Exhibit 10.2
SUBORDINATION AGREEMENT
This SUBORDINATION AGREEMENT (this "Agreement"), dated as of December 18,
1996, is among FLEET NATIONAL BANK, a national banking association (the "New
Second PIK Note Indenture Trustee"), not in its individual capacity, but as
trustee for the holders of all 15% Senior Subordinated Pay-in-Kind Debentures
Due March 18, 2002 issued pursuant to that certain Indenture dated as of
December 18, 1996 (the "New Restructured Second Secured PIK Note Indenture")
between Xxxxx Cable Communications, Inc., as Issuer, and the New Second PIK Note
Indenture Trustee, FLEET NATIONAL BANK, a national banking association (the "New
Third PIK Note Indenture Trustee") (the New Second PIK Note Indenture Trustee
and the New Third PIK Note Indenture Trustee sometimes hereinafter are referred
to individually as a "Trustee" and collectively as "Trustees"), not in its
individual capacity, but as trustee for the holders of all 16% Junior
Subordinated Pay-in-Kind Debentures Due July 18, 2002 issued pursuant to that
certain Indenture dated as of December 18, 1996 (the "New Restructured Third
Secured PIK Note Indenture") between Xxxxx Cable Communications, Inc., as
Issuer, and the New Third PIK Note Indenture Trustee, XXXXX CABLE
COMMUNICATIONS, INC., a Texas corporation ("Borrower"), and FINOVA CAPITAL
CORPORATION, a Delaware corporation ("FINOVA"), in its individual capacity and
as agent for all Lenders (this and all other capitalized terms used but not
elsewhere defined herein shall have the respective meanings ascribed to such
terms in Section 1 below).
R E C I T A L S
A. Borrower and FINOVA, in its individual capacity and as agent for all
Lenders, have entered into that certain Loan Agreement of even date herewith (as
the same may be amended, modified, supplemented or restated from time to time,
the "Loan Agreement") pursuant to which Lenders have agreed to make loans and
other financial accommodations to Borrower, subject to the terms and conditions
set forth in the Loan Agreement.
B. Borrower has issued the New Restructured Second Secured PIK Notes in
the initial aggregate principal amount of $49,500,000 pursuant to the terms of
the New Restructured Second Secured PIK Note Indenture.
C. Borrower has issued the New Restructured Third Secured PIK Notes in
the initial aggregate principal amount of $38,925,797 pursuant to the terms of
the New Restructured Third Secured PIK Note Indenture.
D. One of the conditions precedent to the obligations of Lenders under
the Loan Agreement is that the parties hereto shall have executed and delivered
this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. All capitalized terms used but not elsewhere defined in
this Agreement shall have the respective meanings ascribed to such terms in the
Loan Agreement as
in effect on the date hereof, a copy of which is attached hereto as Exhibit A.
The following terms shall have the following meanings in this Agreement:
Proceeding shall mean any (i) judicial proceeding or other creditor
remedies initiated by Agent to collect Borrower's Obligations or foreclose
the Security Interests or (ii) insolvency, bankruptcy, receivership,
custodianship, liquidation, reorganization, assignment for the benefit of
creditors or other proceeding for the liquidation, dissolution or other
winding up of Borrower or its properties.
Senior Indebtedness shall mean, as of any given time, all of
Borrower's Obligations described in clause (i) of the definition of
Borrower's Obligations, including, without limitation (i) the Principal
Balance, (ii) all accrued and unpaid interest on the Principal Balance,
including, without limitation, all interest which accrues on the Principal
Balance during the pendency of any Proceeding, whether or not allowed in
such Proceeding, (iii) the Loan Fee and other charges, (iv) all fees,
expenses and other amounts payable by Borrower to Agent or any Lender
pursuant to Article XI of the Loan Agreement and (v) all sums advanced by
Agent or any Lender pursuant to Section 8.5 of the Loan Agreement.
2. Subordination of Subordinated Indebtedness to Senior Indebtedness and
Subordination of Subordinated Liens to Security Interests.
