EXECUTION COPY
CABLEVISION MFR, INC.
-----------
$1,400,000,000
FIRST
AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of May 28, 1998
TORONTO DOMINION (TEXAS), INC.
as Arranging Agent and as
Administrative Agent
THE BANK OF NEW YORK
THE BANK OF NOVA SCOTIA
THE CANADIAN IMPERIAL BANK OF COMMERCE
NATIONSBANK, N.A.
THE CHASE MANHATTAN BANK
as Managing Agents
BANK OF MONTREAL, CHICAGO BRANCH
BARCLAYS BANK PLC
FLEET BANK, N.A.
ROYAL BANK OF CANADA
as Agents
BANQUE PARIBAS
CREDIT LYONNAIS
BANKBOSTON, N.A.
THE FIRST NATIONAL BANK OF CHICAGO
MELLON BANK, N.A.
SOCIETE GENERALE, NEW YORK BRANCH
as Co-Agents
THE BANK OF NEW YORK
THE BANK OF NOVA SCOTIA
as Co-Syndication Agents
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01 Certain Defined Terms...........................................2
Section 1.02 Accounting Terms and Determinations............................17
ARTICLE II
LOANS
Section 2.01 Loans..........................................................17
Section 2.02 Manner of Borrowing; Conversion and Continuation...............18
Section 2.03 Reductions and Changes of Commitments.........................19
Section 2.04 Commitment Fee.................................................21
Section 2.05 Notes..........................................................22
Section 2.06 Lending Offices................................................22
Section 2.07 Several Obligations; Remedies Independent......................22
Section 2.08 Use of Proceeds................................................22
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01 Prepayments....................................................22
Section 3.02 Repayment of Loans.............................................23
Section 3.03 Interest.......................................................23
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
Section 4.01 Payments.......................................................24
Section 4.02 Pro Rata Treatment.............................................24
Section 4.03 Computations...................................................25
Section 4.04 Non-Receipt of Funds by the Administrative Agent...............25
Section 4.05 Sharing of Payments, Etc.......................................25
Section 4.06 No Reductions..................................................26
Section 4.07 Taxes..........................................................26
ARTICLE V
YIELD PROTECTION AND ILLEGALITY
Section 5.01 Additional Costs in Respect of Loans...........................27
Section 5.02 Limitation on Types of Loans...................................29
Section 5.03 Illegality.....................................................29
Section 5.04 Certain Conversions of Loans Pursuant to Section
5.01 or 5.03..................................................29
Section 5.05 Compensation...................................................29
Section 5.06 Replacement of Banks...........................................30
ARTICLE VI
GUARANTEE.................................31
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01 Initial Loan...................................................32
Section 7.02 Each Loan......................................................34
ii
ARTICLE VIII
REPRESENTATIONS
Section 8.01 Existence and Power............................................34
Section 8.02 Subsidiaries...................................................35
Section 8.03 Authority; No Conflict.........................................35
Section 8.04 Financial Condition............................................35
Section 8.05 Litigation; Etc................................................36
Section 8.06 Titles and Liens...............................................36
Section 8.07 Regulation U...................................................36
Section 8.08 Taxes..........................................................36
Section 8.09 Other Credit Agreements........................................37
Section 8.10 Full Disclosure................................................37
Section 8.11 No Default.....................................................37
Section 8.12 Approval of Regulatory Authorities.............................37
Section 8.13 Binding Agreements.............................................37
Section 8.14 Franchises.....................................................38
Section 8.15 Collective Bargaining Agreements...............................38
Section 8.16 Investments...................................................38
ARTICLE IX
PARTICULAR COVENANTS OF THE COMPANY AND THE GUARANTORS
Section 9.01 Financial Statements and Other Information.....................38
Section 9.02 Taxes and Claims...............................................40
Section 9.03 Insurance......................................................40
Section 9.04 Maintenance of Existence; Conduct of Business..................40
Section 9.05 Maintenance of and Access to Properties........................40
iii
Section 9.06 Compliance with Applicable Laws................................41
Section 9.07 Litigation.....................................................41
Section 9.08 New Subsidiaries...............................................41
Section 9.09 Franchises.....................................................41
Section 9.10 Indebtedness...................................................41
Section 9.11 Contingent Liabilities.........................................42
Section 9.12 Liens..........................................................43
Section 9.13 Leases.........................................................43
Section 9.14 Mergers, Acquisitions and Dispositions, Etc....................43
Section 9.15 Investments....................................................45
Section 9.16 Restricted Payments............................................46
Section 9.17 Business.......................................................46
Section 9.18 Transactions with Affiliates...................................46
Section 9.19 Issuance of Stock..............................................47
Section 9.20 Operating Cash Flow............................................47
Section 9.21 Cash Flow Ratio................................................47
ARTICLE X
DEFAULTS
Section 10.01 Events of Default..............................................48
ARTICLE XI
THE ADMINISTRATIVE AGENT
Section 11.01 Appointment, Powers and Immunities.............................51
Section 11.02 Reliance by Administrative Agent...............................51
Section 11.03 Defaults.......................................................51
iv
Section 11.04 Rights as a Bank...............................................52
Section 11.05 Indemnification................................................52
Section 11.06 Non-Reliance on Administrative Agent and Other Banks...........52
Section 11.07 Failure to Act.................................................53
Section 11.08 Resignation or Removal of Administrative Agent.................53
Section 11.09 Agency Fee.....................................................53
ARTICLE XII
MISCELLANEOUS
Section 12.01 No Waiver......................................................53
Section 12.02 Notices........................................................54
Section 12.03 Expenses, Etc..................................................54
Section 12.04 Amendments, Etc................................................54
Section 12.05 Successors and Assigns.........................................55
Section 12.06 Survival.......................................................58
Section 12.07 Senior Indebtedness............................................58
Section 12.08 Conditions to Effectiveness....................................59
Section 12.09 Liability of General Partners and Other Persons................59
Section 12.10 Counterparts...................................................59
Section 12.11 Waiver.........................................................59
Section 12.12 Entire Agreement...............................................59
Section 12.13 Governing Law..................................................59
Section 12.14 Captions, Etc..................................................59
Section 12.15 Waiver of Certain Defenses.....................................59
Section 12.16 Release; Acceptance of Release.................................60
Section 12.17 Authorization of Third Parties to Deliver Information
and Discuss Affairs............................................60
v
Section 12.18 Termination of 1996 Agreement and 1996 Pledge
Agreement and Release of Security Interests....................60
Section 12.19 CSC Agreement..................................................61
Section 12.20 Acknowledgement................................................61
vi
Schedule 2.02(a)(i) Form of Notice of Loan
Schedule 2.02(c) Form of Notice of Conversion
and Continuation
Schedule 2.06 Applicable Lending Offices
Schedule 4.07(c) Form of Certificate of Non-US Bank
Schedule 8.02 Subsidiaries
Schedule 8.03 Required Consents and
Governmental Approvals
Schedule 8.05 Existing Litigation
Schedule 8.14 Existing Franchises
Schedule 9.10 Existing Indebtedness
Schedule 9.11 Existing Guarantees
Schedule 9.12 Existing Liens
Schedule 9.15 Existing Investments
Schedule 12.02 Addresses for Notices
EXHIBIT A Form of Note
EXHIBIT B Form of Compliance Certificate
EXHIBIT C Form of Subscribers' Certificate
EXHIBIT D(1) Form of Certificate as to
Quarterly Financial Statements
EXHIBIT D(2) Form of Certificate as to Annual
Financial Statements
EXHIBIT E Form of Opinion of General Counsel
to the Obligors
EXHIBIT F(1) Form of Opinion of Special New
York Counsel to the Obligors
EXHIBIT F(2) Form of Opinion of Special New Jersey
Counsel to the Obligors
EXHIBIT F(3) Form of Opinion of Special FCC Counsel
Counsel to the Obligors
EXHIBIT G Form of Opinion of Special New
York Counsel to the
Administrative Agent
EXHIBIT H Form of Assignment and Acceptance
vii
FIRST AMENDED AND RESTATED CREDIT AGREEMENT dated as of May 28, 1998 among
CABLEVISION MFR, INC., a Delaware corporation (the "Company"), CSC HOLDINGS,
INC. (formerly known as Cablevision Systems Corporation), a Delaware corporation
("CSC"), the Guarantors (as defined below) which are parties hereto, the lenders
which are parties hereto, together with their respective successors and assigns
(the "Banks"), and TORONTO DOMINION (TEXAS), INC., as Arranging Agent and as
Administrative Agent, THE BANK OF NEW YORK, THE BANK OF NOVA SCOTIA, THE
CANADIAN IMPERIAL BANK OF COMMERCE, NATIONSBANK, N.A. and THE CHASE MANHATTAN
BANK, as Managing Agents, BANK OF MONTREAL, CHICAGO BRANCH, BARCLAYS BANK, PLC,
FLEET BANK, N.A., and ROYAL BANK OF CANADA, as Agents, BANQUE PARIBAS, CREDIT
LYONNAIS, BANKBOSTON, N.A., THE FIRST NATIONAL BANK OF CHICAGO, MELLON BANK,
N.A. and SOCIETE GENERALE, NEW YORK BRANCH as Co-Agents, and THE BANK OF NEW
YORK and THE BANK OF NOVA SCOTIA as Co-Syndication Agents.
WHEREAS, on September 5, 1996, the Company, CSC, the Guarantors named
therein, the several banks whose names are set forth on the signature pages
thereto, and Toronto Dominion (Texas), Inc., as Arranging Agent and as
Administrative Agent, The Bank of New York, The Bank of Nova Scotia, The
Canadian Imperial Bank of Commerce, NationsBank of Texas, N.A. and The Chase
Manhattan Bank, as Agents, Bank of Montreal, Chicago Branch, Fleet Bank, N.A.,
Mellon Bank, N.A. and Royal Bank of Canada, as Co-Agents, The Chase Manhattan
Bank, as Syndication Agent, and NationsBank of Texas, N.A., as Documentation
Agent, entered into a Credit Agreement (such Credit Agreement being referred to
herein as the "1996 Agreement");
WHEREAS, the Company and its Subsidiaries are engaged in the business of
developing, constructing, owning, acquiring, altering, repairing, financing,
operating, maintaining, publishing, distributing, promoting and otherwise
exploiting cable television systems and related businesses, including, without
limitation, telecommunications services, data transmission and telephony
activities; and
WHEREAS, the Banks have extended credit to the Company, by the making of
loans to the Company, in reliance upon collateral security furnished by the
Company and its Subsidiaries; the Company and the Guarantors have requested that
the Total Commitment (as defined in the 1996 Agreement) be increased and that
such collateral security be released; the proceeds of the Loans hereunder are to
be employed in accordance with Section 2.08 hereof; and each of the Obligors and
the Guarantors expects to derive benefit, directly or indirectly, from such
loans.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01 Certain Defined Terms. As used herein, the following terms
shall have the following meanings (all terms defined in this Article I or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vice versa):
"1996 Agreement" shall have the meaning given to such term in the
first "Whereas" clause of this Agreement.
"1996 Banks" shall have the meaning given to the term "Banks" in the
1996 Agreement.
"1996 Pledge Agreement" shall mean the "Pledge Agreement" as such
term is used in the 1996 Agreement.
"1996 Security Agent" shall mean Toronto Dominion (Texas), Inc., in
its capacity as Security Agent under the 1996 Pledge Agreement.
"Accumulated Funding Deficiency" shall mean an accumulated funding
deficiency as defined in Section 302 of ERISA.
"Additional Costs" shall have the meaning given to such term in
Section 5.01 hereof.
"Administrative Agent" shall mean Toronto Dominion (Texas), Inc. in
its capacity as administrative agent for the Banks hereunder and its successors
in such capacity.
"Affected Loans" shall have the meaning given to such term in
Section 5.04 hereof.
"Affected Type" shall have the meaning given to such term in Section
5.04 hereof.
"Affiliate" shall mean, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "control" (including,
with its correlative meanings, "controlled by" and "under common control with")
shall mean possession, directly or indirectly, of the power to direct or cause
the direction of management or policies (whether through ownership of securities
or partnership or other ownership interests, by contract or otherwise), provided
that, in any event, any Person which owns directly or indirectly 10% or more of
the securities having ordinary voting power for the election of directors or
other governing body of a corporation or 10% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or other Person; and
provided further that no individual shall be an Affiliate of a corporation or
partnership solely by
2
reason of his or her being an officer, director or partner of such entity,
except in the case of a partner if his or her interests in such partnership
shall qualify him or her as an Affiliate.
"Aggregate Commitment" shall mean, at any time, as to each Bank, the
sum of such Bank's Commitment, CSC Commitment and New York/New Jersey Commitment
at such time.
"Agreement" shall mean this First Amended and Restated Credit
Agreement, including all schedules and exhibits hereto, as the same may be
amended, supplemented or modified from time to time.
"Annualized Operating Cash Flow" shall mean, as at any date, an
amount equal to Operating Cash Flow for the period of three complete consecutive
calendar months ending on or most recently prior to such date, multiplied by
four.
"Applicable Lending Office" shall mean, with respect to each Bank,
for each type of Loan, the lending office of such Bank (or of an affiliate of
such Bank) designated for such type of Loan in Schedule 2.06 hereto or such
other office of such Bank (or of an affiliate of such Bank) as such Bank may
from time to time specify to the Administrative Agent and the Company as the
office by which its Loans of such type are to be made and maintained.
"Applicable Margin" shall mean:
(a) With respect to Base Rate Loans, 0.250% at all times during any
Applicable Period if the CSC Cash Flow Ratio as at the end of the
immediately preceding Quarter was greater than 6.00 to 1; .125% at all
times during any Applicable Period if the CSC Cash Flow Ratio as at the
end of the immediately preceding Quarter was less than or equal to 6.00 to
1 and greater than 5.50 to 1; and 0.000% at all times during any
Applicable Period if the CSC Cash Flow Ratio as at the end of the
immediately preceding Quarter was less than or equal to 5.50 to 1; and
(b) With respect to Eurodollar Loans, 1.125% at all times during any
Applicable Period if the CSC Cash Flow Ratio as at the end of the
immediately preceding Quarter was greater than 6.00 to 1; 0.875% at all
times during any Applicable Period if the CSC Cash Flow Ratio as at the
end of the immediately preceding Quarter was less than or equal to 6.00 to
1 and greater than 5.50 to 1; 0.750% at all times during any Applicable
Period if the CSC Cash Flow Ratio as at the end of the immediately
preceding Quarter was less than or equal to 5.50 to 1 and greater than
5.00 to 1; 0.600% at all times during any Applicable Period if the CSC
Cash Flow Ratio as at the end of the immediately preceding Quarter was
less than or equal to 5.00 to 1 and greater than 4.50 to 1; and 0.400% at
all times during any Applicable Period if the CSC Cash Flow Ratio as at
the end of the immediately preceding Quarter was less than or equal to
4.50 to 1;.
For purposes of this definition, the CSC Cash Flow Ratio as at the end of any
Quarter (the "Subject Quarter") shall be determined based upon (i) for the
Quarter ended immediately prior to the Effective Date, the Compliance
Certificate delivered in accordance with Section 7.01 of the CSC Credit
Agreement, and (ii) for each Subject Quarter commencing thereafter, (x) the
3
Annualized Operating Cash Flow (as defined in the CSC Agreement) as set forth in
the Subscribers' Certificate (as defined in the CSC Credit Agreement) delivered
pursuant to Section 9.01(e) of the CSC Credit Agreement with respect to the
second month of such Subject Quarter and (y) the aggregate outstanding principal
amount of Indebtedness of CSC, the Restricted Subsidiaries and the New York/New
Jersey Companies (as calculated in accordance with the definition of CSC Cash
Flow Ratio) as of the last day of such Subject Quarter (as certified by the
Company and the New York/New Jersey Obligors to the Administrative Agent at the
time of the delivery of such Subscribers' Certificate).
As used in this definition, "Applicable Period" shall mean the period from and
including (i)(a) in the case of the first Applicable Period, the Effective Date
and (b) in the case of each subsequent Applicable Period, the first day after
the immediately preceding Applicable Period to but excluding (ii) the fifth
Business Day of the next July, October, January or April (whichever occurs
first) to occur thereafter.
"Assignment and Acceptance" shall have the meaning given to such
term in Section 5.06 hereof.
"Banks" shall have the meaning given to such term in the preamble to
this Agreement.
"Base Rate" shall mean, 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 adopted by The Toronto-Dominion Bank (New
York Branch), from time to time, as its reference rate for the
determination of interest rates on loans of varying maturities in Dollars
to United States residents of varying degrees of creditworthiness and
being quoted at such time by The Toronto-Dominion Bank (New York Branch)
as its "prime rate," which rate is not necessarily The Toronto-Dominion
Bank's lowest rate of interest; and
(b) the sum (adjusted to the nearest one-quarter of one percent (1/4
of 1%) or, if there is no nearest one-quarter of one percent (1/4 of 1%),
to the next higher one-quarter of one percent (1/4 of 1%)) of (i) one-half
of one percent (1/2 of 1%) per annum plus (ii) the Federal Funds Rate.
"Base Rate Loans" shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of "Base Rate" in
this Section 1.01.
"BPU" shall mean the New Jersey Board of Public Utilities or
successor thereto.
"Business Day" shall mean any day on which commercial banks are not
authorized or required to close in New York City or London.
"Capital Lease Obligations" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to
4
use) real and/or personal property, which obligations are required to be
classified and accounted for as a capital lease on a balance sheet of such
Person under generally accepted accounting principles (including Statement of
Financial Accounting Standards No. 13 of the Financial Accounting Standards
Board) and, for purposes of this Agreement, the amount of such obligations shall
be the capitalized amount thereof, determined in accordance with generally
accepted accounting principles (including such Statement No. 13).
"Capital Maintenance Costs" shall mean, with respect to the Loans of
each Bank, any costs which such Bank determines are attributable to the
maintenance by such Bank or any of its affiliates, pursuant to any law or
regulation or any interpretation, directive or request (whether or not having
the force of law) of any court or governmental or monetary authority, whether in
effect on the Effective Date or thereafter, of capital in respect of its
maintaining Loans hereunder or its commitment to make Loans hereunder.
"Cash Flow Ratio" shall mean, as at any date, the ratio of (i) the
sum of the aggregate outstanding principal amount of all Indebtedness of the
Company and the Guarantors (determined on a consolidated and, in respect of the
New York/New Jersey Companies to the extent such companies are not Restricted
Subsidiaries on such date, a combined basis, but excluding all obligations under
any Interest Swap Agreement) outstanding on such date to (ii) Annualized
Operating Cash Flow determined as at the last day of the month covered by the
then most recent Subscribers' Certificate delivered to the Banks pursuant to
Section 9.01(e) hereof, a copy of which has been delivered to the Administrative
Agent (and any change in such ratio as a result of a change in the amount of
Indebtedness shall be effective as of the date such change shall occur and any
change in such ratio as a result of a change in the amount of Annualized
Operating Cash Flow shall be effective as of the date of receipt by the
Administrative Agent of the Subscribers' Certificate reflecting such change).
"Cash Taxes" shall mean, for any period, the sum of (i) all federal
income and other taxes on operations paid by the Company and the Guarantors
during such period in respect of the operating revenues of the Company and the
Guarantors taken as a whole and (ii) all state and local income and other taxes
on operations paid by the Company and the Guarantors during such period in
respect of the income and operations of the Company and the Guarantors taken as
a whole.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Commitment" shall mean, as to each Bank, the amount set forth
opposite its name on the signature pages hereto under the heading "Commitment"
or amount set forth on any Assignment and Acceptance (as the same may be reduced
or otherwise adjusted from time to time as provided in this Agreement).
"Commitment Fee" shall have the meaning given to such term in
Section 2.04 hereof.
"Commitment Percentage" shall mean, as to each Bank at any time, the
percentage obtained by dividing such Bank's Commitment by the Total Commitment.
5
"Commitment Termination Date" shall mean the Quarterly Date falling
on or nearest to March 31, 2007.
"Company" shall mean Cablevision MFR, Inc.
"Compliance Certificate" shall mean a certificate of a senior
financial executive of the Company and the New York/New Jersey Obligors in
substantially the form of Exhibit B hereto.
"Controlled Group" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company, are treated as a single
employer under Section 414(b) or 414(c) of the Code.
"CSC" shall have the meaning given to such term in the preamble to
this Agreement.
