1
Exhibit 10.1
EXECUTION COPY
================================================================================
$4,100,000,000
CREDIT AGREEMENT
CHARTER COMMUNICATIONS OPERATING, LLC
and
MARCUS CABLE OPERATING COMPANY, LLC,
as Borrowers
CHARTER COMMUNICATIONS HOLDINGS LLC
and
MARCUS CABLE COMPANY, LLC,
as Guarantors
CHASE SECURITIES INC.,
as Lead Arranger
CHASE SECURITIES INC. and TD SECURITIES (USA) INC.,
as Joint Book Managers
CHASE SECURITIES INC., NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC and
TD SECURITIES (USA) INC.,
as Arrangers
NATIONSBANK, N.A. and THE CHASE MANHATTAN BANK,
as Administrative Agents
CHASE SECURITIES INC., NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC and
TD SECURITIES (USA) INC., as Syndication Agents
TORONTO DOMINION (TEXAS), INC., FLEET BANK, N.A. and
CREDIT LYONNAIS NEW YORK BRANCH, as Documentation Agents
Dated as of March 18, 1999
================================================================================
2
TABLE OF CONTENTS
Page
----
SECTION 1. DEFINITIONS........................................................1
1.1 Defined Terms.....................................................1
1.2 Other Definitional Provisions; Pro Forma Calculations............21
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS...................................22
2.1 Commitments; Increases in the Tranche A Term Facility,
the Tranche B Term Facility and the Revolving
Facility; Incremental Term Loans...............................22
2.2 Procedure for Borrowing..........................................24
2.3 Repayment of Loans...............................................24
2.4 Swingline Commitment.............................................26
2.5 Procedure for Swingline Borrowing; Refunding of Swingline
Loans..........................................................26
2.6 Commitment Fees, etc. ...........................................27
2.7 Termination or Reduction of Revolving Commitments................28
2.8 Optional Prepayments.............................................28
2.9 Mandatory Prepayments............................................28
2.10 Conversion and Continuation Options.............................29
2.11 Limitations on Eurodollar Tranches..............................29
2.12 Interest Rates and Payment Dates................................29
2.13 Computation of Interest and Fees................................30
2.14 Inability to Determine Interest Rate............................30
2.15 Pro Rata Treatment and Payments.................................30
2.16 Requirements of Law.............................................32
2.17 Taxes...........................................................33
2.18 Indemnity.......................................................35
2.19 Change of Lending Office........................................35
2.20 Replacement of Lenders..........................................35
SECTION 3. LETTERS OF CREDIT.................................................36
3.1 L/C Commitment...................................................36
3.2 Procedure for Issuance of Letter of Credit.......................36
3.3 Fees and Other Charges...........................................36
3.4 L/C Participations...............................................36
3.5 Reimbursement Obligation of the Borrower.........................37
3.6 Obligations Absolute.............................................37
3.7 Letter of Credit Payments........................................38
3.8 Applications.....................................................38
SECTION 4. REPRESENTATIONS AND WARRANTIES....................................38
4.1 Financial Condition..............................................38
4.2 No Change........................................................39
4.3 Existence; Compliance with Law...................................39
4.4 Power; Authorization; Enforceable Obligations....................39
4.5 No Legal Bar.....................................................39
4.6 Litigation.......................................................40
4.7 No Default.......................................................40
3
Page
----
4.8 Ownership of Property; Liens.....................................40
4.9 Intellectual Property............................................40
4.10 Taxes...........................................................40
4.11 Federal Regulations.............................................40
4.12 Labor Matters...................................................40
4.13 ERISA...........................................................41
4.14 Investment Company Act; Other Regulations.......................41
4.15 Subsidiaries....................................................41
4.16 Use of Proceeds.................................................41
4.17 Environmental Matters...........................................41
4.18 Certain Cable Television Matters................................42
4.19 Accuracy of Information, etc....................................43
4.20 Security Interests..............................................43
4.21 Solvency........................................................43
4.22 Certain Tax Matters.............................................43
4.23 Year 2000 Matters...............................................43
SECTION 5. CONDITIONS PRECEDENT..............................................44
5.1 Conditions to Initial Extension of Credit........................44
5.2 Conditions to Each Extension of Credit...........................45
SECTION 6. AFFIRMATIVE COVENANTS.............................................46
6.1 Financial Statements.............................................46
6.2 Certificates; Other Information..................................46
6.3 Payment of Obligations...........................................47
6.4 Maintenance of Existence; Compliance. ..........................47
6.5 Maintenance of Property; Insurance...............................48
6.6 Inspection of Property; Books and Records; Discussions...........48
6.7 Notices..........................................................48
6.8 Environmental Laws...............................................49
6.9 Interest Rate Protection.........................................49
6.10 Additional Collateral...........................................49
6.11 Organizational Separateness.....................................49
SECTION 7. NEGATIVE COVENANTS................................................50
7.1 Financial Condition Covenants....................................50
7.2 Indebtedness.....................................................51
7.3 Liens............................................................52
7.4 Fundamental Changes..............................................53
7.5 Disposition of Property..........................................54
7.6 Restricted Payments..............................................55
7.7 Investments......................................................56
7.8 Certain Payments and Modifications Relating to
Indebtedness and Management Fees...............................57
7.9 Transactions with Affiliates.....................................57
7.10 Sales and Leasebacks............................................58
7.11 Changes in Fiscal Periods.......................................58
7.12 Negative Pledge Clauses.........................................58
7.13 Clauses Restricting Subsidiary Distributions....................58
- ii -
4
Page
----
7.14 Lines of Business; Holding Company Status.......................58
7.15 Certain Intercompany and Tax Matters............................59
SECTION 8. EVENTS OF DEFAULT.................................................59
SECTION 9. THE AGENTS........................................................62
9.1 Appointment......................................................62
9.2 Delegation of Duties.............................................63
9.3 Exculpatory Provisions...........................................63
9.4 Reliance by Funding Agent........................................63
9.5 Notice of Default................................................63
9.6 Non-Reliance on Agents and Other Lenders.........................64
9.7 Indemnification..................................................64
9.8 Agent in Its Individual Capacity.................................64
9.9 Successor Funding Agent..........................................65
9.10 Other Agents....................................................65
SECTION 10. MISCELLANEOUS....................................................65
10.1 Amendments and Waivers..........................................65
10.2 Notices.........................................................66
10.3 No Waiver; Cumulative Remedies..................................67
10.4 Survival of Representations and Warranties......................67
10.5 Payment of Expenses and Taxes...................................67
10.6 Successors and Assigns; Participations and Assignments..........68
10.7 Adjustments; Set-off............................................70
10.8 Counterparts....................................................70
10.9 Severability....................................................71
10.10 Integration....................................................71
10.11 GOVERNING LAW..................................................71
10.12 Submission To Jurisdiction; Waivers............................71
10.13 Acknowledgments................................................71
10.14 Releases of Guarantees and Liens...............................72
10.15 Confidentiality................................................72
10.16 WAIVERS OF JURY TRIAL..........................................72
- iii -
5
ANNEX:
A Pricing Grid
SCHEDULES:
1.1 Commitments on Stage One Closing Date
4.1 Financial Statements
4.15 Subsidiaries
4.20 UCC Filing Jurisdictions
7.2(d) Existing Bond Indebtedness
7.5(h) InterMedia Exchange
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D-1 Form of Addendum
D-2 Form of New Lender Supplement
D-3 Form of Increased Facility Activation Notice
E Form of Assignment and Acceptance
F-1 Form of Legal Opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
F-2 Form of Legal Opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
G Form of Prepayment Option Notice
H Form of Exemption Certificate
I Form of Specified Subordinated Note
- iv -
6
CREDIT AGREEMENT, dated as of March 18, 1999, among CHARTER
COMMUNICATIONS HOLDINGS LLC, a Delaware limited liability company ("Charter
Holdings"), MARCUS CABLE COMPANY, LLC, a Delaware limited liability company
("Marcus Holdings"), CHARTER COMMUNICATIONS OPERATING, LLC, a Delaware limited
liability company ("Charter"), MARCUS CABLE OPERATING COMPANY, LLC, a Delaware
limited liability company ("Marcus"), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the
"Lenders"), TORONTO DOMINION (TEXAS), INC., FLEET BANK, N.A. and CREDIT LYONNAIS
NEW YORK BRANCH, as documentation agents (in such capacity, the "Documentation
Agents"), CHASE SECURITIES INC., NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC and TD
SECURITIES (USA) INC., as syndication agents (in such capacity, the "Syndication
Agents"), and NATIONSBANK, N.A. and THE CHASE MANHATTAN BANK, as Administrative
Agents (in such capacity, the "Administrative Agents").
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/100th of 1%) equal to the greater of (a) the Prime Rate in effect
on such day and (b) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. Any change in the ABR due to a change in the Prime Rate or the
Federal Funds Effective Rate shall be effective as of the opening of business on
the effective day of such change in the Prime Rate or the Federal Funds
Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which is based
upon the ABR.
"Addendum": an instrument, substantially in the form of Exhibit D-1,
by which a Lender becomes a party to this Agreement as of the Stage One Closing
Date.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agents": as defined in the preamble hereto.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agents, the
Documentation Agents, the Administrative Agents and the Funding Agent.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to the sum of (a) the aggregate then unpaid principal amount of
such Lender's Term Loans, (b) the amount of such Lender's unutilized Tranche A
Term Commitment then in effect and (c) the amount of such Lender's Revolving
Commitment then in effect or, if the Revolving Commitments have been terminated,
the amount of such Lender's Revolving Extensions of Credit then outstanding.
7
2
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the Aggregate Exposure of all Lenders at such time.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Annualized Asset Cash Flow Amount": with respect to any Disposition
of assets, an amount equal to the portion of Consolidated Operating Cash Flow
for the most recent Asset Disposition Test Period ending prior to the date of
such Disposition which was contributed by such assets multiplied by four.
"Annualized Operating Cash Flow": for any fiscal quarter, an amount
equal to Consolidated Operating Cash Flow for such period multiplied by four.
"Annualized Pro Forma Operating Cash Flow": an amount, determined on
any Disposition Date or Exchange Date in connection with any proposed
Disposition or Exchange pursuant to Section 7.5(e) or (f), equal to Consolidated
Operating Cash Flow for the most recent Asset Disposition Test Period multiplied
by four, calculated in the manner contemplated by Section 1.2(e) but excluding
the effect of such Disposition or Exchange.
"Applicable Margin": (a) with respect to Tranche A Term Loans,
Tranche B Term Loans, Revolving Loans and Swingline Loans, the per annum rates
determined in accordance with the Pricing Grid and (b) with respect to
Incremental Term Loans, such per annum rates as shall be agreed to by the
Borrower and the applicable Incremental Term Lenders as shown in the applicable
Increased Facility Activation Notice.
"Application": an application, in such form as the relevant Issuing
Lender may specify from time to time, requesting such Issuing Lender to open a
Letter of Credit.
"Approved Fund": with respect to any Lender that is a fund that
invests in commercial loans, any other fund that invests in commercial loans and
is managed or advised by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Asset Disposition Test Period": as of any date of determination,
the most recent fiscal quarter as to which financial statements have been
delivered pursuant to Section 6.1.
"Asset Sale": any Disposition of property or series of related
Dispositions of property (excluding (a) Exchanges pursuant to which no cash
consideration is received by the Borrower or any of its Subsidiaries and (b) any
such Disposition permitted by clause (a), (b), (c) or (d) of Section 7.5) that
yields gross cash proceeds to the Borrower or any of its Subsidiaries in excess
of $1,000,000.
"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit E.
"Assignor": as defined in Section 10.6(c).
"Attributable Debt": in respect of a sale and leaseback transaction
entered into by Holdings, the Borrower or any of its Subsidiaries, at the time
of determination, the present value of the
8
3
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction including any period
for which such lease has been extended or may, at the sole option of the lessor,
be extended. Such present value shall be calculated using a discount rate equal
to the rate of interest implicit in such transaction, determined in accordance
with GAAP.
"Authorizations": all filings, recordings and registrations with,
and all validations or exemptions, approvals, orders, authorizations, consents,
Licenses, certificates and permits from, the FCC, applicable public utilities
and other Governmental Authorities, including, without limitation, CATV
Franchises, FCC Licenses and Pole Agreements.
"Available Revolving Commitment": as to any Revolving Lender at any
time, an amount equal to the excess, if any, of (a) such Lender's Revolving
Commitment then in effect over (b) such Lender's Revolving Extensions of Credit
then outstanding; provided, that in calculating any Lender's Revolving
Extensions of Credit for the purpose of determining such Lender's Available
Revolving Commitment pursuant to Section 2.6(a), the aggregate principal amount
of Swingline Loans then outstanding shall be deemed to be zero.
"Benefitted Lender": as defined in Section 10.7(a).
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": prior to the Marcus Combination, Charter and Marcus,
both collectively and individually, and after the Marcus Combination, Charter.
Without limiting the generality of the foregoing, prior to the Marcus
Combination, each of Charter and Marcus shall be jointly and severally liable to
repay all Loans borrowed hereunder and to pay all interest and other obligations
incurred or owing by "the Borrower" pursuant to this Agreement.
"Borrowing Date": any Business Day specified by the Borrower as a
date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Budget": as defined in Section 6.2(c).
"Business": as defined in Section 4.17(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City or Dallas, Texas are authorized or
required by law to close, provided, that with respect to notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, such day is also a day for trading by and between banks in
Dollar deposits in the London, England interbank eurodollar market.
"Capital Lease Obligations": as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States government or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within one year from the date of acquisition; (b)
9
4
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at the time of acquisition at least A-1 by Standard & Poor's Ratings Services
("S&P") or P-1 by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), or carrying an
equivalent rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of commercial paper issuers
generally, and maturing within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more than 30
days, with respect to securities issued or fully guaranteed or insured by the
United States government; (e) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at the time of acquisition at least A by S&P or A by Moody's; (f)
securities with maturities of six months or less from the date of acquisition
backed by standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition; or (g) shares of
money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this definition.
"CATV Franchise": collectively, with respect to the Borrower and its
Subsidiaries, (a) any franchise, license, permit, wire agreement or easement
granted by any political jurisdiction or unit or other local, state or federal
franchising authority (other than licenses, permits and easements not material
to the operations of a CATV System) pursuant to which such Person has the right
or license to operate a CATV System and (b) any law, regulation, ordinance,
agreement or other instrument or document setting forth all or any part of the
terms of any franchise, license, permit, wire agreement or easement described in
clause (a) of this definition.
"CATV System": any cable distribution system owned or acquired by
the Borrower or any of its Subsidiaries which receives audio, video, digital,
other broadcast signals or information or telecommunications by cable, optical,
antennae, microwave or satellite transmission and which amplifies and transmits
such signals to customers of the Borrower or any of its Subsidiaries.
"Charter": as defined in the preamble hereto.
"Charter Group": the collective reference to Charter Communications,
Inc., the Borrower and its Subsidiaries, together with any member of the ▇▇▇▇
▇▇▇▇▇ Group or any Affiliate of any such member that, in each case, directly or
indirectly owns more than 50% of the Equity Interests (determined on the basis
of economic interests) in the Borrower or any of its Subsidiaries.
Notwithstanding the foregoing, no individual and no entity organized for estate
planning purposes shall be deemed to be a member of the Charter Group.
"Charter Holdings": as defined in the preamble hereto.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by the
Guarantee and Collateral Agreement.
"Commitment": as to any Lender, the sum of the Tranche A Term
Commitment, the Tranche B Term Commitment and the Revolving Commitment of such
Lender.
10
5
"Commitment Fee Rate": the per annum rate determined in accordance
with the Pricing Grid.
"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Confidential Information Memorandum": the collective reference to
(a) the Confidential Information Memorandum dated March 1999 and furnished to
certain of the Lenders in connection with the syndication of certain of the
Facilities prior to the Stage One Closing Date and (b) any other information
memorandum authorized by the Borrower to be distributed to one or more Lenders
or prospective Lenders in connection with any other syndication of any of the
Facilities (including in connection with any increase in the amount thereof).
"Consideration": with respect to any Investment or Disposition, (a)
any cash or other property (valued at fair market value in the case of such
other property) paid or transferred in connection therewith, (b) the principal
amount of any Indebtedness assumed in connection therewith and (c) any letters
of credit, surety arrangements or security deposits posted in connection
therewith.
"Consolidated Debt Service Coverage Ratio": as of the last day of
any period, the ratio of (a) Annualized Operating Cash Flow determined in
respect of the fiscal quarter ending on such day to (b) the sum of (i)
Consolidated Interest Expense for the period of four consecutive fiscal quarters
ending on such day and (ii) scheduled principal payments on Indebtedness of the
Borrower or any of its Subsidiaries for the period of four consecutive fiscal
quarters commencing immediately after such day (or, in the case of the Revolving
Facility, the excess, if any, of the Total Revolving Extensions of Credit
outstanding on such day over the amount of the Total Revolving Commitments
scheduled to be in effect at the end of such period of four consecutive fiscal
quarters).
"Consolidated Interest Coverage Ratio": as of the last day of any
period, the ratio of (a) Consolidated Operating Cash Flow for the period of four
consecutive fiscal quarters ending on such day to (b) Consolidated Interest
Expense for the period of four consecutive fiscal quarters ending on such day.
"Consolidated Interest Expense": for any period, the sum of (a)
total cash interest expense (including that attributable to Capital Lease
Obligations) of the Borrower and its Subsidiaries for such period with respect
to all outstanding Indebtedness of the Borrower and its Subsidiaries (including
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers' acceptance financing and net costs under Hedge
Agreements in respect of interest rates to the extent such net costs are
allocable to such period in accordance with GAAP) and (b) all Restricted
Payments made by the Borrower during such period in order to enable any of its
Affiliates to pay cash interest expense in respect of Indebtedness of such
Affiliate.
"Consolidated Leverage Ratio": as of the last day of any period, the
ratio of (a) Consolidated Total Debt on such day to (b) Annualized Operating
Cash Flow determined in respect of the fiscal quarter ending on such day.
"Consolidated Net Income": for any period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided
11
6
that, GAAP to the contrary notwithstanding, there shall be excluded (a) the
income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of the Borrower or is merged into or consolidated with the Borrower
or any of its Subsidiaries, (b) the income (or deficit) of any Person (other
than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions, (c) the undistributed earnings of any
Subsidiary of the Borrower (including any Excluded Acquired Subsidiary) to the
extent that the declaration or payment of dividends or similar distributions by
such Subsidiary is not at the time permitted by the terms of any Contractual
Obligation (other than under any Loan Document) or Requirement of Law applicable
to such Subsidiary and (d) whether or not distributed, the income of any
Non-Recourse Subsidiary.
"Consolidated Operating Cash Flow": for any period with respect to
the Borrower and its Subsidiaries, Consolidated Net Income for such period plus,
without duplication and to the extent reflected as a charge in the statement of
Consolidated Net Income for such period, the sum of (i) total income tax
expense, (ii) interest expense, amortization or writeoff of debt discount and
debt issuance costs and commissions, discounts and other fees and charges
associated with Indebtedness, (iii) depreciation and amortization expense, (iv)
management fees expensed during such period, (v) any extraordinary or
non-recurring non-cash expenses or non-cash losses, provided that in the event
that the Borrower or any Subsidiary makes any cash payment in respect of any
such extraordinary or non-recurring non-cash expense, such cash payment shall be
deducted from Consolidated Operating Cash Flow in the period in which such cash
payment is made, (vi) losses on Dispositions of assets outside of the ordinary
course of business, and (vii) other noncash items reducing such Consolidated Net
Income and minus, without duplication and to the extent included in the
statement of Consolidated Net Income for such period, the sum of (i) any
extraordinary or non-recurring non-cash income or non-cash gains, (ii) gains on
Dispositions of assets outside of the ordinary course of business and (iii)
other noncash items increasing such Consolidated Net Income, all as determined
on a consolidated basis in accordance with GAAP.
"Consolidated Total Debt": at any date, the aggregate principal
amount of all Indebtedness (other than, in the case of contingent obligations of
the type described in clause (f) of the definition of "Indebtedness", any such
obligations not constituting L/C Obligations) of the Borrower and its
Subsidiaries at such date, determined on a consolidated basis in accordance with
GAAP.
"Contractual Obligation": as to any Person, any provision of any
debt or equity security issued by such Person or of any agreement, instrument or
other undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Disposition": with respect to any property, any sale, lease (other
than leases in the ordinary course of business, including leases of excess
office space and fiber leases), sale and leaseback, assignment, conveyance,
transfer or other disposition thereof, including pursuant to an exchange for
other property. The terms "Dispose" and "Disposed of" shall have correlative
meanings.
"Disposition Date": as defined in Section 7.5(e).
"Documentation Agents": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United States.
12
7
"Domestic Subsidiary": any Subsidiary of the Borrower organized
under the laws of any jurisdiction within the United States.
"Environmental Laws": any and all foreign, federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"Equity Interests": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all classes of membership interests in a limited liability company, any and
all classes of partnership interests in a partnership and any and all other
equivalent ownership interests in a Person, and any and all warrants, rights or
options to purchase any of the foregoing.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Dow ▇▇▇▇▇ Markets screen as of 11:00 A.M., London time, two
Business Days prior to the beginning of such Interest Period. In the event that
such rate does not appear on Page 3750 of the Dow ▇▇▇▇▇ Markets screen (or
otherwise on such screen), the "Eurodollar Base Rate" shall be determined by
reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Funding Agent or, in the absence of
such availability, by reference to the rate at which the Funding Agent is
offered Dollar deposits at or about 10:00 A.M., Dallas time, two Business Days
prior to the beginning of such Interest Period in the interbank eurodollar
market where its eurodollar and foreign currency and exchange operations are
then being conducted for delivery on the first day of such Interest Period for
the number of days comprised therein.
