covenants set forth in
Sections 5.01(h), (i) and (j)). The Borrower shall promptly cause each Person
that becomes a direct or indirect Subsidiary of the Borrower after the date
hereof to become a guarantor under the Guarantee Agreement pursuant to an
assumption agreement in the
form annexed to the Guarantee Agreement or otherwise pursuant to such
documentation which is in form and substance satisfactory to the Agent.
(g) Restricted Payments, Etc. Declare or make any distributions,
purchase, redeem, retire, defease or otherwise acquire for value any of its
joint venture interests or any warrants, rights or options to acquire such joint
venture interests, now or hereafter outstanding, return any capital to its joint
venturers as such, make any distribution of assets, joint venture units,
warrants, rights, options, obligations or securities to its joint venturers as
such, or issue or sell any joint venture units or any warrants, rights or
options to acquire such joint venture units, or permit any of its Subsidiaries
to do any of the foregoing with respect to its capital stock, except that, after
the Termination Date upon compliance with all applicable requirements of law,
(i) any Subsidiary may declare and make payment of cash and stock dividends,
return capital and make distributions of assets to the Borrower or to other
Subsidiaries of the Borrower, (ii) the Borrower may declare and deliver
distributions payable only in joint venture units of the Borrower, (iii) the
Borrower may declare and make cash distributions to the Venturers in an amount
not to exceed in the aggregate, for any Fiscal Quarter of the Borrower ending
after the Termination Date, the Excess Cash Flow Surplus for the Borrower for
such Fiscal Quarter less the aggregate amount of advances made by the Borrower
to the Venturers, Century/Texas and the Parent Companies for such Fiscal Quarter
pursuant to Section 5.02(f)(vi); provided that, immediately prior to and after
giving effect to any such declaration or payment, no event shall have occurred
or be continuing which constitutes an Event of Default or which, with the giving
of notice or lapse of time or both, would constitute an Event of Default.
(h) Change in Nature of Business, Fiscal Year or Charter Amendment.
Make, or permit any of its Subsidiaries to make, any material change in the
nature of its business as carried on at the date hereof or change, or permit any
such Subsidiary to change, its fiscal year from the Fiscal Year or amend its
joint venture agreement, or permit any such Subsidiary to amend its certificate
of incorporation.
(i) Transactions with Affiliates. Engage, or permit any of its
Subsidiaries to engage, in any transaction with an Affiliate of such Subsidiary
(other than another Subsidiary of the Borrower) on terms less favorable to the
Borrower or such Subsidiary than would be obtainable at the time in comparable
transactions of the Borrower or such Subsidiary with Persons not Affiliates; and
without limiting the foregoing, the Borrower will not permit any of its
Subsidiaries to pay dividends (to the extent otherwise permitted by Section
5.02(g)) except in compliance with applicable law, contract, and the charter and
by-laws of such Subsidiary.
(j) Termination of Franchise. Terminate, permit any of its
Subsidiaries to terminate or authorize the termination by any other Person of
any Franchise of the Borrower or any such Subsidiary if such termination (either
alone or taken together with a termination of one or more other Franchises) is
reasonably likely, in the reasonable opinion of the Majority Lenders, to have a
Material Adverse Effect.
(k) Restriction on Negative Pledges. Enter into or suffer to exist, or
permit any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien of any nature
upon any of its property or assets other than (i) in favor of the Agent and the
Lenders or (ii) in connection with any Debt permitted by Section 5.02(b)(iii) to
the extent such agreement is applicable only to the property on which a Lien is
permitted under Section 5.02(a)(v) or (vi).
(l) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or reporting
practices, except as required by generally accepted accounting principles.
(m) Prepayments, Etc. of Debt. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner, or make
any payment in violation of any subordination terms of, any Debt (including any
of its Additional Unsecured Debt), other than (i) the prepayment of the Advances
in accordance with the terms of this Agreement, (ii) regularly scheduled or
required repayments or redemptions of Debt (including required repayments or
redemptions of its Additional Unsecured Debt arising in connection with the
Borrower's making of optional prepayments pursuant to Section 2.10(a) of this
Agreement), provided that any such required prepayment or redemption does not
require the Borrower to pay any "make-whole" or other premium in connection with
such prepayment or redemption; and (iii) optional prepayments or redemptions of
its Additional Unsecured Debt, provided that simultaneously with any such
optional prepayment or redemption, the Borrower prepays the outstanding
principal amount of the A Advances to the extent required by Section
2.10(b)(iv).
(n) Amendments to Unsecured Debt Documents. Amend, modify or change,
or agree to any amendment, modification or change, of any term or condition of
any of its Unsecured Debt Documents, or give any consent, waiver or approval
thereunder, which (i) increases the monetary obligations of the Borrower
thereunder, (ii) accelerates any date fixed for any payment by the Borrower
thereunder or (iii) otherwise materially impairs the value of the interest or
rights of the Borrower thereunder (including, but not limited to, any amendment,
modification or change which makes any covenant or event of default thereunder
materially more restrictive as to the Borrower).
(o) Issuance of Stock. Suffer or permit any of its Subsidiaries,
directly or indirectly, to issue any stock of such Subsidiary, except (i) to the
Borrower, (ii) to a Wholly-Owned Subsidiary of the Borrower, (iii) to qualified
directors if and to the minimum extent required by applicable law, or (iv) as
otherwise required by applicable law in the case of Foreign Subsidiaries of the
Borrower; provided that such transaction complies with all other provisions of
this Agreement.