"CSC Agreement" shall mean the Sixth Amended and Restated Credit
Agreement, dated as of May 28, 1998, among CSC, the Restricted Subsidiaries
parties thereto, the banks parties thereto and Toronto Dominion (Texas), Inc.,
as Arranging Agent and as Administrative Agent, The Bank of New York, The Bank
of Nova Scotia, The Canadian Imperial Bank of Commerce, NationsBank, N.A. and
The Chase Manhattan Bank, as Managing Agents, Bank of Montreal, Chicago Branch,
Barclays Bank PLC, Fleet Bank, N.A. and Royal Bank of Canada, as Agents, Banque
Paribas, Credit Lyonnais, The First National Bank of Boston, The First National
Bank of Chicago, Mellon Bank, N.A. and Societe Generale, as Co-Agents, and The
Canadian Imperial Bank of Commerce, The Chase Manhattan Bank and NationsBank,
N.A., as Co-Syndication Agents, as amended and/or restated and in effect from
time to time, or, if such agreement shall cease to be in effect, as last in
effect.
"CSC Cash Flow Ratio" shall have the meaning given to the term "Cash
Flow Ratio" in the CSC Agreement.
"CSC Commitment" shall mean, as to each Bank, its "Commitment" as
such term is used in the CSC Agreement (as the same may be reduced or otherwise
adjusted from time to time as provided in the CSC Agreement).
"CSC Loans" shall mean "Loans" as such term is used in the CSC
Agreement.
"CSC Specified Investments" shall mean "Specified Investments" as
such term is used in the CSC Agreement.
"Default" shall mean an Event of Default or any other event which
with notice and/or passage of time would become an Event of Default or an Event
of Default under (and as defined in) the New York/New Jersey Agreement.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Effective Date" shall have the meaning given to such term in
Section 12.08 hereof.
6
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" shall mean, when used with respect to a Plan,
ERISA, the PBGC or a provision of the Code pertaining to employee benefit plans,
any Person that is a member of any group of organizations within the meaning of
Sections 414(b), (c), (m) or (o) of the Code of which the Company or any
Guarantor is a member.
"Eurodollar Base Rate" shall mean, with respect to any Eurodollar
Loan, for any Interest Period, the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m. (London time) on the second
Business Day prior to the first day of such Interest Period by reference to the
British Bankers' Association Interest Settlement Rates for deposits in Dollars
(as set forth by any service selected by the Administrative Agent that has been
nominated by the British Bankers' Association as an authorized information
vendor for the purpose of displaying such rates) for a period equal to such
Interest Period (rounded upward, if necessary, to the nearest 1/16 of 1%);
provided that, if, for any reason, the Administrative Agent cannot determine the
Eurodollar Base Rate for any Interest Period pursuant to the foregoing
provisions of this definition, the Administrative Agent shall determine the
Eurodollar Base Rate by using the offered rates of any three major banks active
in the London interbank market selected by the Administrative Agent, but in all
other respects in accordance with the foregoing provisions of this definition.
"Eurodollar Loans" shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of "Eurodollar
Base Rate" in this Section 1.01.
"Eurodollar Rate" shall mean, for any Eurodollar Loans for any
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of 1%) determined by the Administrative Agent to be equal to
the Eurodollar Base Rate for such Loans for such Interest Period divided by 1
minus the Reserve Requirement for such Loans for such Interest Period.
"Event of Default" shall mean any of the events described in Article
X hereof.
"Excluded Indebtedness" shall have the meaning given to such term in
Section 10.01(e) hereto.
"Federal Funds Rate" shall mean, 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 on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (i) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii) if such rate is not so published for any day, the Federal Funds Rate
for such day shall be the average rate quoted to The Toronto-Dominion Bank (New
York Branch) on such day on such transactions with Federal funds brokers of
recognized standing as may be determined by the Administrative Agent.
7
"Franchise" shall mean a franchise, license or other authorization
or right to construct, own, operate, promote and/or otherwise exploit any cable
television system granted by the Federal Communications Commission (or any
successor agency of the Federal government) or any state, county, city, town,
village or other local governmental authority.
"Funding Costs" for any Bank shall mean, with respect to any
Eurodollar Loan, an amount equal to the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount paid, prepaid or
converted or not borrowed or converted for the period from the date of such
payment, prepayment or conversion or failure to borrow or convert to the last
day of the Interest Period for such Loan (or, in the case of a failure to borrow
or convert, the Interest Period for such Loan which would have commenced on the
date of such failure to borrow or convert) had such principal amount borne
interest at the Eurodollar Rate applicable to such Loan over (ii) the interest
component of the amount such Bank would have bid in the London interbank market
for Dollar deposits of leading banks in amounts comparable to such principal
amount and with maturities comparable to such period (as reasonably determined
by such Bank).
"Guarantee" shall have the meaning given to such term in Section
9.11 hereof.
"Guarantor" shall mean each Subsidiary of the Company and to the
extent any New York/New Jersey Company is not a Restricted Subsidiary, each New
York/New Jersey Company.
"Indebtedness" shall mean, as to any Person, Capital Lease
Obligations of such Person and other indebtedness of such Person for borrowed
money (whether by loan or the issuance and sale of debt securities) or for the
deferred purchase or acquisition price of property or services (and including,
without limitation, obligations of such Person for property taxes and judgments
and other awards giving rise to Permitted Liens described in clauses (ii) and
(iii) of the definition of "Permitted Liens" in this Section 1.01) other than
accounts payable (other than for borrowed money) incurred in the ordinary course
of business of such Person. Without limiting the generality of the foregoing,
such term shall include (a) when applied to the Company, all obligations of the
Company and/or any Guarantor under Interest Swap Agreements and (b) when applied
to the Company or any other Person, all Indebtedness of others Guaranteed by
such Person.
"Interest Period" shall mean:
(a) With respect to any Eurodollar Loans, the period commencing on
the date such Eurodollar Loans are made and ending on the same day in the
first, second, third, sixth or, subject to availability from each Bank,
twelfth calendar month thereafter, as the Company may select as provided
in Section 2.02 hereof; and
(b) With respect to any Base Rate Loans, the period commencing on
the date such Base Rate Loans are made and ending on the next Quarterly
Date thereafter.
Notwithstanding the foregoing: (i) no Interest Period may commence before and
end after any Quarterly Date upon which the Commitments are to be reduced
pursuant to Section 2.03(a)
8
hereof unless, after giving effect thereto, the aggregate principal amount of
the Loans having Interest Periods which end after such Quarterly Date shall be
equal to or less than the amount to which the Commitments are to be reduced on
such Quarterly Date pursuant to said Section 2.03(a); (ii) no Interest Period
with respect to any Loan may end after the Commitment Termination Date; (iii)
each Interest Period which would otherwise end on a day which is not a Business
Day shall end on the next succeeding Business Day (or, in the case of an
Interest Period for Eurodollar Loans, if such next succeeding Business Day falls
in the next succeeding calendar month, on the next preceding Business Day); (iv)
any Interest Period for a Eurodollar Loan that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month in which such Interest Period ends) shall, subject to
clause (i) above, end on the last Business Day of a calendar month; and (v) no
more than 12 Interest Periods for all Eurodollar Loans hereunder shall be in
effect at the same time and, if the number of Interest Periods for Eurodollar
Loans would otherwise be in excess of 12, Eurodollar Loans shall not be
available hereunder.
"Interest Swap Agreement" shall mean an interest rate swap, cap or
collar agreement or similar arrangement among the Company and/or any Guarantor
and one or more banks or financial institutions providing for protection against
fluctuations in interest rates or the exchange of nominal interest obligations
among the Company and/or such Guarantor and such banks or financial
institutions, either generally or under specific contingencies, as said
agreement or arrangement shall be modified and supplemented and in effect from
time to time.
"Investments" shall have the meaning given to such term in Section
9.15 hereof.
"Leases" shall mean leases and subleases (excluding Capital Lease
Obligations), licenses to use real and/or tangible personal property, easements
and pole attachments and conduit or trench agreements and other rights to use
telephone or utility poles, conduits or trenches.
"Liens" shall have the meaning given to such term in Section 9.12
hereof.
"Loans" shall mean Base Rate Loans and Eurodollar Loans made
pursuant to Section 2.01 hereof.
"Majority Banks" shall mean, at any time, Banks having Commitments
aggregating at least 51% of the amount of the Total Commitment.
"Margin Stock" shall mean "margin stock" as defined in Regulation U.
"Materially Adverse Effect" shall mean a materially adverse effect
upon (i) the business, assets, financial condition or results of operations of
the Company and the Guarantors taken as a whole, (ii) the ability of the Company
and the Guarantors to perform their respective obligations hereunder or under
the New York/New Jersey Agreement or (iii) the legality, validity, binding
nature or enforceability of this Agreement or the New York/New Jersey Agreement.
"Multiemployer Plan" shall mean a Plan that is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
9
"Net Cash Proceeds" shall mean proceeds received by the Company or
any of its Subsidiaries in cash from the sale or other disposition of property
of the Company or any of its Subsidiaries, after deduction of the costs of, and
any income, franchise, transfer or other tax liability arising from, such sale
or disposition. If any amount payable to the Company or any such Subsidiary in
respect of any such sale or disposition, shall be or become evidenced by any
promissory note or other negotiable or non-negotiable instrument, the cash
proceeds received on any such note or instrument shall constitute Net Cash
Proceeds.
"New Subsidiary" shall mean any Person that becomes a Subsidiary of
the Company or any New York/New Jersey Company after the date of this Agreement.
"New York/New Jersey Agreement" shall mean the First Amended and
Restated Credit Agreement, dated as of May 28, 1998, among CSC TKR, Inc.,
Cablevision of Brookhaven, Inc., Cablevision of Oakland, Inc., Cablevision of
Paterson, Inc., CSC TKR I, Inc. and UA-Columbia Cablevision of Westchester,
Inc., the Guarantors that are parties thereto, the Banks that are parties
thereto, Toronto Dominion (Texas), Inc., as Arranging Agent and Administrative
Agent, The Bank of New York, The Bank of Nova Scotia, The Canadian Imperial Bank
of Commerce, NationsBank, N.A. and The Chase Manhattan Bank, as Managing Agents,
Bank of Montreal, Chicago Branch, Barclays Bank PLC, Fleet Bank, N.A. and Royal
Bank of Canada, as Agents, Banque Paribas, Credit Lyonnais, The First National
Bank of Boston, The First National Bank of Chicago, and Mellon Bank, N.A. and
Societe Generale, as Co-Agents, as amended and/or restated and in effect from
time to time.
"New York/New Jersey Commitment" shall mean, as to any Bank, its
"Commitment" as such term is used in the New York/New Jersey Agreement (as the
same may be reduced or otherwise adjusted from time to time as provided in the
New York/New Jersey Agreement).
"New York/New Jersey Companies" shall mean the New York/New Jersey
Obligors and the New York/New Jersey Subsidiaries.
"New York/New Jersey Loans" shall mean "Loans" as such term is used
in the New York/New Jersey Agreement.
"New York/New Jersey Obligors" shall mean the "Obligors" as such
term is used in the New York/New Jersey Agreement.
"New York/New Jersey Subsidiaries" shall mean the Subsidiaries of
the New York/New Jersey Obligors.
"New York/New Jersey Total Commitment" shall mean the "Total
Commitment" as such term is used in the New York/New Jersey Agreement.
"Non-US Bank" shall mean a Person that is not a United States Person
and that is not described in Section 881(c)(3) of the Code.
"Notes" shall mean the promissory notes provided for by Section 2.05
hereof evidencing the Loans.
10
"Obligations" shall mean, collectively, the obligations of the
Obligors hereunder in respect of the principal of and interest on the Loans and
all obligations in respect of fees and other amounts payable by the Obligors
hereunder.
"Obligors" shall mean, jointly and severally, the Company and CSC,
and "Obligor" shall mean the Company or CSC.
"Operating Cash Flow" shall mean, for any period, the following for
the Company and the Guarantors for such period, determined on a consolidated
and, in respect of the New York/New Jersey Companies to the extent such
companies are not Restricted Subsidiaries during such period, a combined basis
in accordance with generally accepted accounting principles: (i) aggregate
operating revenues minus (ii) aggregate operating expenses (including technical,
programming, sales, selling, general administrative expenses and salaries and
other compensation, in each case net of amounts allocated to Affiliates, paid to
any general partner, director, officer or employee of the Company or any
Guarantor but excluding interest, depreciation and amortization and, to the
extent otherwise included in operating expenses, any losses resulting from a
writeoff or writedown of Investments by the Company or any Guarantor in
Affiliates); provided, however, that for purposes of determining Operating Cash
Flow for any period (A) there shall be excluded (x) all management fees paid to
the Company during such period other than any such fees paid in cash to the
extent not in excess of 3% of Operating Cash Flow for the Company and its
Subsidiaries as determined without including any such fees and (y) the
amortization of deferred installation income and (B) Operating Cash Flow for
such period shall be increased or (except for purposes of the calculations
required by Section 9.14(a)(vi)(B)) reduced, as the case may be, by the
Operating Cash Flow of assets acquired or disposed of by the Company or any
Guarantor on or after the first day of such period, determined on a pro forma
basis reasonably satisfactory to the Administrative Agent (it being agreed that
it shall be satisfactory to the Administrative Agent that such pro forma
calculations may be based upon generally accepted accounting principles as
applied in the preparation of the financial statements for the Company or (if a
New York/New Jersey Company) such Guarantor, as the case may be, delivered in
accordance with Section 9.01 hereof rather than as applied in the financial
statements of the company whose assets were acquired and may include, in the
Company's discretion a reasonable estimate of savings under existing contracts
resulting from any such acquisitions), as though the Company or such Guarantor
acquired or disposed of such assets on the first day of such period.
"Paramus-Hillsdale Sale" shall mean the "Paramus-Hillsdale Sale" as
defined in the New York/New Jersey Agreement.
"Participation Agreement" shall have the meaning given to such term
in Section 12.05(c) hereof.
"Parent Corp." shall mean Cablevision Systems Corp., a Delaware
corporation.
"Payor" shall have the meaning given to such term in Section 4.04
hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
11
"Permitted Affiliate Transaction" shall mean any transaction by
which the Company or any of its Subsidiaries shall (i) pay dividends or make any
distribution on its capital stock or other equity securities or pay any of its
Indebtedness owed to CSC or any other Restricted Subsidiary, (ii) make any loans
or advances to CSC or any other Restricted Subsidiary or (iii) transfer any of
its properties or assets to, or merge or consolidate into, CSC or any other
Restricted Subsidiary.
"Permitted Liens" shall mean, with respect to any Person: (i)
pledges or deposits by such Person under workers' compensation laws,
unemployment insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or Leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of cash or U.S.
Government bonds to secure surety or appeal bonds to which such Person is a
party, or deposits as security for contested taxes or import duties or for the
payment of rent; (ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' Liens or other Liens arising out of judgments or awards against
such Person with respect to which such Person shall then be prosecuting appeal
or other proceedings for review (and as to which all foreclosures and other
enforcement proceedings shall have been fully bonded or otherwise effectively
stayed); (iii) Liens for property taxes not yet subject to penalties for
non-payment or which are being contested in good faith and by appropriate
proceedings (and as to which all foreclosures and other enforcement proceedings
shall have been fully bonded or otherwise effectively stayed); (iv) Liens in
favor of issuers of performance bonds issued pursuant to the request of and for
the account of such Person in the ordinary course of its business; (v) minor
survey exceptions, minor encumbrances, easements or reservations of, or rights
of others for rights of way, sewers, electric lines, telegraph and telephone
lines and other similar purposes, or zoning or other restrictions as to the use
of real properties or Liens incidental to the conduct of the business of such
Person or to the ownership of its properties which were not incurred in
connection with Indebtedness or other extensions of credit and which do not in
the aggregate materially detract from the value of said properties or materially
impair their use in the operation of the business of such Person; or (vi) any
Lien on any Margin Stock.
"Person" shall mean an individual, a corporation, a partnership, a
limited liability company, a joint venture or adventure, a trust or estate or
unincorporated organization, a joint stock company or other similar
organization, a government or any political subdivision thereof, or any other
legal entity.
"Plan" shall mean, at any time, an employee pension benefit plan
which is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code and is either (i) maintained by the
Company or an ERISA Affiliate or (ii) maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer
makes contributions and to which the Company or an ERISA Affiliate is then
making or accruing an obligation to make contributions or has within the
preceding six plan years made contributions.
"Pole Rental Leases" shall mean Leases under which the Company, its
Subsidiaries and/or the New York/New Jersey Companies, have the right to use
telephone or
12
utility poles, conduits or trenches for the purpose of supporting or housing
cables of the respective systems.
"Post-Default Rate" shall mean, in respect of any principal of any
Loan or any other amount payable by the Company under this Agreement which is
not paid when due (whether at stated maturity, by acceleration or otherwise), a
rate per annum during the period commencing on the due date until such amount is
paid in full equal to 2% above the Base Rate as in effect from time to time plus
the Applicable Margin for Base Rate Loans; provided that, if such amount in
default is principal of a Eurodollar Loan and the due date is a day other than
the last day of an Interest Period therefor, the "Post-Default Rate" for such
principal shall be, for the period commencing on the due date and ending on the
last day of the Interest Period therefor, 2% above the interest rate for such
Loan for such Interest Period as provided in Section 3.03 hereof, and thereafter
the rate provided for above in this definition.
"Prohibited Transaction" shall mean a transaction that is prohibited
under Section 4975 of the Code or Section 406 of ERISA and not exempt under
Section 4975 of the Code or Section 408 of ERISA.
"Proposed Bank" shall have the meaning given to such term in Section
12.05(h) hereof.
"Quarter" shall mean a fiscal quarterly period of the Company.
"Quarterly Dates" shall mean the last day of each March, June,
September and December, the first of which shall be on June 30, 1998, provided
that, if any such day is not a Business Day, the relevant Quarterly Date shall
be the next succeeding Business Day.
"Reduction Amount" shall have the meaning given to such term in
Section 2.03(a) hereof.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as the same may be amended or supplemented from time
to time.
"Regulation U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as the same may be amended or supplemented from time
to time.
"Regulatory Change" shall mean, with respect to any Bank, any change
on or after the Effective Date in United States Federal, state or foreign laws
or regulations (including Regulation D) or the adoption or making on or after
such date of any interpretations, directives or requests applying to a class of
banks including such Bank of or under any United States Federal or state, or any
foreign, laws or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"Reportable Event" shall mean (i) any of the events set forth in
Section 4043(b) (other than a Reportable Event as to which the provision of 30
days' notice to the PBGC is waived under applicable regulations), 4068(f) or
4063(a) of ERISA or the regulations thereunder, (ii) an event requiring the
Company or any ERISA Affiliate to provide security to a Plan under
13
Section 401(a)(29) of the Code and (iii) any failure to make payments required
by Section 412(m) of the Code if such failure continues for 30 days following
the due date for any required installment.
"Required Payment" shall have the meaning given to such term in
Section 4.04 hereof.
"Required Principal Payments" shall mean for any period an amount
equal the excess, if any, of the aggregate amount of Loans and New York/New
Jersey Loans outstanding at the beginning of such period over the aggregate
amount of the Total Commitment and the New York/New Jersey Total Commitment at
the end of such period.
"Reserve Requirement" shall mean, for any Eurodollar Loans of any
Bank for any Interest Period, the rate at which such Bank actually is required
to maintain reserves (including any marginal, supplemental or emergency
reserves) during such Interest Period under Regulation D against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting the effect
of the foregoing, the Reserve Requirement shall reflect any other reserves
actually required to be maintained by such Bank by reason of any Regulatory
Change against (A) any category of liabilities which includes deposits by
reference to which the Eurodollar Base Rate for such Eurodollar Loans is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (B) any category of extensions of credit or other assets which
include Eurodollar Loans.
"Restricted Payments" shall mean direct or indirect distributions,
dividends or other payments by the Company or any Guarantor on account of
(including, without limitation, sinking fund or other payments on account of the
redemption, retirement, purchase or acquisition of) any general or limited
partnership or joint venture interest in, or any capital stock of, the Company
or such Guarantor, as the case may be (whether made in cash, property or
obligations), other than (i) any such distributions, dividends and other
payments made by (i) the Company or any of its Subsidiaries to CSC, or any other
Restricted Subsidiary and (ii) any such distributions, dividends and other
payments made by any New York/New Jersey Subsidiary to any New York/New Jersey
Company.
"Restricted Subsidiary" shall have the meaning given to such term in
the CSC Agreement.
"Scheduled Reduction Date" shall have the meaning given to such term
in Section 2.03(a) hereof.
"Specified Investments" shall mean any Investment or series of
related Investments by the Company or any Guarantor in an aggregate amount, when
added with all CSC Specified Investments (without duplication), for all such
Investments not in excess of $100,000,000 in businesses engaged primarily in the
provision of video on demand, cable modem or residential telephony services and
other closely related businesses.
"Subscribers' Certificate" shall mean a certificate of a senior
financial executive of the Company and the New York/New Jersey Obligors in
substantially the form of Exhibit C hereto.