"Eurodollar Loans": Loans for which the applicable rate of interest
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward to the nearest 1/100th
of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
13
8
"Eurodollar Tranche": the collective reference to Eurodollar Loans
under a particular Facility the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Exchange": any exchange of operating assets for other operating
assets in a Permitted Line of Business and, subject to the last sentence of this
definition, of comparable value and use to those assets being exchanged,
including exchanges involving the transfer or acquisition (or both transfer and
acquisition) of Equity Interests of a Person so long as 100% of the Equity
Interests of such Person are transferred or acquired, as the case may be. It is
understood that exchanges of the kind described above as to which a portion of
the consideration paid or received is in the form of cash shall nevertheless
constitute "Exchanges" for the purposes of this Agreement.
"Exchange Date": as defined in Section 7.5(f).
"Excluded Acquired Subsidiary": any Subsidiary described in
paragraph (g) or (h) of Section 7.2 to the extent that the documentation
governing the Indebtedness referred to in said paragraph prohibits such
Subsidiary from becoming a Subsidiary Guarantor, but only so long as such
Indebtedness remains outstanding.
"Facility": each of (a) the Tranche A Term Commitments and the
Tranche A Term Loans made thereunder (the "Tranche A Term Facility"), (b) the
Tranche B Term Commitments and the Tranche B Term Loans made thereunder (the
"Tranche B Term Facility"), (c) the Incremental Term Loans (the "Incremental
Term Facility") and (d) the Revolving Commitments and the extensions of credit
made thereunder (the "Revolving Facility").
"FCC": the Federal Communications Commission and any successor
thereto.
"FCC License": any community antenna relay service, broadcast
auxiliary license, earth station registration, business radio, microwave or
special safety radio service license issued by the FCC pursuant to the
Communications Act of 1934, as amended.
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by the Funding Agent from
three federal funds brokers of recognized standing selected by it.
"Flow-Through Entity": any Person that is not treated as a separate
tax paying entity for United States federal income tax purposes.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
Domestic Subsidiary.
"Funding Agent": NationsBank, N.A., together with any of its
successors.
"Funding Office": the office of the Funding Agent specified in
Section 10.2 or such other office as may be specified from time to time by the
Funding Agent as its funding office by written notice to the Borrower and the
Lenders.
14
9
"GAAP": generally accepted accounting principles in the United
States as in effect from time to time, except that for purposes of Section 7.1,
GAAP shall be determined on the basis of such principles in effect on the date
hereof and consistent with those used in the preparation of the most recent
audited financial statements delivered pursuant to Section 4.1(b). In the event
that any "Accounting Change" (as defined below) shall occur and such change
results in a change in the method of calculation of financial covenants,
standards or terms in this Agreement, then the Borrower and the Administrative
Agents agree to enter into negotiations in order to amend such provisions of
this Agreement so as to equitably reflect such Accounting Changes with the
desired result that the criteria for evaluating the Borrower's financial
condition shall be the same after such Accounting Changes as if such Accounting
Changes had not been made. Until such time as such an amendment shall have been
executed and delivered by the Borrower, the Administrative Agents and the
Required Lenders, all financial covenants, standards and terms in this Agreement
shall continue to be calculated or construed as if such Accounting Changes had
not occurred. "Accounting Changes" refers to changes in accounting principles
required by the promulgation of any rule, regulation, pronouncement or opinion
by the Financial Accounting Standards Board of the American Institute of
Certified Public Accountants or, if applicable, the SEC.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement to be executed and delivered by Holdings, the Borrower and each
Subsidiary Guarantor, substantially in the form of Exhibit A, as the same may be
amended, supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including any bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term "Guarantee Obligation" shall not
include endorsements of instruments for deposit or collection in the ordinary
course of business. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guarantors": the collective reference to Holdings and the
Subsidiary Guarantors.
15
10
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements dealing with interest rates or currency
exchange rates or the exchange of nominal interest obligations, either generally
or under specific contingencies.
"Holdings": prior to the Marcus Combination, Charter Holdings and
Marcus Holdings, both collectively and individually, and after the Marcus
Combination, Charter Holdings.
"Holdings Debt": the collective reference to the Senior Notes and
any other Indebtedness of Holdings.
"Increased Facility Activation Date": any Business Day on which any
Lender shall execute and deliver to the Administrative Agents an Increased
Facility Activation Notice pursuant to Section 2.1(c).
"Increased Facility Activation Notice": a notice substantially in
the form of Exhibit D-3.
"Increased Facility Closing Date": any Business Day designated as
such in an Increased Facility Activation Notice.
"Incremental Term Facility": as defined in the definition of
"Facility".
"Incremental Term Lenders": (a) on any Increased Facility Activation
Date relating to Incremental Term Loans, the Lenders signatory to the relevant
Increased Facility Activation Notice and (b) thereafter, each Lender that is a
holder of an Incremental Term Loan.
"Incremental Term Loans": as defined in Section 2.1(a).
"Incremental Term Maturity Date": with respect to the Incremental
Term Loans to be made pursuant to any Increased Facility Activation Notice, the
maturity date specified in such Increased Facility Activation Notice, which date
shall be a date at least six months after the final maturity of the Tranche B
Term Loans.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade payables incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party under acceptances, letters of credit, surety bonds or similar
arrangements, (g) the liquidation value of all redeemable preferred Equity
Interests of such Person, (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through (g) above,
(i) all obligations of the kind referred to in clauses (a) through (h) above
secured by (or for which the holder of such obligation has an existing right,
contingent or otherwise, to be secured by) any Lien on property (including
accounts and contract rights) owned by such Person, whether or not such Person
has assumed or become liable for the payment of such obligation, and (j) for the
purposes of Section 8(e) only, all obligations of such Person in respect of
Hedge Agreements. The Indebtedness of any Person shall include the Indebtedness
of any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's
16
11
ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness expressly provide that such Person is not
liable therefor.
"Initial Public Offering": an underwritten public offering of Equity
Interests of any member of the Charter Group pursuant to a registration
statement filed with the Securities and Exchange Commission in accordance with
the Securities Act of 1933, as amended, that yields Net Cash Proceeds of at
least $500,000,000.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to ▇▇▇ at law or in
equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan, the last day of
each March, June, September and December to occur while such Loan is outstanding
and the final maturity date of such Loan, (b) as to any Eurodollar Loan having
an Interest Period of three months or less, the last day of such Interest
Period, (c) as to any Eurodollar Loan having an Interest Period longer than
three months, each day that is three months, or a whole multiple thereof, after
the first day of such Interest Period and the last day of such Interest Period
and (d) as to any Loan (other than any Revolving Loan that is an ABR Loan and
any Swingline Loan), the date of any repayment or prepayment made in respect
thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially, the
period commencing on the borrowing or conversion date, as the case may be, with
respect to such Eurodollar Loan and ending one, two, three, six or, if consented
to by (which consent shall not be unreasonably withheld) each Lender under the
relevant Facility, nine or twelve months thereafter, as selected by the Borrower
in its notice of borrowing or notice of conversion, as the case may be, given
with respect thereto; and (b) thereafter, each period commencing on the last day
of the next preceding Interest Period applicable to such Eurodollar Loan and
ending one, two, three, six or, if consented to by (which consent shall not be
unreasonably withheld) each Lender under the relevant Facility, nine or twelve
months thereafter, as selected by the Borrower by irrevocable notice to the
Funding Agent not less than three Business Days prior to the last day of the
then current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business Day;
(ii) the Borrower may not select an Interest Period under a
particular Facility that would extend beyond the Revolving Termination
Date or beyond the date final payment is due on the Tranche A Term Loans,
the Tranche B Term Loans or the relevant Incremental Term Loans, as the
case may be;
17
12
(iii) any Interest Period 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 at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and
(iv) the Borrower shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an Interest
Period for such Loan.
"Investments": as defined in Section 7.7.
"Issuing Lender": each of the Funding Agent and any other Revolving
Lender that has agreed in its sole discretion to act as an "Issuing Lender"
hereunder and that has been approved in writing by the Funding Agent as an
"Issuing Lender" hereunder, in each case in its capacity as issuer of any Letter
of Credit.
"L/C Commitment": $350,000,000.
"L/C Fee Payment Date": the last day of each March, June, September
and December and the last day of the Revolving Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a)
the aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all Revolving Lenders other than the Issuing Lender that
issued such Letter of Credit.
"Lenders": as defined in the preamble hereto.
"Letters of Credit": as defined in Section 3.1(a).
"License": as to any Person, any license, permit, certificate of
need, authorization, certification, accreditation, franchise, approval, or grant
of rights by any Governmental Authority or other Person necessary or appropriate
for such Person to own, maintain, or operate its business or property, including
FCC Licenses.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
"Loan": any loan made or held by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement and the Guarantee and Collateral
Agreement.
"Loan Parties": Holdings, the Borrower and each Subsidiary of the
Borrower that is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, the
holders of more than 50% of the aggregate unpaid principal amount of the Term
Loans or the Total Revolving Extensions of Credit, as the case may be,
outstanding under such Facility (or, in the case of the Revolving Facility,
prior to any
18
13
termination of the Revolving Commitments, the holders of more than 50% of the
Total Revolving Commitments).
"Management Fee Agreement": the amended and restated Management
Agreement dated as of March 18, 1999 between the Borrower and Charter
Communications, Inc.
"Marcus" : as defined in the preamble hereto.
"Marcus Combination": as defined in Section 7.4(e).
"Marcus Holdings": as defined in the preamble hereto.
"Material Adverse Effect": a material adverse effect on (a) the
business, property, operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of any material provision of this Agreement or any of the other
Loan Documents or the rights or remedies of the Administrative Agents or the
Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or otherwise, but only as and when received) of such Asset Sale or
Recovery Event, net of attorneys' fees, accountants' fees, investment banking
fees, amounts required to be applied to the repayment of Indebtedness secured by
a Lien expressly permitted hereunder on any asset that is the subject of such
Asset Sale or Recovery Event (other than any Lien pursuant to the Guarantee and
Collateral Agreement) and other customary fees and expenses actually incurred in
connection therewith and net of taxes paid or reasonably estimated to be payable
as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and (b) in connection with any
issuance or sale of Equity Interests or any incurrence of Indebtedness, the cash
proceeds received from such issuance or incurrence, net of attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection therewith.
"New Lender": as defined in Section 2.1(d).
"New Lender Supplement": as defined in Section 2.1(d).
"Non-Excluded Taxes": as defined in Section 2.17(a).
"Non-Recourse Subsidiary": (a) any Subsidiary of the Borrower
created, acquired or activated by the Borrower or any of its Subsidiaries in
connection with any Investment made pursuant to Section 7.7(g) and designated as
such by the Borrower substantially concurrently with such creation, acquisition
or activation and (b) any Subsidiary of such designated Subsidiary, provided,
that (i) at no
19
14
time shall any creditor of any such Subsidiary have any claim (whether pursuant
to a Guarantee Obligation, by operation of law or otherwise) against the
Borrower or any of its other Subsidiaries (other than another Non-Recourse
Subsidiary) in respect of any Indebtedness or other obligation of any such
Subsidiary (other than in respect of a non-recourse pledge of Equity Interests
in such Subsidiary); (ii) neither the Borrower nor any of its Subsidiaries
(other than another Non-Recourse Subsidiary) shall become a general partner of
any such Subsidiary; (iii) no default with respect to any Indebtedness of any
such Subsidiary (including any right which the holders thereof may have to take
enforcement action against any such Subsidiary) shall permit (upon notice, lapse
of time or both) any holder of any Indebtedness of the Borrower or its other
Subsidiaries (other than another Non-Recourse Subsidiary) to declare a default
on such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity; (iv) no such Subsidiary shall own
any Equity Interests of, or own or hold any Lien on any property of, the
Borrower or any other Subsidiary of the Borrower (other than another
Non-Recourse Subsidiary); (v) no Investments may be made in any such Subsidiary
by the Borrower or any of its Subsidiaries (other than another Non-Recourse
Subsidiary) except pursuant to Section 7.7(g); (vi) the Borrower shall not
directly own any Equity Interests in such Subsidiary; and (vii) at the time of
such designation, no Default or Event of Default shall have occurred and be
continuing or would result therefrom. It is understood that Non-Recourse
Subsidiaries shall be disregarded for the purposes of any calculation pursuant
to this Agreement relating to financial matters with respect to the Borrower.
"Non-U.S. Lender": as defined in Section 2.17(d).
"Notes": the collective reference to any promissory note evidencing
Loans.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.
"Participant": as defined in Section 10.6(b).
"▇▇▇▇ ▇▇▇▇▇ Contributions": any capital contribution made by ▇▇▇▇ ▇.
▇▇▇▇▇, directly or indirectly, to the Borrower or any of its Subsidiaries.
"▇▇▇▇ ▇▇▇▇▇ Group": the collective reference to (a) ▇▇▇▇ ▇. ▇▇▇▇▇,
(b) his estate, spouse, immediate family members and heirs and (c) any trust,
corporation, partnership or other entity, the beneficiaries, stockholders,
partners or other owners of which consist exclusively of ▇▇▇▇ ▇. ▇▇▇▇▇ or such
other Persons referred to in clause (b) above or a combination thereof.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Pending Acquired Entities": American Cable Entertainment, Inc.,
GreaterMedia Cablevision Inc., Renaissance Media Holdings LLC and Renaissance
Media Group LLC.
"Permitted Line of Business": as defined in Section 7.14(a).
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
20
15
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pole Agreement": any pole attachment agreement or underground
conduit use agreement entered into in connection with the operation of any CATV
System.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Prime Rate": the rate of interest per annum publicly announced from
time to time by the Funding Agent as its prime rate in effect at its principal
office in Dallas, Texas (the Prime Rate not being intended to be the lowest rate
of interest charged by the Funding Agent in connection with extensions of credit
to debtors).
"Pro Forma Financial Statements": as defined in Section 4.1(a).
"Properties": as defined in Section 4.17(a).
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of the Borrower or any of its Subsidiaries.
"Refunded Swingline Loans": as defined in Section 2.5.
"Refunding Date": as defined in Section 2.5.
"Register": as defined in Section 10.6(d).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the relevant Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Reinvestment Deadline": as defined in the definition of
"Reinvestment Notice".
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by the Borrower or any of its
Subsidiaries in connection therewith that are not applied to prepay the Term
Loans pursuant to Section 2.9(b) as a result of the delivery of a Reinvestment
Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer and delivered to the Administrative Agents within twelve months after
any Asset Sale or Recovery Event, stating that (a) no Event of Default has
occurred and is continuing, (b) the Borrower (directly or indirectly through a
Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of such Asset Sale or Recovery Event to acquire assets useful in
its business, on or prior to the earlier of (i) the date that is eighteen months
from the date of receipt of such Net Cash Proceeds and (ii) the date on which
such proceeds would be required to be applied, or to be offered to be applied,
to
21
16
prepay, redeem or defease any Indebtedness of the Borrower or any of its
Affiliates (other than Indebtedness under this Agreement) if not applied as
described above (such earlier date, the "Reinvestment Deadline"), and (c) such
use will not require redemptions or prepayments (or offers to make redemptions
or prepayments) of any other Indebtedness of the Borrower or any of its
Affiliates.
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire assets
useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the relevant Reinvestment Deadline and (b) the date on
which the Borrower shall have determined not to, or shall have otherwise ceased
to, acquire assets useful in the Borrower's business with all or any portion of
the relevant Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b)
of ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg.
ss. 4043.
"Required Lenders": at any time, the holders of more than 50% of the
sum of (a) the aggregate unpaid principal amount of the Term Loans then
outstanding, (b) the aggregate unutilized Tranche A Term Commitments then in
effect and (c) the Total Revolving Commitments then in effect or, if the
Revolving Commitments have been terminated, the Total Revolving Extensions of
Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders in
respect of each Facility (with the Tranche B Term Facility and the Incremental
Term Facility being treated for this purpose as a single Facility).
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer, president or
chief financial officer of the Borrower, but in any event, with respect to
financial matters, any of the chief financial officer or any other financial
officer of the Borrower.
"Restricted Payments": as defined in Section 7.6.
"Revolving Aggregate Committed Amount": the sum of the Total
Revolving Commitments as in effect on the Stage One Closing Date and the amount
of any increases therein effected pursuant to Section 2.1(c).
"Revolving Commitment": as to any Lender, the obligation of such
Lender, if any, to make Revolving Loans and participate in Swingline Loans and
Letters of Credit in an aggregate principal and/or face amount not to exceed the
amount set forth under the heading "Revolving Commitment" opposite such Lender's
name on Schedule 1.1 or in the Assignment and Acceptance or New Lender
Supplement pursuant to which such Lender became a party hereto, as the same may
be changed from
22
17
time to time pursuant to the terms hereof. The original amount of the Total
Revolving Commitments is $556,000,000.
"Revolving Commitment Period": the period from and including the
Stage One Closing Date to the Revolving Termination Date.
"Revolving Extensions of Credit": as to any Revolving Lender at any
time, an amount equal to the sum of (a) the aggregate principal amount of all
Revolving Loans held by such Lender then outstanding, (b) such Lender's
Revolving Percentage of the L/C Obligations then outstanding and (c) such
Lender's Revolving Percentage of the aggregate principal amount of Swingline
Loans then outstanding.
"Revolving Facility": as defined in the definition of "Facility".
"Revolving Lender": each Lender that has a Revolving Commitment or
that holds Revolving Loans.
"Revolving Loans": as defined in Section 2.1(b).
"Revolving Percentage": as to any Revolving Lender at any time, the
percentage which such Lender's Revolving Commitment then constitutes of the
Total Revolving Commitments (or, at any time after the Revolving Commitments
shall have expired or terminated, the percentage which the aggregate principal
amount of such Lender's Revolving Loans then outstanding constitutes of the
aggregate principal amount of the Revolving Loans then outstanding).
"Revolving Termination Date": September 18, 2007.
"SEC": the Securities and Exchange Commission, any successor thereto
and any analogous Governmental Authority.
"Senior Note Indenture": the collective reference to the Indentures
entered into by Charter Holdings and Charter Communications Holdings Capital
Corporation in connection with the issuance of the Senior Notes, together with
all instruments and other agreements entered into by Charter Holdings or Charter
Communications Holdings Capital Corporation in connection therewith, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with Section 7.8.
"Senior Notes": the senior notes and senior discount notes of
Charter Holdings and Charter Communications Holdings Capital Corporation issued
on or about the Stage One Closing Date pursuant to the Senior Note Indenture.
"Shell Subsidiary": any Subsidiary of the Borrower that is a "shell"
company having (a) assets (either directly or through any Subsidiary or other
Equity Interests) with an aggregate value not exceeding $10,000 and (b) no
operations.
"Single Employer Plan": any Plan that is covered by Title IV of
ERISA, but that is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that, as of
any date of determination, (a) the amount of the "present fair saleable value"
of the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing
23
18
determinations of the insolvency of debtors, (b) the present fair saleable value
of the assets of such Person will, as of such date, be greater than the amount
that will be required to pay the liability of such Person on its debts as such
debts become absolute and matured, (c) such Person will not have, as of such
date, an unreasonably small amount of capital with which to conduct its
business, and (d) such Person will be able to pay its debts as they mature. For
purposes of this definition, (i) "debt" means liability on a "claim", and (ii)
"claim" means any (x) right to payment, whether or not such a right is reduced
to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right to an
equitable remedy for breach of performance if such breach gives rise to a right
to payment, whether or not such right to an equitable remedy is reduced to
judgment, fixed, contingent, matured or unmatured, disputed, undisputed, secured
or unsecured.
"Specified Change of Control": a "Change of Control" as defined in
the Senior Note Indenture and any defined term having a comparable purpose
contained in the documentation governing any other Holdings Debt or any
Specified Long-Term Indebtedness.
"Specified Holdings Subsidiary": each Subsidiary of Charter Holdings
other than the Borrower and its Subsidiaries.
"Specified Long-Term Indebtedness": any Indebtedness incurred
pursuant to Section 7.2(f).
"Specified Senior Notes": any Senior Notes having a maturity
approximately eight years after the Stage One Closing Date, provided, that no
more than $750,000,000 of Specified Senior Notes shall be issued.
"Specified Subordinated Debt": any Indebtedness of the Borrower
issued directly or indirectly to ▇▇▇▇ ▇. ▇▇▇▇▇ after the Stage Two Closing Date,
the proceeds of which are applied promptly after the incurrence thereof to
finance Investments permitted hereby, so long as such Indebtedness (a) qualifies
as Specified Long-Term Indebtedness and (b) has terms and conditions
substantially identical to those set forth in Exhibit I.
"Stage One Closing Date": the date on which the conditions precedent
set forth in Section 5.1 shall have been satisfied, which date is March 18,
1999.
"Stage Two Closing Date": any Business Day on or prior to the date
that is 120 days after the Stage One Closing Date selected by the Borrower
pursuant to an Increased Facility Activation Notice.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person; provided, that Non-Recourse
Subsidiaries shall be deemed not to constitute "Subsidiaries" for the purposes
of this Agreement (other than the definition of "Non-Recourse Subsidiary").
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other than
any Foreign Subsidiary and any Excluded Acquired Subsidiary.
24
19
"Swingline Commitment": the obligation of the Swingline Lender to
make Swingline Loans pursuant to Section 2.4 in an aggregate principal amount at
any one time outstanding not to exceed $25,000,000.
"Swingline Lender": NationsBank, N.A., in its capacity as the lender
of Swingline Loans.
"Swingline Loans": as defined in Section 2.4.
"Swingline Participation Amount": as defined in Section 2.5.
"Syndication Agents": as defined in the preamble hereto.
"Term Lenders": the collective reference to the Tranche A Term
Lenders, the Tranche B Term Lenders and the Incremental Term Lenders.
"Term Loans": the collective reference to the Tranche A Term Loans,
Tranche B Term Loans and Incremental Term Loans.
"Threshold Management Fee Date": any date on which, both before and
after giving pro forma effect to the payment of any previously deferred
management fees pursuant to Section 7.8(c) (including any Indebtedness incurred
in connection therewith), the Consolidated Interest Coverage Ratio, determined
in respect of the most recent period of four consecutive fiscal quarters for
which the relevant financial information is available, is greater than 2.25 to
1.0.