2.1 Subordination. The payment of any and all of the Subordinated
Indebtedness hereby expressly is subordinated to the prior payment in full
of the Senior Indebtedness and the Subordinated Liens hereby expressly are
subordinated to the Security Interests.
2.2 Restriction on Payments. Notwithstanding any provision of the
Subordinated Credit Instruments to the contrary and in addition to any
other limitations set forth herein or therein, no payment of principal,
interest, fees or any other amount due with respect to the Subordinated
Indebtedness shall be made, and no Trustee or Subordinated Creditor shall
exercise any right of set-off or recoupment with respect to any of the
Subordinated Indebtedness, until all of the Senior Indebtedness is paid in
full; except that Borrower (A) may make and each holder of a New
Restructured Second Secured PIK Note may receive regularly scheduled
accrued and unpaid interest at a rate per annum not in excess of 15% in the
form of additional new restructured secured payment-in-kind notes pursuant
to the terms of the New Restructured Second Secured PIK Notes and (B) may
make and each holder of a New Restructured Third Secured PIK Note may
receive regularly scheduled accrued and unpaid interest at a rate per annum
not in excess of 16% in the form of additional new restructured secured
payment-in-kind notes pursuant to the terms of the New Restructured Third
Secured PIK Notes.
2.3 Proceedings. In the event of any Proceeding (i) all Senior
Indebtedness first shall be paid in full in cash before any payment of or
with respect to any of the
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Subordinated Indebtedness shall be made; (ii) any payment which, but for
the terms hereof, otherwise would be payable or deliverable in respect of
any of the Subordinated Indebtedness shall be paid or delivered directly to
Agent (to be held and/or applied by Agent in accordance with the terms of
the Loan Agreement) until all Senior Indebtedness is paid in full, and each
Subordinated Creditor and Trustee irrevocably authorizes, empowers and
directs (A) all receivers, trustees, liquidators, custodians, conservators
and others having authority in the premises to effect all such payments and
deliveries and (B) Agent to demand, xxx for, collect and receive every such
payment or distribution; (iii) each Subordinated Creditor and Trustee
agrees to execute and deliver to Agent or its representative all such
further instruments confirming the authorization referred to in the
foregoing clause (ii) as Agent reasonably shall request, and agrees to take
all such other actions as Agent reasonably shall request in order to enable
Agent to enforce all claims upon or in respect of the Subordinated
Indebtedness, and (iv) each Subordinated Creditor and Trustee shall
execute, verify, deliver and file any proofs of claim in respect of the
Subordinated Indebtedness requested by Agent in connection with any such
Proceeding and hereby irrevocably authorizes, empowers and appoints Agent
its agent and attorney-in-fact to (A) execute, verify, deliver and file
such proofs of claim upon the failure of such Subordinated Creditor or
Trustee to do so and (B) vote such proofs of claim in any such proceeding.
2.4 Incorrect Payments. If any payment is received by any Subordinated
Creditor or Trustee on account of any Subordinated Indebtedness before all
Senior Indebtedness is paid in full, such payment promptly shall be paid
over to Agent, or its designated representative, for application (in
accordance with the Loan Agreement) to the payment of the Senior
Indebtedness then remaining unpaid, until all of the Senior Indebtedness is
paid in full. No Subordinated Creditor or Trustee shall commingle any such
payment with any other asset of such Person and such Subordinated Creditor
or Trustee shall hold such payment in trust for the benefit of Lenders
until paid over to Agent or its designated representative.
2.5 Legends. Until the Senior Indebtedness is paid in full, each
Subordinated Credit Instrument at all times shall contain in a conspicuous
manner the following legend:
"The indebtedness evidenced hereby is subordinate in the manner and to
the extent set forth in that certain Subordination Agreement (the
"Subordination Agreement") dated as of December 18, 1996 among Xxxxx
Cable Communications, Inc. ("Borrower"), Fleet National Bank, as
trustee, and FINOVA Capital Corporation ("FINOVA"), to the
indebtedness (including interest) owed or guaranteed by Borrower to
the holders of all of the notes issued pursuant to that certain Loan
Agreement dated as of December 18, 1996 between Borrower and FINOVA,
as such Loan Agreement has been and hereafter may be amended,
modified, supplemented or restated from time to time; and each holder
hereof, by its acceptance hereof, shall be bound by the provisions of
the Subordination Agreement."