14
"Subsidiary" shall mean, with respect to any Person, any
corporation, partnership, joint venture or adventure, limited liability company,
trust or estate:
(a) in the case of a corporation, of which a majority of the
outstanding capital stock having ordinary voting power to elect a majority of
the Board of Directors of such corporation (irrespective of whether or not at
the time capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency);
(b) in the case of a partnership or joint venture, in which such
Person is a general partner or joint venturer or of which a majority of the
partnership or other ownership interests;
(c) in the case of a limited liability company, of which a majority
of the ownership interests; or
(d) in the case of a trust or estate, the beneficial interest of
which, is at the time directly or indirectly owned by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"Tax" means any Federal, State or foreign tax, assessment or other
governmental charge (including any withholding tax) upon a Person or upon its
assets, revenues, income or profits.
"TCI Acquisition" shall mean the transactions contemplated by the
TCI Acquisition Documents, other than the Second-Tier Reorganization (as defined
in and contemplated by the Master Reorganization Agreement referred to in the
definition of "TCI Acquisition Documents" herein).
"TCI Acquisition Documents" shall mean (i) the Amended and Restated
Contribution and Merger Agreement, dated as of June 6, 1997, by and among CSC,
Parent Corp., CSC Merger Corporation and TCI Communications, Inc., (ii) the
Master Reorganization Agreement, dated as of March 3, 1998, between Parent Corp.
and CSC and (iii) the Assignment and Assumption Agreement, dated as of March 4,
1998, by and among Parent Corp., CSC TKR, Inc., CSC TKR I, Inc., Cablevision of
Oakland, Inc., Cablevision of Brookhaven, Inc. and Cablevision of Paterson, Inc.
"Termination Event" shall mean (i) a Reportable Event, (ii) the
termination of a Plan, or the filing of a notice of intent to terminate a Plan,
or the treatment of a Plan amendment as a termination under Section 4041(c) of
ERISA, (iii) the institution of proceedings to terminate a Plan under Section
4042 of ERISA, or (iv) the appointment of a trustee to administer any Plan under
Section 4042 of ERISA.
"Total Available Commitment" shall mean, as of any date, the Total
Commitment as of such date minus an amount equal to the excess of (i) the
aggregate Net Cash Proceeds to be used as specified in all notices given by the
Company to the Administrative Agent in accordance with Sections 2.03(c) hereof
over (ii) the sum of (x) the aggregate amount of all reductions of the Total
Commitment required by reason of the provisos to Section 2.03(c) with respect to
such Net Cash Proceeds and (y) the aggregate amount of Loans (including the
Loans requested to be made
15
on such date) the proceeds of which have been or, upon the making thereof, will
be used for the purposes specified in such notices in accordance with such
Section.
"Total Commitment" shall mean at any time the aggregate amount of
the Commitments of all the Banks (as the same may be reduced or otherwise
adjusted from time to time as provided in this Agreement).
"Total Debt Expense" shall mean, for any period, Total Interest
Expense for such period plus an amount equal to Required Principal Payments for
such period and all other scheduled payments of principal on other Indebtedness
of the Company and the Guarantors (on a consolidated and, in respect of the New
York/New Jersey Companies to the extent such companies are not Restricted
Subsidiaries during such period, a combined basis) during such period
(including, but not limited to, the principal portion paid with respect to
Capital Lease Obligations); provided that, for purposes of determining Total
Debt Expense for any period, there shall be included or excluded, as the case
may be, all scheduled payments of principal (other than Required Principal
Payments) during such period on Indebtedness of the Company or any Guarantor in
respect of assets acquired or disposed of by the Company or such Guarantor on or
after the first day of such period, determined on a pro forma basis reasonably
satisfactory to the Administrative Agent (it being agreed that it shall be
satisfactory to the Administrative Agent that such pro forma calculations may be
based upon generally accepted accounting principles as applied in the
preparation of the financial statements for the Company or (if a New York/New
Jersey Company) such Guarantor, as the case may be, delivered in accordance with
Section 9.01 hereof rather than as applied in the financial statements of the
company whose assets were acquired and may include, in the Company's discretion,
a reasonable estimate of savings under existing contracts resulting from any
such acquisitions), as though the Company or such Guarantor acquired or disposed
of such assets on the first day of such period.
"Total Interest Expense" shall mean, for any period, the aggregate
amount of interest accrued in respect of Indebtedness (including the interest
component of rentals in respect of Capital Lease Obligations) of the Company and
the Guarantors (determined on a consolidated and, in respect of the New York/New
Jersey Companies to the extent such companies are not Restricted Subsidiaries
during such period, a combined basis) during such period. For purposes hereof,
the amount of interest accrued in respect of Indebtedness for any period (A)
shall be increased (to the extent not already treated as interest expense or
income, as the case may be) by the excess, if any, of amounts payable by the
Company or any Guarantor arising under any Interest Swap Agreements during such
period over amounts receivable by the Company or such Guarantor, as the case may
be, thereunder (or reduced by the excess, if any, of such amounts receivable
over such amounts payable) and interest on a Capital Lease Obligation shall be
deemed to accrue at an interest rate reasonably determined by the Company to be
the rate of interest implicit in such Capital Lease Obligation in accordance
with generally accepted accounting principles (including Statement of Financial
Accounting Standards No. 13) and (B) shall be increased or reduced, as the case
may be, by the amount of interest accrued during such period in respect of
Indebtedness of the Company or any Guarantor in respect of assets acquired or
disposed of by the Company or such Guarantor on or after the first day of such
period, determined on a pro forma basis reasonably satisfactory to the
Administrative Agent (it being agreed that it shall be satisfactory to the
Administrative Agent that such pro forma calculations may be based upon
generally accepted accounting principles as applied in the preparation of the
16
financial statements for the Company or (if a New York/New Jersey Company) such
Guarantor, as the case may be, delivered in accordance with Section 9.01 hereof
rather than as applied in the financial statements of the company whose assets
were acquired and may include, in the discretion of the Company, a reasonable
estimate of savings under existing contracts resulting from any such
acquisitions), as though the Company or such Guarantor acquired or disposed of
such assets on the first day of such period.
"United States Person" means a corporation, partnership or other
entity created, organized or incorporated under the laws of the United States of
America or a State thereof (including the District of Columbia).
Section 1.02 Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all financial statements and certificates and reports as to financial matters
required to be delivered hereunder shall be prepared, in accordance with
generally accepted accounting principles as in effect on December 31, 1996,
applied on a consolidated basis consistent with the audited financial statements
of the Company referred to in Section 9.01 hereof. When any definition involving
the New York/New Jersey Companies (prior to such companies becoming Restricted
Subsidiaries) requires calculations on a combined basis, such calculations shall
eliminate any intercompany items as between the Company, its Subsidiaries and
the New York/New Jersey Companies. To enable the ready determination of
compliance by the Company and the Guarantors with the various covenants set
forth in Article IX hereof, each of the Company and the Guarantors agrees to
cause its fiscal year to end each year on December 31 and the first three
Quarters for each such Person in each year to end on March 31, June 30 and
September 30, respectively.
ARTICLE II
LOANS
Section 2.01 Loans. Each Bank severally agrees, on the terms and
conditions set forth in this Agreement:
(a) The Loans. On or after the Effective Date, to make one or more
Loans to the Obligors from time to time on any Business Day prior to the
Commitment Termination Date in an aggregate principal amount not to exceed at
any time outstanding such Bank's Commitment; provided that at no time shall the
aggregate outstanding principal amount of all Loans exceed the Total Available
Commitment.
(b) Types of Loans. The Loans, at the option of the Company, may be
made as, and from time to time continued as or converted into, Base Rate Loans
or Eurodollar Loans of any permitted type, or any combination thereof; provided,
however, that each borrowing of Loans shall be in an aggregate amount equal to
$500,000 or an integral multiple of $250,000 in excess thereof.
17
Section 2.02 Manner of Borrowing; Conversion and Continuation. (a) Notice
of Borrowing. The Company shall give the Administrative Agent (which shall
promptly notify the Banks) notice of each borrowing of Loans hereunder
substantially in the form of Schedule 2.02(a) hereto, which notices shall be
irrevocable and effective only upon receipt by the Administrative Agent, shall
specify the aggregate amount, the type or types and date of the Loans to be
borrowed and (in the case of Eurodollar Loans) the duration of the Interest
Period therefor and shall be given not later than 11:00 a.m. New York time on
the day which is not less than the number of Business Days prior to the date of
such borrowing specified below:
Type Number of Business Days
---- -----------------------
Base Rate Loan 0
Eurodollar Loan 3
Notwithstanding the foregoing, any notice given by the Company to the
Administrative Agent under this Section 2.02(a) may be given orally by telephone
and confirmed in writing within one Business Day. In the case of any
discrepancies between oral and written notices received by the Administrative
Agent, the oral notice shall be effective as understood in good faith by the
Administrative Agent.
(b) Funding. Not later than 1:00 p.m. New York time on the date
specified for borrowing hereunder, each Bank shall make available the amount of
the Loan to be made by it on such date to the Administrative Agent in
immediately available funds, for the account of the Obligors. The amount so
received by the Administrative Agent shall, subject to the terms and conditions
of this Agreement, be made available to the Obligors by depositing the same, in
immediately available funds, in a joint account of the Obligors designated by
the Company or by wiring the same, in immediately available funds, to any
account specified by the Company in its notice of borrowing.
(c) Conversion and Continuation. (i) All or any part of the
principal amount of any Loan may, on any Business Day, be converted into another
type or types of Loans, except that Eurodollar Loans may be converted only on
the last day of the applicable Interest Period.
(ii) Base Rate Loans shall continue as Base Rate Loans unless and
until such Loans are converted into Eurodollar Loans of any type. Each
Eurodollar Loan shall continue as a Eurodollar Loan until the end of the then
current Interest Period therefor, at which time it shall be automatically
converted into a Base Rate Loan unless the Company shall have given the
Administrative Agent notice in accordance with Section 2.02(c)(iv) hereof
requesting either that such Eurodollar Loans continue as Eurodollar Loans of
such type for another Interest Period or that such Eurodollar Loans be converted
into Eurodollar Loans of another type at the end of such Interest Period.
(iii) Notwithstanding anything to the contrary contained in Section
2.02(c)(i) or (ii), during an Event of Default, the Administrative Agent shall,
at the direction of the Majority Banks, notify the Company that Loans may only
be converted into or continued as Loans of certain specified types and,
thereafter, until no Event of Default shall continue to exist, Loans
18
may not be converted into or continued as Loans of any type other than one or
more of such specified types.
(iv) The Company shall give the Administrative Agent (which shall
promptly notify the Banks) notice of each conversion or continuation of Loans
hereunder substantially in the form of Schedule 2.02(c) hereto, which notices
shall be irrevocable and effective only upon receipt by the Administrative
Agent, shall specify (x) the aggregate amount and the type of the Loans to be
converted or continued and (in the case of Eurodollar Loans) the duration of the
Interest Period therefor, (y) the requested date of such conversion or
continuation and (z) the amount and type or types of Loans into which such Loans
are to be converted or as which such Loans are to be continued, and shall be
given not later than 11:00 a.m. New York time on the day which is not less than
the number of Business Days prior to the date of such conversion into or
continuation as the type of Loans specified below:
Type Number of Business Days
---- -----------------------
Base Rate Loan 0
Eurodollar Loan 3
Notwithstanding the foregoing, any notice given by the Company to the
Administrative Agent under this Section 2.02(c)(iv) may be given orally by
telephone and confirmed in writing within one Business Day. In the case of any
discrepancies between oral and written notices received by the Administrative
Agent, the oral notice shall be effective as understood in good faith by the
Administrative Agent.
Section 2.03 Reductions and Changes of Commitments. (a) Scheduled
Reductions to Total Commitment. Subject to the adjustments described in Section
2.03(e) hereof, the Total Commitment shall be automatically reduced on each
Quarterly Date falling on or nearest to the date specified in column (x) below
(each such Quarterly Date, a "Scheduled Reduction Date") by the Dollar amount
specified in column (y) below opposite such date (the "Reduction Amount"):
(x) (y)
Quarterly Date
Falling on or Nearest to Reduction Amount
------------------------ ----------------
June 30, 2001 $23,333,333.00
September 30, 2001 $23,333,333.00
December 31, 2001 $23,333,334.00
March 31, 2002 $35,000,000.00
June 30, 2002 $35,000,000.00
September 30, 2002 $35,000,000.00
December 31, 2002 $35,000,000.00
March 31, 2003 $52,500,000.00
June 30, 2003 $52,500,000.00
September 30, 2003 $52,500,000.00
December 31, 2003 $52,500,000.00
19
March 31, 2004 $52,500,000.00
June 30, 2004 $52,500,000.00
September 30, 2004 $52,500,000.00
December 31, 2004 $52,500,000.00
March 31, 2005 $52,500,000.00
June 30, 2005 $52,500,000.00
September 30, 2005 $52,500,000.00
December 31, 2005 $52,500,000.00
March 31, 2006 $70,000,000.00
June 30, 2006 $70,000,000.00
September 30, 2006 $70,000,000.00
December 31, 2006 $70,000,000.00
March 31, 2007 $280,000,000.00
The Total Commitment shall be reduced to zero on the Commitment Termination
Date.
(b) Optional Reductions and Terminations. (i) The Company shall have
the right to terminate or reduce the unutilized Total Commitment at any time or
from time to time, provided that (A) the Company shall give notice of each such
termination or reduction to the Administrative Agent at least two Business Days
prior thereto, (B) each partial reduction thereof shall be in an aggregate
amount at least equal to $5,000,000 and (C) the Total Commitment may not be
reduced at any time to an amount less than the aggregate principal amount of the
Loans outstanding at such time.
(ii) Notwithstanding anything to the contrary in this Agreement, so
long as no Default has occurred and is continuing, the Company shall have the
right to reduce or terminate the Aggregate Commitment of any Bank at any time or
from time to time (subject to clause (F) below) without reducing or terminating
the Aggregate Commitment (or any part thereof) of any other Bank at such time,
provided that (A) such reduction or termination shall be made on terms and
conditions agreed upon in writing by the Company and such Bank, (B) the Company
and such Bank shall have notified the Administrative Agent in writing of such
reduction or termination at least two Business Days prior thereto, (C) such
reduction or termination shall be made pro rata among such Bank's Commitment,
such Bank's CSC Commitment and, if the New York/New Jersey Agreement is then in
effect, such Bank's New York/New Jersey Commitment based on the relationship of
each such Commitment to such Bank's Aggregate Commitment, (D) the aggregate
amount of all reductions and terminations of the Aggregate Commitments of Banks
made pursuant to this clause (ii) shall not exceed $420,000,000, (E) after
giving effect to each reduction or termination and any prepayment of such Bank's
Loans pursuant to Section 3.01(b)(iii) in connection therewith, the Total
Commitment may not be less than the aggregate principal amount of the Loans
outstanding at such time, and (F) no such reduction or termination may be made
pursuant to this clause (ii) after November 18, 1999 (or such later date as is
agreed in writing by the Majority Banks).
(c) Special Mandatory Reductions. At any time at which the Cash Flow Ratio
exceeds 5.50 to 1, the Total Commitment shall be automatically reduced upon the
date of any sale, transfer or other disposition of any asset of the Company or
any of its Subsidiaries of the types permitted under Section 9.14(a)(vi) hereof
(other than the Paramus-Hillsdale Sale), by an amount
20
equal to 50% of the excess of the Net Cash Proceeds thereof over all or any
portion of such Net Cash Proceeds that will be used, as specified in a notice
from the Company to the Administrative Agent, for an acquisition permitted under
Section 9.14(b)(ii) hereof; provided, however, that if the Company or the
applicable Subsidiary shall not have entered into a binding purchase agreement
with respect to any such acquisition on or before the date that is six months
after the date of such disposition, the Total Commitment shall be automatically
reduced (without duplication) on such date by an amount equal to 50% of the
entire Net Cash Proceeds of such sale, transfer or disposition; and provided
further, however, that if the Company or the applicable Subsidiary shall have
entered into a binding purchase agreement within six months after the date of
such disposition, but does not complete such acquisition within nine months of
signing such binding purchase agreement, the Total Commitment shall
automatically be reduced (without duplication) on the last day of such
nine-month period by an amount equal to 50% of the entire Net Cash Proceeds of
such sale, transfer or disposition.
(d) New York/New Jersey Agreement. (i) The Total Commitment shall be
reduced by $800,000,000, and the Commitment of each Bank reduced by an amount
equal to its pro rata share of such amount, so long as any New York/New Jersey
Commitment is in effect or any Obligation under (and as defined in) the New
York/New Jersey Agreement remains unpaid.
(ii) At the time when the reduction required by clause (i) above
shall no longer be required, the Total Commitment shall be reduced by an amount
equal to the aggregate amount of all reductions of the New York/New Jersey
Commitments pursuant to Section 2.03(b) of the New York/New Jersey Agreement
during the term of such agreement.
(e) Adjustments to Scheduled Reductions. Upon any reduction of the Total
Commitment pursuant to Section 2.03(b), (c) or (d)(ii) hereof on any date, the
schedule set forth in Section 2.03(a) hereof shall be adjusted, after giving
effect to any prior adjustments thereto pursuant to this Section 2.03(e), by
reducing the Reduction Amount set forth in column (y) of such schedule opposite
each Scheduled Reduction Date occurring after such date by an amount equal to
(x) the amount of such reduction of the Total Commitment effected pursuant to
Section 2.03(b), (c) or (d)(ii) hereof multiplied by (y) a fraction, the
numerator of which is such Reduction Amount as then in effect and the
denominator of which is the Total Commitment then in effect.
(f) No Reinstatement. The Total Commitment once terminated or reduced
(other than pursuant to Section 2.03(d)(i) hereof) may not be reinstated.
(g) Pro Rata Treatment. Except to the extent otherwise provided herein,
each reduction of the Total Commitment shall be applied to the Commitments of
the Banks pro rata in accordance with their respective Commitment Percentages.
Section 2.04 Commitment Fee. The Obligors shall pay to the Administrative
Agent for the account of each Bank a commitment fee (the "Commitment Fee") (i)
for the period from and including May 28, 1998 to but excluding the earlier of
(x) the Effective Date and (y) June 30, 1998, on the daily average amount
representing the result of (A) such Bank's Commitment appearing on the signature
pages hereof (without giving effect to any reduction of such Commitment pursuant
to the terms hereof) minus (B) such Bank's Commitment, if any, under (and as
defined in) the 1996 Agreement during such period, at a rate per annum equal to
21
0.1250% and (ii) for the period from and including the earlier of (x) the
Effective Date and (y) June 30, 1998 to but not including the earlier of the
date such Bank's Commitment is terminated and the Commitment Termination Date,
on the amount of the daily average unutilized amount of such Bank's Commitment
during such period, at a rate per annum equal to (A) 0.2500% at any time at
which the CSC Cash Flow Ratio is greater than or equal to 5.50 to 1 and (B)
0.1875% at any time at which the CSC Cash Flow Ratio is less than 5.50 to 1. For
purposes of calculating the Commitment Fee, the Commitment of each Bank shall be
deemed to be utilized in an amount equal to the sum of the aggregate outstanding
principal amount of such Bank's Loans. Accrued Commitment Fees under this
Section 2.04 shall be payable in arrears on each Quarterly Date.
Section 2.05 Notes. (a) Form of Notes. The Loans made by each Bank shall
be evidenced by a single Note of the Obligors in substantially the form of
Exhibit A hereto, dated the Effective Date and payable to the order of such Bank
in a principal amount equal to its Commitment as originally in effect, and
otherwise duly completed.
(b) Endorsements. Each Bank is hereby authorized by the Obligors to
endorse on a schedule attached to each Note of such Bank (or any continuation
thereof) the amount and date of each Loan made by such Bank to the Obligors
hereunder, and the amount of each payment on account of principal of such Loan
received by such Bank, provided that any failure by such Bank to make any such
endorsement shall not affect the obligations of the Obligors under such Note or
hereunder in respect of such Loans.
Section 2.06 Lending Offices. The Loans of each type made by each Bank
shall be made and maintained at such Bank's Applicable Lending Office set forth
on Schedule 2.06 for Loans of such type.
Section 2.07 Several Obligations; Remedies Independent. The failure of any
Bank to make any Loan to be made by it on the date specified therefor shall not
relieve any other Bank of its obligation to make its Loan on such date, but
neither the Administrative Agent nor any Bank shall be responsible for the
failure of any other Bank to make a Loan to be made by such other Bank. The
amounts payable by the Obligors at any time hereunder and under the Notes to
each Bank shall be a separate and independent debt and each Bank shall, subject
to Section 10.01 hereof, be entitled to protect and enforce its rights arising
out of this Agreement and its Note and it shall not be necessary for any other
Bank or the Administrative Agent to consent to, or be joined as an additional
party in, any proceedings for such purposes.
Section 2.08 Use of Proceeds. The proceeds of the Loans made hereunder
shall be used only (x) to refinance the New York/New Jersey Agreement and (y)
for the general business purposes of the Company and its Subsidiaries and (z)
for any transaction or activity in which the Company and its Subsidiaries are
permitted to engage under the provisions of this Agreement.