(p) Amendments to Management Agreement. Amend, modify, change or waive
or agree to any amendment, modification, change or waiver of any material term
or condition of the Management Agreement in any manner adverse to the interests
of the Lenders or that would otherwise have a Material Adverse Effect.
(q) Management Fees. Pay or obligate itself to pay any management or
similar fee to any Affiliate of the Borrower or any other Person, or permit any
of its Subsidiaries to do so, except that the Borrower may reimburse
Century/Texas for certain of its expenses as provided in Section 5 of the
Management Agreement.
SECTION 5.03. Reporting Requirements. So long as any amount hereunder
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Borrower will, unless the Majority Lenders shall otherwise consent in writing,
furnish to the Agent for distribution to the Lenders:
(a) as soon as possible and in any event within five Business Days
after the occurrence of each Event of Default or each event which, with the
giving of notice or lapse of time or both, would constitute an Event of Default,
continuing on the date of such statement, a statement of a Financial Officer of
the Borrower setting forth details of such Event of Default or event and the
action which the Borrower has taken or proposes to take with respect thereto;
(b) as soon as available and in any event within 60 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower,
Consolidated and consolidating balance sheets of the Borrower and its
Subsidiaries as of the end of such quarter and the related Consolidated and
consolidating statements of operations, statements of retained earnings and
statements of cash flows of such Persons for such quarter and for the period
commencing at the end of the previous Fiscal Year and ending with the end of
such quarter, all in reasonable detail and duly certified (subject to normal
year-end audit adjustments) by a Financial Officer of the Borrower as having
been prepared in accordance with generally accepted accounting principles
consistent with those applied in the preparation of the financial statements
referred to in Sections 4.01(e) and 4.01(f), together with (i) a certificate of
such Financial Officer dated the date of delivery of such statements stating
that such Financial
Officer has no knowledge that an Event of Default, or any event which, with the
giving of notice or lapse of time or both, would constitute an Event of Default,
has occurred and is continuing, or if an Event of Default or such an event has
occurred and is continuing, a statement as to the nature thereof and the action
which the Borrower has taken or proposes to take with respect thereto, and (ii)
a certificate in the form of Exhibit F, appropriately completed, setting forth,
with respect to the Fiscal Period ending on the last day of such quarter, a
computation of each amount, including the ratios, described in Sections 5.01(h),
(i) and (j);
(c) as soon as available and in any event within 90 days after the end
of each Fiscal Year of the Borrower, a copy of the annual audit report for such
year for the Borrower and its Subsidiaries (including therein Consolidated and
consolidating balance sheets of such Persons as a group in each case as at the
end of such Fiscal Year and the related Consolidated and consolidating
statements of operations, statements of retained earnings and statements of cash
flows of such Persons for such Fiscal Year), duly certified by Deloitte & Touche
or other independent certified public accountants of recognized standing
reasonably acceptable to the Majority Lenders, together with a certificate of
such accounting firm to the Agent stating that in the course of the regular
audit of the business of the Borrower and its Subsidiaries, which audit was
conducted by such accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that an Event of
Default or an event which, with the giving of notice or lapse of time or both,
would constitute an Event of Default, has occurred and is continuing, or if, in
the opinion of such accounting firm, an Event of Default or such an event has
occurred and is continuing, a statement as to the nature thereof;
(d) together with the financial statements delivered pursuant to
subsection (c) above, a certificate in the form of Exhibit F, appropriately
completed, of a Financial Officer of the Borrower setting forth for the Fiscal
Year a computation of each amount, including the ratios, described in Sections
5.01(h), (i), and (j);
(e) each certificate regarding the Rate Ratio, as required pursuant to
Section 2.07(c);
(f) promptly after the commencement thereof, notice of all actions,
suits and proceedings of the type described in Section 4.01(i) before any
Governmental Person;
(g) promptly after the sending or filing thereof, copies of all proxy
statements, financial statements and reports which the Borrower or any
Subsidiary of the Borrower sends to its stockholders, and copies of all regular,
periodic and special reports, and all registration statements, which the
Borrower or any Subsidiary of the Borrower files with the Securities and
Exchange Commission or any governmental authority which may be substituted
therefor, with any national securities exchange or with the FCC or any other
governmental authority which has issued a Franchise to the Borrower or any
Subsidiary of the Borrower;
(h) as soon as available and in any event within 60 days after the end
of each of the first three Fiscal Quarters of each Fiscal Year of the Borrower
and within 90 days of the end of each Fiscal Year of the Borrower a report
updating the information regarding Subscribers to the cable television systems
of the Borrower and its Subsidiaries previously furnished to the Lenders as at
the end of such Fiscal Quarter, which report shall be included in the
certificate in the form of Exhibit F to be delivered pursuant to Section 5.03(b)
and Section 5.03(d);
(i) promptly after the filing or receiving thereof, copies of all
reports and notices which the Borrower or any Subsidiary of the Borrower files
under ERISA with the PBGC or the U.S. Department of Labor or which the Borrower
or any Subsidiary of the Borrower receives from such Governmental Person;
(j) promptly after the receipt thereof, notice of any lapse,
termination or relinquishment of any material Governmental Approval (including
any Franchise) from the FCC held by the Borrower or any Subsidiary of the
Borrower or any failure of the FCC to renew or extend any such Governmental
Approval (including any Franchise) for the usual period thereof and of any
complaint or other matter filed with or communicated to the FCC, of which the
Borrower or any Subsidiary of the Borrower has knowledge and which could have a
material adverse effect upon the renewal or extension of any Governmental
Approval (including any Franchise) held by the Borrower or any Subsidiary of the
Borrower;
(k) within 15 days after any change occurs with respect to any
information regarding any Subsidiary of the Borrower contained in the most
recent schedule furnished under this Section 5.03(k) or, if no such schedule has
been furnished, in Schedule 4.01(1), a schedule, in substantially the form of
Schedule 4.01(1), setting forth as of the date such schedule is furnished the
information described in the first sentence of Section 4.01(1);
(l) promptly upon the Borrower's obtaining knowledge thereof, notice