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2.6 Amendments of Subordinated Credit Instruments. Until the Senior
Indebtedness is paid in full and notwithstanding anything contained in the
Subordinated Credit Instruments, the Loan Agreement or the other Loan
Instruments to the contrary, no Subordinated Creditor or Trustee shall
agree to any amendment or modification of, or supplement to, the
Subordinated Credit Instruments, the effect of which is to (i) increase the
amount of any of the Subordinated Indebtedness or the rate of interest with
respect to any of the Subordinated Indebtedness, (ii) shorten the maturity
date of any of the Subordinated Indebtedness, (iii) accelerate the
scheduled payments on or the required amortization of any of the
Subordinated Indebtedness or (iv) increase the fees payable under the
Subordinated Credit Instruments, if any.
2.7 Restrictions on Action. Until the Senior Indebtedness is paid in
full no Subordinated Creditor or Trustee shall take any action to collect
any of the Subordinated Indebtedness or exercise any of the remedies with
respect to any of the Subordinated Indebtedness set forth in any of the
Subordinated Credit Instruments or that otherwise may be available to such
Subordinated Creditor or Trustee, either at law or in equity, provided that
(i) in the event Borrower's Obligations are accelerated pursuant to Section
8.2 of the Loan Agreement, such Subordinated Creditor or Trustee may
accelerate the Subordinated Indebtedness, (ii) in the event of any
Proceeding not initiated by any Subordinated Creditor or Trustee, subject
to Section 2.3, such Subordinated Creditor or Trustee may participate in
such Proceeding and (iii) any Subordinated Creditor or Trustee may exercise
its rights to convert its shares of the Class C Common Stock of Borrower to
Class A Common Stock of Borrower to the extent permitted by the Amended and
Restated Articles of Incorporation of Borrower as in effect on the date
hereof.
3. Continued Effectiveness of this Agreement. The terms of this
Agreement, the subordination effected hereby, and the rights and the obligations
of each Subordinated Creditor and Trustee and Agent arising hereunder, shall not
be affected, modified or impaired in any manner or to any extent by: (i) any
amendment or modification of or supplement to the Loan Agreement, any of the
other Loan Instruments or any of the Subordinated Credit Instruments; (ii) the
validity or enforceability of any of such documents; or (iii) any exercise or
non-exercise of any right, power or remedy under or in respect of the Senior
Indebtedness or the Subordinated Indebtedness or any of the instruments or
documents referred to in clause (i) above.
4. Representations and Warranties. Each Trustee hereby represents and
warrants, for itself only, to Agent and Lenders as follows:
4.1 Authority. Each Trustee has full power and authority to enter
into, execute, deliver and carry out the terms of this Agreement and to
incur the obligations provided for herein, all of which have been duly
authorized by all proper and necessary action and are not prohibited by the
terms of the Subordinated Credit Instruments.
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4.2 Binding Agreements. This Agreement, when executed and delivered,
will constitute the valid and legally binding obligation of each
Subordinated Creditor and Trustee enforceable in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by equitable principles.
5. Cumulative Rights; No Waivers. Each and every right, remedy and power
granted to Agent hereunder shall be cumulative and in addition to any other
right, remedy or power specifically granted herein, in the Loan Agreement or the
other Loan Instruments or now or hereafter existing in equity, at law, by virtue
of statute or otherwise, and may be exercised by Agent, from time to time,
concurrently or independently and as often and in such order as Agent may deem
expedient. Any failure or delay on the part of Agent in exercising any such
right, remedy or power, or abandonment or discontinuance of steps to enforce the
same, shall not operate as a waiver thereof or affect Agent's right thereafter
to exercise the same, and any single or partial exercise of any such right,
remedy or power shall not preclude any other or further exercise thereof or the
exercise of any other right, remedy or power, and no such failure, delay,
abandonment or single or partial exercise of Agent's rights hereunder shall be
deemed to establish a custom or course of dealing or performance among the
parties hereto.
