EXECUTION COPY
CSC TKR, INC.
CABLEVISION OF BROOKHAVEN, INC.
CABLEVISION OF OAKLAND, INC.
CABLEVISION OF PATERSON, INC.
CSC TKR I, INC.
UA-COLUMBIA CABLEVISION OF WESTCHESTER, INC.
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$800,000,000
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
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01 Certain Defined Terms.......................................1
Section 1.02 Accounting Terms and Determinations........................11
ARTICLE II
LOANS
Section 2.01 Loans......................................................12
Section 2.02 Manner of Borrowing; Conversion and Continuation...........12
Section 2.03 Reductions and Changes of Commitments......................14
Section 2.04 Commitment Fee.............................................15
Section 2.05 Notes......................................................15
Section 2.06 Lending Offices............................................15
Section 2.07 Several Obligations; Remedies Independent..................15
Section 2.08 Use of Proceeds............................................15
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01 Prepayments................................................16
Section 3.02 Repayment of Loans.........................................16
Section 3.03 Interest...................................................16
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ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
Section 4.01 Payments...................................................17
Section 4.02 Pro Rata Treatment.........................................17
Section 4.03 Computations...............................................18
Section 4.04 Non-Receipt of Funds by the Administrative Agent...........18
Section 4.05 Sharing of Payments, Etc...................................18
Section 4.06 No Reductions..............................................19
Section 4.07 Taxes......................................................19
ARTICLE V
YIELD PROTECTION AND ILLEGALITY
Section 5.01 Additional Costs in Respect of Loans.......................20
Section 5.02 Limitation on Types of Loans...............................22
Section 5.03 Illegality.................................................22
Section 5.04 Certain Conversions of Loans Pursuant to Section 5.01
or 5.03..................................................22
Section 5.05 Compensation...............................................23
Section 5.06 Replacement of Banks.......................................23
ARTICLE VI
GUARANTEE................................24
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01 Initial Loan...............................................25
Section 7.02 Each Loan..................................................27
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ARTICLE VIII
REPRESENTATIONS
Section 8.01 Existence and Power........................................28
Section 8.02 Subsidiaries...............................................28
Section 8.03 Authority; No Conflict.....................................28
Section 8.04 Regulation U...............................................28
Section 8.05 Approval of Regulatory Authorities.........................28
Section 8.06 Binding Agreements.........................................29
ARTICLE IX
PARTICULAR COVENANTS OF THE OBLIGORS AND THEIR SUBSIDIARIES.......29
ARTICLE X
DEFAULTS
Section 10.01 Events of Default..........................................29
ARTICLE XI
THE ADMINISTRATIVE AGENT
Section 11.01 Appointment, Powers and Immunities.........................31
Section 11.02 Reliance by Administrative Agent...........................31
Section 11.03 Defaults...................................................32
Section 11.04 Rights as a Bank...........................................32
Section 11.05 Indemnification............................................32
Section 11.06 Non-Reliance on Administrative Agent and Other Banks.......33
Section 11.07 Failure to Act.............................................33
Section 11.08 Resignation or Removal of Administrative Agent.............33
Section 11.09 Agency Fee.................................................34
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ARTICLE XII
MISCELLANEOUS
Section 12.01 No Waiver..................................................34
Section 12.02 Notices....................................................34
Section 12.03 Expenses, Etc..............................................34
Section 12.04 Amendments, Etc............................................35
Section 12.05 Successors and Assigns.....................................35
Section 12.06 Survival...................................................39
Section 12.07 Conditions to Effectiveness................................39
Section 12.08 Liability of General Partners and Other Persons............39
Section 12.09 Counterparts...............................................39
Section 12.10 Waiver.....................................................39
Section 12.11 Entire Agreement...........................................39
Section 12.12 Governing Law..............................................39
Section 12.13 Captions, Etc..............................................39
Section 12.14 Waiver of Certain Defenses.................................39
Section 12.15 Release; Acceptance of Release.............................40
Section 12.16 Authorization of Third Parties to Deliver Information
and Discuss Affairs......................................40
Section 12.17 Termination of Existing Credit Agreement...................40
Section 12.18 Joint and Several Obligations..............................40
Section 12.19 Acknowledgement............................................41
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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 12.02 Addresses for Notices
EXHIBIT A Form of Note
EXHIBIT B Form of Opinion of General Counsel
to the Obligors
EXHIBIT C(1) Form of Opinion of Special New
York Counsel to the Obligors
EXHIBIT C(2)) Form of Opinion of Special New Jersey
Counsel to the Obligors
EXHIBIT C(3) Form of Opinion of Special FCC Counsel
Counsel to the Obligors
EXHIBIT D Form of Opinion of Special New
York Counsel to the Administrative Agent
EXHIBIT E Form of Assignment and Acceptance
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., each a Delaware corporation, and
UA-COLUMBIA CABLEVISION OF WESTCHESTER INC., a New York corporation
(collectively, the "Obligors"; individually, each an "Obligor"), the Guarantors
(as defined below) which are parties hereto, the lenders which are parties
hereto, together with their respective successors and assigns (the "Banks"),
TORONTO DOMINION (TEXAS), INC., as Arranging Agent and as Administrative Agent,
and 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, and 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.