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01 Prepayments. (a) Optional Prepayments. Either Obligor may, at
any time and from time to time (subject, in the case of Eurodollar Loans, to
Section 5.05 hereof),
22
prepay Base Rate Loans on any Business Day if prior notice is given to the
Administrative Agent before 11:00 a.m. New York time on such day (and if such
notice is received by the Administrative Agent after 11:00 a.m. New York time,
on the next succeeding Business Day), and Eurodollar Loans upon not less than
three Business Days' prior notice to the Administrative Agent (and the
Administrative Agent shall promptly notify the Banks in each case of such
notice), which notice shall specify the prepayment date (which shall be a
Business Day) and the amount of the prepayment (which shall be not less than
$1,000,000), and shall be irrevocable and effective only upon receipt by the
Administrative Agent, provided that, in the case of Eurodollar Loans, interest
on the principal prepaid, accrued to the prepayment date, shall be paid on the
prepayment date.
(b) Mandatory Prepayments. (i) The Obligors shall, upon any sale, transfer
or other disposition of any asset of the Company or any of its Subsidiaries
permitted under Section 9.14(a)(vi) hereof, (other than the Paramus-Hillsdale
Sale) prepay Loans in an amount equal to 50% of the Net Cash Proceeds thereof.
Notwithstanding anything in this Agreement to the contrary, amounts prepaid from
any sale, transfer or other disposition pursuant to the foregoing sentence may
be reborrowed by the Obligors solely for the purpose of effecting acquisitions
permitted under Section 9.14(b)(ii) hereof and solely to the extent that such
disposition has not resulted in a mandatory reduction of the Total Commitment
pursuant to the provisos to Section 2.03(c) hereof.
(ii) The Obligors shall, on the date of any reduction of the Total
Commitment pursuant to Section 2.03(d)(ii) hereof, prepay Loans in an amount
equal to the excess of (A) the aggregate amount of the Loans outstanding on such
date over (B) the Total Commitment as so reduced.
(iii) On the date of any reduction or termination of any Bank's
Aggregate Commitment pursuant to Section 2.03(b)(ii), the Obligors shall repay
such Bank's Loans in an aggregate amount such that, after giving effect to such
reduction or termination and such repayment, the aggregate outstanding amount of
such Bank's Loans shall equal such Bank's Commitment Percentage of the amount of
all outstanding Loans. Each repayment required by this Section 3.01(b)(iii)
shall be applied pro rata among each type of Loan held by such Bank. The
requirements of Section 4.02 shall not apply to any payment made by the Obligors
pursuant to this clause (iii).
Section 3.02 Repayment of Loans. On each Scheduled Reduction Date, the
Obligors shall pay to the Administrative Agent for the account of the Banks the
excess, if any, of (i) the aggregate principal amount of the Loans outstanding
on such Scheduled Reduction Date over (ii) the Total Available Commitment (after
giving effect to any termination or reduction thereof pursuant to Section
2.03(a) hereof) on such Scheduled Reduction Date, together with interest thereon
accrued to such Scheduled Reduction Date and any amounts payable pursuant to
Section 5.05 hereof in connection therewith.
Section 3.03 Interest. (a) The Obligors hereby promise to pay to the
Administrative Agent for the account of each Bank interest on the unpaid
principal amount of each Loan made by such Bank for the period commencing on the
date of such Loan to but excluding the date such Loan shall be paid in full, at
the following rates per annum:
23
(i) if such Loan is a Base Rate Loan, the Base Rate plus the
Applicable Margin; and
(ii) if such Loan is a Eurodollar Loan, the Eurodollar Rate for such
Loan for the Interest Period therefor plus the Applicable Margin.
Notwithstanding the foregoing, the Obligors hereby promise to pay to the
Administrative Agent for the account of each Bank interest at the applicable
Post-Default Rate on any principal of any Loan made by such Bank, and on any
other amount payable by the Obligors hereunder to or for the account of such
Bank (but, if such amount is interest, only to the extent legally enforceable),
which shall not be paid in full when due (whether at stated maturity, by
acceleration or otherwise), for the period commencing on the due date thereof
until the same is paid in full.
(b) Accrued interest on each Loan shall be payable (i) on the last day of
each Interest Period for such Loan (and, if such Interest Period is longer than
three months (in the case of a Eurodollar Loan) on each three-month anniversary
of the first day of such Interest Period), (ii) in the case of a Eurodollar
Loan, when such Loan shall be converted or be due by reason of prepayment or
(iii) when such Loan shall be due at maturity or by reason of acceleration or
otherwise (other than by reason of prepayment). Promptly after the determination
of any interest rate provided for herein or any change therein, the
Administrative Agent shall notify the Banks and the Obligors thereof.
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
Section 4.01 Payments. Except to the extent otherwise provided herein, all
payments of principal, interest and other amounts to be made by the Obligors
hereunder and under the Notes shall be made in Dollars, in immediately available
funds, to the Administrative Agent not later than 11:00 a.m. New York time on
the date on which such payment shall become due (each such payment made after
such time on such due date to be deemed to have been made on the next succeeding
Business Day). The Administrative Agent, or any Bank for whose account any such
payment is made, may (but shall not be obligated to) debit the amount of any
such payment which is not made by such time to any ordinary deposit account of
either of the Obligors with the Administrative Agent or such Bank, as the case
may be. The Obligors shall, at the time of making each payment hereunder or
under any Note, specify to the Administrative Agent the Loans or other amounts
payable by the Obligors hereunder to which such payment is to be applied (but in
the event that either of the Obligors fails to so specify, or if an Event of
Default has occurred and is continuing, the Administrative Agent may apply such
payment as it may elect in its sole discretion, but subject to Section 4.02
hereof). Each payment received by the Administrative Agent hereunder or under
any Note for account of a Bank shall be paid promptly to such Bank, in
immediately available funds, for account of such Bank's Applicable Lending
Office for the Loan in respect of which such payment is made.
Section 4.02 Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) subsequent to the initial borrowing hereunder, the Loans shall be
made by the Banks pro rata according to their respective Commitment Percentages;
(b) each payment by either Obligor of
24
principal of the Loans shall be made to the Administrative Agent for the account
of the Banks pro rata in accordance with the respective unpaid principal amounts
of such Loans held by the Banks; (c) each payment by either Obligor of interest
on Loans of a particular type shall be made to the Administrative Agent for the
account of the Banks holding Loans of such type pro rata in accordance with the
respective unpaid principal amounts of such Loans held by such Banks; and (d)
each payment of the Commitment Fee shall be made for the account of the Banks
pro rata in accordance with their respective Commitment Percentages.
Section 4.03 Computations. Interest on Eurodollar Loans and the Commitment
Fee shall be computed on the basis of a year of 360 days and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which payable, and interest on Base Rate Loans shall be computed on the basis of
a year of 365 or 366 days, as the case may be, and actual days elapsed
(including the first day but excluding the last day) occurring in the period for
which payable, except that all interest determined on the basis of the
Post-Default Rate shall be computed on the basis of a year of 360 days and
actual days elapsed (including the first day but excluding the last day).
Section 4.04 Non-Receipt of Funds by the Administrative Agent. Unless the
Administrative Agent shall have been notified by a Bank or either of the
Obligors (the "Payor") prior to the date on which such Bank is to make payment
to the Agent of the proceeds of a Loan to be made by it hereunder or the
Obligors are to make a payment to the Administrative Agent for the account of
one or more of the Banks, as the case may be (such payment being herein called
the "Required Payment"), which notice shall be effective upon receipt, that the
Payor does not intend to make the Required Payment to the Administrative Agent,
the Administrative Agent may assume that the Required Payment has been made and
may, in reliance upon such assumption (but shall not be required to), make the
amount thereof available to the intended recipient on such date and, if the
Payor has not in fact made the Required Payment to the Administrative Agent, the
recipient of such payment shall, on demand, pay to the Administrative Agent the
amount made available to it together with interest thereon in respect of the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at the Federal Funds Rate.
Section 4.05 Sharing of Payments, Etc. Each of the Obligors and the
Guarantors agrees that, in addition to (and without limitation of) any right of
set-off, banker's lien or counterclaim a Bank may otherwise have, each Bank
shall be entitled, at its option, to offset balances held by it for account of
the Obligors or any Guarantor at any of its offices, in Dollars or in any other
currency, against any principal of or interest on any of such Bank's Loans
hereunder, which is not paid when due (regardless of whether such balances are
then due to either Obligor or such Guarantor), in which case it shall promptly
notify the Administrative Agent and each Obligor or such Guarantor thereof,
provided that such Bank's failure to give such notice shall not affect the
validity thereof. If a Bank shall obtain payment of any principal of or interest
on any Loan made by it to the Obligors under this Agreement, through the
exercise of any right of set-off, banker's lien, counterclaim or similar right,
or otherwise, and, as a result of such payment, such Bank shall have received a
greater percentage of the amounts then due hereunder by the Obligors to such
Bank than the percentage received by other Banks, it shall promptly purchase
from such other Banks participations in the Loans made by such other Banks in
such amounts, and make such other adjustments from time to time as shall be
equitable to the
25
end that all the Banks shall share the benefit of such excess payment (net of
any expense which may be incurred by such Bank in obtaining or preserving such
excess payment) pro rata in accordance with the unpaid principal and interest on
the Loans held by each of the Banks. To such end all the Banks shall make
appropriate adjustments among themselves (by the resale of participations sold
or otherwise) if such payment is rescinded or must otherwise be restored. The
Obligors and the Guarantors agree that any Bank so purchasing a participation in
the Loans made by other Banks may exercise all rights of set-off, banker's lien,
counterclaim or similar rights with respect to such participation as fully as if
such Bank were a direct holder of Loans in the amount of such participation.
Nothing contained herein shall require any Bank to exercise any such right or
shall affect the right of any Bank to exercise, and retain the benefits of
exercising, any such right with respect to any other indebtedness or obligation
of the Obligors or the Guarantors. If under any applicable bankruptcy,
insolvency or other similar law, any Bank receives a secured claim in lieu of a
set-off to which this Section 4.05 applies, such Bank shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Banks entitled under this Section 4.05 to
share in the benefits of any recovery on such secured claim.
Section 4.06 No Reductions. All payments due to the Administrative Agent
or any Bank under this Agreement shall be made by the Obligors without any
reduction or deduction whatsoever, including any reduction or deduction for any
set-off, recoupment, counterclaim or Tax, except, subject to Section 4.07, for
any withholding or deduction for Taxes required to be withheld or deducted under
applicable law.
Section 4.07 Taxes. (a) Taxes Payable by the Obligors. If under applicable
law any Tax is required to be withheld or deducted from, or is otherwise payable
by the Obligors in connection with, any payment to the Administrative Agent or
any Bank under this Agreement, the Obligors shall, subject to Section 4.07(b),
pay to the Administrative Agent or such Bank, as applicable, such additional
amounts as may be necessary so that the net amount received by the
Administrative Agent or such Bank with respect to such payment, after
withholding or deducting all Taxes required to be withheld or deducted, is equal
to the full amount payable under this Agreement.
(b) Limitations. Notwithstanding anything to the contrary contained
herein, the Obligors shall not be required to pay any additional amount in
respect of withholding of United States Federal income taxes pursuant to this
Section 4.07 to any Bank except to the extent (A) such Taxes are required to be
withheld solely as a result of (1) in the case of a person that is a Bank on the
Effective Date, a Regulatory Change enacted after the Effective Date and (2) in
the case of a Person that becomes a Bank after the Effective Date, a Regulatory
Change enacted after such Person becomes a Bank, and (B) such Bank has not
failed to submit any form or certificate that it is entitled to so submit under
applicable law. (c) Exemption from U.S. Withholding Taxes
(c) Exemption from U.S. Withholding Taxes. There shall be submitted to the
Company and the Administrative Agent, (A) on or before the first date that
interest or fees are payable to such Bank under this Agreement, (1) if at the
time the same are applicable, (aa) by each Bank that is not a United States
Person, two duly completed and signed copies of Internal Revenue Service Form
1001 or 4224 (or any successor form to the applicable form), in either case
entitling such Bank to a complete exemption from withholding of any United
States federal
26
income taxes on all amounts to be received by such Bank under this Agreement, or
(bb) by each Bank that is a Non-US Bank, (x) a duly completed Internal Revenue
Service Form W-8 (or any successor form to such form) and (y) a certification in
the form of Schedule 4.07(c) that such Bank is a Non-US Bank or (2) if at the
time any of the foregoing are inapplicable, duly completed and signed copies of
such form, if any, as entitles such Bank to exemption from withholding of United
States federal income taxes to the maximum extent to which such Bank is then
entitled under applicable law, and (B) from time to time thereafter, prior to
the expiration or obsolescence of any previously delivered form or upon any
previously delivered form becoming inaccurate or inapplicable, such further duly
completed and signed copies of such form, if any, as entitles such Bank to
exemption from withholding of United States federal income taxes to the maximum
extent to which such Bank is then entitled under applicable law. Each Bank shall
promptly notify the Company and the Administrative Agent if (A) it is required
to withdraw or cancel any form or certificate previously submitted by it or any
such form or certificate has otherwise become ineffective or inaccurate or (B)
payments to it are or will be subject to withholding of United States federal
income taxes to a greater extent than the extent to which payments to it were
previously subject. Upon the request of the Company or the Administrative Agent,
each Bank that is a United States Person shall from time to time submit to the
Company and the Administrative Agent a certificate to the effect that it is such
a United States Person and a duly completed Internal Revenue Service Form W-9
(or any successor form to such form).
ARTICLE V
YIELD PROTECTION AND ILLEGALITY
Section 5.01 Additional Costs in Respect of Loans (a) The Obligors shall
pay to the Administrative Agent for the account of each Bank from time to time
such amounts as such Bank may determine to be necessary to compensate it for any
costs incurred by such Bank which such Bank determines are attributable to its
making or maintaining any Eurodollar Loans hereunder or its commitment to make
such Eurodollar Loans hereunder, or any reduction in any amount receivable by
such Bank hereunder in respect of such Eurodollar Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to such Bank
under this Agreement or its Note in respect of such Eurodollar Loans (other than
taxes imposed on the overall net income of such Bank or of its Applicable
Lending Office for such Eurodollar Loans by the jurisdiction in which such Bank
has its principal office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit, minimum capital,
capital ratio or similar requirements relating to any extensions of credit or
other assets of, or any deposits with or other liabilities of, such Bank
(including such Eurodollar Loans or any deposits referred to in the definition
of "Eurodollar Base Rate" in Section 1.01 hereof), or any commitments of such
Bank; or
(iii) imposes any other condition affecting this Agreement or the
Commitment of such Bank (or any of such extensions of credit or liabilities).
27
Each Bank will notify the Obligors through the Administrative Agent of any event
which will entitle such Bank to compensation pursuant to this Section 5.01(a) as
promptly as practicable after it obtains knowledge thereof and determines to
request such compensation, and (if so requested by the Obligors through the
Administrative Agent) will designate a different Applicable Lending Office for
the Loans of such Bank affected by such event if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the sole
opinion of such Bank, be disadvantageous to such Bank, provided that neither
Obligor shall be obligated to compensate any Bank under this Section 5.01(a) for
any Additional Costs incurred more than six months prior to the date the
respective Bank requests the Company for such compensation, except for periods
preceding such date but which are after the date such Bank notified the Obligors
of the possibility that such Additional Costs might be incurred as a result of
the respective Regulatory Change. Each Bank will furnish the Company with a
statement setting forth the basis and amount of each request by such Bank for
compensation under this Section 5.01(a). If any Bank requests compensation from
the Obligors under this Section 5.01(a), the Company may, by notice to such Bank
through the Administrative Agent, require that such Bank's Loans of the type
with respect to which such compensation is requested be converted into Base Rate
Loans in accordance with Section 5.04 hereof.
(b) Without limiting the effect of the foregoing provisions of this
Section 5.01, in the event that, by reason of any Regulatory Change, any Bank
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Bank which includes deposits by reference to which the interest rate on any
Eurodollar Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Bank which includes any Eurodollar
Loans or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets which it may hold, then, if such Bank so elects by
notice to the Obligors (with a copy to the Administrative Agent), the obligation
of such Bank to make, and to convert Loans of any other type into, Loans of such
type hereunder shall be suspended until the date such Regulatory Change ceases
to be in effect.
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Obligors shall pay directly to each
Bank from time to time on request such amounts as such Bank may determine to be
necessary to compensate such Bank for Capital Maintenance Costs with respect to
its Loans or Commitment (such compensation to include, without limitation, an
amount equal to any reduction of the rate of return on assets or equity of such
Bank to a level below that which such Bank could have achieved but for such law,
regulation, interpretation, directive or request). Each Bank will notify the
Company that it is entitled to compensation pursuant to this Section 5.01(c) as
promptly as practicable after it determines to request such compensation,
provided that neither Obligor shall be obligated to compensate any Bank under
this Section 5.01(c) for any such costs incurred more than six months prior to
the date the respective Bank requests the Obligors for such compensation, except
for periods preceding such date but which are after the date such Bank notified
the Obligors of the possibility that such costs might be incurred.
(d) Determinations by any Bank for purposes of this Section 5.01 of the
effect of any Regulatory Change on its costs of making or maintaining Loans or
maintaining its Commitment
28
or on amounts receivable by it in respect of Loans or such Commitment, and of
the additional amounts required to compensate such Bank in respect of any
Additional Costs, shall be conclusive, provided that such determinations are
made on a reasonable basis.
Section 5.02 Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, with respect to any Eurodollar Loans:
(a) the Administrative Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits referred
to in the definition of "Eurodollar Base Rate" in Section 1.01 hereof are not
being provided in the relevant amounts or for the relevant maturities for
purposes of determining the rate of interest for such Loans as provided in this
Agreement; or
(b) the Majority Banks determine (which determination shall be conclusive)
and notify the Administrative Agent that the relevant rates of interest referred
to in the definition of "Eurodollar Base Rate" in Section 1.01 hereof upon the
basis of which the rates of interest for such Loans are to be determined do not
adequately cover the cost to such Banks of making or maintaining such Loans;
then the Administrative Agent shall promptly notify the Obligors and each Bank
thereof, and so long as such condition remains in effect, the Banks shall be
under no obligation to make Eurodollar Loans of the affected type.
Section 5.03 Illegality. Notwithstanding any other provision of this
Agreement to the contrary, in the event that it becomes unlawful for any Bank or
its Applicable Lending Office to (a) honor its obligation to make Eurodollar
Loans hereunder, or (b) maintain Eurodollar Loans hereunder, then such Bank
shall promptly notify the Obligors thereof through the Administrative Agent
(which notice shall include a statement explaining the nature of such
unlawfulness) and such Bank's obligation to make Eurodollar Loans shall be
suspended until such time as such Bank may again make and maintain Eurodollar
Loans and such Bank's outstanding Eurodollar Loans shall be converted into Base
Rate Loans in accordance with Section 5.04 hereof.
Section 5.04 Certain Conversions of Loans Pursuant to Section 5.01 or
5.03. If the obligation of any Bank to make any type of Eurodollar Loans shall
be suspended pursuant to Section 5.01 or 5.03 hereof (Loans of such type being
herein called "Affected Loans" and such type being herein called the "Affected
Type"), all Loans which would otherwise be made by such Bank as Loans of the
Affected Type shall be made instead as Base Rate Loans (and, if an event
referred to in Section 5.01 or 5.03 hereof has occurred and such Bank determines
that it is required to convert such Loans, then, by notice to the Obligors with
a copy to the Administrative Agent, all Affected Loans of such Bank then
outstanding shall be automatically converted into Base Rate Loans on the date
specified by such Bank in such notice) and, to the extent that Affected Loans
are so made as (or converted into) Base Rate Loans, all payments of principal
which would otherwise be applied to such Bank's Affected Loans shall be applied
instead to its Base Rate Loans.
Section 5.05 Compensation. (a) The Obligors shall pay to the
Administrative Agent for the account of each Bank, upon the request of such Bank
through the Administrative Agent,
29
such amount or amounts as shall be sufficient (in the reasonable opinion of such
Bank) to compensate it for any loss, costs or expense incurred by it as a result
of:
(i) any payment, prepayment or conversion of a Eurodollar Loan made
by such Bank for any reason (including, without limitation, the acceleration of
the Loans pursuant to Article X hereof) on a date other than the last day of an
Interest Period for such Loan; or
(ii) any failure by either Obligor for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Article VII hereof to be satisfied) to borrow or convert a
Eurodollar Loan to be made by such Bank on the date for such borrowing
specified in the relevant notice of borrowing under Section 2.02 hereof.
(b) Such compensation shall include Funding Costs in the case of any
payment, prepayment or conversion of, or failure to borrow or convert, any Loan
made or to be made as a Eurodollar Loan.
