Exhibit 10.01
CREDIT AGREEMENT
among
CENTURY CABLE HOLDINGS, LLC,
FT. ▇▇▇▇▇ CABLEVISION, LLC,
and
HIGHLAND PRESTIGE GEORGIA, INC.,
Restricted Borrowers
BANC OF AMERICA SECURITIES LLC and CHASE SECURITIES INC.,
Joint Lead Arrangers and Joint Book Managers
BANK OF AMERICA, N.A. and THE CHASE MANHATTAN BANK,
Co-Administrative Agents
TORONTO DOMINION (TEXAS), INC.,
Syndication Agent
CIBC WORLD MARKETS CORP.,
Documentation Agent,
BARCLAYS BANK PLC,
Arranging Agent
and
The Managing Agents defined herein
and
THE LENDERS NAMED HEREIN,
Lenders
$2,250,000,000
Dated as of April 14, 2000
(i)
TABLE OF CONTENTS
Page
SECTION 1 DEFINITIONS AND TERMS...........................................................................1
1.1 Definitions.....................................................................................1
1.2 Number and Gender of Words; Other References...................................................22
1.3 Accounting Principles..........................................................................23
SECTION 2 BORROWING PROVISIONS...........................................................................23
2.1 Revolver Facility..............................................................................23
2.2 Term Loan Facility.............................................................................24
2.3 LC Subfacility.................................................................................24
2.4 Discretionary Facility.........................................................................27
2.5 Terminations or Reductions of Commitments......................................................30
2.6 Borrowing Procedure............................................................................31
SECTION 3 TERMS OF PAYMENT...............................................................................31
3.1 Loan Accounts, Notes, and Payments.............................................................31
3.2 Interest and Principal Payments................................................................32
3.3 Prepayments....................................................................................33
3.4 Interest Options...............................................................................36
3.5 Quotation of Rates.............................................................................36
3.6 Default Rate...................................................................................36
3.7 Interest Recapture.............................................................................36
3.8 Interest Calculations..........................................................................36
3.9 Maximum Rate...................................................................................36
3.10 Interest Periods...............................................................................37
3.11 Conversions....................................................................................37
3.12 Order of Application...........................................................................38
3.13 Sharing of Payments, Etc.......................................................................38
3.14 Offset.........................................................................................39
3.15 Booking Borrowings.............................................................................39
SECTION 4 CHANGE IN CIRCUMSTANCES........................................................................39
4.1 Increased Cost and Reduced Return..............................................................39
4.2 Limitation on Types of Loans...................................................................40
4.3 Illegality.....................................................................................40
4.4 Treatment of Affected Loans....................................................................40
4.5 Compensation...................................................................................41
4.6 Taxes..........................................................................................41
SECTION 5 FEES...........................................................................................43
5.1 Treatment of Fees..............................................................................43
5.2 Fees of Agents.................................................................................43
5.3 Revolver Facility Commitment Fees..............................................................43
5.4 LC Fees........................................................................................44
5.5 Discretionary Revolver Loan Commitment Fees....................................................44
5.6 Discretionary Facility Fronting Fees...........................................................44
SECTION 6 SECURITY; GUARANTIES...........................................................................44
6.1 Guaranties.....................................................................................44
(i)
6.2 Collateral.....................................................................................45
6.3 Future Liens...................................................................................45
6.4 Release of Collateral..........................................................................45
6.5 Negative Pledge................................................................................46
6.6 Control; Limitation of Rights..................................................................46
SECTION 7 CONDITIONS PRECEDENT...........................................................................46
7.1 Conditions Precedent to Closing................................................................46
7.2 Conditions Precedent to Unrestricted Borrowers.................................................47
7.3 Conditions Precedent to Each Borrowing.........................................................47
SECTION 8 REPRESENTATIONS AND WARRANTIES.................................................................47
8.1 Purpose of Credit Facility.....................................................................47
8.2 Existence, Good Standing, and Authority........................................................47
8.3 Subsidiaries; Capital Stock....................................................................48
8.4 Authorization and Contravention................................................................48
8.5 Binding Effect.................................................................................48
8.6 Financial Statements...........................................................................48
8.7 Litigation, Claims, Investigations.............................................................49
8.8 Taxes..........................................................................................49
8.9 Environmental Matters..........................................................................49
8.10 Employee Benefit Plans.........................................................................49
8.11 Properties; Liens..............................................................................49
8.12 Government Regulations.........................................................................50
8.13 Transactions with Affiliates...................................................................50
8.14 Debt...........................................................................................50
8.15 Material Agreements............................................................................50
8.16 Insurance......................................................................................50
8.17 Solvency.......................................................................................50
8.18 Intellectual Property..........................................................................50
8.19 Compliance with Laws; CATV Systems.............................................................50
8.20 Acquisitions...................................................................................52
8.21 Regulation U...................................................................................52
8.22 Year 2000......................................................................................52
8.23 No Default.....................................................................................53
8.24 Authorizations.................................................................................53
8.25 Full Disclosure................................................................................53
SECTION 9 COVENANTS......................................................................................53
9.1 Use of Proceeds................................................................................53
9.2 Books and Records..............................................................................53
9.3 Items to be Furnished..........................................................................53
9.4 Inspections....................................................................................54
9.5 Taxes..........................................................................................55
9.6 Payment of Obligations.........................................................................55
9.7 Maintenance of Existence, Assets, and Business.................................................55
9.8 Insurance......................................................................................56
9.9 Preservation and Protection of Rights..........................................................56
9.10 Employee Benefit Plans.........................................................................56
9.11 Environmental Laws.............................................................................56
9.12 Debt and Guaranties............................................................................56
(ii)
9.13 Liens..........................................................................................57
9.14 Transactions with Affiliates...................................................................58
9.15 Compliance with Laws and Documents.............................................................58
9.16 Acquisitions, Subsidiary Guaranties, and Collateral Documents..................................58
9.17 Assignment.....................................................................................59
9.18 Fiscal Year and Accounting Methods.............................................................59
9.19 Government Regulations.........................................................................59
9.20 Investments and Restricted Payments............................................................59
9.21 Restrictions on Subsidiaries...................................................................60
9.22 Sale of Assets.................................................................................60
9.23 Sale-Leaseback Financings......................................................................60
9.24 Mergers and Dissolutions; Sale of Capital Stock................................................60
9.25 New Business...................................................................................61
9.26 Affiliate Subordination Agreements.............................................................61
9.27 Amendments to Documents........................................................................61
9.28 Financial Covenants............................................................................61
9.29 Management Fees................................................................................62
9.30 Authorizations.................................................................................62
9.31 Unrestricted Subsidiaries......................................................................62
SECTION 10 DEFAULT........................................................................................62
10.1 Payment of Obligation..........................................................................62
10.2 Covenants......................................................................................63
10.3 Debtor Relief..................................................................................63
10.4 Judgments and Attachments......................................................................63
10.5 Misrepresentation..............................................................................63
10.6 Change of Control..............................................................................63
10.7 Authorizations.................................................................................63
10.8 Default Under Other Debt and Agreements........................................................63
10.9 LCs............................................................................................63
10.10 Validity and Enforceability of Loan Documents..................................................64
SECTION 11 RIGHTS AND REMEDIES............................................................................64
11.1 Remedies Upon Default..........................................................................64
11.2 Company Waivers................................................................................64
11.3 Performance by Administrative Agent............................................................65
11.4 Delegation of Duties and Rights................................................................65
11.5 Not in Control.................................................................................65
11.6 Course of Dealing..............................................................................65
11.7 Cumulative Rights..............................................................................65
11.8 Application of Proceeds........................................................................66
11.9 Certain Proceedings............................................................................66
11.10 Limitation of Rights...........................................................................66
11.11 Expenditures by Lenders........................................................................66
11.12 Indemnification................................................................................66
SECTION 12 AGREEMENT AMONG LENDERS........................................................................67
12.1 Administrative Agent...........................................................................67
12.2 Expenses.......................................................................................68
12.3 Proportionate Absorption of Losses.............................................................68
12.4 Delegation of Duties; Reliance.................................................................69
(iii)
12.5 Limitation of Liability........................................................................69
12.6 Default; Collateral............................................................................70
12.7 Limitation of Liability........................................................................71
12.8 Relationship of Lenders........................................................................71
12.9 Benefits of Agreement..........................................................................71
12.10 Agents.........................................................................................72
12.11 Obligations Several............................................................................72
12.12 Financial ▇▇▇▇▇▇...............................................................................72
SECTION 13 MISCELLANEOUS..................................................................................72
13.1 Headings.......................................................................................72
13.2 Nonbusiness Days...............................................................................72
13.3 Communications.................................................................................72
13.4 Form and Number of Documents...................................................................73
13.5 Survival.......................................................................................73
13.6 Governing Law..................................................................................73
13.7 Invalid Provisions.............................................................................73
13.8 Entirety.......................................................................................73
13.9 Jurisdiction; Venue; Service of Process; Jury Trial............................................74
13.10 Amendments, Consents, Conflicts, and Waivers...................................................74
13.11 Multiple Counterparts..........................................................................75
13.12 Successors and Assigns; Assignments and Participations.........................................75
13.13 Decisions by Restricted Borrowers..............................................................80
13.14 Discharge Only Upon Payment in Full; Reinstatement in Certain Circumstances....................80
13.15 Limited Recourse...............................................................................80
(iv)
SCHEDULES AND EXHIBITS
Schedule 2.1 - Lenders and Commitments
Schedule 7.1 - Conditions Precedent to Closing
Schedule 7.2 - Conditions Precedent to Unrestricted Borrower
Schedule 8.3 - Capital Stock and Partnership Interests
Schedule 8.19 - CATV Systems
Schedule 8.24 - Franchises
Schedule 9.12 - Existing Debt
Exhibit A-1 - Form of Revolver Note
Exhibit A-2 - Form of Term Loan Note
Exhibit A-3 - Form of Discretionary Revolver Note
Exhibit A-4 - Form of Discretionary Term Loan Note
Exhibit A-5 - Form of Unrestricted Borrower Note
Exhibit B-1 - Form of Borrowing Notice
Exhibit B-2 - Form of Conversion Notice
Exhibit B-3 - Form of LC Request
Exhibit B-4 - Form of Designation Request
Exhibit C - Form of Guaranty
Exhibit D-1 - Form of Pledge Agreement
Exhibit D-2 - Form of Minority Pledge Agreement
Exhibit E - Form of Compliance Certificate
Exhibit F - Form of Assignment and Acceptance Agreement
Exhibit G-1 - Form of Opinion of Counsel of Restricted Borrowers
Exhibit G-2 - Form of Opinion of Deputy General Counsel of Restricted
Borrowers
Exhibit G-3 - Form of Opinion of Special Regulatory Counsel
Exhibit H - Form of Affiliate Subordination Agreement
Exhibit I - Form of Management Fee Subordination Agreement
(v)
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is entered into as of April 14, 2000, among
CENTURY CABLE HOLDINGS, LLC, a Delaware limited liability company, FT. ▇▇▇▇▇
CABLEVISION, LLC, a Delaware
limited liability company, and HIGHLAND PRESTIGE GEORGIA, INC., a Delaware
limited liability company (individually, a "Restricted Borrower" and
collectively, the "Restricted Borrowers"), Lenders (hereinafter defined), BANK
OF AMERICA, N.A. and THE CHASE MANHATTAN BANK, as Co- Administrative Agents
(hereinafter defined), for themselves and the other Lenders, TORONTO DOMINION
(TEXAS), INC., as Syndication Agent (hereinafter defined), CIBC WORLD MARKETS
CORP., as Documentation Agent (hereinafter defined), BARCLAYS BANK PLC, as
Arranging Agent, and the Managing Agents (hereinafter defined).
RECITALS
A. Restricted Borrowers have requested that Lenders extend credit to
Restricted Borrowers and other Unrestricted Borrowers (hereinafter defined) as
may be designated pursuant to the terms hereof in the form of this Credit
Agreement (the "Agreement"), providing for a revolving loan facility in the
aggregate principal amount of $1,500,000,000 and a term loan facility in the
aggregate principal amount of $750,000,000 to enable, among other things,
Restricted Borrowers to consummate certain Acquisitions (hereinafter defined)
and for working capital and general limited liability company, partnership, and
corporate purposes.
B. Upon and subject to the terms and conditions of this Agreement,
Lenders are willing to extend such credit to Borrowers.
Accordingly, in consideration of the mutual covenants contained herein, the
parties hereto agree as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 Definitions. As used herein:
ACC means Adelphia Communications Corporation, a Delaware corporation.
Acquisition means any transaction or series of related transactions for
the purpose of, or resulting in, directly or indirectly, (a) the acquisition by
any Company of all or substantially all of the assets of a Person or of any
business or division of a Person, (b) the acquisition by any Company of more
than 50% of any class of Voting Stock (or similar ownership interests) of any
Person; (c) a merger, consolidation, amalgamation, or other combination by any
Company with another Person if a Company is the surviving entity; provided that,
in any merger involving any Borrower, a Borrower must be the surviving entity,
or (d) the acquisition of any CATV System or those businesses in which other
Persons in the cable industry are engaged.
Adjusted Eurodollar Rate means, for any Eurodollar Rate Borrowing for
any Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) determined by Administrative Agent to be equal to
the quotient obtained by dividing (a) the Eurodollar Rate for such Eurodollar
Rate Borrowing for such Interest Period by (b) 1 minus the Reserve Requirement
for such Eurodollar Rate Borrowing for such Interest Period.
Administrative Agent means Bank of America, N.A., and its permitted
successors or assigns as "Administrative Agent" for Lenders under the Loan
Documents.
Affiliate of any Person means any other individual or entity (i) which
directly or indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, such Person, or (ii) ten
1
percent (10%) or more of the voting stock (or in the case of an entity which is
not a corporation, ten percent (10%) or more of the voting equity interest) of
which is beneficially owned or held by such Person; and, for purposes of this
definition only, "control," "controlled by," and "under common control with"
mean possession, directly or indirectly, of the power to direct or cause the
direction of management or policies (whether through ownership of voting
securities, by contract, or otherwise).
Affiliate Debt means any Debt owed by any Company to ACC, the Rigas
Family, or any other Affiliate (other than another Company), so long as such
Debt satisfies the requirements of Section 9.26.
Affiliate Subordination Agreement means, individually, and Affiliate
Subordination Agreements means, collectively, any Affiliate Subordination
Agreement (substantially in the form of Exhibit H) executed and delivered by any
Affiliate pursuant to the requirements of the Loan Documents; and (c) any
amendments, modifications, supplements, ratifications, or restatements of any
Affiliate Subordination Agreement made in accordance with the Loan Documents.
Agents means, collectively, Co-Administrative Agents, Administrative
Agent, Syndication Agent, Documentation Agent, Arranging Agent, and Managing
Agents.
Agreement means this Credit Agreement (as the same may hereafter be
amended, modified, supplemented, or restated from time to time).
Annualized Operating Cash Flow means, on any date of determination,
Operating Cash Flow multiplied by four.
Arranging Agent means Barclays Bank PLC and its permitted successor and
assigns as "Arranging Agent" under the Loan Documents.
Applicable Lending Office means, for each Lender and for each Type of
Borrowing, the "Lending Office" of such Lender (or an affiliate of such Lender)
designated on Schedule 2.1 attached hereto or such other office that such Lender
(or an affiliate of such Lender) may from time to time specify to Administrative
Agent and Restricted Borrowers by written notice in accordance with the terms
hereof.
Applicable Margin means either:
(a) Solely with respect to Borrowings under the Revolver
Facility and the Discretionary Revolver Subfacility:
(i) on any date of determination occurring on or
prior to October 16, 2000, .750% for Base Rate Borrowings and
1.750% for Eurodollar Rate Borrowings; or
(ii) on any date of determination occurring after
October 16, 2000, the percentage per annum set forth in the
table below for the Type of Borrowing that corresponds to the
Leverage Ratio at such date of determination, as calculated
based on the quarterly Compliance Certificate of Restricted
Borrowers most recently delivered pursuant to Section 9.3
hereof:
Leverage Ratio Applicable Margin (per annum)
----------------------------- -----------------------------------------------------
Base Rate Eurodollar Rate
Borrowings Borrowings
----------------------------- ------------------------ ----------------------------
Less than 4.75:1.0 0.000% .750%
2
Leverage Ratio Applicable Margin (per annum)
Greater than or equal to
4.75 to 1.0, 0.000% 1.000%
but less than 5.25:1.0
Greater than or equal to
5.25:1.0, .250% 1.250%
but less than 5.75:1.0
Greater than or equal to
5.75:1.0, but less .500% 1.500%
than 6.00:1.0
Greater than or equal to
6.00:1.0, but less .750% 1.750%
than 6.25:1.0
Greater than or equal to 1.000% 2.000%
6.25:1.0
(b) Solely with respect of Borrowings under the Term Loan
Facility,
(i) on any date of determination occurring on or
prior to October 16, 2000, 2.000% for Base Rate Borrowings and
3.000% for Eurodollar Rate Borrowings; or
(ii) on any date of determination occurring after
October 16, 2000, the percentage per annum set forth in the
table below for the Type of Borrowing that corresponds to the
Leverage Ratio at such date of determination, as calculated
based on the quarterly Compliance Certificate of Restricted
Borrowers most recently delivered pursuant to Section 9.3
hereof:
Leverage Ratio Applicable Margin (per annum)
--------------------------------------------------------------------------------------
Base Rate Borrowings Eurodollar Rate
Borrowings
----------------------------------------------------- --------------------------------
Less than 5.00:1.0 1.750% 2.750%
Greater than or 2.000% 3.000%
equal to 5.00:1.0
(c) With respect of Borrowings under the Discretionary Term
Loan Subfacility, the Applicable Margin for each Discretionary Term
Loan shall be the amount set forth in the Supplemental Credit Documents
for such Discretionary Term Loan.
(d) The provisions in Items a(ii) and (b)(ii) preceding are
further subject to the following:
(i) With respect to any adjustments in the Applicable
Margin as a result of changes in the Leverage Ratio, such
adjustment shall be (subject to Item (d)(ii) below) effective
commencing on the second Business Day after the earlier of the
date the Restricted
3
Borrowers are required to deliver, or the actual date of
delivery of Financial Statements (and related Compliance
Certificate) pursuant to Sections 9.3(a) and 9.3(b), as the
case may be.
(ii) If Restricted Borrowers fail to timely furnish
to Lenders the Financial Statements and related Compliance
Certificates as required to be delivered pursuant to Sections
9.3(a) and 9.3(b), and such failure shall not be remedied
within five days, then (unless the Default Rate has been
effected by Required Lenders pursuant to Section 3.6) the
Applicable Margin for the Revolver Facility, the Discretionary
Revolver Subfacility, and the Term Loan Facility shall be the
maximum Applicable Margin for the respective Facilities or
Subfacility (as the case may be) specified in the tables above
until such time as the Financial Statements and related
Compliance Certificates required to be delivered pursuant to
Sections 9.3(a) and 9.3(b) have been delivered.
Applicable Margin for Commitment Fees means the percentage per annum
set forth in the table below that corresponds to the Leverage Ratio at such date
of determination, as calculated based on the Compliance Certificate of
Restricted Borrowers most recently delivered on the Closing Date or pursuant to
Section 9.3 hereof:
Applicable Margin for
Leverage Ratio Commitment Fees
--------------------------------------------- -----------------------------------
Less than 5.50:1.0 .250%
Greater than or equal to 5.50:1.00 .375%
The provision above is further subject to the following:
(a) With respect to any adjustments in the Applicable Margin
for Commitment Fees as a result of changes in the Leverage Ratio, such
adjustment shall be effective commencing on the second Business Day
after the earlier of the date the Restricted Borrowers are required to
deliver, or the actual date of delivery of Financial Statements (and
related Compliance Certificate) pursuant to Sections 9.3(a) and 9.3(b).
(b) If Restricted Borrowers fail to timely furnish to Lenders
the Financial Statements and related Compliance Certificates as
required to be delivered pursuant to Sections 9.3(a) and 9.3(b), and
such failure shall not be remedied within five days, then (unless the
Default Rate has been effected by Required Lenders pursuant to Section
3.6) the Applicable Margin for Commitment Fees shall be .375% until
such time as the Financial Statements and related Compliance
Certificates required to be delivered pursuant to Sections 9.3(a) and
9.3(b) have been delivered.
Approved Fund means, with respect to any Lender that is a fund or
commingled investment vehicle that invests in loans, any other fund that invests
in loans and is managed or advised by the same investment advisor as such Lender
or by an Affiliate of such investment advisor.
Arahova means Arahova Communications, Inc., a Delaware corporation.
Asset Swap means any transaction or series of related transactions
pursuant to which any Restricted Borrower or one or more of their respective
Restricted Subsidiaries shall exchange one or more CATV Systems owned by any
Restricted Borrower or their Restricted Subsidiaries for one or more CATV
Systems owned by third parties; provided that, the disposition of assets
pursuant to such exchange shall occur within 180 days of the related acquisition
of assets.
4
Authorizations means all material filings, recordings, and
registrations with, and all material validations or exemptions, approvals,
orders, authorizations, consents, franchises, licenses, certificates,
certificates of compliance, grants of authority, and permits from, any
Governmental Authority, including without limitation, the Franchises, the FCC
Licenses, and any of the foregoing authorizing or permitting the acquisition,
construction, or operation of any CATV System.
Base Rate means, for any day, the rate per annum equal to the higher of
(a) the Federal Funds Rate for such day plus one-half of one percent (.5%) and
(b) the Prime Rate for such day. Any change in the Base Rate due to a change in
the Prime Rate or the Federal Funds Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Rate.
Base Rate Borrowing means a Borrowing bearing interest at the sum of
the Base Rate plus the Applicable Margin for Base Rate Borrowings.
Borrowers means collectively the Restricted Borrowers and the
Unrestricted Borrowers, and Borrower means any Restricted Borrower or
Unrestricted Borrower.
Borrowing means any amount disbursed (a) by one or more Lenders under
the Loan Documents (under the Revolver Facility, the LC Subfacility, the Term
Loan Facility, or any Discretionary Loan under the Discretionary Facility),
whether such amount constitutes an original disbursement of funds, the
continuation of an amount outstanding, or payment of a draft under an LC, or (b)
by any Lender in accordance with, and to satisfy the obligations of any Loan
Party under, any Loan Document.
Borrowing Date is defined in Section 2.6(a).
Borrowing Notice means a request for Borrowing made pursuant to Section
2.6(a), substantially in the form of Exhibit B-1.
Business Day means (a) for all purposes, any day other than Saturday,
Sunday, and any other day on which commercial banking institutions are required
or authorized by Law to be closed in Dallas, Texas or New York, New York, and
(b) in addition to the foregoing, in respect of any Eurodollar Rate Borrowing, a
day on which dealings in United States dollars are conducted in the London
interbank market and commercial banks are open for international business in
London.
Cablevision Cleveland CATV Systems means the CATV Systems described in
that certain Asset Purchase Agreement dated as of December 8, 1999, among
Telerama, Inc., Cablevision of Cleveland, L.P., and ACC; and that certain
Agreement and Plan of Reorganization dated as of December 8, 1999, among
Cablevision of the Midwest, Inc., Cablevision of the Midwest Holding Co., Inc.,
Adelphia General Holdings II, Inc., and ACC.
Capital Contribution means, as at any date of determination thereof,
the sum of (a) the aggregate net cash proceeds received (i) by any Restricted
Borrower during the period commencing on the date immediately following the
Closing Date through and including such date of determination in respect of
equity contributions and Affiliate Debt and (ii) by any Restricted Subsidiary
during such period in respect of equity contributions and Affiliate Debt (other
than equity contributions made by any Restricted Borrower or any other
Restricted Subsidiary) plus (b) the fair market value of any property (including
any CATV Systems) contributed (i) to any Restricted Borrower as additional
equity capital or Affiliate Debt during such period and (ii) to any Restricted
Subsidiary as additional equity capital or Affiliate Debt during such period
(other than any such contribution made by any Restricted Borrower or any other
Restricted Subsidiary).
5
Capital Lease means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
Cash Equivalents means:
(a) Readily marketable, direct, full faith and credit
obligations of the United States of America, or obligations guaranteed
by the full faith and credit of the United States of America, maturing
within not more than one year from the date of acquisition;
(b) Commercial paper maturing in 365 days or less from the
date of issuance and rated one of the two highest credit ratings
obtainable by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's") or Standard
and Poor's Rating Group (a division of ▇▇▇▇▇▇-▇▇▇▇, Inc., "S & P");
(c) Debt instruments of a domestic issuer which mature in one
year or less and which are rated one of the two highest credit ratings
obtainable by Moody's or S&P on the date of acquisition of such
investment;
(d) Short term certificates of deposit and time deposits,
which mature within one year from the date of issuance and which are
fully insured by the Federal Deposit Insurance Corporation;
(e) Demand deposit accounts which are maintained in the
ordinary course of business;
(f) Mutual funds whose investment guidelines restrict
such funds' investments primarily to those satisfying the provisions of
clauses (a) through (d) above; and
(g) repurchase obligations with a term of not more than 90
days for, and secured by, underlying securities of the types described
in clauses (a) through (c) above entered into with any domestic office
of any commercial bank organized under the laws of the United States of
America or any state thereof that has a combined capital and surplus
and undivided profits of not less than $500,000,000.
CATV System means any cable distribution system that receives broadcast
signals by antennae, microwave transmission, satellite transmission, or any
other form of transmission and that amplifies such signals and distributes them
to Persons who pay to receive such signals.
Change of Control means (a) ACC and the Rigas Family collectively shall
cease for any reason to own, directly or indirectly, at least 51% of the equity
interest of each Restricted Borrower, (b) the failure of ACC or one of its
Subsidiaries to be the controlling managing member(s) of each of Century Cable
Holdings, LLC and Ft. ▇▇▇▇▇ Cablevision, LLC, or (c) the Rigas Family fails to
control, directly or indirectly, more than 50% of the total number of votes that
holders of ACC's capital stock are then entitled to vote (which, on the date
hereof, consists of the Class "A" common stock and Class "B" common stock of
ACC).
Closing Date means the date upon which this Agreement has been executed
by Restricted Borrowers, Lenders, and Agents and all conditions precedent
specified in Section 7.1 have been satisfied or waived.
Co-Administrative Agents means Bank of America, N.A. and The Chase
Manhattan Bank, and their respective permitted successors or assigns as
"Co-Administrative Agents" for Lenders under the Loan Documents.
Code means the Internal Revenue Code of 1986, as amended, together with
the rules and regulations promulgated thereunder.
6
Collateral means all of the items and types of property described as
"Collateral" in now existing or hereafter created Collateral Documents and all
cash and non-cash proceeds thereof.
Collateral Documents means all pledge agreements, financing statements,
assignments of partnership interests, and Guaranties at any time delivered to
Administrative Agent to create or evidence Liens securing the Obligation,
together with all reaffirmations, amendments, and modifications thereof or
supplements thereto.
Comcast Swap means the transactions with respect to the CATV Systems
described in that certain Letter Agreement dated May 25, 1999, between Comcast
Corporation and ACC and that certain Letter Agreement dated May 25, 1999,
between ▇▇▇▇▇ Intercable, Inc. and ACC.
Commitment Notice is defined in Section 2.4(d).
Commitment Percentage means, at any date of determination, for any
Lender with respect to a particular Facility or Discretionary Loan, the
proportion (stated as a percentage) that its Committed Sum for such Facility or
Discretionary Loan bears to the aggregate Committed Sums of all Lenders for such
Facility or Discretionary Loan.
Commitment Request is defined in Section 2.4(c).
Committed Sum means (a) for any Revolver Lender or Discretionary
Revolver Lender, with respect to the Revolver Facility or any Discretionary
Revolver Loan, as applicable, at any date of determination occurring prior to
the respective Termination Date for the Revolver Facility or Discretionary
Revolver Loan, the amount stated beside such Lender's name under the heading for
the Revolver Facility or the applicable Discretionary Loan on the most-recently
amended Schedule 2.1 to this Agreement (which amount is subject to increase,
reduction, or cancellation in accordance with the Loan Documents), and (b) for
any other Lender, with respect to any other Facility or Discretionary Loan, at
any date of determination occurring prior to the initial Borrowing Date for such
Facility or Discretionary Loan, the amount stated beside such Lender's name
under the heading for the applicable Facility or Discretionary Loan on the
most-recently amended Schedule 2.1 to this Agreement (which amount is subject to
increase, reduction, or cancellation in accordance with the Loan Documents).
Communications Act means, collectively, The Federal Communications Act
of 1934, as amended from time to time, and the rules and regulations in effect
at any time thereunder.
Companies means, at any date of determination thereof, Restricted
Borrowers and each of their Restricted Subsidiaries; and Company means, on any
date of determination, any Restricted Borrower or any of its Restricted
Subsidiaries.
Compliance Certificate means a certificate signed by a Responsible
Officer, substantially in the form of Exhibit E.
Consequential Loss means any loss or expense which any Lender may
reasonably incur in respect of a Eurodollar Rate Borrowing as a consequence of
any event described in Section 4.5.
Conversion Notice means a request pursuant to Section 3.11,
substantially in the form of Exhibit B-2.
Copyright Filings is defined in Section 8.19(c).
Current Financials means, at the time of any determination thereof, the
more recently delivered to Lenders of either (a) the unaudited pro forma balance
sheet and income statement (including a calculation of
7
Operating Cash Flow) for the Companies on a combined basis, for the fiscal
quarter ending on December 31, 1999, which balance sheet and income statement
gives pro forma effect to the incurrence of Debt under this Agreement; or (b)
the Financial Statements required to be delivered under Sections 9.3(a) or
9.3(b), as the case may be, calculated on a combined basis for the Companies.
Debt means (without duplication), for any Person, the sum of the
following: (a) all liabilities, obligations, and indebtedness of such Person
which in accordance with GAAP should be classified upon such Person's balance
sheet as liabilities in respect of (i) money borrowed, including, without
limitation, the Principal Debt, (ii) obligations of such Person under Capital
Leases, and (iii) obligations of such Person issued or assumed as the deferred
purchase price of property, all conditional sale obligations, and obligations
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business); (b) all obligations of the type
referred to in clauses (a)(i) through (a)(ii) preceding of other Persons for the
payment of which such Person is responsible or liable as obligor, guarantor, or
otherwise; (c) all obligations of the type referred to in clauses (a)(i) through
clause (a)(ii) and clause (b) preceding of other Persons secured by any Lien on
any property or asset of such Person (whether or not such obligation is assumed
by such Person), the amount of such obligation being deemed to be the lesser of
the value of such property or assets or the amount of the obligation so secured;
and (d) the face amount of all letters of credit and banker's acceptances issued
for the account of such Person, and without duplication, all drafts drawn and
unpaid thereunder.
Debtor Relief Laws means the Bankruptcy Code of the United States of
America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments, or similar Laws from time to
time in effect affecting the Rights of creditors generally.
Default is defined in Section 10.
Default Rate means, (i) with respect to any Borrowing, on any date, a
per annum rate of interest equal from day to day to the lesser of (a) the
non-Default interest rate applicable to such Borrowing, plus 2% and (b) the
Maximum Rate, and (ii) with respect to any other Obligation under the Loan
Documents, the lesser of (a) the Base Rate plus the then-effective Applicable
Margin for Base Rate Borrowings plus 2% and (b) the Maximum Rate.
Designated Amount is defined in Section 2.1(b).
Designation Request means a written request of the Restricted
Borrowers, designating a Person as an Unrestricted Borrower pursuant to and in
accordance with the requirements of Section 2.1(b), substantially in the form of
Exhibit B-4.
Discretionary Commitment means, for any Discretionary Lender with
respect to any Discretionary Loan, the commitment amount designated for such
Lender in the Supplemental Credit Documents for such Discretionary Loan in
accordance with the procedures described in Section 2.4(d).
Discretionary Facility means the uncommitted discretionary facility
described in and subject to the limitations of Section 2.4.
Discretionary Lender means, at any date of determination, each Lender
who has a Discretionary Commitment or to whom Discretionary Principal Debt is
owed.
8
Discretionary Loan Effective Date, for each Discretionary Loan, is the
date specified by Administrative Agent in accordance with Section 2.4(d) and set
forth in the Supplemental Credit Documents for such Discretionary Loan.
Discretionary Loan Request is defined in Section 2.4(c).
Discretionary Loans is defined in Section 2.4(c).
Discretionary Loan Subfacilities means, collectively, the Discretionary
Revolver Subfacility and the Discretionary Term Loan Subfacility; Discretionary
Loan Subfacility means, any of the Discretionary Revolver Subfacility or the
Discretionary Term Loan Subfacility.
Discretionary Principal Debt means, at any date of determination, the
sum of (a) the Discretionary Revolver Principal Debt arising under all
Discretionary Revolver Loans and (b) the Discretionary Term Loan Principal Debt
arising under all Discretionary Term Loans.
Discretionary Revolver Commitment means, with respect to any
Discretionary Revolver Loan, on any date of determination, the aggregate
Committed Sums of all Discretionary Lenders for such Discretionary Revolver
Loan.
Discretionary Revolver Lenders means, on any date of determination, all
Discretionary Lenders that have Committed Sums under the Discretionary Revolver
Subfacility.
Discretionary Revolver Loan means any Discretionary Loan under the
Discretionary Revolver Subfacility.
Discretionary Revolver Note means a note substantially in the form of
Exhibit A-3, and all renewals and extensions of all or any part thereof.
Discretionary Revolver Principal Debt means, on any date of
determination, for any Discretionary Revolver Loan, the aggregate unpaid
principal balance of all Borrowings under such Discretionary Revolver Loan.
Discretionary Revolver Subfacility means the subfacility under the
Discretionary Facility, described in, and subject to the limitations of, Section
2.4(a)(i).
Discretionary Term Commitment means, with respect to any Discretionary
Term Loan, on any date of determination, the aggregate Committed Sums of all
Discretionary Lenders for such Discretionary Term Loan.
Discretionary Term Loan Lenders means, on any date of determination,
all Discretionary Lenders that have Committed Sums under the Discretionary Term
Loan Subfacility or that are owed any Discretionary Term Loan Principal Debt
under any Discretionary Term Loan.
Discretionary Term Loans means any Discretionary Loans under the
Discretionary Term Loan Subfacility.
Discretionary Term Loan Note means a note substantially in the form of
Exhibit A-4, and all renewals and extensions of all or any part thereof.
9
Discretionary Term Loan Principal Debt means, on any date of
determination, for any Discretionary Term Loan, the aggregate unpaid principal
balance of all Borrowings under such Discretionary Term Loan.
Discretionary Term Loan Subfacility means the subfacility under the
Discretionary Facility, described in, and subject to the limitations of, Section
2.4(a)(ii).
Distribution for any Person means, with respect to any shares of any
capital stock, membership interest, or any other equity securities issued by
such Person, (a) the retirement, redemption, purchase, or other acquisition for
value of any such securities or of any warrants, options, or other rights to
acquire any such securities, (b) the declaration or payment of any dividend or
distribution on or with respect to any such securities, (c) any other payment
(in cash, property, or obligations) by such Person with respect to such
securities, and (d) the setting apart of money for a sinking or other analogous
fund for any such securities.
Documentation Agent means CIBC World Markets Corp. and its permitted
successors and assigns as "Documentation Agent" under the Loan Documents.
Dollars and the symbol $ means lawful money of the United States of
America.
Eligible Assignee means (a) a Lender; (b) an Affiliate of any Lender
(so long as such assignment is not made in conjunction with the sale of such
Affiliate); (c) an Approved Fund of the assigning Lender; and (d) any other
Person approved by Administrative Agent (which approval will not be unreasonably
withheld or delayed by Administrative Agent) and, unless a Default or Potential
Default has occurred and is continuing at the time any assignment is effected in
accordance with Section 13.12, Restricted Borrowers, such approval not to be
unreasonably withheld or delayed by Restricted Borrowers and such approval to be
deemed given by Restricted Borrowers if no objection is received by the
assigning Lender and Administrative Agent from Restricted Borrowers within five
Business Days after notice of such proposed assignment has been provided by the
assigning Lender to Restricted Borrowers; provided, however, that neither
Restricted Borrowers nor any Affiliate of Restricted Borrowers shall qualify as
an Eligible Assignee.
Employee Plan means, at any time, each Single-Employer Plan and each
Multiemployer Plan.
Environmental Law means any applicable Law that relates to (a) the
quality or protection of air, groundwater, surface water, soil, other
environmental media, or natural resources, (b) the Release or threatened Release
of Hazardous Substances, (c) the regulation of any pollutants, contaminants,
wastes, substances, and Hazardous Substances, or (d) health or safety, including
without limitation, employee safety in the workplace, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. SS 9601 et seq.) ("CERCLA"), the Clean Air Act (42
U.S.C. SS 7401 et seq.), the Federal Water Pollution Control Act, as amended by
the Clean Water Act (33 ▇.▇.▇.▇▇. 1251 et seq.), the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. SS 136 et seq.), the Emergency Planning
and Community Right to Know Act of 1986 (42 ▇.▇.▇.▇▇. 11001 et seq.), the
Hazardous Materials Transportation Act (49 U.S.C. SS 1801 et seq.), the National
Environmental Policy Act of 1969 (42 ▇.▇.▇.▇▇. 4321 et seq.), the Oil Pollution
Act (33 U.S.C. SS 2701 et seq.), the Resource Conservation and Recovery Act (42
▇.▇.▇.▇▇. 6901 et seq.), the Rivers and Harbors Act (33 U.S.C. SS 401 et seq.),
the Safe Drinking Water Act (42 U.S.C. SS 201 andss. 300f et seq.), the Solid
Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976 and the Hazardous and Solid Waste Amendments of 1984 (42 ▇.▇.▇.▇▇. 6901 et
seq.), the Toxic Substances Control Act (15 U.S.C. SS 2601 et seq.), the
Occupational Safety and Health Act of 1970, 29 U.S.C. SS 651 et seq., and
analogous state and local Laws, as any of the foregoing may have been and may be
amended or supplemented from time to time, and any analogous future enacted or
adopted Law.