WHEREAS, on March 4, 1998, the Obligors, 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 Administrative Agent, and
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 Managing
Agents, entered into a Credit Agreement (such Credit Agreement being referred to
herein as the "Existing Credit Agreement");
WHEREAS, the Obligors 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 Existing Loan Banks have extended credit to the Obligors, by
the making of the Existing Loans to the Obligors; the proceeds of the Loans
hereunder are to be employed in accordance with Section 2.08 hereof, including
to repay the Existing Loans and all other amounts owing by the Obligors under
the Existing Credit Agreement; and each of the Obligors and their Subsidiaries
expects to derive benefit, directly or indirectly, from such loans. The Banks
have agreed to make the Loans provided for hereby in reliance upon certain
guarantees furnished by the Guarantors.
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):
"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 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 CMFRI 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.
"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 Obligors'
Representative as the office by which its Loans of such type are to be made and
maintained.
"Applicable Margin"
(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
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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
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 CMFRI
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
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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 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.
"CMFRI" shall mean Cablevision MFR, Inc., a Delaware corporation.
"CMFRI Agreement" shall mean the First Amended and Restated Credit
Agreement, dated as of May 28, 1998, among CMFRI, the Company, the Guarantors
that are parties thereto, the Banks that are parties thereto, 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, 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.
"CMFRI Commitment" shall mean, as to each Bank, its "Commitment" as
such term is used in the CMFRI Agreement (as the same may be reduced or
otherwise adjusted from time to time as provided in the CMFRI Agreement).
"CMFRI Loans" shall mean "Loans" as such term is used in the CMFRI
Agreement.
"CMFRI Specified Investments" shall mean "Specified Investments" as
such term is used in the CMFRI Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
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"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.
"Commitment Termination Date" shall mean the earlier of (i) April 4,
1999 and (ii) the tenth day after the date on which CSC and the Obligors receive
a tax ruling from the Internal Revenue Service that the transfer of the New
York/New Jersey Companies to CMFRI and/or its Subsidiaries will not adversely
affect the tax-free treatment of the TCI Acquisition under Section 351 of the
Code.
"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 Obligors, are treated as a single
employer under Section 414(b) or 414(c) of the Code.
"CSC" shall mean CSC Holdings, Inc. (formerly known as Cablevision
Systems Corporation), a Delaware corporation.
"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, BankBoston, N.A., The First National Bank of Chicago,
Mellon Bank, N.A. and Societe Generale, New York Branch, 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.
5
"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.
"Xxxxx" shall mean Xxxxxxx X. Xxxxx.
"Xxxxx Family Interests" shall mean (i) any Xxxxx Family Member,
(ii) any trusts for the benefit of any Xxxxx Family Members, (iii) any estate or
testamentary trust of any Xxxxx Family Member for the benefit of any Xxxxx
Family Members, (iv) any executor, administrator, conservator or legal or
personal representative of any Person or Persons specified in clauses (i), (ii)
or (iii) above to the extent acting in such capacity and not individually and
(v) any corporation, partnership, limited liability company or other similar
entity, in each case 80% of the ownership interests of which is owned or
controlled by any of the foregoing or combination of the foregoing.
"Xxxxx Family Members" shall mean Xxxxx, his spouse, his descendants
and any spouse of any such descendants.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Effective Date" shall have the meaning given to such term in
Section 12.07 hereof.
"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.