Section 5.06 Replacement of Banks. If any Bank requests compensation
pursuant to Section 5.01, or such Bank's obligation to make or continue, or to
convert Loans of any other type into, any type of Eurodollar Loan shall be
suspended pursuant to Section 5.02 or 5.03, or if an event occurs that entitles
such Bank to make a claim pursuant to Section 4.07, the Company upon three
Business Days' notice to the Administrative Agent and such Bank, may require
that such Bank transfer all of its right, title and interest under this
Agreement, the CSC Agreement and the New York/New Jersey Agreement, such Bank's
Notes and its notes issued under the CSC Agreement and the New York/New Jersey
Agreement to any bank or financial institution identified by the Company with
the consent of the Administrative Agent (which consent shall not be unreasonably
withheld), such assignment to be made pursuant to an Assignment and Acceptance
Agreement substantially in the form of Exhibit H hereto (an "Assignment and
Acceptance") (a) if such proposed transferee agrees to assume all of the
obligations of such Bank hereunder, under the CSC Agreement and the New York/New
Jersey Agreement for consideration equal to the aggregate outstanding principal
amount of such Bank's Loans, CSC Loans and New York/New Jersey Loans, together
with interest thereon to the date of such transfer, and satisfactory
arrangements are made for payment to such Bank of all other amounts payable
hereunder, under the CSC Agreement and under the New York/New Jersey Agreement
to such Bank on or prior to the date of such transfer (including the amounts so
requested pursuant to Section 5.01 or so entitled to be claimed pursuant to
Section 4.07, any fees accrued hereunder and any amounts that would be payable
under Section 5.05 as if all of such Bank's Loans were being prepaid in full on
such date) and (b) if such Bank being replaced has requested compensation
pursuant to Section 5.01 or is entitled to make a claim pursuant to Section
4.07, such proposed transferee's aggregate requested compensation, if any,
pursuant to Section 5.01, or the amounts, if any, entitled to be claimed by such
proposed transferee pursuant to Section 4.07, with respect to such replaced
Bank's Loans would be lower than that of the Bank replaced. Without prejudice to
the survival of any other agreement of the Company hereunder, the agreements of
the Company contained in Sections 4.07, 5.01 and 12.03 (without duplication of
any payments made to such Bank by the Company or the proposed transferee) shall
survive for the benefit of any Bank replaced under this Section 5.06 with
respect to the time prior to such replacement.
30
ARTICLE VI
GUARANTEE
(a) Each of the Guarantors hereby, jointly and severally, unconditionally
guarantees to the Banks and the Administrative Agent and their respective
successors and assigns and the subsequent holders of the Notes, irrespective of
the validity and enforceability of this Agreement or the Notes or the
obligations of the Obligors or any of the other Guarantors hereunder or
thereunder or any other circumstance that might otherwise affect the liability
of a guarantor, that: (i) the principal of and interest on the Loans and the
Notes and all other obligations of the Obligors and the other Guarantors to the
Banks or the Administrative Agent under this Agreement and the Notes will be
promptly paid in full when due, whether at stated maturity, by acceleration or
otherwise, in accordance with the terms hereof and thereof; and (ii) in case of
any extension of time of payment or renewal of any Notes or any of such other
obligations, the same will be promptly paid in full when due in accordance with
the terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so guaranteed
for whatever reason, the Guarantors will be obligated, jointly and severally, to
pay the same immediately.
(b) Each of the Guarantors hereby waives notice of, and consents to, any
extensions of time of payment, renewals, releases of collateral, delays in
obtaining or realizing upon or failures to obtain or realize upon collateral or
other indulgence from time to time granted by any of the Banks or the
Administrative Agent in respect of the Notes or this Agreement. Each of the
Guarantors hereby releases the Obligors from all, and agrees not to assert or
enforce (whether by or in a legal or equitable proceeding or otherwise) any,
"claims" (as defined in section 101(5) of the Bankruptcy Code) against the
Obligors, whether arising under applicable law or otherwise, to which such
Guarantors are or would be entitled by virtue of their obligations hereunder,
any payment made pursuant hereto, or the exercise by the Administrative Agent or
the Banks of their rights with respect to any collateral for the obligations of
the Company or the Guarantors under this Agreement, including any such claims to
which such Guarantors may be entitled as a result of any right of subrogation,
exoneration or reimbursement in each case to the extent, but only to the extent,
that such Guarantor would be deemed a "creditor" of the Obligors for purposes of
Section 547 of the Bankruptcy Code solely by reason of such Guarantor's holding
or asserting such claim. To the extent not released by the Guarantors under this
Article VI, each of the Guarantors agrees that it shall not be entitled to any
right of subrogation, exoneration, reimbursement or contribution in respect of
any obligations guaranteed hereby until payment in full of all the Obligations.
With respect to the Notes and this Agreement, each of the Guarantors hereby
waives presentment, protest, demand of payment, notice of dishonor and all other
notices and demands whatsoever. Each of the Guarantors further agrees that, as
between such Guarantor, on the one hand, and the Administrative Agent and the
Banks, on the other hand, (i) the maturity of the obligations guaranteed hereby
may be accelerated as provided in Section 10.01 hereof for the purposes of this
guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (ii) in
the event of any declaration of acceleration of such obligations as provided in
Section 10.01 hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by each of the Guarantors for the purpose of
this guarantee. The obligations of each of the Guarantors under this Article VI
shall be automatically reinstated if and to the extent that for
31
any reason any payment by or on behalf of the Obligors is rescinded or must be
otherwise restored by any holder of any of the obligations guaranteed hereunder,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise and each of the Guarantors agrees that it will indemnify the Banks and
the Administrative Agent on demand for reasonable costs and expenses (including,
without limitation, fees of counsel) incurred by the Banks or the Administrative
Agent in connection with such rescission or restoration.
(c) It is the intention of the Guarantors, the Banks and the Obligors that
the obligations of each Guarantor hereunder shall be in, but not in excess of,
the maximum amount permitted by applicable law. To that end, but only to the
extent such obligations would otherwise be avoidable, the obligations of each
Guarantor hereunder shall be limited to the maximum amount that, after giving
effect to the incurrence thereof, would not render such Guarantor insolvent or
unable to make payments in respect of any of its indebtedness as such
indebtedness matures or leave such Guarantor with an unreasonably small capital.
The need for any such limitation shall be determined, and any such needed
limitation shall be effective, at the time or times that such Guarantor is
deemed, under applicable law, to incur the Obligations hereunder. Any such
limitation shall be apportioned amongst the Obligations pro rata in accordance
with the respective amounts thereof. This paragraph is intended solely to
preserve the rights of the Banks under this Agreement to the maximum extent
permitted by applicable law, and neither the Guarantors, the Obligors nor any
other Person shall have any right under this paragraph that it would not
otherwise have under applicable law. The Obligors and each Guarantor agree not
to commence any proceeding or action seeking to limit the amount of the
obligation of such Guarantor under this Article VI by reason of this paragraph.
For the purposes of this paragraph, "insolvency", "unreasonably small capital"
and "unable to make payments in respect of any of its indebtedness as such
indebtedness matures" shall be determined in accordance with applicable law.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01 Initial Loan. The obligation of each Bank to make its initial
Loan hereunder is subject to the satisfaction of the following conditions
precedent on or prior to the date of such initial Loan but in any event no later
than June 30, 1998:
(a) Execution and Notes. This Agreement shall have been duly executed and
delivered by each of the Obligors, the Guarantors, the Banks and the
Administrative Agent, and the Obligors shall have executed and delivered to each
Bank its respective Note evidencing the Loans to be made by such Bank hereunder.
(b) Signatures. Each of the Obligors and the Guarantors shall have
certified to the Administrative Agent (with copies to be provided for each Bank)
the name and signature of each of the persons authorized to sign on its
respective behalf such of this Agreement and the Notes to which it is a party
and to borrow under this Agreement. The Banks may conclusively rely on such
certifications until they receive notice in writing from the applicable Obligor
or Guarantor to the contrary.
32
(c) Proof of Action. The Administrative Agent shall have received
certified copies of all necessary action taken by each of the Obligors and the
Guarantors to authorize the execution, delivery and performance of such of this
Agreement and the Notes to which it is a party.
(d) Opinions of Counsel to the Obligors. The Administrative Agent shall
have received opinions of:
(i) Xxxxxx Xxxxx, Esq., General Counsel to the Obligors and
the Guarantors, substantially in the form of Exhibit E hereto;
(ii) Xxxxxxxx & Xxxxxxxx, special New York counsel to the
Obligors and the Guarantors, substantially in the form of Exhibit
F(1) hereto;
(iii) Schenk, Price, Xxxxx & King, special New Jersey counsel
to the Obligors and the Guarantors, substantially in the form of
Exhibit F(2) hereto; and
(iv) Piper & Marbury, special FCC counsel to the Obligors,
substantially in the form of Exhibit F(3) hereto;
and covering such other matters as any Bank or Banks or special New York
counsel to the Administrative Agent, Winthrop, Stimson, Xxxxxx & Xxxxxxx,
may reasonably request (and for purposes of such opinions such counsel may
rely upon opinions of counsel in other jurisdictions, provided that such
other counsel are satisfactory to special counsel to the Administrative
Agent and such other opinions state that the Banks are entitled to rely
thereon).
(e) Opinion of Banks' Counsel. Each Bank shall have received an opinion of
Winthrop, Stimson, Xxxxxx & Xxxxxxx, special New York counsel to the
Administrative Agent, substantially in the form of Exhibit G hereto and covering
such other matters as any Bank or Banks may reasonably request.
(f) Certain Fees. The Company shall have paid to the Administrative Agent,
for its own account, fees calculated as specified in a letter dated the date
hereof.
(g) Other Fees. The Company shall have paid such other fees as may have
been agreed by the parties hereto.
(h) CSC and New York/New Jersey Agreements. All conditions precedent to
the initial extensions of credit under the CSC Agreement and the New York/New
Jersey Agreement shall have been satisfied.
(i) Subscribers' Certificate. The Administrative Agent shall have received
the Subscribers' Certificate for the month ended March 31, 1998.
33
(j) Compliance Certificate. The Banks shall have received a Compliance
Certificate showing that, after giving effect to this Agreement, the Company and
the Guarantors are in compliance with the provisions of this Agreement on a pro
forma basis as of the Effective Date.
(k) Other Documents. Such other documents and papers relating to the
documents referred to herein and the transactions contemplated hereby as any
Bank or special counsel to the Banks shall reasonably require shall have been
received by the Administrative Agent.
(l) Regulatory Approvals. The Obligors shall have obtained the approval of
the BPU with respect to this Agreement and the uses of proceeds of the Loans
specified in Section 2.08.
(m) Funding Adjustment. The Company shall have made arrangements
satisfactory to the Administrative Agent such that, after giving effect to the
initial Loan hereunder, (i) the outstanding Loans hereunder shall be made by the
Banks pro rata in accordance with their respective Commitment Percentages and
(ii) the Loans (as defined in the 1996 Agreement) and all other amounts owing
under the 1996 Agreement to any Bank (as defined in the 1996 Agreement) which is
not a Bank hereunder shall have been repaid in full.
Section 7.02 Each Loan. The obligation of each Bank to make each of its
Loans (including its initial Loan) hereunder (which shall not include any
conversion or continuation of any outstanding Loan) is subject to the additional
conditions precedent that:
(a) no Default shall have occurred and be continuing;
(b) the representations and warranties in Article VIII hereof
shall be true on and as of the date of the making of, and after giving
effect to, such Loan with the same force and effect as if made on and as
of such date, except to the extent that such representations and
warranties expressly relate to an earlier date; and
(c) to the extent requested by the Administrative Agent or any
Bank, a senior executive of the Obligors shall have certified compliance
with paragraphs (a) and (b) above to the Administrative Agent.
The Company shall be deemed to have made a representation and warranty hereunder
as of the time of the making of such Loans hereunder that the conditions
specified in such clauses have been fulfilled as of such time.
ARTICLE VIII
REPRESENTATIONS
Each of the Obligors and the Guarantors represents, warrants and covenants
as follows:
Section 8.01 Existence and Power. Each Obligor and each Guarantor is a
limited or general partnership or corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of organization and is
duly qualified to transact business and is in good standing in all jurisdictions
in which such qualification is necessary in view of the
34
properties and assets owned and presently intended to be owned and the business
transacted and presently intended to be transacted by it except for
qualifications the lack of which, singly or in the aggregate, have not had and
are not likely to have a Materially Adverse Effect, and each of CSC, the Company
and each Guarantor has full power, authority and legal right to make and perform
such of this Agreement and the Notes to which it is a party.
Section 8.02 Subsidiaries. As at the Effective Date and the date of the
initial Loan hereunder, the Company has no Subsidiaries other than those set
forth on Schedule 8.02.
Section 8.03 Authority; No Conflict. The making and performance by each of
the Obligors and the Guarantors of such of this Agreement and the Notes to which
it is a party, and each extension of credit hereunder, have been duly authorized
by all necessary action and do not and will not: (i) subject to the consummation
of the action described in Section 8.12 hereof, violate any provision of any
laws, orders, rules or regulations presently in effect (other than violations
that, singly or in the aggregate, have not had and are not likely to have a
Materially Adverse Effect), or any provision of any of the Obligors' or the
Guarantors' partnership agreement, charter or by-laws presently in effect; or
(ii) result in the breach of, or constitute a default or require any consent
(except for the consents described on Schedule 8.03 hereto, each of which has
been duly obtained) under, any existing indenture or other agreement or
instrument to which either Obligor or any Guarantor is a party or its properties
may be bound or affected (other than any breach, default or required consent
that, singly or in the aggregate, have not had and are not likely to have a
Materially Adverse Effect); or (iii) result in, or require, the creation or
imposition of any Lien upon or with respect to any of the properties or assets
now owned or hereafter acquired by either Obligor or any Guarantor.
Section 8.04 Financial Condition. (a) The Company has furnished to each
Bank:
(i) The consolidated balance sheet of the Company and its
consolidated Subsidiaries as at December 31, 1997, and the related consolidated
statements of operations, stockholders' equity (deficiency) and cash flows for
the fiscal year ended on said date, said financial statements having been
certified by KPMG Peat Marwick; and
(ii) the respective combined balance sheets of the TKR New
Jersey/New York Systems and the TCI New Jersey and New York Systems, in each
case as at December 31, 1995, December 31, 1996 and December 31, 1997, and the
respective related combined statements of operations or earnings, parent's
investment or combined deficit and cash flows for the fiscal years ended on said
dates, said financial statements having been certified by KPMG Peat Marwick.
All financial statements referred to above are complete and correct in all
material respects (subject, in the case of the unaudited financial statements
referred to above, to year-end and audit adjustments) and fairly present the
financial condition of the respective entity or groups of entities which is or
are the subject of such financial statements (as stated above), on a combined
and/or consolidated basis to the extent so indicated above, as at the respective
dates of the balance sheets included in such financial statements and the
results of operations of such entity or groups of entities for the respective
periods ended on said dates. None of the Company and the Guarantors had on any
of said dates any material contingent liabilities, liabilities for Taxes,
35
unusual forward or long-term commitments or unrealized or anticipated losses
from any unfavorable commitments or operations which are substantial in amount,
except as referred to or reflected or provided for in said financial statements
as at said respective dates or as disclosed to the Banks in writing prior to the
date hereof. Except as disclosed to the Banks in writing prior to the date
hereof, since December 31, 1997 there has been no material adverse change in the
financial condition (from that shown by the respective balance sheets as at
December 31, 1997 included in said financial statements) or the businesses or
operations of the Company, its Subsidiaries and the New York/New Jersey
Companies taken as a whole on a pro forma combined basis. As of the Effective
Date, except as disclosed to the Banks in writing prior to the date hereof,
since December 31, 1997 there has been no material adverse change in the
financial condition or the businesses or operations of the New York/New Jersey
Companies taken as a whole on a combined basis from that shown by the balance
sheets as at December 31, 1997 included in said financial statements for the New
York/New Jersey Companies (it being understood that for purposes of this
sentence the New York/New Jersey Companies shall be deemed to have owned all of
the assets acquired by the New York/New Jersey Companies pursuant to the TCI
Acquisition for all periods covered by said balance sheets until and including
the Effective Date).
Section 8.05 Litigation; Etc. Except as disclosed to the Banks on Schedule
8.05, there are no lawsuits or other proceedings pending, or to the knowledge of
the Company or any of the Guarantors threatened, against the Company or any of
the Guarantors or any of their respective properties or assets, before any court
or arbitrator or by or before any governmental commission, bureau or other
regulatory authority that, singly or in the aggregate, could reasonably be
expected to have a Materially Adverse Effect. Neither the Company nor any of the
Guarantors is in default under or in violation of or with respect to any laws or
orders, or any material provision of any rules or regulations, or any writ,
injunction or decree of any court, arbitrator, governmental commission, bureau
or other regulatory authority, or any Franchise, except for minor defaults
which, if continued unremedied, are not likely to have a Materially Adverse
Effect.
Section 8.06 Titles and Liens. Except as set forth on Schedule 9.12, each
of the Company and the Guarantors has good title to its properties and assets,
free and clear of all Liens except those permitted by Section 9.12 hereof.
Section 8.07 Regulation U. None of the proceeds of the Loans shall be used
to purchase or carry, or to reduce or retire or refinance any credit incurred to
purchase or carry, any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock. If requested by any Bank,
the Obligors will furnish to the Banks statements in conformity with the
requirements of Regulation U.
Section 8.08 Taxes. Each of the Company and the Guarantors has filed all
material tax returns which are required to be filed under any law applicable
thereto except such returns as to which the failure to file, singly or in the
aggregate, has not had and will not have a Materially Adverse Effect, and has
paid, or made provision for the payment of, all Taxes shown to be due pursuant
to said returns or pursuant to any assessment received by the Company or any of
the Guarantors, except such Taxes, if any, as are being contested in good faith
and as to which
36
adequate reserves have been provided or as to which the failure to pay, singly
or in the aggregate, has not had and is not likely to have a Materially Adverse
Effect.
Section 8.09 Other Credit Agreements. Schedule 9.10 (Existing
Indebtedness), Schedule 9.11 (Existing Guarantees) and Schedule 9.12 (Existing
Liens) contain complete and correct lists, as at the date hereof and the date of
the initial Loan hereunder, of all credit agreements, indentures, purchase
agreements, obligations in respect of letters of credit, guarantees and other
instruments presently in effect (including Capital Lease Obligations) providing
for, evidencing, securing or otherwise relating to any Indebtedness of the
Company and the Guarantors in a principal or face amount equal to $150,000 or
more and such lists correctly set forth the names of the debtor or lessee and
creditor or lessor with respect to the Indebtedness outstanding or to be
outstanding thereunder, 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.
Section 8.10 Full Disclosure. None of the financial statements referred to
in Section 8.04 hereof or any written statements delivered pursuant to Section
8.02, 8.04 or 8.15 (each of which has heretofore been furnished to each Bank)
contains, as at the date hereof or the date of the initial Loan, any untrue
statement of a material fact nor do such financial statements and such written
statements, taken as a whole, omit to state a material fact necessary to make
the statements contained therein not misleading.
Section 8.11 No Default. None of the Company and the Guarantors is in
default in the payment or performance or observance of any contract, agreement
or other instrument to which it is a party or by which it or its properties or
assets may be affected or bound, which default, either alone or in conjunction
with all other such defaults, has had or is likely to have a Materially Adverse
Effect.
Section 8.12 Approval of Regulatory Authorities. Except as set forth on
Schedule 8.03 hereto and other than the approvals of the BPU referred to in
Section 7.01(l) hereof, no approval or consent of, or filing or registration
with, any Federal, state or local commission or other regulatory authority is
required in connection with the execution, delivery and performance by the
Obligors and the Guarantors of such of this Agreement and the Notes to which
they are a party. All such described action required to be taken as a condition
to the execution and delivery of such of this Agreement and the Notes to which
the Obligors and the Guarantors are a party has been duly taken by all such
commissions and authorities or other Persons, as the case may be, and all such
action required to be taken as a condition to the initial Loans hereunder has
been or will be duly taken prior to such initial Loans.
Section 8.13 Binding Agreements. This Agreement constitutes and the Notes
when executed and delivered will constitute, the legal, valid and binding
obligations of each of the Obligors and the Guarantors, enforceable in
accordance with their respective terms (except for limitations on enforceability
under bankruptcy, reorganization, insolvency and other similar laws affecting
creditors' rights generally and limitations on the availability of the remedy of
specific performance imposed by the application of general equitable
principles).
37
Section 8.14 Franchises. Schedule 8.14 hereto contains a complete and
correct list, as of the date hereof and the date of the initial Loan hereunder,
of all of the Franchises granted to the Company and the Guarantors, in each case
together with the expiration date thereof, or for which applications have been
made, or are planned to be made, by the Company or any of the Guarantors.