6. Modification. Any modification or waiver of any provision of this
Agreement, or any consent to any departure by any Subordinated Creditor or
Trustee therefrom, shall not be effective in any event unless the same is in
writing and signed by Agent, and then such modification, waiver or consent shall
be effective only in the specific instance and for the specific purpose given.
Any notice to or demand on any Subordinated Creditor or Trustee in any event not
specifically required of Agent hereunder shall not entitle any Subordinated
Creditor or Trustee to any other or further notice or demand in the same,
similar or other circumstances unless specifically required hereunder.
7. Additional Documents and Actions. Each Trustee at any time, and from
time to time, after the execution and delivery of this Agreement, upon the
request of Agent and at the expense of Borrower, promptly will execute and
deliver such further documents and do such further acts and things as Agent
reasonably may request in order to effect fully the purposes of this Agreement.
8. Notices. All notices and communications under this Agreement shall be
in writing and shall be (i) delivered in person or (ii) mailed, postage prepaid,
either by registered or certified mail, return receipt requested, or by
overnight express courier, addressed in each case as follows:
To New Second PIK Note
Indenture Trustee: Fleet National Bank
Corporate Trust
Administration MAOFDOSM
Xxx Xxxxxxx Xxxxxx
0
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Mr. Xxxxxx Xxxx
Copy to: Xxxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
To New Third PIK Note
Indenture Trustee: Fleet National Bank
Corporate Trust
Administration MAOFDOSM
Xxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Mr. Xxxxxx Xxxx
Copy to: Xxxxxxx & Xxxxxxx
Xxx Xxxxxxxx Xxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx, Esq.
To Borrower: Xxxxx Cable Communications, Inc.
Four Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: Xx. Xxxxx X. Xxxxxxxxx
Chief Executive Officer
Copy to: Xxxx Marks & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxx, Esq.
To Agent and FINOVA Capital Corporation
any Lender: 000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Assistant Vice President
Copy to: FINOVA Capital Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Vice President, Law
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Copy to: Xxxxxx Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxxx Xxxxxx, Esq.
or to any other address, as to any of the parties hereto, as such party shall
designate in a written notice to the other parties hereto. All notices sent
pursuant to the terms of this Section 8 shall be deemed received (i) if
personally delivered, then on the Business Day of delivery, (ii) if sent by
overnight, express carrier, on the next Business Day immediately following the
day sent, or (iii) if sent by registered or certified mail, on the earlier of
the fifth Business Day following the day sent or when actually received.
9. Severability. In the event that any provision of this Agreement is
deemed to be invalid by reason of the operation of any law or by reason of the
interpretation placed thereon by any court or governmental authority, this
Agreement shall be construed as not containing such provision and the invalidity
of such provision shall not affect the validity of any other provisions hereof,
and any and all other provisions hereof which otherwise are lawful and valid
shall remain in full force and effect.
10. Successors and Assigns. This Agreement shall inure to the benefit of
the successors and assigns of FINOVA and shall be binding upon the successors
and assigns of each Subordinated Creditor, each Trustee and Borrower.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall be one and the same instrument.
12. Defines Rights of Creditors. The provisions of this Agreement are
solely for the purpose of defining the relative rights of Subordinated
Creditors, Agent and Lenders and shall not be deemed to create any rights or
priorities in favor of any other Person, including, without limitation,
Borrower. Nothing contained in this Agreement is intended to or shall (i)
impair, as among Borrower, Subordinated Creditors and Trustees, the obligation
of Borrower, which is absolute and unconditional, to pay the Subordinated
Creditors the principal of and interest on the Subordinated Indebtedness as and
when the same shall become due and payable in accordance with the terms of the
Subordinated Credit Instruments.