6
"Existing Credit Agreement" shall have the meaning given to such
term in the first "Whereas" clause of this Agreement.
"Existing Loans" shall mean "Loans" as such term is used in the
Existing Credit Agreement.
"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.
"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 of the CMFRI Agreement.
"Guarantor" shall mean each Subsidiary of each Obligor, other than
any such Subsidiary that is an Obligor.
"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 Obligors' Representative 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 with respect to any Loan
may end after the Commitment Termination Date; (ii) 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
7
Interest Period for Eurodollar Loans, if such next succeeding Business Day falls
in the next succeeding calendar month, on the next preceding Business Day);
(iii) 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 (iv) 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 any Obligor and/or any Subsidiary
of any Obligor and one or more banks or financial institutions providing for
protection against fluctuations in interest rates or the exchange of nominal
interest obligations among such Obligor and/or such Subsidiary 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.
"Liens" shall have the meaning given to such term in Section 9.12 of
the CMFRI Agreement.
"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 Obligors and their Subsidiaries taken as a whole, (ii) the ability of the
Obligors and their Subsidiaries to perform the Obligations hereunder or (iii)
the legality, validity, binding nature or enforceability of this Agreement.
"Net Cash Proceeds" shall mean proceeds received by any Obligor or
any Subsidiary of any Obligor in cash from the sale or other disposition of
property of any Obligor or any Subsidiary of any Obligor, 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 any Obligor 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.
"Non-US Bank" means 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.
8
"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.
"Obligor" and "Obligors" shall have the meaning given to such terms
in the preamble to this Agreement.
"Obligors' Representative" means Cablevision of Oakland, Inc.
"Paramus-Hillsdale Sale" shall mean the sale by the Obligors of the
cable television systems of the Obligors serving approximately 5,200 subscribers
on the Effective Date in the communities of Paramus and Hillsdale, New Jersey.
"Parent Corp." shall mean Cablevision Systems Corp., a Delaware
corporation.
"Participation Agreement" shall have the meaning given to such term
in Section 12.05(c) hereof.
"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.
"Post-Default Rate" shall mean, in respect of any principal of any
Loan or any other amount payable by the Obligors 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.
"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 Obligors.
"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.
"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.
9
"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.
"Required Payment" shall have the meaning given to such term in
Section 4.04 hereof.
"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.
"Subscribers' Certificate" shall mean a certificate of a senior
financial executive of CMFRI and the Obligors in substantially the form of
Exhibit C to the CMFRI Agreement.
"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.
10
"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
Cablevision Systems Corporation, Parent Corp., CSC Merger Corporation and TCI
Communications, Inc., (ii) the Master Reorganization Agreement, dated as of
March 3, 1998, among Parent Corp. and Cablevision Systems Corporation, 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.
"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
Obligors' Representative to the Administrative Agent in accordance with Sections
2.03(b) 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(b)
with respect to such Net Cash Proceeds and (y) the aggregate amount of Loans
(including the Loans requested to be made 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).
"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 Obligors referred to in Section 8.04 of the CMFRI Agreement. To enable
the ready determination of compliance by the Obligors and their Subsidiaries
with the various covenants set forth in Article IX hereof, each of the Obligors
agrees that the fiscal year of itself and each of its Subsidiaries shall end
each year on December 31 and the first three Quarters in each year shall end on
March 31, June 30 and September 30, respectively.
11
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 Obligors, 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.
Section 2.02 Manner of Borrowing; Conversion and Continuation. (a) Notice
of Borrowing. The Obligors' Representative 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 Obligors' Representative
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 Obligors'
12
Representative or by wiring the same, in immediately available funds, to any
account specified by the Obligors' Representative 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 Obligors' Representative 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 Obligors' Representative 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
may not be converted into or continued as Loans of any type other than one or
more of such specified types.
(iv) The Obligors' Representative 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 Obligors' Representative
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.
13
Section 2.03 Reductions and Changes of Commitments. (a) Optional
Reductions and Terminations. (i) The Obligors shall have the right to terminate
or reduce the Total Commitment at any time or from time to time, provided that
(A) the Obligors' Representative 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 Obligors 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 Obligors' Representative and such Bank,
(B) the Obligors' Representative 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 such Bank's
CMFRI 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)(ii) 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).