of any issuance of a rating of any of the Borrower's long term Debt (including
borrowings under this Agreement and the Unsecured Debt Documents) or a change in
any such rating; and
(m) such other information respecting the business or properties or
the condition or operations, financial or otherwise, of the Borrower or any of
its Subsidiaries, as the Agent or any Lender may from time to time reasonably
request.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay (i) any principal of any Note when
the same becomes due and payable, or (ii) any interest on any Note or any fees
payable under this Agreement within 2 Business Days after the same becomes due
and payable; or
(b) Any representation or warranty made or deemed made by any Obligor
in or in connection with any Loan Document shall prove to have been incorrect in
any material respect when made; or
(c) (i) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.02 (other than Section 5.02(h) or
(1)) or 5.03(a); or
(ii) The Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement on its part to
be performed or observed, other than those listed in subsections (a)
or (c)(i) above, if such failure shall remain unremedied for 30 days
after the earlier of (A) written notice thereof shall have been given
to the Borrower by the Agent or any Lender and (B) the Borrower's
knowledge of such failure; provided that a breach by the Borrower of
any or all of its financial covenants set forth in Sections 5.01(h),
(i) or (j) may be cured (and thus shall be deemed not to have
occurred) if, within five Business Days after the occurrence of such
breach, the Borrower shall have received from the Venturers capital
contributions in the form of cash or Permitted Cable Systems (whether
or not in connection with the issuance by the Borrower to the
Venturers of additional joint venture units) which, if such capital
contributions had been received by the Borrower prior to the last day
of the Fiscal Period with respect to which the Borrower has breached
any such financial covenants, would have resulted in the Borrower's
compliance with all such covenants whether or not so breached
(deeming, for the purpose of this determination, any such cash capital
contributions received from the Venturers to be an addition to the net
income component of EBIDT of the Borrower and its Subsidiaries for
such Fiscal Period); provided further, however, that the cure
mechanism described in this subclause (c) shall not be available to
the Borrower (x) more than three times during the term of this
Agreement or (y) to cure the breach of any financial covenant
occurring as of the last day of any Fiscal Period if such provision
was availed of to cure any such breach of
financial covenant occurring as of the last day of the immediately
preceding Fiscal Period; or
(d) The Venturers, Century/Texas or the Parent Companies shall fail to
perform or observe (i) any term, covenant or agreement contained in Section 2 or
5 of any Negative Pledge Agreement or (ii) any other term, covenant or agreement
contained in any Negative Pledge Agreement on its respective part to be
performed or observed if such failure shall remain unremedied for 30 days after
the earlier of (A) written notice thereof shall have been given to the Borrower
by the Agent or any Lender and (B) the Borrower's, or any Venturer's or
Century/Texas' or any Parent Company's, as applicable, knowledge of such
failure; or
(e) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt (but excluding Debt evidenced by
the Notes), or in the payment when due of any amount under any Hedging
Agreement, of the Borrower or such Subsidiary (as the case may be), when the
same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt or in such Hedging Agreement, and the aggregate
amount of all such Debt and notional amount of obligations under Hedging
Agreements with respect to which any such failure shall have occurred and be
continuing shall equal or exceed $10,000,000; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any such
Debt or under any such Hedging Agreement and shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect
of such event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt or, in the case of a Hedging Agreement, to permit the
payments owing under such Hedging Agreement to be liquidated; or any such Debt
or any such obligations under Hedging Agreements shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required
prepayment), redeemed, purchased, defeased or liquidated, or an offer to prepay,
redeem, purchase, defease or liquidate such Debt shall be required to be made,
in each case prior to the stated maturity thereof; or
(f) Any Affiliates of the Borrower (other than a Subsidiary of the
Borrower and whether or not acting as debtor-in-possession in a case under the
Federal Bankruptcy Code), or any party in interest in a case involving such
Affiliate under the Federal Bankruptcy Code, shall assert or claim in connection
with any case or proceeding under the Federal Bankruptcy Code or otherwise, or
shall assert or claim in writing in any negotiation regarding any Debt or other
obligation of any such Affiliate, that the assets and liabilities of the
Borrower or any such Subsidiary should be consolidated substantively with the
assets and liabilities of any such Affiliate or shall assert or claim that the
Borrower is liable for any or all of such
Affiliate's liabilities; or
(g) The Borrower, any Subsidiary of the Borrower, either Venturer or
Century/Texas shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower, any such Subsidiary, either Venturer or
Century/Texas seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted or
consented to by it), either such proceeding shall remain undismissed or unstayed
for a period of 60 days, or any of the actions sought in such proceeding
(including the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or for any
substantial part of its property) shall occur; or the Borrower, any such
Subsidiary, either Venturer or Century/Texas shall take any corporate or other
action to authorize any of the actions set forth above in this subsection (g);
or
(h) Any material provision of any Loan Document shall for any reason
cease to be binding on or enforceable against any Obligor party thereto, or any
such Obligor shall so state in writing; or
(i) Any "Event of Default" under and as defined in any Unsecured Debt
Document shall have occurred and be continuing; or any other event shall have
occurred under any Unsecured Debt Document if the effect of such event is to
require any or all of the Additional Unsecured Debt of the Borrower to be
prepaid (other than by a regularly scheduled or permitted prepayment) prior to
the stated maturity thereof; or
(j) Any judgment (including any arbitration award) or order for the
payment of money in excess of $10,000,000 shall be rendered against the Borrower
or any of its Subsidiaries and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order or (ii) there shall
be any period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(k) Xxxxxxx Xxx, who is currently the Chief Executive Officer of the
Parent Companies and Century/Texas, or his estate, and/or members of his
immediate family (which include his grandchildren), and/or trusts wholly for
their benefit, shall fail to own in the aggregate, beneficially and of record,
stock