"Threshold Transaction Date": any date on which, both before and
after giving pro forma effect to a particular transaction (including any
Indebtedness incurred in connection therewith), the Consolidated Interest
Coverage Ratio, determined in respect of the most recent period of four
consecutive fiscal quarters for which the relevant financial information is
available, is greater than 1.75 to 1.0.
"Total Revolving Commitments": at any time, the aggregate amount of
the Revolving Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Revolving Lenders
outstanding at such time.
"Tranche A Aggregate Funded Amount": the sum of the aggregate
principal amount of Tranche A Term Loans made pursuant to Section 2.1(a) and the
aggregate principal amount of Tranche A Term Loans made pursuant to Section
2.1(c).
"Tranche A Term Commitment": as to any Tranche A Term Lender, the
obligation of such Lender to make a Tranche A Term Loan to the Borrower
hereunder in a principal amount not to exceed the amount set forth under the
heading "Tranche A Term Commitment" opposite such Lender's name on Schedule 1.1
or in the Assignment and Acceptance or New Lender Supplement pursuant to which
such Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The original aggregate amount of the Tranche A
Term Commitments is $444,000,000.
"Tranche A Term Facility": as defined in the definition of
"Facility".
25
20
"Tranche A Term Lender": each Lender that has a Tranche A Term
Commitment or is the holder of a Tranche A Term Loan.
"Tranche A Term Loan": as defined in Section 2.1(a).
"Tranche A Term Percentage": as to any Tranche A Term Lender at any
time, the percentage which the aggregate principal amount of such Lender's
Tranche A Term Loans then outstanding constitutes of the aggregate principal
amount of all Tranche A Term Loans then outstanding.
"Tranche B Aggregate Funded Amount": the sum of the aggregate
principal amount of Tranche B Term Loans made on the Stage One Closing Date and
the aggregate principal amount of Tranche B Term Loans made pursuant to Section
2.1(c).
"Tranche B Term Commitment": as to any Tranche B Term Lender, the
obligation of such Lender to make a Tranche B Term Loan to the Borrower
hereunder in a principal amount not to exceed the amount set forth under the
heading "Tranche B Term Commitment" opposite such Lender's name on Schedule 1.1.
The original aggregate amount of the Tranche B Term Commitments is
$1,750,000,000.
"Tranche B Term Facility": as defined in the definition of
"Facility".
"Tranche B Term Lender": each Lender that has a Tranche B Term
Commitment or that holds a Tranche B Term Loan.
"Tranche B Term Loan": as defined in Section 2.1(a).
"Tranche B Term Percentage": as to any Tranche B Term Lender at any
time, the percentage which the aggregate principal amount of such Lender's
Tranche B Term Loans then outstanding constitutes of the aggregate principal
amount of all Tranche B Term Loans then outstanding.
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as an ABR Loan or a Eurodollar
Loan.
"United States": the United States of America.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Equity Interests of which (other than directors' qualifying shares required
by law) is owned by such Person directly or through other Wholly Owned
Subsidiaries or a combination thereof.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that
is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions; Pro Forma Calculations. (a)
Unless otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in the other Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to Holdings, the Borrower and its Subsidiaries not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to them under
GAAP, (ii) the
26
21
words "include", "includes" and "including" shall be deemed to be followed by
the phrase "without limitation", (iii) the word "incur" shall be construed to
mean incur, create, issue, assume, become liable in respect of or suffer to
exist (and the words "incurred" and "incurrence" shall have correlative
meanings), and (iv) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, Equity Interests, securities, revenues,
accounts, leasehold interests, contract rights and any other "assets" as such
term is defined under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) For the purposes of calculating Annualized Operating Cash Flow,
Annualized Pro Forma Operating Cash Flow, Consolidated Operating Cash Flow and
Consolidated Interest Expense for any period (a "Test Period"), (i) if at any
time from the period (a "Pro Forma Period") commencing on the second day of such
Test Period and ending on the last day of such Test Period (or, in the case of
any pro forma calculation made pursuant hereto in respect of a particular
transaction, ending on the date such transaction is consummated and, unless
otherwise expressly provided herein, after giving effect thereto), the Borrower
or any Subsidiary shall have made any Material Disposition, the Consolidated
Operating Cash Flow for such Test Period shall be reduced by an amount equal to
the Consolidated Operating Cash Flow (if positive) attributable to the property
which is the subject of such Material Disposition for such Test Period or
increased by an amount equal to the Consolidated Operating Cash Flow (if
negative) attributable thereto for such Test Period, and Consolidated Interest
Expense for such Test Period shall be reduced by an amount equal to the
Consolidated Interest Expense for such Test Period attributable to any
Indebtedness of the Borrower or any Subsidiary repaid, repurchased, defeased or
otherwise discharged with respect to the Borrower and its Subsidiaries in
connection with such Material Disposition (or, if the Equity Interests of any
Subsidiary is sold, the Consolidated Interest Expense for such Test Period
directly attributable to the Indebtedness of such Subsidiary to the extent the
Borrower and its continuing Subsidiaries are no longer liable for such
Indebtedness after such Disposition); (ii) if during such Pro Forma Period the
Borrower or any Subsidiary shall have made a Material Acquisition, Consolidated
Operating Cash Flow and Consolidated Interest Expense for such Test Period shall
be calculated after giving pro forma effect thereto (including the incurrence or
assumption of any Indebtedness in connection therewith) as if such Material
Acquisition (and the incurrence or assumption of any such Indebtedness) occurred
on the first day of such Test Period; (iii) if during such Pro Forma Period any
Person that subsequently became a Subsidiary or was merged with or into the
Borrower or any Subsidiary since the beginning of such Pro Forma Period shall
have entered into any disposition or acquisition transaction that would have
required an adjustment pursuant to clause (i) or (ii) above if made by the
Borrower or a Subsidiary during such Pro Forma Period, Consolidated Operating
Cash Flow and Consolidated Interest Expense for such Test Period shall be
calculated after giving pro forma effect thereto as if such transaction occurred
on the first day of such Test Period; and (iv) in the case of determinations in
connection with transactions involving the incurrence of Indebtedness,
Consolidated Interest Expense shall be calculated after giving pro forma effect
thereto (and all other incurrences of Indebtedness during such Pro Forma Period)
as if such Indebtedness was incurred on the first day of such Test Period. For
the purposes of this paragraph, pro forma calculations regarding the amount of
income or earnings relating to any Material Disposition or Material Acquisition
and the amount of Consolidated Interest Expense associated with any discharge or
incurrence of Indebtedness shall in each case be determined in good faith by a
Responsible Officer of the Borrower. If any Indebtedness bears a floating
27
22
rate of interest and the incurrence or assumption thereof is being given pro
forma effect, the interest expense on such Indebtedness shall be calculated as
if the rate in effect on the last day of the relevant Pro Forma Period had been
the applicable rate for the entire relevant Test Period (taking into account any
interest rate protection agreement applicable to such Indebtedness if such
interest rate protection agreement has a remaining term in excess of 12 months).
As used in this Section 1.2(e), "Material Acquisition" means any acquisition of
property or series of related acquisitions of property that (i) constitutes
assets comprising all or substantially all of an operating unit of a business or
constitutes all or substantially all of the Equity Interests of a Person and
(ii) involves the payment of Consideration by the Borrower and its Subsidiaries
in excess of $1,000,000; and "Material Disposition" means any Disposition of
property or series of related Dispositions of property that yields gross
proceeds to the Borrower or any of its Subsidiaries in excess of $1,000,000.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments; Increases in the Tranche A Term Facility, the
Tranche B Term Facility and the Revolving Facility; Incremental Term Loans. (a)
Subject to the terms and conditions hereof, (i) each Tranche A Term Lender
severally agrees to make one or more term loans (each, a "Tranche A Term Loan")
to the Borrower in an aggregate amount not to exceed the amount of the Tranche A
Term Commitment of such Lender, (ii) each Tranche B Term Lender severally agrees
to make a term loan (each, a "Tranche B Term Loan") to the Borrower in an amount
not to exceed the amount of the Tranche B Term Commitment of such Lender and
(iii) each Incremental Term Lender severally agrees to make one or more term
loans (each, an "Incremental Term Loan") to the extent provided in Section
2.1(c). The Term Loans may from time to time be Eurodollar Loans or ABR Loans,
as determined by the Borrower and notified to the Funding Agent in accordance
with Sections 2.2 and 2.10. Except as otherwise provided in Section 2.1(c),
Tranche A Term Loans may only be made on three dates selected by the Borrower
during the period from and including the Stage One Closing Date to the earlier
of July 15, 1999 and the date that is 90 days after the Stage Two Closing Date
(such earlier date, the "Tranche A Commitment Termination Date"). Any unutilized
Tranche A Term Commitments shall automatically terminate on the Tranche A
Commitment Termination Date. Except as otherwise provided in Section 2.1(c),
Tranche B Term Loans may only be made on the Stage One Closing Date.
(b) Subject to the terms and conditions hereof, each Revolving
Lender severally agrees to make revolving credit loans ("Revolving Loans") to
the Borrower from time to time during the Revolving Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to such
Lender's Revolving Percentage of the sum of (i) the L/C Obligations then
outstanding and (ii) the aggregate principal amount of the Swingline Loans then
outstanding, does not exceed the amount of such Lender's Revolving Commitment.
During the Revolving Commitment Period the Borrower may use the Revolving
Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof. The
Revolving Loans may from time to time be Eurodollar Loans or ABR Loans, as
determined by the Borrower and notified to the Funding Agent in accordance with
Sections 2.2 and 2.10.
(c) The Borrower and any one or more Lenders (including New Lenders)
may on the Stage Two Closing Date and from time to time during the period from
the date that is 60 days after the Stage Two Closing Date to the third
anniversary of the Stage One Closing Date, agree that such Lenders shall make,
obtain or increase the amount of their Tranche A Term Commitments, Tranche A
Term Loans, Tranche B Term Loans, Incremental Term Loans or Revolving
Commitments, as applicable, by executing and delivering to the Administrative
Agents an Increased Facility Activation Notice specifying (i) the amount of such
increase and the Facility or Facilities involved, (ii) the applicable Increased
Facility Closing Date and (iii) in the case of Incremental Term Loans, (x) the
applicable Incremental Term Maturity Date, (y) the amortization schedule for
such Incremental Term Loans, which shall comply
28
23
with Section 2.3, and (z) the Applicable Margin for such Incremental Term Loans.
Notwithstanding the foregoing, without the consent of the Required Lenders, (i)
on the Stage Two Closing Date, the Tranche A Aggregate Funded Amount (together
with the aggregate unutilized Tranche A Term Commitments), Tranche B Aggregate
Funded Amount and Revolving Aggregate Committed Amount (the sum of such amounts,
the "Aggregate Facility Amount") may not be increased to more than
$1,000,000,000, $1,850,000,000 and $1,250,000,000, respectively, except as may
be otherwise agreed to by the Agents, (ii) no Incremental Term Loans may be
obtained on the Stage Two Closing Date, (iii) no incremental Tranche B Term
Loans may be obtained after the Stage Two Closing Date, (iv) the aggregate
amount of borrowings of Incremental Term Loans shall not exceed an amount equal
to (w) $500,000,000 plus (x) the aggregate principal amount of optional
prepayments of Term Loans made pursuant to Section 2.8 or optional reductions of
the Revolving Commitments pursuant to Section 2.7 (provided that the amount
described in this clause (x) shall not exceed $500,000,000) minus (y) the
aggregate amount of incremental Tranche A Term Loans or incremental Revolving
Commitments obtained pursuant to this paragraph (other than on the Stage Two
Closing Date) minus (z) the amount by which the Aggregate Facility Amount on the
Stage Two Closing Date exceeds $4,100,000,000, (v) the aggregate amount of
incremental Tranche A Term Loans and incremental Revolving Commitments obtained
pursuant to this paragraph (other than on the Stage Two Closing Date) shall not
exceed $250,000,000, (vi) each increase effected pursuant to this paragraph
shall be in a minimum amount of at least $100,000,000 and (vii) no more than
five Increased Facility Closing Dates (excluding the Second Stage Closing Date)
may be selected by the Borrower during the term of this Agreement. No Lender
shall have any obligation to participate in any increase described in this
paragraph unless it agrees to do so in its sole discretion.
(d) Any additional bank, financial institution or other entity
which, with the consent of the Borrower and the Administrative Agents (which
consent shall not be unreasonably withheld), elects to become a "Lender" under
this Agreement in connection with any transaction described in Section 2.1(c)
shall execute a New Lender Supplement (each, a "New Lender Supplement"),
substantially in the form of Exhibit D-2, whereupon such bank, financial
institution or other entity (a "New Lender") shall become a Lender for all
purposes and to the same extent as if originally a party hereto and shall be
bound by and entitled to the benefits of this Agreement.
(e) Unless otherwise agreed by the Administrative Agents, on each
Increased Facility Closing Date (other than in respect of Incremental Term
Loans), the Borrower shall borrow Term Loans under the relevant increased
Facility, or shall borrow Revolving Loans under the increased Revolving
Commitments, as the case may be, from each Lender participating in the relevant
increase in an amount determined by reference to the amount of each Type of Loan
(and, in the case of Eurodollar Loans, of each Eurodollar Tranche) which would
then have been outstanding from such Lender if (i) each such Type or Eurodollar
Tranche had been borrowed or effected on such Increased Facility Closing Date
and (ii) the aggregate amount of each such Type or Eurodollar Tranche requested
to be so borrowed or effected had been proportionately increased. The Eurodollar
Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding
sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar
Loans of the other Lenders in the same Eurodollar Tranche (or, until the
expiration of the then-current Interest Period, such other rate as shall be
agreed upon between the Borrower and the relevant Lender).
2.2 Procedure for Borrowing. In order to effect a borrowing
hereunder, the Borrower shall give the Funding Agent irrevocable notice (which
notice must be received by the Funding Agent prior to 12:00 Noon, Dallas time,
(a) three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date,
in the case of ABR Loans), specifying (i) the Facility under which such Loan is
to be borrowed, (ii) the amount and Type of Loans to be borrowed, (iii) the
requested Borrowing Date and (iv) in the case of Eurodollar Loans, the
respective amounts of each such Type of Loan and the respective lengths of the
initial Interest
29
24
Period therefor. Any Loans made on the Stage One Closing Date shall initially be
ABR Loans and, unless otherwise agreed by the Administrative Agents in their
sole discretion, prior to the Stage Two Closing Date, no Loan may be made as,
converted into or continued as a Eurodollar Loan having an Interest Period in
excess of one month. Each borrowing shall be in an aggregate amount equal to (x)
in the case of ABR Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof (or, if the then aggregate Available Revolving Commitments are less than
$5,000,000, such lesser amount) and (y) in the case of Eurodollar Loans,
$10,000,000 or a whole multiple of $1,000,000 in excess thereof; provided, that
the Swingline Lender may request, on behalf of the Borrower, borrowings under
the Revolving Commitments that are ABR Loans in other amounts pursuant to
Section 2.5. Upon receipt of any such notice from the Borrower, the Funding
Agent shall promptly notify each relevant Lender thereof. Each relevant Lender
will make the amount of its pro rata share of each borrowing available to the
Funding Agent for the account of the Borrower at the Funding Office prior to
11:00 A.M., Dallas time, on the Borrowing Date requested by the Borrower in
funds immediately available to the Funding Agent. Such borrowing will then be
made available not later than 2:00 P.M., Dallas time, to the Borrower by the
Funding Agent crediting the account of the Borrower on the books of such office
with the aggregate of the amounts made available to the Funding Agent by the
relevant Lenders and in like funds as received by the Funding Agent.
2.3 Repayment of Loans. (a) The Tranche A Term Loans of each Tranche
A Term Lender shall mature in 22 consecutive quarterly installments, commencing
on June 30, 2002, each of which shall be in an amount equal to such Lender's
Tranche A Term Percentage multiplied by the percentage of the Tranche A
Aggregate Funded Amount set forth below opposite such installment:
Installment Percentage
----------- ----------
June 30, 2002 2.5%
September 30, 2002 2.5%
December 31, 2002 2.5%
March 31, 2003 2.5%
June 30, 2003 3.75%
September 30, 2003 3.75%
December 31, 2003 3.75%
March 31, 2004 3.75%
June 30, 2004 3.75%
September 30, 2004 3.75%
December 31, 2004 3.75%
March 31, 2005 3.75%
June 30, 2005 5.0%
September 30, 2005 5.0%
December 31, 2005 5.0%
March 31, 2006 5.0%
June 30, 2006 6.25%
September 30, 2006 6.25%
December 31, 2006 6.25%
March 31, 2007 6.25%
June 30, 2007 7.5%
September 18, 2007 7.5%
(b) The Tranche B Term Loans of each Tranche B Term Lender shall
mature in 24 consecutive quarterly installments (each due on the last day of
each calendar quarter, except for the last such installment), commencing on June
30, 2002, each of which shall be in an amount equal to such Lender's Tranche B
Term Percentage multiplied by (i) in the case of the first 23 such installments,
0.25%
30
25
of the Tranche B Aggregate Funded Amount and (ii) in the case of the last such
installment (which shall be due on March 18, 2008), 94.25% of the Tranche B
Aggregate Funded Amount.
(c) The Incremental Term Loans of each Incremental Term Lender shall
mature in consecutive installments (which shall be no more frequent than
quarterly) as specified in the Increased Facility Activation Notice pursuant to
which such Incremental Term Loans were made, provided that, prior to the date
that is six months after the final maturity of the Tranche B Term Loans, the
aggregate amount of such installments for any four consecutive fiscal quarters
shall not exceed 1% of the aggregate principal amount of such Incremental Term
Loans on the date such Loans were first made.
(d) The Total Revolving Commitments shall be permanently reduced on
each of the dates set forth below by an aggregate amount equal to the percentage
of the Revolving Aggregate Committed Amount set forth opposite such date:
Date Percentage
---- ----------
March 31, 2004 10.0%
March 31, 2005 15.0%
March 31, 2006 30.0%
March 31, 2007 30.0%
September 18, 2007 15.0%
(e) Notwithstanding anything to the contrary in this Section 2.3, if
any Specified Senior Notes are outstanding on the date (the "Six-Month Date")
that is six months prior to the stated maturity of such Specified Senior Notes
then, on such Six-Month Date, all outstanding Term Loans shall automatically
become due and payable and the Revolving Commitments shall automatically be
terminated. Specified Senior Notes that have been defeased in accordance with
the terms thereof shall be deemed to be no longer outstanding for the purposes
of this paragraph.
(f) Any reduction or termination of the Revolving Commitments
pursuant to this Section 2.3 shall be accompanied by prepayment of the Revolving
Loans and/or Swingline Loans to the extent that the Total Revolving Extensions
of Credit exceed the amount of the Total Revolving Commitments after giving
effect thereto, provided that if the aggregate principal amount of Revolving
Loans and Swingline Loans then outstanding is less than the amount of such
excess (because L/C Obligations constitute a portion thereof), the Borrower
shall, to the extent of the balance of such excess, replace outstanding Letters
of Credit and/or deposit an amount in cash in a cash collateral account
established with the Funding Agent for the benefit of the Lenders on terms and
conditions satisfactory to the Funding Agent. The application of any prepayment
pursuant to this paragraph shall be made, first, to ABR Loans and, second, to
Eurodollar Loans. Each prepayment of the Loans under this paragraph (other than
ABR Loans and Swingline Loans) shall be accompanied by accrued interest to the
date of such prepayment on the amount prepaid.
2.4 Swingline Commitment. Subject to the terms and conditions
hereof, the Swingline Lender agrees to make a portion of the credit otherwise
available to the Borrower under the Revolving Commitments from time to time
during the Revolving Commitment Period by making swingline loans ("Swingline
Loans") to the Borrower; provided that (a) the aggregate principal amount of
Swingline Loans outstanding at any time shall not exceed the Swingline
Commitment then in effect (notwithstanding that the Swingline Loans outstanding
at any time, when aggregated with the Swingline Lender's other outstanding
Revolving Loans hereunder, may exceed the Swingline Commitment then in effect)
and (b) the Borrower shall not request, and the Swingline Lender shall not make,
any Swingline Loan if, after giving effect to the making of such Swingline Loan,
the aggregate amount of the Available Revolving Commitments would be less than
zero. During the Revolving Commitment Period, the
31
26
Borrower may use the Swingline Commitment by borrowing, repaying and
reborrowing, all in accordance with the terms and conditions hereof. Swingline
Loans shall be ABR Loans only.
2.5 Procedure for Swingline Borrowing; Refunding of Swingline Loans.
(a) Whenever the Borrower desires that the Swingline Lender make Swingline Loans
it shall give the Swingline Lender irrevocable telephonic notice confirmed
promptly in writing (which telephonic notice must be received by the Swingline
Lender not later than 12:00 Noon, Dallas time, on the proposed Borrowing Date),
specifying (i) the amount to be borrowed and (ii) the requested Borrowing Date
(which shall be a Business Day during the Revolving Commitment Period). Each
borrowing under the Swingline Commitment shall be in an amount equal to
$1,000,000 or a whole multiple of $500,000 in excess thereof. Not later than
2:00 P.M., Dallas time, on the Borrowing Date specified in a notice in respect
of Swingline Loans, the Swingline Lender shall make available to the Funding
Agent at the Funding Office an amount in immediately available funds equal to
the amount of the Swingline Loan to be made by the Swingline Lender. The Funding
Agent shall make the proceeds of such Swingline Loan available to the Borrower
on such Borrowing Date by depositing such proceeds in the account of the
Borrower with the Funding Agent on such Borrowing Date in immediately available
funds.