(b) Special Mandatory Reductions. The Total Commitment shall be
automatically reduced upon the date of any sale, transfer or other disposition
of any asset of any Obligor or any Guarantor of the types permitted under
Section 9.14(a)(vi) of the CMFRI Agreement (other than the Paramus-Hillsdale
Sale), by an amount 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 Obligors' Representative to the Administrative
Agent, for an acquisition permitted under Section 9.14(b)(ii) of the CMFRI
Agreement; provided, however, that if the applicable Obligor 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 applicable Obligor 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.
(c) No Reinstatement. The Total Commitment once terminated or reduced may
not be reinstated.
14
(d) 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") on
the daily average unutilized amount of such Bank's Commitment 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, at a rate per annum equal to (i)
0.250% at any time at which the CSC Cash Flow Ratio is greater than or equal to
5.50 to 1 and (ii) 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 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 repay the Existing Loans and all other amounts owing
by the Obligors under the Existing Credit Agreement, (y) for the general
business purposes of the Obligors and their Subsidiaries and (z) for any
transaction or activity in which the Obligors and their Subsidiaries are
permitted to engage under the provisions of this Agreement.
15
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01 Prepayments. (a) Optional Prepayments. Any Obligor may, at
any time and from time to time (subject, in the case of Eurodollar Loans, to
Section 5.05 hereof), 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 any Obligor or any Guarantor permitted
under Section 9.14(a)(vi) of the CMFRI Agreement (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) of the CMFRI
Agreement 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(b) hereof.
(ii) On the date of any reduction or termination of any Bank's Aggregate
Commitment pursuant to Section 2.03(a)(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)(ii) 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 (ii).
Section 3.02 Repayment of Loans. The aggregate outstanding principal
amount of the Loans shall mature and become due and payable, and shall be repaid
by the Obligors, together with all accrued and unpaid interest thereon and any
amounts payable pursuant to Section 5.05 hereof in connection therewith, on the
Commitment Termination Date.
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:
(i) if such Loan is a Base Rate Loan, the Base Rate plus the
Applicable Margin; and
16
(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. Interest at the Post-Default Rate shall be
payable upon demand.
(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'
Representative 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
any of the Obligors with the Administrative Agent or such Bank, as the case may
be. The Obligors' Representative shall, at the time of any Obligor 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 the Obligors' Representative 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 any Obligor of 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
17
Banks; (c) each payment by any 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 the Obligors'
Representative prior to the date on which such Bank is to make payment to the
Administrative 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 such
Bank or the Obligors, as the case may be, do 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 such Bank or the Obligors, as the case
may be, have 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
such Obligor or such 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 such Obligor or such Guarantor), in which case it shall promptly
notify the Administrative Agent and such 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 end that all the Banks shall share the benefit of such excess
payment (net of any expense which may be incurred by such
18
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. There shall be submitted to the
Obligors' Representative 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 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
19
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 Obligors' Representative 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 Obligors'
Representative or the Administrative Agent, each Bank that is a United States
Person shall from time to time submit to the Obligors' Representative 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) mposes any other condition affecting this Agreement or the
Commitment of such Bank (or any of such extensions of credit or liabilities).
20
Each Bank will notify the Obligors' Representative 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' Representative 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 no 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 such compensation from the
Obligors, except for periods preceding such date but which are after the date
such Bank notified the Obligors' Representative of the possibility that such
Additional Costs might be incurred as a result of the respective Regulatory
Change. Each Bank will furnish the Obligors' Representative 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 Obligors' Representative 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' Representative (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
Obligors' Representative 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 no 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 such compensation from the
Obligors, except for periods preceding such date but which are after the date
such Bank notified the Obligors' Representative 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
21
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' Representative
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' Representative 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'
Representative 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.
22
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, 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 any 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 Obligors'
Representative, 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 CMFRI Agreement and
such Bank's Notes and its notes issued under the CSC Agreement and the CMFRI
Agreement to any bank or financial institution identified by the Obligors'
Representative 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 E
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 under the CMFRI Agreement for consideration equal to the aggregate
outstanding principal amount of such Bank's Loans, CSC Loans and the CMFRI
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 CMFRI Agreement to such
Bank on or prior to the date of such transfer (including the amounts so
requested pursuant to Section 5.01 (or the equivalent provisions of the CSC
Agreement and the CMFRI Agreement) or so entitled to be claimed pursuant to
Section 4.07 (or the equivalent provisions of the CSC Agreement and the CMFRI
Agreement), any fees accrued hereunder, under the CSC Agreement and under the
CMFRI Agreement and any amounts that would be payable under Section 5.05 (or the
equivalent provisions of the CSC Agreement and the CMFRI Agreement) as if all of
such Bank's Loans, CSC Loans and CMFRI 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
23
Obligors hereunder, the agreements of the Obligors contained in Sections 4.07,
5.01 and 12.03 (without duplication of any payments made to such Bank by the
Obligors 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.