of Century Communications entitled to cast a majority of the votes at a meeting
of its shareholders with respect to election of a majority of its directors; or
Century Communications shall fail to own 100% of the outstanding capital stock
of Century/Texas; or Century/Texas shall fail to own 100% of the outstanding
capital stock of Century Telecommunications; or Citizens Utilities shall fail to
own 100% of the outstanding capital stock of Citizens Cable; or neither one of
the Venturers shall own at least 50% of the outstanding joint venture interests
in the Borrower; or
(l) There shall occur in the reasonable judgment of the Majority
Lenders any Material Adverse Change; or
(m) Any ERISA Event shall have occurred with respect to a Plan and the
sum of the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then exist
(or, in the case of a Plan with respect to which an ERISA Event described in
clause (c) through (g) of the definition of ERISA Event shall have occurred and
then exist, the liability related thereto) is equal to or greater than
$10,000,000; or
(n) The Borrower or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that it has incurred Withdrawal Liability to
such Multiemployer Plan in an amount which, when aggregated with all other
amounts required to be paid to Multiemployer Plans by the Borrower and its ERISA
Affiliates as Withdrawal Liability, exceeds $10,000,000 or requires payments
exceeding $10,000,000 per annum; or
(o) The Borrower or any ERISA Affiliate shall have been notified by
the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of ERISA,
if as a result of such reorganization or termination the aggregate annual
contributions of the Borrower and its ERISA Affiliates to all Multiemployer
Plans which are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the
respective plan year of each such Multiemployer Plan immediately preceding the
plan year in which the reorganization or termination occurs by an amount
exceeding $10,000,000; or
(p) The grantor of any Franchise of the Borrower or any Subsidiary of
the Borrower shall have revoked or terminated such Franchise or given notice of
its intent to revoke or terminate such Franchise prior to the scheduled
expiration of such Franchise or any Franchise shall expire without renewal,
provided, however, that such a revocation, termination or expiration shall not
constitute an Event of Default if (i) the revocation, termination or expiration
is not reasonably likely to have a Material Adverse Effect, or (ii) in the
instance of an expiration, an application for renewal or extension has been duly
made by the Borrower or the Subsidiary concerned and is being diligently pursued
by the Borrower or the concerned Subsidiary and the Borrower or the Subsidiary
concerned is not prohibited by a final order of a court of competent
jurisdiction from continuing to provide cable service during the pendency of
such application and the Franchise has not been granted to another Person, or
(iii) in the instance of a revocation or termination, the Borrower or the
Subsidiary concerned is not prohibited by final order of a court of competent
jurisdiction from continuing to provide cable service, and the Franchise has not
been granted to another Person; or
(q) Century/Texas shall for any reason cease to manage the Borrower's
or any of its Subsidiaries' cable television system operations pursuant to the
Management Agreement, or either of Century/Texas or the Borrower shall default
in the performance of any of its material obligations under the Management
Agreement;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Majority Lenders, by notice to the Borrower, declare the
Advances, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents to be forthwith due and payable,
whereupon the Advances, all such interest and all such amounts shall become and
be forthwith due and payable, without presentment, demand, protest or further
notice of any kind, all of which are hereby expressly waived by the Borrower;
provided, however, in the case of the occurrence of an Event of Default referred
to in subsection (g) of this Section 6.01 with respect to the Borrower, (A) the
obligation of each Lender to make Advances to the Borrower shall automatically
be terminated and (B) all of the Borrower's Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE VII
THE LENDER AGENTS
SECTION 7.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement or any other Loan Document (including enforcement or collection
of the Notes), the Agent
shall not be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Majority Lenders,
and such instructions shall be binding upon all Lenders; provided, however, that
the Agent shall not be required to take any action which exposes the Agent to
personal liability or which is contrary to any Loan Document or applicable law.
SECTION 7.02. Lender Agents' Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each of the Lender
Agents: (i) may treat the payee of any Note as the holder thereof until the
Agent receives and accepts an Assignment and Acceptance entered into by the
Lender which is the payee of such Note, as assignor, and an Eligible Assignee,
as assignee, as provided in Section 8.07; (ii) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with any Loan
Document or for any financial projection or other information furnished by the
Borrower before or after the execution of this Agreement; (iv) shall not have
any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of any Loan Document on the part of the
Borrower or any other Person or to inspect the property (including the books and
records) of the Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
telegram, cable or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. The Lender Agents and their Affiliates. With respect to
its Commitment and the Advances made by it and the Notes issued to it, each of
the Lender Agents, in its capacity as a Lender hereunder, shall have the same
rights and powers under this Agreement as any other Lender and may exercise the
same as though it were not a Lender Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include each of the Lender Agents
in their respective
individual capacities. Each of the Lender Agents and their respective affiliates
may accept deposits from, lend money to, act as trustee under indentures of, and
generally engage in any kind of business with, the Borrower, any of its
Subsidiaries and any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if such Lender Agent were not a Lender
Agent and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. (a) Each Lender acknowledges
that it has, independently and without reliance upon any Lender Agent or any
other Lender and based on the financial statements referred to in Section 4.01
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon any Lender
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
(b) Without limiting the foregoing, each Lender acknowledges that none
of the Lender Agents is responsible for the forecasts and projections received
from time to time by such Lender whether or not such forecasts or projections
were prepared by the Borrower, any other Loan Party, any of the Lender Agents or
any other party or based on information provided by any such party. None of the
Lender Agents makes any representation or warranty whatsoever as to the truth,
accuracy or content of the information contained therein.