Environmental Liability means any obligation, liability (including,
without limitation, any strict liability), loss, fine, penalty, charge, Lien,
damage, cost, or expense of any kind to the extent that it results
10
(a) from any violation of any Environmental Law, (b) from the presence, Release,
or threatened Release of any Hazardous Substance, or (c) from actual or
threatened damages to natural resources.
Environmental Permit means any permit, license, or other Authorization
from any Governmental Authority that is required under any Environmental Law for
the lawful conduct of any business, process, or other activity.
ERISA means the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and rulings thereunder.
ERISA Affiliate means any company or trade or business (whether or not
incorporated) which, for purposes of Title IV of ERISA, is, or has been within
the past six years, a member of any Loan Party's controlled group or which is,
or has been within the past six years, under common control with any Loan Party
within the meaning of Section 414(b), (c), (m), or (o) of the Code.
Eurodollar Rate means, for any Eurodollar Rate Borrowing for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Dow ▇▇▇▇▇ Markets Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Eurodollar Rate" shall mean,
for any Eurodollar Rate Borrowing for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
Eurodollar Rate Borrowing means a Borrowing bearing interest at the sum
of the Adjusted Eurodollar Rate plus the Applicable Margin for Eurodollar Rate
Borrowings.
Exhibit means an exhibit to this Agreement unless otherwise specified.
Excess Cash Balance means, on any date of determination, the sum of
unencumbered cash and Cash Equivalents then held in the name of any Company.
Facilities means, collectively, the Revolver Facility and the Term Loan
Facility, but not the Discretionary Facility; Facility means any of the Revolver
Facility or the Term Loan.
FCC means the Federal Communications Commission and any successor
regulatory body.
FCC License means any license or permit issued by the FCC, including
licenses issued in connection with the operation of community antenna television
systems, community antenna relay systems, microwave systems, earth stations and
businesses, and other two-way radios.
Federal Funds Rate means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined (which
determination shall be conclusive and binding, absent manifest error) by
Administrative Agent to be equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank of New York on the Business Day next succeeding such day;
provided that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day,
11
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate charged to
Administrative Agent (in its individual capacity) on such day on such
transactions as determined by Administrative Agent (which determination shall be
conclusive and binding, absent manifest error).
Financial Hedge means any swap, collar, floor, cap, or other contract
which is intended to reduce or eliminate the risk of fluctuations in interest
rates, foreign currency exchange agreement, commodity price protection
agreement, or other interest or currency exchange rate or commodity price
hedging arrangement incurred in the ordinary course of business and consistent
with prior business practices of the Companies and not for speculative purposes.
Financial Statements means balance sheets, statements of operations,
statements of shareholders' equity, and statements of cash flows prepared in
accordance with GAAP, and, beginning with the Financial Statements for the
fiscal year ending December 31, 2002, such statements of operations and
statements of cash flows shall be in comparative form to the corresponding
period of the preceding fiscal year, and such balance sheets and statements of
shareholders' equity shall be in comparative form to the prior fiscal year-end
figures.
Franchise means a franchise, license, Authorization, or Right by
contract or otherwise to construct, own, operate, promote, extend, and/or
otherwise exploit any CATV System operated or to be operated by any Company
granted by any Governmental Authority.
Franchisee means any Governmental Authority that has granted any Loan
Party a Franchise.
GAAP means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which are applicable from time to time.
Governmental Authority means any (a) state, county, city, town,
village, or other local, state, or federal judicial, executive, or legislative
instrumentality, (b) private arbitration board or panel, or (c) central bank.
Granting Lender is defined in Section 13.12(h).
Guarantor means any Person, including, but not limited to, each
Restricted Subsidiary of all Restricted Borrowers, which undertakes to be liable
for all or any part of the Obligation by execution of a Guaranty; provided that
Guarantors shall expressly exclude Unrestricted Borrowers.
Guaranty means (a) a Guaranty in substantially the form and upon the
terms of Exhibit C, executed and delivered by any Person pursuant to the
requirements of the Loan Documents; and (b) any amendments, modifications,
supplements, restatements, ratifications, or reaffirmations of any Guaranty made
in accordance with the Loan Documents.
Hazardous Substance means (a) any substance that is designated,
defined, or classified as a hazardous waste, hazardous material, pollutant,
contaminant, or toxic or hazardous substance, or that is otherwise regulated,
under any Environmental Law, including without limitation, any hazardous
substance within the meaning of Section 101(14) of CERCLA, (b) petroleum, oil,
gasoline, natural gas, fuel oil, motor oil, waste oil, diesel fuel, jet fuel,
and other petroleum hydrocarbons, (c) asbestos and asbestos-containing materials
in any form, (d) polychlorinated biphenyls, or (e) urea formaldehyde foam.
Interest Expense means, for any period, the sum (for the Restricted
Borrowers and their Restricted Subsidiaries determined on a combined basis
without duplication in accordance with GAAP), of (a) all accrued
12
interest on Total Debt (excluding, however, accrued interest on Affiliate Debt,
whether or not paid during such period) plus (b) the net amounts payable (or
minus the net amounts receivable) under Financial ▇▇▇▇▇▇ accrued during such
period (whether or not actually paid or received during such period) plus (c)
all fees and all other amounts that under GAAP would be treated as interest
expense, incurred hereunder during such period.
Interest Period is determined in accordance with Section 3.10.
Investment for any Person means, any direct or indirect purchase or
other acquisition by such Person of stock or other securities of any other
Person, or any direct or indirect loan, advance, or capital contribution by such
Person to any other Person, including all Debt and accounts receivable from such
other Person which are not current assets or did not arise from sales to such
other Person in the ordinary course of business.
Issuing Lender means either of the Co-Administrative Agents, the
Syndication Agent, or the Documentation Agent which shall be designated as an
Issuing Lender with respect to the issuance of LCs.
Joint Lead Arrangers and Joint Book Managers means Banc of America
Securities LLC and Chase Securities Inc. and their respective successors and
assigns, in their capacity as joint lead arrangers and joint book managers under
the Loan Documents.
Laws means all applicable statutes, laws, treaties, ordinances, tariff
requirements, rules, regulations, orders, writs, injunctions, decrees,
judgments, opinions, or interpretations of any Governmental Authority.
LC means the standby letter(s) of credit issued hereunder in the form
agreed upon among Restricted Borrowers, the applicable Issuing Lender, and the
beneficiary thereof at the time of issuance thereof and participated in by
Lenders pursuant to the terms and conditions of Section 2.3 hereof.
LC Agreement means a letter of credit application and agreement (in
form and substance satisfactory to the applicable Issuing Lender) submitted by
Restricted Borrowers to the applicable Issuing Lender for an LC for the account
of any Restricted Borrower (and for any Restricted Borrower's benefit or the
benefit of any other Company); provided that this Agreement shall control any
conflict between this Agreement and any such LC Agreement.
LC Exposure means, at any time and without duplication, the sum of (a)
the aggregate undrawn portion of all uncancelled and unexpired LCs plus (b) the
aggregate unpaid reimbursement obligations of Restricted Borrowers in respect of
drawings of drafts under any LC.
LC Request means a request pursuant to Section 2.3(a), substantially in
the form of Exhibit B-3.
LC Subfacility means a subfacility of the Revolver Facility for the
issuance of LCs as described in and subject to the limitations of Section 2.3,
under which the LC Exposure may never (a) collectively exceed $500,000,000 and
(b) together with the Revolver Principal Debt may never exceed the Revolver
Commitment.
Lenders means, on any date of determination, the financial institutions
named on Schedule 2.1 (as the same may be amended from time to time by
Administrative Agent to reflect the addition of new Discretionary Lenders
pursuant to Section 2.4(e) and to reflect the assignments made in accordance
with Section 13.12(b) of this Agreement), and subject to the terms and
conditions of this Agreement, and their respective successors and assigns (but
not any Participant who is not otherwise a party to this Agreement); provided
that, solely for purposes of any Collateral Document and Section 12 and Sections
3.13 and 3.14; "Lenders" shall also include any Lender or Affiliate of a Lender
who is party to a Financial Hedge relating to the Principal Debt and their
respective successors and assigns (for purposes hereof, each Lender shall be
deemed to have entered into this
13
Agreement for and on behalf of any Affiliate now or hereafter party to a
Financial Hedge relating to the Principal Debt).
Leverage Ratio means, with respect to the Companies on a combined
basis, at any date of determination thereof, the ratio of (a) the Total Debt
outstanding on such date to (b) Annualized Operating Cash Flow.
Lien means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor (other than under or relating to
subordination or other intercreditor arrangements) to have its claim satisfied
out of any property or assets, or the proceeds therefrom, prior to the general
creditors of the owner thereof.
Litigation means any action by or before any Governmental Authority.
Loan Documents means (a) this Agreement, the Notes, the Collateral
Documents, LCs, and LC Agreements, (b) all Supplemental Credit Documents with
respect to Discretionary Loans, (c) all agreements, documents, or instruments in
favor of Agents or Lenders ever delivered pursuant to this Agreement or
otherwise delivered in connection with all or any part of the Obligation, and
(d) any and all future renewals, extensions, restatements, reaffirmations, or
amendments of, or supplements to, all or any part of the foregoing.
Loan Parties means, on any date of determination, Borrowers and all
Guarantors.
Management Agreements means the management agreements described in
Schedule 7.1, together with each other agreement with respect to the management
of CATV Systems of any Restricted Subsidiary, as said management agreements
shall, subject to Section 9.27, be modified and supplemented and in effect from
time to time, and "Management Agreement" means any one thereof.
Management Fee Subordination Agreement means a Subordination Agreement
between each Manager, the Restricted Borrowers, applicable Restricted
Subsidiaries, and the Administrative Agent in substantially the form of Exhibit
I, as said Agreement shall be modified and supplemented and in effect from time
to time.
Management Fees means, for any period, the sum of all fees, salaries,
awards, bonuses, and other compensation paid or incurred (in each case, whether
in cash or otherwise) by the Companies to Affiliates (other than Affiliates that
are employees of any Company) in respect of services rendered in connection with
the management or supervision of Restricted Borrowers and their Subsidiaries
pursuant to Management Agreements.
Manager means ACC or any Affiliate of ACC, who is a manager pursuant to
any Management Agreement.
Managing Agents means, collectively, ABN AMRO Bank N.V., Bank of
Montreal, The Bank of New York, The Bank of Nova Scotia, Citibank, N.A.,
Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland," New
York Branch, Credit Lyonnais New York Branch, Credit Suisse First Boston, DLJ
Capital Funding, Inc., First Union National Bank, Fleet National Bank, ▇▇▇▇▇▇▇
▇▇▇▇▇ Capital Corp., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., and SunTrust Bank.
Material Adverse Event means any set of one or more circumstances or
events which, individually or collectively, results in any (a) material
impairment of the ability of the Companies (taken as a whole) to perform any
payment or other material obligations under the Loan Documents or the ability of
Administrative Agent or any Lender to enforce any such obligations or any of
their respective Rights under the Loan
14
Documents, or (b) material and adverse effect on the business, properties, or
condition (financial or otherwise) of the Companies (taken as a whole).
Maximum Discretionary Commitment means an amount (subject to reduction
or cancellation as herein provided) equal to $500,000,000.
Maximum Amount and Maximum Rate respectively mean, for each Lender, the
maximum non- usurious amount and the maximum non-usurious rate of interest
which, under applicable Law, such Lender is permitted to contract for, charge,
take, reserve, or receive on the Obligation.
Minority Pledge Agreement means (a) a Pledge Agreement in substantially
the form and upon the terms of Exhibit D-2, executed by any Minority Pledgor;
and (b) any amendments, modifications, supplements, restatements, ratifications,
or reaffirmations of any Minority Pledge Agreement made in accordance with the
Loan Documents.
Minority Pledgor means any owner of a minority interest in any Company.
Multiemployer Plan means a multiemployer plan as defined in Sections
3(37) or 4001(a)(3) of ERISA or Section 414(f) of the Code to which any Loan
Party, any Restricted Subsidiary thereof, or any ERISA Affiliate of any Loan
Party is making, has made, is accruing, or has accrued, an obligation to make
contributions or has, within any of the preceding five plan years, made or
accrued an obligation to make contributions.
Net Cash Proceeds means with respect to any Significant Sale, cash
(freely convertible into Dollars) (including, any cash received by way of
deferred payment pursuant to a promissory note or otherwise, but only as and
when received) received in connection with and as consideration therefor, on or
after the date of consummation of such Significant Sale, by any Company from
such Significant Sale, after (i) deduction of an amount equal to estimated
federal, state, and local Taxes in connection with such Significant Sale and
determined in good faith by Restricted Borrowers, (ii) payment of all usual and
customary brokerage commissions and all other reasonable fees and expenses
related to such Significant Sale (including, without limitation, reasonable
attorneys' fees and closing costs incurred in connection with such Significant
Sale), (iii) deduction of appropriate amounts to be provided by any Company as a
reserve, in accordance with GAAP, against any liabilities retained by any
Company after such Significant Sale, which liabilities are associated with the
asset or assets being sold, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
Significant Sale, and (iv) deduction for the amount of any Debt (other than the
Obligation) secured by the respective asset or assets being sold, which Debt is
required to be repaid as a result of such Significant Sale.
New Lender is defined in Section 2.4(e).
Notes means, at the time of any determination thereof, all outstanding
and unpaid Revolver Notes, Term Loan Notes, Discretionary Revolver Notes,
Discretionary Term Loan Notes, and Unrestricted Borrower Notes.
Obligation means all present and future indebtedness, liabilities, and
obligations, and all renewals and extensions thereof, or any part thereof, now
or hereafter owed to Administrative Agent, any other Agent, any Lender, or any
Affiliate of any Lender by any Loan Party arising from, by virtue of, or
pursuant to any Loan Document, together with all interest accruing thereon,
fees, costs, and expenses (including, without limitation, all attorneys' fees
and expenses incurred in the enforcement or collection thereof) payable under
the Loan Documents; provided that, all references to the "Obligation" in the
Collateral Documents and in
15
Sections 3.12, 3.13, and 3.14, shall, in addition to the foregoing, also include
all present and future indebtedness, liabilities, and obligations (and all
renewals and extensions thereof or any part thereof) now or hereafter owed to
any Lender or any Affiliate of a Lender arising from, by virtue of, or pursuant
to any Financial Hedge relating to the Principal Debt.
Olympus means Olympus Communications, L.P., a Delaware limited
partnership.
Operating Cash Flow means, for the Companies on a combined basis, and
determined in accordance with GAAP, as calculated at any date of determination
with respect to the most recently ended fiscal quarter, the sum (without
duplication and without giving effect to any extraordinary losses or gains
during such period) of (a) net income or deficit from operations during such
period, plus (b) to the extent already deducted in computing such net income,
(i) income tax expense; (ii) Interest Expense during such period, (iii) interest
on Affiliate Debt during such period, (iv) depreciation, amortization, and other
non-cash expense items during such period, in each case adjusted as required to
take into account any minority ownership interest; provided, however, in
determining Operating Cash Flow:
(A) No adjustments for minority interests will be required so long
as the Minority Pledgors have delivered a Minority Pledge
Agreement to Administrative Agent for the benefit of Lenders
(in addition, no adjustments shall be required for the first
60 days after the Closing Date, so long as the Minority Pledge
Agreements from the Minority Pledgors existing on the Closing
Date are delivered to Administrative Agent for the benefit of
Lenders within 60 days after the Closing Date);
(B) In determining Operating Cash Flow, such amount shall be
calculated after giving effect to Acquisitions, divestitures,
Asset Swaps, or any capital contribution of CATV Systems to
any Company (to the extent permitted by the Loan Documents)
during such period as if such transactions had occurred on the
first day of such period, regardless of whether the effect is
positive or negative.
Parent is defined in Section 6.2.
Participant is defined in Section 13.12(e).
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
Permitted Acquisition means:
(a) The Comcast Swap and the Acquisitions of the Cablevision
Cleveland CATV Systems and the Prestige Cable CATV Systems; provided,
however, that such Acquisitions shall not constitute "Permitted
Acquisitions" hereunder unless and until Borrower delivers to
Administrative Agent, a Compliance Certificate, certifying compliance
with the terms and conditions of the Loan Documents, which sets forth
calculations demonstrating pro forma compliance with the financial
covenants in Section 9.28 after giving effect to such Acquisition or
Asset Swap;
(b) Acquisitions and Asset Swaps by any Company, with respect
to which each of the following requirements shall have been satisfied:
(i) as of the closing of any Acquisition or Asset
Swap, the Acquisition or Asset Swap has been approved and
recommended by the board of directors or other applicable
16
governing body of the Person to be acquired or from which such
business is to be acquired;
and
(ii) as of the closing of any Acquisition or Asset
Swap, no Default or Potential Default shall exist or occur as
a result of, and after giving effect to, such Acquisition or
Asset Swap.
Permitted Debt means Debt permitted under Section 9.12 as described in
such Section.
Permitted Liens means Liens permitted under Section 9.13 as described
in such Section.
Person means any individual, entity, or Governmental Authority.
Pledge Agreement means (a) a Pledge Agreement in substantially the form
and upon the terms of Exhibit D-1, executed by any Person pursuant to the
requirements of the Loan Documents; and (b) any amendments, modifications,
supplements, restatements, ratifications, or reaffirmations of any Pledge
Agreement made in accordance with the Loan Documents.
Pole Agreement means any pole attachment agreement or underground
conduit use agreement which was entered into in connection with the operation of
any CATV System.
Pole Rental Lease means any lease under which any Loan Party has the
right to use telephone or utility poles, conduits or trenches for the purpose of
supporting or housing cables of any CATV System owned or operated by any Loan
Party or any of their Subsidiaries.
Potential Default means the occurrence of any event or existence of any
circumstance which, with the giving of notice or lapse of time or both, would
become a Default.
Prestige Cable CATV Systems means the CATV Systems described in that
certain Stock Purchase Agreement dated as of December 6, 1999, among Anverse,
Inc., ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee, and ACC; and that
certain Asset Purchase Agreement dated as of December 6, 1999, between Prestige
Communications of NC, Inc. and ACC.
Prime Rate means the per annum rate of interest established from time
to time by Administrative Agent, as its prime rate, which rate may not be the
lowest rate of interest charged by Administrative Agent to its customers.
Principal Debt means, at the time of any determination thereof, the sum
of the Revolver Principal Debt, the Term Loan Principal Debt, and the
Discretionary Principal Debt.
Pro Forma Debt Service means, on any date of determination, calculated
for the Companies on a combined basis, the sum of (without duplication) (a) Pro
Forma Interest Expense determined as of such date of determination, plus (b)
commitment fees, plus (c) "scheduled principal payments" (including the current
maturities thereof), due on the Total Debt of the Companies for the twelve
months following the date of determination. On any date of determination,
"scheduled principal payments" under this Agreement shall equal the sum of (i)
the aggregate outstanding amount of the Total Revolver Principal Debt plus LC
Exposure, net of the Excess Cash Balance on such date of determination, less the
Total Revolver Commitment that will be in effect at the end of such period
(which amount under this clause (i) shall be deemed to never be less than zero),
and (ii) the amount of the Total Term Principal Debt scheduled to be repaid
pursuant to Section 3.2 or the applicable Supplemental Credit Documents (as
applicable) during such period other than, if applicable, the last scheduled
payment of the Term Loan Facility or any Discretionary Term Loans.
17
Pro Forma Interest Expense means, on any date of determination,
calculated for the Companies on a combined basis, the Interest Expense on the
Total Debt of the Companies for the twelve months following the date of
determination. The calculation of Pro Forma Interest Expense shall be based on
the following: (a) the interest rate used to calculate Interest Expense shall be
equal to the weighted average rate of interest in effect on the last day of the
fiscal quarter immediately preceding the date of determination, (b) the
aggregate amount of Total Revolver Principal Debt existing on the last day of
the fiscal quarter immediately preceding the date of determination after giving
effect to any prepayments required to be made upon reductions in the Revolver
Commitment scheduled to be made during the twelve months following the date of
determination under Section 3.2, and (c) the aggregate amount of Total Term
Principal Debt existing on the last day of the fiscal quarter immediately
preceding the date of determination after giving effect to any prepayments
required to be made during the twelve months following the date of determination
under Section 3.2.
Pro Rata or Pro Rata Part, for each Lender, means on any date of
determination (a) for purposes of sharing any amount or fee payable to any
Lender in respect of a Facility, Subfacility, or Discretionary Loan (as the case
may be) the proportion which the portion of the Principal Debt for the
applicable Facility, Subfacility, or Discretionary Loan owed to such Lender
(whether held directly or through a participation in respect of the LC
Subfacility and determined after giving effect thereto) bears to the Principal
Debt under the applicable Facility, Subfacility, or Discretionary Loan (as the
case may be) owed to all Lenders at the time in question, and (b) for all other
purposes, the proportion which the portion of the Principal Debt owed to such
Lender (whether held directly or through a participation in respect of the LC
Subfacility and determined after giving effect thereto) bears to the Principal
Debt owed to all Lenders at the time in question, or if no Principal Debt is
outstanding, then the proportion that the aggregate of such Lender's Committed
Sums then in effect under the Facilities, Subfacilities, and Discretionary Loans
bears to the Total Commitment then in effect.
Register is defined in Section 13.12(c).
Regulation D means Regulation D of the Board of Governors of the
Federal Reserve System, as amended.
Regulation U means Regulation U of the Board of Governors of the
Federal Reserve System, as amended.
Release means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposal,
deposit, dispersal, migrating, or other movement into the air, ground, or
surface water, or soil.
Representatives means representatives, officers, directors, employees,
attorneys, and agents.
Required Lenders means (a) on any date of determination on and after
the Closing Date and prior to the date of the initial Borrowing Date under the
Loan Documents, those Lenders holding 51% or more of the Total Commitment, (b)
on any date of determination on and after the date of the initial Borrowing Date
under the Loan Documents and prior to the Termination Date for the Revolver
Facility and the Discretionary Revolver Subfacility, those Lenders holding 51%
or more of (i) the sum of the Revolver Commitment plus the Discretionary
Revolver Commitment for all Discretionary Revolver Loans plus (ii) the sum of
the Term Principal Debt and the Discretionary Term Loan Principal Debt under all
Discretionary Term Loans; and (c) on any date of determination on or after the
Termination Date for the Revolver Facility and the Discretionary Revolver
Subfacility, those Lenders holding 51% or more of the sum of Principal Debt plus
(without duplication) the LC Exposure.
Reserve Requirement means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under
18
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) by member banks of the Federal Reserve System
against, in the case of Eurodollar Rate Borrowings, "Eurocurrency liabilities"
(as such term is used in Regulation D). Without limiting the effect of the
foregoing, the Reserve Requirement shall reflect any other reserves required to
be maintained by such member banks with respect to (a) any category of
liabilities which includes deposits by reference to which the Adjusted
Eurodollar Rate is to be determined, or (b) any category of extensions of credit
or other assets which include Eurodollar Rate Borrowings. The Adjusted
Eurodollar Rate shall be adjusted automatically on and as of the effective date
of any change in the Reserve Requirement.
Responsible Officer of any Person means any senior personnel of such
Person as may be duly authorized and designated in writing by such Person to
execute documents, agreements, and instruments on its behalf.
Restricted Borrowers is defined in the preamble to this Agreement.
Restricted Payment means, collectively, (a) the making of any payments
of principal or interest on any Affiliate Debt (other than interest paid in
kind), (b) any loans or advances to, equity contributions to, or redemption of
equity interests in, any Person other than Companies, (c) any Borrowing by or
for account of any Unrestricted Borrower, (d) the retirement or redemption of
any stock or other securities of the Companies, and (e) any dividend or
distribution on or with respect to the assets, stock, or other securities of any
Company other than any dividends or distributions paid to any Company or to any
Minority Pledgor who has executed and delivered a Minority Pledge Agreement to
Administrative Agent; provided that any merger among Restricted Subsidiaries or
of any Restricted Subsidiary into a Restricted Borrower permitted by Section
9.24, shall not be deemed a Restricted Payment.
Restricted Subsidiary means, at any time of determination, all
Subsidiaries of Restricted Borrowers, other than Unrestricted Subsidiaries.
Revolver Commitment means an amount (subject to reduction or
cancellation as herein provided) equal to $1,500,000,000.
Revolver Commitment Usage means, at the time of any determination
thereof, the sum of (a) the aggregate Revolver Principal Debt plus, without
duplication, (b) the LC Exposure plus, without duplication, (c) except as
provided in Section 5.3, the aggregate Designated Amounts for all Unrestricted
Borrowers then in effect.
Revolver Facility means the credit facility as described in and subject
to the limitations set forth in Section 2.1 hereof, including the LC
Subfacility.
Revolver Lenders means, on any date of determination, any Lender that
has a Committed Sum under the Revolver Facility.
Revolver Note means a promissory note in substantially the form of
Exhibit A-1, and all renewals and extensions of all or any part thereof.
Revolver Principal Debt means, on any date of determination, the
aggregate unpaid principal balance of all Borrowings under the Revolver
Facility, together with the aggregate unpaid reimbursement obligations of
Borrowers in respect of drawings under any LC.
Rigas Family means ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, or any of their respective spouses, estates, or
lineal descendants, or any trust created for the direct and
19
sole benefit of any such Persons, or while and to the extent they are serving in
such capacity, the executors, administrators, or personal representatives of
such Persons.
Rights means rights, remedies, powers, privileges, and benefits.
Schedule means, unless specified otherwise, a schedule attached to this
Agreement, as the same may be supplemented and modified from time to time in
accordance with the terms of the Loan Documents.
Significant Sale means any sale, lease, transfer, or other disposition
of any CATV System by any Company to any other Person (other than any sale,
lease, transfer, or other disposition contemplated by Section 9.22(f) or (g)).
Single-Employer Plan means an employee pension benefit plan covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code and established or maintained by any Loan Party, Restricted
Subsidiary thereof, or ERISA Affiliate of any Loan Party, but not including any
Multiemployer Plan.
SPC is defined in Section 13.12(h).
Solvent means, as to a Person, that (a) the aggregate fair market value
of such Person's assets exceeds its liabilities (whether contingent,
subordinated, unmatured, unliquidated, or otherwise), (b) such Person has
sufficient cash flow to enable it to pay its Debts as they mature, and (c) such
Person does not have unreasonably small capital to conduct such Person's
businesses.
Subfacilities means, collectively, the LC Subfacility and the
Discretionary Loan Subfacilities; Subfacility means, any of the LC Subfacility
or any Discretionary Loan Subfacility.
Subordinated Debt means any Debt of any Company subordinated to the
Obligation on terms (including, without limitation, subordination terms)
reasonably acceptable to Administrative Agent and its counsel.
Subsidiary of any Person means (a) any entity of which an aggregate of
more than 50% (in number of votes) of the stock, membership interests, or other
equity interests is owned of record or beneficially, directly or indirectly, by
such Person, or (b) any partnership (limited or general) of which such Person
shall at any time be the controlling general partner determined in accordance
with GAAP or own more than fifty percent (50%) of the issued and outstanding
partnership interests.
Supermajority Lenders means (a) on any date of determination on and
after the Closing Date and prior to the date of the initial Borrowing Date under
the Loan Documents, those Lenders holding 66.67% or more of the Total Commitment
(but in no event less than 51% of the Revolver Commitment and 51% of the Term
Loan Commitment), (b) on any date of determination on and after the date of the
initial Borrowing Date under the Loan Documents and prior to the Termination
Date for the Revolver Facility and the Discretionary Revolver Subfacility, those
Lenders holding 66.67% or more of (i) the sum of the Revolver Commitment plus
the Discretionary Revolver Commitment for all Discretionary Revolver Loans plus
(ii) the sum of the Term Principal Debt and the Discretionary Term Loan
Principal Debt under all Discretionary Term Loans (but in no event less than 51%
of the sum of the Revolver Commitment plus the Discretionary Revolver Commitment
for all Discretionary Revolver Loans and 51% of the sum of the Term Principal
Debt and the Discretionary Term Loan Principal Debt under all Discretionary Term
Loans); and (c) on any date of determination on or after the Termination Date
for the Revolver Facility and the Discretionary Revolver Subfacility, those
Lenders holding 66.67% or more of the sum of Principal Debt plus (without
duplication) the LC Exposure (but in no event less than 51% of the Total
Revolver Principal Debt and 51% of the Total Term Principal Debt).
20
Supplemental Credit Documents is defined in Section 2.4(f).
Syndication Agent means TD Securities (USA) Inc. and its permitted
successors or assigns as "Syndication Agent" under the Loan Documents.
Taxes means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon such Person, its income, or any of its
properties, franchises, or assets.
Termination Date means (a) for purposes of the Revolver Facility and
the Discretionary Revolver Facility, the earlier of (i) March 31, 2009, and (ii)
the effective date of any other termination, cancellation, or acceleration of
all commitments to lend under the Revolver Facility; (b) for purposes of the
Term Loan Facility, the earlier of (x) June 30, 2009, and (y) the effective date
of any other termination, cancellation, or acceleration of the Term Loan
Facility and (c) for purposes of each Discretionary Term Loan, the earlier of
(x) the date agreed upon by the Discretionary Lenders for such Discretionary
Term Loan in the related Supplemental Credit Documents (which shall be no
earlier than the Termination Date for the Term Loan Facility), and (y) the
effective date of any other termination, cancellation, or acceleration of such
Discretionary Term Loan.
Term Loan Commitment means an amount (subject to reduction or
cancellation as herein provided) equal to $750,000,000.
Term Loan Facility means the credit facility as described in and
subject to the limitations set forth in Section 2.2 hereof.
Term Loan Lenders means, on any date of determination, any Lender that
has a Committed Sum under the Term Loan Facility or that is owed any Term Loan
Principal Debt.
Term Loan Note means a promissory note substantially in the form of
Exhibit A-2, and all renewals and extensions of all or any part thereof.
Term Loan Principal Debt means, on any date of determination, the
aggregate unpaid principal balance of all Borrowings under the Term Loan
Facility.
Total Commitment means, on any date of determination, the sum of all
Committed Sums then in effect for all Lenders in respect of the Revolver
Facility, the Term Loan Facility and the Discretionary Loan Subfacility.
Total Debt means (without duplication), as of any date of
determination, the sum of (a) the Debt of the Companies determined on a combined
basis, including without limitation, the outstanding amount of all Borrowings of
Unrestricted Borrowers, less (b) the Excess Cash Balance on the date of
determination, less (c) Debt among Companies and Affiliate Debt.
Total Revolver Commitment means, on any date of determination, the sum
of the Revolver Commitment and the Discretionary Revolver Commitment for all
Discretionary Revolver Loans.
Total Revolver Principal Debt means, on any date of determination, the
sum of the Revolver Principal Debt and the Discretionary Revolver Principal Debt
under all Discretionary Revolver Loans.
Total Term Principal Debt means, on any date of determination, the sum
of the Term Loan Principal Debt and the Discretionary Term Loan Principal Debt
under all Discretionary Term Loans.
21
Type means any type of Borrowing determined with respect to the
interest option applicable thereto.
Unrestricted Borrower means any Subsidiary of ACC or other Person
controlled by the Rigas Family with business in the communications industry or
reasonably related thereto designated by Restricted Borrowers in accordance with
Section 2.1 (a) that enters into supplemental agreements to the Loan Documents
to become a Borrower under this Agreement that are acceptable to Administrative
Agent in its reasonable discretion and (b) who, prior to or concurrently with
becoming an Unrestricted Borrower, satisfies all conditions and requirements set
forth in Section 7.2 and on Schedule 7.2; and, for purposes of this definition
only, "controlled by" means possession, directly or indirectly, of the power to
direct or cause the direction of management or policies (whether through
ownership of voting securities, by contract, or otherwise).
Unrestricted Borrower Note means a note substantially in the form of
Exhibit A-5, and all renewals and extensions of all or any part thereof.
Unrestricted Subsidiary means, at any time of determination, any (a)
Subsidiary of any Restricted Borrower that shall have been designated as an
"Unrestricted Subsidiary" by the Board of Directors of such Restricted Borrower,
(b) Subsidiary of Unrestricted Borrowers, and (c) Subsidiary of an Unrestricted
Subsidiary; provided that, the Boards of Directors of Restricted Borrowers may
make such designation of an "Unrestricted Subsidiary" only if (A) immediately
before and after giving pro forma effect to such designation, no Default or
Potential Default then exists or arises as a result thereof; (B) such designated
Unrestricted Subsidiary does not own any capital stock of any Company unless the
Unrestricted Subsidiary executes and delivers a Minority Pledge Agreement to
Administrative Agent; (C) such designated Unrestricted Subsidiary does not hold
a Lien on any assets of any Company; (D) after giving pro forma effect to such
designation, any investment of any Company in such Unrestricted Subsidiary would
constitute an investment permitted under Section 9.20; (E) no Company shall have
issued any guaranty or credit support or be subject to any recourse with respect
to the obligations of the designated Unrestricted Subsidiary; and (F) on and
after the date such Subsidiary is designated as an Unrestricted Subsidiary, any
Debt owed to such designated Unrestricted Subsidiary by any Company shall be
Permitted Debt.
Voting Stock means securities (as such term is defined in Section 2(1)
of the Securities Act of 1933, as amended) of any class or classes, the holders
of which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
Weighted Average Life to Maturity means, relative to any Debt at any
date, the number of years (rounded to the nearest one-twelfth) obtained by
dividing (a) the then outstanding principal amount of such Debt into (b) the
total of the product obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity, or other required payments
of principal, including payment of final maturity, in respect thereof, by (ii)
the number of years (rounded to the nearest one-twelfth) that will elapse
between such date and the making of such payment.
Wholly-owned when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (except
shares required as directors' qualifying shares) shall be owned by Borrowers or
one or more of its Wholly-owned Subsidiaries.
1.2 Number and Gender of Words; Other References. Unless otherwise
specified in the Loan Documents, (a) where appropriate, the singular includes
the plural and vice versa, and words of any gender include each other gender,
(b) heading and caption references may not be construed in interpreting
provisions, (c) monetary references are to currency of the United States of
America, (d) section, paragraph, annex, schedule, exhibit, and similar
references are to the particular Loan Document in which they are used, (e)
references to "telecopy," "facsimile," "fax," or similar terms are to facsimile
or telecopy transmissions, (f) references to "including" mean including without
limiting the generality of any description preceding that
22
word, (g) the rule of construction that references to general items that follow
references to specific items are limited to the same type or character of those
specific items is not applicable in the Loan Documents, (h) references to any
Person include that Person's heirs, personal representatives, successors,
trustees, receivers, and permitted assigns, (i) references to any Law include
every amendment or supplement to it, rule and regulation adopted under it, and
successor or replacement for it, and (j) references to any Loan Document or
other document include every renewal and extension of it, amendment and
supplement to it, and replacement or substitution for it.
1.3 Accounting Principles. Except as otherwise expressly provided
herein, all accounting and financial terms used in the Loan Documents and the
compliance with each financial covenant therein shall be determined in
accordance with GAAP, and, all accounting principles shall be applied on a
consistent basis so that the accounting principles in a current period are
comparable in all material respects to those applied during the preceding
comparable period. If Restricted Borrowers or Required Lenders determine that a
change in GAAP from that in effect on the date hereof has altered the treatment
of certain financial data to its detriment under this Agreement, such party may,
by written notice to the others and Administrative Agent not later than ten (10)
days after the effective date of such change in GAAP, request renegotiation of
the financial covenants affected by such change. If Restricted Borrowers and
Required Lenders have not agreed on revised covenants within thirty (30) days
after delivery of such notice, then, for purposes of this Agreement, GAAP will
mean generally accepted accounting principles on the date just prior to the date
on which the change that gave rise to the renegotiation occurred.
SECTION 2 BORROWING PROVISIONS.