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 failure 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 or
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 Obligors 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
24
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 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 in existence on
the Effective Date, the Banks and the Administrative Agent, and the Obligors
shall have executed and delivered to each Bank its Note evidencing the Loans to
be made by such Bank hereunder.
25
(b) Signatures. Each of the Obligors and the Guarantors in existence
on the Effective Date 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.
(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 in existence on the Effective Date 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 B hereto;
(ii) Xxxxxxxx & Xxxxxxxx, special New York counsel to the
Obligors and the Guarantors, substantially in the form of Exhibit
C(1) hereto;
(iii) Schenk, Price, Xxxxx & King, special New Jersey counsel
to the Obligors and the Guarantors, substantially in the form of
Exhibit C(2) hereto; and
(iv) Piper & Marbury, special FCC counsel to the Obligors,
substantially in the form of Exhibit C(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 D hereto and covering
such other matters as any Bank or Banks may reasonably request.
(f) Certain Fees. The Obligors 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 Obligors shall have paid such other fees as may
have been agreed by the parties hereto.
26
(h) CSC and CMFRI Agreements. All conditions precedent to the
initial extensions of credit under the CSC Agreement and the CMFRI Agreement
shall have been satisfied.
(i) Subscribers' Certificate. The Administrative Agent shall have
received the most recent Subscribers' Certificate required to be delivered under
Section 7.01 of the CMFRI Credit Agreement.
(i) 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.
(j) Regulatory Approvals. The Obligors shall have obtained the
approval of the BPU with respect to this Agreement and the uses of the proceeds
of the Loans specified in Section 2.08 hereof.
(k) Funding Adjustment. The Company shall have made arrangements
satisfactory to the Administrative Agent such that, after giving effect to the
initial Loans 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 Existing Credit Agreement) and all other
amounts owing under the Existing Credit Agreement to any Bank (as defined in the
Existing Credit 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 and in
Article VIII of the CMFRI Agreement 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.
Each of the Obligors 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.
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ARTICLE VIII
REPRESENTATIONS
Each of the Obligors and the Guarantors represents, warrants and covenants
as follows:
Section 8.01 Existence and Power. Each of the Obligors and their
Subsidiaries 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
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 the Obligors and
their Subsidiaries has full power, authority and legal right to make and perform
such of this Agreement and the Notes to which it is a party or signatory.
Section 8.02 Subsidiaries. As at the Effective Date and the date of the
initial Loan hereunder, none of the Obligors has any 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 their Subsidiaries of such of this Agreement and the Notes to
which it is a party or signatory, 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 8.05 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 their Subsidiaries' 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 any Obligor or any Subsidiary of any Obligor 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 any Obligor or any
Subsidiary of any Obligor.
Section 8.04 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 8.05 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(j) 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 their Subsidiaries 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
28
of such of this Agreement and the Notes to which the Obligors and their
Subsidiaries 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 Loan hereunder has been or will be
duly taken prior to such initial Loans.
Section 8.06 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 their Subsidiaries that is a party
thereto, 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).
ARTICLE IX
PARTICULAR COVENANTS OF THE OBLIGORS AND THEIR SUBSIDIARIES
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 their Subsidiaries
under this Agreement, each of the Obligors and their Subsidiaries agrees that,
unless the Majority Banks shall otherwise consent in writing, it will perform
and observe each of its agreements (in its capacity as a Guarantor under (and as
defined in) the CMFRI Agreement) in Article IX of the CMFRI Agreement.