SECTION 7.05. Indemnification by Lenders. The Lenders agree to
indemnify each of the Lender Agents (to the extent not reimbursed by the
Borrower), ratably according to the respective principal amounts of the A Notes
then owing to each of them (or if no A Notes are at the time outstanding or if
any A Notes are held by persons which are not Lenders ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against any Lender Agent in any way
relating to or arising out of this Agreement or any action taken or omitted by
any Lender Agent under this Agreement; provided that no Lender shall be liable
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting from such
Lender Agent's, gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender agrees to reimburse such Lender Agent promptly upon
demand for its ratable share of any out-of-pocket expenses (including counsel
fees) incurred by much Lender Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or
legal advice in respect of rights or responsibilities under, this Agreement or
any other Loan Document, or in connection with any refinancing or restructuring
of the credit arrangements provided pursuant to the Loan Documents, including in
the nature of a workout or of any insolvency or bankruptcy proceedings to the
extent that such Lender Agent is not reimbursed for such expenses by the
Borrower.
SECTION 7.06. Successor Agent, Etc. (a) The Agent may resign at any
time by giving written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Majority Lenders. Upon any such
resignation or removal, the Majority Lenders shall have the right to appoint a
successor Agent so long as all of the long-term public senior debt securities of
such successor Agent are rated at least "BBB-" by Standard & Poor's, a division
of XxXxxx-Xxxx, Inc., or "Baa3" by Xxxxx'x Investors Service, Inc. at the time
of its acceptance of appointment as successor Agent. If no successor Agent shall
have been so appointed by the Majority Lenders, and shall have accepted such
appointment, within 30 days after the retiring Agent's giving of notice of
resignation or the Majority Lenders', removal of the retiring Agent, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be a commercial bank organized under the laws of the United States of
America or of any State thereof, having a combined capital and surplus of at
least $50,000,000 and all of whose long-term public senior debt securities are
rated at least "BBB-" by Standard & Poor's, a division of XxXxxx-Xxxx, Inc., or
at least "Baa3" by Xxxxx'x Investors Service, Inc. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring, Agent, and the retiring Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Article VII
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
(b) The Syndication Agent and any Co-Agent may resign at any time by
giving written notice thereof to the other Lender Agents, the Lenders and the
Borrower and may be removed at any time with or without cause by the Majority
Lenders.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement or the A Notes, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Majority Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Article III, (b) increase or extend the Commitments
of the Lenders or subject the Lenders to any additional obligations, (c) reduce
the principal of, or interest on, the A Notes or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of principal of,
or interest on, the A Notes or any fees or other amounts payable hereunder, (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the A Notes, or the number of Lenders, which shall be required for the
Lenders or any of them to take any action hereunder, (f) amend the Guaranty
Agreement (other than to join a Subsidiary of the Borrower as a party thereto as
provided in Section 5.02(f)) or release any Subsidiary of the Borrower from its
obligations under the Guarantee Agreement or (g) amend this Section 8.01; and
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Lenders required above to take such
action, affect the rights or duties of the Agent under this Agreement or any
Note. No amendment or waiver of any provision of the B Notes nor consent to any
departure by the Borrower therefrom shall in any event be effective after an
Event of Default has occurred and is continuing or the Advances have been
declared or have become due and payable in accordance with the last paragraph of
Section 6.01, unless the Majority Lenders shall otherwise consent in writing.
SECTION 8.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier, telegraphic,
telex or cable communication) and mailed, telecopied, telegraphed, telexed,
cabled or delivered, if to the Borrower, at its address at c/o Century
Communications Corp., 00 Xxxxxx Xxxxxx, Xxx Xxxxxx, Xxxxxxxxxxx 00000,
Attention: Treasurer; if to any Lender, at its Domestic Lending Office specified
opposite its name on Schedule I; if to any other Lender, at its Domestic Lending
Office specified in the Assignment and Acceptance pursuant to which it became a
Lender; and if to the Agent, at its address at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Media & Communications; or, as to each party,
at such other address as shall be designated by such party in a written notice
to the other parties. All such notices and communications shall be effective
when received by the addressee thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs, Expenses and Taxes. (a) The Borrower agrees to
pay on demand all reasonable costs and expenses of the Agent and the Syndication
Agent in connection with the syndication of the Commitments under this Agreement
and the preparation, execution, delivery, administration (other than routine
administrative expenses), modification, waiver and amendment of this Agreement,
the Notes and the other documents to be delivered hereunder, including the
reasonable fees and out-of-pocket expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. The Borrower further agrees to pay on
demand all costs and expenses, if any (including reasonable counsel fees and
expenses) of the Agent and each of the Lenders, in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise and
whether or not resulting in a settlement of any claim, proceeding or case) of,
or legal advice in respect of rights and responsibilities under, this Agreement,
the Notes and the other documents to be delivered hereunder or in connection
with the refinancing or restructuring of the credit arrangements provided
pursuant to the Loan Documents, including in the nature of a workout or
insolvency or bankruptcy proceedings, including reasonable counsel fees and
expenses in connection with the enforcement of rights under this Section
8.04(a).