(b) The Swingline Lender, at any time and from time to time in its
sole and absolute discretion and in consultation with the Borrower (provided
that the failure to so consult shall not affect the ability of the Swingline
Lender to make the following request) may, on behalf of the Borrower (which
hereby irrevocably directs the Swingline Lender to act on its behalf), on one
Business Day's notice given by the Swingline Lender no later than 1:00 P.M.,
Dallas time, request each Revolving Lender to make, and each Revolving Lender
hereby agrees to make, a Revolving Loan, in an amount equal to such Revolving
Lender's Revolving Percentage of the aggregate amount of the Swingline Loans
(the "Refunded Swingline Loans") outstanding on the date of such notice, to
repay the Swingline Lender. Each Revolving Lender shall make the amount of such
Revolving Loan available to the Funding Agent at the Funding Office in
immediately available funds, not later than 11:00 A.M., Dallas time, one
Business Day after the date of such notice. The proceeds of such Revolving Loans
shall be immediately made available by the Funding Agent to the Swingline Lender
for application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to
charge the Borrower's accounts with the Funding Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent amounts received from the Revolving
Lenders are not sufficient to repay in full such Refunded Swingline Loans.
(c) If prior to the time a Revolving Loan would have otherwise been
made pursuant to Section 2.5(b), one of the events described in Section 8(f)
shall have occurred and be continuing with respect to the Borrower or if for any
other reason, as determined by the Swingline Lender in its sole discretion,
Revolving Loans may not be made as contemplated by Section 2.5(b), each
Revolving Lender shall, on the date such Revolving Loan was to have been made
pursuant to the notice referred to in Section 2.5(b) (the "Refunding Date"),
purchase for cash an undivided participating interest in the then outstanding
Swingline Loans by paying to the Swingline Lender an amount (the "Swingline
Participation Amount") equal to (i) such Revolving Lender's Revolving Percentage
times (ii) the sum of the aggregate principal amount of Swingline Loans then
outstanding that were to have been repaid with such Revolving Loans.
(d) Whenever, at any time after the Swingline Lender has received
from any Revolving Lender such Lender's Swingline Participation Amount, the
Swingline Lender receives any payment on account of the Swingline Loans, the
Swingline Lender will distribute to such Lender its Swingline Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded and, in the case of
32
27
principal and interest payments, to reflect such Lender's pro rata portion of
such payment if such payment is not sufficient to pay the principal of and
interest on all Swingline Loans then due); provided, however, that in the event
that such payment received by the Swingline Lender is required to be returned,
such Revolving Lender will return to the Swingline Lender any portion thereof
previously distributed to it by the Swingline Lender.
(e) Each Revolving Lender's obligation to make the Loans referred to
in Section 2.5(b) and to purchase participating interests pursuant to Section
2.5(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such Revolving Lender or the Borrower may have against the
Swingline Lender, the Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of Default or the
failure to satisfy any of the other conditions specified in Section 5; (iii) any
adverse change in the condition (financial or otherwise) of the Borrower; (iv)
any breach of this Agreement or any other Loan Document by the Borrower, any
other Loan Party or any other Revolving Lender; or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to the
Funding Agent for the account of each Revolving Lender and each Tranche A Term
Lender a nonrefundable commitment fee for the period from and including the
Stage One Closing Date to the last day of the Revolving Commitment Period or the
date on which the Tranche A Term Commitments have been fully utilized or
terminated, as the case may be, computed at the Commitment Fee Rate on the
average daily amount of the Available Revolving Commitment or the unutilized
Tranche A Term Commitment, as the case may be, of such Lender during the period
for which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Revolving Termination Date or the
date on which the Tranche A Term Commitments have been fully utilized or
terminated, as the case may be, commencing on the first of such dates to occur
after the date hereof.
(b) The Borrower agrees to pay to the Funding Agent the fees in the
amounts and on the dates previously agreed to in writing by the Borrower and the
Funding Agent.
2.7 Termination or Reduction of Revolving Commitments. The Borrower
shall have the right, upon not less than three Business Days' notice to the
Funding Agent, to terminate the Revolving Commitments or, from time to time, to
reduce the amount of the Revolving Commitments; provided that no such
termination or reduction of Revolving Commitments shall be permitted if, after
giving effect thereto and to any prepayments of the Revolving Loans and
Swingline Loans made on the effective date thereof, the Total Revolving
Extensions of Credit would exceed the Total Revolving Commitments. Any such
reduction shall be in an amount equal to $10,000,000, or a whole multiple of
$1,000,000 in excess thereof, shall reduce permanently the Revolving Commitments
then in effect and shall be applied pro rata to the scheduled reductions
thereof.
2.8 Optional Prepayments. The Borrower may at any time and from time
to time prepay the Loans, in whole or in part, without premium or penalty, upon
irrevocable notice delivered to the Funding Agent at least three Business Days
prior thereto in the case of Eurodollar Loans and at least one Business Day
prior thereto in the case of ABR Loans, which notice shall specify the date and
amount of prepayment and whether the prepayment is of Eurodollar Loans or ABR
Loans; provided, that if a Eurodollar Loan is prepaid on any day other than the
last day of the Interest Period applicable thereto, the Borrower shall also pay
any amounts owing pursuant to Section 2.18. Upon receipt of any such notice the
Funding Agent shall promptly notify each relevant Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, together with (except in the case of Revolving Loans
that are ABR Loans and Swingline Loans) accrued interest to
33
28
such date on the amount prepaid. Partial prepayments of Term Loans and Revolving
Loans shall be in an aggregate principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Partial prepayments of Swingline Loans
shall be in an aggregate principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof.
2.9 Mandatory Prepayments. (a) Unless the Required Prepayment
Lenders shall otherwise agree, if any member of the Charter Group shall receive
any Net Cash Proceeds in respect of any issuance of its Equity Interests or
otherwise receive Net Cash Proceeds pursuant to Section 8(k), then, within two
Business Days after such receipt, the Borrower shall apply an amount equal to
50% of such Net Cash Proceeds (whether or not contributed to the Borrower or any
of its Subsidiaries) toward the prepayment of the Term Loans; provided that (i)
the foregoing requirement shall not apply to ▇▇▇▇ ▇▇▇▇▇ Contributions and (ii)
in the case of any offering or sale of Equity Interests consummated on or prior
to the date that is eighteen months after the Stage One Closing Date, the
foregoing requirement shall apply only to that portion, if any, of the aggregate
amount of the Net Cash Proceeds of all such offerings and sales consummated
during such period in excess of $500,000,000.
(b) Unless the Required Prepayment Lenders shall otherwise agree, if
on any date the Borrower or any of its Subsidiaries shall receive Net Cash
Proceeds from any Asset Sale or Recovery Event then, (i) unless a Reinvestment
Notice shall be delivered in respect thereof, such Net Cash Proceeds shall be
applied within two Business Days after the deadline by which such Reinvestment
Notice is otherwise required to be delivered in respect of such Asset Sale or
Recovery Event toward the prepayment of the Term Loans (provided that the
foregoing requirement shall not apply to the first $5,000,000 of aggregate Net
Cash Proceeds received after the Stage One Closing Date) and (ii) on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment Prepayment
Amount with respect to the relevant Reinvestment Event shall be applied toward
the prepayment of the Term Loans.
(c) The application of any prepayment pursuant to this Section 2.9
shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each
prepayment of the Loans under this Section 2.9 shall be accompanied by accrued
interest to the date of such prepayment on the amount prepaid.
2.10 Conversion and Continuation Options. (a) The Borrower may elect
from time to time to convert Eurodollar Loans to ABR Loans by giving the Funding
Agent at least two Business Days' prior irrevocable notice of such election,
provided that any such conversion of Eurodollar Loans may only be made on the
last day of an Interest Period with respect thereto. The Borrower may elect from
time to time to convert ABR Loans to Eurodollar Loans by giving the Funding
Agent at least three Business Days' prior irrevocable notice of such election
(which notice shall specify the length of the initial Interest Period therefor),
provided that no ABR Loan may be converted into a Eurodollar Loan when any Event
of Default has occurred and is continuing. Upon receipt of any such notice the
Funding Agent shall promptly notify each relevant Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower giving
irrevocable notice to the Funding Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in Section 1.1, of the length
of the next Interest Period to be applicable to such Loans, provided that (i) no
Eurodollar Loan may be continued as such when any Event of Default has occurred
and is continuing and (ii) if the Borrower shall fail to give any required
notice as described above in this paragraph, the relevant Eurodollar Loans shall
be automatically converted to Eurodollar Loans having a one-month Interest
Period on the last day of the then expiring Interest Period. Upon receipt of any
such notice the Funding Agent shall promptly notify each relevant Lender
thereof.
34
29
2.11 Limitations on Eurodollar Tranches. Notwithstanding anything to
the contrary in this Agreement, all borrowings, conversions and continuations of
Eurodollar Loans hereunder and all selections of Interest Periods hereunder
shall be in such amounts and be made pursuant to such elections so that, (a)
after giving effect thereto, the aggregate principal amount of the Eurodollar
Loans comprising each Eurodollar Tranche shall be equal to $10,000,000 or a
whole multiple of $1,000,000 in excess thereof and (b) no more than fifteen
Eurodollar Tranches shall be outstanding at any one time.
2.12 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum equal to
the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), all outstanding Loans and Reimbursement
Obligations (whether or not overdue) shall bear interest at a rate per annum
equal to (x) in the case of the Loans, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section plus 2%
or (y) in the case of Reimbursement Obligations, the rate applicable to ABR
Loans under the Revolving Facility plus 2%, and (ii) if all or a portion of any
interest payable on any Loan or Reimbursement Obligation or any commitment fee
or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to ABR Loans
under the relevant Facility plus 2% (or, in the case of any such other amounts
that do not relate to a particular Facility, the rate then applicable to ABR
Loans under the Revolving Facility plus 2%), in each case, with respect to
clauses (i) and (ii) above, from the date of such non-payment until such amount
is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this Section
shall be payable from time to time on demand.
2.13 Computation of Interest and Fees. (a) Interest and fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to ABR Loans the rate of interest
on which is calculated on the basis of the Prime Rate, the interest thereon
shall be calculated on the basis of a 365- (or 366-, as the case may be) day
year for the actual days elapsed. The Funding Agent shall as soon as practicable
notify the Borrower and the relevant Lenders of each determination of a
Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Funding Agent shall as soon as practicable notify the Borrower
and the relevant Lenders of the effective date and the amount of each such
change in interest rate.
(b) Each determination of an interest rate by the Funding Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error. The Funding Agent
shall, at the request of the Borrower, deliver to the Borrower a statement
showing the quotations used by the Funding Agent in determining any interest
rate pursuant to Section 2.12(a).
2.14 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
35
30
(a) the Funding Agent shall have determined (which determination
shall be conclusive and binding upon the Borrower) that, by reason of
circumstances affecting the relevant market, adequate and reasonable means
do not exist for ascertaining the Eurodollar Rate for such Interest
Period, or
(b) the Funding Agent shall have received notice from the Majority
Facility Lenders in respect of the relevant Facility that the Eurodollar
Rate determined or to be determined for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans
during such Interest Period,
the Funding Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as ABR Loans,
(y) any Loans under the relevant Facility that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
ABR Loans and (z) any outstanding Eurodollar Loans under the relevant Facility
shall be converted, on the last day of the then-current Interest Period, to ABR
Loans. Until such notice has been withdrawn by the Funding Agent, no further
Eurodollar Loans under the relevant Facility shall be made or continued as such,
nor shall the Borrower have the right to convert Loans under the relevant
Facility to Eurodollar Loans.
2.15 Pro Rata Treatment and Payments. (a) Except in the case of the
Incremental Term Facility, each borrowing by the Borrower from the Lenders
hereunder, each payment by the Borrower on account of any commitment fee and any
reduction of the Commitments of the Lenders shall be made pro rata according to
the respective Tranche A Term Commitments, Tranche B Term Commitments or
Revolving Commitments, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Term Loans shall be made pro rata
according to the respective outstanding principal amounts of the Term Loans then
held by the Term Lenders (except as otherwise provided in Section 2.15(d)). The
amount of each principal prepayment of the Term Loans shall be applied to reduce
the then remaining installments of the Tranche A Term Loans, Tranche B Term
Loans and Incremental Term Loans, as the case may be, pro rata based upon the
then remaining principal amount thereof. Amounts prepaid on account of the Term
Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Lenders.
(d) Notwithstanding anything to the contrary in this Agreement, with
respect to the amount of any mandatory prepayment of the Term Loans pursuant to
Section 2.9 and, if the Borrower so elects in its sole discretion, any optional
prepayment of the Term Loans pursuant to Section 2.8, that in any such case is
allocated to Tranche B Term Loans or Incremental Term Loans (such amounts, the
"Tranche B Prepayment Amount" and the "Incremental Prepayment Amount",
respectively), at any time when Tranche A Term Loans remain outstanding, the
Borrower will (or, in the case of optional prepayments, may), in lieu of
applying such amount to the prepayment of Tranche B Term Loans and Incremental
Term Loans, respectively, on the date specified in Section 2.9 or 2.8, as the
case may be, for such prepayment, give the Funding Agent telephonic notice
(promptly confirmed in writing) requesting that the Funding Agent prepare and
provide to each Tranche B Lender and
36
31
Incremental Term Lender a notice (each, a "Prepayment Option Notice") as
described below. As promptly as practicable after receiving such notice from the
Borrower, the Funding Agent will send to each Tranche B Lender and Incremental
Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit G,
and shall include an offer by the Borrower to prepay on the date (each a
"Prepayment Date") that is 10 Business Days after the date of the Prepayment
Option Notice, the relevant Term Loans of such Lender by an amount equal to the
portion of the Prepayment Amount indicated in such Lender's Prepayment Option
Notice as being applicable to such Lender's Tranche B Term Loans or Incremental
Term Loans, as the case may be. On the Prepayment Date, (i) the Borrower shall
pay to the relevant Tranche B Lenders and Incremental Term Lenders the aggregate
amount necessary to prepay that portion of the outstanding relevant Term Loans
in respect of which such Lenders have accepted prepayment as described above,
(ii) the Borrower shall pay to the Tranche A Lenders an amount equal to 50% (or,
in the case of optional prepayments, such percentage as shall be determined by
the Borrower in its sole discretion) of the portion of the Tranche B Prepayment
Amount and the Incremental Prepayment Amount not accepted by the relevant
Lenders, and such amount shall be applied to the prepayment of the Tranche A
Term Loans, and (iii) the Borrower shall be entitled to retain the remaining
portion of the Tranche B Prepayment Amount and the Incremental Prepayment Amount
not accepted by the relevant Lenders.
(e) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 12:00 Noon,
Dallas time, on the due date thereof to the Funding Agent, for the account of
the Lenders, at the Funding Office, in Dollars and in immediately available
funds. The Funding Agent shall distribute such payments to the Lenders promptly
upon receipt in like funds as received. If any payment hereunder (other than
payments on the Eurodollar Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a Eurodollar Loan becomes due and payable on a day other
than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension of
any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.
(f) Unless the Funding Agent shall have been notified in writing by
any Lender prior to a borrowing that such Lender will not make the amount that
would constitute its share of such borrowing available to the Funding Agent, the
Funding Agent may assume that such Lender is making such amount available to the
Funding Agent, and the Funding Agent may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. If such amount is not made
available to the Funding Agent by the required time on the Borrowing Date
therefor, such Lender shall pay to the Funding Agent, on demand, such amount
with interest thereon at a rate equal to the daily average Federal Funds
Effective Rate for the period until such Lender makes such amount immediately
available to the Funding Agent. A certificate of the Funding Agent submitted to
any Lender with respect to any amounts owing under this paragraph shall be
conclusive in the absence of manifest error. If such Lender's share of such
borrowing is not made available to the Funding Agent by such Lender within three
Business Days of such Borrowing Date, the Funding Agent shall also be entitled
to recover such amount with interest thereon at the rate per annum applicable to
ABR Loans under the relevant Facility, on demand, from the Borrower.
(g) Unless the Funding Agent shall have been notified in writing by
the Borrower prior to the date of any payment being made hereunder that the
Borrower will not make such payment to the Funding Agent, the Funding Agent may
assume that the Borrower is making such payment, and the Funding Agent may, but
shall not be required to, in reliance upon such assumption, make available to
the Lenders their respective pro rata shares of a corresponding amount. If such
payment is not made to the Funding Agent by the Borrower within three Business
Days of such required date, the Funding Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum
37
32
equal to the daily average Federal Funds Effective Rate. Nothing herein shall be
deemed to limit the rights of the Funding Agent or any Lender against the
Borrower.
2.16 Requirements of Law. (a) If the adoption of or any change in
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application or
any Eurodollar Loan made by it, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-Excluded Taxes
covered by Section 2.17 and changes in the rate of tax on the overall net
income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds
by, any office of such Lender that is not otherwise included in the
determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this paragraph, it shall promptly
notify the Borrower (with a copy to the Funding Agent) of the event by reason of
which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Funding Agent) of
a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction;
provided that the Borrower shall not be required to compensate a Lender pursuant
to this paragraph for any amounts incurred more than six months prior to the
date that such Lender notifies the Borrower of such Lender's intention to claim
compensation therefor; and provided further that, if the circumstances giving
rise to such claim have a retroactive effect, then such six-month period shall
be extended to include the period of such retroactive effect.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the Funding
Agent) shall be conclusive in the absence of
38
33
manifest error. The obligations of the Borrower pursuant to this Section shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.17 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Funding Agent or any Lender as a result of a
present or former connection between the Funding Agent or such Lender and the
jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Funding Agent or such Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any other Loan Document). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") or Other Taxes are required to be withheld from any
amounts payable to the Funding Agent or any Lender hereunder, the amounts so
payable to the Funding Agent or such Lender shall be increased to the extent
necessary to yield to the Funding Agent or such Lender (after payment of all
Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrower shall not be required to increase any such amounts
payable to any Lender with respect to any Non-Excluded Taxes (i) that are
attributable to such Lender's failure to comply with the requirements of
paragraph (d) or (e) of this Section or (ii) that are United States withholding
taxes imposed on amounts payable to such Lender at the time the Lender becomes a
party to this Agreement, except to the extent that such Lender's assignor (if
any) was entitled, at the time of assignment, to receive additional amounts from
the Borrower with respect to such Non-Excluded Taxes pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by
the Borrower, as promptly as possible thereafter the Borrower shall send to the
Funding Agent for its own account or for the account of the relevant Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority
or fails to remit to the Funding Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Funding Agent and the
Lenders for any incremental taxes, interest or penalties that may become payable
by the Funding Agent or any Lender as a result of any such failure.
(d) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "Non-U.S. Lender") shall
deliver to the Borrower and the Funding Agent (or, in the case of a Participant,
to the Lender from which the related participation shall have been purchased)
two copies of either U.S. Internal Revenue Service Form 1001 or Form 4224, or,
in the case of a Non-U.S. Lender claiming exemption from U.S. federal
withholding tax under Section 871(h) or 881(c) of the Code with respect to
payments of "portfolio interest", a statement substantially in the form of
Exhibit H and a Form W-8, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant, on or before the date such
39
34
Participant purchases the related participation). In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender
shall promptly notify the Borrower at any time it determines that it is no
longer in a position to provide any previously delivered certificate to the
Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this
paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from non-U.S.
withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Funding Agent), at the time or times prescribed by applicable law or reasonably
requested by the Borrower, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding, provided that such Lender is legally entitled to complete, execute
and deliver such documentation and in such Lender's judgment such completion,
execution or submission would not materially prejudice the legal position of
such Lender.
(f) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
2.18 Indemnity. The Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense that such Lender may sustain
or incur as a consequence of (a) default by the Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans after the Borrower has
given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment of or conversion
from Eurodollar Loans after the Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making of a
prepayment of Eurodollar Loans on a day that is not the last day of an Interest
Period with respect thereto. Such indemnification may include an amount equal to
the excess, if any, of (i) the amount of interest that would have accrued on the
amount so prepaid, or not so borrowed, converted or continued, for the period
from the date of such prepayment or of such failure to borrow, convert or
continue to the last day of such Interest Period (or, in the case of a failure
to borrow, convert or continue, the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Margin
included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender) that would have accrued to such Lender on such amount
by placing such amount on deposit for a comparable period with leading banks in
the interbank eurodollar market. A certificate as to any amounts payable
pursuant to this Section submitted to the Borrower by any Lender shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.19 Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.16 or 2.17(a)
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.16 or 2.17(a).
2.20 Replacement of Lenders. The Borrower shall be permitted to
replace any Lender that (a) requests reimbursement for amounts owing pursuant to
Section 2.16 or 2.17(a) or (b) defaults in
40
35
its obligation to make Loans hereunder, with a replacement financial
institution; provided that (i) such replacement does not conflict with any
Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement,
such Lender shall have taken no action under Section 2.19 which has eliminated
the continued need for payment of amounts owing pursuant to Section 2.16 or
2.17(a), (iv) the replacement financial institution shall purchase, at par, all
Loans and other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 2.18 if any Eurodollar Loan owing to such replaced Lender shall be
purchased other than on the last day of the Interest Period relating thereto,
(vi) the replacement financial institution, if not already a Lender, shall be
reasonably satisfactory to the Administrative Agents, (vii) the replaced Lender
shall be obligated to make such replacement in accordance with the provisions of
Section 10.6 (provided that the Borrower shall be obligated to pay the
registration and processing fee referred to therein), (viii) until such time as
such replacement shall be consummated, the Borrower shall pay all additional
amounts (if any) required pursuant to Section 2.16 or 2.17(a), as the case may
be, and (ix) any such replacement shall not be deemed to be a waiver of any
rights that the Borrower, the Agents or any other Lender shall have against the
replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
each Issuing Lender, in reliance on the agreements of the other Revolving
Lenders set forth in Section 3.4(a), agrees to issue letters of credit ("Letters
of Credit") for the account of the Borrower on any Business Day during the
Revolving Commitment Period in such form as may be approved from time to time by
such Issuing Lender; provided that no Issuing Lender shall issue any Letter of
Credit if, after giving effect to such issuance, (i) the L/C Obligations would
exceed the L/C Commitment or (ii) the aggregate amount of the Available
Revolving Commitments would be less than zero. Each Letter of Credit shall (i)
be denominated in Dollars, (ii) unless otherwise agreed by the Funding Agent and
the relevant Issuing Lender, have a face amount of at least $500,000 and (iii)
expire no later than the earlier of (x) the first anniversary of its date of
issuance and (y) the date that is five Business Days prior to the Revolving
Termination Date, provided that any Letter of Credit with a one-year term may
provide for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the date referred to in clause (y) above).