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 any Obligor or any Subsidiary of any Obligor 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
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(c) Default by any Obligor or any Subsidiary of any Obligor in the
performance or observance of its agreement in Article IX hereof as a result of
its failure to perform or observe any of its agreements (in its capacity as a
Guarantor under (and as defined in) the CMFRI Agreement) in Article IX of the
CMFRI Agreement (other than Sections 9.01, 9.02, 9.03, 9.04, 9.05, 9.06, 9.07
and 9.15 thereof but including Section 9.01(g) thereof); or
(d) Default by any Obligor or any Subsidiary of any Obligor in the
performance or observance of (i) its agreement in Article IX hereof as a result
of its failure to perform or observe any of its agreements (in its capacity as a
Guarantor under (and as defined in) the CMFRI Credit Agreement) in Sections 9.01
(other than clause (g) thereof), 9.02, 9.03, 9.04, 9.05, 9.06, 9.07 and 9.15
thereof or (ii) any of its other agreements herein, in each case which shall
remain unremedied for 30 days after notice thereof shall have been given to the
Obligors' Representative by any Bank (provided that such period shall be five
days and no such notice shall be required in the case of a default arising from
a failure to perform or observe Section 9.01(e) or 9.15 of the CMFRI Agreement
and provided further that such period shall be fifteen days and no such notice
shall be required in the case of a default arising from a failure to perform or
observe Section 9.01(d) of the CMFRI Agreement); or
(e) Any Obligor or any Subsidiary of any Obligor 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 such Obligor or such Subsidiary
in any involuntary case under such bankruptcy laws, or (viii) take any action
for the purpose of effecting any of the foregoing; or
(f) A case or other proceeding shall be commenced, without the
application, approval or consent of any Obligor or any Subsidiary of any
Obligor, in any court of competent jurisdiction, seeking the liquidation,
reorganization, dissolution, winding up, or composition or readjustment or debts
of any Obligor or any Subsidiary of any Obligor , the appointment of a trustee,
receiver, custodian, liquidator or the like of any Obligor or any Subsidiary of
any Obligor or of all or any substantial part of its assets, or any other
similar action with respect to any Obligor or any Subsidiary of any Obligor
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 any Obligor or any Subsidiary of any Obligor
shall be entered in an involuntary case under the Federal bankruptcy laws (as
now or hereafter in effect); or
(g) (i) Xxxxx Family Interests shall cease at any time to have beneficial
ownership (within the meaning of Rule 13d-3 (as in effect on the date hereof)
promulgated under the Securities and Exchange Act of 1934, as amended) of shares
of the capital stock of Parent Corp. having sufficient votes to elect (or
otherwise designate) at such time a majority of the members of the Board of
Directors of Parent Corp. or (ii) Parent Corp. shall cease to own directly (or,
in
30
the case of CSC TKR I, Inc. indirectly through CSC TKR, Inc.) 100% of the common
stock of each Obligor, or any Person (other than Parent Corp. or, in the case of
CSC TKR I, Inc., CSC TKR, Inc.) shall obtain the legal or contractual right to
own, or to cause the transfer of the ownership of, any of the common stock of
any Obligor, without regard to any required approval of any other Person; or
(h) Any Event of Default under (and as defined in) the CMFRI Agreement
shall have occurred and be continuing;
THEREUPON, the Administrative Agent may (and, if directed by the Majority Banks,
shall) by notice to the Obligors' Representative, terminate the Commitments of
the Banks hereunder (if then outstanding) 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 Obligors (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 Obligors).
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 any
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
31
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 Obligors' Representative 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 Obligors, their Subsidiaries 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 Obligors and their Subsidiaries 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 Obligors 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 Obligors are
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,
32
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 the
Obligors and their Subsidiaries 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 the
Obligors and their Subsidiaries of this Agreement or to inspect the properties
or books of the Obligors and their 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 the
Obligors and their Subsidiaries (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' Representative, 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.
33
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 Obligors 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 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 Obligors 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 any 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
34
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 any 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 any Obligor
therefrom, shall in 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
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) release
all or a significant portion of any collateral for the Obligations; (f) change
any provision contained in Section 2.03(a)(ii) (other than clause (F) of the
proviso therein), Section 3.01(b)(ii), Section 4.05, Articles V, VI, VII,
Section 12.03 or this Section 12.04; or (g) 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 of the CMFRI Agreement.