Section 8.15 Collective Bargaining Agreements. Except as disclosed to the
Banks in writing prior to the Effective Date, there are no collective bargaining
agreements between the Company or any of the Guarantors and any trade or labor
union or other employee collective bargaining agent.
Section 8.16 Investments. Schedule 9.15 hereto contains a complete and
correct list, as at the date hereof, of all Investments of the Company and the
Guarantors in excess of $350,000, showing the respective amounts of each such
Investment and the respective entity in which each such Investment has been
made.
ARTICLE IX
PARTICULAR COVENANTS OF THE COMPANY AND THE GUARANTORS
From the Effective Date and so long as the Commitments of the Banks shall
be in effect and until the payment in full of all Obligations hereunder and the
performance of all other obligations of the Obligors and Guarantors under this
Agreement, each of the Company and the Guarantors agrees that, unless the
Majority Banks shall otherwise consent in writing:
A. Informational Covenants:
Section 9.01 Financial Statements and Other Information. The Company and
the Guarantors will deliver to each Bank:
(a) As soon as available and in any event within 60 days after the end of
each of the first three Quarters of each fiscal year of the Company: (i)(A)
consolidated statements of operations, stockholders' equity (deficiency) and
cash flows of the Company and its consolidated Subsidiaries, taken together, for
such Quarter and for the period from the beginning of such fiscal year to the
end of such Quarter and (B) the related consolidated balance sheets of the
Company and its consolidated Subsidiaries, taken together, as at the end of such
Quarter (which financial statements shall set forth in comparative form the
corresponding figures as at the end of and for the corresponding Quarter in the
preceding fiscal year) and (ii)(A) combined statements of operations or
earnings, parent's investment or combined deficit and cash flows of the New
York/New Jersey Companies, prepared on the same basis as the financial
statements referred to in Section 8.04(b), for such Quarter and for the period
from the beginning of such fiscal year to the end of such Quarter and (B) the
related combined balance sheets of the New York/New
38
Jersey Companies, prepared on the same basis as the financial statements
referred to in Section 8.04(b), as at the end of such Quarter (which financial
statements shall set forth in comparative form the corresponding figures as at
the end of and for the corresponding Quarter in the preceding fiscal year), all
in reasonable detail and accompanied by a certificate in the form of Exhibit
D(1) hereto of a senior financial executive of the Company and of the New
York/New Jersey Companies certifying such financial statements, subject,
however, to year-end and audit adjustments, which certificate shall include a
statement that the senior financial executive signing the same has no knowledge,
except as specifically stated, that any Default has occurred and is continuing.
(b) As soon as available and in any event within 120 days after the end of
each fiscal year of the Company: (i)(A) consolidated statements of operations,
stockholders' equity (deficiency) and cash flows of the Company and its
consolidated Subsidiaries, taken together, for such fiscal year and (B) the
related consolidated balance sheets of the Company and its consolidated
Subsidiaries, taken together, as at the end of such fiscal year (which financial
statements shall set forth in comparative form the corresponding figures as at
the end of and for the preceding fiscal year) and (ii)(A) combined statements of
operations or earnings, parent's investment or combined deficit and cash flows
of the New York/New Jersey Companies, prepared on the same basis as the
financial statements referred to in Section 8.04(b), for such fiscal year and
(B) the related combined balance sheets of the New York/New Jersey Companies,
prepared on the same basis as the financial statements referred to in Section
8.04(b), as at the end of such fiscal year (which financial statements shall set
forth in comparative form the corresponding figures as at the end of and for the
preceding fiscal year), all in reasonable detail and accompanied by (x) an
opinion of KPMG Peat Marwick or other independent certified public accountants
of recognized standing selected by the Company and reasonably acceptable to the
Majority Banks as to said combined and/or consolidated financial statements and
a certificate of such accountants stating that, in making the examination
necessary for said opinion, they obtained no knowledge, except as specifically
stated, of any failure by the Company, any of its Subsidiaries or any of the New
York/New Jersey Companies to perform or observe any of its covenants relating to
financial matters in this Agreement, and (y) a certificate in the form of
Exhibit D(2) hereto of a senior financial executive of the Company and of the
New York/New Jersey Companies, stating that such financial statements are
correct and complete and fairly present the financial condition and results of
operations of the respective entities covered thereby as at the end of and for
such fiscal year and that the executive signing the same has no knowledge,
except as specifically stated, that any Default has occurred and is continuing.
(c) Promptly after their becoming available, copies of all financial
statements and reports which the Company or any Guarantor shall have sent its
shareholders generally (other than tax returns unless specifically requested
under clause (h) of this Section 9.01), and copies of all regular and periodic
reports, if any, which the Company or any Guarantor shall have filed with the
Securities and Exchange Commission, or any governmental agency substituted
therefor, or with any national securities exchange, or with the Federal
Communications Commission, or any governmental agency substituted therefor.
(d) Within 60 days after the end of each of the first three Quarters of
each year, and within 120 days after the end of each fiscal year of the Company,
a Compliance Certificate, duly completed with respect to such Quarter or fiscal
year, as the case may be.
(e) Within 35 days after the end of each calendar month, a Subscribers'
Certificate, duly completed with respect to such month.
39
(f) Promptly, notice of the termination, cancellation, nonrenewal or other
loss of any Franchise for a cable television system or systems that has had or
is likely to have, either alone or in conjunction with all other such losses, a
Materially Adverse Effect, the filing of a competing application in connection
with any proceeding for renewal of any such Franchise and of any proceeding
which involves a material risk of the termination, cancellation, nonrenewal or
other loss of any such Franchise.
(g) As soon as possible and in any event within ten days after any senior
executive of the Company or any Guarantor or of any general partner of any
Guarantor shall have obtained knowledge of the occurrence of a Default, a
statement describing such Default and the action which is proposed to be taken
with respect thereto.
(h) From time to time, with reasonable promptness, such further
information regarding the business, affairs and financial condition of the
Company or any Guarantor or any of their respective Affiliates or other
affiliates as any Bank may reasonably request.
B. Affirmative Covenants:
Section 9.02 Taxes and Claims. Each of the Company and the Guarantors will
pay and discharge all Taxes imposed upon it or upon its income or profits, or
upon any properties or assets belonging to it, and all fees or other charges for
Franchises, prior to the date on which penalties attach thereto, and all other
lawful claims which, if unpaid, might become a Lien (other than Permitted Liens)
upon the property of the Company or any Guarantor or result in the loss of a
Franchise, provided that neither the Company nor any Guarantor shall be required
to pay any such Tax, fee or other charge the payment of which is being contested
in good faith and by proper proceedings if it maintains adequate reserves in
accordance with generally accepted accounting principles with respect thereto.
Section 9.03 Insurance. Each of the Company and the Guarantors will
maintain insurance issued by responsible companies in such amounts and against
such risks as is usually carried by owners of similar businesses and properties
in the same general areas in which the Company or such Guarantor operates. The
Company and the Guarantors will furnish to any Bank, upon the request of such
Bank from time to time, full information as to the insurance maintained in
accordance with this Section 9.03.
Section 9.04 Maintenance of Existence; Conduct of Business. Each of the
Company and the Guarantors will preserve and maintain its existence and all of
its rights, privileges and franchises (including Franchises), except (i) where a
failure to do so, singly or in the aggregate, is not likely to have a Materially
Adverse Effect, (ii) pursuant to a Permitted Affiliate Transaction or (iii)
pursuant to any merger or consolidation permitted by Section 9.14(a)(i).
Section 9.05 Maintenance of and Access to Properties. Each of the Company
and the Guarantors will keep all of its properties and assets necessary in its
business in good working order and condition, ordinary wear and tear excepted,
and will permit representatives of the respective Banks to inspect such
properties, and to examine and make extracts from its books and records, during
normal business hours.
40
Section 9.06 Compliance with Applicable Laws Each of the Company and the
Guarantors will comply with the requirements of all applicable, including but
not limited to environmental, laws, rules, regulations and orders of any
governmental body or regulatory authority a breach of which is likely to have,
singly or in the aggregate, a Materially Adverse Effect, except where contested
in good faith and by proper proceedings if it maintains adequate reserves in
accordance with generally accepted accounting principles with respect thereto.
Section 9.07 Litigation. Each of the Company and the Guarantors will
promptly give to the Administrative Agent notice in writing (and the
Administrative Agent will notify each Bank) of all litigation and of all
proceedings before any courts, arbitrators or governmental or regulatory
agencies against it or, to its knowledge, otherwise affecting it or any of its
respective properties or assets, except litigation or proceedings which, if
adversely determined, is not likely to, singly or in the aggregate, have a
Materially Adverse Effect. Following the initial notice of each such litigation
or proceeding, supplementary notices of all material developments in respect
thereof shall be given from time to time in like manner.
Section 9.08 New Subsidiaries. Promptly upon the acquisition or formation
of any New Subsidiary, the Company and the Guarantors will cause (by
documentation satisfactory to the Administrative Agent) such New Subsidiary to
undertake all of the obligations of a "Guarantor" under this Agreement and, in
the case of any such New Subsidiary which is a Subsidiary of a New York/New
Jersey Company, of a "Guarantor" under (and as defined in) the New York/New
Jersey Agreement. Each such New Subsidiary shall be a "Guarantor" for all
purposes of this Agreement and, as applicable, under the New York/New Jersey
Agreement.
Section 9.09 Franchises. The Company and the Guarantors will comply with
all of their obligations under their respective Franchises, except for failures
to comply which, singly or in the aggregate, are not likely to have a Materially
Adverse Effect.
C. Negative Covenants:
Section 9.10 Indebtedness. Neither the Company nor any of the Guarantors
will create, incur or suffer to exist any Indebtedness except:
(i) Indebtedness hereunder and under the New York/New Jersey
Agreement;
(ii) short-term Indebtedness incurred for working capital purposes
from one or more of the Banks up to but not exceeding $12,000,000 in aggregate
principal amount at any one time outstanding;
(iii) obligations under or in respect of Interest Swap Agreements up
to an aggregate notional principal amount not to exceed at any time the Total
Commitment at such time;
(iv) Guarantees and letters of credit permitted by Section 9.11
hereof;
(v)(A) Indebtedness of the Company or any of its Subsidiaries to any
Guarantor or the Company and (B) Indebtedness of any New York/New Jersey Company
to any other New York/New Jersey Company;
41
(vi) Indebtedness in respect of Capital Lease Obligations, so long
as the aggregate principal amount of such Indebtedness outstanding at any one
time shall not exceed the sum of $18,000,000;
(vii) all other Indebtedness issued and outstanding on the date
hereof to the extent set forth on Schedule 9.10 hereto and any renewals,
extensions or refundings thereof in a principal amount not to exceed the amount
so renewed, extended or refunded; and
(viii) Indebtedness in respect of the Xxxxxx Notes (as defined in
the 1996 Agreement) in an aggregate principal amount not tin excess of
$141,300,000, provided that such Indebtedness shall be paid in full on or prior
to the twentieth day after the Effective Date.
Section 9.11 Contingent Liabilities. Neither the Company nor any of the
Guarantors will, directly or indirectly (including, without limitation, by means
of causing a bank to open a letter of credit), guarantee, endorse, contingently
agree to purchase or to furnish funds for the payment or maintenance of, or
otherwise be or become contingently liable upon or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or guarantee the payment of dividends or other distributions upon the
stock or other ownership interests of any Person, or agree to purchase, sell or
lease (as lessee or lessor) property, products, materials, supplies or services
primarily for the purpose of enabling a debtor to make payment of its
obligations or to assure a creditor against loss (all such transactions being
herein called "Guarantees"), except:
(i) endorsements of negotiable instruments for deposit or collection
in the ordinary course of business;
(ii) the Guarantees described in Schedule 9.11;
(iii)(A) Guarantees by the Company or one or more of its
Subsidiaries of Indebtedness of, and other obligations (incurred in the ordinary
course of business) of, the Company or any of the Guarantors and (B) Guarantees
by a New York/New Jersey Company of Indebtedness of, and other obligations
(incurred in the ordinary course of business) of another New York/New Jersey
Company, but only if, in the case of clauses (A) and (B) of this clause (iii),
such Indebtedness or other obligations are permitted by the Agreement;
(iv) Capital Lease Obligations to the extent they constitute
Guarantees by reason of having been assigned by the lessor to a lender to such
lessor (provided that the obligors in respect of such Capital Lease Obligations
do not increase their liability by reason of such assignment);
(v) surety bonds in an aggregate amount at any one time not to
exceed $12,500,000;
(vi) Guarantees of Indebtedness which would constitute Investments
which are not prohibited by Section 9.15 (other than by reason of subsection
(iii) thereof);
(vii) the Guarantees in Article VI hereof and in Article VI of the
New York/New Jersey Agreement; and
42
(viii) other Guarantees by the Company or any of the Guarantors,
provided that the outstanding aggregate amount of the obligations guaranteed
does not exceed $7,500,000 at any time.
Section 9.12 Liens. Neither the Company nor any of the Guarantors will
create or suffer to exist any mortgage, pledge, security interest, conditional
sale or other title retention agreement, lien, charge or encumbrance upon any of
its assets, now owned or hereafter acquired, securing any Indebtedness or other
obligation (all such security being herein called "Liens"), except:
(i)(A) Liens on tangible personal property of any Subsidiary of the
Company securing Indebtedness owed to the Company and (B) Liens on tangible
personal property of any New York/New Jersey Subsidiary securing Indebtedness
owed to any New York/New Jersey Obligor;
(ii) Liens securing Indebtedness permitted by Section 9.10(vi)
hereof to the extent such Liens attach solely to the assets (x) subject to
Capital Leases constituting such Indebtedness or (y) acquired with the proceeds
of such Indebtedness;
(iii) Permitted Liens; and
(iv) other Liens on tangible personal property in effect on the date
hereof to the extent set forth on Schedule 9.12 hereto.
In addition, neither the Company nor any of the Guarantors will enter into or
permit to exist any undertaking by it or affecting any of its properties whereby
the Company or such Guarantor shall agree with any Person (other than the Banks
or the Administrative Agent hereunder or under the New York/New Jersey
Agreement) not to create or suffer to exist any Liens in favor of any other
Person.
Section 9.13 Leases. Neither the Company nor any of the Guarantors will
incur, assume or have outstanding any obligation to pay rent under Leases (as
lessee, guarantor or otherwise) except:
(i) Pole Rental Leases and Leases of microwave transmission and/or
reception rights related to the operation of the Company and the Guarantors;
(ii) obligations under Leases by one Subsidiary of the Company or
any New York/New Jersey Obligor to another Subsidiary of the Company or any New
York/New Jersey Obligor, as the case may be; and
(iii) obligations under Leases of equipment and other real or
personal property for use in the ordinary course of its business.
Section 9.14 Mergers, Acquisitions and Dispositions, Etc. (a) Neither the
Company nor any of the Guarantors will consolidate or merge with any Person, or
sell, lease, license, assign, transfer or otherwise dispose of any part of its
business, assets or rights except:
43
(i) dispositions by the Company or any of its Subsidiaries to, or
mergers or consolidations of any of the Company's Subsidiaries with, CSC or any
other Restricted Subsidiary and dispositions by any New York/New Jersey Company
to, or mergers or consolidations of any New York/New Jersey Company with and
into, any other New York/New Jersey Company or, so long as the New York/New
Jersey Agreement is no longer in effect, the Company or any of its Subsidiaries;
(ii) subject to Section 9.18 hereof, sales by the Company or any of
the Guarantors to Affiliates of surplus inventory, equipment and fixed assets
originally acquired for use by the Company or such Guarantor in its own
business;
(iii) dispositions in the ordinary course of business (including,
without limitation, dispositions of obsolete or worn-out property and other
property reasonably determined by the management of the disposing entity to be
not used or useful in its business);
(iv) dispositions of any Margin Stock;
(v) the Paramus-Hillsdale Sale; and
(vi) dispositions by the Company or any of the Guarantors (other
than, so long as the New York/New Jersey Agreement is in effect, any disposition
by any New York/New Jersey Company to CSC or any Restricted Subsidiary)
(including, without limitation, by merger or consolidation of any Subsidiary of
the Company or any New York/New Jersey Subsidiary) of cable television systems
or portions thereof (including but not limited to, (i) dispositions by way of
merger or consolidation of any Subsidiary of the Company or any New York/New
Jersey Subsidiary and (ii) dispositions in connection with which cable
television systems or portions thereof are acquired in exchange for the cable
television systems or portions thereof so disposed), provided that, in the case
of any such disposition:
(A) immediately prior to, and after giving effect to, such
disposition, no Default shall have occurred and be continuing; and
(B) at any time when the Cash Flow Ratio exceeds 5.50 to 1, the
amount of Operating Cash Flow attributable to the assets to be disposed
for the twelve-month or five-year, as the case may be, period ending on
the last day of the calendar month immediately preceding the month in
which such disposition is to occur (such twelve-month or five year period
being referred to herein as the relevant "Test Period"), together with the
aggregate amount of Operating Cash Flow for the relevant Test Period
attributable to any other assets so disposed by the Company or any
Guarantor during the twelve-month or five-year, as the case may be, period
prior to the date that such disposition is to occur, shall not exceed (x)
in the case of such twelve-month Test Period, 25% of the aggregate amount
of Operating Cash Flow for such Test Period, and (y) in the case of such
five-year Test Period, 35% of the aggregate amount of Operating Cash Flow
for such Test Period.
The Company shall furnish to the Administrative Agent prior to any such
disposition (1) a certificate of an officer of the Company and, if applicable,
the New York/New Jersey Obligors
44
certifying compliance with the requirements of clauses (A) and, if applicable,
(B) of this subparagraph (v) and (2) in the case of any disposition to which
clause (b) is applicable, a reasonably detailed description of such disposition
demonstrating compliance with all of the Company's and the Guarantors' covenants
and agreements under this Agreement both before and after giving effect to such
disposition.
(b) Neither the Company nor any of the Guarantors will purchase or acquire
assets from, or the business or assets of, any other Person, except:
(i) the purchase of assets in the ordinary course of business as
conducted on the Effective Date by the Company and the Guarantors; and
(ii) the acquisition (including, without limitation, by merger or
consolidation of any Subsidiary of the Company or any New York/New Jersey
Subsidiary) of all or any part of the business or assets of any Person engaged
in the business of developing, constructing, owning, acquiring, altering,
repairing, financing, operating, maintaining, publishing, distributing,
promoting and otherwise exploiting cable television systems and related
businesses, including, without limitation, telecommunications services, data
transmission and telephony activities, provided that, in the case of any such
acquisition:
(A) immediately prior to, and after giving effect to, any such
acquisition no Default shall have occurred and be continuing; and
(B) if the assets so acquired consist of stock or other
ownership interests of any Person which is to become either a
Subsidiary of the Company or a New York/New Jersey Subsidiary, the
Company and its Subsidiaries or the New York/New Jersey Companies,
as the case may be, shall acquire in the aggregate not less than 80%
of the issued and outstanding shares of all classes of stock, or
other ownership interests, of such Person.
The Company shall furnish to the Administrative Agent prior to any such
acquisition (1) a certificate of an officer of the Company and, if applicable,
the New York/New Jersey Obligors certifying compliance with the requirements of
clauses (A) and (B) of this subparagraph (ii) and (2) a reasonably detailed
description of such acquisition demonstrating compliance with all of the
Company's and the Guarantors' covenants and agreements under this Agreement both
before and after giving effect to such acquisition.
Section 9.15 Investments. Neither the Company nor any of the Guarantors
will make or permit to remain outstanding any advances, loans, accounts
receivable (other than accounts receivable arising in the ordinary course of
business of the Company or such Guarantor) or other extensions of credit
(excluding, however, accrued and unpaid interest in respect of any advance, loan
or other extension of credit) or capital contributions to (by means of transfers
of property to others, or payments for property or services for the account or
use of others, or otherwise), or purchase or own any stocks, bonds, notes,
debentures or other securities (including, without limitation, any interests in
any partnership, joint venture or joint adventure) of, or any bank accounts
with, or Guarantee any Indebtedness or other obligations of, any Person (all
such transactions being herein called "Investments"), except:
45
(i) bank accounts with, and banker's acceptances and certificates of
deposit of, banks having a combined capital and surplus of at least
$100,000,000;
(ii) readily marketable securities issued or guaranteed by the
United States Government and commercial paper rated P-1 by the National Credit
Office of Xxxxx'x Investors Service Inc. or bearing a similar rating by another
nationally recognized rating agency;
(iii) Guarantees permitted by Section 9.11 hereof;
(iv)(A) loans and advances by the Company or any of its Subsidiaries
to CSC or any other Restricted Subsidiary and (B) loans and advances by any New
York/New Jersey Company to any other New York/New Jersey Company;
(v) Investments outstanding as of the date hereof to the extent set
forth on Schedule 9.15 hereto; and
(vi) other Investments made by the Company and the Guarantors after
the Effective Date so long as, in the case of any Investment by the Company or
any of its Subsidiaries in any Person other than a Subsidiary of the Company and
in the case of any Investment by any New York/New Jersey Company in any Person
other than the Company or any of its Subsidiaries or any New York/New Jersey
Subsidiary, (A) no Default shall have occurred both before and after giving
effect to each such Investment and (B) in the case of any such Investment or
series of related Investments (other than Specified Investments) in an aggregate
amount in excess of $50,000,000, the Company and the Guarantors shall have
furnished to the Banks a reasonably detailed description of such Investment or
series of Investments demonstrating compliance with all of the Company's and the
Guarantors' covenants and agreements under this Agreement and under the New
York/New Jersey Agreement both before and after giving effect to such Investment
or series of Investments.