2.1 Revolver Facility.
(a) Each Revolver Lender severally, but not jointly, agrees to
lend to the Restricted Borrowers, and to the extent designated pursuant
to the terms hereof, Unrestricted Borrowers, such Revolver Lender's
Commitment Percentage of one or more Borrowings under the Revolver
Facility not to exceed such Revolver Lender's Committed Sum under the
Revolver Facility, which Borrowings may be repaid and reborrowed from
time to time in accordance with the terms and provisions of the Loan
Documents; provided that, (a) each such Borrowing must occur on a
Business Day and no later than the Business Day immediately preceding
the Termination Date for the Revolver Facility; (b) each such Borrowing
shall be in an amount not less than $10,000,000 or a greater integral
multiple of $500,000 if a Eurodollar Rate Borrowing, or $5,000,000 or a
greater integral multiple of $100,000 if a Base Rate Borrowing; (c) on
any date of determination, after giving effect to the requested
Borrowing, the Revolver Commitment Usage shall never exceed the
Revolver Commitment; (d) on any date of determination, after giving
effect to the requested Borrowing, each Revolver Lender's Commitment
Percentage (under the Revolver Facility) of the Revolver Commitment
Usage shall not exceed such Lender's Committed Sum; (e) on any date of
determination, after giving effect to the requested Borrowing, the
aggregate amount of Principal Debt outstanding from all Borrowings made
to all Unrestricted Borrowers shall not exceed $500,000,000; and (f) on
any date of determination, after giving effect to the requested
Borrowing, the aggregate amount of Principal Debt outstanding from all
Borrowings made to each Unrestricted Borrower shall not exceed the
Designated Amount for such Unrestricted Borrower.
(b) Restricted Borrowers shall have the right to designate
Unrestricted Borrowers by delivering to Administrative Agent a
Designation Request, in which Restricted Borrowers designate a Person
as an Unrestricted Borrower, certify that such Person satisfies the
conditions precedent set forth in Section 7.2, and indicates the amount
of the Revolver Commitment that will be made available to such
Unrestricted Borrower (the "Designated Amount"), which Designated
Amount, when
23
aggregated with all other Designated Amounts for all Unrestricted
Borrowers, shall never exceed $500,000,000; provided that there shall
be no more than five Unrestricted Borrowers at any one time.
2.2 Term Loan Facility. Each Term Loan Lender severally, but not
jointly, agrees to lend to the Restricted Borrowers in a single Borrowing on the
Closing Date such Term Loan Lender's Commitment Percentage of the Term Loan
Commitment. If all or any portion of the Term Loan Principal Debt is paid or
prepaid, then the amount so repaid may not be reborrowed.
2.3 LC Subfacility.
(a) Conditions. Subject to the terms and conditions of this
Agreement and applicable Law, each Issuing Lender agrees to issue LCs
upon Restricted Borrowers' application therefor (denominated in
Dollars) for the benefit of any Loan Party by delivering to the
applicable Issuing Lender and the Administrative Agent a properly
completed LC Request and an LC Agreement with respect thereto no later
than 11:00 a.m., Dallas, Texas time three Business Days before such LC
is to be issued; provided that, (i) on any date of determination and
after giving effect to any LC to be issued on such date, the Revolver
Commitment Usage shall never exceed the Revolver Commitment then in
effect, (ii) on any date of determination and after giving effect to
any LC to be issued on such date, the LC Exposure shall never exceed
$500,000,000 (as such commitment under the LC Subfacility may be
reduced or canceled as herein provided), (iii) at the time of issuance
of such LC, no Default or Potential Default shall have occurred and be
continuing, and (iv) each LC must expire no later than the earlier of
the 5th day prior to the Termination Date for the Revolver Facility or
one year from its issuance; provided that, any LC may provide for
automatic renewal for successive periods of up to one year (but no
renewal period may extend beyond the 5th day prior to the Termination
Date for the Revolver Facility) unless the applicable Issuing Lender
has given prior notice to the applicable beneficiary of its election
not to extend such LC.
(b) Participations. Immediately upon the issuance by the
applicable Issuing Lender of any LC, the applicable Issuing Lender
shall be deemed to have sold and transferred to each other Revolver
Lender, and each other such Revolver Lender shall be deemed irrevocably
and unconditionally to have purchased and received from the applicable
Issuing Lender, without recourse or warranty, an undivided interest and
participation, to the extent of such Revolver Lender's Commitment
Percentage (based upon the Revolver Facility), in such LC, the LC
Agreement related thereto, and all Rights of the applicable Issuing
Lender in respect thereof (other than Rights to receive certain fees
provided for in Section 5.4(b)).
(c) Reimbursement Obligation. To induce the applicable Issuing
Lender to issue and maintain LCs and to induce Revolver Lenders to
participate in issued LCs, Restricted Borrowers agree to pay or
reimburse the applicable Issuing Lender (i) on the date on which
Issuing Lender makes any payments under any LC, an amount equal to the
amount of such payment by the applicable Issuing Lender under such LC
and (ii) promptly, upon demand, the amount of any fees (in addition to
the fees described in Section 5) which the applicable Issuing Lender
customarily charges to a Person similarly situated in the ordinary
course of its business for amending LC Agreements, for honoring
drawings under letters of credit, and taking similar action in
connection with letters of credit. If Restricted Borrowers have not
reimbursed the applicable Issuing Lender for any payments made or to be
paid upon demand therefor by the applicable Issuing Lender, the
applicable Issuing Lender shall promptly notify Administrative Agent,
who is hereby irrevocably authorized to fund such reimbursement
obligations as a Base Rate Borrowing under the Revolver Facility to the
extent of availability under the Revolver Facility and if the
conditions precedent in this Agreement for such a Borrowing (other than
any notice requirements or minimum funding amounts) have, to
Administrative Agent's knowledge, been satisfied. The proceeds of such
Borrowing under the Revolver Facility shall be
24
advanced directly to the applicable Issuing Lender in payment of
Restricted Borrowers' unpaid reimbursement obligation. If for any
reason, funds cannot be advanced under the Revolver Facility, then
Restricted Borrowers' reimbursement obligation shall continue to be due
and payable. Restricted Borrowers' obligations under this Section
2.3(c) shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim, or defense
to payment which any Restricted Borrower may have at any time against
Administrative Agent or any other Person. From the date that the
applicable Issuing Lender makes a payment under an LC until the related
reimbursement obligation of the Restricted Borrowers is paid or funded
by proceeds of a Borrowing, unpaid reimbursement obligations shall
accrue interest at the Default Rate, which accrued interest shall be
payable on demand.
(d) General. The applicable Issuing Lender shall promptly
notify the Restricted Borrowers and Administrative Agent of the date
and amount of any demand for payment or drawing under any LC (but
failure to give any such notice shall not affect Restricted Borrowers'
obligations under this Agreement). The applicable Issuing Lender shall
pay the requested amount upon demand for payment or drawing unless such
demand on its face does not comply with the terms of the applicable LC.
When making payment, the applicable Issuing Lender may disregard (i)
any default or potential default that exists under any other agreement
and (ii) the obligations under any other agreement that have or have
not been performed by the beneficiary or any other Person (and the
applicable Issuing Lender shall not be liable for any obligation of any
Person thereunder). Restricted Borrowers' reimbursement obligations to
the applicable Issuing Lender and Revolver Lenders, and each Revolver
Lender's obligations to the applicable Issuing Lender, under this
Section 2.3 are absolute and unconditional irrespective of, and the
applicable Issuing Lender is not responsible for, (i) the validity,
enforceability, sufficiency, accuracy, or genuineness of documents or
endorsements which appear appropriate on their face (even if they are
in any respect invalid, unenforceable, insufficient, inaccurate,
fraudulent, or forged), (ii) any dispute by any Loan Party with or any
Loan Party's claims, setoffs, defenses, counterclaims, or other Rights
against the applicable Issuing Lender, Administrative Agent, any
Revolver Lender, or any other Person, or (iii) the occurrence of any
Potential Default or Default. However, nothing in this Section 2.3
constitutes a waiver of the Rights of any Restricted Borrower or any
Revolver Lender to assert any claim or defense based upon the gross
negligence or willful misconduct of the applicable Issuing Lender. To
the extent any Revolver Lender has funded its ratable share of any
payment or drawing under an LC, then the applicable Issuing Lender
shall promptly distribute reimbursement payments received from any
Restricted Borrower to such Revolver Lender according to its ratable
share. In the event any payment by any Restricted Borrower received by
the applicable Issuing Lender with respect to an LC and distributed to
Revolver Lenders on account of their participations therein is
thereafter set aside, avoided, or recovered from the applicable Issuing
Lender in connection with any receivership, liquidation, or bankruptcy
proceeding, each Revolver Lender which received such distribution
shall, upon demand by the applicable Issuing Lender, contribute such
Revolver Lender's ratable portion of the amount set aside, avoided, or
recovered, together with interest at the rate required to be paid by
the applicable Issuing Lender upon the amount required to be repaid by
it.
(e) Obligation of Lenders. If Restricted Borrowers fail to
reimburse the applicable Issuing Lender as provided in Section 2.3(c)
upon demand therefor by the applicable Issuing Lender and funds cannot
be advanced under the Revolver Facility to satisfy the reimbursement
obligations, then the applicable Issuing Lender shall promptly notify
each Revolver Lender of Restricted Borrowers' failure, of the date and
amount of the drawing paid, and of such Revolver Lender's Commitment
Percentage (based upon the Revolver Facility) thereof. Each Revolver
Lender shall promptly and unconditionally fund its participation
interest in such unreimbursed drawing by making available to the
applicable Issuing Lender in immediately available funds such Revolver
Lender's Commitment Percentage (based upon the Revolver Facility) of
the unreimbursed drawing. Funds are
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due and payable to the applicable Issuing Lender on or before the close
of business on the Business Day when the applicable Issuing Lender
gives notice to each Revolver Lender of Restricted Borrowers'
reimbursement failure (if given prior to 11:00 a.m., Dallas, Texas
time) or on the next succeeding Business Day (if notice was given after
11:00 a.m., Dallas, Texas time). All amounts payable by any Revolver
Lender shall accrue interest at the Federal Funds Rate from the day the
applicable payment or drawing is paid by the applicable Issuing Lender
to (but not including) the date the amount is paid by the Revolver
Lender to the applicable Issuing Lender.
(f) Duties of Issuing Lender. Each Issuing Lender agrees with
each Revolver Lender that it will exercise and give the same care and
attention to each LC as it gives to its other letters of credit. Each
Issuing Lender's sole liability to each Revolver Lender with respect to
such LCs (other than liability arising from the gross negligence or
willful misconduct of such Issuing Lender) shall be to distribute
promptly to each Revolver Lender who has acquired a participating
interest therein such Revolver Lender's ratable portion of any payments
made to such Issuing Lender by Restricted Borrowers pursuant to Section
2.3(c). Each Revolver Lender and Restricted Borrower agree that, in
paying any draw under any LC, no Issuing Lender shall have any
responsibility to obtain any document (other than any documents
required by the respective LC) or to ascertain or inquire as to any
document's validity, enforceability, sufficiency, accuracy, or
genuineness or the authority of any Person delivering any such
document. Issuing Lenders, Revolver Lenders, and their respective
Representatives shall not be liable to any other Lender or any Loan
Party for any LCs use or for any beneficiary's acts or omissions. Any
action, inaction, error, delay, or omission taken or suffered by any
Issuing Lender or any of its Representatives under or in connection
with any LC, applicable demands for payment or drawing, or the
transmission, dispatch, or delivery of any related message or advice,
if in good faith and in conformity with such Laws as such Issuing
Lender or any of its Representatives may deem applicable and in
accordance with the standards of care specified in the Uniform Customs
and Practice for Documentary Credits issued by the International
Chamber of Commerce, as in effect on the date of issue of such LC,
shall be binding upon the Loan Parties and Lenders and shall not place
any Issuing Lender or any of its Representatives under any resulting
liability to any Loan Party or any Lender.
(g) Cash Collateral. On the Termination Date for the Revolver
Facility, or on any date that the LC Exposure exceeds the
then-effective commitment under the LC Subfacility, or upon any demand
by Administrative Agent or any Issuing Lender upon the occurrence and
during the continuance of a Default, Restricted Borrowers shall provide
to Administrative Agent, for the benefit of Revolver Lenders, (i) cash
collateral in Dollars in an amount equal to 100% of the LC Exposure
existing on such date, such cash and all interest thereon shall
constitute cash collateral for all LCs, and (ii) such additional cash
collateral as Administrative Agent or any Issuing Lender may from time
to time require, so that the cash collateral amount shall at all times
equal or exceed 100% the LC Exposure. Any cash collateral deposited
under this clause (g), and all interest earned thereon, shall be held
by Administrative Agent and invested and reinvested at the expense and
the written direction of Restricted Borrowers, in U.S. Treasury Bills
with maturities of no more than ninety (90) days from the date of
investment.
(h) Indemnification. Restricted Borrowers shall protect,
indemnify, pay, and save each Issuing Lender, Administrative Agent, and
each Lender harmless from and against any and all claims, demands,
liabilities, damages, or losses of, or owed to third parties (including
any of the foregoing arising from the negligence of any Issuing Lender,
Administrative Agent, Lenders, or their respective representatives),
and any and all related costs, charges, and expenses (including
reasonable attorneys' fees), which any Issuing Lender, Administrative
Agent, or any Lender may incur or be subject to as a consequence,
direct or indirect, of
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(A) the issuance of any LC, (B) any dispute about an LC, or (C) the
failure of any Issuing Lender to honor a demand for payment or drawing
under such LC as a result of any act or omission (whether right or
wrong) of any present or future Governmental Authority. However, no
Person is entitled to indemnity hereunder for its own gross negligence
or willful misconduct. The foregoing indemnity provisions shall survive
the satisfaction and payment of the Obligation and termination of this
Agreement.
(i) LC Agreements. Although referenced in any LC, terms of any
particular agreement or other obligation to the beneficiary are not
incorporated into this Agreement in any manner. The fees and other
amounts payable with respect to each LC are as provided in this
Agreement, Restricted Borrowers' reimbursement obligation with respect
to payments or drawings under any LC shall be deemed part of the
Obligation, and in the event of any conflict between the terms of this
Agreement and any LC Agreement, the terms of this Agreement shall be
controlling.
2.4 Discretionary Facility.
(a) Discretionary Facility and Discretionary Loan
Subfacilities. So long as no Default or Potential Default under the
Loan Documents then exists or arises as a result of any Discretionary
Loan (or commitment therefor or Borrowing thereunder), then subject to
the terms and conditions of this Section 2.4, on and after the Closing
Date (but prior to June 30, 2003, for Discretionary Revolver Loans),
Restricted Borrowers may request from time to time, that Lenders commit
to make one or more Discretionary Loans (in an amount of not less than
$100,000,000 or a greater integral multiple of $10,000,000 or such
lesser amount as may be available under the Maximum Discretionary
Commitment) under one or more of the following Discretionary Loan
Subfacilities:
(i) Discretionary Revolver Subfacility pursuant to
which one or more Discretionary Revolver Loans (and Borrowings
thereunder) may be made by one or more Discretionary Lenders
committing to such Discretionary Revolver Loan, so long as (A)
one or more Discretionary Lenders commit to each such
Discretionary Revolver Loan in accordance with the procedures
set forth in Sections 2.4(c) and 2.4(d) hereof; (B) on the
date commitments for each such Discretionary Revolver Loan are
effective and on each Borrowing Date thereunder, (x) the sum
of the aggregate Committed Sums of all Discretionary Lenders
for all other Discretionary Revolver Loans and the aggregate
Discretionary Term Loan Principal Debt (or unfunded Committed
Sums for any Discretionary Term Loan) under all Discretionary
Term Loans does not exceed (y) the Maximum Discretionary
Commitment; (C) each Discretionary Revolver Loan shall
terminate on the Termination Date for the Revolver Facility;
(D) the interest rates for Borrowings under each Discretionary
Revolver Loan shall be identical to the applicable interest
rates for Borrowings under the Revolver Facility; and (E)
Borrowings under each Discretionary Revolver Loan shall be
made, prepaid, and repaid on identical terms as Borrowings
under the Revolver Facility.
(ii) Discretionary Term Loan Subfacility pursuant to
which one or more Discretionary Term Loans (and Borrowings
thereunder) may be made by one or more Discretionary Lenders
committing to such Discretionary Term Loan, so long as (A) one
or more Discretionary Lenders commit to each such
Discretionary Term Loan in accordance with the procedures set
forth in Sections 2.4(c) and 2.4(d) hereof; (B) on the date
commitments for each such Discretionary Term Loan are
effective and on each Borrowing Date thereunder, (x) the sum
of the aggregate Committed Sums of all Discretionary Lenders
for all Discretionary Revolver Loans and the aggregate
Discretionary Term Loan Principal Debt (or unfunded Committed
Sums for any Discretionary Term Loan) under all Discretionary
Term
27
Loans does not exceed (y) the Maximum Discretionary
Commitment; (C) such Discretionary Term Loan shall not
terminate on a date earlier than the Termination Date for the
Term Loan Facility and shall terminate on the date specified
in the applicable Supplemental Credit Documents; (D) the
interest rates for Borrowings under each Discretionary Term
Loan shall be Eurodollar Rate Borrowings or Base Rate
Borrowings with an Applicable Margin to be specified in the
Supplemental Credit Documents for such Discretionary Term
Loan; (E) Borrowings under each Discretionary Term Loan shall
be made and prepaid on terms no more restrictive than
Borrowings under the Term Loan Facility; and (F) Borrowings
under each Discretionary Term Loan shall be amortized in
accordance with the amortization schedule specified in the
applicable Supplemental Credit Documents; provided that the
scheduled amortization of any Discretionary Term Loan
Principal Debt under any Discretionary Term Loan must provide
for a Weighted Average Life to Maturity for such Discretionary
Term Loan that is equal to or longer than the Weighted Average
Life to Maturity for the Term Loan Facility (determined as of
the date such Discretionary Term Loan is advanced).
No Lender shall be obligated to consent, to commit, or to agree to
commit, to any request for Discretionary Loans, and the consent by any
Lender to such request shall not be deemed to be a commitment to lend
under the Discretionary Facility, which commitment shall only be made
and evidenced in accordance with the procedures set forth in Section
2.4(d).
(b) Purpose of Borrowings under Discretionary Facility. The
proceeds of each Borrowing under the Discretionary Facility may only be
used by Borrowers for the purposes of: (i) financing in whole or in
part Acquisitions, and (ii) financing working capital or general
limited liability company, partnership, and corporate purposes of the
Loan Parties.
(c) Discretionary Loan Requests. So long as no Default or
Potential Default under the Loan Documents then exists or arises as a
result of any Discretionary Loan (or commitment therefor or Borrowing
thereunder), Restricted Borrowers may request from time to time on and
after the Closing Date (but prior to June 30, 2003, for Discretionary
Revolver Loans), subject to the other terms and conditions hereof, that
Lenders commit to make Borrowings to Borrowers under one or more
discretionary loans (each, a "Discretionary Loan"), by giving written
notice thereof to Administrative Agent (a "Discretionary Loan
Request"), (i) specifying the Discretionary Loan Subfacility under
which such Discretionary Loan is requested; (ii) specifying the amount
of the requested Discretionary Loan under the Discretionary Facility
(which amount shall be no less than $100,000,000 or a greater integral
multiple of $10,000,000 or such lesser amount as may be available under
the Maximum Discretionary Commitment); and (iii) designating the date
on which the proposed Discretionary Loan is to be effective. Upon
receipt of any such Discretionary Loan Request and such other
information as Administrative Agent shall reasonably request in
connection therewith, Administrative Agent shall promptly notify the
Lenders of such Discretionary Loan Request and shall request
commitments from Lenders with respect thereto (a "Commitment Request"),
which Commitment Request shall be made within 10 Business Days after
receipt of all such information by Administrative Agent. No Lender
shall be obligated to commit pursuant to any Commitment Request.
(d) Discretionary Loan Commitments. Together with each
Discretionary Loan Request, Restricted Borrowers shall deliver to
Administrative Agent, with sufficient copies for each Lender, such
additional information as Administrative Agent or any Lender shall
request. Within thirty (30) calendar days after receipt of a Commitment
Request (or such lesser period of time as set forth in such Commitment
Request, but in no event less than 5 calendar days), each Lender
interested in making a commitment to lend with respect to the
Commitment Request shall notify Administrative Agent and Restricted
Borrowers of its intent to so commit and the maximum amount of its
proposed commitment to lend (such notice being a "Commitment Notice").
Thereafter, after consultation with Restricted
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Borrowers, Administrative Agent shall advise each Lender submitting a
Commitment Notice of the allocated amount of such Lender's
Discretionary Commitment for the related Discretionary Loan and
designate the date upon which such Discretionary Loan shall be
effective (the "Discretionary Loan Effective Date"); provided, however,
that the Discretionary Loan Effective Date shall be on or prior to June
30, 2003 (for Discretionary Revolver Loans).
(e) Additional Discretionary Lenders. If the aggregate amount
of the Discretionary Commitments for any requested Discretionary Loan
received from the Lenders does not equal or exceed the amount requested
in the Commitment Request for such Discretionary Loan, then Restricted
Borrowers shall have the Right to add one or more financial
institutions (so long as such financial institutions qualify as
Eligible Assignees) as Lenders (as used in this Section 2.4, a "New
Lender"). Any addition of a New Lender must be effected by an amendment
that is executed in accordance with Section 13.10 by Restricted
Borrowers, Administrative Agent, and such New Lender who has committed
to a Discretionary Commitment for the requested Discretionary Loan.
Upon the execution of such amendment, Schedule 2.1 shall be revised to
reflect the addition of each New Lender. Each New Lender providing a
Discretionary Commitment for any requested Discretionary Loan shall be
a "Discretionary Lender" and a "Lender" hereunder, entitled to the
Rights and benefits, and subject to the duties, of an Discretionary
Lender and a Lender under the Loan Documents.
(f) Supplemental Credit Documents. Each Discretionary Loan (i)
will be subject to the terms and conditions of this Agreement and (ii)
will be secured and guaranteed by the Collateral Documents and the
Guaranties. The Discretionary Commitment of each Discretionary Lender
with respect to each Discretionary Loan will be subject, among other
things, to (A) obtaining agreement with Restricted Borrowers as to the
fronting fees or other applicable fees payable in respect of such
Discretionary Loan, (B) to the extent any New Lenders are party to such
Discretionary Loan, execution and delivery of all necessary amendments
referred to in Section 2.4(e), and (C) the execution and delivery by
the Loan Parties and each Discretionary Lender party to the respective
Discretionary Loan, as appropriate, of all documents reasonably
requested by the applicable Discretionary Lenders to evidence and
effect the applicable Discretionary Loan, including, without
limitation, a supplement to this Agreement memorializing, among other
things, the amount of the Discretionary Loan, the Discretionary
Lenders, the respective Discretionary Commitments of such Discretionary
Lenders, the Discretionary Loan Effective Date for such Discretionary
Loan, and solely with respect to each Discretionary Term Loan, the
scheduled principal amortization, the applicable interest rates, and
the applicable Termination Date for such Discretionary Term Loan
(collectively, the "Supplemental Credit Documents"), which Supplemental
Credit Documents shall be accepted and acknowledged by Administrative
Agent.
(g) Discretionary Loans and Borrowings. With respect to each
Discretionary Loan and subject to the terms and conditions of the Loan
Documents and the applicable Supplemental Credit Documents for such
Discretionary Loan, each Discretionary Lender holding a Discretionary
Commitment for the applicable Discretionary Loan, severally, but not
jointly, agrees to lend to Borrowers such Discretionary Lender's
Commitment Percentage of one or more Borrowings under such
Discretionary Loan not to exceed such Discretionary Lender's Committed
Sum for the applicable Discretionary Loan; provided that, (a) each such
Borrowing must occur on a Business Day and no later than the Business
Day immediately preceding the Termination Date for the applicable
Discretionary Loan; (b) on any date of determination, the aggregate
Borrowings advanced by any Discretionary Lender under the applicable
Discretionary Loan shall never exceed such Discretionary Lender's
Discretionary Commitment for such Discretionary Loan; and (c) on any
date of determination, the aggregate Borrowings advanced under this
Agreement to all Unrestricted Borrowers shall never exceed
$500,000,000. Borrowings under each Discretionary Loan shall be made in
29
accordance with the procedures set forth in Section 2.6 and shall be
subject to all terms and conditions of the Loan Documents including,
without limitation, Section 7.3.
2.5 Terminations or Reductions of Commitments.
(a) Voluntary Commitment Reduction. Without premium or
penalty, and upon giving not less than three Business Days prior
written and irrevocable notice to Administrative Agent, Restricted
Borrowers may terminate in whole or in part the unused portion of the
Total Revolver Commitment or the commitment under the LC Subfacility;
provided that: (i) each partial termination of the Total Revolver
Commitment shall be in an amount of not less than $5,000,000 or a
greater integral multiple of $1,000,000; each partial termination of
the commitment under the LC Subfacility shall be in an amount of not
less than $1,000,000 or a greater integral multiple of $250,000; (ii)
on any date of determination, the amount of the Revolver Commitment may
not be reduced below the Revolver Commitment Usage; the amount of any
Discretionary Revolver Commitment for any Discretionary Revolver Loan
may not be reduced below the Discretionary Revolver Principal Debt for
such Discretionary Revolver Loan; and the commitment under the LC
Subfacility shall not be reduced below the LC Exposure; and (iii) each
reduction of the Total Revolver Commitment shall be allocated ratably
among the Revolver Commitment and the Discretionary Revolver Commitment
under all Discretionary Revolver Loans (for purposes hereof, "ratably"
shall mean the proportion that the Revolver Commitment or the
Discretionary Revolver Commitment under each Discretionary Revolver
Loan bears to the Total Revolver Commitment). Concurrently with any
reduction in any Discretionary Revolver Commitment for any
Discretionary Revolver Loan, the Maximum Discretionary Commitment shall
be reduced by a like amount. At the time of any commitment termination
under this Section 2.5, Restricted Borrowers shall pay to
Administrative Agent, for the account of each Revolver Lender or each
Discretionary Revolver Lender, as applicable, any amounts that may then
be due under Section 3.3(d), all accrued and unpaid fees then due and
payable under this Agreement, the interest attributable to the amount
of that reduction, and any related Consequential Loss. Any part of the
Revolver Commitment, the Discretionary Revolver Commitment for any
Discretionary Revolver Loan, the Maximum Discretionary Commitment, or
the commitment under the LC Subfacility that is terminated may not be
reinstated.
(b) Mandatory Commitment Reductions. To the extent of any
payment or reduction of the Total Revolver Principal Debt pursuant to
Section 3.3(b), the Revolver Commitment or such Discretionary Revolver
Commitment for the applicable Discretionary Revolver Loan (as the case
may be) shall be reduced by the amount of such payment, and each
Revolver Lender's Committed Sum under the Revolver Facility or each
Discretionary Revolver Lender's Committed Sum under the applicable
Discretionary Revolver Loan (as the case may be) shall be ratably
reduced by such amount.
(c) Additional Reductions. The commitment under the LC
Subfacility shall each be reduced from time to time on the date of any
mandatory or voluntary reduction of the Revolver Commitment by the
amount, if any, by which either such Subfacility exceeds the Revolver
Commitment after giving effect to such reduction of the Revolver
Commitment.
(d) Ratable Allocation of Revolver Commitment Reductions. Each
reduction of the Revolver Commitment or the Discretionary Revolver
Commitment for any Discretionary Revolver Loan under this Section 2.5
shall be allocated among the Revolver Lenders and the Discretionary
Revolver Lenders for the applicable Discretionary Revolver Loan(as
applicable) in accordance with their respective Commitment Percentages
under the Revolver Facility or the applicable Discretionary Revolver
Loan (as applicable).
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2.6 Borrowing Procedure. The following procedures apply to all
Borrowings (other than Borrowings pursuant to Section 2.3(c)):
(a) Borrowing Request. Any Borrower may request a Borrowing by
making or delivering a Borrowing Notice to Administrative Agent
requesting that Lenders fund a Borrowing on a certain date (the
"Borrowing Date"), which Borrowing Notice (i) shall be irrevocable and
binding on Borrowers, (ii) shall specify the Facility or Facilities (or
in the case of Discretionary Loans, the Discretionary Loan or Loans
under which such Borrowing is being made), (iii) shall specify the
Borrowing Date, amount, Type, and (for a Borrowing comprised of
Eurodollar Rate Borrowings) Interest Period, (iv) must be signed by the
requesting Borrower and concurred to by each other Restricted Borrower,
(v) must specify the Borrower or Borrowers which are to receive all or
any portion of such Borrowing and the amount of such Borrowing to be
advanced to such Borrower or Borrowers; and (vi) must be received by
Administrative Agent no later than 11:00 a.m., Dallas, Texas time on
the third Business Day preceding the Borrowing Date for any Eurodollar
Rate Borrowing or 10:00 a.m., Dallas, Texas time on the same Business
Day for any Base Rate Borrowing. Administrative Agent shall timely
notify each Lender with respect to each Borrowing Notice.
(b) Funding. Each Lender shall remit its Commitment Percentage
for the relevant Facility or Discretionary Loan of each requested
Borrowing to Administrative Agent's principal office in Dallas, Texas,
in funds which are or will be available for immediate use by
Administrative Agent by 12:00 p.m., Dallas, Texas, time on the
applicable Borrowing Date. Subject to receipt of such funds,
Administrative Agent shall (unless to its actual knowledge any of the
conditions precedent therefor have not been satisfied by Borrower or
waived by the requisite Lenders under Section 13.10) make such funds
available to Borrowers by causing such funds to be deposited to the
account designated to Administrative Agent by Restricted Borrowers.
(c) Funding Assumed. Absent contrary written notice from a
Lender, Administrative Agent may assume that each Lender has made its
Commitment Percentage of the requested Borrowing available to
Administrative Agent on the applicable Borrowing Date, and
Administrative Agent may, in reliance upon such assumption (but shall
not be required to), make available to Borrowers a corresponding
amount. If a Lender fails to make its Commitment Percentage of any
requested Borrowing available to Administrative Agent on the applicable
Borrowing Date, Administrative Agent may recover the applicable amount
on demand, (i) from that Lender together with interest, commencing on
the Borrowing Date and ending on (but excluding) the date
Administrative Agent recovers the amount from that Lender, at an annual
interest rate equal to the Federal Funds Rate, or (ii) if that Lender
fails to pay its amount upon demand, then from Borrowers. No Lender is
responsible for the failure of any other Lender to make its Commitment
Percentage of any Borrowing available as required by Section 2.6(b);
however, failure of any Lender to make its Commitment Percentage of any
Borrowing so available does not excuse any other Lender from making its
Commitment Percentage of any Borrowing so available.
SECTION 3 TERMS OF PAYMENT.
3.1 Loan Accounts, Notes, and Payments.
(a) Loan Accounts; Noteless Transaction. The Principal Debt
owed to each Lender shall be evidenced by one or more loan accounts or
records maintained by such Lender in the ordinary course of business.
The loan accounts or records maintained by Administrative Agent
(including, without limitation, the Register) and each Lender shall be
prima facie evidence absent manifest error of the amount of the
Borrowings made by Borrowers from each Lender under this Agreement (and
the Facilities, Subfacilities, and Discretionary Loans thereunder) and
the interest and principal payments
31
thereon. Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of Borrowers under
the Loan Documents to pay any amount owing with respect to the
Obligation.
(b) Notes. Upon the request of any Lender, made through
Administrative Agent, the Principal Debt owed to such Lender may be
evidenced by one or more of the following Notes (as the case may be):
(i) a Revolver Note (with respect to Revolver Principal Debt); (ii) a
Term Loan Note (with respect to Term Loan Principal Debt); (iii) for
each Discretionary Revolver Loan, a Discretionary Revolver Note; (iv)
for each Discretionary Term Loan, a Discretionary Term Note, and (v) a
Unrestricted Borrower Note to be executed by each Unrestricted Borrower
and the Restricted Borrowers with respect to such Unrestricted
Borrower's Designated Amount. In such event, Restricted Borrowers or
Unrestricted Borrowers (as applicable) shall promptly prepare, execute,
and deliver to such Lender such Note payable to the order of such
Lender.
(c) Payment. All payments of principal, interest, and other
amounts to be made by Borrowers under this Agreement and the other Loan
Documents shall be made to Administrative Agent at its principal office
in Dallas, Texas in Dollars and in funds which are or will be available
for immediate use by Administrative Agent by 1:00 p.m., Dallas, Texas
time on the day due, without setoff, deduction, or counterclaim.
Payments made after 1:00 p.m., Dallas, Texas time shall be deemed made
on the Business Day next following. Administrative Agent shall pay to
each Lender any payment of principal, interest, or other amount to
which such Lender is entitled hereunder on the same day Administrative
Agent shall have received the same from Borrowers; provided such
payment is received by Administrative Agent prior to 1:00 p.m., Dallas,
Texas time, and otherwise before 1:00 p.m., Dallas, Texas time on the
Business Day next following.
(d) Payment Assumed. Unless Administrative Agent has received
notice from Borrowers prior to the date on which any payment is due
under this Agreement that Borrowers will not make that payment in full,
Administrative Agent may assume that Borrowers have made the full
payment due and Administrative Agent may, in reliance upon that
assumption, cause to be distributed to the appropriate Lender on that
date the amount then due to such Lenders. If and to the extent
Borrowers do not make the full payment due to Administrative Agent,
each Lender shall repay to Administrative Agent on demand the amount
distributed to that Lender by Administrative Agent together with
interest for each day from the date that Lender received payment from
Administrative Agent until the date that Lender repays Administrative
Agent (unless such repayment is made on the same day as such
distribution), at an annual interest rate equal to the Federal Funds
Rate.
3.2 Interest and Principal Payments.
(a) Interest. Accrued interest on each Eurodollar Rate
Borrowing is due and payable on the last day of its respective Interest
Period and on the Termination Date for the applicable Facility or
Discretionary Loan, as applicable; provided that, if any Interest
Period is greater than three months, then accrued interest is also due
and payable on the three month anniversary of the date on which such
Interest Period commences and on each three month anniversary
thereafter, as well as on the last day of such Interest Period. Accrued
interest on each Base Rate Borrowing shall be due and payable on the
last Business Day of each March, June, September, and December, and on
the Termination Date for the applicable Facility or Discretionary Loan,
as applicable.
(b) Revolver Principal Debt and the Discretionary
Revolver Principal Debt. Subject to the provisions of Section 3.3(d),
the Revolver Commitment shall reduce quarterly by the amounts
indicated below, commencing on September 30, 2003, and continuing
thereafter on the last Business
32
Day of each March, June, September, and December, with the Revolver
Commitment Reduced to $0 on the Termination Date for the Revolver
Facility in accordance with the following schedule:
Reduction Periods Reduction Amount
=================================== ==============================
September 30, 2003, $45,000,000.00
through and including
September 30, 2004
----------------------------------- ------------------------------
December 31, 2004, $63,750,000.00
through and including
September 30, 2007
December 31, 2007, $82,500,000.00
through and including
December 31, 2008
----------------------------------- ------------------------------
March 31, 2009 $97,500,000.00
----------------------------------- ------------------------------
(c) Term Loan Principal Debt. The Term Loan Principal Debt is
due and payable in quarterly installments in the principal amounts
indicated in the table below, commencing on June 30, 2003, and
continuing thereafter on the last Business Day of each March, June,
September, and December, with the final payment due on the Termination
Date for the Term Loan Facility, in accordance with the following
amortization schedule:
Payment Periods Principal Installments
=================================== ==============================
June 30, 2003, through and $1,875,000.00
including March 31, 2009
----------------------------------- ------------------------------
June 30, 2009 $705,000,000.00
=================================== ==============================
3.3 Prepayments.
(a) Optional Prepayments. Except as set forth herein, after
giving Administrative Agent advance written notice of the intent to
prepay, Restricted Borrowers (and with respect to Borrowings by
Unrestricted Borrowers, Unrestricted Borrowers) may voluntarily prepay
all or any part of the Total Revolver Principal Debt or the Total Term
Principal Debt, from time to time and at any time, in whole or in part,
without premium or penalty; provided that: (i) such notice must be
received by Administrative Agent by 11:00 a.m., Dallas, Texas time,
three Business Days preceding the date of prepayment of any Eurodollar
Rate Borrowing or 10:00 a.m., Dallas, Texas time on the same Business
Day of any prepayment of any Base Rate Borrowing; (ii) each such
partial prepayment must be in a minimum amount of at least $5,000,000
or a greater integral multiple of $1,000,000 thereof or such lesser
amount as may be outstanding under the applicable Facility or
Discretionary Loan; (iii) any Eurodollar Rate Borrowing may only be
prepaid at the end of an applicable Interest Period (unless Restricted
Borrowers pay the amount of any Consequential Loss); and (iv) Borrowers
shall pay any related Consequential Loss within ten (10) days after
demand therefor. Conversions under Section 3.11 are not prepayments.
Each notice of prepayment shall specify the prepayment date, the
applicable Facility, Subfacility, or Discretionary Loan being prepaid,
and the Type of Borrowing(s) and amount(s) of such Borrowing(s) to be
prepaid and shall constitute a binding obligation of
33
Restricted Borrowers to make a prepayment on the date stated therein,
together with (unless such prepayment is made with respect to a Base
Rate Borrowing) accrued and unpaid interest to the date of such payment
on the aggregate principal amount prepaid.
(i) Total Revolver Principal Debt. Any voluntary
prepayment of the Total Revolver Principal Debt shall be
applied ratably to the Revolver Principal Debt and the
Discretionary Revolver Principal Debt under each Discretionary
Revolver Loan and shall be allocated Pro Rata to each Revolver
Lender and Discretionary Revolver Lender (for purposes hereof,
"ratably" shall mean the proportion that the Revolver
Principal Debt or Discretionary Revolver Principal Debt under
all Discretionary Revolver Loans bears to the Total Revolver
Principal Debt). Unless a Default or Potential Default has
occurred and is continuing (or would arise as a result
thereof), any payment or prepayment of the Total Revolver
Principal Debt may be reborrowed by Borrowers, subject to the
terms and conditions of the Loan Documents.