(b) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender other
than on the last day of the Interest Period for such Eurodollar Rate Advance, as
a result of a payment or Conversion pursuant to Section 2.08(f) or acceleration
of the maturity of the Notes pursuant to Section 6.01 or for any other reason,
the Borrower shall, upon demand by such Lender (with a copy of much demand to
the Agent), pay to the Agent for the account of such Lender any amounts required
to compensate such Lender for any additional losses, costs or expenses which it
may reasonably incur as a result of such payment or Conversion, including any
loss, cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such
Eurodollar Rate Advance. A certificate as to such amounts, submitted to the
Borrower and the Agent by such Lender, shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender to or for the credit or the
account
of the Borrower or its Subsidiaries against any and all of the Obligations of
the Borrower and such Subsidiaries now or hereafter existing under this
Agreement, any Note held by such Lender and any other Loan Document, whether or
not such Lender shall have made any demand under this Agreement or such Note or
other Loan Documents and although such obligations may be unmatured. Each Lender
agrees promptly to notify the Borrower after any such set-off and application
made by such Lender, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
under this Section 8.05 are in addition to other rights and remedies (including
other rights of set-off) which such Lender may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Agent and when the
Agent shall have been notified by each Lender that such Lender has executed it,
and thereafter this Agreement shall be binding upon and inure to the benefit of
the Borrower, each Lender Agent and each Lender and their respective successors
and assigns, except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Lenders. Any attempted or purported assignment in contravention of the preceding
sentence shall be null and void.
SECTION 8.07. Assignments and Participations. (a) Each Lender may and,
if demanded by the Borrower (following a demand by the Lender pursuant to
Section 2.11(a) and 2.11(b)) upon at least five Business Days' notice to such
Lender and the Agent, shall assign to one or more banks or other entities all or
a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the A Note or A Notes held by it); provided,
however, (i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement other than any B
Advance or B Note, (ii) except in the case of assignments to Affiliates or other
Lenders, the amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$5,000,000 and shall be an integral multiple of $1,000,000, (iii) each such
assignment shall be to an Eligible Assignee, (iv) each such assignment made as a
result of a demand by the Borrower shall be arranged by the Borrower after
consultation with the Agent and shall be either an assignment of all of the
rights and obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made concurrently with
another such assignment or other such assignments that together cover all of the
rights and obligations of the assigning Lender under this Agreement, (v) no
Lender shall be obligated to make any such assignment as a result of a demand by
the Borrower unless and until such Lender shall have received one or more
payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement and (vi) the parties
to each such assignment shall execute and deliver to the Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any A Note or A Notes subject to such assignment and a processing and
recordation fee of $3,000. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five days after the execution
and delivery thereof to the Agent, (x) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and (y) the Lender assignor thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with any Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document furnished
pursuant to any Loan Document; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Obligor or the performance or observance by any
Obligor of any of its obligations under this Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or thereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 4.01 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon any Lender Agent,
such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under any Loan Document; (v)
such assignee confirms that it is an Eligible Assignee; (vi) such assignee
appoints and authorizes each Lender Agent to take such action as agent on its
behalf and to exercise
such powers under any Loan Document as are delegated to such Lender Agent by the
terms hereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of any Loan Document are
required to be performed by it as a Lender.
(c) The Agent shall maintain at its address referred to in Section
8.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the A Advances owing to, each Lender
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Lender Agents and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee representing that it is an Eligible Assignee,
together with any A Note or A Notes subject to such assignment, the Agent shall,
if such Assignment and Acceptance has been completed and is in substantially the
form of Exhibit H, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the Agent
in exchange for the surrendered A Note or A Notes a new A Note to the order of
such Eligible Assignee in an amount equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Lender has
retained a Commitment hereunder, a new A Note to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new A
Note or A Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered A Note or A Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1.
(e) Each Lender may assign to one or more banks or other entities any
B Note or B Notes held by it.
(f) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitment and the Advances owing
to it); provided, however, (i) such Lender's obligations under this Agreement
(including its Commitment to the Borrower hereunder and the Advances owing to it
and the Note or Notes held by it) shall remain unchanged, (ii) such Lender shall
remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the Borrower, the Agent and the other Lenders shall continue to deal,
solely and directly with such Lender in connection with such Lender's rights and
obligation under this Agreement and (iv) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Obligor
therefrom, except to the extent that such amendment, waiver or consent would
reduce the principal of, or interest on, the Advances or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or postpone any date fixed for any payment of principal of, or
interest on, the Advances or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation.
(g) Any Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 8.07, disclose
to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower or any other Obligor furnished to such
Lender by or on behalf of the Borrower or such Obligor; provided that, prior to
any such disclosure, the assignee or participant or proposed assignee or
participant shall agree to preserve the confidentiality of any confidential
information relating to the Borrower or such Obligor received by it from such
Lender.
(h) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including the Advances owing to it and the
Notes held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.