Section 9.16 Restricted Payments. Neither the Company nor any Guarantor
will, directly or indirectly, make any Restricted Payment.
Section 9.17 Business. At any time when the Cash Flow Ratio exceeds 5.50
to 1, neither the Company and its Subsidiaries nor the New York/New Jersey
Companies shall permit the portion of consolidated gross revenues of the Company
and its Subsidiaries or the New York/New Jersey Companies, as the case may be,
derived from the business of developing, constructing, owning, acquiring,
altering, repairing, financing, operating, maintaining, publishing,
distributing, promoting and otherwise exploiting cable television systems and
related businesses, including, without limitation, telecommunications services,
data transmission and telephony activities, for any Quarter to be less than 90%
of the total consolidated gross revenues of the Company and its Subsidiaries or
the New York/New Jersey Companies, as the case may be, for such Quarter.
Section 9.18 Transactions with Affiliates. Neither the Company nor any
Guarantor will effect any transaction with any of its Affiliates that is not a
Restricted Subsidiary or a New York/New Jersey Company on a basis less favorable
to the Company or such Guarantor than
46
would at the time be obtainable for a comparable transaction in arm's-length
dealing with an unrelated third party.
Section 9.19 Issuance of Stock. Neither the Company nor any of the New
York/New Jersey Obligors will permit any of its Subsidiaries to issue any shares
of stock or other ownership interests in such Subsidiary other than to, in the
case of the Subsidiaries of the Company, the Company and its Subsidiaries or, in
the case of the New York/New Jersey Subsidiaries, the New York/New Jersey
Obligors.
D. Financial Covenants:
Section 9.20 Operating Cash Flow. (a) Operating Cash Flow to Total
Interest Expense. The Company and the Guarantors will cause, for each Quarter,
the ratio of Operating Cash Flow for the period of two Quarters ending with such
Quarter to Total Interest Expense for such period of two Quarters ending with
such Quarter to be at least the following respective amounts at any time during
the following respective periods:
Period Ratio
------ -----
from and including the Effective
Date to and including the
Quarter ended December 31, 1998 1.50 to 1
from and including January 1, 1999
to and including the Quarter
ended December 31, 2000 1.75 to 1
on and after January 1, 2001 2.00 to 1
(b) Operating Cash Flow less Cash Taxes to Total Debt Expense. The Company
and the Guarantors will cause, for each Quarter, the ratio of (i) Operating Cash
Flow for the period of two Quarters ending with such Quarter less Cash Taxes
paid during such period of two Quarters to (ii) Total Debt Expense for such
period of two Quarters ending with such Quarter to be at least 1.20 to 1.
Section 9.21 Cash Flow Ratio. The Company and the Guarantors will not
permit the Cash Flow Ratio to exceed the following respective amounts at any
time during the following respective periods:
47
Period Ratio
------ -----
from and including the Effective
Date to and including December 31, 1999 6.50 to 1
from and including January 1, 2000 to
and including September 30, 2000 6.25 to 1
from and including October 1, 2000 to
and including June 30, 2001 6.00 to 1
from and including July 1, 2001 to
and including December 31, 2001 5.75 to 1
from and including January 1, 2002 to
and including June 30, 2002 5.50 to 1
from and including July 1, 2002 to
and including December 31, 2002 5.25 to 1
on and after January 1, 2003 5.00 to 1.
ARTICLE X
DEFAULTS
Section 10.01 Events of Default. If any one of the following "Events of
Default" shall occur and be continuing, namely:
(a) Any representation or warranty in this Agreement or in any
certificate, statement or other document furnished to the Banks or the
Administrative Agent under this Agreement (including, without limitation, any
amendment to any of the foregoing), or any certification made or deemed to have
been made by either Obligor or any Guarantor to any Bank hereunder, shall prove
to have been incorrect, or shall be breached, in any material respect, when made
or deemed made; or
(b) Default in the payment when due of any principal on any Note, or
default in the payment when due of interest on any Note or any other amount
payable to any Bank or the Administrative Agent hereunder and the failure to pay
such interest or other amount by 11:00 a.m. on the second next following
Business Day; or
(c) Default by the Company or any of the Guarantors in the performance or
observance of any of its agreements in Article IX hereof (other than Sections
9.01, 9.02, 9.03, 9.04, 9.05, 9.06, 9.07 and 9.15 hereof but including Section
9.01(g) hereof); or
(d) Default by the Company or any of the Guarantors in the performance or
observance of any of its other agreements herein which shall remain unremedied
for 30 days
48
after notice thereof shall have been given to the Company by any Bank (provided
that such period shall be five days and no such notice shall be required in the
case of a default under Section 9.01(e) or 9.15 hereof and provided further that
such period shall be fifteen days and no such notice shall be required in the
case of a default under Section 9.01(d) hereof); or
(e) Any Indebtedness of the Company or any of the Guarantors in an
aggregate principal amount of $2,500,000 or more, excluding any Indebtedness for
the deferred purchase price of property or services owed to the Person providing
such property or services as to which the Company or such Guarantor is
contesting its obligation to pay the same in good faith and by proper
proceedings and for which the Company or such Guarantor has established
appropriate reserves (herein called "Excluded Indebtedness"), shall (i) become
due before stated maturity by the acceleration of the maturity thereof by reason
of default or (ii) become due by its terms and shall not be promptly paid or
extended; or
(f) Any default under any indenture, credit agreement or loan agreement or
other agreement or instrument under which Indebtedness of the Company or any of
the Guarantors constituting indebtedness for borrowed money in an aggregate
principal amount of $500,000 or more is outstanding (other than Excluded
Indebtedness), or by which any such Indebtedness is evidenced, shall have
occurred and shall continue for a period of time sufficient to permit the holder
or holders of any such Indebtedness (or a trustee or agent on its or their
behalf) to accelerate the maturity thereof or to enforce any Lien provided for
by any such indenture, agreement or instrument, as the case may be, unless such
default shall have been permanently waived by the respective holder of such
Indebtedness; or
(g) The Company or any of the Guarantors shall (i) apply for or consent to
the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of itself or of all or a substantial part of its property,
(ii) admit in writing its inability, or be generally unable, to pay its debts as
they become due, (iii) make a general assignment for the benefit of creditors,
(iv) be adjudicated a bankrupt or insolvent, (v) commence a voluntary case under
the Federal bankruptcy laws (as now or hereafter in effect), (vi) file a
petition seeking to take advantage of any law relating to bankruptcy,
insolvency, reorganization, winding up or composition or adjustment of debts,
(vii) acquiesce in writing to, or fail to controvert in a timely and appropriate
manner, any petition filed against the Company or any of the Guarantors in any
involuntary case under such bankruptcy laws, or (viii) take any action for the
purpose of effecting any of the foregoing; or
(h) A case or other proceeding shall be commenced, without the
application, approval or consent of the Company or any of the Guarantors in any
court of competent jurisdiction, seeking the liquidation, reorganization,
dissolution, winding up, or composition or readjustment or debts of the Company
or any of the Guarantors the appointment of a trustee, receiver, custodian,
liquidator or the like of the Company or any of the Guarantors or of all or any
substantial part of its assets, or any other similar action with respect to the
Company or any of the Guarantors under the laws of bankruptcy, insolvency,
reorganization, winding up or composition or adjustment of debts, and such case
or proceeding shall continue undismissed, or unstayed and in effect, for any
period of 30 consecutive days, or an order for relief against the
49
Company or any of the Guarantors shall be entered in an involuntary case under
the Federal bankruptcy laws (as now or hereafter in effect); or
(i) A judgment for the payment of money in excess of $250,000 shall be
rendered against the Company or any of the Guarantors and such judgment shall
remain unsatisfied and in effect for any period of 30 consecutive days without a
stay of execution or (if a stay is not provided for by applicable law) without
having been fully bonded; or
(j) Any Franchise issued to the Company or any of the Guarantors shall be
revoked or canceled or expire by its terms and not be renewed, or shall be
modified in a manner adverse to the Company or any of the Guarantors utilizing
such Franchise, if such action is likely to have a Materially Adverse Effect; or
(k) (i) Any Termination Event shall occur; (ii) any Accumulated Funding
Deficiency, whether or not waived, shall exist with respect to any Plan; (iii)
any Person shall engage in any Prohibited Transaction involving any Plan; (iv)
the Company, any Guarantor or any ERISA Affiliate is in "default" (as defined in
Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan
resulting from the Company's, any Guarantor's or any ERISA Affiliate's complete
or partial withdrawal (as described in Section 4203 or 4205 of ERISA) from such
Plan; (v) the Company, any Guarantor or any ERISA Affiliate of any such Person
shall fail to pay when due an amount which is payable by it to the PBGC or to a
Plan under Title IV of ERISA and which, when aggregated with all other such
amounts with respect to the payment of which the Company, the Guarantors and the
ERISA Affiliates are at the time in default, exceeds $125,000; (vi) a proceeding
shall be instituted by a fiduciary of any Plan against the Company, any
Guarantor or any ERISA Affiliate to enforce Section 515 of ERISA and such
proceeding shall not have been dismissed within 30 days thereafter; and by
reason of any or all of such events described in clauses (i) through (vi) as
applicable there shall or could result in actual or potential liability of the
Company, any Guarantor and any ERISA Affiliate in excess of $125,000 in the
aggregate; or
(l) CSC shall either cease to own, either directly or indirectly, 100% of
the common stock of the Company, or any Person other than CSC or a direct or
indirect wholly-owned Subsidiary of CSC shall obtain the legal or contractual
right to own, or to cause the transfer of the ownership of, any of the common
stock of the Company, without regard to any required approval of any other
Person; or
(m) Any Event of Default under (and as defined in) the New York/New Jersey
Agreement shall have occurred and be continuing; or
(n) The New York/New Jersey Agreement (other than any provision thereof
which by the terms thereof survives a termination thereof) shall cease to be in
effect at any time and any of the New York/New Jersey Companies shall have
failed to become a Subsidiary of the Company and a Restricted Subsidiary under
(and as defined in) the CSC Agreement in accordance with Section 9.08 (b)
thereof either at or before such time.
THEREUPON, the Administrative Agent may (and, if directed by the Majority Banks,
shall) by notice to the Company, terminate the Commitments of the Banks
hereunder (if then outstanding)
50
and/or declare the unpaid principal of and accrued interest on the Notes, and
all other amounts owing hereunder, to be forthwith due and payable, whereupon
the same shall be and become forthwith due and payable, without presentment or
demand for payment, notice of nonpayment, protest or further notice or demand of
any kind, all of which are hereby expressly waived by the Company (provided that
the Banks' Commitments hereunder shall forthwith terminate and the unpaid
principal of and accrued interest on the Notes, and all other amounts owing
hereunder, shall automatically become and be forthwith due and payable upon the
occurrence of any event specified in clause (g) or (h) above without any such
notice or other action, all of which are hereby expressly waived by the
Company).
ARTICLE XI
THE ADMINISTRATIVE AGENT
Section 11.01 Appointment, Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Administrative Agent to act as its agent
hereunder with such powers as are specifically delegated to the Administrative
Agent by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in this Agreement
and shall not by reason of this Agreement be a trustee for any Bank. The
Administrative Agent shall not be responsible to any of the Banks for any
recitals, statements, representations or warranties contained in this Agreement,
or in any certificate or other document referred to or provided for in, or
received by any of the Banks under, this Agreement, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other document referred to or provided for herein or for any failure by
either Obligor to perform any of its obligations hereunder. The Administrative
Agent may employ agents and attorneys-in-fact and shall not be responsible,
except as to money or securities received by it or its authorized agents, for
the negligence or misconduct of any such agents or attorneys-in-fact selected by
it with reasonable care. Neither the Administrative Agent nor any of its
directors, officers, employees or agents shall be liable or responsible for any
action taken or omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful misconduct.
Section 11.02 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof received by telephone, telex, telegram or cable) believed
by it to be genuine and correct and to have been signed or sent by or on behalf
of the proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the
Administrative Agent. As to any matters not expressly provided for by this
Agreement, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or thereunder in accordance with
instructions signed by the Majority Banks, and such instructions of the Majority
Banks and any action taken or failure to act pursuant thereto shall be binding
on all of the Banks.
Section 11.03 Defaults. The Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default (other than the non-payment of
principal of or interest on the Obligations) unless the Administrative Agent has
received notice from a Bank or the
51
Company specifying such Default and stating that such notice is a "Notice of
Default". In the event that the Administrative Agent receives such a notice of
the occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Banks (and shall give each Bank prompt notice of each such
non-payment). The Administrative Agent shall (subject to Section 11.07 hereof)
take such action with respect to such Default as shall be reasonably directed by
the Majority Banks, provided that, unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may take such
action, or refrain from taking such action, with respect to such Default as it
shall deem advisable in the best interest of the Banks.
Section 11.04 Rights as a Bank. With respect to its Commitment and the
Loans made by it, the Administrative Agent in its capacity as a Bank hereunder
shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not acting as Administrative Agent, and the
term "Bank" or "Banks" shall, unless the context otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent
and its affiliates may (without having to account therefor to any Bank) accept
deposits from, lend money to and generally engage in any kind of banking, trust
or other business with the Company, the Guarantors, CSC and any of their
Affiliates as if it were not acting as Administrative Agent, and the
Administrative Agent and its affiliates may accept fees and other consideration
from the Company, the Guarantors and CSC for services in connection with this
Agreement or otherwise without having to account for the same to the Banks.
Section 11.05 Indemnification. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed under Section 12.03 hereof,
but without limiting the obligations of the Company under said Section 12.03),
ratably in accordance with the aggregate principal amount of the Obligations
held by the Banks (or, if no Loans are at the time outstanding, ratably in
accordance with their respective Commitments), for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of this Agreement or any other documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses which the Company is
obligated to pay under Section 12.03 hereof but excluding, unless a Default has
occurred and is continuing, normal administrative costs and expenses incident to
the performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or of any such other documents, provided that no Bank shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be indemnified.
Section 11.06 Non-Reliance on Administrative Agent and Other Banks. Each
Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of CSC,
the Company and the Guarantors, and decision to enter into this Agreement and
that it will, independently and without reliance upon the Administrative Agent
or any other Bank, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement or any other document
contemplated by or referred to herein. The Administrative Agent shall not be
required to keep itself informed as to the performance or observance by CSC,
52
the Company and the Guarantors of this Agreement or to inspect the properties or
books of the Company and its Subsidiaries. Except for notices, reports and other
documents and information expressly required to be furnished to the Banks by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of CSC, the Company and
the Guarantors (or any of their Affiliates) which may come into the possession
of the Administrative Agent or any of its affiliates.
Section 11.07 Failure to Act. Except for action expressly required of the
Administrative Agent hereunder, the Administrative Agent shall in all cases be
fully justified in failing or refusing to act hereunder unless it shall be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action.
Section 11.08 Resignation or Removal of Administrative Agent. Subject to
the appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Banks and the Obligors and the Administrative Agent may be removed at any
time with or without cause by the Majority Banks. Upon any such resignation or
removal, the Majority Banks shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Majority Banks and shall have accepted such appointment within
30 days after the retiring Administrative Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent, which shall be a bank organized or licensed
under the laws of the United States of America or any State having an office (or
an affiliate with an office) in New York, New York and a combined capital and
surplus of at least $100,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After the retiring Administrative Agent's resignation
or removal hereunder as Administrative Agent, the provisions of this Article XI
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.
Section 11.09 Agency Fee. So long as the Commitments are outstanding and
until payment in full of all Obligations hereunder, the Obligors will pay to the
Administrative Agent such fees as may have been agreed to by the Company and the
Administrative Agent. Such fees, once paid, shall be non-refundable.
ARTICLE XII
MISCELLANEOUS
Section 12.01 No Waiver. No failure on the part of the Administrative
Agent or any Bank to exercise and no delay in exercising, and no course of
dealing with respect to, any right, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or
53
partial exercise of any right, power or privilege under this Agreement preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The remedies provided herein are cumulative and not exclusive of
any remedies provided by law.
Section 12.02 Notices. All notices and other communications provided for
herein shall be by telegraph, cable or in writing and telecopied, telegraphed,
cabled, mailed or delivered to the intended recipient at the "Address for
Notices" specified in Schedule 12.02 hereto or, as to any party, at such other
address as shall be designated by such party in a notice to each other party.
Except as otherwise provided in Section 2.02 hereof, all notices and other
communications hereunder shall be deemed to have been duly given when
transmitted by telecopier, delivered to the telegraph or cable office or
personally delivered or, in the case of a mailed notice, four Business Days
after the date deposited in the mails, airmail postage prepaid, in each case
given or addressed as aforesaid.
Section 12.03 Expenses, Etc. The Company or CSC shall pay or reimburse
each of the Banks and the Administrative Agent for: (a) the reasonable fees and
expenses of Winthrop, Stimson, Xxxxxx & Xxxxxxx, special New York counsel to the
Administrative Agent, in connection with (i) the negotiation, preparation,
execution and delivery of this Agreement, the Notes and the other documents
contemplated by or referred to herein and the making of the Loans hereunder and
(ii) any amendment, modification or waiver of any of the terms of this
Agreement, the Notes or any of such other documents; (b) all reasonable costs
and expenses of the Banks and the Administrative Agent (including reasonable
counsels' fees and expenses) in connection with the enforcement, protection,
preservation or exercise of any of their rights under this Agreement, the Notes
and the other documents contemplated by or referred to herein; and (c) all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any governmental or revenue authority in respect of this Agreement,
any of the Notes or any other document referred to herein. Each Obligor shall
(to the fullest extent permitted by applicable law) indemnify the Administrative
Agent, the Banks and each affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them harmless against, any
and all losses, liabilities, claims or damages to which any of them may become
subject, insofar as such losses, liabilities, claims or damages arise out of or
in any way relate to or result from any actual or proposed use by either Obligor
of the proceeds of any Loan hereunder and/or the negotiation, execution,
delivery or performance of this Agreement or the Notes or any Loan made or to be
made hereunder or from any investigation, litigation or other proceeding
(including any threatened investigation or proceeding) relating to the
foregoing, and the Obligors shall reimburse the Administrative Agent and each
Bank, and each affiliate thereof and their respective directors, officers,
employees and agents, upon demand, for any expenses (including legal fees)
incurred in connection with any such investigation or proceeding (but excluding
any such losses, liabilities, claims, damages, or expenses to the extent, but
only to the extent, caused by action taken which constitutes the gross
negligence or willful misconduct of the Person to be indemnified). If and to the
extent that the obligations of either Obligor under the preceding sentence may
be unenforceable for any reason, such Obligor shall make the maximum
contribution to the payment and satisfaction of each of the losses, liabilities,
claims, damages and expenses referred to above as may be permitted by applicable
law.
Section 12.04 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes, nor any consent to any departure by either Obligor
therefrom, shall in
54
any event be effective unless the same shall be agreed or consented to by the
Majority Banks, and each such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided that no
amendment, waiver or consent shall, unless in writing and signed by all the
Banks, do any of the following: (a) increase the Commitment of any of the Banks,
extend the Commitment Termination Date or any date on which the Commitments are
scheduled to reduce hereunder, or subject the Banks to any additional
obligations; (b) reduce the principal of, or interest on, or fees with respect
to, the Obligations or the amount of any scheduled payments thereof; (c)
postpone any date fixed for payment of principal of, or interest on, or fees
with respect to, the Obligations or the Notes; (d) change the percentage of the
Commitments or of the aggregate unpaid principal amount of the Obligations, or
the number of Banks which shall be required for the Banks or any of them to take
any action under this Agreement; (e) change any provision contained in Section
2.03(b)(ii) (other than clause (F) of the proviso therein), Section
3.01(b)(iii), Section 4.05, Articles V, VI, VII, Section 12.03 or this Section
12.04; or (f) release or remove any Guarantor from its obligations hereunder
other than any such release or removal resulting from a transaction permitted by
Section 9.14 hereof.
Section 12.05 Successors and Assigns. (a) This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(b) Neither Obligor and no Guarantor may sell or assign its respective
rights or obligations hereunder or under the Notes without the prior consent of
all of the Banks and the Administrative Agent.