(b) No Issuing Lender shall be obligated to issue any Letter of
Credit hereunder if such issuance would conflict with, or cause such Issuing
Lender or any L/C Participant to exceed any limits imposed by, any applicable
Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower may
from time to time request that any Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender an Application therefor, completed to the
satisfaction of such Issuing Lender, and such other certificates, documents and
other papers and information as such Issuing Lender may request. Upon receipt of
any Application, the relevant Issuing Lender will process such Application and
the certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
such Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed to by such Issuing Lender and the Borrower. The relevant
Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower
promptly following the issuance thereof. The relevant Issuing Lender shall
promptly furnish to the Funding Agent, which shall in turn promptly furnish to
the Lenders, notice of the issuance of each Letter of Credit (including the
amount thereof).
41
36
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on all
outstanding Letters of Credit at a per annum rate equal to the Applicable Margin
then in effect with respect to Eurodollar Loans under the Revolving Facility,
shared ratably among the Revolving Lenders and payable quarterly in arrears on
each L/C Fee Payment Date after the issuance date. In addition, the Borrower
shall pay to the relevant Issuing Lender for its own account a fronting fee of
0.25% per annum on the undrawn and unexpired amount of each Letter of Credit
issued by such Issuing Lender, payable quarterly in arrears on each L/C Fee
Payment Date after the Issuance Date.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse the relevant Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by such Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4 L/C Participations. (a) Each Issuing Lender irrevocably agrees
to grant and hereby grants to each L/C Participant, and, to induce the Issuing
Lenders to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from each Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Percentage in each Issuing Lender's obligations and
rights under each Letter of Credit issued by it hereunder and the amount of each
draft paid by such Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with each Issuing Lender that, if a draft
is paid under any Letter of Credit issued by such Issuing Lender for which such
Issuing Lender is not reimbursed in full by the Borrower in accordance with the
terms of this Agreement, such L/C Participant shall pay to such Issuing Lender
upon demand an amount equal to such L/C Participant's Revolving Percentage of
the amount of such draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to any
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by such Issuing Lender under any Letter of Credit is paid to
such Issuing Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to such Issuing Lender on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Effective Rate during the period from and including the date such payment
is required to the date on which such payment is immediately available to such
Issuing Lender, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to Section
3.4(a) is not made available to the relevant Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, such
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated from such due date at the
rate per annum applicable to ABR Loans under the Revolving Facility. A
certificate of the relevant Issuing Lender submitted to any L/C Participant with
respect to any amounts owing under this Section shall be conclusive in the
absence of manifest error.
(c) Whenever, at any time after the relevant Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
pro rata share of such payment in accordance with Section 3.4(a), such Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by such Issuing Lender), or any payment of interest on account thereof, such
Issuing Lender will distribute to such L/C Participant its pro rata share
thereof; provided, however, that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing Lender,
such L/C Participant shall return to such Issuing Lender the portion thereof
previously distributed by such Issuing Lender to it.
42
37
3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to
reimburse the relevant Issuing Lender on each date on which such Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by such Issuing Lender for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment. Each such
payment shall be made to the relevant Issuing Lender in lawful money of the
United States and in immediately available funds. Interest shall be payable on
any and all amounts remaining unpaid by the Borrower under this Section from the
date such amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate set forth in (i) until the second
Business Day following the date of the applicable drawing, Section 2.12(b) and
(ii) thereafter, Section 2.12(c).
3.6 Obligations Absolute. The Borrower's obligations under this
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with each Issuing
Lender that no Issuing Lender shall be responsible for, and the Borrower's
Reimbursement Obligations under Section 3.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. No Issuing Lender
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the relevant Issuing
Lender. The Borrower agrees that any action taken or omitted by any Issuing
Lender under or in connection with any Letter of Credit or the related drafts or
documents, if done in the absence of gross negligence or willful misconduct and
in accordance with the standards of care specified in the Uniform Commercial
Code of the State of New York, shall be binding on the Borrower and shall not
result in any liability of any Issuing Lender to the Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
payment under any Letter of Credit, the relevant Issuing Lender shall promptly
notify the Borrower of the date and amount thereof. The responsibility of each
Issuing Lender to the Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are substantially in conformity with such
Letter of Credit.
3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement
and to make the Loans and issue or participate in the Letters of Credit,
Holdings and the Borrower hereby jointly and severally represent and warrant to
the Agents and each Lender that:
43
38
4.1 Financial Condition. (a) The unaudited pro forma combined
balance sheet data and statement of operations of Charter Holdings (the "Pro
Forma Financial Statements") are based on the financial statements of Charter
Holdings, the CCA Group (as defined in Schedule 4.1) and CharterComm Holdings,
L.P. identified on Schedule 4.1, as adjusted to illustrate the estimated effect
of the following transactions as if they had occurred on January 1, 1998 for the
statement of operations and on December 31, 1998 for the balance sheet data:
certain acquisitions made during 1998 by Charter and Marcus, the combination of
Charter Holdings and Marcus Holdings, the acquisitions of the Pending Acquired
Entities and the making of the Loans and the issuance of the Senior Notes and
the use of proceeds thereof. The Pro Forma Financial Statements have been
prepared based on the best information available to Holdings and the Borrower as
of the date of delivery thereof, and present fairly on a pro forma basis the
financial condition of Charter Holdings, Marcus Holdings, the Pending Acquired
Entities and their respective consolidated Subsidiaries for the 1998 fiscal
year, and as at December 31, 1998, as the case may be.
(b) The consolidated financial statements of Marcus Holdings and
CharterComm Holdings, L.P., and the combined financial statements of Charter
Holdings and the CCA Group, all as identified on Schedule 4.1, have been
reported on and accompanied by an unqualified report of the independent public
accountant identified on Schedule 4.1. With respect to the financial statements
identified on Schedule 4.1, the audited balance sheets present fairly the
consolidated or combined (as the case may be) financial condition of such Person
as at the date indicated, and the consolidated or combined (as the case may be)
results of its operations and cash flows for the periods indicated. All such
financial statements, including the related schedules and notes thereto, have
been prepared in accordance with GAAP applied consistently throughout the
periods involved (except as approved by the aforementioned firm of accountants
and disclosed therein). Holdings, the Borrower and its Subsidiaries do not have
any material Guarantee Obligations, contingent liabilities and liabilities for
taxes, or any long-term leases or unusual forward or long-term commitments,
including any interest rate or foreign currency swap or exchange transaction or
other obligation in respect of derivatives, that are not reflected in the most
recent financial statements referred to in this paragraph. During the period
from December 31, 1998 to and including the date hereof there has been no
Disposition by Holdings, the Borrower or any of its Subsidiaries of any material
part of its business or property.
4.2 No Change. Since December 31, 1998 there has been no event,
development or circumstance that has had or could reasonably be expected to have
a Material Adverse Effect.
4.3 Existence; Compliance with Law. Each of Holdings, the Borrower
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
and (d) is in compliance with all Requirements of Law, in each case with respect
to clauses (c) and (d), except as could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
4.4 Power; Authorization; Enforceable Obligations. Each Loan Party
has the power and authority, and the legal right, to make, deliver and perform
the Loan Documents to which it is a party and, in the case of the Borrower, to
borrow hereunder. Each Loan Party has taken all necessary action to authorize
the execution, delivery and performance of the Loan Documents to which it is a
party and, in the case of the Borrower, to authorize the borrowings on the terms
and conditions of this Agreement. No consent or authorization of, filing with,
notice to or other act by or in respect of, any Governmental Authority or any
other Person is required in connection with the borrowings hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the Loan Documents, except the filings referred to in Section 4.20.
Each Loan Document has been duly executed
44
39
and delivered on behalf of each Loan Party party thereto. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any material Contractual Obligation of Holdings, the
Borrower or any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation
(other than the Liens created by the Guarantee and Collateral Agreement).
4.6 Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of Holdings or the Borrower, threatened by or against Holdings, the Borrower or
any of its Subsidiaries or against any of their respective properties or
revenues (a) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (b) that could reasonably be
expected to have a Material Adverse Effect.
4.7 No Default. Neither Holdings, the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of Holdings, the Borrower and
its Subsidiaries has title in fee simple to, or a valid leasehold interest in,
all its material real property, and good title to, or a valid leasehold interest
in, all its other material property, and none of such property is subject to any
Lien except as permitted by Section 7.3.
4.9 Intellectual Property. Holdings, the Borrower and each of its
Subsidiaries owns, or is licensed to use, all material Intellectual Property
necessary for the conduct of its business as currently conducted. No material
claim has been asserted and is pending by any Person challenging or questioning
the use, validity or effectiveness of any material Intellectual Property owned
or licensed by Holdings, the Borrower or any of its Subsidiaries, nor does
Holdings or the Borrower know of any valid basis for any such claim. The use of
Intellectual Property by Holdings, the Borrower and its Subsidiaries does not
infringe on the rights of any Person in any material respect.
4.10 Taxes. Each of Holdings, the Borrower and each of its
Subsidiaries has filed or caused to be filed all federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any the amount or
validity of that are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of Holdings, the Borrower or its Subsidiaries, as the case
may be); no tax Lien has been filed, and, to the knowledge of Holdings and the
Borrower, no claim is being asserted, with respect to any such tax, fee or other
charge.
4.11 Federal Regulations. No part of the proceeds of any Loans will
be used for "buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms
45
40
under Regulation U as now and from time to time hereafter in effect or for any
purpose that violates the provisions of the Regulations of the Board. If
requested by any Lender or the Funding Agent, the Borrower will furnish to the
Funding Agent and each Lender a statement to the foregoing effect in conformity
with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to
in Regulation U.
4.12 Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against Holdings, the Borrower or any of its
Subsidiaries pending or, to the knowledge of Holdings or the Borrower,
threatened; (b) hours worked by and payment made to employees of Holdings, the
Borrower and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such
matters; and (c) all payments due from Holdings, the Borrower or any of its
Subsidiaries on account of employee health and welfare insurance have been paid
or accrued as a liability on the books of Holdings, the Borrower or the relevant
Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan that
has resulted or could reasonably be expected to result in a material liability
under ERISA, and neither the Borrower nor, to the Borrower's knowledge, any
Commonly Controlled Entity would become subject to any material liability under
ERISA if the Borrower or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made. No such
Multiemployer Plan of Holdings or any of its Subsidiaries nor, to the Borrower's
knowledge, any other Multiemployer Plan, is in Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
4.15 Subsidiaries. Except as disclosed to the Funding Agent by the
Borrower in writing from time to time after the Stage One Closing Date, (a)
Schedule 4.15 sets forth the name and jurisdiction of organization of Holdings
and each of its Subsidiaries and, as to each such Subsidiary, the percentage of
each class of Equity Interests owned by any Loan Party and (b) except as set
forth on Schedule 4.15, there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments of any nature
relating to any Equity Interests of the Borrower or any of its Subsidiaries,
except as created by the Loan Documents.
4.16 Use of Proceeds. The proceeds of the Loans, and the Letters of
Credit, shall be used for general purposes, including to finance permitted
Investments.
4.17 Environmental Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:
46
41
(a) the facilities and properties owned, leased or operated by
Holdings, the Borrower or any of its Subsidiaries (the "Properties") do
not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or under circumstances
that constitute or constituted a violation of, or could give rise to
liability under, any Environmental Law;
(b) neither Holdings, the Borrower nor any of its Subsidiaries has
received or is aware of any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding environmental
matters or compliance with Environmental Laws with regard to any of the
Properties or the business operated by Holdings, the Borrower or any of
its Subsidiaries (the "Business"), nor does Holdings or the Borrower have
knowledge or reason to believe that any such notice will be received or is
being threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location that could give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties in violation
of, or in a manner that could give rise to liability under, any applicable
Environmental Law;
(d) no judicial proceeding or governmental or administrative action
is pending or, to the knowledge of Holdings and the Borrower, threatened,
under any Environmental Law to which Holdings, the Borrower or any
Subsidiary is or will be named as a party with respect to the Properties
or the Business, nor are there any consent decrees or other decrees,
consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any
Environmental Law with respect to the Properties or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or
related to the operations of Holdings, the Borrower or any Subsidiary in
connection with the Properties or otherwise in connection with the
Business, in violation of or in amounts or in a manner that could give
rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or
about the Properties or violation of any Environmental Law with respect to
the Properties or the Business; and
(g) neither Holdings, the Borrower nor any of its Subsidiaries has
assumed any liability of any other Person under Environmental Laws.
4.18 Certain Cable Television Matters. Except as, in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect:
(a) (i) Holdings, the Borrower and its Subsidiaries possess all
Authorizations necessary to own, operate and construct the CATV Systems or
otherwise for the operations of their businesses and are not in violation
thereof and (ii) all such Authorizations are in full force and effect and
no event has occurred that permits, or after notice or lapse of time could
permit, the revocation, termination or material and adverse modification
of any such Authorization;
47
42
(b) neither Holdings, the Borrower nor any of its Subsidiaries is in
violation of any duty or obligation required by the Communications Act of
1934, as amended, or any FCC rule or regulation applicable to the
operation of any portion of any of the CATV Systems;
(c) (i) there is not pending or, to the best knowledge of Holdings
or the Borrower, threatened, any action by the FCC to revoke, cancel,
suspend or refuse to renew any FCC License held by Holdings, the Borrower
or any of its Subsidiaries and (ii) there is not pending or, to the best
knowledge of Holdings or the Borrower, threatened, any action by the FCC
to modify adversely, revoke, cancel, suspend or refuse to renew any other
Authorization; and
(d) there is not issued or outstanding or, to the best knowledge of
Holdings or the Borrower, threatened, any notice of any hearing, violation
or complaint against Holdings, the Borrower or any of its Subsidiaries
with respect to the operation of any portion of the CATV Systems and
neither Holdings nor the Borrower has any knowledge that any Person
intends to contest renewal of any Authorization.
4.19 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
by or on behalf of any Loan Party to the Agents or the Lenders, or any of them,
for use in connection with the transactions contemplated by this Agreement or
the other Loan Documents, as supplemented from time to time prior to the date
this representation and warranty is made or deemed made, contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained herein or therein not misleading. The projections and
pro forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ from the projected results set forth
therein by a material amount. There is no fact known to any Loan Party that
could reasonably be expected to have a Material Adverse Effect that has not been
expressly disclosed herein, in the other Loan Documents, in the Confidential
Information Memorandum or in any other documents, certificates and statements
furnished to the Agents and the Lenders for use in connection with the
transactions contemplated hereby and by the other Loan Documents.
4.20 Security Interests. The Guarantee and Collateral Agreement is
effective to create in favor of the Funding Agent, for the benefit of the
Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. In the case of certificated Pledged
Stock described in the Guarantee and Collateral Agreement, when certificates
representing such Pledged Stock are delivered to the Administrative Agents, and
in the case of the other Collateral described in the Guarantee and Collateral
Agreement, when financing statements specified on Schedule 4.20 in appropriate
form are filed in the offices specified on Schedule 4.20, the Guarantee and
Collateral Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the Loan Parties in such
Collateral and the proceeds thereof, as security for the Obligations (as defined
in the Guarantee and Collateral Agreement), in each case prior and superior in
right to any other Person.
4.21 Solvency. Each Loan Party (other than any Shell Subsidiary) is,
and after giving effect to the financing transactions referred to herein will be
and will continue to be, Solvent.
4.22 Certain Tax Matters. As of the Stage One Closing Date, each of
Holdings, the Borrower and each of its Subsidiaries (other than any such
Subsidiary that is organized as a corporation) is a Flow-Through Entity.
48
43
4.23 Year 2000 Matters. Any reprogramming required to permit the
proper functioning (but only to the extent that such proper functioning would
otherwise be impaired by the occurrence of the year 2000) in and following the
year 2000 of computer systems and other equipment containing embedded
microchips, in either case owned or operated by Holdings, the Borrower or any of
its Subsidiaries or used or relied upon in the conduct of their business
(including any such systems and other equipment supplied by others or with which
the computer systems of Holdings, the Borrower or any of its Subsidiaries
interface) has been completed. The testing of all such systems and other
equipment as so reprogrammed will be completed at such times, and to the extent
necessary, so as to avoid a Material Adverse Effect. The costs to Holdings, the
Borrower and its Subsidiaries that have not been incurred as of the date hereof
for such reprogramming and testing and for the other reasonably foreseeable
consequences to them of any improper functioning of other computer systems and
equipment containing embedded microchips due to the occurrence of the year 2000
could not reasonably be expected to result in a Default or Event of Default or
to have a Material Adverse Effect. The computer systems of Holdings, the
Borrower and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be, sufficient for
the conduct of their business as currently conducted.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of each
Lender to make the initial extension of credit requested to be made by it is
subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Stage One Closing Date, of the following conditions
precedent (with references to the Lenders in this Section 5.1 referring only to
Lenders as of the Stage One Closing Date):
(a) Credit Agreement; Guarantee and Collateral Agreement. The
Administrative Agents shall have received (i) this Agreement, executed and
delivered by the Agents, Holdings and the Borrower, (ii) an Addendum,
executed and delivered by each Lender listed on Schedule 1.1, (iii) the
Guarantee and Collateral Agreement, executed and delivered by Holdings,
the Borrower and each Subsidiary Guarantor and (iv) an Acknowledgment and
Consent in the form attached to the Guarantee and Collateral Agreement,
executed and delivered by each Issuer (as defined therein), if any, that
is not a Loan Party.
In the event that an Addendum has not been duly executed and
delivered by each Person listed on Schedule 1.1 on the date scheduled to
be the Stage One Closing Date, the condition referred to in clause (i)
above shall nevertheless be deemed satisfied if on such date the Borrower
and the Administrative Agents shall have designated one or more Persons
(the "Designated Lenders") to assume, in the aggregate, all of the
Commitments that would have been held by the Persons listed on Schedule
1.1 (the "Non-Executing Persons") which have not so executed and delivered
an Addendum (subject to each such Designated Lender's consent and its
execution and delivery of an Addendum). Schedule 1.1 shall automatically
be deemed to be amended to reflect the respective Commitments of the
Designated Lenders and the omission of the Non-Executing Persons as
Lenders hereunder.
(b) Financial Statements. The Lenders shall have received the
financial statements referred to in Section 4.1.
(c) Senior Notes. Charter Holdings shall have issued the Senior
Notes. Any Senior Notes that are Specified Senior Notes shall be issued in
compliance with the definition of "Specified Senior Notes".
49
44
(d) Existing Indebtedness. All of the existing notes (other than a
de minimis amount) and credit facilities of Holdings and its Subsidiaries
shall have been redeemed, defeased or paid in full, and any commitments
under such credit facilities shall have been terminated.
(e) Approvals. All material governmental and third party approvals
necessary in connection with the financing contemplated hereby shall have
been obtained and be in full force and effect.
(f) Lien Searches. The Funding Agent shall have received the results
of a recent Lien search in each of the jurisdictions where assets of the
Loan Parties are located, and such search shall reveal no Liens on any of
the assets of Holdings, the Borrower or any of its Subsidiaries except for
Liens permitted by Section 7.3 or Liens which have been discharged, or for
which releases have been tendered, on or prior to the Stage One Closing
Date pursuant to documentation satisfactory to the Funding Agent.
(g) Fees. The Lenders and the Agents shall have received all fees
required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal counsel),
on or before the Stage One Closing Date. All such amounts will be paid
with proceeds of Loans made on the Stage One Closing Date and will be
reflected in the funding instructions given by the Borrower to the Funding
Agent on or before the Stage One Closing Date.
(h) Closing Certificate; No Material Restrictions; Pro Forma
Compliance. The Funding Agent shall have received, with a counterpart for
each Lender, a certificate of each Loan Party, dated the Stage One Closing
Date, substantially in the form of Exhibit C, with appropriate insertions
and attachments, which (i) in the case of Holdings, shall also certify
that Holdings and its Subsidiaries are not subject to material contractual
or other restrictions that would be violated by the transactions
contemplated hereby and (ii) in the case of the Borrower, shall also
certify, in reasonable detail, pro forma compliance with Section 7.1(a).
(i) Legal Opinions. The Administrative Agents shall have received
the following executed legal opinions:
(i) the legal opinion of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, counsel to Holdings and its Subsidiaries, substantially in the
form of Exhibit F-1; and
(ii) the legal opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq., general
counsel of Holdings and its Subsidiaries, substantially in the form
of Exhibit F-2.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agents
may reasonably require.
(j) Filings, Registrations, Recordings, etc. Each document
(including any Uniform Commercial Code financing statement) required by
the Guarantee and Collateral Agreement under law or reasonably requested
by the Funding Agent to be filed, registered or recorded in order to
create in favor of the Funding Agent, for the benefit of the Lenders, a
perfected Lien on the Colleteral described therein, prior end superior in
right to any other Person, shall be in proper fovm for filing,
registration or recordation. The Funding Agent shall have received (i) the
certificates, if any, representing the Equity Interests pledged pursuant
to the Guarantee and Collateral Agreement, together with an undated stock
power for each such certificate executed by
50
45
the pledgor thereof, and (ii) each promissory note (if any) pledged to the
Funding Agent pursuant to the Guarantee and Collateral Agreement endorsed
in blank by the pledgor thereof.
5.2 Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including its initial extension of credit) is subject to the satisfaction of
the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
(c) Other Documents. In the case of any extension of credit made on
an Increased Facility Closing Date, the Administrative Agents shall have
received such documents and information as they may reasonably request.
Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in Sections
5.2(a) and (b) have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
Holdings and the Borrower hereby agree that, so long as the
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or any Agent hereunder, each of
Holdings and the Borrower shall, and shall cause each Subsidiary of the Borrower
to:
6.1 Financial Statements. Furnish to the Funding Agent (with
sufficient copies for each Lender):
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the audited
consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year, setting
forth in each case in comparative form the figures for the previous year,
reported on without a "going concern" or like qualification or exception,
or qualification arising out of the scope of the audit, by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP or other independent certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end
of such quarter, setting forth in each case in comparative form the
figures for the previous year, certified by a Responsible Officer as being
fairly stated in all material respects (subject to normal year-end audit
adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected
51
46
therein and with prior periods (except as approved by such accountants or
officer, as the case may be, and disclosed therein).