SECTION 8.08. Indemnification by the Borrower. The Borrower agrees to
indemnify and hold harmless each Lender Agent, each Lender and each of their
respective Affiliates, and each of their respective officers, directors,
employees, agents, advisors, representatives, and controlling persons (each, an
"Indemnified Party," from and against any and all claims, damages, liabilities,
obligations, losses, penalties, actions, judgments, suits, costs, expenses and
disbursements (including fees and disbursements of counsel and reasonable
allocated costs of in-house counsel) of any kind or nature whatsoever which may
be imposed on, incurred by or asserted against any Indemnified Party in
connection with or arising out of, or in connection with the preparation of a
defense of, (a) any investigation, litigation, or proceeding related to any
acquisition or proposed acquisition by the Borrower, or by any Subsidiary or
Affiliate of the Borrower, of all or any portion of the stock or substantially
all the assets of any Person or (b) any other investigation, litigation or
proceeding involving the Borrower or any of its Affiliates, in each case whether
or not such investigation, litigation or proceeding is brought by the Borrower
or any of its
Affiliates or any of their directors, shareholders or creditors or an
Indemnified Party is otherwise a party thereto, except to the extent that such
claim, damage, liability, obligation, loss, penalty, action, judgment, suit,
cost, expense or disbursement is found in a final judgment by a court of
competent jurisdiction to have resulted from (i) the gross negligence or willful
misconduct of such Indemnified Party or such Indemnified Party's Affiliates, or
(ii) if such Indemnified Party is a Lender Agent, a Lender or any of their
respective Affiliates, the gross negligence or willful misconduct of such
Indemnified Party's officers, directors, employees, agent, advisors,
representatives and controlling persons or (iii) if such Indemnified Party is an
officer, director, employee, agent, advisor, representative or controlling
person of another Indemnified Party, the gross negligence or willful misconduct
of such other Indemnified Party.
SECTION 8.09. Confidentiality. In connection with the negotiation and
administration of this Agreement and the other Loan Documents, the Borrower has
furnished and will from time to time furnish to the Agent and the Lenders (each,
a "Recipient") written information which is identified to the Recipient in
writing when delivered as confidential (such information, other than any such
information which (a) was publicly available, or otherwise known to the
Recipient, at the time of disclosure, (b) subsequently becomes publicly
available other than through any act or omission by the Recipient or (c)
otherwise subsequently becomes known to the Recipient other than through a
Person whom the Recipient knows to be acting in violation of his or its
obligations to the Borrower, being hereinafter referred to as "Confidential
Information"). The Recipient will treat confidentially any Confidential
Information in accordance with such procedures as the Recipient applies
generally to information of that nature. It is understood, however, that the
foregoing will not restrict the Recipient's ability to freely exchange such
Confidential Information with (x) directors, employees, auditors, accountants or
counsel of such Recipient or its Affiliates and (y) current or prospective
assignees of and participants in the Recipient's position herein, but in the
case of prospective assignees of and participants in the Recipient's position
herein, the Recipient's ability to so exchange Confidential Information shall be
conditioned upon any such prospective assignee's or participant's entering into
an understanding as to confidentiality similar to this provision. It is further
understood that the foregoing will not prohibit the disclosure of any or all
Confidential Information if and to the extent that such disclosure may be
required (i) by a regulatory agency or otherwise in connection with an
examination of the Recipient's records by appropriate authorities, (ii) pursuant
to court order, subpoena or other legal process or in connection with any
pending or threatened litigation, (iii) pursuant to any order, regulation or
ruling applicable to such Recipient or at the express direction of any other
authorized Governmental Person, (iv) as may be required or appropriate in any
report, statement or testimony submitted to any municipal, state or Federal
regulatory
body having or claiming to have jurisdiction over such Recipient or to the
Federal Reserve Board or the FDIC or similar organizations (whether in the
United States or elsewhere) or their successors, (v) otherwise as required by
law, or (vi) in order to protect its interests or its rights or remedies
hereunder or under the other Loan Documents; in the event of any required
disclosure under clause (ii), (iii), (iv) or (v) above, the Recipient agrees to
use reasonable efforts to inform the Borrower as promptly as practicable. The
obligations of each Lender under this Section 8.09 shall supersede and replace
the obligations of such Lender under any confidentiality agreement in respect of
this financing signed and delivered or accepted by such Lender prior to the
Effective Date.
SECTION 8.10. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 8.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 8.12. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE LENDER
AGENTS AND THE LENDERS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT.
SECTION 8.13. Submission to Jurisdiction; Waivers. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the Courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agree not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail return
receipt requested (or any substantially similar form of mail), postage prepaid,
to the Borrower at the address set forth in subsection 8.02 or at such other
address of which the Agent shall have been notified
pursuant thereto with a copy to Xxxxx Xxxxxxxxxx & Xxxxx, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention Xxxxx X. Xxxxxxxxxx, Esq.; and
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction.
SECTION 8.14. Acknowledgments. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the Notes and the other Loan Documents;
(b) none of the Lender Agents or the Lenders has any fiduciary
relationship to the Borrower, and the relationship between the Lender Agents and
the Lenders, on one hand, and the Borrower, on the other hand, is solely that of
debtor and creditor; and
(c) no joint venture exists among the Borrower and the Lenders.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers hereunto duly authorized, as of the
date first above written.