(ii) Term Loan Principal Debt or Discretionary Term
Loan Principal Debt. Any voluntary prepayment of the Term Loan
Principal Debt or the Discretionary Term Loan Principal Debt
under any Discretionary Term Loan shall be applied to the
applicable loan and shall be repaid as specified by Restricted
Borrowers (and with respect to Borrowings by Unrestricted
Borrowers, Unrestricted Borrowers). All voluntary prepayments
of the Term Loan Facility and any Discretionary Term Loan
shall be allocated Pro Rata to each Term Loan Lender and each
Discretionary Term Loan Lender under the applicable
Discretionary Term Loan.
(b) Mandatory Prepayments from Net Cash Proceeds. Until such
time as the Principal Debt has been repaid in full and the Revolver
Commitment and Discretionary Revolver Commitment under all
Discretionary Revolver Loans terminated in full, the Principal Debt
shall be permanently prepaid in the amounts and upon the occurrence of
any of the following events:
(i) If any portion of the Net Cash Proceeds realized
by any Company from any Significant Sale (including any
deferred purchase price therefor and any Net Cash Proceeds of
any asset disposition which constitutes a Significant Sale as
a result of aggregation with other asset dispositions in the
same calendar year) has not been reinvested in similar assets
of any Company within 12 months from the receipt by any
Company of such Net Cash Proceeds (including receipt of any
deferred payments for any such Significant Sale or portion
thereof, if and when received) and if no Default or Potential
Default exists or arises as a result of any such Significant
Sale, then on the day following the 12th month after receipt
of such Net Cash Proceeds, the Principal Debt shall be
permanently prepaid (and the Revolver Commitment and
Discretionary Revolver Commitment under all Discretionary
Revolver Loans reduced to the extent required in this Section
3.3(b)), in the order and manner specified herein, by an
amount equal to 100% of all such Net Cash Proceeds not
reinvested in like assets of any Company.
(ii) At any time a Default or Potential Default
exists or arises after giving effect to any Significant Sale,
then, concurrently with such Significant Sale (including any
asset disposition which constitutes a Significant Sale as a
result of aggregation with other asset dispositions in the
same calendar year), the Principal Debt shall be permanently
prepaid and the Revolver Commitment and Discretionary Revolver
Commitment under all Discretionary Revolver Loans reduced, in
the order and manner specified in Section 3.12(b), by an
amount equal to 100% of the Net Cash Proceeds realized by such
Company from any such Significant Sale.
34
(iii) If any Company is required to apply (or offer
to apply) any Net Cash Proceeds from any sale of assets (even
if such sale is not a Significant Sale) to repayment of any
Debt (other than the Obligation) or to any mandatory
redemption of equity interests, unless such Company pays or
commits to pay all or a part of such Net Cash Proceeds to
payment of the Principal Debt on or prior to a particular
date, then at least fifteen (15) days prior to the date such
repayment or offer of repayment is required to be made on such
other Debt, such Company shall permanently prepay the
Principal Debt in the order and manner specified herein by an
amount equal to the amount that will excuse the Company from
making such repayment or offer of repayment under such other
Debt.
Each commitment reduction or prepayment under this Section 3.3(b) shall
be applied as specified by Restricted Borrowers to the Term Loan
Principal Debt, the Discretionary Term Loan Principal Debt under a
specified Discretionary Term Loan, or the Total Revolver Principal Debt
unless a Default or Potential Default then exists or arises as a result
therefrom (whereupon the provisions of Section 3.12(b) shall apply);
provided, however, that (i) any prepayments of the Term Loan Principal
Debt shall be applied ratably to each unpaid installment of the Term
Loan Principal Debt and shall be allocated Pro Rata to each Term Loan
Lender; (ii) any prepayments of the Discretionary Term Loan Principal
Debt under any Discretionary Term Loan shall be applied ratably to each
unpaid installment of Discretionary Term Loan Principal Debt under such
Discretionary Term Loan and shall be allocated Pro Rata to each
Discretionary Term Loan Lender under such Discretionary Term Loan; and
(iii) any prepayment of the Total Revolver Principal Debt shall be
applied ratably to the Total Revolver Principal Debt and shall be
allocated Pro Rata to each Revolver Lender and Discretionary Revolver
Lender (for purposes hereof, "ratably" for each mandatory prepayment
under the Revolver Facility or any Discretionary Revolver Loan, on any
date of determination, shall mean the proportion that the Revolver
Principal Debt or Discretionary Revolver Principal Debt under each
Discretionary Revolver Loan bears to the Total Revolver Principal
Debt).
(c) Revolver Facilities Mandatory Payments/Reductions. On any
date of determination if the Revolver Commitment Usage exceeds the
Revolver Commitment then in effect, any Discretionary Revolver
Principal Debt for any Discretionary Revolver Loan exceeds the
Discretionary Revolver Commitment for such Discretionary Revolver Loan
(including as a result of any Revolver Commitment or Discretionary
Revolver Commitment reduction pursuant to Section 3.3(b)), then
Borrowers (limited in the case of an Unrestricted Borrower, to the
amount for which it is liable hereunder) shall make a mandatory
prepayment of the Revolver Principal Debt or the Discretionary Revolver
Principal Debt for the applicable Discretionary Loan, as the case may
be, in at least the amount of such excess, together with (x) all
accrued and unpaid interest on the principal amount so prepaid and (y)
any Consequential Loss arising as a result thereof; provided that, on
any such reduction date, if no Revolver Principal Debt is then
outstanding, but the LC Exposure exceeds the Revolver Commitment, then
Restricted Borrowers shall provide to Administrative Agent, for the
benefit of Revolver Lenders, cash collateral in Dollars in an amount at
least equal to 100% of such excess. All mandatory prepayments or
commitment reductions under the Revolver Facility or any Discretionary
Revolver Loan hereunder shall be allocated among the Revolver Lenders
or Discretionary Lenders party to such Discretionary Revolver Loan (as
applicable) in accordance with their respective Commitment Percentages
under the Revolver Facility or Discretionary Revolver Loan (as
applicable).
(d) Mandatory Prepayments of Interest/Consequential Loss. All
prepayments under Section 3.3 shall be made, together with accrued
interest to the date of such prepayment on the principal amount
prepaid, together with any Consequential Loss arising as a result
thereof.
35
3.4 Interest Options. Except that the Eurodollar Rate may not be
selected when a Default or Potential Default exists and except as otherwise
provided in this Agreement, or in the related Supplemental Credit Documents as
it relates to Discretionary Loans, Borrowings bear interest at a rate per annum
equal to the lesser of (a) as to the respective Type of Borrowing (as designated
by Restricted Borrowers in accordance with this Agreement), the Base Rate plus
the Applicable Margin for Base Rate Borrowings for the applicable Facility, or
the Adjusted Eurodollar Rate plus the Applicable Margin for Eurodollar Rate
Borrowings for the applicable Facility, and (b) the Maximum Rate. Borrowings
under any Discretionary Term Loan shall bear interest at the rate or rates
specified in the applicable Supplemental Credit Documents. Each change in the
Base Rate or the Maximum Rate, subject to the terms of this Agreement, will
become effective, without notice to Borrowers or any other Person, upon the
effective date of such change.
3.5 Quotation of Rates. It is hereby acknowledged that a Responsible
Officer or other appropriately designated officer of Restricted Borrowers may
call Administrative Agent on or before the date on which a Borrowing Notice is
to be delivered by Restricted Borrowers in order to receive an indication of the
rates then in effect, but such indicated rates shall neither be binding upon
Administrative Agent or Lenders nor affect the rate of interest which thereafter
is actually in effect when the Borrowing Notice is given or on the Borrowing
Date.
3.6 Default Rate. At the option of Required Lenders and to the extent
permitted by Law, all past- due Principal Debt and past due interest accruing on
any of the Obligation shall bear interest from maturity (stated or by
acceleration) at the Default Rate until paid; provided that, the Default Rate
shall automatically apply in the case of Sections 2.3(c) and 11.3 where the
Default Rate is specified.
3.7 Interest Recapture. If the designated rate applicable to any
Borrowing exceeds the Maximum Rate, the rate of interest on such Borrowing shall
be limited to the Maximum Rate, but any subsequent reductions in such designated
rate shall not reduce the rate of interest thereon below the Maximum Rate until
the total amount of interest accrued thereon equals the amount of interest which
would have accrued thereon if such designated rate had at all times been in
effect. In the event that at maturity (stated or by acceleration), or at final
payment of the Principal Debt, the total amount of interest paid or accrued is
less than the amount of interest which would have accrued if such designated
rates had at all times been in effect, then, at such time and to the extent
permitted by Law, Restricted Borrowers shall pay an amount equal to the
difference between (a) the lesser of the amount of interest which would have
accrued if such designated rates had at all times been in effect and the amount
of interest which would have accrued if the Maximum Rate had at all times been
in effect, and (b) the amount of interest actually paid or accrued on the
Principal Debt.
3.8 Interest Calculations. Interest will be calculated on the basis of
actual number of days (including the first day but excluding the last day)
elapsed but computed as if each calendar year consisted of 360 days in the case
of an Eurodollar Rate Borrowing (unless the calculation would result in an
interest rate greater than the Maximum Rate, in which event interest will be
calculated on the basis of a year of 365 or 366 days, as the case may be) and
365 or 366 days, as the case may be, in the case of a Base Rate Borrowing. All
interest rate determinations and calculations by Administrative Agent are
conclusive and binding absent manifest error.
3.9 Maximum Rate. Regardless of any provision contained in any Loan
Document, neither any Agent nor any Lender shall ever be entitled to contract
for, charge, take, reserve, receive, or apply, as interest on all or any part of
the Obligation, any amount in excess of the Maximum Rate, and, if Lenders ever
do so, then such excess shall be deemed a partial prepayment of principal and
treated hereunder as such and any remaining excess shall be refunded to
Borrowers. In determining if the interest paid or payable exceeds the Maximum
Rate, Borrowers and Lenders shall, to the maximum extent permitted under
applicable Law, (a) treat all Borrowings as but a single extension of credit
(and Lenders and Borrowers agree that such is the case and that provision herein
for multiple Borrowings is for convenience only), (b) characterize any
nonprincipal
36
payment as an expense, fee, or premium rather than as interest, (c) exclude
voluntary prepayments and the effects thereof, and (d) amortize, prorate,
allocate, and spread the total amount of interest throughout the entire
contemplated term of the Obligation. However, if the Obligation is paid and
performed in full prior to the end of the full contemplated term thereof, and if
the interest received for the actual period of existence thereof exceeds the
Maximum Amount, Lenders shall refund such excess, and, in such event, Lenders
shall not, to the extent permitted by Law, be subject to any penalties provided
by any Laws for contracting for, charging, taking, reserving, or receiving
interest in excess of the Maximum Amount. If the Laws of the State of Texas are
applicable for purposes of determining the "Maximum Rate" or the "Maximum
Amount," then those terms mean the "weekly ceiling" from time to time in effect
under Texas Finance Code ss. 303.305, as amended. Borrowers agrees that Chapter
346 of the Texas Finance Code, as amended (which regulates certain revolving
credit loan accounts and revolving tri-party accounts), does not apply to the
Obligation.
3.10 Interest Periods. When Restricted Borrowers (or with respect to
Borrowings by Unrestricted Borrowers, Unrestricted Borrowers and Restricted
Borrowers) request any Eurodollar Rate Borrowing, Restricted Borrowers (or with
respect to Borrowings by Unrestricted Borrowers, Unrestricted Borrowers and
Restricted Borrowers) may elect the interest period (each an "Interest Period")
applicable thereto, which shall be, at Restricted Borrowers' (or with respect to
Borrowings by Unrestricted Borrowers, Unrestricted Borrowers' and Restricted
Borrowers') option, one, two, three, six, or (subject to availability) twelve
months; provided, however, that: (a) the initial Interest Period for a
Eurodollar Rate Borrowing shall commence on the date of such Borrowing
(including the date of any conversion thereto), and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period applicable thereto expires; (b) if any
Interest Period for a Eurodollar Rate Borrowing begins on a day for which there
is no numerically corresponding Business Day in the calendar month at the end of
such Interest Period, then such Interest Period shall end on the last Business
Day in the calendar month at the end of such Interest Period); (c) no Interest
Period may be chosen with respect to any portion of the Principal Debt which
would extend beyond the scheduled repayment date (including any dates on which
mandatory prepayments are required to be made) for such portion of the Principal
Debt; and (d) no more than an aggregate of fifteen (15) Interest Periods for
both the Revolver Facility and the Discretionary Revolver Subfacility and five
(5) Interest Periods for both the Term Loan Facility and the Discretionary Term
Loan Subfacility shall be in effect at one time.
3.11 Conversions. Restricted Borrowers (and with respect to Borrowings
by Unrestricted Borrowers, Unrestricted Borrowers and Restricted Borrowers) may
(a) convert a Eurodollar Rate Borrowing on the last day of the applicable
Interest Period to a Base Rate Borrowing, (b) convert a Base Rate Borrowing at
any time to a Eurodollar Rate Borrowing, and (c) elect a new Interest Period (in
the case of a Eurodollar Rate Borrowing), by giving a Conversion Notice of such
intent to Administrative Agent no later than 11:00 a.m., Dallas, Texas time on
the third Business Day prior to the date of conversion or the last day of the
Interest Period, as the case may be (in the case of a conversion to a Eurodollar
Rate Borrowing or an election of a new Interest Period), and no later than 11:00
a.m., Dallas, Texas time one Business Day prior to the last day of the Interest
Period (in the case of a conversion to a Base Rate Borrowing); provided that,
the principal amount converted to, or continued as, a Eurodollar Rate Borrowing
shall be in an amount not less than $10,000,000 or a greater integral multiple
of $500,000 (or such lesser amount as may be outstanding under any Facility).
Administrative Agent shall timely notify each Lender with respect to each
Conversion Notice. Absent Restricted Borrowers' (or with respect to Borrowings
by Unrestricted Borrowers, Unrestricted Borrowers' and Restricted Borrowers')
Conversion Notice or election of a new Interest Period, a Eurodollar Rate
Borrowing shall be deemed converted to a Base Rate Borrowing effective as of the
expiration of the Interest Period applicable thereto. No Eurodollar Rate
Borrowing may be either made or continued as a Eurodollar Rate Borrowing, and no
Base Rate Borrowing may be converted to a Eurodollar Rate Borrowing, if the
interest rate for such Eurodollar Rate Borrowing would exceed the Maximum Rate.
The right to convert from a Base Rate Borrowing to a Eurodollar Rate Borrowing,
or to continue as a Eurodollar Rate Borrowing shall not be available during the
occurrence of a Default or Potential Default.
37
3.12 Order of Application.
(a) No Default. If no Default or Potential Default exists and
if no order of application is otherwise specified in Section 3.3 or
otherwise in the Loan Documents, payments and prepayments shall be
applied in the order and manner as Restricted Borrowers (and with
respect to Borrowings, payments, and prepayments by Unrestricted
Borrowers, Unrestricted Borrowers) may direct.
(b) Default. If a Default or Potential Default exists (or if
Borrowers fail to give directions as permitted under Section 3.12(a)),
any payment or prepayment (including proceeds from the exercise of any
Rights) shall be applied to the Obligation in the following order: (i)
to the ratable payment of all fees, expenses, and indemnities for which
Agents or Lenders have not been paid or reimbursed in accordance with
the Loan Documents (as used in this Section 3.12(b)(i), a "ratable
payment" for any Lender or any Agent shall be, on any date of
determination, that proportion which the portion of the total fees,
expenses, and indemnities owed to such Lender or such Agent bears to
the total aggregate fees and indemnities owed to all Lenders and Agents
on such date of determination); (ii) to the ratable payment of accrued
and unpaid interest on the Principal Debt (as used in this Section
3.12(b)(ii), "ratable payment" means, for any Lender, on any date of
determination, that proportion which the accrued and unpaid interest on
the Principal Debt owed to such Lender bears to the total accrued and
unpaid interest on the Principal Debt owed to all Lenders); (iii) to
the ratable payment of the Principal Debt and any reimbursement
obligation with respect to any LC issued pursuant to the Agreement
which is due and payable and which remains unfunded by any Borrowing
under the Revolver Facility; provided that, such payments with respect
to any reimbursement obligation with respect to any LC shall be
allocated ratably among the Issuing Lender for such LC and the Lenders
which have funded their participations in such LC (as used in this
Section 3.12(b)(iii), "ratable payment" means for any Lender, on any
date of determination, that proportion which the Principal Debt or
reimbursement obligation (as the case may be) owed to such Lender bears
to the sum of the Principal Debt owed to all Lenders plus the total
amount of reimbursement obligations with respect to any LCs issued
pursuant to the Agreement which are due and payable and which remain
unfunded by any Borrowing under the Revolver Facility); (iv) to provide
cash collateral in an amount equal to 100% of the LC Exposure then
existing in accordance with Section 2.3(g); and (vi) to the payment of
the remaining Obligation in the order and manner Required Lenders deem
appropriate.
Subject to the provisions of Section 12 and provided that Administrative Agent
shall not in any event be bound to inquire into or to determine the validity,
scope, or priority of any interest or entitlement of any Lender and may suspend
all payments or seek appropriate relief (including, without limitation,
instructions from Required Lenders or an action in the nature of interpleader)
in the event of any doubt or dispute as to any apportionment or distribution
contemplated hereby, Administrative Agent shall promptly distribute such amounts
to each Lender in accordance with the Agreement and the related Loan Documents.
3.13 Sharing of Payments, Etc. If any Lender shall obtain any payment
or prepayment with respect to the Obligation (whether voluntary, involuntary, or
otherwise, including, without limitation, as a result of exercising its Rights
under Section 3.14) which is in excess of its share of any such payment in
accordance with the relevant Rights of the Lenders under the Loan Documents,
then such Lender shall purchase from the other Lenders such participations as
shall be necessary to cause such purchasing Lender to share the excess payment
with each other Lender in accordance with the relevant Rights under the Loan
Documents. If all or any portion of such excess payment is subsequently
recovered from such purchasing Lender, then the purchase shall be rescinded and
the purchase price restored to the extent of such recovery. Restricted Borrowers
agree that any Lender purchasing a participation from another Lender pursuant to
this Section may, to the fullest extent permitted by Law, exercise all of its
Rights of payment (including the Right of offset) with respect to such
participation as fully as if such Lender were the direct creditor of Restricted
Borrowers in the amount of such participation.
38
3.14 Offset. If a Default exists, each Lender shall be entitled to
exercise (for the benefit of all Lenders in accordance with Section 3.13) the
Rights of offset and/or banker's Lien against each and every account and other
property, or any interest therein, which any Loan Party may now or hereafter
have with, or which is now or hereafter in the possession of, such Lender to the
extent of the full amount of the Obligation (or in the case of an Unrestricted
Borrower, the Obligation to the extent it is liable therefor hereunder).
3.15 Booking Borrowings. To the extent permitted by Law, any Lender may
make, carry, or transfer its Borrowings at, to, or for the account of any of its
branch offices or the office of any of its Affiliates; provided that, no
Affiliate shall be entitled to receive any greater payment under Section 4 than
the transferor Lender would have been entitled to receive with respect to such
Borrowings.
SECTION 4 CHANGE IN CIRCUMSTANCES.
4.1 Increased Cost and Reduced Return.
(a) Changes in Law. If, after the date hereof, the adoption of
any applicable Law or any change in any applicable Law or any change in
the interpretation or administration thereof by any Governmental
Authority, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force
of law) of any such Governmental Authority:
(i) shall subject such Lender (or its Applicable
Lending Office) to any Tax or other charge with respect to any
Eurodollar Rate Borrowing, its Notes, or its obligation to
loan Eurodollar Rate Borrowings, or change the basis of
taxation of any amounts payable to such Lender (or its
Applicable Lending Office) under the Loan Documents in respect
of any Eurodollar Rate Borrowings (other than Taxes imposed on
the overall net income of such Lender by the jurisdiction in
which such Lender has its principal office or such Applicable
Lending Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement
(other than the Reserve Requirement utilized in the
determination of the Adjusted Eurodollar Rate) relating to any
extensions of credit or other assets of, or any deposits with
or other liabilities or commitments of, such Lender (or its
Applicable Lending Office), including the commitment of such
Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or the London interbank market any other
condition affecting the Loan Documents or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, converting into,
continuing, or maintaining any Eurodollar Rate Borrowings or to reduce
any sum received or receivable by such Lender (or its Applicable
Lending Office) under the Loan Documents with respect to any Eurodollar
Rate Borrowing, then Borrowers shall pay to such Lender on demand such
amount or amounts as will compensate such Lender for such increased
cost or reduction. If any Lender requests compensation by Borrowers
under this Section 4.1(a), Restricted Borrowers may, by notice to such
Lender (with a copy to Administrative Agent), suspend the obligation of
such Lender to loan or continue Borrowings of the Type with respect to
which such compensation is requested, or to convert Borrowings of any
other Type into Borrowings of such Type, until the event or condition
giving rise to such request ceases to be in effect (in which case the
provisions of Section 4.4 shall be applicable); provided, that such
suspension shall not affect the Right of such Lender to receive the
compensation so requested.
39
(b) Capital Adequacy. If, after the date hereof, any Lender
shall have determined that the adoption of any applicable Law regarding
capital adequacy or any change therein or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof, or any request or directive
regarding capital adequacy (whether or not having the force of law) of
any such Governmental Authority has or would have the effect of
reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request,
or directive (taking into consideration its policies with respect to
capital adequacy), then from time to time upon demand Borrowers shall
pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
(c) Changes in Applicable Lending Office. Compensation
Statement. Each Lender shall promptly notify Restricted Borrowers and
Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation
pursuant to this Section and will designate a different Applicable
Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such
Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section shall furnish to Restricted Borrowers
and Administrative Agent a statement setting forth the additional
amount or amounts to be paid to it hereunder which shall be conclusive
in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
4.2 Limitation on Types of Loans. If on or prior to the first day
of any Interest Period for any Eurodollar Rate Borrowing:
(a) Inability to Determine Eurodollar Rate.
Administrative Agent determines (which determination shall be
conclusive) 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) Cost of Funds. Required Lenders determine (which
determination shall be conclusive) and notify Administrative Agent that
the Adjusted Eurodollar Rate will not adequately and fairly reflect the
cost to the Lenders of funding Eurodollar Rate Borrowings for such
Interest Period;
then Administrative Agent shall give Restricted Borrowers prompt notice thereof
specifying the relevant amounts or periods, and so long as such condition
remains in effect, the Lenders shall be under no obligation to fund additional
Eurodollar Rate Borrowings, continue Eurodollar Rate Borrowings, or to convert
Base Rate Borrowings into Eurodollar Rate Borrowings, and Borrowers shall, on
the last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Rate Borrowings, either prepay such Borrowings or convert such
Borrowings into Base Rate Borrowings in accordance with the terms of this
Agreement.
4.3 Illegality. Notwithstanding any other provision of the Loan
Documents, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to make, maintain, or fund Eurodollar Rate Borrowings
hereunder, then such Lender shall promptly notify Restricted Borrowers thereof
and such Lender's obligation to make or continue Eurodollar Rate Borrowings and
to convert other Base Rate Borrowings into Eurodollar Rate Borrowings shall be
suspended until such time as such Lender may again make, maintain, and fund
Eurodollar Rate Borrowings (in which case the provisions of Section 4.4 shall be
applicable).
4.4 Treatment of Affected Loans. If the obligation of any Lender to
fund Eurodollar Rate Borrowings or to continue, or to convert Base Rate
Borrowings into Eurodollar Rate Borrowings, shall be suspended pursuant to
Sections 4.1, 4.2, or 4.3 hereof, such Lender's Eurodollar Rate Borrowings shall
be
40
automatically converted into Base Rate Borrowings on the last day(s) of the then
current Interest Period(s) for Eurodollar Rate Borrowings (or, in the case of a
conversion required by Section 4.3 hereof, on such earlier date as such Lender
may specify to Restricted Borrowers with a copy to Administrative Agent) and,
unless and until such Lender gives notice as provided below that the
circumstances specified in Sections 4.1, 4.2, or 4.3 hereof that gave rise to
such conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Rate
Borrowings have been so converted, all payments and prepayments of
principal that would otherwise be applied to such Lender's Eurodollar
Rate Borrowings shall be applied instead to its Base Rate Borrowings;
and
(b) all Borrowings that would otherwise be made or continued
by such Lender as Eurodollar Rate Borrowings shall be made or continued
instead as Base Rate Borrowings, and all Borrowings of such Lender that
would otherwise be converted into Eurodollar Rate Borrowings shall be
converted instead into (or shall remain as) Base Rate Borrowings.
If such Lender gives notice to Restricted Borrowers (with a copy to
Administrative Agent) that the circumstances specified in Sections 4.1, 4.2, or
4.3 hereof that gave rise to the conversion of such Lender's Eurodollar Rate
Borrowings pursuant to this Section 4.4 no longer exist (which such Lender
agrees to do promptly upon such circumstances ceasing to exist) at a time when
Eurodollar Rate Borrowings made by other Lenders are outstanding, such Lender's
Base Rate Borrowings shall be automatically converted, on the first day(s) of
the next succeeding Interest Period(s) for such outstanding Eurodollar Rate
Borrowings, to the extent necessary so that, after giving effect thereto, all
Eurodollar Rate Borrowings held by the Lenders and by such Lender are held pro
rata (as to principal amounts, Types, and Interest Periods) in accordance with
their respective Commitments.
4.5 Compensation. In the event any Lender shall incur any loss or
expense (including any loss or expense incurred by reason of the liquidation or
redeployment of deposits or other funds acquired by such Lender to make or
continue any Borrowing as, or to convert any Borrowing to, a Eurodollar Rate
Borrowing as a result of:
(a) any payment, prepayment, or conversion of a Eurodollar
Rate Borrowing for any reason (including, without limitation, the
acceleration of the loan pursuant to Section 11.1) on a date other than
the last day of the Interest Period for such Borrowing; or
(b) any failure by Borrowers for any reason (including,
without limitation, the failure of any condition precedent specified in
Section 7.3 to be satisfied) to borrow, convert, continue, or prepay a
Eurodollar Rate Borrowing on the date for such borrowing, conversion,
continuation, or prepayment specified in the relevant Borrowing Notice,
or notice of prepayment, continuation, or conversion under this
Agreement;
then, upon the written notice of such Lender to Restricted Borrowers (with a
copy of Administrative Agent), Restricted Borrowers shall, within five days of
their receipt thereof, pay directly to such Lender in each case at the
applicable rate of interest for such Borrowings provided for in this Agreement
over the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the London interbank
market. Such written notice, shall, in the absence of manifest error, be
conclusive and binding on Borrowers.
4.6 Taxes.
(a) General. Any and all payments by Borrowers to or for
the account of any Lender or Administrative Agent hereunder or under
any other Loan Document shall be made free and clear of
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and without deduction for any and all present or future Taxes,
excluding, in the case of each Lender and Administrative Agent, Taxes
imposed on its income and franchise Taxes imposed on it by the
jurisdiction under the laws of which such Lender (or its Applicable
Lending Office) or Administrative Agent (as the case may be) is
organized, or any political subdivision thereof. If Borrowers shall be
required by law to deduct any Taxes from or in respect of any sum
payable under any Loan Document to any Lender or Administrative Agent,
(i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to
additional sums payable under this Section 4.6) such Lender or
Administrative Agent receives an amount equal to the sum it would have
received had no such deductions been made, (ii) Borrowers shall make
such deductions, (iii) Borrowers shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with
applicable law, and (iv) Borrowers shall furnish to Administrative
Agent, at its addresses listed in Schedule 2.1, the original or a
certified copy of a receipt evidencing payment thereof.
(b) Stamp and Documentary Taxes. In addition, Borrowers agree
to pay any and all present or future stamp or documentary taxes and any
other excise or property taxes or charges or similar levies which arise
from any payment made under any Loan Document or from the execution or
delivery of, or otherwise with respect to, any Loan Document
(hereinafter referred to as "Other Taxes").
(c) Indemnification for Taxes. Borrowers agree to indemnify
each Lender and Administrative Agent for the full amount of Taxes and
Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this
Section 4.6) paid by such Lender or Administrative Agent (as the case
may be) and any liability (including penalties, interest, and expenses)
arising therefrom or with respect thereto.
(d) Withholding Tax Forms. Each Lender organized under the
Laws of a jurisdiction outside the United States, on or prior to the
Closing Date in the case of each Lender listed on the signature pages
hereof and on or prior to the date on which it becomes a Lender in the
case of each other Lender, and from time to time thereafter if
requested in writing by Restricted Borrowers or Administrative Agent
(but only so long as such Lender remains lawfully able to do so), shall
provide Restricted Borrowers and Administrative Agent with (i) if such
Lender is a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, Internal Revenue Service Form 1001 or 4224, as appropriate, or
any successor form prescribed by the Internal Revenue Service,
certifying that such Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income
receivable pursuant to the Loan Documents is effectively connected with
the conduct of a trade or business in the United States, or (ii) if
such Lender is not a "bank" within the meaning of Section 881(c)(3)(A)
of the Code and intends to claim an exemption from United States
withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest," a Form W-8, or any successor form
prescribed by the Internal Revenue Service, and a certificate
representing that such Lender is not a bank for purposes of Section
881(c) of the Code, is not a 10-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Code) of any Borrower, and is not a
controlled foreign corporation related to any Borrower (within the
meaning of Section 864(d)(4) of the Code). Each Lender which so
delivers a W-8, Form 1001, or 4224 further undertakes to deliver to
Restricted Borrowers and Administrative Agent additional forms (or a
successor form) on or before the date such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the
most recent form so delivered by it, in each case certifying that such
Lender is entitled to receive payments from Borrowers under any Loan
Document without deduction or withholding (or at a reduced rate of
deduction or withholding) of any United States federal income taxes,
unless an event (including without limitation any change in treaty,
law, or regulation) has occurred prior to the date on which any such
42
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing
and delivering any such form with respect to it, and such Lender
advises Restricted Borrowers and Administrative Agent that it is not
capable of receiving such payments without any deduction or withholding
of United States federal income tax.
(e) Failure to Provide Withholding Forms; Changes in Tax Laws.
For any period with respect to which a Lender has failed to provide
Restricted Borrowers and Administrative Agent with the appropriate form
pursuant to Section 4.6(d) (unless such failure is due to a change in
Law occurring subsequent to the date on which a form originally was
required to be provided), such Lender shall not be entitled to
indemnification under Section 4.6(a) or 4.6(b) with respect to Taxes
imposed by the United States; provided, however, that should a Lender,
which is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, Borrowers shall take such steps as
such Lender shall reasonably request to assist such Lender to recover
such Taxes.
(f) Changes in Applicable Lending Office. If Borrowers are
required to pay or will be required to pay additional amounts to or for
the account of any Lender pursuant to this Section 4.6, then such
Lender will agree to use reasonable efforts to change the jurisdiction
of its Applicable Lending Office so as to eliminate or reduce any such
additional payment which may thereafter accrue if such change, in the
judgment of such Lender, is not otherwise disadvantageous to such
Lender.
(g) Tax Payment Receipt. Within thirty (30) days after the
date of any payment of Taxes, Restricted Borrowers shall furnish to
Administrative Agent the original or a certified copy of a receipt
evidencing such payment.
(h) Survival. Without prejudice to the survival of any other
agreement of Borrowers hereunder, the agreements and obligations of
Borrowers contained in this Section 4.6 shall survive the termination
of the Total Commitment and the payment in full of the Obligation.
SECTION 5 FEES.
5.1 Treatment of Fees. Except as otherwise provided by Law, the fees
described in this Section 5: (a) do not constitute compensation for the use,
detention, or forbearance of money, (b) are in addition to, and not in lieu of,
interest and expenses otherwise described in the Loan Documents, (c) shall be
payable in accordance with Section 3.1(c), (d) shall be non-refundable, (e)
shall, to the fullest extent permitted by Law, bear interest, if not paid when
due, at the Default Rate, and (f) shall be calculated on the basis of actual
number of days (including the first day but excluding the last day) elapsed, but
computed as if each calendar year consisted of 365 or 366 days, as the case may
be.
5.2 Fees of Agents. Restricted Borrowers shall pay to certain Agents
the fees described in certain fee letters with such Agents.
5.3 Revolver Facility Commitment Fees. Following the Closing Date,
Restricted Borrowers shall pay to Administrative Agent, for the ratable account
of Revolver Lenders, a commitment fee, calculated daily from the Closing Date
but payable in installments in arrears each March 31, June 30, September 30, and
December 31 and on the Termination Date for the Revolver Facility, commencing
June 30, 2000. On any day of determination, the commitment fee under this
Section 5.3 shall be an amount equal to the Applicable Margin for Commitment
Fees multiplied by the amount by which (a) the Revolver Commitment on such day
exceeds (b) the Revolver Commitment Usage on such day. Each such installment
shall be calculated in accordance with Section 5.1(f). Solely for the purposes
of this Section 5.3, (a) determinations of the average daily Revolver Commitment
Usage shall not exclude any undrawn portion of the Designated Amounts for
Unrestricted
43
Borrowers; and (b) "ratable" shall mean, for any period of determination, with
respect to any Revolver Lender, that proportion which (x) the average daily
unused Committed Sum under the Revolver Facility of such Revolver Lender during
such period bears to (y) the amount of the average daily unused Revolver
Commitment during such period.
5.4 LC Fees. As an inducement for the issuance (including, without
limitation, any extension) of each LC, Restricted Borrowers agree to pay to
Administrative Agent:
(a) For the account of each Revolver Lender, according to each
Revolver Lender's Commitment Percentage under the Revolver Facility on
the day the fee is payable, an issuance fee payable quarterly in
arrears for so long as each such LC is outstanding, on the last
Business Day of each March, June, September, and December and on the
expiry date of the LC. The issuance fee for each LC or any extension
thereof shall be in an amount equal to the product of (a) the
Applicable Margin for Eurodollar Rate Borrowings under the Revolver
Facility in effect from time to time (calculated on a per annum basis)
multiplied by (b) the stated amount of such LC.
(b) For the account of each Issuing Lender, payable on the
date of issuance of any LC (or any extension thereof) by such Issuing
Lender a fronting fee of 0.125% of the face amount of such LC (or
extensions thereof). In addition, Restricted Borrowers shall pay to
each Issuing Lender, for its individual account, standard
administrative charges for LCs.
5.5 Discretionary Revolver Loan Commitment Fees. With respect to each
Discretionary Revolver Loan, Restricted Borrowers shall pay Administrative
Agent, for the ratable benefit of the Discretionary Revolver Lenders which have
committed to make such Discretionary Revolver Loan, a Discretionary Revolver
Loan commitment fee, payable in installments in arrears on each March 31, June
30, September 30, and December 31, and on such Termination Date for the
Discretionary Revolver Loan, commencing on the Discretionary Loan Effective Date
for such Discretionary Revolver Loan. Each installment shall be an amount equal
to the Applicable Margin for Commitment Fees for the Revolver Facility
multiplied by the amount by which (a) the average daily Discretionary Commitment
for such Discretionary Revolver Loan exceeds (b) the average daily Discretionary
Revolver Principal Debt outstanding under such Discretionary Revolver Loan, in
each case during the period from and including the last payment date to and
excluding the payment date for such installment; provided that, each such
installment shall be calculated in accordance with Section 5.1(f).
5.6 Discretionary Facility Fronting Fees. With respect to each
Discretionary Loan (to the extent applicable), Restricted Borrowers shall pay to
the Administrative Agent for the account of the appropriate Discretionary
Lenders, the fees in such amounts and on such dates agreed to in writing by
Restricted Borrowers, Administrative Agent, and such Discretionary Lenders in
the applicable Supplemental Credit Documents for such Discretionary Loan.
SECTION 6 SECURITY; GUARANTIES.
6.1 Guaranties. As an inducement to Agents and Lenders to enter into
this Agreement, Restricted Borrowers shall and shall cause each other Company to
execute and deliver to Administrative Agent a Guaranty substantially in the form
and upon the terms of Exhibit C, providing for the guaranty of payment and
performance of the Obligation. In addition, promptly after the designation,
formation, or Acquisition of any new Company, Restricted Borrowers shall cause
such new Company to execute and deliver to Administrative Agent a Guaranty
substantially in the form and upon the terms of Exhibit C, providing for the
guaranty of payment and performance of the Obligation.
44
6.2 Collateral.
(a) Parent Collateral. To secure the full and complete payment
and performance of the Obligation, Restricted Borrowers shall cause
each of Ft. ▇▇▇▇▇ Acquisition Limited Partnership, Century Cable
Holding Corp., any other Subsidiary of ACC, and any member of the Rigas
Family which owns any equity interest in any Restricted Borrower (each
a "Parent"), to enter into Collateral Documents pursuant to which each
such entity or individuals grants, pledges, assigns, and creates first
priority Liens in favor of Administrative Agent (for the ratable
benefit of Lenders) in 100% of the issued and outstanding stock,
equity, partnership interests, or other investment securities of each
Restricted Borrower owned by such entity or individual.