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) No 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 in 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 Obligors' Representative and to the
Administrative Agent a request that each of the Obligors' Representative and the
Administrative Agent consent to the choice of such participant, (ii) the
Obligors' Representative
35
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 the CMFRI Agreement, must be in an amount not less than
$10,000,000 and (iv) such participation shall be sold pro rata between such
Bank's Commitment, such Bank's CSC Commitment and such Bank's CMFRI 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
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 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, (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 or any Commitment Fee, (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 Obligors' Representative 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 Obligors' Representative and the
Administrative Agent a request that each of the Obligors' Representative and the
Administrative Agent consent to the choice of such assignee, (ii) the Obligors'
Representative 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 the CMFRI 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 such Bank's CMFRI 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 the CMFRI 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
36
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 Obligors' Representative 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 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 any Obligor or the performance or
observance by any 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 of the CMFRI
Agreement 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 and
thereof, 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' Representative detailing all relevant transactions
for billing purposes. Each and every such statement shall be deemed final,
binding and conclusive upon the Obligors in all respects as to all matters
reflected therein (absent manifest error), unless the Obligors' Representative,
within 15 days after the date such statement is rendered, delivers to the
Administrative Agent written notice of any objections which the Obligors 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 Obligors. Notwithstanding the
foregoing, the Administrative Agent's entries in the books and records
evidencing Loans and
37
other financial accommodations made from time to time shall be final, binding
and conclusive upon the Obligors (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 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 Obligors 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, the CSC Agreement and the
CMFRI Agreement and such Bank's Note issued hereunder, its note issued under the
CSC Agreement and its note issued under the CMFRI Agreement to any Person (a
"Proposed Bank") identified by the Obligors who agrees to assume the obligations
of such Bank for a consideration equal to the outstanding principal amount of
such Bank's Loans, CSC Loans and CMFRI Loans, together with interest thereon to
the date of such transfer and all other amounts payable hereunder, under the CSC
Agreement and under the CMFRI 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 the CMFRI Agreement) as if all of such Bank's Loans, CSC Loans and
CMFRI 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 any of the Obligors or
any of their Subsidiaries or Affiliates 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 Obligors' Representative 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 the CMFRI 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.
38
Section 12.06 Survival. The obligations of the Obligors under Sections
5.01, 5.05 and 12.03 hereof shall survive the repayment of the Loans.
Section 12.07 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 (ii) the conditions
precedent to the initial Loans under Article VII hereof shall have been
satisfied, at which time the Existing Credit Agreement shall be amended and
restated by this Agreement. If no Effective Date shall occur, the Existing
Credit Agreement shall remain in full force and effect.
Section 12.08 Liability of General Partners and Other Persons. No general
partner of any Subsidiary of any Obligor which is a partnership, joint venture
or joint adventure shall have any personal liability in respect of such
Subsidiary's obligations 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 any Obligor or any Subsidiary of any Obligor or any partnership, corporation
or other entity which is a stockholder or other holder of an ownership interest
of or in any Obligor or any Subsidiary of any Obligor 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 12.09 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 12.10 Waiver. THE OBLIGORS, THEIR SUBSIDIARIES, 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 12.11 Entire Agreement. This Agreement and the Notes embody the
entire agreement among the Obligors, their Subsidiaries and the Banks and
supersede all prior agreements, representations and understandings, if any,
relating to the subject matter hereof and thereof.
Section 12.12 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 12.13 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 12.14 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 survive irrespective of the validity and enforceability of
this Agreement or the Notes, or the obligations of, any other Obligor hereunder
or thereunder and any other circumstance that might
39
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 any 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 12.15 Release; Acceptance of Release. (a) Release. (i) Each
Obligor hereby releases each 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
12.14(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 Obligor hereby accepts the releases
effected by Section 12.14(a) hereof and agrees not to restore or attempt to
restore any of the rights thereby released.
(ii) Each Obligor hereby accepts the release effected by Article VI
and agrees not to restore or attempt to restore any of the rights thereby
released.
Section 12.16 Authorization of Third Parties to Deliver Information and
Discuss Affairs. Each Obligor 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 12.15 from time
to time as may be requested by the Administrative Agent.
Section 12.17 Termination of Existing Credit Agreement. The Existing
Credit Agreement is hereby terminated.
Section 12.18 Joint and Several Obligations. The Obligations shall be the
joint and several obligations of the Obligors, and all payments in respect of
the Obligations shall be made by the Obligors jointly and severally.
40
Section 12.19 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.
41
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
OBLIGORS
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.
By
-----------------------------------------------
Name:
Title:
of each of the above-named six corporations
GUARANTORS
TKR CABLE COMPANY OF RAMAPO, INC.