Borrower
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CITIZENS CENTURY CABLE TELEVISION
VENTURE
BY: CENTURY TELECOMMUNICATIONS
VENTURE CORP., as a Venturer
By: Xxxxx Xxxxxxxxx
Title: Chief Financial Officer
BY: CITIZENS CABLE COMPANY, as a
Venturer
By: Xxxxxxx Xxxxx
Title: Secretary
AGENT
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SOCIETE GENERALE, NEW YORK BRANCH,
as Agent
By: Xxxxxx Xxxxxx
Title: Vice President
SYNDICATION AGENT
-----------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Syndication
Agent
By: Xxxxxxx Xxxx
Title: Vice President
CO-AGENTS
---------
CORESTATES BANK, N.A., as Co-Agent
By: Xxxxxx X. Xxxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON,
as Co-Agent
By: Xxxx X. Xxxxxxxxx
Title: Vice President
LTCB TRUST COMPANY, as Co-Agent
By: Xxxxxxx Xxxxxx
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION, as
Co-Agent
By: Xxx Xxxxxxxxx
Title: Assistant Vice President
LENDERS
-------
SOCIETE GENERALE, NEW YORK BRANCH
By: Xxxxxx Xxxxxx
Title: Vice President
BANK OF AMERICA ILLINOIS
By: Xxxxxxx Xxxx
Title: Vice President
CORESTATES BANK, N.A.
By: Xxxxxx X. Xxxxxxxx
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: Xxxx X. Xxxxxxxxx
Title: Vice President
LTCB TRUST COMPANY
By: Xxxxxxx Xxxxxx
Title: Senior Vice President
PNC BANK, NATIONAL ASSOCIATION
By: Xxx Xxxxxxxxx
Title: Assistant Vice President
BANK OF HAWAII
By: J. Xxxxx Xxxxxxx
Title: Vice President
CIBC INC.
By: Xxxxx Xxxxx
Title: Director
FLEET NATIONAL BANK
By: Xxxxxxxxx X. Xxxxxx
Title: Assistant Vice President
MELLON BANK, N.A.
By: Xxxx X. Xxxxxxxxx
Title: Assistant Vice President
SCHEDULE I
Applicable Lending Offices
U.S. $200,000,000 Credit Agreement dated as of April 15, 1997
================================================================================
NAME OF LENDER DOMESTIC LENDING EURODOLLAR LENDING
OFFICE OFFICE
--------------------------------------------------------------------------------
Societe Generale, New 1221 Avenue of the 1221 Avenue of the
Xxxx Xxxxxx Xxxxxxxx Xxxxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
--------------------------------------------------------------------------------
Bank of America Illinois 0000 Xxxxxxx Xxxx. 0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxx Attn: Xxxxxxx Xxxxxxxxxx
--------------------------------------------------------------------------------
The First National Bank Commercial Loan Services Commercial Loan Services
of Boston 000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
XX 00-00-00 XX 00-00-00
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxxx Attn: Xxxxx Xxxxxxxxxxx
--------------------------------------------------------------------------------
CoreStates Bank, N.A. 0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx
XX-0-0-00-00 XX-0-0-00-00
Xxxxxxxxxxxx, XX 00000 Xxxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx Attn: Xxxx Xxxxxxxx
--------------------------------------------------------------------------------
LTCB Trust Company 000 Xxxxxxxx 000 Xxxxxxxx
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxx Attn: Xxxxxxx Xxxxx
--------------------------------------------------------------------------------
PNC Bank, National 0000 Xxxxxx Xxxxxx 0000 Xxxxxx Xxxxxx
Association Mail Stop F2-F070-21-1 Mail Stop F2-F070-21-1
Philadelphia, PA 19103 Xxxxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxxxx Attn: Xxx Xxxxxxxxxxx
--------------------------------------------------------------------------------
Bank of Hawaii X.X. Xxx 0000 X.X. Xxx 0000
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx Attn: Xxxxx Xxxxxxx
--------------------------------------------------------------------------------
CIBC Inc. 2 Paces West 2 Paces West
2727 Paces Ferry Road, 0000 Xxxxx Xxxxx Xxxx,
Xxxxx 0000 Xxxxx 0000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx Attn: Xxxxx Xxxxx
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Fleet National Bank 0 Xxxxxxx Xxxxxx 0 Xxxxxxx Xxxxxx
0xx Xxxxx 0xx Xxxxx
XX-XX-0000 MA-OF-0030
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Alexander Iumov Attn: Alexander Iumov
--------------------------------------------------------------------------------
Mellon Bank, N.A. Xx 0000, 0 Xxxxxx Xxxx Xx 0000, 1 Mellon Bank
Center Center
000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX Xxxxxxxxxx, XX
00000-0000 15258-0001
Attn: Xxxxx XxXxxxxx Attn: Xxxxx XxXxxxxx
================================================================================
SCHEDULE II
Lenders and Commitments
U.S. $200,000,000 Credit Agreement dated as of April 15, 1997
================================================================================
LENDER COMMITMENT
--------------------------------------------------------------------------------
Societe Generale, New York Branch $30,000,000
--------------------------------------------------------------------------------
Bank of America Illinois $30,000,000
--------------------------------------------------------------------------------
The First National Bank of Boston $20,000,000
--------------------------------------------------------------------------------
CoreStates Bank, N.A. $20,000,000
--------------------------------------------------------------------------------
LTCB Trust Company $20,000,000
--------------------------------------------------------------------------------
PNC Bank, National Association $20,000,000
--------------------------------------------------------------------------------
Bank of Hawaii $15,000,000
--------------------------------------------------------------------------------
CIBC Inc. $15,000,000
--------------------------------------------------------------------------------
Fleet National Bank $15,000,000
--------------------------------------------------------------------------------
Mellon Bank, N.A. $15,000,000
--------------------------------------------------------------------------------
TOTAL $200,000,000
===============================================================================
SCHEDULE 4.01(l)
Subsidiaries
------------
SCHEDULE 4.01(m)
Franchises
----------
SCHEDULE 4.01(r)
Debt and Leases
---------------
SCHEDULE 4.01(w)
Subscribers
-----------
SCHEDULE 6.01(c)
Permitted Cable Systems
-----------------------