(c) At any time after the Effective Date, a Bank may sell a participation
of all or part of its rights and obligations under such Bank's Commitment under
this Agreement and the Notes to one or more commercial banks, investment
companies or other financial institutions that enter into participations of the
type contemplated by this Section 12.05 in the ordinary course of their business
and that qualify as "accredited investors," as such term is defined in
Regulation D of the Securities Act of 1933, as amended (each, a "participant"),
such participant's rights against such Bank to be set forth in a participation
agreement (a "Participation Agreement"); provided, however, that (i) such Bank
shall submit in writing to the Company and to the Administrative Agent a request
that each of the Company and the Administrative Agent consent to the choice of
such participant, (ii) the Company and the Administrative Agent shall consent in
writing to the choice of such participant prior to the time of effectiveness of
such participation, such consent not to be unreasonably withheld or delayed,
(iii) such participation, when added to the contemporaneous participations made
by such Bank under the CSC Agreement and, if then in effect, the New York/New
Jersey Agreement, must be in an amount not less than $10,000,000 (iv) such
participation shall be sold pro rata between such Bank's Commitment, such Bank's
CSC Commitment and, if the New York/New Jersey Agreement is then in effect, such
Bank's New York/New Jersey Commitment based on the relationship of each such
Commitment to such Bank's Aggregate Commitment and (v) in the event such Bank
was party to this Agreement on the Effective Date, after giving effect to such
participation, such Bank's Aggregate Commitment not so participated if any shall
be at least $10,000,000. All amounts payable by the Obligors to any Bank under
Article V hereof shall be determined as if such Bank had not sold any such
participations and as if such Bank were funding all of its Commitments and Loans
in the same way that it is funding the Commitments and Loans in which no
participations have been sold. In
55
no event shall a Bank that sells a participation be obligated to the participant
under its Participation Agreement to refrain from taking any action hereunder or
under such Bank's Note except that such Bank may agree in such Participation
Agreement that it will not, without the consent of such participant, agree to
(A) extend the Commitment Termination Date or any date on which any Commitments
are scheduled to reduce hereunder, (B) reduce the principal of, or interest on,
the Obligations or under the Notes or any Commitment Fee, (C) postpone any date
fixed for payment of the principal of, or interest on, the Obligations or under
the Notes, (D) consent to any release of all or a significant portion of any
collateral for the Obligations or (E) change any provision in Article VI hereof.
Any Bank selling a participation hereunder shall promptly notify the Company of
the effectiveness thereof.
(d) At any time after the Effective Date, a Bank may assign part of its
rights and obligations under such Bank's Commitment under this Agreement and the
Notes to one or more commercial banks or other financial institutions (each, an
"assignee") pursuant to an Assignment and Acceptance; provided, that (i) such
Bank shall submit in writing to the Company and the Administrative Agent a
request that each of the Company and the Administrative Agent consent to the
choice of such assignee, (ii) the Company and the Administrative Agent shall
consent in writing to the choice of such assignee prior to the time of
effectiveness of such assignment, such consent not to be unreasonably withheld
or delayed, (iii) such assignment, when added to the contemporaneous assignments
made by such Bank under the CSC Agreement and, if then in effect, the New
York/New Jersey Agreement, must be in an aggregate amount not less than
$10,000,000, (iv) such assignment shall be made pro rata between such Bank's
Commitment, such Bank's CSC Commitment and, if the New York/New Jersey Agreement
is then in effect, such Bank's New York/New Jersey Commitment based on the
relationship of each such Commitment to such Bank's Aggregate Commitment, (v)
the parties to each assignment shall execute and deliver to the Administrative
Agent, for its approval, acceptance and recording in the books and records
maintained pursuant to Section 12.05(f) hereof an Assignment and Acceptance,
together with a processing and recordation fee of, when added to the processing
and recordation fee under the contemporaneous assignments under the CSC
Agreement and, if then in effect, the New York/New Jersey Agreement, $3,500 and
(vi) in the event such Bank was party to this Agreement on the Effective Date,
after giving effect to such assignment, such Bank's Aggregate Commitment shall
be at least $10,000,000. Upon such execution, delivery, approval, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (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 Bank
hereunder and under the Notes and (y) the Bank 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 hereunder and under the Notes. Any Bank making an assignment
hereunder shall promptly notify the Company of the effectiveness thereof. In the
event of any such assignment, the Obligors shall, against receipt of the
existing Note of the Bank assignor, issue a new Note to the Bank assignee and,
in the case of a partial assignment, to such Bank assignor, in either case
appropriately reflecting such assignment.
(e) By executing and delivering an Assignment and Acceptance, the Bank
assignor hereunder and the assignee thereunder shall 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
56
assigning Bank makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; (ii) such assigning Bank makes
no representation or warranty with respect to the financial condition of either
Obligor or the performance or observance by either Obligor of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Sections 8.04 and 9.01 hereof 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 the Administrative Agent, such assigning Bank or any other
Bank 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; (v) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Administrative Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto; and (vi) such assignee agrees that it will perform in accordance with
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Bank.
(f) The Administrative Agent shall maintain books and records in which
shall be recorded (i) the names and addresses of the Banks and the Commitments
of, and principal amount of Obligations owing to, each Bank from time to time;
(ii) all other appropriate debits and credits as provided in this Agreement,
including, without limitation, all interest, fees (including attorneys' fees and
disbursements to the extent reimbursable hereunder), expenses, charges and other
Obligations; and (iii) all payments of Obligations made by the Obligors or for
the Obligors' account. All entries in such books and records shall be made in
accordance with the Administrative Agent's customary accounting practices as in
effect from time to time. The Administrative Agent will render a quarterly
statement to the Obligors detailing all relevant transactions for billing
purposes. Each and every such statement shall be deemed final, binding and
conclusive upon the Company in all respects as to all matters reflected therein
(absent manifest error), unless the Company, within 15 days after the date such
statement is rendered, delivers to the Administrative Agent written notice of
any objections which the Company may have to such statement. In that event, only
those items expressly objected to in such notice shall be deemed to be disputed
by the Company. Notwithstanding the foregoing, the Administrative Agent's
entries in the books and records evidencing Loans and other financial
accommodations made from time to time shall be final, binding and conclusive
upon the Company (absent manifest error) as to the existence and amount of the
Obligations recorded in such books and records.
(g) The Administrative Agent shall maintain at the applicable address for
notices as determined in accordance with Section 12.02 hereof a copy of each
Assignment and Acceptance delivered to and accepted by it and shall record in
such books and records the names and addresses of each Bank and the Commitment
of, and principal amount of the Loans owing to, such Bank from time to time. The
Obligors, the Guarantors, the Administrative Agent and the
57
Banks may treat each Person whose name is so recorded as a Bank hereunder for
all purposes of this Agreement.
(h) If any Bank (or, if such Bank has participated in any part of its
Loans or Commitment, any of such Bank's participants) does not agree with a
proposal of the Company for an amendment, waiver or consent in respect of an
issue described in the penultimate sentence of 12.05(c) hereof, the Obligors may
require that such Bank (and each of its participants, if any) transfer all of
its right, title and interest under this Agreement, under the CSC Agreement and,
if then in effect, the New York/New Jersey Agreement and such Bank's Note issued
hereunder, its note issued under the CSC Agreement and its note issued under the
New York/New Jersey Agreement to any Person (a "Proposed Bank") identified by
the Obligors who agrees to assume the obligations of such Bank and the CSC Loans
and New York/New Jersey Loans for a consideration equal to the outstanding
principal amount of such Bank's Loans, together with interest thereon to the
date of such transfer and all other amounts payable hereunder, under the CSC
Agreement and, if then in effect, the New York/New Jersey Agreement to such Bank
on or prior to the date of such transfer (including any fees accrued hereunder
and any amounts which would be payable under Section 5.05 hereof (or the
equivalent provisions of the CSC Agreement and, if then in effect, the New
York/New Jersey Agreement) as if all of such Bank's Loans, CSC Loans and New
York/New Jersey Loans were being prepaid in full on such date). Subject to the
execution and delivery of such instruments and agreements relating to such
transfer as the Banks (including the Proposed Bank and such Bank) shall request,
such Proposed Bank shall be a "Bank" for all purposes hereunder.
(i) A Bank may furnish any information concerning the Company , any of the
Guarantors or CSC in the possession of such Bank from time to time to assignees
and participants (including prospective assignees and participants).
(j) Notwithstanding anything in the foregoing to the contrary, (x) each
Bank may, without complying with any restrictions set forth in this Section
12.05, sell a participation or assign all or any part of its rights and
obligations under such Bank's Commitment under this Agreement and Notes to any
affiliate of such Bank, provided that the Company shall consent to the choice of
such affiliate, such consent not to be unreasonably withheld or delayed, and
provided, however, that any participation or assignment made by such affiliate
to a non-affiliate must be effected contemporaneously with its other affiliates
such that the non-affiliate participant or assignee holds pro rata amounts of
the Commitment, the CSC Commitment and, if the New York/New Jersey Agreement is
then in effect, the New York/New Jersey Commitment as if such participation or
assignment had been made by such Bank; and (y) each Bank may at any time,
without complying with any restrictions set forth in Section 12.05, assign all
or any portion of its rights under this Agreement and its Note to a Federal
Reserve Bank, provided that such assignment shall not release the Bank assignor
from its obligations under this Agreement.
Section 12.06 Survival. The obligations of the Company under Sections
5.01, 5.05 and 12.03 hereof shall survive the repayment of the Loans.
Section 12.07 Senior Indebtedness. The Obligations (including, without
limitation, the obligations of the Obligors and the Guarantors to pay, when due
(whether at stated maturity, by acceleration or otherwise), the principal of and
interest on the Loans to be made by the Banks to
58
the Obligors pursuant to Section 2.01 hereof and the obligations of the Company
and its Subsidiaries with respect to Interest Swap Agreements shall constitute
"Senior Indebtedness" or "Senior Debt" as such terms are defined in all
documents to which CSC or any Restricted Subsidiary is a party.
Section 12.08 Conditions to Effectiveness. This Agreement shall become
effective on the first day (the "Effective Date") on which (i) this Agreement
shall have been duly executed by the parties hereto and thereto and (ii) the
conditions precedent to the initial Loan under Article VII hereof shall have
been satisfied, at which time the 1996 Agreement shall be amended and restated
by this Agreement. If no Effective Date shall occur, the 1996 Agreement shall
remain in full force and effect.
Section 12.09 Liability of General Partners and Other Persons. No general
partner of any Subsidiary of the Company which is a partnership, joint venture
or joint adventure shall have any personal liability in respect of such
Subsidiary's obligation under this Agreement or the Notes by reason of his, her
or its status as such general partner. In addition, no limited partner, officer,
employee, director, stockholder or other holder of an ownership interest of or
in CSC, the Company or any of the Guarantors or any partnership, corporation or
other entity which is a stockholder or other holder of an ownership interest of
or in the Company, any of the Guarantors or CSC shall have any personal
liability in respect of such obligations by reason of his, her or its status as
such limited partner, officer, employee, director, stockholder or holder.
Section 12.10 Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 12.11 Waiver. THE COMPANY, THE GUARANTORS, CSC, THE ADMINISTRATIVE
AGENT AND THE BANKS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO
WHICH ANY OF THEM IS A PARTY INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF,
RELATED TO, OR CONNECTED WITH THIS AGREEMENT, THE NOTES OR THE RELATIONSHIP
ESTABLISHED HEREUNDER.
Section 12.12 Entire Agreement. This Agreement and the Notes embody the
entire agreement among the Obligors, the Guarantors and the Banks and supersede
all prior agreements, representations and understandings, if any, relating to
the subject matter hereof and thereof.
Section 12.13 Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the law of the State of New York.
Section 12.14 Captions, Etc. Captions, section headings and the table of
contents appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
Section 12.15 Waiver of Certain Defenses. The obligations of each Obligor
to pay amounts hereunder and under the Notes in accordance with the terms hereof
and thereof shall
59
survive irrespective of the validity and enforceability of this Agreement or the
Notes against, or the obligations of, the other Obligor hereunder or thereunder
and any other circumstance that might otherwise affect the liability of such
other Obligor. The obligations of each Obligor under this Agreement shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of the other Obligor is rescinded or must be otherwise restored by
any holder of the obligations guaranteed hereunder whether as a result of any
proceedings in bankruptcy or reorganization or otherwise and the Obligors agree
that they will indemnify the Banks and the Administrative Agent on demand for
reasonable costs and expenses (including, without limitation, fees of counsel)
incurred by the Banks or the Administrative Agent in connection with such
rescission or restoration.
Section 12.16 Release; Acceptance of Release. (a) Release. (i) Each
Obligor hereby releases the other Obligor from all, and agrees not to assert or
enforce (whether by or in a legal or equitable proceeding or otherwise), any
"claims" (as defined in Section 101(5) of the Bankruptcy Code), whether arising
under applicable law or otherwise, to which such Obligor is or would at any time
be entitled by virtue of its obligations under the Notes or this Agreement or
any payment made pursuant hereto, including any such claims to which such
Obligor may be entitled as a result of any right of subrogation, exoneration or
reimbursement.
(ii) To the extent not released by the Obligors under Section
12.16(a)(i), each Obligor agrees that it shall not be entitled to any rights of
subrogation, exoneration, reimbursement and contribution in respect of any
obligations hereunder until payment in full of all of the Obligations.
(b) Acceptance of Release. (i) Each of the Company and CSC hereby
accepts the releases effected by Section 12.16(a) hereof and agrees not to
restore or attempt to restore any of the rights thereby released.
(ii) The Obligors hereby accept the release effected by
Article VI and agree not to restore or attempt to restore any of the rights
thereby released.
Section 12.17 Authorization of Third Parties to Deliver Information and
Discuss Affairs. Each of the Obligors hereby confirms that it has authorized and
directed each Person whose preparation or delivery to the Administrative Agent
or the Banks of any opinion, report or other information is a condition or
covenant under this Agreement (including under Article VII and Article VIII) to
so prepare or deliver such opinions, reports or other information for the
benefit of the Administrative Agent and the Banks. The Obligors agree to confirm
such authorizations and directions provided for in this Section 12.17 from time
to time as may be requested by the Administrative Agent.
Section 12.18 Termination of 1996 Agreement and 1996 Pledge Agreement and
Release of Security Interests. The 1996 Agreement and the 1996 Pledge Agreement
are hereby terminated, and the security interests created by the 1996 Pledge
Agreement are hereby released in full. Promptly after the Effective Date, the
1996 Security Agent shall return to the Company all Collateral (as defined in
the 1996 Pledge Agreement) in its possession. The 1996 Security Agent and each
of the Banks (in its capacity as a 1996 Bank) hereby further agree to execute
such further instruments and documents (including UCC termination statements) as
the
60
Company shall reasonably request to evidence or give effect to the termination
and release effected hereby.
Section 12.19 CSC Agreement. Notwithstanding any termination of the CSC
Agreement, CSC shall at all times comply with the terms of Section 9.25 thereof;
provided that, after any termination of the CSC Agreement, the term "Majority
Banks" in such section shall have the meaning ascribed to such term in this
Agreement.
Section 12.20 Acknowledgement. The Obligors hereby acknowledge that
neither the Administrative Agent nor any Bank has any fiduciary relationship
with or fiduciary duty to the Obligors arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between the
Administrative Agent and the Banks, on the one hand, and each of the Obligors,
on the other hand, in connection herewith and therewith is solely that of debtor
and creditor.
61
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
OBLIGORS
CABLEVISION MFR, INC.
CSC HOLDINGS, INC.
By
---------------------------------------------
Name:
Title:
of each of the above-named two corporations
GUARANTORS
CABLEVISION OF MONMOUTH, INC.
CABLEVISION OF XXXXXX COUNTY, INC.
CABLEVISION OF NEW JERSEY, INC.,
for itself and as a General Partner of
Cablevision of Newark
CSC GATEWAY CORPORATION,
for itself and as a General Partner of
Cablevision of Newark
CSC TKR, INC.,
for itself and as General Partner of KRC/CCC
Investment Partnership
CABLEVISION OF BROOKHAVEN, INC.
CABLEVISION OF OAKLAND, INC.
CABLEVISION OF PATERSON, INC.
CSC TKR I, INC.
UA-COLUMBIA CABLEVISION OF WESTCHESTER, INC.
First Amended and Restated Credit Agreement for Cablevision MFR, Inc.
CABLEVISION OF ROCKLAND/RAMAPO, INC.
CABLEVISION OF WARWICK, INC.
By
---------------------------------------------
Name:
Title:
of each of the above-named twelve corporations
CABLEVISION OF NEWARK
By Cablevision of New Jersey, Inc., as a
General Partner
By CSC Gateway Corporation, as a General
Partner
KRC/CCC INVESTMENT PARTNERSHIP
By CSC TKR, Inc., as General Partner
First Amended and Restated Credit Agreement for Cablevision MFR, Inc.
Commitment
$112,500,000 TORONTO DOMINION (TEXAS), INC., as Arranging
Agent, Administrative Agent and Bank
By
-----------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Managing
Agent and Co-Syndication Agent
By
-----------------------------------------
Name:
Title:
$87,500,000 THE BANK OF NEW YORK COMPANY, INC.,
as Bank
By
-----------------------------------------
Name:
Title:
$87,500,000 THE BANK OF NOVA SCOTIA, as Bank, Managing
Agent and Co-Syndication Agent
By
-----------------------------------------
Name:
Title:
$87,500,000 THE CANADIAN IMPERIAL BANK OF COMMERCE,
as Bank and Managing Agent
By
-----------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement for Cablevision MFR, Inc.
Commitment
$87,500,000 NATIONSBANK, N.A., as Bank and
Managing Agent
By
-----------------------------------------
Name:
Title:
$87,500,000 THE CHASE MANHATTAN BANK, as Bank and
Managing Agent
By
-----------------------------------------
Name:
Title:
$70,000,000 BANK OF MONTREAL, CHICAGO BRANCH,
as Bank and Agent
By
-----------------------------------------
Name:
Title:
$70,000,000 BARCLAYS BANK PLC, as Bank and Agent
By
-----------------------------------------
Name:
Title:
$70,000,000 FLEET BANK, N.A., as Bank and Agent
By
-----------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement for Cablevision MFR, Inc.
Commitment
$70,000,000 ROYAL BANK OF CANADA, as Bank and Agent
By
-----------------------------------------
Name:
Title:
$57,500,000 MELLON BANK, N.A., as Bank and Co-Agent
By
-----------------------------------------
Name:
Title:
$50,000,000 BANKBOSTON, N.A., as Bank and Co-Agent
By
-----------------------------------------
Name:
Title:
$50,000,000 BANQUE PARIBAS, as Bank and Co-Agent
By
-----------------------------------------
Name:
Title:
By
-----------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement for Cablevision MFR, Inc.
Commitment
$50,000,000 CREDIT LYONNAIS, as Bank and Co-Agent
By
-----------------------------------------
Name:
Title:
$50,000,000 THE FIRST NATIONAL BANK OF CHICAGO,
as Bank and Co-Agent
By
-----------------------------------------
Name:
Title:
$50,000,000 SOCIETE GENERALE, NEW YORK BRANCH, as Bank
and Co-Agent
By
-----------------------------------------
Name:
Title:
$37,500,000 FIRST UNION NATIONAL BANK
By
-----------------------------------------
Name:
Title:
$37,500,000 PNC BANK, NATIONAL ASSOCIATION
By
-----------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement for Cablevision MFR, Inc.
Commitment
$25,000,000 ABN AMRO BANK N.V.
By
-----------------------------------------
Name:
Title:
$25,000,000 COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
By
-----------------------------------------
Name:
Title:
By
-----------------------------------------
Name:
Title:
$25,000,000 UNION BANK OF CALIFORNIA, N.A.
By
-----------------------------------------
Name:
Title:
$12,500,000 BANK OF HAWAII
By
-----------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement for Cablevision MFR, Inc.
Commitment
$12,500,000 NATEXIS BANQUE BFCE
By
-----------------------------------------
Name:
Title:
$12,500,000 THE DAI-ICHI KANGYO BANK, LTD.
By
-----------------------------------------
Name:
Title:
$12,500,000 DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN
BRANCHES
By
-----------------------------------------
Name:
Title:
By
-----------------------------------------
Name:
Title:
$12,500,000 THE FUJI BANK LIMITED, NEW YORK BRANCH
By
-----------------------------------------
Name:
Title:
$12,500,000 GENERAL ELECTRIC CAPITAL CORPORATION
By
-----------------------------------------
Name:
Title:
First Amended and Restated Credit Agreement for Cablevision MFR, Inc.
Commitment
$12,500,000 THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED
By
-----------------------------------------
Name:
Title:
$12,500,000 THE SUMITOMO BANK, LIMITED
By
-----------------------------------------
Name:
Title:
By
-----------------------------------------
Name:
Title:
$12,500,000 SUMMIT BANK
By
-----------------------------------------
Name:
Title:
-----------------
$1,400,000,000.00