6.2 Certificates; Other Information. Furnish to the Funding Agent
(with sufficient copies for each Lender) (or (i) in the case of clause (e)
below, to the Administrative Agents and (ii) in the case of clause (f) below, to
the relevant Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default under Section 7.1, except as specified in such
certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that, to the best of each such Responsible Officer's knowledge,
each Loan Party during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained
in this Agreement and the other Loan Documents to which it is a party to
be observed, performed or satisfied by it, and that such Responsible
Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate and (ii) a Compliance Certificate
containing all information and calculations necessary for determining
compliance by Holdings, the Borrower and its Subsidiaries with the
provisions of this Agreement referred to therein as of the last day of the
fiscal quarter or fiscal year of the Borrower, as the case may be;
(c) as soon as available, and in any event no later than 45 days
after the end of each fiscal year of the Borrower, a budget for the
following fiscal year (which shall include projected Consolidated
Operating Cash Flow and budgeted capital expenditures), and, as soon as
available, material revisions, if any, of such budget with respect to such
fiscal year (collectively, the "Budget"), which Budget shall in each case
be accompanied by a certificate of a Responsible Officer stating that such
Budget is based on reasonable estimates, information and assumptions and
that such Responsible Officer has no reason to believe that such Budget is
incorrect or misleading in any material respect;
(d) within five days after the same are sent, copies of all
financial statements and reports (including reports on Form 10-K, 10-Q or
8-K) that Holdings or the Borrower sends to the holders of any class of
its debt securities or public equity securities and, within five days
after the same are filed, copies of all financial statements and reports
that Holdings or the Borrower may make to, or file with, the SEC;
(e) no later than three Business Days prior to consummating any
transaction described in Section 7.2(f), 7.2(g), 7.2(h), 7.5(e), 7.5(f),
7.5(g), 7.6(b), 7.7(f), 7.7(g) or (with respect to payment of deferred
management fees) 7.8(c), a certificate of a Responsible Officer
demonstrating in reasonable detail (i) that both before and after giving
effect to such transaction, no Default or Event of Default shall be in
effect (including, on a pro forma basis, pursuant to Section 7.1) and (ii)
compliance with any other financial tests referred to in the relevant
Section, provided that, in the case of Investments, Dispositions or the
payment of deferred management fees, the requirement to deliver such
certificate shall not apply to any Investment or Disposition pursuant to
which the Consideration paid is less than $5,000,000 or to any such
payment of deferred management fees in an amount less than $5,000,000; and
(f) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
52
47
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of Holdings, the Borrower or its Subsidiaries, as the case may be.
6.4 Maintenance of Existence; Compliance. (a) (i) Preserve, renew
and keep in full force and effect its existence and (ii) take all reasonable
action to maintain all rights, privileges and franchises necessary or desirable
in the normal conduct of its business, except, in each case, as otherwise
permitted by Section 7.4 and except, in the case of clause (ii) above, to the
extent that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (b) comply with all Contractual Obligations and Requirements
of Law except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all material
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with financially
sound and reputable insurance companies insurance on all its material property
in at least such amounts and against at least such risks (but including in any
event public liability, product liability and business interruption) as are
usually insured against in the same general area by companies engaged in the
same or a similar business.
6.6 Inspection of Property; Books and Records; Discussions. (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) permit
representatives of any Lender, coordinated through the Administrative Agents, to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records at any reasonable time and as often as may reasonably
be desired and to discuss the business, operations, properties and financial and
other condition of Holdings, the Borrower and its Subsidiaries with officers and
employees of Holdings, the Borrower and its Subsidiaries and with its
independent certified public accountants.
6.7 Notices. Promptly give notice to the Funding Agent and each
Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of Holdings, the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding that may exist at any time between
Holdings, the Borrower or any of its Subsidiaries and any Governmental
Authority, that, in either case, could reasonably be expected to have a
Material Adverse Effect;
(c) any litigation or proceeding commenced against Holdings, the
Borrower or any of its Subsidiaries which could reasonably be expected to
result in a liability of $25,000,000 or more to the extent not covered by
insurance or which could reasonably be expected to have a Material Adverse
Effect;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i)
the occurrence of any Reportable Event with respect to any Plan, a failure
to make any required contribution to a Plan, the creation of any Lien in
favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC
or the Borrower or any Commonly Controlled Entity or any
53
48
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(e) any other development or event that has had or could reasonably
be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Holdings, the Borrower or the relevant
Subsidiary proposes to take with respect thereto.
6.8 Environmental Laws. (a) Except as, in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, comply with, and
ensure compliance by all tenants and subtenants, if any, with, all applicable
Environmental Laws, and obtain and comply with and maintain, and ensure that all
tenants and subtenants obtain and comply with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws.
(b) Except as, in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect, conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws and promptly comply with all lawful orders and
directives of all Governmental Authorities regarding Environmental Laws.
6.9 Interest Rate Protection. At all times cause at least 50% of the
aggregate outstanding principal amount of Holdings Debt, Specified Long-Term
Indebtedness and Term Loans to be subject to a fixed rate, whether directly or
pursuant to Hedge Agreements having terms and conditions reasonably satisfactory
to the Administrative Agents.
6.10 Additional Collateral. With respect to any new Subsidiary
(other than a Shell Subsidiary so long as it qualifies as such) created or
acquired after the Stage One Closing Date by Marcus Holdings, the Borrower or
any of its Subsidiaries (which shall be deemed to have occurred in the event
that any Non-Recourse Subsidiary ceases to qualify as such), promptly (a)
execute and deliver to the Funding Agent such amendments to the Guarantee and
Collateral Agreement as the Funding Agent deems necessary or advisable to grant
to the Funding Agent, for the benefit of the Lenders, a perfected first priority
security interest in the Equity Interests and intercompany obligations of such
new Subsidiary that are held by Holdings, the Borrower or any of its
Subsidiaries (limited, in the case of Equity Interests of any Foreign
Subsidiary, to 66% of the total outstanding Equity Interests of such Foreign
Subsidiary), (b) deliver to the Funding Agent the certificates, if any,
representing such Equity Interests, and any intercompany notes evidencing such
obligations, together with undated stock powers and endorsements, in blank,
executed and delivered by a duly authorized officer of Marcus Holdings, the
Borrower or such Subsidiary, as the case may be and (c) except in the case of a
Foreign Subsidiary or an Excluded Acquired Subsidiary (until it ceases to
qualify as such), cause such new Subsidiary (i) to become a party to the
Guarantee and Collateral Agreement and (ii) to take such actions necessary or
advisable to grant to the Funding Agent for the benefit of the Lenders a
perfected first priority security interest in the Collateral described in the
Guarantee and Collateral Agreement with respect to such new Subsidiary,
including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guarantee and Collateral Agreement or by
law or as may be requested by the Funding Agent.
6.11 Organizational Separateness. In the case of Holdings, each
Specified Holdings Subsidiary, each Non-Recourse Subsidiary and the Borrower and
its Subsidiaries, (a) satisfy customary formalities with respect to
organizational separateness, including, without limitation, (i) the maintenance
of separate books and records and (ii) the maintenance of separate bank accounts
in its own name; (b) act
54
49
solely in its own name and through its authorized officers and agents; (c) in
the case of the Borrower or any of its Subsidiaries, not make or agree to make
any payment to a creditor of Holdings, any Specified Holdings Subsidiary or any
Non-Recourse Subsidiary; (d) not commingle any money or other assets of
Holdings, any Specified Holdings Subsidiary or any Non-Recourse Subsidiary with
any money or other assets of the Borrower or any of its Subsidiaries; and (e)
not take any action, or conduct its affairs in a manner, which could reasonably
be expected to result in the separate organizational existence of Holdings, each
Specified Holdings Subsidiary and each Non-Recourse Subsidiary from the Borrower
and its Subsidiaries being ignored under any circumstance. Holdings agrees to
cause each Specified Holdings Subsidiary, and the Borrower agrees to cause each
Non-Recourse Subsidiary, to comply with the applicable provisions of this
Section 6.11.
SECTION 7. NEGATIVE COVENANTS
Holdings and the Borrower hereby agree that, so long as the
Commitments remain in effect, any Letter of Credit remains outstanding or any
Loan or other amount is owing to any Lender or any Agent hereunder, each of
Holdings and the Borrower shall not, and shall not permit any Subsidiary of the
Borrower to, directly or indirectly (provided that only Sections 7.2, 7.3, 7.4,
7.8, 7.10, 7.12 and 7.15 shall apply to Charter Holdings):
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated Leverage
Ratio determined as of the last day of any fiscal quarter of the Borrower ending
during any period set forth below to exceed the ratio set forth below opposite
such period:
Period Consolidated Leverage Ratio
------ ---------------------------
04/01/99 - 03/31/01 5.00 to 1.0
04/01/01 - 03/31/02 4.50 to 1.0
04/01/02 - 03/31/03 4.25 to 1.0
04/01/03 and thereafter 4.00 to 1.0
(b) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio determined as of the last day of any fiscal quarter
ending during any period set forth below to be less than the ratio set forth
below opposite such period:
Period Consolidated Interest Coverage Ratio
------ ------------------------------------
04/01/99 - 03/31/01 1.50 to 1.0
04/01/01 - 03/31/03 1.75 to 1.0
04/01/03 and thereafter 2.00 to 1.0
(c) Consolidated Debt Service Coverage Ratio. Permit the
Consolidated Debt Service Coverage Ratio determined as of the last day of any
fiscal quarter commencing after the Stage One Closing Date to be less than 1.25
to 1.0.
For the purposes of paragraphs (b) and (c) above, (i) in calculating the
relevant ratios for the fiscal quarters of the Borrower ending June 30, 1999,
September 30, 1999 and December 31, 1999, Consolidated Interest Expense for the
relevant period shall (x) be deemed to equal Consolidated Interest Expense for
such fiscal quarter (and, in the case of the latter two such determinations,
each previous fiscal quarter commencing on or after April 1, 1999) multiplied by
4, 2 and 4/3, respectively, and (y) in
55
50
any event, include the first two scheduled cash interest payments in respect of
the Senior Notes, without duplication, and (ii) in determining Consolidated
Interest Expense for any period that commences prior to the Stage One Closing
Date, Consolidated Interest Expense shall be determined as if any incurrence or
refinancing of Indebtedness that occurs on the Stage One Closing Date had
occurred on the first day of such period.
7.2 Indebtedness. Create, issue, incur, assume, become liable in
respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of the Borrower to any Subsidiary and of any Wholly
Owned Subsidiary Guarantor to the Borrower or any other Subsidiary;
(c) Guarantee Obligations incurred in the ordinary course of
business by the Borrower or any of its Subsidiaries of obligations of any
Wholly Owned Subsidiary Guarantor;
(d) Indebtedness described on Schedule 7.2(d);
(e) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(f) in an aggregate
principal amount not to exceed $20,000,000 at any one time outstanding;
(f) Indebtedness of the Borrower (but not any Subsidiary of the
Borrower) incurred on any Threshold Transaction Date so long as (i) no
Default or Event of Default shall have occurred and be continuing or would
result therefrom, (ii) such Indebtedness shall have no scheduled
amortization prior to the date that is one year after the final maturity
of the Term Loans outstanding on the date such Indebtedness is incurred
and (iii) the covenants and default provisions applicable to such
Indebtedness shall be no more restrictive than those contained in this
Agreement, provided that the requirement that such Indebtedness be
incurred on a Threshold Transaction Date shall not apply in the case of
any refinancing of Indebtedness previously incurred pursuant to this
Section 7.2(f) so long as the interest rate and cash-pay characteristics
applicable to such refinancing Indebtedness are no more onerous than those
applicable to such refinanced Indebtedness;
(g) Indebtedness of any Person that becomes a Subsidiary pursuant to
an Investment permitted by Section 7.7 (other than as set forth in Section
7.2(h)), so long as (i) no Default or Event of Default shall have occurred
and be continuing or would result therefrom, (ii) such Indebtedness
existed at the time of such Investment and was not created in anticipation
thereof, (iii) the Borrower shall use its best efforts to cause such
Indebtedness to be repaid no later than 90 days after the date of such
Investment, (iv) if such Indebtedness is not repaid within such period
then, until such Indebtedness is repaid, the operating cash flow of the
relevant Subsidiary shall be excluded for the purposes of calculating
Consolidated Operating Cash Flow (whether or not distributed to the
Borrower or any of its other Subsidiaries) and (v) the aggregate
outstanding principal amount of Indebtedness incurred pursuant to this
paragraph shall not exceed $250,000,000;
(h) Indebtedness of Renaissance Media Holdings LLC and its
Subsidiaries in the event that they become Subsidiaries pursuant to an
Investment permitted by Section 7.7, so long as (i) no Default or Event of
Default shall have occurred and be continuing or would result therefrom,
(ii) such Indebtedness existed at the time of such Investment and was not
created in anticipation
56
51
thereof, (iii) no principal shall be payable in respect of such
Indebtedness until October 2008, (iv) no cash interest shall be payable in
respect of such Indebtedness until October 2003 and (v) the aggregate
outstanding principal amount of Indebtedness incurred pursuant to this
paragraph shall not exceed $115,000,000 plus any amounts that accrete in
respect thereof after the Stage One Closing Date at a per annum rate of
10.0%;
(i) letters of credit for the account of the Borrower or any of its
Subsidiaries obtained other than pursuant to this Agreement, so long as
the aggregate undrawn face amount thereof, together with any unreimbursed
reimbursement obligations in respect thereof, does not exceed $35,000,000
at any one time;
(j) Indebtedness of Charter Holdings (but not any Subsidiary of
Charter Holdings) so long as (i) such Indebtedness shall have no scheduled
amortization prior to the date that is one year after the final maturity
of the Term Loans outstanding on the date such Indebtedness is incurred
(except in the case of Specified Senior Notes) and (ii) except in the case
of the Senior Notes, 100% of the Net Cash Proceeds thereof (other than any
such Net Cash Proceeds that are applied to refinance other Indebtedness of
Holdings to the extent permitted by Section 7.8) shall, within two
Business Days after the receipt thereof, be contributed to the Borrower in
the form of a capital contribution; and
(k) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and all
Subsidiaries) not to exceed $50,000,000 at any one time outstanding.
7.3 Liens. Create, incur, assume or suffer to exist any Lien upon
any of its property, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges not
yet due or that are being contested in good faith by appropriate
proceedings, provided that adequate reserves with respect thereto are
maintained on the books of Holdings, the Borrower or its Subsidiaries, as
the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
that are not overdue for a period of more than 30 days or that are being
contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits made to secure the performance of bids, tenders, trade
contracts, leases, statutory or regulatory obligations, surety and appeal
bonds, bankers acceptances, government contracts, performance bonds and
other obligations of a like nature incurred in the ordinary course of
business, in each case excluding obligations for borrowed money;
(e) easements, rights-of-way, municipal and zoning ordinances, title
defects, restrictions and other similar encumbrances incurred in the
ordinary course of business that, in the aggregate, are not substantial in
amount and that do not in any case materially detract from the value of
the property subject thereto or materially interfere with the ordinary
conduct of the business of Holdings, the Borrower or any of its
Subsidiaries;
57
52
(f) Liens securing Indebtedness of Holdings, the Borrower or any of
its Subsidiaries incurred pursuant to Section 7.2(e) to finance the
acquisition of fixed or capital assets, provided that (i) such Liens shall
be created substantially simultaneously with the acquisition of such fixed
or capital assets, (ii) such Liens do not at any time encumber any
property other than the property financed by such Indebtedness and (iii)
the amount of Indebtedness secured thereby is not increased;
(g) Liens created pursuant to the Guarantee and Collateral Agreement
securing obligations of the Loan Parties under (i) the Loan Documents,
(ii) Hedge Agreements provided by any Lender or any Affiliate of any
Lender and (iii) letters of credit issued pursuant to Section 7.2(i) by
any Lender or any Affiliate of any Lender;
(h) any landlord's Lien or other interest or title of a lessor under
any lease or a licensor under a license entered into by Holdings, the
Borrower or any of its Subsidiaries in the ordinary course of its business
and covering only the assets so leased or licensed;
(i) Liens on the Mirror Note (as defined in the Senior Note
Indenture) securing the Senior Notes;
(j) Liens created under Pole Agreements on cables and other property
affixed to transmission poles or contained in underground conduits;
(k) Liens of or restrictions on the transfer of assets imposed by
any franchisors, utilities or other regulatory bodies or any federal,
state or local statute, regulation or ordinance, in each case arising in
the ordinary course of business in connection with franchise agreements or
Pole Agreements;
(l) Liens arising from judgments or decrees not constituting an
Event of Default under Section 8(h); and
(m) Liens not otherwise permitted by this Section so long as neither
(i) the aggregate outstanding principal amount of the obligations secured
thereby nor (ii) the aggregate fair market value (determined as of the
date such Lien is incurred) of the assets subject thereto exceeds (as to
Holdings, the Borrower and all Subsidiaries), when added to the aggregate
outstanding amount of Attributable Debt, $20,000,000 at any one time.
7.4 Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into any Wholly Owned Subsidiary Guarantor (provided that the
Wholly Owned Subsidiary Guarantor shall be the continuing or surviving
entity);
(b) any Subsidiary of the Borrower that is a holding company with no
operations may be merged or consolidated with or into the Borrower
(provided that the Borrower shall be the continuing or surviving entity);
(c) any Subsidiary of the Borrower may Dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to any Wholly Owned
Subsidiary Guarantor;
58
53
(d) any Shell Subsidiary may be dissolved; and
(e) so long as no Default or Event of Default has occurred or is
continuing or would result therefrom, (i) Marcus Cable Holdings, LLC and
Marcus Holdings may be merged or consolidated with one another and/or into
Charter Holdings in a substantially simultaneous transaction (provided
that Charter Holdings is the continuing or surviving entity); and (ii)
Marcus may be merged or consolidated with or into Charter (provided that
Charter is the continuing or surviving entity) (the foregoing mergers
and/or consolidations, the "Marcus Combination").
7.5 Disposition of Property. Dispose of any of its property, whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any Equity Interests to any Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary
course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions expressly permitted by Section 7.4;
(d) the sale or issuance of any Subsidiary's Equity Interests to the
Borrower or any Wholly Owned Subsidiary Guarantor;
(e) the Disposition (directly or indirectly through the Disposition
of 100% of the Equity Interests of a Subsidiary) of operating assets by
the Borrower or any of its Subsidiaries (including any Exchange to the
extent not otherwise permitted by Section 7.5(f), it being understood that
if the entire amount of an Exchange is not permitted by Section 7.5(f) any
portion not so permitted may be allocated to any unused availability in
respect of Dispositions pursuant to this Section 7.5(e), subject to
compliance with the requirements of clauses (i) through (v) below),
provided that (i) on the date of such Disposition (the "Disposition
Date"), no Default or Event of Default shall have occurred and be
continuing or would result therefrom; (ii) the Annualized Asset Cash Flow
Amount attributable to the assets being disposed of, when added to the
Annualized Asset Cash Flow Amount attributable to all other assets
previously disposed of pursuant to this Section 7.5(e) during the one-year
period ending on such Disposition Date (or, if shorter, the period from
the Stage One Closing Date to such Disposition Date), shall not exceed an
amount equal to 15% of Annualized Pro Forma Operating Cash Flow determined
as of such Disposition Date; (iii) the Annualized Asset Cash Flow Amount
attributable to the assets being disposed of, when added to the Annualized
Asset Cash Flow Amount attributable to all other assets previously
disposed of pursuant to this Section 7.5(e) during the five-year period
ending on such Disposition Date (or, if shorter, the period from the Stage
One Closing Date to such Disposition Date), shall not exceed an amount
equal to 25% of Annualized Pro Forma Operating Cash Flow determined as of
such Disposition Date; (iv) except in the case of any Exchange, at least
75% of the proceeds of such Disposition shall be in the form of cash; and
(v) the Net Cash Proceeds of such Disposition shall be applied to prepay
the Term Loans to the extent required by Section 2.9(b);
(f) any Exchange by the Borrower and its Subsidiaries; provided that
(i) on the date of such Exchange (the "Exchange Date"), no Default or
Event of Default shall have occurred and be continuing or would result
therefrom; (ii) the Annualized Asset Cash Flow Amount attributable to the
assets being Exchanged, when added to the Annualized Asset Cash Flow
Amount attributable to all other assets previously Exchanged pursuant to
this Section 7.5(f) during the one-year period ending on such Exchange
Date (or, if shorter, the period from the Stage One
59
54
Closing Date to such Exchange Date), shall not exceed an amount equal to
15% of Annualized Pro Forma Operating Cash Flow determined as of such
Exchange Date; (iii) the Annualized Asset Cash Flow Amount attributable to
the assets being Exchanged, when added to the Annualized Asset Cash Flow
Amount attributable to all other assets previously Exchanged pursuant to
this Section 7.5(f) during the five-year period ending on such Exchange
Date (or, if shorter, the period from the Stage One Closing Date to such
Exchange Date), shall not exceed an amount equal to 25% of Annualized Pro
Forma Operating Cash Flow determined as of such Exchange Date; and (iv)
the Net Cash Proceeds of such Exchange, if any, shall be applied to prepay
the Term Loans to the extent required by Section 2.9(b);
(g) Dispositions of property acquired after the Stage Two Closing
Date, (other than (i) property acquired pursuant to the acquisition of
Planned Acquired Entities and (ii) property acquired in connection with
Exchanges of (x) property owned on the Stage Two Closing Date or (y)
property described in clause (i) above), so long as (1) no Default or
Event of Default shall have occurred and be continuing or would result
therefrom, (2) a definitive agreement to consummate such Disposition is
executed no later than twelve months after the date on which relevant
property is acquired and (3) such Disposition is consummated within
eighteen months after the date on which the relevant property is acquired;
(h) any Exchange of cash and certain cable systems of the Borrower
and its Subsidiaries for certain cable systems of InterMedia Partners IV
L.P., as more particularly described on Schedule 7.5(h); and
(i) the Disposition of other property having a fair market value not
to exceed $5,000,000 in the aggregate for any fiscal year of the Borrower.