(b) Restricted Borrowers' Collateral. To secure the full and
complete payment and performance of the Obligation, each Restricted
Borrower shall (and shall cause each other Company to) enter into
Collateral Documents (in form and substance acceptable to
Administrative Agent) pursuant to which each such entity shall, to the
extent permitted by applicable Law, grant, pledge, assign, and create
first priority Liens in favor of Administrative Agent (for the ratable
benefit of Lenders) in and to 100% of each such entity's Rights,
titles, and interests in the issued and outstanding stock, equity,
partnership interests, or other investment securities of each
Restricted Subsidiary of such entity.
6.3 Future Liens. Other than as permitted in Section 6.6, promptly upon
the designation, formation, or Acquisition of any new Restricted Subsidiary of
any Company (each new Restricted Subsidiary being referred to herein as the
"Additional Assets"), Restricted Borrowers shall (or shall cause the appropriate
Company to) execute and deliver to Administrative Agent all further instruments
and documents (including, without limitation, Collateral Documents and all
certificates and instruments representing shares of stock or other equity
interests), and shall take all further action that may be necessary or
desirable, or that Administrative Agent may reasonably request, to grant,
perfect, and protect Liens in favor of Administrative Agent for the benefit of
Lenders in such Additional Assets, as security for the Obligation to the extent
Liens are required in such assets pursuant to Section 6.2; it being expressly
understood that the granting of such additional security for the Obligation is a
material inducement to the execution and delivery of this Agreement by each
Lender. Upon satisfying the terms and conditions hereof, such Additional Assets
shall be included in the "Collateral" for all purposes under the Loan Documents,
and all references to the "Collateral" in the Loan Documents shall include the
Additional Assets.
6.4 Release of Collateral.
(a) Upon Sale or Disposition of Collateral or Designation of
an Unrestricted Subsidiary. Upon any sale, transfer, or disposition of
Collateral which is expressly permitted pursuant to the Loan Documents
(or is otherwise authorized by requisite Lenders) or upon the
designation of an Unrestricted Subsidiary in accordance with Section
9.31, and upon ten (10) Business Days' (or such lesser time period
agreed to by Administrative Agent in its sole discretion) prior written
request by Restricted Borrowers (which request must be accompanied by
true and correct copies of (i) all documents of transfer or
disposition, including any contract of sale, and (ii) all requested
release instruments), Administrative Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may
be necessary to evidence the release of Liens granted to Administrative
Agent for the benefit of Lenders pursuant hereto in such Collateral or
to release the Guaranty executed by such Unrestricted Subsidiary.
(b) Upon Repayment by Unrestricted Borrower and Undesignation
of Designated Amount for an Unrestricted Borrower. Upon the repayment
in full of all Borrowings made by any Unrestricted Borrower and any
other Obligation for which it is liable hereunder and delivery by
Restricted
45
Borrowers of written notice to Administrative Agent that the Designated
Amount for such Unrestricted Borrower is no longer designated,
Administrative Agent shall (and is hereby irrevocably authorized by the
Lenders to) execute such documents as may be necessary to evidence the
release of such Unrestricted Borrower.
(c) Upon any Restricted Payment in the form of a Restricted
Subsidiary. If any Restricted Borrower makes a Restricted Payment
permitted by Section 9.20(i) or (j) in the form of a Restricted
Subsidiary, Administrative Agent shall (and is hereby irrevocably
authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Guaranty executed by such
Restricted Subsidiary and the Liens granted to Administrative Agent for
the benefit of Lenders in the stock or other equity interests in such
Restricted Subsidiary.
(d) General Provisions. The actions of Administrative Agent
under this Section 6.4 are subject to the following: (i) no such
release of Liens or Guaranties shall be granted if any Default or
Potential Default has occurred and is continuing, including, without
limitation, the failure to make certain mandatory prepayments in
accordance with Section 3.3(b) in conjunction with the sale or transfer
of such Collateral; (ii) Administrative Agent shall not be required to
execute any such document on terms which, in Administrative Agent's
opinion, would expose Administrative Agent to liability or create any
obligation or entail any consequence other than the release of such
Liens without recourse or warranty; and (iii) such release shall not in
any manner discharge, affect, or impair the Obligation or Liens upon
all interests retained by the Companies.
6.5 Negative Pledge. The Companies hereby covenant and agree not to
directly create, incur, grant, suffer, or permit to be created or incurred any
Lien on any assets of the Companies, other than Permitted Liens; it being
expressly understood that the provisions of this negative pledge are a material
inducement to the execution and delivery of this Agreement by each Lender.
6.6 Control; Limitation of Rights. Notwithstanding anything herein or
in any other Loan Document to the contrary, (a) the transactions contemplated
hereby (i) do not and will not constitute, create, or have the effect of
constituting or creating, directly or indirectly, actual or practical ownership
of Restricted Borrowers, their Subsidiaries, or any other Loan Party by Agents
or Lenders, or control, affirmative or negative, direct or indirect, by Agents
or Lenders over the management or any other aspect of the operation of
Restricted Borrowers, their Subsidiaries, or any other Loan Party, which
ownership or control remains exclusively and at all times in the Loan Parties,
and (ii) do not and will not constitute the transfer, assignment, or disposition
in any manner, voluntary or involuntary, directly or indirectly, of any
Authorization of Restricted Borrowers, their Subsidiaries, or any other Loan
Party, or the transfer of control of Restricted Borrowers, their Subsidiaries,
or any other Loan Party within the meaning of Section 310(d)] of the
Communications Act; and (b) Administrative Agent shall not, without first
obtaining the approval of the FCC or any Franchisee, take any action pursuant to
any Loan Document that would constitute or result in any assignment of any
Authorization or any change of control of Restricted Borrowers, their
Subsidiaries, or any other Loan Party, if such assignment or change of control
would require, under then existing Law (including the written rules and
regulations promulgated by the FCC or any such Franchisee), the prior approval
of the FCC or any such Franchisee.
SECTION 7 CONDITIONS PRECEDENT.
7.1 Conditions Precedent to Closing. This Agreement shall not become
effective, and Lenders shall not be obligated to advance any Borrowing and
Issuing Lenders shall not be obligated to issue any LC, unless Administrative
Agent has received all of the agreements, documents, instruments, and other
items described on Schedule 7.1.
46
7.2 Conditions Precedent to Unrestricted Borrowers. No Person shall
become an Unrestricted Borrower until such Unrestricted Borrower shall have
satisfied the conditions and delivered, or caused to be delivered, to
Administrative Agent, all documents and certificates set forth on Schedule 7.2
by no later than the dates specified for satisfaction of such conditions on
Schedule 7.2. All documentation delivered and satisfaction of conditions
pursuant to the requirements of Section 7.2 must be reasonably satisfactory to
Administrative Agent. To the extent any Borrowing is being requested in
connection with any Person becoming an Unrestricted Borrower, the conditions set
forth in Section 7.3 must be satisfied prior to the making of any such
Borrowing.
7.3 Conditions Precedent to Each Borrowing. In addition to the
conditions stated in Section 7.1 and Section 7.2 (as applicable), Lenders will
not be obligated to fund (as opposed to continue or convert) any Borrowing, and
no Issuing Lender will be obligated to issue any LC, as the case may be, unless
on the date of such Borrowing or issuance (and after giving effect thereto), as
the case may be: (a) Administrative Agent or Issuing Lender (as applicable)
shall have timely received therefor a Borrowing Notice or a LC Request (together
with the applicable LC Agreement), as the case may be; (b) Administrative Agent
shall have received, as applicable, the LC fees provided for in Section 5.4
hereof; (c) all of the representations and warranties of any Company (or, in
addition, with respect to any Borrowing by any Unrestricted Borrower, such
Unrestricted Borrower) set forth in the Loan Documents are true and correct in
all material respects (except to the extent that (i) the representations and
warranties speak to a specific date or (ii) the facts on which such
representations and warranties are based have been changed by transactions
permitted by the Loan Documents); (d) no Default or Potential Default shall have
occurred and be continuing; and (e) the funding of such Borrowings and issuance
of such LC, as the case may be, is permitted by Law. Each Borrowing Notice and
LC Request delivered to Administrative Agent and Issuing Lenders (as applicable)
shall constitute the representation and warranty by Borrowers to Funding Agent
and Issuing Lenders that, as of the Borrowing Date or the date of issuance of
the LC, as the case may be, the statements above are true and correct in all
respects. Each condition precedent in this Agreement is material to the
transactions contemplated in this Agreement, and time is of the essence in
respect of each thereof. Subject to the prior approval of Required Lenders,
Lenders may fund any Borrowing, and Issuing Lenders may issue any LC, without
all conditions being satisfied, but, to the extent permitted by Law, the same
shall not be deemed to be a waiver of the requirement that each such condition
precedent be satisfied as a prerequisite for any subsequent funding or issuance,
unless Required Lenders specifically waive each such item in writing.
SECTION 8 REPRESENTATIONS AND WARRANTIES. Each Loan Party represents and
warrants (to the extent such provision is applicable to such Person) to
Co-Administrative Agents and Lenders as follows:
8.1 Purpose of Credit Facility. Borrowers will use (or will invest in
or loan such proceeds to its Restricted Subsidiaries to so use) all proceeds of
Borrowings for one or more of the following: (a) to finance Acquisitions,
including without limitation, the Acquisitions of the Cablevision Cleveland CATV
Systems and the Prestige Cable CATV Systems; (b) for working capital of Loan
Parties; and (c) for general limited liability company, partnership, and
corporate purposes. No Loan Party is engaged in the business of extending credit
for the purpose of purchasing or carrying any "margin stock" within the meaning
of Regulation U. No part of the proceeds of any Borrowing will be used, directly
or indirectly, for a purpose which violates any Law, including, without
limitation, the provisions of Regulations T, U, or X (as enacted by the Board of
Governors of the Federal Reserve System, as amended).
8.2 Existence, Good Standing, and Authority. Each Loan Party is duly
organized, validly existing, and in good standing under the Laws of its
jurisdiction of organization (such jurisdictions being identified on Schedule
8.3, as supplemented and modified in writing from time to time to reflect any
changes to such Schedule as a result of transactions permitted by the Loan
Documents). Except where the failure to do so would not reasonably be expected
to constitute a Material Adverse Event, each Loan Party is duly qualified to
transact business and is in good standing in each jurisdiction where the nature
and extent of its
47
business and properties require the same. No authorization, consent, approval,
waiver, license, or formal exemptions from, nor any filing, declaration, or
registration with, any Governmental Authority (federal, state, or local),
non-governmental entity, or Person under the terms of contracts or otherwise, is
required by reason of or in connection with the execution and performance of the
Loan Documents by the Loan Parties.
8.3 Subsidiaries; Capital Stock. The Companies have no Subsidiaries
except as disclosed on Schedule 8.3 (as supplemented and modified in writing
from time to time to reflect any changes to such Schedule as a result of
transactions permitted by the Loan Documents). All of the outstanding shares of
capital stock (or similar voting interests) of each Company are duly authorized,
validly issued, fully paid, and nonassessable and are owned of record and
beneficially as set forth on Schedule 8.3 (as supplemented and modified in
writing from time to time to reflect any changes to such Schedule as a result of
transactions permitted by the Loan Documents), free and clear of any Liens,
restrictions, claims, or Rights of another Person, other than Permitted Liens,
and none of such shares owned by any Company is subject to any restriction on
transfer thereof except for restrictions imposed by applicable securities Laws
and general corporate Laws and any restrictions on transferability by any
Governmental Authority with respect to the Authorizations. No Company or any
Subsidiary thereof has outstanding any warrant, option, or other Right of any
Person to acquire any of its capital stock or similar equity interests.
8.4 Authorization and Contravention. The execution and delivery by each
Loan Party of each Loan Document to which it is a party and the performance by
such Loan Party of its obligations thereunder (a) are within the corporate or
organizational power of such Loan Party; (b) will have been duly authorized by
all necessary limited liability company, corporate, or partnership action on the
part of such Loan Party when such Loan Document is executed and delivered, (c)
require no action by or in respect of, or filing with, any Governmental
Authority, which action or filing has not been taken or made on or prior to the
Closing Date (or if later, the date of execution and delivery of such Loan
Document), (d) will not violate any provision of the charter, bylaws,
organizational documents, or partnership agreement of such Loan Party; (e) will
not violate any provision of Law applicable to such Loan Party, other than such
violations which individually or collectively would not reasonably be expected
to constitute a Material Adverse Event, (f) will not violate any material
written or oral agreements, contracts, commitments, or understandings to which
such Loan Party is a party, other than such violations which would not
reasonably be expected to constitute a Material Adverse Event, or (g) will not
result in the creation or imposition of any Lien on any asset of any Loan Party,
other than as contemplated by this Agreement. Each Loan Party has (or will have
upon consummation thereof) all necessary consents and approvals of any Person or
Governmental Authority required to be obtained in order to effect any asset
transfer, change of control, merger, or consolidations permitted by the Loan
Documents except where the failure to so obtain would not reasonably be expected
to be a Material Adverse Event.
8.5 Binding Effect. Upon execution and delivery by all parties thereto,
each Loan Document 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
Debtor Relief Laws and general principles of equity.
8.6 Financial Statements. The Current Financials were prepared in
accordance with GAAP and present fairly, in all material respects, the combined
financial condition, results of operations, and, as applicable, cash flows of
the Companies and Subsidiaries thereof covered thereby ("Reporting Entities") as
of and for the portion of the fiscal year ending on the date or dates thereof
(subject only to normal year-end audit adjustments for interim statements).
There were no material liabilities, direct or indirect, fixed or contingent, of
the Reporting Entities as of the date or dates of the Current Financials which
are required under GAAP to be reflected therein or in the notes thereto, and are
not so reflected. Except for transactions directly related to, specifically
contemplated by, or expressly permitted by, the Loan Documents, (a) there have
been no changes in the combined financial condition or operations of the
Reporting Entities from that shown in the Current Financials described in clause
(a) of the definition of Current Financials in Section 1.1 which would
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be a Material Adverse Event, nor has any Reporting Entity incurred any liability
(including, without limitation, any Environmental Liability), direct or
indirect, fixed or contingent, after such date which would be a Material Adverse
Event, and (b) no Reporting Entity has incurred any liability (including,
without limitation, any Environmental Liability), direct or indirect, fixed or
contingent, after such date which would be a Material Adverse Event.
8.7 Litigation, Claims, Investigations. No Company is subject to, or
aware of the threat of, any Litigation which is reasonably likely to be
determined adversely to any Company, and, if so adversely determined, would
(individually or collectively with other Litigation) reasonably be expected to
be a Material Adverse Event. There are no outstanding orders or judgments for
the payment of money in excess of $25,000,000 (individually or collectively) or
any warrant of attachment, sequestration, or similar proceeding against the
assets of any Company or any Subsidiary thereof having a value (individually or
collectively) of $25,000,000 or more which is not either (a) stayed on appeal or
(b) being diligently contested in good faith by appropriate proceedings and
adequate reserves have been set aside on the books of such Company in accordance
with GAAP. There are no formal complaints, suits, claims, investigations, or
proceedings initiated at or by any Governmental Authority pending or threatened
by or against any Company which would reasonably be expected to be a Material
Adverse Event, nor any judgments, decrees, or orders of any Governmental
Authority outstanding against any Company that would reasonably be expected to
be a Material Adverse Event.
8.8 Taxes. All Tax returns of each Company and each Subsidiary thereof
required to be filed have been filed (or extensions have been granted) prior to
delinquency, except for any such returns for which the failure to so file would
not reasonably be expected to be a Material Adverse Event, and all Taxes imposed
upon each Company which are due and payable have been paid prior to delinquency,
other than Taxes for which the criteria for Permitted Liens (as specified in
Section 9.13(b)(vii)) have been satisfied or for which nonpayment thereof would
not reasonably be expected to be a Material Adverse Event.
8.9 Environmental Matters. No Company or any Subsidiary thereof (a)
knows of any environmental condition or circumstance, such as the presence or
Release of any Hazardous Substance, on any property presently or previously
owned by any Company that would reasonably be expected to be a Material Adverse
Event, (b) knows of any violation by any Company of any Environmental Law,
except for such violations that would not reasonably be expected to be a
Material Adverse Event, or (c) knows that any Company is under any obligation to
remedy any violation of any Environmental Law, except for such obligations that
would not reasonably be expected to be a Material Adverse Event; provided,
however, that each Company (x) to the best of its knowledge, has in full force
and effect all material Environmental Permits, licenses, and approvals required
to conduct its operations and is operating in substantial compliance thereunder,
and (y) has taken prudent steps to determine that its properties and operations
are not in violation of any Environmental Law.
8.10 Employee Benefit Plans. No Company, any Restricted Subsidiary
thereof, or any ERISA Affiliate of any Company has maintained or will maintain
any Employee Plans. No Company, any Restricted Subsidiary thereof, or any ERISA
Affiliate of any Company has engaged in any "prohibited transaction" (as defined
in Section 406 of ERISA or Section 4975 of the Code) which would be a Material
Adverse Event.
8.11 Properties; Liens. Each Company has good and marketable title to,
or valid leasehold interests in, all its property reflected on the Current
Financials, except (a) for (i) property that is obsolete, (ii) property that has
been disposed of in the ordinary course of business, or (iii) property with
title defects or failures in title which would not be a Material Adverse Event,
or (b) as otherwise permitted by the Loan Documents. Except for Permitted Liens,
there is no Lien on any property of any Company, and the execution, delivery,
performance, or observance of the Loan Documents will not require or result in
the creation of any Lien on such property.
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8.12 Government Regulations. No Loan Party or Subsidiary thereof is
subject to regulation under the Investment Company Act of 1940, as amended, the
Public Utility Holding Company Act of 1935, as amended, or any other Law (other
than Regulations T, U, and X of the Board of Governors of the Federal Reserve
System and the requirements of the FCC or any Franchisee) which regulates the
incurrence of Debt.
8.13 Transactions with Affiliates. Except as permitted in Section 9.14,
no Company is a party to a material transaction with any of its Affiliates
(excluding transactions between or among Companies), other than transactions in
the ordinary course of business and upon fair and reasonable terms not
materially less favorable than such Company could obtain or could become
entitled to in an arm's-length transaction with a Person that was not its
Affiliate.
8.14 Debt. No Company is an obligor on any Debt other than Permitted
Debt.
8.15 Material Agreements. There are no failures of any material written
or oral agreements, contracts, commitments, or understandings to which any
Company is a party (including without limitation, any material agreement with
any public utility or microwave transmission company, pole use access or rental
agreement [including any Pole Agreement or Pole Rental Lease] or any other
utility easement, necessary to own and operate such Company's property and its
CATV Systems and to carry on its business as presently conducted or as presently
planned to be conducted) to be in full force and effect which would reasonably
be expected to be a Material Adverse Event, and no default or potential default
exists on the part of any Company thereunder which would reasonably be expected
to be a Material Adverse Event.
8.16 Insurance. Each Company maintains, with financially sound,
responsible, and reputable insurance companies or associations, insurance
concerning its properties and businesses against such casualties and
contingencies and of such types and in such amounts (and with co-insurance and
deductibles) as is customary in the case of same or similar businesses.
8.17 Solvency. On the Closing Date and at the time of each Borrowing
hereunder, each Company (and, in addition, with respect to any Borrowing by any
Unrestricted Borrower, such Unrestricted Borrower) is (and after giving effect
to the transactions contemplated by the Loan Documents and any incurrence of
additional Debt, will be) Solvent.
8.18 Intellectual Property. Except where such failure would reasonably
be expected to constitute a Material Adverse Event, each Company owns or has
sufficient and legally enforceable Rights to use all licenses, patents, patent
applications, copyrights, service marks, trademarks, trademark applications, and
trade names necessary to continue to conduct its businesses as heretofore
conducted by it, now conducted by it, and now proposed to be conducted by it. To
its knowledge, each Company is conducting its business without infringement or
claim of infringement of any license, patent, copyright, service ▇▇▇▇,
trademark, trade name, trade secret, or other intellectual property right of
others, other than any such infringements or claims which, if successfully
asserted against or determined adversely to any Company, would not, individually
or collectively, reasonably be expected to constitute a Material Adverse Event.
8.19 Compliance with Laws; CATV Systems.
(a) Applicable Laws. No Company or the CATV Systems owned by
them is in violation of, nor will the continued operation of their
properties and assets as currently conducted, violate any Laws
(including, without limitation, the Communications Act, the Copyright
Revision Act of 1976, and the rules and regulations of the FCC, any
Franchisee, and the United States Copyright Office, including, without
limitation, Laws governing system registration, use of aeronautical
frequencies and signal carriage, equal employment opportunity,
cumulative leakage index testing and reporting, signal leakage, and
subscriber privacy), other than such violations which would not,
individually or
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collectively, be a Material Adverse Event. No Company has received
notice alleging any noncompliance with any Laws, except for such
noncompliance which no longer exists, or which would not reasonably be
expected to constitute a Material Adverse Event.
(b) CATV Systems. Without limiting the generality of the
foregoing (except to the extent that the failure to comply with any of
the following would not (either individually or in the aggregate)
reasonably be expected to be a Material Adverse Event and except as set
forth in Schedule 8.19 hereto):
(i) the communities included in the areas covered by
the Franchises have been registered with the FCC;
(ii) all of the annual performance tests on such CATV
Systems required under the rules and regulations of any
Governmental Authority have been performed and the results of
such tests demonstrate satisfactory compliance with the
applicable requirements being tested in all material respects;
(iii) to the knowledge of the Companies, such CATV
Systems currently meet or exceed the technical standards set
forth in the rules and regulations of the FCC, including,
without limitation, the leakage limits contained in 47 C.F.R.
SS 76.605(a)(12);
(iv) to the knowledge of the Companies, such CATV
Systems are being operated in compliance with the provisions
of 47 C.F.R. SS 76.610 through 76.619 (mid-band and super-band
signal carriage), including 47 C.F.R. SS 76.611 (compliance
with the cumulative signal leakage index); and
(v) to the knowledge of the Companies, where
required, appropriate Authorizations have been obtained for
the use of all aeronautical frequencies in use in such CATV
Systems and such CATV Systems are presently being operated in
compliance with such Authorizations (and all required
Authorizations from Governmental Authorities, including the
Federal Aviation Administration, with respect to all towers,
earth stations, business radios and frequencies utilized and
carried by such CATV Systems have been obtained).
(c) Copyright Filings. To the knowledge of the Companies, all
notices, statements of account, supplements and other documents
(collectively, the "Copyright Filings") required under Section 111 of
the Copyright Act of 1976 and under the rules of the Copyright Office
with respect to the carriage of broadcast station signals by the CATV
Systems to be owned by the Companies have been duly filed, and the
proper amount of copyright fees have been paid on a timely basis, and
each such CATV System qualifies for the compulsory license under
Section 111 of the Copyright Act of 1976, except to the extent that the
failure to so file or pay would not (either individually or in the
aggregate) reasonably be expected to be a Material Adverse Event. To
the knowledge of the Companies, there is no pending claim, action,
demand, or Litigation by any other person with respect to the Copyright
Filings or related royalty payments made by such CATV Systems that, if
adversely determined, would, individually or in the aggregate,
reasonably be expected to be a Material Adverse Event.
(d) Off-Air Signals. The carriage of all off-air signals by
the CATV Systems to be owned by the Companies is permitted by valid
transmission consent agreements or by must-carry elections by
broadcasters, or is otherwise permitted under applicable Law, except to
the extent the failure to
51
obtain any of the foregoing would not (either individually or in the
aggregate) reasonably be expected to be a Material Adverse Event.
(e) Operating Assets Sufficient. The assets of the CATV
Systems to be owned by the Companies are adequate and sufficient in all
material respects for all of the current operations of such CATV
Systems.
8.20 Acquisitions.
(a) Validity. With respect to any Acquisitions, each Company
has the power and authority under the Laws of its state of
incorporation or organization and under its articles of incorporation
and bylaws, organizational documents, or partnership agreement, as
applicable, to enter into and perform the related Acquisition agreement
to which it is a party and all other agreements, documents, and actions
required thereunder; and all actions (corporate or otherwise) necessary
or appropriate by the Companies for the execution and performance of
said Acquisition agreements, and all other documents, agreements, and
actions required thereunder, have been taken, and, upon their
execution, such Acquisition agreements will constitute the valid and
binding obligation of the Companies party thereto, enforceable in
accordance with their respective terms.
(b) No Violations. With respect to any Acquisition, the making
and performance of the related Acquisition agreements, and all other
agreements, documents, and actions required thereunder, will not
violate any provision of any Law, including, without limitation, all
state corporate Laws and judicial precedents of the states of
incorporation or formation of the Companies, and will not violate any
provisions of the articles of incorporation, bylaws, or partnership
agreements of the Companies, or constitute a default under any
agreement by which the Companies or their respective property may be
bound, except where such violation would not reasonably be expected to
be a Material Adverse Event.
(c) Authorizations. With respect to any Acquisition, no
Authorization, waiver, or formal exemptions from, nor any filing,
declaration, or registration with, any Governmental Authority (federal,
state, or local), non-governmental entity, or other Person under the
terms of contracts or otherwise, is required by reason of or in
connection with the execution and performance of the acquisition
agreement related to such Acquisition or the consummation of such
Acquisition, other than as will be obtained on or prior to, or will
become effective concurrently with, the closing date of such
Acquisition except where the failure to do so would not reasonably be
expected to be a Material Adverse Event.
8.21 Regulation U. "Margin Stock" (as defined in Regulation U)
constitutes less than 25% of those assets of any Loan Party, which are subject
to any limitation on sale, pledge, or other restrictions hereunder.
8.22 Year 2000. All of the material computer software, computer
firmware, computer hardware (whether general or special purpose), and other
similar or related items of automated, computerized, and/or software systems
that are used or relied on by the Companies in the conduct of their respective
businesses have not malfunctioned, have not ceased to function, have not
generated incorrect data, and have not produced incorrect results when
processing, providing, and/or receiving (a) date-related data into, between, and
during year 1999 and year 2000 and (b) date-related data in connection with any
valid date in year 1999 or year 2000, unless such malfunction, cessation, or
incorrect results would not reasonably be expected to be a Material Adverse
Event.
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8.23 No Default. No Default or Potential Default exists or will
arise as a result of the execution, delivery, or performance of the Loan
Documents or of any Borrowing hereunder.
8.24 Authorizations. Except where the failure to do so would not be a
Material Adverse Event, each Company possesses all Authorizations and grants of
authority necessary or required in the conduct of its respective business(es),
and the same are valid, binding, enforceable, and subsisting without any
defaults thereunder by any Company or enforceable adverse limitations thereon
and are not subject to any proceedings or claims known to any Company opposing
the issuance, development, or use thereof or contesting the validity thereof.
Each Franchise of the Companies was issued pursuant to each agreement set forth
on Schedule 8.24, was lawfully issued pursuant to the rules and regulations of
each jurisdiction set forth on Schedule 8.24, and authorizes the Companies to
operate such Franchise until the dates set forth on Schedule 8.24, and no other
or further approval, filing, or other action of any Governmental Authority is or
will be necessary or advisable in order to permit the Companies' operation of
its CATV Systems in accordance with the terms thereof. Schedule 8.24 correctly
identifies each Franchisee. Each Company is in compliance with all material
terms and conditions of each of its respective Authorizations and no event has
occurred or exists which permits or, after the giving of notice or the lapse of
time or both, would permit the revocation or termination of any such
Authorization. No Unrestricted Subsidiary owns or has rights to any FCC License
or Franchise necessary for the ongoing operations of the Companies and their
Restricted Subsidiaries or their respective CATV Systems.
8.25 Full Disclosure. There is no material fact or condition relating
to the Loan Documents or the financial condition, business, or property of any
Company or any Subsidiary thereof which would reasonably be expected to be a
Material Adverse Event and which has not been related, in writing, to
Administrative Agent. All information heretofore furnished by any Company to any
Lender or Administrative Agent in connection with the Loan Documents was, and
all such information hereafter furnished by any Company to any Lender or
Administrative Agent will be, true and accurate in all material respects or
based on reasonable estimates on the date as of which such information is stated
or certified.
SECTION 9 COVENANTS. Each Loan Party covenants and agrees (and agrees to cause
its ERISA Affiliates with respect to Section 9.10) to perform, observe, and
comply with each of the following covenants applicable to such Person, from the
Closing Date and so long thereafter as Lenders are committed to fund Borrowings
and any Issuing Lender is committed to issue LCs under this Agreement and
thereafter until the payment in full of the Principal Debt (and termination of
outstanding LCs, if any) and payment in full of all other interest, fees, and
other amounts of the Obligation then due and owing, unless Restricted Borrowers
receive a prior written consent to the contrary by Administrative Agent as
authorized by Required Lenders:
9.1 Use of Proceeds. Borrowers shall use (and shall cause each other
Company to use) the proceeds of Borrowings only for the purposes set forth in
Section 8.1.
9.2 Books and Records. The Companies shall maintain books, records, and
accounts necessary to prepare financial statements in accordance with GAAP.
9.3 Items to be Furnished. Restricted Borrowers shall cause the
following to be furnished to Administrative Agent for delivery to Lenders:
(a) Promptly after preparation, and no later than 120 days
after the last day of each fiscal year of Restricted Borrowers,
Financial Statements showing the combined financial condition and
results of operations calculated for the Companies, as of, and for the
year ended on, such day, each accompanied by:
(i) the opinion of a firm of nationally-recognized
independent certified public accountants, based on an audit
using generally accepted auditing standards, (A) that such
53
Financial Statements were prepared in accordance with GAAP and
present fairly in all material respects the combined financial
condition and results of operations of the Companies, and (B)
that is not qualified with respect to scope limitations
imposed by any Company, with respect to accounting principles
followed by any Company not in accordance with GAAP, or with
respect to a "going concern" or similar nature;
(ii) a subscriber count and information regarding the
number of homes passed as of the end of such fiscal year; and
(iii) a Compliance Certificate in substantially the
form of Exhibit E.
(b) Promptly after preparation, and no later than 90 days
after the last day of each of the first 3 fiscal quarters of each
fiscal year of Restricted Borrowers, Financial Statements showing the
combined financial condition and results of operations calculated for
the Companies for such fiscal quarter and for the period from the
beginning of the then-current fiscal year to, such last day,
accompanied by (i) a subscriber count and information regarding the
number of homes passed as of the end of such fiscal quarter and (ii) a
Compliance Certificate in substantially the form of Exhibit E.
(c) Notice, no later than five Business Days after any Company
knows or has reason to know of (i) the existence and status of any
Litigation, order or judgment for the payment of money, or any warrant
of attachment, sequestration, or similar proceeding against the assets
of any Company which (individually or collectively) would reasonably be
expected to be a Material Adverse Event, (ii) any condition, event, or
development which is or could reasonably be expected to be a Material
Adverse Event, (iii) a Default or Potential Default specifying the
nature thereof and what action any Company has taken, is taking, or
proposes to take with respect thereto, (iv) any federal, state, or
local Law limiting or controlling the operations of any Company which
has been issued or adopted hereafter and which would reasonably be
expected to be a Material Adverse Event, (v) the receipt by any Company
of notice of any violation or alleged violation of any Environmental
Law or Environmental Permit or written notification of any
Environmental Liability or potential Environmental Liability, which
violation or liability or alleged violation or liability would
reasonably be expected, individually or collectively with other such
violations or allegations, to constitute a Material Adverse Event, or
(vi) (A) any expressed statement in writing on the part of the PBGC of
any "prohibited transaction," or (B) the creation of, maintenance of,
or acquisition of any Employee Plan by any Company, any Subsidiary
thereof, or any ERISA Affiliate of any Company.
(d) Promptly after any of the information or disclosures
provided on any of the Schedules delivered pursuant to this Agreement
or any Annexes to any of the Collateral Documents becomes outdated or
incorrect in any material respect, such revised or updated Schedule(s)
or Annexes as may be necessary or appropriate to update or correct such
information or disclosures; provided that, no deletions may be made to
any Annexes describing Collateral in any of the Collateral Documents
except as otherwise permitted by the Loan Documents or approved by the
requisite Lenders.
(e) Promptly upon request therefor by Administrative Agent or
any Lender, such information (not otherwise required to be furnished
under the Loan Documents) respecting the business affairs, assets, and
liabilities of the Companies, and such opinions, certifications, and
documents, in addition to those mentioned in this Agreement, as
reasonably requested.
9.4 Inspections. Each Company will permit any Representatives
designated by Administrative Agent or any Lender to visit and inspect the
financial records and the properties of the Companies at reasonable times and as
often as reasonably requested and to make extracts from and copies of such
financial records, and permit any Representatives designated by Administrative
Agent or any Lender to discuss the affairs, finances,
54
and condition of the Companies with the officers thereof and independent
accountants therefor (it being understood that the Restricted Borrowers shall be
entitled to be present at any meeting scheduled between such independent
accountants and Administrative Agent or a Lender to discuss the affairs,
finances, and condition of the Companies, but the Restricted Borrowers' failure
to attend any such meeting of which it has received at least three Business Days
notice shall not preclude any such meeting from taking place).
9.5 Taxes. Each Company (a) shall (and shall cause each of its
Subsidiaries to) promptly pay when due any and all Taxes other than Taxes the
applicability, amount, or validity of which is being contested in good faith by
lawful proceedings diligently conducted, and against which reserve or other
provision required by GAAP has been made, and in respect of which levy and
execution of any lien securing same have been and continue to be stayed, and (b)
shall not, directly or indirectly, use any portion of the proceeds of any
Borrowing to pay the wages of employees unless a timely payment to or deposit
with the appropriate Governmental Authorities of all amounts of Tax required to
be deducted and withheld with respect to such wages is also made.
9.6 Payment of Obligations.
(a) Borrowers shall pay the Obligation in accordance with the
terms and provisions of the Loan Documents. Restricted Borrowers shall
be jointly and severally liable for the Obligation. The liability of
any Unrestricted Borrower shall be limited to the amounts actually
advanced to such Unrestricted Borrower. Notwithstanding any contrary
provision, it is the intention of Restricted Borrowers, Lenders, and
Administrative Agent that the amount of the Obligation for which any
Restricted Borrower is liable shall be, but not in excess of, the
maximum amount permitted by fraudulent conveyance, fraudulent transfer,
or similar Laws applicable to such Restricted Borrower. Accordingly,
notwithstanding anything to the contrary contained in this Agreement or
any other agreement or instrument executed in connection with the
payment of any of the Obligation, the amount of the Obligation for
which any Restricted Borrower is liable shall be limited to an
aggregate amount equal to the largest amount that would not render such
Restricted Borrower's obligations hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable
provision of any applicable state Law.
(b) Each Company (i) shall promptly pay (or renew and extend)
all of its material obligations as the same become due (unless such
obligations [other than the Obligation] are being contested in good
faith by appropriate proceedings and against which reserves or other
provision required by GAAP has been made), and (ii) except as permitted
in Section 9.20(i) and (j), shall not (A) make any voluntary prepayment
of principal of, or interest on, any other Debt (other than the
Obligation) in excess of $25,000,000 in the aggregate from the Closing
Date, provided that prepayment of any Affiliate Debt or Subordinated
Debt must be permitted by Section 9.20(i) or (j), and no payment shall
result in a Default or Potential Default hereunder, or (B) use proceeds
from the Facilities or any Discretionary Loan to make any voluntary
prepayment of principal of, or interest on, or sinking fund payment in
respect of any Debt of any Company or Subsidiary thereof.
(c) Except as permitted in Section 9.20(i) and (j), no Company
shall make any payment on any Subordinated Debt when it violates the
subordination provisions thereof or results in a Default or Potential
Default hereunder.
9.7 Maintenance of Existence, Assets, and Business. Except as otherwise
permitted by Sections 9.20(g), (h), (i), and (j) or 9.24, each Company shall at
all times: (a) maintain its existence and good standing in the jurisdiction of
its organization and its authority to transact business in all other
jurisdictions where the failure to so maintain its authority to transact
business would reasonably be expected to be a Material Adverse Event; and (b)
keep all of its assets which are useful in and necessary to its business in good
working order and
55
condition (ordinary wear and tear excepted) and make all necessary repairs
thereto and replacements thereof, where the failure to so renew, extend, or
continue in effect would reasonably be expected to be a Material Adverse Event.
9.8 Insurance. The Companies shall, at their cost and expense, maintain
with financially sound, responsible, and reputable insurance companies or
associations insurance covering its properties and business against such risks,
in such amounts, and with no greater risk retention as are customarily
maintained, insured, or retained by companies of established repute engaged in
the same or similar business as the Companies. Upon the request of
Administrative Agent, Restricted Borrowers will furnish to Lenders information
presented in reasonable detail as to the insurance so carried.
9.9 Preservation and Protection of Rights. Each Loan Party shall (and
shall cause each Restricted Subsidiary thereof to) perform such acts and duly
authorize, execute, acknowledge, deliver, file, and record any additional
agreements, documents, instruments, and certificates as Administrative Agent or
Required Lenders may reasonably deem necessary or appropriate in order to
preserve and protect the Rights of Administrative Agent and Lenders under any
Loan Document.
9.10 Employee Benefit Plans. No Company, Restricted Subsidiary thereof,
or ERISA Affiliate of any Company shall, directly or indirectly, engage in any
"prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code), or (without notice to Administrative Agent and execution of
appropriate amendments to the Loan Documents) maintain, create, or participate
in any Employee Plan.