13. Conflict. In the event of any conflict between any term, covenant or
condition of this Agreement and any term, covenant or condition of any of the
Subordinated Credit Instruments, the provisions of this Agreement shall control
and govern. For purposes of this Section 13, to the extent that any provisions
of any of the Subordinated Credit Instruments provide rights, remedies and
benefits to Agent that exceed the rights, remedies and benefits provided to
Agent under this Agreement, such provisions of the applicable Subordinated
Credit Instruments shall be deemed to supplement (and not to conflict with) the
provisions hereof.
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14. Headings. The paragraph headings used in this Agreement are for
convenience only and shall not affect the interpretation of any of the
provisions hereof.
15. Termination. This Agreement shall terminate upon the indefeasible
payment in full of the Senior Indebtedness.
16. No Contest of Liens; Release of Collateral. Each Subordinated Creditor
and Trustee agrees that it will not at any time contest the validity,
perfection, priority or enforceability of the Liens in the Collateral granted to
Agent pursuant to the Loan Agreement and the other Loan Instruments. Any
Collateral which is subject to the Subordinated Liens shall be deemed to have
been released from all such Subordinated Liens in the event that such Collateral
is sold by Borrower with the consent of Agent, provided the net proceeds of sale
are first applied to the payment of the Senior Indebtedness. Each Subordinated
Creditor and Trustee agrees that it shall execute, deliver and file any and all
termination statements, lien releases and other agreements and instruments as
Agent deems necessary or appropriate in order to give effect to the preceding
sentence. Each Subordinated Creditor and Trustee hereby irrevocably appoints
Agent its attorney in fact for the purpose of effectuating any such execution,
deliveries and filings.
17. Subrogation. Upon the payment in full in cash of all Senior
Indebtedness, Trustees and Subordinated Creditors shall be subrogated to the
rights of Agent and Lenders under the Loan Instruments until the Subordinated
Indebtedness shall be paid in full in cash, provided that neither Trustees nor
Subordinated Creditors shall have any claim against Agent or any Lender for
impairment of the subrogation rights of Trustees or Subordinated Creditors
arising out of any act or omission of Agent or any Lender. For purposes of such
subrogation, no payments or distributions to Agent or any Lender of any cash,
property or securities to which Subordinated Creditors or Trustees would be
entitled except for the provisions of this Agreement, and no payments by
Trustees or Subordinated Creditors to Agent or any Lender required pursuant to
the terms of this Agreement, shall, as among Borrower and its creditors other
than Agent and Lenders, be deemed to be a payment or distribution by Borrower to
or on account of the Senior Indebtedness.
18. APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS AND DECISIONS OF THE STATE OF NEW YORK NOTWITHSTANDING
THAT THERE ALSO MAY BE OTHER JURISDICTIONS WHICH MAY BEAR A REASONABLE
RELATIONSHIP TO THE TRANSACTIONS CONTEMPLATED HEREBY. FOR PURPOSES OF THIS
SECTION 17, THE LOAN AGREEMENT, THE OTHER LOAN INSTRUMENTS, THE SUBORDINATED
CREDIT INSTRUMENTS AND THIS AGREEMENT SHALL BE DEEMED TO BE PERFORMED AND MADE
IN THE STATE OF NEW YORK.