7.6 Restricted Payments. Declare or pay any dividend (other than
dividends payable solely in common stock of the Person making such dividend) on,
or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Equity Interests of Holdings, the Borrower or any
Subsidiary, whether now or hereafter outstanding, or make any other distribution
in respect thereof, either directly or indirectly, whether in cash or property
or in obligations of Holdings, the Borrower or any Subsidiary (collectively,
"Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the Borrower or
any Wholly Owned Subsidiary Guarantor;
(b) the Borrower may make distributions to Holdings for the purpose
of enabling Holdings to make scheduled interest payments in respect of
Holdings Debt, provided that (i) no Default or Event of Default shall have
occurred and be continuing or would result therefrom, (ii) except in the
case of any distribution made for the purpose of paying interest on the
Senior Notes, each such distribution shall be made on a Threshold
Transaction Date and (iii) each such distribution shall be made no earlier
than three Business Days prior to the date the relevant interest payment
is due;
(c) so long as no Default or Event of Default has occurred and is
continuing or would result therefrom, (i) the Borrower may make
distributions to Charter Holdings to be used to repurchase, redeem or
otherwise acquire or retire for value any Equity Interests of Charter
Holdings held by any member of management of Charter Holdings, the
Borrower or any of its Subsidiaries pursuant to any management equity
subscription agreement or stock option agreement in effect as of the Stage
One Closing Date, provided that the aggregate amount of such
60
55
distributions shall not exceed $10,000,000 in any fiscal year of the
Borrower and (ii) the Borrower may make distributions to Charter Holdings
to pay amounts not in excess of 1.0% of the aggregate enterprise value of
Investments permitted hereby (excluding the Marcus Combination) to certain
members of the Charter Group; and
(d) the Borrower may make distributions to Charter Holdings to
permit Charter Holdings to pay (i) attorneys' fees, investment banking
fees, accountants' fees, underwriting discounts and commissions and other
customary fees and expenses actually incurred in connection with any
issuance or sale by Charter Holdings of Equity Interests or any incurrence
by Charter Holdings of Indebtedness, (ii) costs and expenses incurred in
connection with the Exchange Offers (as defined in the Senior Note
Indenture) and (iii) other administrative expenses (including legal,
accounting, other professional fees and costs, printing and other such
fees and expenses) incurred in the ordinary course of business, in an
aggregate amount in the case of this clause (iii) not to exceed $2,000,000
in any fiscal year.
7.7 Investments. Make any advance, loan, extension of credit (by way
of guaranty or otherwise) or capital contribution to, or purchase any Equity
Interests, bonds, notes, debentures or other debt securities of, or any assets
constituting a significant part of a business unit of, or make any other
investment in, any Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit in the ordinary course of business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees of the Borrower or any of its
Subsidiaries in the ordinary course of business (including for travel,
entertainment and relocation expenses) in an aggregate amount not to
exceed $5,000,000 at any one time outstanding;
(e) Investments by the Borrower or any of its Subsidiaries in the
Borrower or any Person that, prior to such investment, is a Wholly Owned
Subsidiary Guarantor;
(f) acquisitions by the Borrower or any Wholly Owned Subsidiary
Guarantor of operating assets (substantially all of which consist of cable
systems), directly through an asset acquisition or indirectly through the
acquisition of 100% of the Equity Interests of a Person substantially all
of whose assets consist of cable systems, provided, that (i) no Default or
Event of Default shall have occurred and be continuing or would result
therefrom and (ii) the aggregate Consideration (excluding Consideration
paid with the proceeds of ▇▇▇▇ ▇▇▇▇▇ Contributions) paid in connection
with such acquisitions, other than acquisitions consummated on a Threshold
Transaction Date, shall not exceed $750,000,000 during the term of this
Agreement;
(g) the Borrower or any of its Subsidiaries may contribute cable
systems to any Non-Recourse Subsidiary so long as (i) such Disposition is
permitted pursuant to Section 7.5(e), (ii) no Default or Event of Default
shall have occurred and be continuing or would result therefrom, (iii)
after giving effect thereto, the Consolidated Leverage Ratio shall be
equal to or lower than the Consolidated Leverage Ratio in effect
immediately prior thereto and (iv) the Equity Interests received by the
Borrower or any of its Subsidiaries in connection therewith shall be
pledged as Collateral (either directly or through a holding company parent
of such Non-Recourse Subsidiary so long as such parent is a Wholly Owned
Subsidiary Guarantor); and
61
56
(h) in addition to Investments otherwise expressly permitted by this
Section, Investments by the Borrower or any of its Subsidiaries in an
aggregate amount (valued at cost) not to exceed $100,000,000 during the
term of this Agreement.
Notwithstanding anything to the contrary in this Agreement, in no event shall
the sum of (i) the aggregate amount of letters of credit and surety arrangements
(including unreimbursed reimbursement obligations in respect thereof) and
security deposits posted by the Borrower or any of its Subsidiaries in
connection with potential Investments (including pursuant to letters of intent)
and (ii) the aggregate outstanding amount of L/C Obligations, exceed
$350,000,000 at any one time.
7.8 Certain Payments and Modifications Relating to Indebtedness and
Management Fees. (a) Make or offer to make any payment, prepayment, repurchase
or redemption in respect of, or otherwise optionally or voluntarily defease or
segregate funds with respect to (collectively, "prepayment"), any Holdings Debt
or any Specified Long-Term Indebtedness, other than (i) the payment of scheduled
interest payments required to be made in cash, (ii) the prepayment of Specified
Subordinated Debt with the proceeds of other Specified Long-Term Indebtedness or
of Loans, (iii) the prepayment of any such Indebtedness with the proceeds of
other Holdings Debt or other Specified Long-Term Indebtedness, respectively, so
long as such new Indebtedness has terms no less favorable to the interests of
Holdings, the Borrower and the Lenders than those applicable to the Indebtedness
being refinanced and (iv) so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, the prepayment of any
Specified Senior Note no earlier than the date that is seven months prior to the
stated maturity thereof.
(b) Amend, modify, waive or otherwise change, or consent or agree to
any amendment, modification, waiver or other change to, any of the terms of the
Holdings Debt or any Specified Long-Term Indebtedness, other than any such
amendment, modification, waiver or other change that (i) (x) would extend the
maturity or reduce the amount of any payment of principal thereof or reduce the
rate or extend any date for payment of interest thereon or (y) is immaterial to
the interests of the Lenders and (ii) does not involve the payment of a consent
fee.
(c) Make, agree to make or expense any payment in respect of
management fees, directly or indirectly, except that the Borrower may pay
management fees pursuant to the Management Fee Agreement so long as (i) no
Default or Event of Default shall have occurred and be continuing or would
result therefrom, (ii) the aggregate amount of such payments expensed during any
fiscal year of the Borrower shall not exceed 3.50% of consolidated revenues of
the Borrower and its consolidated Subsidiaries for the immediately preceding
fiscal year (provided that, in addition, payments of management fees may be made
in respect of amounts that have been accrued, but were not paid, during any
preceding fiscal year of the Borrower ending on or after December 31, 1999, so
long as the aggregate amount of payments made pursuant to this parenthetical
during any fiscal year of the Borrower (other than any such payments made on a
Threshold Management Fee Date), when added to the aggregate amount of
non-deferred management fees otherwise paid pursuant to this clause (ii) during
such fiscal year, shall not exceed 5.0% of consolidated revenues of the Borrower
and its consolidated Subsidiaries for the immediately preceding fiscal year )
and (iii) each such payment shall be made no earlier than three Business Days
prior to the date such payment is due.
(d) Amend, modify, waive or otherwise change, or consent or agree to
any amendment, modification, waiver or other change to, any of the terms of the
Management Fee Agreement, other than any such amendment, modification, waiver or
other change that (i) (x) would extend the due date or reduce the amount of any
payment thereunder or (y) does not adversely affect the interests of the Lenders
and (ii) does not involve the payment of a consent fee.
62
57
7.9 Transactions with Affiliates. Enter into any transaction,
including any purchase, sale, lease or exchange of property, the rendering of
any service or the payment of any management, advisory or similar fees, with any
Affiliate (other than the Borrower or any Wholly Owned Subsidiary Guarantor)
unless such transaction is (a) not prohibited under this Agreement, (b) in the
ordinary course of business of the Borrower or such Subsidiary, as the case may
be, and (c) upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person that is not an Affiliate. The foregoing
restrictions shall not apply to transactions expressly permitted by Section 7.6
or Section 7.8(c).
7.10 Sales and Leasebacks. Enter into any arrangement with any
Person providing for the leasing by Holdings, the Borrower or any Subsidiary of
real or personal property that has been or is to be sold or transferred by
Holdings, the Borrower or such Subsidiary to such Person or to any other Person
to whom funds have been or are to be advanced by such Person on the security of
such property or rental obligations of Holdings, the Borrower or such Subsidiary
unless, after giving effect thereto, the aggregate outstanding amount of
Attributable Debt, when added to the aggregate amount utilized pursuant to
Section 7.3(m), does not exceed $20,000,000.
7.11 Changes in Fiscal Periods. Permit the fiscal year of the
Borrower to end on a day other than December 31 or change the Borrower's method
of determining fiscal quarters.
7.12 Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of Holdings,
the Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property or revenues, whether now owned or
hereafter acquired, other than (a) this Agreement and the other Loan Documents,
(b) any agreements governing any purchase money Liens or Capital Lease
Obligations otherwise permitted hereby (in which case, any prohibition or
limitation shall only be effective against the assets financed thereby), (c)
pursuant to Contractual Obligations assumed in connection with Investments (but
not created in contemplation thereof) so long as the maximum aggregate
liabilities of Holdings and its Subsidiaries pursuant thereto do not exceed
$2,000,000 at any time and (d) the Senior Note Indenture and any other document
governing Indebtedness permitted hereby so long as such restrictions are no more
onerous than those contained in the Senior Note Indenture.
7.13 Clauses Restricting Subsidiary Distributions. Enter into or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any Subsidiary of the Borrower to (a) make Restricted Payments in
respect of any Equity Interests of such Subsidiary held by, or pay any
Indebtedness owed to, the Borrower or any other Subsidiary of the Borrower, (b)
make loans or advances to, or other Investments in, the Borrower or any other
Subsidiary of the Borrower or (c) transfer any of its assets to the Borrower or
any other Subsidiary of the Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) any restrictions existing under
the Loan Documents, (ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement that has been entered into in connection with the
Disposition of all or substantially all of the Equity Interests or assets of
such Subsidiary in a transaction otherwise permitted by this Agreement and (iii)
any restrictions contained in the Senior Note Indenture or any other document
governing Indebtedness permitted hereby so long as such restrictions are no more
onerous than those contained in the Senior Note Indenture.
7.14 Lines of Business; Holding Company Status. (a) Enter into any
business, either directly or through any Subsidiary, except for (i) those
businesses in which the Borrower and its Subsidiaries are significantly engaged
on the date of this Agreement and (ii) businesses which are reasonably similar
or related thereto or reasonable extensions thereof but not, in the case of this
clause (ii), in the aggregate, material to the overall business of the Borrower
and its Subsidiaries (collectively, "Permitted Lines of Business"), provided,
that, in any event, the Borrower and its Subsidiaries will
63
58
continue to be primarily engaged in the businesses in which they are primarily
engaged on the date of this Agreement.
(b) In the case of Marcus Holdings, the Borrower and the two
corporate entities referred to below, (i) conduct, transact or otherwise engage
in, or commit to conduct, transact or otherwise engage in, any business or
operations other than, in the case of Marcus Holdings and the Borrower, those
incidental to its ownership of the Equity Interests of its Subsidiaries or (ii)
own, lease, manage or otherwise operate any properties or assets other than, in
the case of Marcus Holdings and the Borrower, the ownership of Equity Interests
of its Subsidiaries (which, in the case of Marcus Holdings, shall be limited to
Equity Interests of Marcus and of the two corporate entities owned by Marcus
Holdings on the Stage One Closing Date and identified on Schedule 4.15).
7.15 Certain Intercompany and Tax Matters. (a) In the case of
Holdings, make any Investment in the Borrower other than in the form of a
capital contribution.
(b) In the case of the Borrower or any of its Subsidiaries, enter
into any tax sharing arrangement with any of its Affiliates.
(c) In the case of Holdings, the Borrower or any Subsidiary of the
Borrower, (i) take any action that could cause such Person (if such Person is a
Flow-Through Entity) to cease to be a Flow-Through Entity or (ii) fail to
convert any new Subsidiary that is not a Flow-Through Entity into a Flow-Through
Entity as soon as reasonably practicable after the date such Person becomes a
Subsidiary unless, in the reasonable judgment of the Borrower, such conversion
would be impracticable or materially disadvantageous to the interests of the
Borrower or such Subsidiary. This paragraph shall not apply to Shell
Subsidiaries.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes
due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made; or
(c) any Loan Party shall default in the observance or performance of
any agreement contained in clause (i) or (ii) of Section 6.4(a) (with
respect to Holdings and the Borrower only), Section 6.7(a) or Section 7 of
this Agreement or Sections 6.4 and 6.6(b) of the Guarantee and Collateral
Agreement; or
(d) any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section),
and such default shall continue unremedied for a
64
59
period of 30 days after notice to the Borrower from the Funding Agent or the
Required Lenders; or
(e) Holdings, the Borrower or any of its Subsidiaries shall (i)
default in making any payment of any principal of any Indebtedness
(including any Guarantee Obligation, but excluding the Loans) on the
scheduled or original due date with respect thereto; or (ii) default in
making any payment of any interest on any such Indebtedness beyond the
period of grace, if any, provided in the instrument or agreement under
which such Indebtedness was created; or (iii) default in the observance or
performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or condition
exist, the effect of which default or other event or condition is to
cause, or to permit the holder or beneficiary of such Indebtedness (or a
trustee or agent on behalf of such holder or beneficiary) to cause, with
the giving of notice if required, such Indebtedness to become due prior to
its stated maturity or (in the case of any such Indebtedness constituting
a Guarantee Obligation) to become payable; provided, that a default, event
or condition described in clause (i), (ii) or (iii) of this paragraph (e)
shall not at any time constitute an Event of Default unless, at such time,
one or more defaults, events or conditions of the type described in
clauses (i), (ii) and (iii) of this paragraph (e) shall have occurred and
be continuing with respect to Indebtedness the outstanding principal
amount of which exceeds in the aggregate $50,000,000; or
(f) (i) Holdings, the Borrower or any of its Subsidiaries shall
commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or seeking to
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking
appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets,
or Holdings, the Borrower or any of its Subsidiaries shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against Holdings, the Borrower or any of its Subsidiaries any
case, proceeding or other action of a nature referred to in clause (i)
above that (A) results in the entry of an order for relief or any such
adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced
against Holdings, the Borrower or any of its Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial
part of its assets that results in the entry of an order for any such
relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) Holdings,
the Borrower or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts set forth in clause (i), (ii), or (iii) above; or (v)
Holdings, the Borrower or any of its Subsidiaries shall generally not, or
shall be unable to, or shall admit in writing its inability to, pay its
debts as they become due; or
(g) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders,
65
60
likely to result in the termination of such Plan for purposes of Title IV
of ERISA, (iv) any Single Employer Plan shall terminate for purposes of
Title IV of ERISA, (v) the Borrower or any Commonly Controlled Entity
shall, or in the reasonable opinion of the Required Lenders is likely to,
incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan or (vi) any other
event or condition shall occur or exist with respect to a Plan; and in
each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could, in the
sole judgment of the Required Lenders, reasonably be expected to have a
Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against
Holdings, the Borrower or any of its Subsidiaries involving in the
aggregate a liability (to the extent not paid or fully covered by
insurance as to which the relevant insurance company has acknowledged
coverage) of $25,000,000 or more, and all such judgments or decrees shall
not have been vacated, discharged, stayed or bonded pending appeal within
30 days from the entry thereof; or
(i) the Guarantee and Collateral Agreement shall cease, for any
reason (other than the gross negligence or willful misconduct of the
Funding Agent), to be in full force and effect, or any Loan Party or any
Affiliate of any Loan Party shall so assert, or any Lien created by the
Guarantee and Collateral Agreement shall cease to be enforceable and of
the same effect and priority purported to be created thereby; or
(j) (i) the ▇▇▇▇ ▇▇▇▇▇ Group shall cease to have the power, directly
or indirectly, to vote or direct the voting of Equity Interests having at
least 51% (determined on a fully diluted basis) of the ordinary voting
power for the management of Charter; (ii) the ▇▇▇▇ ▇▇▇▇▇ Group shall cease
to own of record and beneficially, directly or indirectly, Equity
Interests of Charter representing at least 51% (determined on a fully
diluted basis) of the economic interests therein (provided that such
percentage shall be reduced to 35% after the consummation of an Initial
Public Offering); (iii) prior to the Marcus Combination the ▇▇▇▇ ▇▇▇▇▇
Group shall cease to own of record and beneficially, directly or
indirectly, Equity Interests of Marcus representing at least 51%
(determined on a fully diluted basis) of the economic interests therein
(provided that such percentage shall be reduced to 35% after the
consummation of an Initial Public Offering); (iv) a Specified Change of
Control shall occur; or (v) the Borrower shall cease to be a direct Wholly
Owned Subsidiary of Holdings; or
(k) any member of the Charter Group (other than the Borrower or any
of its Subsidiaries) shall consummate an offering or sale of Equity
Interests of any member of the Charter Group (excluding sales to other
members of the Charter Group) without contributing 100% of the Net Cash
Proceeds thereof to the Borrower within two Business Days after such
member of the Charter Group receives such Net Cash Proceeds; or
(l) the Borrower or any of its Subsidiaries shall have received a
notice of termination or suspension with respect to any of its CATV
Franchises or CATV Systems from the FCC or any Governmental Authority or
other franchising authority or the Borrower or any of its Subsidiaries or
the grantors of any CATV Franchises or CATV Systems shall fail to renew
such CATV Franchises or CATV Systems at the stated expiration thereof if
the percentage represented by such CATV Franchises or CATV Systems and any
other CATV Franchises or CATV Systems which are then so terminated,
suspended or not renewed of Consolidated Operating Cash Flow for the 12-
month period preceding the date of the termination, suspension or failure
to renew, as the case may be, (giving pro forma effect to any acquisitions
or Dispositions that have occurred since the beginning of such 12-month
period as if such acquisitions or Dispositions had occurred at the
beginning of such 12-month period), would exceed 10%, unless (i) an
alternative CATV
66
61
Franchise or CATV System in form and substance reasonably satisfactory to
the Required Lenders shall have been procured and come into effect prior
to or concurrently with the termination or expiration date of such
terminated, suspended or non-renewed CATV Franchise or CATV System or (ii)
the Borrower or such Subsidiary continues to operate and retain the
revenues received from such systems after the stated termination or
expiration and is engaged in negotiations to renew or extend such
franchise rights and obtains such renewal or extension within one year
following the stated termination or expiration, provided that such
negotiations have not been terminated by either party thereto, such
franchise rights or the equivalent thereof have not been awarded on an
exclusive basis to a third Person and no final determination (within the
meaning of Section 635 of the Communications Act of 1934, as amended) has
been made that the Borrower or such Subsidiary is not entitled to the
renewal or extension thereof;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Required Lenders, the Funding Agent may, or upon the request of the Required
Lenders, the Funding Agent shall, by notice to the Borrower declare the
Revolving Commitments to be terminated forthwith, whereupon the Revolving
Commitments shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Funding Agent may, or upon the request of the Required
Lenders, the Funding Agent shall, by notice to the Borrower, declare the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Funding Agent an amount equal to the aggregate then undrawn and
unexpired amount of such Letters of Credit. Amounts held in such cash collateral
account shall be applied by the Funding Agent to the payment of drafts drawn
under such Letters of Credit, and the unused portion thereof after all such
Letters of Credit shall have expired or been fully drawn upon, if any, shall be
applied to repay other obligations of the Borrower hereunder and under the other
Loan Documents. After all such Letters of Credit shall have expired or been
fully drawn upon, all Reimbursement Obligations shall have been satisfied and
all other obligations of the Borrower hereunder and under the other Loan
Documents shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower (or such other Person as
may be lawfully entitled thereto). Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived by the Borrower.
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Funding Agent as the agent of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes the
Funding Agent, in such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to exercise such
powers and perform such duties as are expressly delegated to the Funding Agent
by the terms of this Agreement and the other Loan Documents, together with such
other powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary elsewhere in this Agreement, the Funding Agent shall not have
any duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship
67
62
with any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against the Funding Agent.
9.2 Delegation of Duties. The Funding Agent may execute any of its
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Funding Agent shall not be responsible
for the negligence or misconduct of any agents or attorneys in-fact selected by
it with reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.4 Reliance by Funding Agent. The Funding Agent shall be entitled
to rely, and shall be fully protected in relying, upon any instrument, writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including
counsel to Holdings or the Borrower), independent accountants and other experts
selected by the Funding Agent. The Funding Agent may deem and treat the payee of
any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Funding Agent. The Funding Agent shall be fully justified in failing or refusing
to take any action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders (or, if
so specified by this Agreement, all Lenders) as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action. The Funding Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
and the other Loan Documents in accordance with a request of the Required
Lenders (or, if so specified by this Agreement, all Lenders), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all the Lenders and all future holders of the Loans.