9.11 Environmental Laws. Each Company shall (and shall cause each
Subsidiary thereof to) (a) use commercially reasonable efforts to conduct its
business so as to comply with all applicable Environmental Laws and shall
promptly take corrective action to remedy any non-compliance with any
Environmental Law except to the extent such failure to comply or take corrective
action would not reasonably be expected to be a Material Adverse Event, (b)
promptly investigate and remediate any known Release or threatened Release of
any Hazardous Substance on any property owned by any Company or at any facility
operated by any Company to the extent and degree required pursuant to applicable
Environmental Laws except to the extent such failure to perform such
investigation or remediation would not reasonably be expected to be a Material
Adverse Event; and (c) appropriately monitor compliance with applicable
Environmental Laws and minimize financial and other risks to each Company
arising under applicable Environmental Laws or as a result of
environmentally-related injuries to Persons or property; provided that no
Company shall be required to undertake any remedial action to the extent that
any applicable obligation to do so is being contested in good faith and by
proper proceedings and appropriate reserves are being maintained with respect to
such circumstances.
9.12 Debt and Guaranties. No Restricted Borrower shall, nor shall any
Restricted Borrower permit any of its Restricted Subsidiaries to, directly or
indirectly, create, incur, or suffer to exist any direct, indirect, fixed, or
contingent liability for any Debt, other than:
(a) The Obligation and Guaranties thereof;
(b) Debt between Companies;
(c) Deferred Management Fees which have been subordinated
to the Obligation pursuant to the Management Fee Subordination
Agreement;
(d) Debt incurred or assumed by any Company for the purpose of
financing all or any part of the cost of any asset (including Capital
Leases and renewals, extensions, amendments, and modifications of such
Debt), so long as (i) the aggregate amount of such Debt (together with
any and
56
all amendments, modifications, or refinancings thereof) does not exceed
$150,000,000 at any time outstanding and (ii) no Default or Potential
Default then exists or arises as a result of such Debt incurrence;
(e) Subject to the provisions of Section 9.26, Affiliate Debt;
and
(f) Debt of the Companies existing on the Closing Date and
described on Schedule 9.12, together with all renewals, extensions,
amendments, modifications, and refinancings thereof, so long as (x) the
principal amount of any refinanced Debt shall not exceed the principal
amount of the Debt being refinanced immediately prior to giving effect
to any such refinancing; and (y) no Default or Potential Default exists
or arises as a result of any such renewal, extension, amendment,
modification, or refinancing.
9.13 Liens. No Restricted Borrower shall, nor shall any Restricted
Borrower cause or permit any of its Restricted Subsidiaries to, directly or
indirectly, (a) enter into or permit to exist any arrangement or agreement which
directly or indirectly prohibits any Company from creating or incurring any Lien
on any of its assets, other than the Loan Documents, or (b) create, incur, or
suffer or permit to be created or incurred or to exist any Lien upon any of its
assets, except:
(i) Liens securing the Obligation, and so long as the
Obligation is ratably secured therewith, Liens securing Debt incurred
by any Company under any Financial Hedge relating to the Principal Debt
with any Lender or an Affiliate of any Lender;
(ii) Pledges or deposits made to secure payment of worker's
compensation, or to participate in any fund in connection with worker's
compensation, unemployment insurance, pensions, or other social
security programs, but expressly excluding any Liens in favor of the
PBGC or otherwise under ERISA;
(iii) Good-faith pledges or deposits made to secure
performance of bids, tenders, insurance or other contracts (other than
for the repayment of borrowed money), or leases, or to secure statutory
obligations, surety or appeal bonds, or indemnity, performance, or
other similar bonds as all such Liens arise in the ordinary course of
business;
(iv) Encumbrances consisting of zoning restrictions,
easements, or other restrictions on the use of real property, none of
which impairs in any material respect the use of such property by the
Person in question in the operation of its business, and none of which
is violated by existing or proposed structures or land use;
(v) Liens of landlords or of mortgagees of landlords, arising
solely by operation of law, on fixtures and movable property located on
premises leased in the ordinary course of business;
(vi) Liens of carriers, warehousemen, mechanics, materialmen,
repairmen, landlords, 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 and by appropriate
proceedings;
(vii) The following, so long as the validity or amount thereof
is being contested in good faith and by appropriate and lawful
proceedings diligently conducted, reserve or other appropriate
provisions (if any) required by GAAP shall have been made, levy and
execution thereon have been stayed and continue to be stayed, and they
do not in the aggregate materially detract from the value of the
property of the Person in question, or materially impair the use
thereof in the operation of its business: (i) claims and Liens for
Taxes (other than Liens relating to Environmental Laws or ERISA);
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(ii) claims and Liens upon, and defects of title to, real or personal
property, including any attachment of personal or real property or
other legal process prior to adjudication of a dispute of the merits;
and (iii) claims and Liens of mechanics, materialmen, warehousemen,
carriers, landlords, or other like Liens;
(viii) Liens securing Permitted Debt incurred pursuant to
Section 9.12(d), so long as any such Lien does not extend to any asset
other than the asset purchased or financed by such Debt;
(ix) Liens of utilities incurred in the ordinary course of
business on cables and other property affixed to transmission poles
pursuant to Pole Agreements or Pole Rental Leases;.
(x) Liens arising from Uniform Commercial Code financing
statements and similar documents filed on a precautionary basis in
respect of operating leases intended by the parties to be true leases
(other than any such leases entered into in violation of this
Agreement);
(xi) Liens in favor of customs and revenue authorities arising
as a matter of Law to secure payment of customs duties in connection
with the importation of goods;
(xii) Liens upon shares of stock or other ownership
interests held by the Companies in Unrestricted Subsidiaries;
(xiii) Liens for Taxes not yet due and payable;
(xiv) Liens arising out of judgments or awards (other than any
judgment that is described in Section 10.4 which constitutes a Default
thereunder) in respect of which any Restricted Borrower or any of their
Restricted Subsidiaries shall in good faith be prosecuting an appeal or
proceedings for review and in respect of which it shall have secured a
subsisting stay of execution pending such appeal or proceedings for
review, provided any Restricted Borrower or, as applicable, their
respective Restricted Subsidiary, shall have set aside on its books
adequate reserves, in accordance with GAAP, with respect to such
judgment or award to the extent the same is not covered by insurance;
and
(xv) Leases or subleases granted in the ordinary course of
business to others that do not materially interfere with the business
of the Companies.
9.14 Transactions with Affiliates. No Company shall (a) enter into any
material transaction with any of its Affiliates (excluding transactions among or
between Companies), other than (i) transactions in the ordinary course of
business and upon fair and reasonable terms not materially less favorable than
such Company could obtain or could become entitled to in an arm's-length
transaction with a Person that was not its Affiliate, and (ii) the Management
Agreement.
9.15 Compliance with Laws and Documents. No Company shall violate the
provisions of any Laws (including, without limitation, ERISA) applicable to it,
including, without limitation, all rules and regulations promulgated by the FCC
or any Franchisee, or any material written or oral agreement, contract,
commitment, or understanding to which it is a party, if such violation alone, or
when aggregated with all other such violations, would be a Material Adverse
Event; no Company shall violate the provisions of its charter, bylaws,
partnership agreement, or other organizational documents.
9.16 Acquisitions, Subsidiary Guaranties, and Collateral Documents.
Restricted Borrowers shall cause each Person that becomes a Restricted
Subsidiary of any Company after the Closing Date (whether as a result of
acquisition, merger, creation, or otherwise), (a) to execute a Guaranty on the
date such entity becomes a Restricted Subsidiary of a Company and promptly
deliver (but in no event later than 10 days
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following consummation of such creation, acquisition, or merger) such Guaranty
to Administrative Agent and (b) to execute and deliver to Administrative Agent
all required Collateral Documents (in form and substance acceptable to
Administrative Agent) creating Liens in favor of Administrative Agent as
required pursuant to Section 6.3.
9.17 Assignment. Except as otherwise permitted by Sections 9.20(g),
(h), (i) and (j), 9.22, or 9.24, no Company shall assign or transfer any of its
Rights, duties, or obligations under any of the Loan Documents.
9.18 Fiscal Year and Accounting Methods. No Company will change its
fiscal year for book accounting purposes or its method of accounting, other than
(a) immaterial changes in methods or as required by GAAP, or (b) in connection
with an Acquisition, such changes to the newly-acquired entity so as to conform
its fiscal year and its method of accounting to those of the Companies.
9.19 Government Regulations. No Loan Party will conduct its business in
such a way that it will become subject to regulation under the Investment
Company Act of 1940, as amended, the Public Utility Holding Company Act of 1935,
as amended, or any other Law (other than Regulations T, U, and X of the Board of
Governors of the Federal Reserve System and the requirements of the FCC or any
Franchisee) which regulates the incurrence of Debt.
9.20 Investments and Restricted Payments. No Company shall,
directly or indirectly, declare, make, or pay any Investment or Restricted
Payment, other than:
(a) Investments in Cash Equivalents;
(b) Loans or advances made in the ordinary course of
business not to exceed $15,000,000 in the aggregate for all Companies
at any time outstanding;
(c) Permitted Acquisitions;
(d) Investments in Restricted Subsidiaries;
(e) Financial ▇▇▇▇▇▇ purchased by any Company to the
extent permitted by, and purchased and maintained in compliance with,
the Loan Documents;
(f) Distributions declared, made, or paid by Restricted
Borrowers wholly in the form of its membership interests or capital
stock;
(g) Distributions by any Loan Party to any Restricted
Borrower or any other Company;
(h) Loans, advances, extensions of credit, capital
contributions, and other investments in or between Companies;
(i) Investments and Restricted Payments, so long as no Default
or Event of Default exists or arises as a result thereof and, after
giving effect to any such Investment or Restricted Payment, the
Leverage Ratio is less than 5.5 to 1.0; and
(j) Investments and Restricted Payments in an amount not to
exceed the sum of (i) the aggregate amount of Capital Contributions
made to the Companies after the Closing Date (excluding any Capital
Contributions used to pay Management Fees pursuant to Section 9.29)
plus (without duplication) (ii) the aggregate principal amount of
Affiliate Debt incurred after the Closing Date, so
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long as no Default or Event of Default exists or arises as a result
therefrom, provided that, in the event such amount is reduced by the
amount of any Borrowings by any Unrestricted Borrower hereunder, such
amount shall be increased by any repayment of principal of such
Borrowings made by such Unrestricted Borrower (other than from proceeds
of any Borrowings permitted by Section 9.20(i)), which is accompanied
by a certificate of a Responsible Officer of such Unrestricted Borrower
designating such payment as being made by such Unrestricted Borrower.
Notwithstanding the foregoing, Restricted Payments and Distributions
are permitted hereunder only to the extent that any such Restricted Payment or
Distribution is made in accordance with applicable Law and constitutes a valid,
non-voidable transaction.
9.21 Restrictions on Subsidiaries. No Company shall enter into or
permit to exist any material arrangement or agreement (other than the Loan
Documents) which directly or indirectly prohibits any such Person from (a)
declaring, making, or paying, directly or indirectly, any Distribution to such
Company, (b) paying any Debt owed to any Company, (c) making loans, advances, or
investments to any Company, or (d) transferring any of its property or assets to
any Company.
9.22 Sale of Assets. No Company shall sell, assign, transfer, or
otherwise dispose of any of its assets, other than (a) as permitted by a
transaction permitted by Sections 9.20(d), (g), (h), (i), and (j), 9.23, or
9.24; (b) sales of inventory in the ordinary course of business; (c) the sale,
discount, or transfer of delinquent accounts receivable in the ordinary course
of business for purposes of collection; (d) sales of assets for consideration
not less than the fair market value thereof; (e) dispositions of obsolete
assets; (f) sale, leases, or other disposition among Companies or from a
Guarantor to a Company; and (g) disposition of assets pursuant to Asset Swaps;
provided that, concurrently with any Significant Sale, Restricted Borrowers
shall make the mandatory prepayments required by Section 3.3(b)(i) and (ii).
9.23 Sale-Leaseback Financings. Other than a sale-leaseback transaction
on terms and in form reasonably satisfactory to Administrative Agent, no Company
will enter into any sale-leaseback arrangement with any Person pursuant to which
such Company shall lease any asset (whether now owned or hereafter acquired) if
such asset has been or is to be sold or transferred by any Company to any other
Person. Notwithstanding the foregoing, nothing in this Section 9.23 shall
prohibit any Company from entering into any such arrangement to the extent the
respective capital lease obligation constitutes Debt and Liens permitted under
Sections 9.12(d) and 9.13(b)(viii), respectively.
9.24 Mergers and Dissolutions; Sale of Capital Stock. No Company will,
directly or indirectly, merge or consolidate with any other Person, other than
(a) as a result of a Permitted Acquisition, or (b) mergers among Wholly-owned
Restricted Subsidiaries of Restricted Borrowers or other Restricted Subsidiaries
of which Administrative Agent, for the benefit of the Lenders, has a pledge on
100% of the equity interests in such Restricted Subsidiary; provided that, in
any merger involving any Restricted Borrower (including Permitted Acquisitions
effected as a merger), a Restricted Borrower must be the surviving entity, and,
in any merger involving any other Company (including a Permitted Acquisition
effected as a merger), a Company must be the surviving entity, and, in any
merger involving any Unrestricted Borrower, an Unrestricted Borrower must be the
surviving entity. No Unrestricted Subsidiary of any Borrower will, directly or
indirectly, merge or consolidate with any Borrower or any Restricted Subsidiary
of any Borrower. No Loan Party shall liquidate, wind up, or dissolve (or suffer
any liquidation or dissolution), other than liquidations, wind ups, or
dissolutions incident to mergers permitted under this Section 9.24 or
liquidations, wind ups, or dissolutions of Restricted Subsidiaries that hold no
Authorizations and own no material assets. No Company may sell, assign, lease,
transfer, or otherwise dispose of the capital stock (or other ownership
interests) of any Restricted Subsidiary of such entity, except for sales,
leases, transfers, or other such distributions to another Company and pursuant
to Asset Swaps or as permitted by Section 9.20(g), (h), (i), and (j).
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9.25 New Business. No Company will, directly or indirectly, permit or
suffer to exist any material change in the type of businesses in which it is
engaged from the businesses of the Companies as conducted on the Closing Date or
business reasonably related thereto.
9.26 Affiliate Subordination Agreements. The Companies shall,
simultaneously with the incurrence of any and all future Debt of any Company
owed to any one or more Affiliates, cause the appropriate Affiliate or
Affiliates to execute and deliver to Administrative Agent an Affiliate
Subordination Agreement, subordinating the payment of such Debt to the payment
of the Obligation.
9.27 Amendments to Documents. On and after the Closing Date, no Company
shall (a) amend or permit any amendments to any Company's charter, bylaws,
partnership agreement, or other organizational documents if such action could
adversely affect the Rights of Lenders, and (b) consent to any modification,
supplement, or waiver of any of the provisions of the Management Agreements to
the extent such modification, supplement, or waiver would reasonably be expected
to be a Material Adverse Event, unless the consent of Required Lenders is
received.
9.28 Financial Covenants. As calculated on a combined basis for
the Companies:
(a) Leverage Ratio. Restricted Borrowers shall never
permit the Leverage Ratio as of the last day of any fiscal quarter to
be greater than the ratio shown in the table below which
corresponds to the applicable date of determination:
Period Leverage Ratio
On and after the Closing Date to and 6.75 to 1
including December 31, 2000
On and after January 1, 2001, to and 6.50 to 1
including June 30, 2001
On and after July 1, 2001, to and 6.25 to 1
including December 31, 2001
On and after January 1, 2002, to and 6.00 to 1
including June 30, 2002
On and after July 1, 2002, to and 5.75 to 1
including December 31, 2002
On and after January 1, 2003, to and 5.50 to 1
including June 30, 2003
On and after July 1, 2003, to and 5.25 to 1
including December 31, 2003
On and after January 1, 2004, to and 5.00 to 1
including June 30, 2004
On and after July 1, 2004, to and 4.75 to 1
including December 31, 2004
On and after January 1, 2005 4.50 to 1
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(b) Pro Forma Debt Service Coverage. Restricted Borrowers
shall never permit the ratio of the Annualized Operating Cash Flow to
the Pro Forma Debt Service as of the last day of any fiscal quarter to
be less than 1.10 or 1 on any date of determination; provided, however,
that if the Leverage Ratio is below 3.5 to 1 at such date of
determination, this test shall not apply.
(c) Interest Coverage Ratio. Restricted Borrowers shall never
permit the ratio of (i) Operating Cash Flow to (ii) Interest Expense
(for such fiscal quarter), determined as of the last day of the fiscal
quarter then ended, to be less than 1.6:1 on any date of determination.
9.29 Management Fees. Restricted Borrowers will not, and will not
permit any of their Restricted Subsidiaries, to be obligated to pay Management
Fees to any Person other than pursuant to the Management Agreements. Restricted
Borrowers will not permit the aggregate amount of Management Fees accrued and
paid by all Companies during any fiscal quarter to exceed 5% of the gross
operating revenue of the Companies for such fiscal quarter; provided that in no
event shall any Company pay any Management Fees (a) to any Person other than to
the Manager pursuant to the Management Agreements, (b) if at the time of such
payment, or after giving effect thereto, any Default or Potential Default shall
have occurred and be continuing, or (c) in any circumstance where such payment
is not permitted by the Management Fee Subordination Agreement. Any Management
Fees which may not be paid as a result of the limitations set forth in the
forgoing provisions of this Section 9.29 shall be deferred and shall not be
payable, until the principal of and interest on the Obligation shall have been
paid in full and the Revolver Commitment and all Discretionary Revolver
Commitments shall have terminated. Notwithstanding the foregoing, on and after
the occurrence and during the continuation of a Default or Potential Default,
the Companies may pay Management Fees (including Management Fees of the
Companies that have accrued but have not been paid) in an amount not to exceed
the aggregate amount (if any) of all Capital Contributions made in cash for the
purpose of funding such Management Fees.
9.30 Authorizations. Each Company shall, and shall cause each of its
Restricted Subsidiaries to, continue to comply with the terms of all
Authorizations to which it is subject, and shall do, and cause each of its
Restricted Subsidiaries to do, everything necessary or desirable to maintain the
Authorizations in good standing, to prevent the termination or forfeiture of the
Authorizations and to ensure that the Authorizations are renewed upon their
respective times of expiry on at least as favourable terms as the terms on which
they were or are originally granted, except to the extent that any such failure
to comply with the terms of such Authorizations, to maintain such Authorizations
or to prevent the termination or forfeiture of such Authorizations would not
reasonably be expected to be a Material Adverse Event.
9.31 Unrestricted Subsidiaries. So long as no Default or Potential
Default exists or arises as a result thereof, Restricted Borrowers may from time
to time change the designation of any Subsidiary from a "Restricted Subsidiary"
to an "Unrestricted Subsidiary" or vice versa; provided that, such designation
shall not be effective unless (a) any Subsidiary designated as an "Unrestricted
Subsidiary" satisfies all the requirements of an "Unrestricted Subsidiary" as
set forth in the definition of "Unrestricted Subsidiary" in Section 1.1 hereof;
(b) Restricted Borrowers shall deliver to Administrative Agent notice of such
designation which notice (i) shall be delivered no later than 10 Business Days
prior to such designation, (ii) shall include a Compliance Certificate
demonstrating pro forma compliance with the financial covenants hereunder after
giving effect to such designation, and (iii) shall confirm that no Default or
Potential Default exists or arises as a result of such designation; and (c) each
Subsidiary designated as a Restricted Subsidiary shall execute and deliver the
Collateral Documents required by Section 6.3 hereof.
SECTION 10 DEFAULT. The term "Default" means the occurrence of any one
or more of the following events:
10.1 Payment of Obligation. The failure or refusal of any Loan
Party to pay (a) all or any part of the Principal Debt when the same becomes due
(whether by its terms, by acceleration, or as otherwise
62
provided in the Loan Documents) (subject to the limitations regarding the amount
of Principal Debt owed by Unrestricted Borrowers); or (b) interest, fees, or any
other part of the Obligation (including, without limitation, any deposit of cash
collateral required pursuant to Section 2.3) within three Business Days after
the same becomes due and payable in accordance with the Loan Documents.
10.2 Covenants. The failure or refusal of Restricted Borrowers (and, if
applicable, any other Loan Party) to punctually and properly perform, observe,
and comply with:
(a) Any covenant, agreement, or condition contained in
Sections 9.1, 9.4, 9.10, 9.12, 9.13, 9.14, 9.16, 9.17, 9.19 through
9.24, 9.26, 9.28, and 9.29; and
(b) Any other covenant, agreement, or condition contained in
any Loan Document (other than the covenants to pay the Obligation or
provide cash collateral set forth in Section 10.1), and such failure or
refusal continues for 30 days after (i) Administrative Agent gives
notice thereof, or (ii) any Borrower otherwise becomes aware of such
failure or refusal.
10.3 Debtor Relief. Any Company (a) fails to pay its Debts generally as
they become due, (b) voluntarily seeks, consents to, or acquiesces in the
benefit of any Debtor Relief Law, other than as a creditor or claimant, or (c)
becomes a party to or is made the subject of any proceeding provided for by any
Debtor Relief Law, other than as a creditor or claimant, that could suspend or
otherwise adversely affect the Rights of Administrative Agent or any Lender
granted in the Loan Documents (unless, in the event such proceeding is
involuntary, the petition instituting same is dismissed within 60 days after its
filing).
10.4 Judgments and Attachments. Any Company fails, within 60 days after
entry, to pay, bond, or otherwise discharge any judgment or order for the
payment of money in excess of (individually or collectively) $25,000,000
(exclusive of any amounts fully covered by insurance, less any applicable
deductible, and as to which the insurer has acknowledged its responsibility to
cover such judgment or order) or any warrant of attachment, sequestration, or
similar proceeding is issued against any of its assets having a value
(individually or collectively) of $25,000,000 which is not stayed on appeal.
10.5 Misrepresentation. Any representation or warranty made by any Loan
Party contained herein or in any Loan Document shall at any time prove to have
been incorrect in any material respect when made.
10.6 Change of Control. A Change of Control has occurred.
10.7 Authorizations. One or more Authorizations relating to the CATV
Systems of the Companies shall be terminated or revoked such that such Company
is no longer able to operate one or more of its CATV Systems and retain the
revenue received therefrom or such Company or the grantors of such
Authorizations shall fail to renew such Authorizations at the stated expiration
thereof such that such Company is no longer able to operate one or more of its
CATV Systems and retain the revenue received therefrom, and the effect of the
foregoing, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
10.8 Default Under Other Debt and Agreements. (a) Any Company fails to
pay when due (after lapse of any applicable grace periods) any Debt of such
Company (other than the Obligation) in excess (individually or collectively) of
$25,000,000; or (b) the acceleration of any Debt of any Company, the principal
amount of which Debt exceeds (individually or collectively) $25,000,000.
10.9 LCs. Any Issuing Lender shall have been served with, or becomes
otherwise subject to, a court order, injunction, or other process or decree
restraining or seeking to restrain it from paying any amount under any LC and
either (a) there has been a drawing under such LC which any Issuing Lender would
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otherwise be obligated to pay and Restricted Borrowers have refused or failed to
reimburse such Issuing Lender for such payment or (b) the expiration date of
such LC has occurred but the right of any beneficiary thereunder to draw under
such LC has been extended past the expiration date in connection with the
pendency of the related court action or proceeding and Restricted Borrowers have
failed to deposit with Administrative Agent cash collateral in an amount equal
to the maximum drawing which could be made under such LC.
10.10 Validity and Enforceability of Loan Documents. (a) Any Loan
Document shall, at any time after its execution and delivery and for any reason,
cease to be in full force and effect in any material respect or be declared to
be null and void (other than in accordance with the terms hereof or thereof) or
the validity or enforceability thereof be contested by any Loan Party party
thereto or any Loan Party shall deny in writing that it has any or any further
liability or obligations under any Loan Document to which it is a party; or (b)
Administrative Agent ceases to hold as Collateral (for the benefit of Lenders) a
perfected first priority Lien on all of the issued and outstanding shares of
common stock issued by or other partnership or equity interests of Restricted
Borrowers and each other Person whose stock, partnership, or other equity
interests are required to be pledged to secure the Obligation pursuant to the
Loan Documents, and such failure is not cured within five Business Days.
SECTION 11 RIGHTS AND REMEDIES.
11.1 Remedies Upon Default.
(a) Debtor Relief. If a Default exists under Section 10.3(b)
or 10.3(c), the commitment to extend credit hereunder shall
automatically terminate and the entire unpaid balance of the Obligation
shall automatically become due and payable without any action or notice
of any kind whatsoever, and Restricted Borrowers shall be required to
provide cash collateral in an amount equal to 100% of the LC Exposure
then existing in accordance with Section 2.3(g).
(b) Other Defaults. If any Default exists, Administrative
Agent may (and, subject to the terms of Section 12, shall upon the
request of Required Lenders) or Required Lenders may, do any one or
more of the following: (i) if the maturity of the Obligation has not
already been accelerated under Section 11.1(a), declare the entire
unpaid balance of the Obligation, or any part thereof, immediately due
and payable, whereupon it shall be due and payable; (ii) terminate the
commitments of Lenders to extend credit hereunder; (iii) reduce any
claim to judgment; (iv) to the extent permitted by Law, exercise (or
request each Lender to, and each Lender shall be entitled to, exercise)
the Rights of offset or banker's Lien against the interest of each Loan
Party in and to every account and other property of any Loan Party
which are in the possession of Administrative Agent or any Lender to
the extent of the full amount of the Obligation (to the extent
permitted by Law, each Loan Party being deemed directly obligated to
each Lender in the full amount of the Obligation for such purposes
except that each Unrestricted Borrower shall only be obligated in
respect of the Obligation to the extent set forth herein); (v) if the
maturity of the Obligation has not already been accelerated under
Section 11.1(a), demand Restricted Borrowers to provide cash collateral
in an amount equal to 100% of the LC Exposure then existing in
accordance with Section 2.3(g); and (vi) exercise any and all other
legal or equitable Rights afforded by the Loan Documents, the Laws of
the State of New York, or any other applicable jurisdiction as
Administrative Agent or Required Lenders (as the case may be) shall
deem appropriate, or otherwise, including, but not limited to, the
Right to bring suit or other proceedings before any Governmental
Authority either for specific performance of any covenant or condition
contained in any of the Loan Documents or in aid of the exercise of any
Right granted to Administrative Agent or any Lender in any of the Loan
Documents.
11.2 Company Waivers. To the extent permitted by Law, the Loan Parties
presentment and demand for payment, protest, notice of intention to accelerate,
notice of acceleration, and
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notice of protest and nonpayment, and agree that their respective liability with
respect to the Obligation (or any part thereof) shall not be affected by any
renewal or extension in the time of payment of the Obligation (or any part
thereof), by any indulgence, or by any release or change in any security for the
payment of the Obligation (or any part thereof).
11.3 Performance by Administrative Agent. If any covenant, duty, or
agreement of any Loan Party is not performed in accordance with the terms of the
Loan Documents, after the occurrence and during the continuance of a Default,
Administrative Agent may, at its option (but subject to the approval of Required
Lenders), perform or attempt to perform such covenant, duty, or agreement on
behalf of such Loan Party. In such event, any amount expended by Administrative
Agent in such performance or attempted performance shall be payable by the Loan
Parties, jointly and severally, to Administrative Agent on demand, shall become
part of the Obligation, and shall bear interest at the Default Rate from the
date of such expenditure by Administrative Agent until paid. Notwithstanding the
foregoing, it is expressly understood that Administrative Agent does not assume,
and shall never have, except by its express written consent, any liability or
responsibility for the performance of any covenant, duty, or agreement of any
Loan Party.
11.4 Delegation of Duties and Rights. Lenders may perform any of their
duties or exercise any of their Rights under the Loan Documents by or through
their respective Representatives.
11.5 Not in Control. Nothing in any Loan Document shall, or shall be
deemed to (a) give any Agent or any Lender the Right to exercise control over
the assets (including real property), affairs, or management of any Loan Party
or any Subsidiary thereof, (b) preclude or interfere with compliance by any Loan
Party or any Subsidiary thereof with any Law, or (c) require any act or omission
by any Loan Party or any Subsidiary thereof that may be harmful to Persons or
property. Any "Material Adverse Event" or other materiality qualifier in any
representation, warranty, covenant, or other provision of any Loan Document is
included for credit documentation purposes only and shall not, and shall not be
deemed to, mean that any Agent or any Lender acquiesces in any non-compliance by
any Loan Party or any Subsidiary thereof with any Law or document, or that any
Agent or any Lender does not expect the Loan Parties and their respective
Subsidiaries to promptly, diligently, and continuously carry out all appropriate
removal, remediation, and termination activities required or appropriate in
accordance with all Environmental Laws. The Agents and the Lenders have no
fiduciary relationship with or fiduciary duty to any Loan Party or any
Subsidiary thereof arising out of or in connection with the Loan Documents, and
the relationship between the Agents and the Lenders, on the one hand, and Loan
Parties and their Subsidiaries, on the other hand, in connection with the Loan
Documents is solely that of debtor and creditor. The power of the Agents and
Lenders under the Loan Documents is limited to the Rights provided in the Loan
Documents, which Rights exist solely to assure payment and performance of the
Obligation and may be exercised in a manner calculated by the Agents and Lenders
in their respective good faith business judgment.
11.6 Course of Dealing. The acceptance by Administrative Agent or
Lenders at any time and from time to time of partial payment on the Obligation
shall not be deemed to be a waiver of any Default then existing. No waiver by
Administrative Agent, Required Lenders, or Lenders of any Default shall be
deemed to be a waiver of any other then-existing or subsequent Default. No delay
or omission by Administrative Agent, Required Lenders, or Lenders in exercising
any Right under the Loan Documents shall impair such Right or be construed as a
waiver thereof or any acquiescence therein, nor shall any single or partial
exercise of any such Right preclude other or further exercise thereof, or the
exercise of any other Right under the Loan Documents or otherwise.
11.7 Cumulative Rights. All Rights available to Administrative Agent
and Lenders under the Loan Documents are cumulative of and in addition to all
other Rights granted to Administrative Agent and Lenders at law or in equity,
whether or not the Obligation is due and payable and whether or not
Administrative Agent
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or Lenders have instituted any suit for collection, foreclosure, or other action
in connection with the Loan Documents.
11.8 Application of Proceeds. Any and all proceeds ever received by
Administrative Agent or Lenders from the exercise of any Rights pertaining to
the Obligation shall be applied to the Obligation in the order and manner set
forth in Section 3.12.
11.9 Certain Proceedings. Each Loan Party will promptly execute and
deliver, or cause the execution and delivery of, all applications, certificates,
instruments, registration statements, and all other documents and papers
Administrative Agent or Lenders may reasonably request in connection with the
obtaining of any consent, approval, registration, qualification, permit,
license, or Authorization of any Governmental Authority or other Person
necessary or appropriate for the effective exercise of any Rights under the Loan
Documents. Because the Loan Parties agree that Administrative Agent's and
Lenders' remedies at Law for failure of the Loan Parties to comply with the
provisions of this Section would be inadequate and that such failure would not
be adequately compensable in damages, the Loan Parties agree that the covenants
of this Section may be specifically enforced.
11.10 Limitation of Rights. Notwithstanding any other provision of any
Loan Document, any action taken or proposed to be taken by Administrative Agent,
any Agent, or any Lender under any Loan Document which would affect the
operational, voting, or other control of any Loan Party, shall be pursuant to
Section 310(d) of the Communications Act, any applicable state Law, and the
applicable rules and regulations thereunder and, if and to the extent required
thereby, subject to the prior consent of the FCC or any applicable Franchisee.
11.11 Expenditures by Lenders. Restricted Borrowers shall promptly pay
within fifteen (15) Business Days after request therefor (a) all reasonable
costs, fees, and expenses paid or incurred by Co- Administrative Agents and
Joint Lead Arrangers and Joint Book Managers, incident to any Loan Document
(including, but not limited to, the reasonable fees and expenses of counsel to
Co-Administrative Agents and Joint Lead Arrangers and Joint Book Managers in
connection with the negotiation, preparation, delivery, execution, coordination
and administration of the Loan Documents and any related amendment, waiver, or
consent) and (b) all reasonable costs and expenses of Lenders and Administrative
Agent incurred by Administrative Agent or any Lender in connection with the
enforcement of the obligations of any Loan Party arising under the Loan
Documents (including, without limitation, costs and expenses incurred in
connection with any workout or bankruptcy) or the exercise of any Rights arising
under the Loan Documents (including, but not limited to, reasonable attorneys'
fees including allocated cost of internal counsel, court costs and other costs
of collection), all of which shall be a part of the Obligation and shall bear
interest at the Default Rate from the date due until the date repaid.
11.12 Indemnification. Each Borrower and each other Company (by
execution of supplemental agreements to the Loan Documents, a Guaranty, or
Collateral Documents) agrees, jointly and severally, to indemnify and hold
harmless each Agent, Arranger, and each Lender and each of their respective
affiliates and their respective officers, directors, employees, agents,
attorneys, and advisors (each, an "Indemnified Party") from and against any and
all claims, damages, losses, liabilities (including, without limitation, any
Environmental Liabilities), costs, and expenses (including, without limitation,
reasonable attorneys' fees) that may be incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with
or by reason of (including, without limitation, in connection with any
investigation, litigation, or proceeding or preparation of defense in connection
therewith) the Loan Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Borrowings (including any of
the foregoing arising from the negligence of the
66
Indemnified Party), except to the extent such claim, damage, loss, liability,
cost, or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation,
or other proceeding to which the indemnity in this Section 11.12 applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Borrower, their directors, shareholders or
creditors or an Indemnified Party or any other Person or any Indemnified Party
is otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. Each Borrower and each other company (by execution of a
Guaranty or Collateral Documents) agree not to assert any claim against any
indemnified party on any theory of liability, for special, indirect,
consequential, or punitive damages arising out of or otherwise relating to the
Loan Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Borrowings. Without prejudice to the
survival of any other agreement of the companies hereunder, the agreements and
obligations of the companies contained in this Section 11.12 shall survive the
payment in full of the Borrowings and all other amounts payable under the Loan
Documents.
SECTION 12 AGREEMENT AMONG LENDERS.
12.1 Administrative Agent.
(a) Appointment of Administrative Agent. Each Lender hereby
appoints Bank of America, N.A. (and Bank of America, N.A. hereby
accepts such appointment) as its nominee and agent, in its name and on
its behalf: (i) to act as nominee for and on behalf of such Lender in
and under all Loan Documents; (ii) to arrange the means whereby the
funds of Lenders are to be made available to Borrowers under the Loan
Documents; (iii) to take such action as may be requested by any Lender
under the Loan Documents (when such Lender is entitled to make such
request under the Loan Documents and after such requesting Lender has
obtained the concurrence of such other Lenders as may be required under
the Loan Documents); (iv) to receive all documents and items to be
furnished to Lenders under the Loan Documents; (v) to timely
distribute, and Administrative Agent agrees to so distribute, to each
Lender all material information, requests, documents, and items
received from Borrowers under the Loan Documents; (vi) to promptly
distribute to each Lender its ratable part of each payment or
prepayment (whether voluntary, as proceeds of collateral upon or after
foreclosure, as proceeds of insurance thereon, or otherwise) in
accordance with the terms of the Loan Documents; (vii) to deliver to
the appropriate Persons requests, demands, approvals, and consents
received from Lenders; and (viii) to execute, on behalf of Lenders,
such releases or other documents or instruments as are permitted by the
Loan Documents or as directed by Lenders from time to time; provided,
however, Administrative Agent shall not be required to take any action
which exposes Administrative Agent to personal liability or which is
contrary to the Loan Documents or applicable Law.
(b) Resignation of Administrative Agent. Successor
Administrative Agent. Administrative Agent may resign at any time with
or without cause as Administrative Agent under the Loan Documents by
giving written notice thereof to Lenders and may be removed as
Administrative Agent under the Loan Documents at any time with cause by
Required Lenders. Should the initial or any successor Administrative
Agent ever cease to be a party hereto or should the initial or any
successor Administrative Agent ever resign or be removed as
Administrative Agent, then Required Lenders shall elect the successor
Administrative Agent from among the Lenders (other than the resigning
Administrative Agent). If no successor Administrative Agent shall have
been so appointed by Required Lenders, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or
Required Lenders' removal of the retiring Administrative Agent, then
the retiring
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Administrative Agent may, on behalf of Lenders, appoint a successor
Administrative Agent, which shall be a commercial bank having a
combined capital and surplus of at least $1,000,000,000. Upon the
acceptance of any appointment as Administrative Agent under the Loan
Documents by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with
all the Rights of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and
obligations of Administrative Agent under the Loan Documents, and each
Lender shall execute such documents as any Lender may reasonably
request to reflect such change in and under the Loan Documents. After
any retiring Administrative Agent's resignation or removal as
Administrative Agent under the Loan Documents, the provisions of this
Section 12 shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under the
Loan Documents.
(c) Administrative Agent as a Lender. Non-Fiduciary.