TKR CABLE COMPANY OF WARWICK, INC.
By
-----------------------------------------------
Name:
Title:
of each of the above-named two corporations
KRC/CCC INVESTMENT PARTNERSHIP
By: CSC TKR, Inc., as General Partner
Commitment
$64,285,714.30 TORONTO DOMINION (TEXAS), INC., as Arranging
Agent, Administrative Agent and Bank
By
-----------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Managing
Agent
By
-----------------------------------------------
Name:
Title:
$50,000,000 THE BANK OF NEW YORK COMPANY, INC.,
as Bank
By
-----------------------------------------------
Name:
Title:
$50,000,000 THE BANK OF NOVA SCOTIA, as Bank and Managing
Agent
By
-----------------------------------------------
Name:
Title:
$50,000,000 THE CANADIAN IMPERIAL BANK OF COMMERCE,
as Bank and Managing Agent
By
-----------------------------------------------
Name:
Title:
2
Commitment
$50,000,000 NATIONSBANK, N.A., as Bank and
Managing Agent
By
-----------------------------------------------
Name:
Title:
$50,000,000 THE CHASE MANHATTAN BANK, as Bank and
Managing Agent
By
-----------------------------------------------
Name:
Title:
$40,000,000 BANK OF MONTREAL, CHICAGO BRANCH,
as Bank and Agent
By
-----------------------------------------------
Name:
Title:
$40,000,000 BARCLAYS BANK PLC, as Bank and Agent
By
-----------------------------------------------
Name:
Title:
$40,000,000 FLEET BANK, N.A., as Bank and Agent
By
-----------------------------------------------
Name:
Title:
3
Commitment
$40,000,000 ROYAL BANK OF CANADA, as Bank and Agent
By
-----------------------------------------------
Name:
Title:
$32,857,142.86 MELLON BANK, N.A., as Bank and Co-Agent
By
-----------------------------------------------
Name:
Title:
$28,571,428.57 BANKBOSTON, N.A., as Bank and Co-Agent
By
-----------------------------------------------
Name:
Title:
$28,571,428.57 BANQUE PARIBAS, as Bank and Co-Agent
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
4
Commitment
$28,571,428.57 CREDIT LYONNAIS, as Bank and Co-Agent
By
-----------------------------------------------
Name:
Title:
$28,571,428.57 THE FIRST NATIONAL BANK OF CHICAGO,
as Bank and Co-Agent
By
-----------------------------------------------
Name:
Title:
$28,571,428.57 SOCIETE GENERALE, NEW YORK BRANCH, as Bank
and Co-Agent,
By
-----------------------------------------------
Name:
Title:
$21,428,571.43 FIRST UNION NATIONAL BANK
By
-----------------------------------------------
Name:
Title:
$21,428,571.43 PNC BANK, NATIONAL ASSOCIATION
By
-----------------------------------------------
Name:
Title:
5
Commitment
$14,285,714.29 ABN AMRO BANK N.V.
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
$14,285,714.29 COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
$14,285,714.29 UNION BANK OF CALIFORNIA, N.A.
By
-----------------------------------------------
Name:
Title:
$7,142,857.14 BANK OF HAWAII
By
-----------------------------------------------
Name:
Title:
6
Commitment
$7,142,857.14 NATEXIS BANQUE BFCE
By
-----------------------------------------------
Name:
Title:
$7,142,857.14 THE DAI-ICHI KANGYO BANK, LTD.
By
-----------------------------------------------
Name:
Title:
$7,142,857.14 DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
$7,142,857.14 THE FUJI BANK LIMITED, NEW YORK BRANCH
By
-----------------------------------------------
Name:
Title:
$7,142,857.14 GENERAL ELECTRIC CAPITAL CORPORATION
By
-----------------------------------------------
Name:
Title:
7
Commitment
$7,142,857.14 THE LONG-TERM CREDIT BANK OF JAPAN, LIMITED
By
-----------------------------------------------
Name:
Title:
$7,142,857.14 THE SUMITOMO BANK, LIMITED
By
-----------------------------------------------
Name:
Title:
By
-----------------------------------------------
Name:
Title:
$7,142,857.14 SUMMIT BANK
By
-----------------------------------------------
Name:
Title:
---------------
$800,000,000.00
8