19. JURISDICTION AND VENUE. BORROWER AND EACH TRUSTEE HEREBY AGREE THAT
ALL ACTIONS OR PROCEEDINGS INITIATED BY BORROWER OR ANY TRUSTEE AND ARISING
DIRECTLY OR INDIRECTLY OUT
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OF THIS AGREEMENT SHALL BE LITIGATED IN THE SUPERIOR COURT OF MARICOPA COUNTY,
ARIZONA OR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA OR, IF
FINOVA OR LENDERS INITIATE SUCH ACTION, IN ADDITION TO THE FOREGOING COURTS, ANY
COURT IN WHICH FINOVA OR LENDERS SHALL INITIATE OR TO WHICH FINOVA OR LENDERS
SHALL REMOVE SUCH ACTION, TO THE EXTENT SUCH COURT HAS JURISDICTION. BORROWER
AND EACH TRUSTEE HEREBY EXPRESSLY SUBMIT AND CONSENT IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED BY FINOVA OR LENDERS IN ANY
OF SUCH COURTS, AND HEREBY AGREE THAT PERSONAL SERVICE OF THE SUMMONS AND
COMPLAINT, OR OTHER PROCESS OR PAPERS ISSUED THEREIN MAY BE SERVED IN THE MANNER
PROVIDED FOR NOTICES HEREIN, AND AGREE THAT SERVICE OF SUCH SUMMONS AND
COMPLAINT OR OTHER PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO BORROWER OR SUCH TRUSTEE, AS THE CASE MAY BE, AT THE ADDRESS TO
WHICH NOTICES ARE TO BE SENT PURSUANT TO SECTION 8. BORROWER AND EACH TRUSTEE
WAIVE ANY CLAIM THAT MARICOPA COUNTY, ARIZONA OR THE DISTRICT OF ARIZONA IS AN
INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE. TO THE EXTENT
PROVIDED BY LAW, SHOULD BORROWER OR ANY TRUSTEE, AFTER BEING SO SERVED, FAIL TO
APPEAR OR ANSWER TO ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN
THE NUMBER OF DAYS PRESCRIBED BY LAW AFTER THE MAILING THEREOF, SUCH PERSON
SHALL BE DEEMED IN DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY THE
COURT AGAINST SUCH PERSON AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT,
PROCESS OR PAPERS. THE EXCLUSIVE CHOICE OF FORUM FOR BORROWER AND TRUSTEES SET
FORTH IN THIS SECTION 18 SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT, BY
FINOVA AND/OR LENDERS, OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE
TAKING, BY FINOVA AND/OR LENDERS, OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER
APPROPRIATE JURISDICTION, AND BORROWER AND EACH TRUSTEE HEREBY WAIVE THE RIGHT
TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
20. WAIVER OF RIGHT TO JURY TRIAL. FINOVA, BORROWER AND EACH TRUSTEE
ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT
OR WITH RESPECT TO THE TRANSACTIONS DESCRIBED IN OR AFFECTED HEREBY WOULD BE
BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE PARTIES AGREE THAT
ANY LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY WILL BE TRIED IN A COURT OF
COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
21. This Agreement is executed and delivered by each Trustee not in its
own right, but solely in the exercise of the powers conferred upon such Person
as Trustee, and no personal
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liability or personal responsibility is assumed by nor shall at any time be
asserted or enforceable against such Trustee on account of this Agreement. The
rights and indemnities provided by Borrower to the Trustees in Article VI of the
New Restructured Second Secured PIK Note Indenture and Article VI of the New
Restructured Third Secured PIK Note Indenture, as applicable, are incorporated
herein in their entirety by this reference.
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IN WITNESS WHEREOF, each Trustee, Borrower and FINOVA have caused this
Agreement to be executed as of the date first above written.
FLEET NATIONAL BANK, a national
banking association, as trustee under the
New Restructured Second Secured PIK
Note Indenture
By: /s/ Xxxxxx X. Xxxx, XX
-------------------------
Name: Xxxxxx X. Xxxx, XX
Its: Vice President
FLEET NATIONAL BANK, a national
banking association, as trustee under the
New Restructured Third Secured PIK
Note Indenture
By: /s/ Xxxxxx X. Xxxx, XX
-------------------------
Name: Xxxxxx X. Xxxx, XX
Its: Vice President
XXXXX CABLE COMMUNICATIONS,
INC., a Texas corporation
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxxx
Chief Executive Officer
FINOVA CAPITAL CORPORATION, a
Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Xxxxxxx X. Xxxxxx
Vice President