Administrative Agent, in its capacity as a Lender, shall have the same
Rights under the Loan Documents as any other Lender and may exercise
the same as though it were not acting as Administrative Agent; the term
"Lender" shall, unless the context otherwise indicates, include
Administrative Agent and any issuer of an LC hereunder; and any
resignation, or removal of Administrative Agent hereunder shall not
impair or otherwise affect any Rights which it has or may have in its
capacity as an individual Lender. Each Lender and Borrowers agree that
Administrative Agent is not a fiduciary for Lenders or for Borrowers
but simply is acting in the capacity described herein to alleviate
administrative burdens for both Borrowers and Lenders, that
Administrative Agent has no duties or responsibilities to Lenders or
Borrowers except those expressly set forth herein, and that
Administrative Agents in its capacity as a Lender has all Rights of any
other Lender.
(d) Other Activities of Administrative Agent. Administrative
Agent and its Affiliates may now or hereafter be engaged in one or more
loan, letter of credit, leasing, or other financing transactions with
Borrowers, act as trustee or depositary for Borrowers, or otherwise be
engaged in other transactions with Borrowers (collectively, the "other
activities") not the subject of the Loan Documents. Without limiting
the Rights of Lenders specifically set forth in the Loan Documents,
Administrative Agent and its Affiliates shall not be responsible to
account to Lenders for such other activities, and no Lender shall have
any interest in any other activities, any present or future guaranties
by or for the account of Borrowers which are not contemplated or
included in the Loan Documents, any present or future offset exercised
by Administrative Agent and its Affiliates in respect of such other
activities, any present or future property taken as security for any
such other activities, or any property now or hereafter in the
possession or control of Administrative Agent or its Affiliates which
may be or become security for the obligations of Borrowers arising
under the Loan Documents by reason of the general description of
indebtedness secured or of property contained in any other agreements,
documents, or instruments related to any such other activities;
provided that, if any payments in respect of such guaranties or such
property or the proceeds thereof shall be applied to reduction of the
Obligation, then each Lender shall be entitled to share in such
application ratably.
12.2 Expenses. Upon demand by Administrative Agent, each Lender shall
pay its ratable portion (determined as of the date reimbursement is sought
hereunder) of any reasonable expenses (including, without limitation, court
costs, reasonable attorneys' fees, and other costs of collection) incurred by
Administrative Agent in connection with any of the Loan Documents if and to the
extent such Administrative Agent does not receive reimbursement therefor from
other sources within 60 days after incurred; provided that, each Lender shall be
entitled to receive its ratable portion of any reimbursement for such expenses,
or part thereof, which Administrative Agent subsequently receives from such
other sources.
12.3 Proportionate Absorption of Losses. Except as otherwise
provided in the Loan Documents, nothing in the Loan Documents shall be deemed to
give any Lender any advantage over any other Lender
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insofar as the Obligation is concerned, or to relieve any Lender from absorbing
its ratable portion of any losses sustained with respect to the Obligation
(except to the extent such losses result from unilateral actions or inactions of
any Lender that are not made in accordance with the terms and provisions of the
Loan Documents).
12.4 Delegation of Duties; Reliance. Administrative Agent may perform
any of its duties or exercise any of its Rights under the Loan Documents by or
through its Representatives. Administrative Agent and its Representatives shall
(a) be entitled to rely upon (and shall be protected in relying upon) any
writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telecopy, telegram, telex or teletype message, statement, order, or other
documents or conversation believed by it or them to be genuine and correct and
to have been signed or made by the proper Person and, with respect to legal
matters, upon opinion of counsel selected by Administrative Agent, (b) be
entitled to deem and treat each Lender as the owner and holder of the Obligation
owed to such Lender for all purposes until, subject to Section 13.12, written
notice of the assignment or transfer thereof shall have been given to and
received by Administrative Agent (and any request, authorization, consent, or
approval of any Lender shall be conclusive and binding on each subsequent
holder, assignee, or transferee of the Obligation owed to such Lender or portion
thereof until such notice is given and received), (c) not be deemed to have
notice of the occurrence of a Default or Potential Default unless a responsible
officer of Administrative Agent, who handles matters associated with the Loan
Documents and transactions thereunder, has received written notice from a Lender
or Restricted Borrowers and stating that such notice is a "Notice of Default,"
and (d) be entitled to consult with legal counsel (including counsel for
Borrowers), independent accountants, and other experts selected by
Administrative Agent and shall not be liable for any action taken or omitted to
be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts.
12.5 Limitation of Liability.
(a) General. None of the Agents or any of their respective
Representatives shall be liable for any action taken or omitted to be
taken by it or them under the Loan Documents in good faith and
reasonably believed by it or them to be within the discretion or power
conferred upon it or them by the Loan Documents or be responsible for
the consequences of any error of judgment, except for fraud, gross
negligence, or willful misconduct; and none of the Agents or any of
their respective Representatives has a fiduciary relationship with any
Lender by virtue of the Loan Documents (provided that, nothing herein
shall negate the obligation of Administrative Agent to account for
funds received by it for the account of any Lender).
(b) Non-Discretionary Actions. Indemnification. Unless
indemnified to its satisfaction against loss, cost, liability, and
expense, neither Administrative Agent nor any other Agent shall be
compelled to do any act under the Loan Documents or to take any action
toward the execution or enforcement of the powers thereby created or to
prosecute or defend any suit in respect of the Loan Documents. If
Administrative Agent requests instructions from Lenders or Required
Lenders, as the case may be, with respect to any act or action
(including, but not limited to, any failure to act) in connection with
any Loan Document, Administrative Agent shall be entitled (but shall
not be required) to refrain (without incurring any liability to any
Person by so refraining) from such act or action unless and until it
has received such instructions. Except where action of Required Lenders
or all Lenders is required in the Loan Documents, Administrative Agent
may act hereunder in its own discretion without requesting
instructions. In no event, however, shall Administrative Agent or any
of its Representatives be required to take any action which it or they
determine could incur for it or them criminal or onerous civil
liability. Without limiting the generality of the foregoing, no Lender
shall have any right of action against Administrative Agent as a result
of Administrative Agent's acting or refraining from acting hereunder in
accordance with the instructions of Required Lenders (or all Lenders if
required in the Loan Documents).
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(c) Independent Credit Decision. Neither Administrative Agent
nor any other Agent shall be responsible in any manner to any Lender or
any Participant for, and each Lender represents and warrants that it
has not relied upon Administrative Agent or any other Agent in respect
of, (i) the creditworthiness of any Loan Party and the risks involved
to such Lender, (ii) the effectiveness, enforceability, genuineness,
validity, or the due execution of any Loan Document, (iii) any
representation, warranty, document, certificate, report, or statement
made therein or furnished thereunder or in connection therewith, (iv)
the existence, priority, or perfection of any Lien hereafter granted or
purported to be granted under any Loan Document, or (v) observation of
or compliance with any of the terms, covenants, or conditions of any
Loan Document on the part of any Loan Party. Each Lender agrees to
indemnify Administrative Agent and its Representatives and hold them
harmless from and against (but limited to such Lender's Pro Rata Part
of) any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, reasonable expenses, and reasonable
disbursements of any kind or nature whatsoever which may be imposed on,
asserted against, or incurred by them in any way relating to or arising
out of the Loan Documents or any action taken or omitted by them under
the Loan Documents (including any of the foregoing arising from the
negligence of Administrative Agent or its Representatives), to the
extent Administrative Agent and its Representatives are not reimbursed
for such amounts by any Loan Party (provided that, Administrative Agent
and its Representatives shall not have the Right to be indemnified
hereunder for its or their own fraud, gross negligence, or willful
misconduct).
12.6 Default; Collateral.
(a) Upon the occurrence and continuance of a Default, Lenders
agree to promptly confer in order that Required Lenders or Lenders, as
the case may be, may agree upon a course of action for the enforcement
of the Rights of Lenders; and Administrative Agent shall be entitled to
refrain from taking any action (without incurring any liability to any
Person for so refraining) unless and until Administrative Agent shall
have received instructions from Required Lenders. All Rights of action
under the Loan Documents and all Rights to the Collateral, if any,
hereunder may be enforced by Administrative Agent and any suit or
proceeding instituted by Administrative Agent in furtherance of such
enforcement shall be brought in its name as Administrative Agent
without the necessity of joining as plaintiffs or defendants any other
Agent or Lender, and the recovery of any judgment shall be for the
benefit of Lenders subject to the expenses of Administrative Agent. In
actions with respect to any property of Borrowers, Administrative Agent
is acting for the ratable benefit of each Lender. Any and all
agreements to subordinate (whether made heretofore or hereafter) other
indebtedness or obligations of Borrowers to the Obligation shall be
construed as being for the ratable benefit of each Lender.
(b) Each Lender authorizes and directs Administrative Agent to
enter into the Collateral Documents for the benefit of the Lenders.
Except to the extent unanimity or a supermajority is required
hereunder, each Lender agrees that any action taken by the Required
Lenders in accordance with the provisions of the Loan Documents, and
the exercise by the Required Lenders of the powers set forth herein or
therein, together with such other powers as are reasonably incidental
thereto, shall be authorized and binding upon all of the Lenders.
(c) Administrative Agent is hereby authorized on behalf of all
of the Lenders, without the necessity of any notice to or further
consent from any Lender, from time to time to take any action with
respect to any Collateral or Collateral Documents which may be
necessary to perfect and maintain perfected the Liens upon the
Collateral granted pursuant to the Collateral Documents.
(d) Administrative Agent shall have no obligation whatsoever
to any Lender or to any other Person to assure that the Collateral
exists or is owned by any Loan Party or is cared for, protected, or
insured or has been encumbered or that the Liens granted to
Administrative Agent herein
70
or pursuant hereto have been properly or sufficiently or lawfully
created, perfected, protected, or enforced, or are entitled to any
particular priority, or to exercise at all or in any particular manner
or under any duty of care, disclosure, or fidelity, or to continue
exercising, any of the Rights granted or available to Administrative
Agent in this Section 12.6 or in any of the Collateral Documents; it
being understood and agreed that in respect of the Collateral, or any
act, omission, or event related thereto, Administrative Agent may act
in any manner it may deem appropriate, in its sole discretion, given
Administrative Agent's own interest in the Collateral as one of the
Lenders and that Administrative Agent shall have no duty or liability
whatsoever to any Lender, other than to act without gross negligence or
willful misconduct.
(e) Lenders hereby irrevocably authorize Administrative Agent,
at its option and in its discretion, to release any Lien granted to or
held by Administrative Agent upon any Collateral: (i) upon termination
of the Total Commitment and payment and satisfaction of the Obligation;
(ii) constituting property in which no Loan Party or Parent owned an
interest at the time the Lien was granted or at any time
thereafter;(iii) upon the sale, transfer, or disposition of Collateral
which is expressly permitted pursuant to the Loan Documents, including,
without limitation, under Sections 9.20 (i) or (j) or 9.22; (iv) as
contemplated in Section 6.4; or (v) if approved, authorized, or
ratified in writing by all necessary Lenders. Upon request by
Administrative Agent at any time, Lenders will confirm in writing
Administrative Agent's authority to release particular types or items
of Collateral pursuant to this Section 12.6.
(f) In furtherance of the authorizations set forth in this
Section 12.6, each Lender hereby irrevocably appoints Administrative
Agent its attorney-in-fact, with full power of substitution, for and on
behalf of and in the name of each such Lender, (i) to enter into
Collateral Documents (including, without limitation, any appointments
of substitute trustees under any Collateral Document), (ii) to take
action with respect to the Collateral and Collateral Documents to
perfect, maintain, and preserve Lender's Liens, and (iii) to execute
instruments of release or to take other action necessary to release
Liens upon any Collateral to the extent authorized in Paragraph (e)
hereof. This power of attorney shall be liberally, not restrictively,
construed so as to give the greatest latitude to Administrative Agent's
power, as attorney, relative to the Collateral matters described in
this Section 12.6. The powers and authorities herein conferred on
Administrative Agent may be exercised by Administrative Agent through
any Person who, at the time of the execution of a particular
instrument, is an officer of Administrative Agent. The power of
attorney conferred by this Section 12.6(f) is granted for valuable
consideration and is coupled with an interest and is irrevocable so
long as the Obligation, or any part thereof, shall remain unpaid or
Lenders are obligated to make any Borrowings under the Loan Documents.
12.7 Limitation of Liability. To the extent permitted by Law, (a)
neither Administrative Agent nor any other Agent (acting in their respective
agent capacities) shall incur any liability to any other Lender, Agent, or
Participant except for acts or omissions resulting from its own fraud, gross
negligence or willful misconduct, and (b) neither Administrative Agent nor any
other Agent, Lender, or Participant shall incur any liability to any other
Person for any act or omission of any other Lender, Agent, or Participant.
12.8 Relationship of Lenders. Nothing herein shall be construed as
creating a partnership or joint venture among Agents and Lenders.
12.9 Benefits of Agreement. None of the provisions of this Section 12
shall inure to the benefit of any Loan Party or any other Person other than
Lenders; consequently, no Loan Party or any other Person shall be entitled to
rely upon, or to raise as a defense, in any manner whatsoever, the failure of
any Agent or any Lender to comply with such provisions.
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12.10 Agents. None of the Lenders identified in this Agreement as
"Co-Administrative Agent" (other than Administrative Agent), "Syndication
Agent," "Documentation Agent," "Arranging Agent," or "Managing Agent" shall have
any Rights, powers, obligations, liabilities, responsibilities, or duties under
the Loan Documents other than as an Issuing Lender (if applicable) and those
applicable to all Lenders as such. Without limiting the foregoing, none of the
Lenders so identified as "Co-Administrative Agent," "Syndication Agent,"
"Documentation Agent," "Arranging Agent," or "Managing Agent" shall have or be
deemed to have any fiduciary relationship with any Lender. Any Lender that is a
"Co-Administrative Agent" (other than Administrative Agent which shall be
governed by Section 12.1(b)), "Syndication Agent," "Documentation Agent,"
"Arranging Agent," or "Managing Agent" may voluntarily relinquish its title by
giving written notice thereof to Administrative Agent and Borrower. Upon such
relinquishments, a successor "Co- Administrative Agent" (other than
Administrative Agent which shall be governed by Section 12.1(b)), "Syndication
Agent," "Documentation Agent," "Arranging Agent," or "Managing Agent" may be
appointed upon the mutual agreement of Restricted Borrowers and Administrative
Agent.
12.11 Obligations Several. The obligations of Lenders hereunder are
several, and each Lender hereunder shall not be responsible for the obligations
of the other Lenders hereunder, nor will the failure of one Lender to perform
any of its obligations hereunder relieve the other Lenders from the performance
of their respective obligations hereunder.
12.12 Financial ▇▇▇▇▇▇. To the extent any Lender or any Affiliate of a
Lender issues a Financial Hedge relating to the Principal Debt and accepts the
benefits of the Liens in the Collateral arising pursuant to the Collateral
Documents, such Lender (for itself and on behalf of any such Affiliates) agrees
(i) to appoint Administrative Agent, as its nominee and agent, to act for and on
behalf of such Lender or Affiliate thereof in connection with the Collateral
Documents and (ii) to be bound by the terms of this Section 12; whereupon all
references to "Lender" in this Section 12 and in the Collateral Documents shall
include, on any date of determination, any Lender or Affiliate of a Lender that
is party to a then-effective Financial Hedge relating to the Principal Debt.
Additionally, if the Obligation owed to any Lender or Affiliate of a Lender
consists solely of Debt arising under a Financial Hedge (such Lender or
Affiliate being referred to in this Section 12.12 as an "Hedge Lender"), then
such Hedge Lender (by accepting the benefits of any Collateral Documents)
acknowledges and agrees that pursuant to the Loan Documents and without notice
to or consent of such Hedge Lender: (i) Liens in the Collateral may be released
in whole or in part to the extent Liens securing the Principal Debt are
released, (ii) all Guaranties may be released; (iii) any Collateral Document may
be amended, modified, supplemented, or restated; and (iv) all or any part of the
Collateral may be permitted to secure other Debt.
SECTION 13 MISCELLANEOUS.
13.1 Headings. The headings, captions, and arrangements used in any of
the Loan Documents are, unless specified otherwise, for convenience only and
shall not be deemed to limit, amplify, or modify the terms of the Loan
Documents, nor affect the meaning thereof.
13.2 Nonbusiness Days. In any case where any payment or action is due
under any Loan Document on a day which is not a Business Day, such payment or
action may be delayed until the next- succeeding Business Day, but interest and
fees shall continue to accrue in respect of any payment to which it is
applicable until such payment is in fact made; provided that, if, in the case of
any such payment in respect of a Eurodollar Rate Borrowing, the next-succeeding
Business Day is in the next calendar month, then such payment shall be made on
the next-preceding Business Day.
13.3 Communications. Unless specifically otherwise provided, whenever
any Loan Document requires or permits any consent, approval, notice, request, or
demand from one party to another, such communication must be in writing (which
may be by telex or telecopy) to be effective and shall be deemed to have been
given (a) if by telex, when transmitted to the telex number, if any, for such
party, and the appropriate
72
answer back is received, (b) if by telecopy, when transmitted to the telecopy
number for such party (and all such communications sent by telecopy shall be
confirmed promptly thereafter by personal delivery or mailing in accordance with
the provisions of this section; provided, that any requirement in this
parenthetical shall not affect the date on which such telecopy shall be deemed
to have been delivered), (c) if by mail, on the third Business Day after it is
enclosed in an envelope, properly addressed to such party, properly stamped,
sealed, and deposited in the appropriate official postal service, or (d) if by
any other means, when actually delivered to such party. Until changed by notice
pursuant hereto, the address (and telex and telecopy numbers, if any) for each
Lender, Administrative Agent, and other Agents is set forth on Schedule 2.1, and
for each Borrower is the address set forth by each Borrower's signature on the
signature page of this Agreement or supplement and for each Guarantor is the
address set forth by such Guarantor's signature on the signature page of its
Guaranty. A copy of each such communication to Administrative Agent shall also
be sent to ▇▇▇▇▇▇ and ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Fax:
214/▇▇▇-▇▇▇▇, Attn: ▇▇▇ ▇. ▇▇▇▇▇▇. A copy of each such communication to
Borrowers shall also be sent to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Professional Corporation, One
Oxford Centre, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
13.4 Form and Number of Documents. Each agreement, document,
instrument, or other writing to be furnished under any provision of the Loan
Documents must be in form and substance and in such number of counterparts as
may be reasonably satisfactory to Administrative Agent and its counsel.
13.5 Survival. All covenants, agreements, undertakings,
representations, and warranties made in any of the Loan Documents shall survive
all closings under the Loan Documents and, except as otherwise indicated, shall
not be affected by any investigation made by any party. All Rights of, and
provisions relating to, reimbursement and indemnification of Administrative
Agent, any Agent, or any Lender (and any other provision of the Loan Documents
that expressly provides for such survival) shall survive termination of this
Agreement, payment in full of the Obligation, and any assignment by any Lender.
13.6 Governing Law. The Loan Documents have been entered into pursuant
to Section 5-1401 of the New York General Obligations Law and the substantive
laws of the State of New York (except to the extent the laws of another
jurisdiction govern the creation, perfection, validity, or enforcement of Liens
under the Collateral Documents), and the applicable federal laws of the United
States of America shall govern the validity, construction, enforcement and
interpretation of the Loan Documents.
13.7 Invalid Provisions. If any provision in any Loan Document is held
to be illegal, invalid, or unenforceable, such provision shall be fully
severable; the appropriate Loan Document shall be construed and enforced as if
such provision had never comprised a part thereof; and the remaining provisions
thereof shall remain in full force and effect and shall not be affected by such
provision or by its severance therefrom. Administrative Agent, Lenders, and each
Loan Party party to such Loan Document agree to negotiate, in good faith, the
terms of a replacement provision as similar to the severed provision as may be
possible and be legal, valid, and enforceable.
13.8 Entirety. The Rights and Obligations of each Loan Party, Lenders,
and Agents Shall Be Determined Solely from Written Agreements, Documents, and
Instruments, and Any Prior Oral Agreements Between Such Parties Are Superseded
by and Merged into Such Writings. This Agreement (As Amended in Writing from
Time to Time) and the Other Written Loan Documents Executed by Any Loan Party,
Any Lender, and/or any Agent (Together with All Commitment Letters and Fee
Letters as They Relate to the Payment of Fees after the Closing Date) Represent
the Final Agreement Between the Loan Parties, Lenders, and Agents, and May Not
Be Contradicted by Evidence of Prior,
73
Contemporaneous, or Subsequent Oral Agreements by Such Parties. There Are No
Unwritten Oral Agreements Between Such Parties.
13.9 Jurisdiction; Venue; Service of Process; Jury Trial. Each Party
Hereto (including each Guarantor by execution of a Guaranty), in Each Case for
Itself, its Successors and Assigns, Hereby (A) irrevocably Submits to the
Nonexclusive Jurisdiction of the State (pursuant to Section 5-1402 of the New
York General Obligations Law) and Federal Courts Located in the Borough of
Manhattan in the State of New York, and Agrees and Consents That Service of
Process May Be Made upon it in Any Legal Proceeding Arising out of or in
Connection with the Loan Documents and the Obligation by Service of Process as
Provided by New York Law, (B) irrevocably Waives, to the Fullest Extent
Permitted by Law, Any Objection Which it May Now or Hereafter Have to the Laying
of Venue of Any Litigation Arising out of or in Connection with the Loan
Documents and the Obligation Brought in Any Such Court, (C) irrevocably Waives
Any Claims That Any Litigation Brought in Any Such Court Has Been Brought in an
Inconvenient Forum, (D) agrees to Designate and Maintain an Agent for Service of
Process in New York in Connection with Any Such Litigation and to Deliver to
Administrative Agent Evidence Thereof, If Requested, (E) irrevocably Consents to
the Service of Process out of Any of the Aforementioned Courts in Any Such
Litigation by the Mailing of Copies Thereof by Certified Mail, Return Receipt
Requested, Postage Prepaid, at its Address Set Forth Herein, (F) irrevocably
Agrees That Any Legal Proceeding Against Any Party Hereto Arising out of or in
Connection with the Loan Documents or the Obligation Shall Be Brought in One of
the Aforementioned Courts, and (G) irrevocably Waives, to the Fullest Extent
Permitted by Law, its Respective Rights to a Jury Trial of Any Claim or Cause of
Action Based upon or Arising out of Any Loan Document or the Transactions
Contemplated Thereby. The scope of each of the foregoing waivers is intended to
be all-encompassing of any and all disputes that may be filed in any court and
that relate to the subject matter of this transaction, including, without
limitation, contract claims, tort claims, breach of duty claims, and all other
common law and statutory claims. The Loan Parties and each other party to the
Loan Documents acknowledge that this waiver is a material inducement to the
agreement of each party hereto to enter into a business relationship, that each
has already relied on this waiver in entering into the Loan Documents, and each
will continue to rely on each of such waivers in related future dealings. The
Loan Parties and each other party to the Loan Documents warrant and represent
that they have reviewed these waivers with their legal counsel, and that they
knowingly and voluntarily agree to each such waiver following consultation with
legal counsel. THE WAIVERS IN THIS SECTION 13.9 ARE IRREVOCABLE, MEANING THAT
THEY MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THESE WAIVERS SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS, AND REPLACEMENTS TO OR OF THIS
OR ANY OTHER LOAN DOCUMENT. In the event of Litigation, this Agreement may be
filed as a written consent to a trial by the court.
13.10 Amendments, Consents, Conflicts, and Waivers.
(a) Except as otherwise specifically provided in this Section
13.10 or otherwise in the Loan Documents, (i) this Agreement may only
be amended, modified, or waived by an instrument in writing executed
jointly by Borrowers and Required Lenders, and, in the case of any
matter affecting Administrative Agent (except removal of Administrative
Agent as provided in Section 12) by Administrative Agent, and may only
be supplemented by documents delivered or to be delivered in accordance
with the express terms hereof, and (ii) the other Loan Documents may
only be the subject of an amendment, modification, or waiver if
Borrowers and Required Lenders, and, in the case of any matter
affecting Administrative Agent (except as set forth above), such
Administrative Agent, have approved same.
74
(b) Any amendment to the Loan Documents which purports to
change, waive, or modify the amount or timing of the mandatory
prepayments required by Section 3.3(b) must be approved by Borrowers
and by Supermajority Lenders.
(c) Except as provided in Section 13.10(b), any amendment to
or consent or waiver under any Loan Document which purports to
accomplish any of the following must be approved by Borrowers and by
each Lender adversely affected thereby, and, in the case of any matter
affecting Administrative Agent, by Administrative Agent: (i) postpones
or delays any date fixed by the Loan Documents (A) for any payment
(other than mandatory prepayments under Section 3.3(b)) of all or any
part of the Obligation payable to such Lender or Administrative Agent
or (B) for any reduction of the Revolver Commitment; (ii) reduces the
interest rate or decreases the amount of any payment of principal,
interest, fees, or other sums payable to Administrative Agent or any
such Lender hereunder (except such reductions as are contemplated by
this Agreement); (iii) changes the definition of "Required Lenders",
"Supermajority Lenders", Section 13.10(b), or this Section 13.10(c) or
any other provisions of the Loan Documents that require the unanimous
consent of the Lenders; (iv) changes the order of application of any
payment or prepayment set forth in Sections 3.3 and 3.12 in any manner
that adversely affects such Lender or Administrative Agent; or (v)
except as otherwise permitted by any Loan Document (including, without
limitation, Section 6.4), releases any Guaranty, Collateral, or Loan
Party. Without the consent of such Lender, no Lender's "Committed Sum"
or "Commitment Percentage" may be increased.
(d) As provided in Section 2.4(e) and (f), any amendment
executed to effect the addition of any New Lender and all Supplemental
Credit Documents with respect to each Discretionary Loan shall be
executed by Restricted Borrowers, Administrative Agent, and each
Discretionary Lender party to the applicable Discretionary Loan.
(e) Any conflict or ambiguity between the terms and provisions
of this Agreement and terms and provisions in any other Loan Document
shall be controlled by the terms and provisions herein.
(f) No course of dealing nor any failure or delay by
Administrative Agent, any Lender, or any of their respective
Representatives with respect to exercising any Right of Administrative
Agent or any Lender hereunder shall operate as a waiver thereof. A
waiver must be in writing and signed by Administrative Agent and
requisite Lenders to be effective, and such waiver will be effective
only in the specific instance and for the specific purpose for which it
is given.
13.11 Multiple Counterparts. The Loan Documents may be executed in a
number of identical counterparts, each of which shall be deemed an original for
all purposes and all of which constitute, collectively, one agreement; but, in
making proof of any Loan Document, it shall not be necessary to produce or
account for more than one such counterpart. It is not necessary that each Lender
execute the same counterpart so long as identical counterparts are executed by
Borrowers, each Lender, and each Co- Administrative Agent. This Agreement shall
become effective when counterparts hereof shall have been executed and delivered
to Administrative Agent by each Lender, Administrative Agent, and Restricted
Borrowers, or, when Administrative Agent shall have received telecopied,
telexed, or other evidence satisfactory to it that such party has executed and
is delivering to Administrative Agent a counterpart hereof.
13.12 Successors and Assigns; Assignments and Participations.
(a) This Agreement shall be binding upon, and inure to the
benefit of the parties hereto and their respective successors (which
shall include in the case of any Lender, any entity resulting from a
merger or consolidation) and assigns, except that (i) Borrowers may
not, except as otherwise
75
permitted under the Loan Documents, directly or indirectly, assign or
transfer, or attempt to assign or transfer, any of their Rights,
duties, or obligations under any Loan Documents without the express
written consent of all Lenders, and (ii) except as permitted under this
Section, no Lender may transfer, pledge, assign, sell any participation
in, or otherwise encumber its portion of the Obligation.
(b) Each Lender may assign to one or more Eligible Assignees
all or a portion of its Rights and obligations under the Loan Documents
(including, without limitation, all or a portion of its Borrowings and
its Notes -- to the extent any Principal Debt owed to such assigning
Lender is evidenced by a Note or Notes); provided, however, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another
Lender, an Affiliate of assigning Lender or an Approved Fund
of any Lender, or in the case of an assignment of all of a
Lender's Rights and obligations under the Loan Documents, any
such partial assignment under any Facility or Discretionary
Loan shall not be less than the following amounts for the
Facility or Discretionary Loan indicated (unless
Administrative Agent and, unless a Default or Potential
Default has occurred and is continuing, Restricted Borrowers
consent thereto (in their sole discretion) in writing which
may be evidenced by their acceptance and execution of the
related Assignment and Acceptance Agreement):
Facility/ Discretionary Loan Minimum Partial Assignment
======================================= ==============================================
Revolver Facility $5,000,000 (inclusive of any
concurrent assignments under the Term
Loan Facility or any Discretionary
Loans by the assigning Lender to the
same assignee)
--------------------------------------- ----------------------------------------------
Discretionary Revolver Loans $5,000,000 (inclusive of any
concurrent assignments under the
Revolver Facility, the Term Loan
Facility, or any Discretionary Term
Loans by the assigning Lender to the
same assignee)
--------------------------------------- ----------------------------------------------
Term Loan Facility $500,000
--------------------------------------- ----------------------------------------------
Discretionary Term Loans $500,000
======================================= ==============================================
; provided that, no partial assignment for any Facility or
Discretionary Loan (including any assignment among Lenders)
may result in any Lender holding less than $5,000,000 under
the Revolver Facility or any Discretionary Revolver Loan or
$500,000 under the Term Loan Facility or any Discretionary
Term Loan;
(iii) each such assignment by a Lender shall be of a
proportionate part of all of the assigning Lender's Rights and
obligations under this Agreement and the Notes (to the extent
any Principal Debt owed to such assigning Lender is evidenced
by a Note or Notes), except that this clause (iii) shall not
be construed to prohibit the assignment of a proportionate
part of all of the assigning Lender's Rights and obligations
in respect of one Facility or Discretionary Loan;
76
(iv) the parties to such assignment shall execute and
deliver to Administrative Agent for its acceptance an
Assignment and Acceptance Agreement substantially in the form
of Exhibit F hereto, together with any Notes (to the extent
any Principal Debt owed to such assigning Lender is evidenced
by a Note or Notes) subject to such assignment and a
processing fee of $3,500 (other than assignments between
Lenders or a Lender and an Affiliate thereof or of any other
Lender); and
(v) so long as any Lender is an Agent (other than a
Managing Agent) under this Agreement, such Lender (or an
Affiliate of such Lender) shall retain an economic interest in
the Loan Documents, will not assign all of its Rights, duties,
or obligations under the Loan Documents, except to an
Affiliate of such Lender, and will not enter into any
Assignment and Acceptance Agreement that would have the effect
of such Lender assigning all of its Rights, duties, or
obligations under the Loan Documents to any Person other than
an Affiliate of such Lender unless such Agent has relinquished
such title in accordance with Section 12.1 (with respect to
Administrative Agent) or Section 12.10 (with respect to the
other Agents).
Upon execution, delivery, acceptance, and recordation of such
Assignment and Acceptance Agreement, the assignee thereunder shall be a
party hereto and, to the extent of such assignment, have the
obligations, Rights, and benefits of a Lender under the Loan Documents
and the assigning Lender shall, to the extent of such assignment,
relinquish its Rights and be released from its obligations under the
Loan Documents. Upon the consummation of any assignment pursuant to
this Section, but only upon the request of the assignor or assignee
made through Administrative Agent, Restricted Borrowers shall issue
appropriate Notes to the assignor and the assignee, reflecting such
Assignment and Acceptance. If the assignee is not incorporated under
the laws of the United States of America or a state thereof, it shall
deliver to Restricted Borrowers and Administrative Agent certification
as to exemption from deduction or withholding of Taxes in accordance
with Section 4.6.
(c) Administrative Agent (acting solely for this
administrative purpose as an agent of Borrowers) shall maintain at its
address referred to in Section 13.3 a copy of each Assignment and
Acceptance Agreement delivered to and accepted by it and a register for
the recordation of the names and addresses of Lenders and the
Commitment Percentage, and principal amount of the Borrowings owing to,
each Lender from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent
manifest error, and Borrowers, Administrative Agent, and the Lenders
may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of the Loan Documents. The Register
shall be available for inspection by Borrowers or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
Upon the consummation of any assignment in accordance with this Section
13.12, Schedule 2.1 shall automatically be deemed amended (to the
extent required) by Administrative Agent to reflect the name, address,
and, where appropriate, the respective Committed Sums under the
Facilities of the assignor and assignee. No assignment shall be
effective until recorded in the Register as provided in this Section
13.12(c).
(d) Upon its receipt of an Assignment and Acceptance Agreement
executed by the parties thereto, together with any Notes (to the extent
any Principal Debt owed to such assigning Lender is evidenced by a Note
or Notes) subject to such assignment and payment of the processing fee,
Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit F hereto, (i)
accept such Assignment and Acceptance Agreement, (ii) record the
information contained therein in the Register, and (iii) give prompt
notice thereof to the parties thereto.
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(e) Subject to the provisions of this Section and in
accordance with applicable Law, any Lender may, in the ordinary course
of its commercial banking business and in accordance with applicable
Law, at any time sell to one or more Persons (other than any Borrower
or any Affiliate of any Borrower) (each a "Participant") participating
interests in its portion of the Obligation. In the event of any such
sale to a Participant, (i) such Lender shall remain a "Lender" under
the Loan Documents and the Participant shall not constitute a "Lender"
hereunder, (ii) such Lender's obligations under the Loan Documents
shall remain unchanged, (iii) such Lender shall remain solely
responsible for the performance thereof, (iv) such Lender shall remain
the holder of its share of the Principal Debt for all purposes under
the Loan Documents, (v) Borrowers and Administrative Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's Rights and obligations under the Loan Documents, and
(vi) such Lender shall be solely responsible for any withholding Taxes
or any filing or reporting requirements relating to such participation
and shall hold Borrowers and Administrative Agent and their respective
successors, permitted assigns, officers, directors, employees, agents,
and representatives harmless against the same. Participants shall have
no Rights under the Loan Documents, other than certain voting Rights as
provided below. Subject to the following, each Lender shall be entitled
to obtain (on behalf of its Participants) the benefits of Section 4
with respect to all participations in its part of the Obligation
outstanding from time to time, so long as Borrowers shall not be
obligated to pay any amount in excess of the amount that would be due
to such Lender under Section 4 calculated as though no participations
have been made. No Lender shall sell any participating interest under
which the Participant shall have any Rights to approve any amendment,
modification, or waiver of any Loan Document, except to the extent such
amendment, modification, or waiver extends the due date for payment of
any amount in respect of principal (other than mandatory prepayments),
interest, or fees due under the Loan Documents, reduces the interest
rate or the amount of principal or fees applicable to the Obligation
(except such reductions as are contemplated by the Loan Documents), or
releases all or any substantial portion of the Guaranties or all or any
substantial portion of the Collateral for the Obligation under the Loan
Documents (except such releases of Guaranties or Collateral as are
contemplated in Section 6.5); provided that, in those cases where a
Participant is entitled to the benefits of Section 4 or a Lender grants
Rights to its Participants to approve amendments to or waivers of the
Loan Documents respecting the matters previously described in this
sentence, such Lender must include a voting mechanism in the relevant
participation agreement or agreements, as the case may be, whereby a
majority of such Lender's portion of the Obligation (whether held by
such Lender or Participant) shall control the vote for all of such
Lender's portion of the Obligation. Except in the case of the sale of a
participating interest to another Lender, the relevant participation
agreement shall not permit the Participant to transfer, pledge, assign,
sell participations in, or otherwise encumber its portion of the
Obligation, unless the consent of the transferring Lender (which
consent will not be unreasonably withheld) has been obtained.
(f) Notwithstanding any other provision set forth in this
Agreement, any Lender may, without notice to, or consent of Borrowers
or Administrative Agent, at any time assign and pledge all or any
portion of its Borrowings and its Notes (to the extent any Principal
Debt owed to such assigning Lender is evidenced by a Note or Notes) to
any Federal Reserve Bank as collateral security pursuant to Regulation
A and any Operating Circular issued by such Federal Reserve Bank or any
Lender which is a fund may pledge all or any portion of its Borrowings
and its Notes (to the extent any Principal Debt owed to such assigning
Lender is evidenced by a Note or Notes) to any trustee or to any other
representative of holders of obligations owed or securities issued by
such fund as security for such obligations or securities; provided that
any transfer to any Person upon the enforcement of such pledge or
security interest may only be made subject to this Section 13.12. No
such assignment or pledge shall release the assigning Lender from its
obligations hereunder.
78
(g) Any Lender may furnish any information concerning the Loan
Parties and Subsidiaries thereof in the possession of such Lender from
time to time to Eligible Assignees and Participants (including
prospective Eligible Assignees and Participants) and to counterparties
under a Financial Hedge relating to the Debt incurred under this
Agreement issued by a Lender or an Affiliate of a Lender.