9.5 Notice of Default. The Funding Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Funding Agent has received notice from a Lender, Holdings
or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Funding Agent receives such a notice, the Funding Agent shall give notice
thereof to the Lenders. The Funding Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Lenders (or, if so specified by this Agreement, all Lenders);
68
63
provided that unless and until the Funding Agent shall have received such
directions, the Funding Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
acknowledges that neither the Agents nor any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates have made any
representations or warranties to it and that no act by any Agent hereinafter
taken, including any review of the affairs of a Loan Party or any affiliate of a
Loan Party, shall be deemed to constitute any representation or warranty by any
Agent to any Lender. Each Lender represents to the Agents that it has,
independently and without reliance upon any Agent or any other Lender, and based
on such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the Funding Agent
hereunder, the Funding Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any affiliate of a Loan Party that may
come into the possession of the Funding Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by Holdings or the Borrower
and without limiting the obligation of Holdings or the Borrower to do so),
ratably according to their respective Aggregate Exposure Percentages in effect
on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by such Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such Agent's
gross negligence or willful misconduct. The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Loan Party as though such Agent was not an Agent. With respect
to its Loans made or renewed by it and with respect to any Letter of Credit
issued or participated in by it, each Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
69
64
9.9 Successor Funding Agent. The Funding Agent may resign as Funding
Agent upon 30 days' written notice to the Lenders and the Borrower. If the
Funding Agent shall resign as Funding Agent under this Agreement and the other
Loan Documents, then the Required Lenders shall appoint from among the Lenders a
successor agent for the Lenders, which successor agent shall (unless an Event of
Default under Section 8(a) or Section 8(f) with respect to the Borrower shall
have occurred and be continuing) be subject to approval by the Borrower (which
approval shall not be unreasonably withheld or delayed), whereupon such
successor agent shall succeed to the rights, powers and duties of the Funding
Agent, and the term "Funding Agent" shall mean such successor agent effective
upon such appointment and approval, and the former Funding Agent's rights,
powers and duties as Funding Agent shall be terminated, without any other or
further act or deed on the part of such former Funding Agent or any of the
parties to this Agreement or any holders of the Loans. If no successor agent has
accepted appointment as Funding Agent by the date that is 30 days following a
retiring Funding Agent's notice of resignation, the retiring Funding Agent's
resignation shall nevertheless thereupon become effective and the other
Administrative Agent or, in the case of any resignation of such other
Administrative Agent in its capacity as Funding Agent (which shall also be
subject to the 30 day notice requirement described above), the Lenders, shall
assume and perform all of the duties of the Funding Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for
above. After any retiring Funding Agent's resignation as Funding Agent, the
provisions of this Section 9 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Funding Agent under this Agreement and
the other Loan Documents.
9.10 Other Agents. Notwithstanding any provision to the contrary
elsewhere in this Agreement (including the circumstance that the Administrative
Agents shall have certain rights regarding notification, consents and other
matters, to the extent expressly provided herein), no Agent other than the
Funding Agent shall have any duties or responsibilities hereunder or under any
other Loan Document, or any fiduciary relationship with any Lender, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against any Agent.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may,
or, with the written consent of the Required Lenders, the Administrative Agents
and each Loan Party party to the relevant Loan Document may, from time to time,
(a) enter into written amendments, supplements or modifications hereto and to
the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agents, as
the case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan, extend the scheduled date of any
amortization payment in respect of any Term Loan, reduce the stated rate of any
interest or fee payable hereunder or extend the scheduled date of any payment
thereof, or increase the amount or extend the expiration date of any Lender's
Commitment, in each case without the consent of each Lender directly affected
thereby; (ii) eliminate or reduce any voting rights under this Section 10.1 or
reduce any percentage specified in the definition of Required Lenders, consent
to the assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, release all or
substantially all of the Collateral or release any material Guarantor from its
obligations under the Guarantee and
70
65
Collateral Agreement (in each case except in connection with Dispositions
consummated or approved in accordance with the other terms of this Agreement),
in each case without the written consent of all Lenders; (iii) reduce the
percentage specified in the definition of Majority Facility Lenders with respect
to any Facility without the written consent of all Lenders under such Facility;
(iv) amend, modify or waive any provision of Section 9 without the written
consent of each affected Agent; (vii) amend, modify or waive any provision of
Section 2.4 or 2.5 without the written consent of the Swingline Lender; or
(viii) amend, modify or waive any provision of Section 3 without the written
consent of each affected Issuing Lender. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Loan Parties, the Lenders, the Agents and all future holders
of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the
Agents shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of Holdings, the Borrower, the
Administrative Agents and the Funding Agent, and as set forth in an
administrative questionnaire delivered to the Funding Agent in the case of the
Lenders, or to such other address as may be hereafter notified by the respective
parties hereto:
Any Loan Party: c/o Charter Communications Holdings LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Administrative Agents: NationsBank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Chase Manhattan Bank
71
66
One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
The Funding Agent: NationsBank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Funding Agent, the
Administrative Agents or the Lenders shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
or reimburse each Administrative Agent for all its reasonable out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees and
disbursements of one firm of counsel to the Administrative Agents and filing and
recording fees and expenses, with statements with respect to the foregoing to be
submitted to the Borrower prior to the Stage One Closing Date (in the case of
amounts to be paid on the Stage One Closing Date) and from time to time
thereafter on a quarterly basis or such other periodic basis as the
Administrative Agents shall deem appropriate, (b) to pay or reimburse each
Lender and each Agent for all its costs and expenses incurred in connection with
the enforcement or preservation of any rights under this Agreement, the other
Loan Documents and any such other documents, including the fees and
disbursements of one firm of counsel selected by the Funding Agent and
reasonably acceptable to the Administrative Agent that is not acting as Funding
Agent (or, in the event that such Administrative Agent determines in good faith
that issues apply to it that are not applicable to the Funding Agent or, with
respect to an issue as to which another counsel is proposed to be engaged, that
its interests are different from those of the Funding Agent, one additional firm
of counsel selected by such Administrative Agent), together with any special or
local counsel, to the Administrative Agents and not more than one other firm of
counsel to the Lenders, (c) to pay, indemnify, and hold each Lender and each
Agent harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, that may be payable or determined to be payable
in connection with the execution and delivery of, or consummation or
administration of any of the
72
67
transactions contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement, the other Loan
Documents and any such other documents, and (d) to pay, indemnify, and hold each
Lender, each Agent, their affiliates and their respective officers, directors,
trustees, employees, agents and controlling persons (each, an "Indemnitee")
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan
Documents and any such other documents, including any of the foregoing relating
to the use of proceeds of the Loans or the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of Holdings,
the Borrower any of its Subsidiaries or any of the Properties and the reasonable
fees and expenses of legal counsel in connection with claims, actions or
proceedings by any Indemnitee against any Loan Party under any Loan Document
(all the foregoing in this clause (d), collectively, the "Indemnified
Liabilities"), provided, that the Borrower shall have no obligation hereunder to
any Indemnitee with respect to Indemnified Liabilities to the extent such
Indemnified Liabilities are found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of such Indemnitee. Without limiting the foregoing, and to
the extent permitted by applicable law, the Borrower agrees not to assert and to
cause its Subsidiaries not to assert, and hereby waives and agrees to cause its
Subsidiaries to so waive, all rights for contribution or any other rights of
recovery with respect to all claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature, under or
related to Environmental Laws, that any of them might have by statute or
otherwise against any Indemnitee. All amounts due under this Section 10.5 shall
be payable not later than 15 days after written demand therefor. Statements
payable by the Borrower pursuant to this Section 10.5 shall be submitted to ▇▇▇▇
▇▇▇▇▇▇▇▇ (Telephone No. ▇▇▇-▇▇▇-▇▇▇▇) (Telecopy No. 314-965-8793), at the
address of the Borrower set forth in Section 10.2, or to such other Person or
address as may be hereafter designated by the Borrower in a written notice to
the Administrative Agents. The agreements in this Section 10.5 shall survive
repayment of the Loans and all other amounts payable hereunder.
10.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of Holdings, the
Borrower, the Lenders, the Agents, all future holders of the Loans and their
respective successors and assigns, except that the Borrower may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender.
(b) Any Lender may, without the consent of the Borrower or the
Funding Agent, in accordance with applicable law, at any time sell to one or
more banks, financial institutions or other entities (each, a "Participant")
participating interests in any Loan owing to such Lender, any Commitment of such
Lender or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Agents shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event shall
any Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on, the Loans or
any fees payable hereunder, or postpone the date of the final maturity of the
Loans, in each case to the extent subject to such participation. The Borrower
agrees that if amounts outstanding under this Agreement and the Loans are due or
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum
extent
73
68
permitted by applicable law, be deemed to have the right of setoff in respect of
its participating interest in amounts owing under this Agreement to the same
extent as if the amount of its participating interest were owing directly to it
as a Lender under this Agreement, provided that, in purchasing such
participating interest, such Participant shall be deemed to have agreed to share
with the Lenders the proceeds thereof as provided in Section 10.7(a) as fully as
if it were a Lender hereunder. The Borrower also agrees that each Participant
shall be entitled to the benefits of Sections 2.16, 2.17 and 2.18 with respect
to its participation in the Commitments and the Loans outstanding from time to
time as if it was a Lender; provided that, in the case of Section 2.17, such
Participant shall have complied with the requirements of said Section and
provided, further, that no Participant shall be entitled to receive any greater
amount pursuant to any such Section than the transferor Lender would have been
entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with applicable
law, at any time and from time to time assign to any Lender, any affiliate of
any Lender or any Approved Fund or, with the consent of the Borrower and the
Funding Agent (which, in each case, shall not be unreasonably withheld or
delayed), to an additional bank, financial institution or other entity (an
"Assignee") all or any part of its rights and obligations under this Agreement
pursuant to an Assignment and Acceptance, executed by such Assignee, such
Assignor and any other Person whose consent is required pursuant to this
paragraph, and delivered to the Funding Agent for its acceptance and recording
in the Register; provided that, except in the case of an assignment of all of a
Lender's interests under this Agreement, no such assignment to an Assignee
(other than any Lender, any affiliate of any Lender or any Approved Fund) shall
(i) be in an aggregate principal amount of less than $5,000,000 or (ii) cause
the Assignor to have Aggregate Exposure of less than $3,000,000, in each case
unless otherwise agreed by the Borrower and the Funding Agent. For purposes of
clauses (i) and (ii) of the preceding sentence, the amounts described therein
shall be aggregated in respect of each Lender and its related Approved Funds, if
any. Any such assignment need not be ratable as among the Facilities. Upon such
execution, delivery, acceptance and recording, from and after the effective date
determined pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereunder
with a Commitment and/or Loans as set forth therein, and (y) the Assignor
thereunder shall, to the extent provided in such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of an Assignor's rights and obligations
under this Agreement, such Assignor shall cease to be a party hereto).
Notwithstanding any provision of this Section 10.6, the consent of the Borrower
shall not be required for any assignment that occurs when an Event of Default
pursuant to Section 8(a) or 8(f) shall have occurred and be continuing. On the
effective date of any Assignment and Acceptance, the Funding Agent shall give
notice of the terms thereof to the Administrative Agent that is not serving as
Funding Agent.
(d) The Funding Agent shall, on behalf of the Borrower, maintain at
its address referred to in Section 10.2 a copy of each Assignment and Acceptance
delivered to it and a register (the "Register") for the recordation of the names
and addresses of the Lenders and the Commitment of, and the principal amount of
the Loans owing to, each Lender from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrower, each
other Loan Party, the Agents and the Lenders shall treat each Person whose name
is recorded in the Register as the owner of the Loans and any Notes evidencing
the Loans recorded therein for all purposes of this Agreement. Any assignment of
any Loan, whether or not evidenced by a Note, shall be effective only upon
appropriate entries with respect thereto being made in the Register (and each
Note shall expressly so provide). Any assignment or transfer of all or part of a
Loan evidenced by a Note shall be registered on the Register only upon surrender
for registration of assignment or transfer of the Note evidencing such Loan,
accompanied by a duly executed Assignment and Acceptance, and thereupon one or
more new Notes
74
69
shall be issued to the designated Assignee. The Funding Agent will promptly send
a copy of the Register to the Borrower upon request.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor, an Assignee and any other Person whose consent is required by Section
10.6(c), together with payment to the Funding Agent of a registration and
processing fee of $3,500, the Funding Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) record the information contained therein in
the Register on the effective date determined pursuant thereto.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 10.6 concerning assignments
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including any pledge or assignment by a
Lender of any Loan to any Federal Reserve Bank in accordance with applicable
law.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular Lender
or to the Lenders under a particular Facility, if any Lender (a "Benefitted
Lender") shall receive any payment of all or part of the amounts owing to it
hereunder, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of the amounts owing to such other Lender hereunder, such Benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of the amounts owing to each such other Lender hereunder, or shall
provide such other Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to Holdings or
the Borrower, any such notice being expressly waived by Holdings and the
Borrower to the extent permitted by applicable law, upon any amount becoming due
and payable by Holdings or the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise), to set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of Holdings or
the Borrower, as the case may be. Each Lender agrees promptly to notify the
Borrower and the Funding Agent after any such setoff and application made by
such Lender, provided that the failure to give such notice shall not affect the
validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agents.
10.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
75
70
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the agreement of Holdings, the Borrower, the Agents and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the any Agent or any Lender
relative to subject matter hereof not expressly set forth or referred to herein
or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. Each of Holdings and the
Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts
of the State of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not
to plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to Holdings
or the Borrower, as the case may be at its address set forth in Section
10.2 or at such other address of which the Funding Agent shall have been
notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential
damages.
10.13 Acknowledgments. Each of Holdings and the Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither any Agent nor any Lender has any fiduciary relationship
with or duty to Holdings or the Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the Agents and Lenders, on one hand, and
76
71
Holdings and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Agents and the Lenders or among Holdings, the Borrower
and the Agents and the Lenders.
10.14 Releases of Guarantees and Liens. (a) Notwithstanding anything
to the contrary contained herein or in any other Loan Document, the Funding
Agent is hereby irrevocably authorized by each Lender (without requirement of
notice to or consent of any Lender except as expressly required by Section 10.1)
to take any action requested by the Borrower having the effect of releasing any
Collateral or Guarantee Obligations (i) to the extent necessary to permit
consummation of any transaction not prohibited by any Loan Document or that has
been approved in accordance with Section 10.1 or (ii) under the circumstances
described in paragraph (b) below.
(b) At such time as the Loans, the Reimbursement Obligations and the
other obligations under the Loan Documents (other than obligations under or in
respect of Hedge Agreements or letters of credit obtained other than pursuant to
this Agreement) shall have been paid in full, the Commitments have been
terminated and no Letters of Credit shall be outstanding, the Collateral shall
be released from the Liens created by the Guarantee and Collateral Agreement,
and the Guarantee and Collateral Agreement and all obligations (other than those
expressly stated to survive such termination) of the Funding Agent and each Loan
Party under the Guarantee and Collateral Agreement shall terminate, all without
delivery of any instrument or performance of any act by any Person.
10.15 Confidentiality. Each Agent and each Lender agrees to keep
confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to any Agent, any Lender or any
affiliate of any Lender or any Approved Fund, (b) to any Transferee or
prospective Transferee that agrees to comply with the provisions of this
Section, (c) to its employees, directors, agents, attorneys, accountants and
other professional advisors or those of any of its affiliates who have a need to
know, (d) upon the request or demand of any Governmental Authority, (e) in
response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (f) if requested or
required to do so in connection with any litigation or similar proceeding, (g)
that has been publicly disclosed, (h) any nationally recognized rating agency
that requires access to information about a Lender's investment portfolio in
connection with ratings issued with respect to such Lender, or (i) in connection
with the exercise of any remedy hereunder or under any other Loan Document.
10.16 WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER, THE AGENTS AND
THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
77
72
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
CHARTER COMMUNICATIONS HOLDINGS LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CHARTER COMMUNICATIONS OPERATING, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
MARCUS CABLE COMPANY, L.L.C.
By: Marcus Cable Properties, L.L.C.
Its: Manager
By: Marcus Cable Properties, Inc.
Its: Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
MARCUS CABLE OPERATING COMPANY, L.L.C.
By: Marcus Cable Company, L.L.C.
Its: Member
By: Marcus Cable Properties, L.L.C.
Its: Manager
By: Marcus Cable Properties, Inc.
Its: Manager
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
78
73
The Administrative Agents:
NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
The Syndication Agents:
CHASE SECURITIES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Principal
TD SECURITIES (USA) INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President and Director
79
74
The Documentation Agents:
TORONTO DOMINION (TEXAS), INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
FLEET BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
The Funding Agent:
NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
80
Annex A
PRICING GRID
===================================================================================================
Applicable Margin Applicable Margin
for Eurodollar Loans for ABR Loans
-------------------- ----------------- Commitment
Consolidated Leverage Ratio A/RC B A/RC B Fee Rate
---------------------------------------------------------------------------------------------------
Greater than 4.50 to 1.0 2.25% 2.75% 1.25% 1.75% 0.375%
---------------------------------------------------------------------------------------------------
Greater than 4.00 to 1.0 but 2.00% 2.50% 1.00% 1.50% 0.375%
less than or equal to 4.50 to 1.0
---------------------------------------------------------------------------------------------------
Greater than 3.00 to 1.0 but 1.75% 2.50% 0.75% 1.50% 0.375%
less than or equal to 4.00 to 1.0
---------------------------------------------------------------------------------------------------
Greater than 2.50 to 1.0 but 1.625% 2.50% 0.625% 1.50% 0.375%
less than or equal to 3.00 to 1.0
---------------------------------------------------------------------------------------------------
Less than or equal to 2.50 to 1.0 1.50% 2.25% 0.50% 1.25% 0.250%
===================================================================================================
As used above, (a) "A/RC" refers to Tranche A Term Loans, Revolving
Loans and Swingline Loans and (b) "B" refers to Tranche B Term Loans.
Until December 31, 2000 (the "Full Grid Date"), rates corresponding
to a Consolidated Leverage Ratio of less than or equal to 3.00 to 1.0 will not
be available. From and after the Full Grid Date, each of the Applicable Margins
referred to in the Pricing Grid (but not the Commitment Fee Rate) will be
reduced by 0.25% per annum if the Consolidated Interest Coverage Ratio
(determined from time to time as provided in the next paragraph) is greater than
or equal to 2.15 to 1.0, provided that, in the case of Tranche B Term Loans, in
no event shall the Applicable Margin be less than 2.25% (in the case of
Eurodollar Loans) and 1.25% (in the case of ABR Loans), respectively.
Changes in the Applicable Margin or in the Commitment Fee Rate
resulting from changes in the Consolidated Leverage Ratio and the Consolidated
Interest Coverage Ratio shall become effective on the date (the "Adjustment
Date") on which financial statements are delivered to the Lenders pursuant to
Section 6.1 (but in any event not later than the 45th day after the end of each
of the first three quarterly periods of each fiscal year or the 90th day after
the end of each fiscal year, as the case may be) and shall remain in effect
until the next change to be effected pursuant to this paragraph. If applicable,
effective on the Full Grid Date, the rates in the Pricing Grid shall be reset
based on the financial statements for the fiscal quarter ending September 30,
2000 delivered pursuant to Section 6.1. Until financial statements are first
delivered pursuant to Section 6.1 after the Stage One Closing Date, the
Consolidated Leverage Ratio for the purposes of the Pricing Grid shall be the
Consolidated Leverage Ratio set forth in the certificate of the Borrower
delivered pursuant to Section 5.1(h). If any financial statements referred to
above are not delivered within the time periods specified above, then, until
such financial statements are delivered, the highest rates referred to in the
Pricing Grid shall be applicable. In addition, the highest rates referred to in
the Pricing Grid shall be applicable at all times while an Event of Default
shall have occurred and be continuing. Each determination of the Consolidated
Leverage Ratio and the Consolidated Interest Coverage Ratio pursuant to the
Pricing Grid shall be made in the manner contemplated by Section 7.1.
81
Schedule 4.1
CERTAIN FINANCIAL STATEMENTS
CHARTER COMMUNICATIONS HOLDINGS, LLC:
Report of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
Combined Balance Sheets as of December 31, 1998 and 1997
Combined Statements of Operations for the Period From December 24, 1998
Through December 31, 1998* and January 1, 1998 Through December 23,
1998 and for the Years Ended December 31, 1997 and 1996
Combined Statements of Cash Flows for the Period From December 24, 1998
Through December 31, 1998* and January 1, 1998 through December 23,
1998 and for the Years Ended December 31, 1997 and 1996
Notes to Combined Financial Statements
* For the period from December 24, 1998 through December 31, 1998,
Charter Holdings consolidates the operations of the
successors-in-interest to the CCA Group and to CharterComm Holdings,
L.P.
CCA GROUP (consisting of CCA Holdings Corp., CCT Holdings Corp. and Charter
Communications Long Beach, Inc.):
Report of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
Combined Balance Sheets as of December 31, 1997
Combined Statements of Operations for the Period From January 1, 1998
Through December 23, 1998 and for the Years Ended December 31, 1997 and
1996
Combined Statements of Operations for the Period From January 1, 1998
Through December 23, 1998 and for the Years Ended December 31, 1997 and
1996
Notes to Combined Financial Statements
CHARTERCOMM HOLDINGS, L.P.:
Report of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
Consolidated Balance Sheet as of December 31, 1997
Consolidated Statements of Operations for the Period From January 1, 1998
Through December 23, 1998 and for the Years Ended December 31, 1997 and
1996
Consolidated Statements of Cash Flows for the Period From January 1, 1998
Through December 23, 1998 and for the Years Ended December 31, 1997 and
1996
Notes to Consolidated Financial Statements
MARCUS CABLE COMPANY, L.L.C. AND SUBSIDIARIES:
Report of KPMG LLP
Consolidated Balance Sheets as of December 31, 1998, 1997 and 1996
Consolidated Statements of Operations for the Periods From April 23 to
December 31, 1998 and January 1 to April 22, 1998 and for the Years in
the Two-Year Period Ended December 31, 1997
Consolidated Statements of Cash Flows for Periods from April 23, 1998 to
December 31, 1998 and January 1, 1998 Through to April 22, 1998 and for
the Years Ended December 31, 1997 and 1996