(h) Notwithstanding anything to the contrary contained herein,
any Lender (a "Granting Lender") may grant to a special purpose vehicle
(a "SPC") of such Granting Lender, identified as such in writing from
time to time by the Granting Lender to Administrative Agent and
Restricted Borrowers, the option to provide to Borrowers all or any
part of any Borrowing that such Granting Lender would otherwise be
obligated to make to Borrowers pursuant to this Agreement, provided
that (i) nothing herein shall constitute a commitment by any SPC to
make any Borrowing, (ii) if an SPC elects not to exercise such option
or otherwise fails to provide all or any part of such Borrowing, the
Granting Lender shall be obligated to make such Borrowing pursuant to
the terms hereof, and (iii) Borrowers may bring any proceeding against
either the Granting Lender or the SPC in order to enforce any rights of
Borrowers under any of the Loan Documents. The making of a Borrowing by
an SPC hereunder shall utilize the Committed Sum of the Granting Lender
to the same extent, and as if, such Borrowing were made by the Granting
Lender. Each party hereto hereby agrees that no SPC shall be liable for
any payment under this Agreement for which a Lender would otherwise be
liable, for so long as, and to the extent, the related Granting Lender
makes such payment. In furtherance of the foregoing, each party hereto
hereby agrees (which agreement shall survive the termination of this
Agreement) that, prior to the date that is one year and one day after
the payment in full of all outstanding commercial paper or other senior
indebtedness of any SPC, it will not institute against, or join any
other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency, or liquidation proceedings or
similar proceedings under the laws of the United States or any State
thereof arising out of any claim against such SPC under this Agreement;
provided that the Granting Lender for each SPC hereby agrees to
indemnify, save, and hold harmless each other party hereto for any
loss, cost, damage, and expense arising out of their inability to
institute any such proceeding against such SPC. Each party hereto
acknowledges and agrees that no SPC shall have any voting rights
hereunder and that the voting rights attributable to any extensions of
credit made by a SPC shall be exercised only by the relevant Granting
Lender. Each Granting Lender shall serve as the administrative agent
and attorney-in-fact for its SPC and shall on behalf of its SPC: (i)
receive any and all payments made for the benefit of such SPC and (ii)
give and receive all communications and notices and take all actions
hereunder to the extent, if any, such SPC shall have any rights
hereunder. To the extent a SPC shall have the right to receive or give
any such notice or take any such action in writing, it shall be signed
by its Granting Lender as administrative agent and attorney-in-fact for
such SPC and need not be signed by such SPC on its own behalf. The Loan
Parties, Administrative Agent, and the Lenders may rely thereon without
any requirement that the SPC sign or acknowledge the same. In addition,
notwithstanding anything to the contrary contained in this Section
13.12(h), any SPC may with notice to, but without the prior written
consent of, Restricted Borrowers and Administrative Agent and without
paying any processing fee therefor, assign all or a portion of its
interests in any Borrowings to the Granting Lender or to any financial
institutions (consented to by Restricted Borrowers and Administrative
Agent) providing liquidity and/or credit support (if any) with respect
to commercial paper issued by such SPC to fund such Borrowings;
provided that any transfer to any Person upon the enforcement of such
pledge or security interest may only be made subject to this Section
13.12, and such SPC may disclose on a confidential basis, confidential
information with respect to the Borrowers and their Subsidiaries to any
rating agency, commercial paper dealer, or provider of a surety,
guarantee, or credit liquidity enhancement to such SPC. This paragraph
may not be amended without the consent of any SPC at the time holding
Borrowings under this Agreement. Administrative Agent shall have no
duty or obligation to give any notices required to be delivered
hereunder to any SPC.
79
13.13 Decisions by Restricted Borrowers. To the extent any action under
the Loan Documents requires the consent or direction of all Restricted Borrowers
and all Restricted Borrowers do not agree on the action to be taken,
Administrative Agent shall (a) take the alternative action (if any) provided
under the Loan Documents for circumstances under which no consent or direction
is given by Restricted Borrowers, or (b) if no such action is provided, take no
action unless otherwise directed by Required Lenders.
13.14 Discharge Only Upon Payment in Full; Reinstatement in Certain
Circumstances. The obligations of each Loan Party under the Loan Documents shall
remain in full force and effect until termination of the Total Commitment,
payment in full of the Principal Debt and of all interest, fees, and other
amounts of the Obligation then due and owing, and expiration of all LCs, except
that Sections 4, 11, and 13, and any other provisions under the Loan Documents
expressly intended to survive by the terms hereof or by the terms of the
applicable Loan Documents, shall survive such termination. If at any time any
payment of the principal of or interest on any Note or any other amount payable
by any Loan Party under any Loan Document is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy, or reorganization of such
Loan Party or otherwise, the obligations of each Loan Party under the Loan
Documents with respect to such payment shall be reinstated as though such
payment had been due but not made at such time.
13.15 Limited Recourse. The obligations of each Loan Party set forth in
the Loan Documents are intended to be binding on each Loan Party and create full
recourse against each Loan Party. Each Parent shall be liable for all
representations, warranties, covenants, and obligations set forth in the Pledge
Agreement executed and delivered by it from time to time, but shall not be
otherwise be liable to repay any Principal Debt. No manager, director, officer,
employee, shareholder, member, or partner of any Parent (which is not a Loan
Party) or any transferee (which is not a Loan Party) of any Collateral securing
the Obligation to the extent such transfer is permitted by the terms of the Loan
Documents or is otherwise made with the prior written consent of each requisite
Lender shall be personally liable for any obligations of any Parent, except as
set forth below. This Section 13.15 shall not (a) prevent or restrict recourse
to the Collateral securing the Obligation or constitute a waiver, release, or
discharge of the Obligation, but the Obligation shall remain outstanding until
paid or discharged; (b) limit any Rights, claims for damages, or recourse of
Administrative Agent, the Lenders, or the Issuing Lenders or their respective
transferees or assigns as a result of (i) any knowing or willful breach by any
Person of any representation or warranty of such Person made under or pursuant
to this Agreement or any other Loan Document or (ii) any knowing or willful
breach of any covenant or other obligation by any Person under this Agreement or
any other Loan Document; or (c) limit the Right of any Person to name any Parent
or Loan Party or any transferee of any interest in the Collateral securing the
Obligation as a party defendant in any action or suit for a judicial sale or in
the exercise of any other remedy under this Agreement or any other Loan
Document, so long as no judgment in the nature of a deficiency judgment shall be
asked for, taken, or enforced against any Person referred to in the third
sentence of this Section 13.15. Notwithstanding the foregoing, nothing herein
shall be construed to constitute a waiver by Administrative Agent, the Lenders,
or the Issuing Lenders of any Rights to damages, other monetary relief,
injunctive relief, or any other remedy at Law or equity against any Parent, Loan
Party, or any Person referred to in the third sentence of this Section 13.15 by
reason of fraud, knowing or willful breach of representations and warranties,
willful tortious acts or omissions, gross negligence, or criminal acts.
[Remainder of Page Intentionally Blank.
Signature Pages Follow.]
80
Signature Page to that certain Credit Agreement dated as of the date
first set forth above, among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision,
LLC, and Highland Prestige Georgia, Inc., as Restricted Borrowers, Bank of
America, N.A., and The Chase manhattan Bank, as Co-Administrative Agents, and
certain other Agents and Lenders named therein.
EXECUTED to be effective as of the Closing Date.
CENTURY CABLE HOLDINGS, LLC, as a Restricted Borrower
Address for all Restricted
Borrowers: By: CENTURY CABLE HOLDING CORP., its
sole member
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
FT. ▇▇▇▇▇ CABLEVISION, LLC, as a Restricted Borrower
By: FT. ▇▇▇▇▇ ACQUISITION LIMITED
PARTNERSHIP, its sole member
By: OLYMPUS COMMUNICATIONS,
L.P., its general partner
By: ACP HOLDINGS, INC., its
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice
President
HIGHLAND PRESTIGE GEORGIA, INC., as a
Restricted Borrower
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Executive Vice President
Signature Page to that certain Credit Agreement dated as of the date
first set forth above, among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision,
LLC, and Highland Prestige Georgia, Inc., as Restricted Borrowers, Bank of
America, N.A., and The Chase manhattan Bank, as Co-Administrative Agents, and
certain other Agents and Lenders named therein.
EXECUTED to be effective as of the Closing Date.
BANK OF AMERICA, N.A., as a Co- Administrative
Agent and Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, Managing Director
THE CHASE MANHATTAN BANK, as a Co-
Administrative Agent and a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ III
▇▇▇▇ ▇. ▇▇▇▇▇ III, Managing Director
Signature Page to that certain Credit Agreement dated as of the date
first set forth above, among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision,
LLC, and Highland Prestige Georgia, Inc., as Restricted Borrowers, Bank of
America, N.A., and The Chase manhattan Bank, as Co-Administrative Agents, and
certain other Agents and Lenders named therein.
EXECUTED to be effective as of the Closing Date.
ABN AMRO BANK N.V., as Managing Agent
and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Group Vice
President
By: /s/ ▇▇▇▇▇▇▇ O'R ▇▇▇▇▇
▇▇▇▇▇▇▇ O'R ▇▇▇▇▇, Senior Vice President
THE BANK OF NEW YORK, as Managing
Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President
BANK OF MONTREAL, as Managing Agent
and a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, Director
THE BANK OF NOVA SCOTIA, as Managing
Agent and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., Authorized
Signatory
BARCLAYS BANK PLC, as Arranging Agent
and a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Director
BAYERISCHE LANDESBANK
GIROZENTRALE CAYMAN ISLANDS
BRANCH, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Senior Vice
President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
CIBC INC., as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Director
CIBC World Markets Corp. As Agent
CIBC WORLD MARKETS CORP., as
Documentation Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Executive Director
CIBC World Markets Corp. As Agent
CITIBANK, N.A., as Managing Agent and a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK
BRANCH, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
By: /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Credit Officer
and Senior Vice President
Signature Page to that certain Credit Agreement dated as of the date
first set forth above, among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision,
LLC, and Highland Prestige Georgia, Inc., as Restricted Borrowers, Bank of
America, N.A., and The Chase manhattan Bank, as Co-Administrative Agents, and
certain other Agents and Lenders named therein.
EXECUTED to be effective as of the Closing Date.
CREDIT INDUSTRIEL ET COMMERCIAL,
as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as Managing Agent and a Lender
By: /s/ ▇▇▇▇ ▇. Judge
▇▇▇▇ ▇. Judge, Vice President
CREDIT SUISSE FIRST BOSTON, as
Managing Agent and a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, Vice President
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
CYPRESSTREE INVESTMENT FUND, LLC,
as a Lender
By: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC., as
its Managing Member
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Principal
THE DAI-ICHI KANGYO BANK, LTD., as
a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, Assistant Vice
President
DG BANK DEUTSCHE
GENOSSENSCHAFTS BANK AG, as a
Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Vice President
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
DLJ CAPITAL FUNDING, INC., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, Managing Director
FIFTH THIRD BANCORP, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Assistant Vice
President
FIRST ALLMERICA FINANCIAL LIFE
INSURANCE COMPANY, as a Lender
By: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC., as
Attorney-in-Fact and on behalf of First
Allmerica Financial Life Insurance
Company as Portfolio Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Principal
FIRSTAR BANK, N.A., as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President
Signature Page to that certain Credit Agreement dated as of the date
first set forth above, among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision,
LLC, and Highland Prestige Georgia, Inc., as Restricted Borrowers, Bank of
America, N.A., and The Chase manhattan Bank, as Co-Administrative Agents, and
certain other Agents and Lenders named therein.
EXECUTED to be effective as of the Closing Date.
FIRST UNION NATIONAL BANK, as
Managing Agent and a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Senior Vice
President
FLEET NATIONAL BANK, as Managing
Agent and a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇, Group Executive
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Loan Officer
FOOTHILL INCOME TRUST II, L.P., as a
Lender
By: FIT II GP, LLC, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing
Member
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
▇▇▇▇▇▇▇ NATIONAL LIFE COMPANY, as
a Lender
By: PPM America, Inc., as Attorney-in-fact
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice
President
▇▇▇▇▇▇ FLOATING RATE FUND, as a
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Senior Vice President
KZH III LLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Authorized Agent
KZH CYPRESSTREE-1 LLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Authorized Agent
KZH ING-2 LLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Authorized Agent
KZH LANGDALE LLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Authorized Agent
KZH PONDVIEW LLC, as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇, Authorized Agent
KZH SHOSHONE LLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Authorized Agent
KZH WATERSIDE LLC, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Authorized Agent
Signature Page to that certain Credit Agreement dated as of the date
first set forth above, among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision,
LLC, and Highland Prestige Georgia, Inc., as Restricted Borrowers, Bank of
America, N.A., and The Chase manhattan Bank, as Co-Administrative Agents, and
certain other Agents and Lenders named therein.
EXECUTED to be effective as of the Closing Date.
LIBERTY - ▇▇▇▇▇ ▇▇▇ ADVISOR
FLOATING RATE ADVANTAGE FUND, as
a Lender
By: ▇▇▇▇▇ ▇▇▇ & Farnham Incorporated, as
Advisor
By: /s/ ▇▇▇▇▇ ▇. Good
Brain W. Good, Vice President
and Portfolio Manager
MEESPIERSON CAPITAL CORP., as a
Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇., Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, Assistant Vice President
MELLON BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇, Assistant Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORP., as
Managing Agent and a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇, Vice President
THE MITSUBISHI TRUST AND BANKING
CORPORATION, as Managing Agent and a
Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Senior Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING,
INC., as a Managing Agent and a Lender
By: /s/ T. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
T. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇, Vice President
NATEXIS BANQUES POPULAIRES, as a
Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Associate
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, Senior Vice President
NATIONAL CITY BANK OF
PENNSYLVANIA, as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, Vice President
NORTH AMERICAN SENIOR FLOATING
RATE FUND, as a Lender
By: CYPRESSTREE INVESTMENT
MANAGEMENT COMPANY, INC., as
Portfolio Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Principal
OLYMPIC FUNDING TRUST SERIES
1999-1, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇.▇▇▇▇▇▇, Authorized Agent
Signature Page to that certain Credit Agreement dated as of the date
first set forth above, among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision,
LLC, and Highland Prestige Georgia, Inc., as Restricted Borrowers, Bank of
America, N.A., and The Chase manhattan Bank, as Co-Administrative Agents, and
certain other Agents and Lenders named therein.
EXECUTED to be effective as of the Closing Date.
▇▇▇▇▇▇▇▇▇▇▇ SENIOR FLOATING RATE
FUND, as a Lender
By: /s/ ▇▇▇▇▇ Foxhorn
▇▇▇▇▇ Foxhorn, Assistant Vice President
PINEHURST TRADING, INC., as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
PRINCIPAL LIFE INSURANCE COMPANY,
as a Lender
By: Principal Capital Management, LLC, a
Delaware limited liability company, its
authorized signatory
By: /s/ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, Counsel
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, Counsel
SOCIETE GENERALE, as a Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, Director
▇▇▇▇▇ ▇▇▇ FLOATING RATE LIMITED
LIABILITY COMPANY, as a Lender
By: ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇ Incorporated, as
Advisor
By: /s/ ▇▇▇▇▇ ▇. Good
▇▇▇▇▇ ▇. Good, Vice President
SUNTRUST BANK, as Managing Agent and a
Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Director
TORONTO DOMINION (TEXAS), INC., as
Syndication Agent and a Lender
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
U.S. BANK NATIONAL ASSOCIATION, as
a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President
UNITED OF OMAHA LIFE INSURANCE
COMPANY, as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇., First Vice
President
EXHIBIT A-1
FORM OF REVOLVER NOTE
$------------- ------------ --, ----
FOR VALUE RECEIVED, the undersigned, CENTURY CABLE HOLDINGS, LLC, FT.
▇▇▇▇▇ CABLEVISION, LLC, and HIGHLAND PRESTIGE GEORGIA, INC. ("Borrowers"),
hereby jointly and severally promise to pay to the order of
______________________ ("Revolver Lender"), at the offices of BANK OF AMERICA,
N.A., as Administrative Agent for Revolver Lender and others as hereinafter
described, on the Termination Date for the Revolver Facility, the lesser of (a)
$_______________ and (b) the aggregate Revolver Principal Debt disbursed by
Revolver Lender to Borrowers and outstanding and unpaid on the Termination Date
for the Revolver Facility (together with accrued and unpaid interest thereon).
This note has been executed and delivered under, and is subject to the
terms of, the Credit Agreement, dated as of April 14, 2000 (as amended,
modified, supplemented, or restated from time to time, the "Credit Agreement"),
among Borrowers, Bank of America, N.A., and The Chase Manhattan Bank (as Co-
Administrative Agents), Revolver Lender, and other Agents and Lenders party
thereto, and is one of the "Revolver Notes" referred to therein. Unless defined
herein, capitalized terms used herein that are defined in the Credit Agreement
have the meaning given to such terms in the Credit Agreement. Reference is made
to the Credit Agreement for provisions affecting this note regarding applicable
interest rates, principal and interest payment dates, final maturity, voluntary
and mandatory prepayments, acceleration of maturity, exercise of Rights, payment
of attorneys' fees, court costs, and other costs of collection, certain waivers
by Borrowers and others now or hereafter obligated for payment of any sums due
hereunder and security for the payment hereof. Without limiting the immediately
preceding sentence, reference is made to Section 3.9 of the Credit Agreement for
usury savings provisions.
THIS NOTE AND THE OTHER LOAN DOCUMENTS HAVE BEEN ENTERED INTO PURSUANT
TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK, AND THE APPLICABLE FEDERAL LAWS OF THE UNITED
STATES OF AMERICA SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION HEREOF.
CENTURY CABLE HOLDINGS, LLC
By:
Name:
Title:
HIGHLAND PRESTIGE GEORGIA, INC.
By:
Name:
Title:
FT. ▇▇▇▇▇ CABLEVISION, LLC
By:
Name:
Title:
EXHIBIT A-2
FORM OF TERM LOAN NOTE
Exhibit A-2
$----------------- ------------ --, ----
FOR VALUE RECEIVED, the undersigned, CENTURY CABLE HOLDINGS, LLC, FT.
▇▇▇▇▇ CABLEVISION, LLC, and HIGHLAND PRESTIGE GEORGIA, INC. ("Borrowers"),
hereby jointly and severally promise to pay to the order of
______________________ ("Term Loan Lender"), at the offices of BANK OF AMERICA,
N.A., as Administrative Agent for Term Loan Lender and others as hereinafter
described, on the Termination Date for the Term Loan Facility, the lesser of (a)
$_______________ and (b) the aggregate Term Loan Principal Debt disbursed by
Term Loan Lender to Borrowers (together with accrued and unpaid interest
thereon) at such interest rates, on such dates, and in such amounts as are
specified in the Credit Agreement (hereinafter defined).
This note has been executed and delivered under, and is subject to the
terms of, the Credit Agreement, dated as of April 14, 2000 (as amended,
modified, supplemented, or restated from time to time, the "Credit Agreement"),
among Borrowers, Bank of America, N.A., and The Chase Manhattan Bank (as Co-
Administrative Agents), Term Loan Lender, and other Agents and Lenders party
thereto, and is one of the "Term Loan Notes" referred to therein. Unless defined
herein, capitalized terms used herein that are defined in the Credit Agreement
have the meaning given to such terms in the Credit Agreement. Reference is made
to the Credit Agreement for provisions affecting this note regarding applicable
interest rates, principal and interest payment dates, final maturity, voluntary
and mandatory prepayments, acceleration of maturity, exercise of Rights, payment
of attorneys' fees, court costs, and other costs of collection, certain waivers
by Borrowers and others now or hereafter obligated for payment of any sums due
hereunder and security for the payment hereof. Without limiting the immediately
preceding sentence, reference is made to Section 3.9 of the Credit Agreement for
usury savings provisions.
THIS NOTE AND THE OTHER LOAN DOCUMENTS HAVE BEEN ENTERED INTO PURSUANT
TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK, AND THE APPLICABLE FEDERAL LAWS OF THE UNITED
STATES OF AMERICA SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION HEREOF.
CENTURY CABLE HOLDINGS, LLC
By:
Name:
Title:
HIGHLAND PRESTIGE GEORGIA, INC.
By:
Name:
Title:
FT. ▇▇▇▇▇ CABLEVISION, LLC
By:
Name:
Title:
EXHIBIT A-3
FORM OF DISCRETIONARY REVOLVER NOTE
$----------------- ------------ --, ----
Exhibit A-3
FOR VALUE RECEIVED, the undersigned, CENTURY CABLE HOLDINGS, LLC, FT.
▇▇▇▇▇ CABLEVISION, LLC, and HIGHLAND PRESTIGE GEORGIA, INC. ("Borrowers"),
hereby jointly and severally promise to pay to the order of
______________________ ("Revolver Lender"), at the offices of BANK OF AMERICA,
N.A., as Administrative Agent for Revolver Lender and others as hereinafter
described, on the Termination Date for the Revolver Facility, the lesser of (a)
$_______________ and (b) the aggregate Discretionary Revolver Principal Debt for
the subject Discretionary Revolver Loan disbursed by Revolver Lender to
Borrowers and outstanding and unpaid on the Termination Date for the Revolver
Facility (together with accrued and unpaid interest thereon).
This note has been executed and delivered under, and is subject to the
terms of, the Credit Agreement, dated as of April 14, 2000 (as amended,
modified, supplemented, or restated from time to time, the "Credit Agreement"),
among Borrowers, Bank of America, N.A., and The Chase Manhattan Bank (as Co-
Administrative Agents), Revolver Lender, and other Agents and Lenders party
thereto, and is one of the "Discretionary Revolver Notes" referred to therein.
Unless defined herein, capitalized terms used herein that are defined in the
Credit Agreement have the meaning given to such terms in the Credit Agreement.
Reference is made to the Credit Agreement and the Supplemental Credit Documents
for such Discretionary Revolver Loan for provisions affecting this note
regarding applicable interest rates, principal and interest payment dates, final
maturity, voluntary and mandatory prepayments, acceleration of maturity,
exercise of Rights, payment of attorneys' fees, court costs, and other costs of
collection, certain waivers by Borrowers and others now or hereafter obligated
for payment of any sums due hereunder and security for the payment hereof.
Without limiting the immediately preceding sentence, reference is made to
Section 3.9 of the Credit Agreement for usury savings provisions.
THIS NOTE AND THE OTHER LOAN DOCUMENTS HAVE BEEN ENTERED INTO PURSUANT
TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK, AND THE APPLICABLE FEDERAL LAWS OF THE UNITED
STATES OF AMERICA SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION HEREOF.
CENTURY CABLE HOLDINGS, LLC
By:
Name:
Title:
HIGHLAND PRESTIGE GEORGIA, INC.
By:
Name:
Title:
FT. ▇▇▇▇▇ CABLEVISION, LLC
By:
Name:
Title:
EXHIBIT A-4
FORM OF DISCRETIONARY TERM LOAN NOTE
$----------------- ------------ --, ----
Exhibit A-4
FOR VALUE RECEIVED, the undersigned, CENTURY CABLE HOLDINGS, LLC, FT.
▇▇▇▇▇ CABLEVISION, LLC, and HIGHLAND PRESTIGE GEORGIA, INC. ("Borrower"), hereby
jointly and severally promise to pay to the order of ______________________
("Term Loan Lender"), at the offices of BANK OF AMERICA, N.A., as Administrative
Agent for Term Loan Lender and others as hereinafter described, on the
Termination Date for the subject Discretionary Term Loan Subfacility, the lesser
of (a) $_______________ and (b) the aggregate Discretionary Term Loan Principal
Debt disbursed by Term Loan Lender to Borrowers (together with accrued and
unpaid interest thereon) at such interest rates, on such dates, and in such
amounts as are specified in the Supplemental Credit Documents for such
Discretionary Term Loan.
This note has been executed and delivered under, and is subject to the
terms of, the Credit Agreement, dated as of April 14, 2000 (as amended,
modified, supplemented, or restated from time to time, the "Credit Agreement"),
among Borrowers, Bank of America, N.A., and The Chase Manhattan Bank (as Co-
Administrative Agents), Term Loan Lender, and other Agents and Lenders party
thereto, and is one of the "Discretionary Term Loan Notes" referred to therein.
Unless defined herein, capitalized terms used herein that are defined in the
Credit Agreement have the meaning given to such terms in the Credit Agreement.
Reference is made to the Credit Agreement and the Supplemental Credit Documents
for such Discretionary Term Loan for provisions affecting this note regarding
applicable interest rates, principal and interest payment dates, final maturity,
voluntary and mandatory prepayments, acceleration of maturity, exercise of
Rights, payment of attorneys' fees, court costs, and other costs of collection,
certain waivers by Borrowers and others now or hereafter obligated for payment
of any sums due hereunder and security for the payment hereof. Without limiting
the immediately preceding sentence, reference is made to Section 3.9 of the
Credit Agreement for usury savings provisions.
THIS NOTE AND THE OTHER LOAN DOCUMENTS HAVE BEEN ENTERED INTO PURSUANT
TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK, AND THE APPLICABLE FEDERAL LAWS OF THE UNITED
STATES OF AMERICA SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION HEREOF.
CENTURY CABLE HOLDINGS, LLC
By:
Name:
Title:
HIGHLAND PRESTIGE GEORGIA, INC.
By:
Name:
Title:
FT. ▇▇▇▇▇ CABLEVISION, LLC
By:
Name:
Title:
EXHIBIT A-5
FORM OF UNRESTRICTED BORROWER NOTE
$------------- ------------ --, ----
Exhibit A-5
FOR VALUE RECEIVED, the undersigned, ________________________________
("Unrestricted Borrower"), CENTURY CABLE HOLDINGS, LLC, FT. ▇▇▇▇▇ CABLEVISION,
LLC, and HIGHLAND PRESTIGE GEORGIA, INC. (collectively with Unrestricted
Borrower, "Borrowers"), hereby jointly and severally promise to pay to the order
of ______________________ ("Lender"), at the offices of BANK OF AMERICA, N.A.,
as Administrative Agent for Lender and others as hereinafter described, on the
Termination Date for the Revolver Facility, the lesser of (a) $_______________
and (b) the aggregate Designated Amount disbursed by Lender to Unrestricted
Borrower and outstanding and unpaid on the Termination Date for the Revolver
Facility (together with accrued and unpaid interest thereon).
This note has been executed and delivered under, and is subject to the
terms of, the Credit Agreement, dated as of April 14, 2000 (as amended,
modified, supplemented, or restated from time to time, the "Credit Agreement"),
among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision, LLC, and Highland
Prestige Georgia, Inc. (as Restricted Borrowers), Bank of America, N.A. and The
Chase Manhattan Bank (as Co- Administrative Agents), Lender, and other Agents
and lenders party thereto, and is one of the "Unrestricted Borrower Notes"
referred to therein. Unless defined herein, capitalized terms used herein that
are defined in the Credit Agreement have the meaning given to such terms in the
Credit Agreement. Reference is made to the Credit Agreement for provisions
affecting this note regarding applicable interest rates, principal and interest
payment dates, final maturity, voluntary and mandatory prepayments, acceleration
of maturity, exercise of Rights, payment of attorneys' fees, court costs, and
other costs of collection, certain waivers by Borrower and others now or
hereafter obligated for payment of any sums due hereunder and security for the
payment hereof. Without limiting the immediately preceding sentence, reference
is made to Section 3.9 of the Credit Agreement for usury savings provisions.
THIS NOTE AND THE OTHER LOAN DOCUMENTS HAVE BEEN ENTERED INTO PURSUANT
TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND THE SUBSTANTIVE
LAWS OF THE STATE OF NEW YORK, AND THE APPLICABLE FEDERAL LAWS OF THE UNITED
STATES OF AMERICA SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION HEREOF.
[UNRESTRICTED BORROWER]
By:
Name:
Title:
Exhibit A-5
ACKNOWLEDGMENT OF
UNRESTRICTED BORROWER NOTE
The undersigned Restricted Borrowers under that certain Credit
Agreement, dated as of April 14, 2000 (as amended, modified, supplemented, or
restated from time to time, the "Credit Agreement"), among Century Cable
Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision, LLC, and Highland Prestige Georgia, Inc.
(as Restricted Borrowers), Bank of America, N.A. and The Chase Manhattan Bank
(as Co-Administrative Agents), Lender, and other Agents and lenders party
thereto, hereby acknowledge that _______________, as an Unrestricted Borrower,
has executed the attached Unrestricted Borrower Note (the "Note") and hereby
agree that the Restricted Borrowers are jointly and severally liable for the
Obligation evidenced by the Note and that the Obligation evidenced by the Note
is part of the Obligation under the Revolver Facility (as such term is defined
in the Credit Agreement).
CENTURY CABLE HOLDINGS, LLC
By:
Name:
Title:
HIGHLAND PRESTIGE GEORGIA, INC.
By:
Name:
Title:
FT. ▇▇▇▇▇ CABLEVISION, LLC
By:
Name:
Title:
Exhibit ▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF BORROWING NOTICE
(Century Cable Holdings, LLC et al.)
-------------- --, ----
Bank of America, N.A.
as Administrative Agent for the
Lenders as defined in the Credit
Agreement referred to below
Bank of America Plaza, 14th Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Sahar Sharkaway
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Reference is made to the Credit Agreement, dated as of April 14, 2000
(as amended, modified, supplemented, or restated from time to time, the "Credit
Agreement"), among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision, LLC, and
Highland Prestige Georgia, Inc. ("Restricted Borrowers"), Bank of America, N.A.
and The Chase Manhattan Bank, as Co-Administrative Agents, and other Agents and
Lenders party thereto. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned Borrowers hereby give you notice pursuant to the Credit
Agreement that they request a Borrowing under the Credit Agreement, and in that
connection sets forth below the terms on which such Borrowing is requested to be
made:
Is the requested Borrowing a Borrowing by an Unrestricted
Borrower: ______ Yes ______ No
If yes, name the Unrestricted Borrower:
Revolver Term Loan Discretionary Discretionary
Facility Facility Revolver Term Loan
Subfacility Subfacility
(A) Specify (with an "X") if Borrowing is (A)
under Revolver Facility, Term Loan
Facility, Discretionary Revolver
Subfacility, or Discretionary Term
Loan Subfacility.
(B) If requested Borrowing is under the (B)
Discretionary Revolver Subfacility or
the Discretionary Term Loan
Subfacility, identify the specific
Discretionary Revolver Loan or
Discretionary Term Loan (as
applicable) under which the requested
Borrowing is to be made.
(C) Borrowing Date of Borrowing 1 (C)
(D) Amount of Borrowing 2 (D)
(E) Type of Borrowing 3 (E)
Exhibit B-1
1
Revolver Term Loan Discretionary Discretionary
(F) For a Eurodollar Rate Borrowing, the
Interest Period and the last day (F)
thereof 4
The undersigned Borrower and the Restricted Borrowers hereby certify
that the following statements are true and correct on the date hereof, and will
be true and correct on the Borrowing Date specified herein after giving effect
to such Borrowing:
(a) The requested Borrowing will not cause the Principal Debt
to exceed the Total Commitment; the requested Borrowing will not cause
the sum of the aggregate Committed Sums of all Discretionary Lenders
for all Discretionary Revolver Loans and the aggregate Discretionary
Term Loan Principal Debt under all Discretionary Term Loans to exceed
the Maximum Discretionary Commitment; if the Borrowing is a Borrowing
under the Revolver Facility, the Borrowing will not cause the Revolver
Commitment Usage to exceed the Revolver Commitment; if the Borrowing is
a Borrowing under the Term Loan Facility, such Borrowing will not cause
the Term Loan Principal Debt to exceed the Term Loan Commitment; if the
Borrowing is a Borrowing under the Discretionary Revolver Subfacility,
such Borrowing will not (i) cause the Discretionary Revolver Principal
Debt for all Discretionary Revolver Loans to exceed the Discretionary
Revolver Commitment for all Discretionary Revolver Loans, or (ii) cause
the Discretionary Revolver Principal Debt for any Discretionary
Revolver Loan to exceed the Discretionary Revolver Commitment for such
Discretionary Revolver Loan; if the Borrowing is a Borrowing under the
Discretionary Term Loan Subfacility, such Borrowing will not (i) cause
the Discretionary Term Loan Principal Debt for all Discretionary Term
Loans to exceed the Discretionary Term Commitment for all Discretionary
Term Loans, or (ii) cause the Discretionary Term Loan Principal Debt
for any Discretionary Term Loan to exceed the Discretionary Term
Commitment for such Discretionary Term Loan;
(b) All of the representations and warranties of any Company
(or, in addition, with respect to any Borrowing by any Unrestricted
Borrower, such Unrestricted Borrower) set forth in the Loan Documents
are true and correct in all material respects (except to the extent
that (i) the representations and warranties speak to a specific date or
(ii) the facts on which such representations and warranties are based
have been changed by transactions contemplated or permitted by the Loan
Documents and, if applicable, supplemental Schedules have been
delivered with respect thereto and, when necessary, approved by
Required Lenders);
(c) If the requested Borrowing is a Borrowing by any
Unrestricted Borrower, a certificate demonstrating compliance with
Section 9.20(i) or (j) is attached hereto; and
(e) No Default or Potential Default has occurred and is
continuing or will arise after giving effect to the requested
Borrowing.
Very truly yours,
, Unrestricted Borrower
By:
Name:
Exhibit B-1
2
Title:
CENTURY CABLE HOLDINGS, LLC
By: CENTURY CABLE HOLDING
CORP., its sole member
By:
Name:
Title:
HIGHLAND PRESTIGE GEORGIA, INC.
By:
Name:
Title:
FT. ▇▇▇▇▇ CABLEVISION, LLC
By: FT. ▇▇▇▇▇ ACQUISITION LIMITED
PARTNERSHIP, its sole member
By: OLYMPUS COMMUNICATIONS,
L.P., its general partner
By: ACP HOLDINGS, INC., its
general partner
By:
Name:
Title:
Rate:
Confirmed by:
1 For any Borrowing under the Revolver Facility, must be a Business Day
occurring prior to the Termination Date for the Revolver Facility and
be at least (a) three Business Days following receipt by Administrative
Agent of this Borrowing Notice for any Eurodollar Rate Borrowing, and
(b) the same Business Day of receipt by Administrative Agent of this
Borrowing Notice for any Base Rate Borrowing. For any Borrowing under
the Term Loan Facility, must be the Closing Date.
2 Not less than $10,000,000 or an integral multiple of $500,000 if a
Eurodollar Rate Borrowing under the Revolver Facility or $5,000,000 or
an integral multiple of $100,000 if a Base Rate Borrowing under the
Revolver Facility.
3 Eurodollar Rate Borrowing or Base Rate Borrowing.
4 1, 2, 3, 6, or (if available) 12 months; in no event may the Interest
Period for any Facility end after the Termination Date for that
Facility or Discretionary Loan.
Exhibit B-1
3
EXHIBIT B-2
FORM OF CONVERSION NOTICE
(Century Cable Holdings, LLC et al.)
-------------- --, ----
Bank of America, N.A.,
as Administrative Agent for the
Lenders as defined in the Credit
Agreement referred to below
Bank of America Plaza, 14th Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Sahar Sharkaway
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Reference is made to the Credit Agreement, dated as of April 14, 2000
(as amended, modified, supplemented, or restated from time to time, the "Credit
Agreement"), among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision, LLC, and
Highland Prestige Georgia, Inc. ("Restricted Borrowers"), Bank of America, N.A.
and The Chase Manhattan Bank, as Co-Administrative Agents, and other Agents and
Lenders party thereto. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The undersigned Borrowers hereby give you notice pursuant to Section 3.11 of the
Credit Agreement that they elect to convert a Borrowing under the Credit
Agreement from one Type to another Type or elects a new Interest Period for a
Eurodollar Rate Borrowing, and in that connection sets forth below the terms on
which such election is requested to be made:
Is the subject Borrowing a Borrowing by an Unrestricted
Borrower: ______ Yes ______ No
If yes, name the Unrestricted Borrower:
Revolver Term Discretionary Discretionary
Facility Loan Revolver Term Loan
Facility Subfacility Subfacility
(A) Specify (with an "X") if (A)
Borrowing is under Revolver Facility, Term Loan Facility, Discretionary
Revolver Subfacility, or Discretionary Term Loan Subfacility.
Exhibit B-2
1
Revolver Term Discretionary Discretionary
(B) If requested Borrowing is under (B)
the Discretionary Revolver
Subfacility or the Discretionary
Term Loan Subfacility, identify
the specific Discretionary
Revolver Loan or Discretionary
Term Loan (as applicable) under
which the requested Borrowing is
to be made.
(C) Date of conversion or last day of (C)
applicable Interest Period1
(D) Principal amount of existing (D)
Borrowing being converted or
continued2
(E) New Type of Borrowing selected (E)
(or Type of Borrowing
continued)3
(F) For conversion to, or continuation (F)
of, a Eurodollar Rate Borrowing,
Interest Period and the last day
thereof4
As of the date hereof and of the requested Conversion, no Default or
Potential Default has occurred and is continuing.
On the date the rate is set, please confirm the interest rate below and
return by facsimile transmission to _________________________.
Very truly yours,
, Unrestricted Borrower
By:
Name:
Title:
Exhibit B-2
2
CENTURY CABLE HOLDINGS, LLC
By: CENTURY CABLE HOLDING
CORP., its sole member
By:
Name:
Title:
HIGHLAND PRESTIGE GEORGIA, INC.
By:
Name:
Title:
FT. ▇▇▇▇▇ CABLEVISION, LLC
By: FT. ▇▇▇▇▇ ACQUISITION LIMITED
PARTNERSHIP, its sole member
By: OLYMPUS COMMUNICATIONS,
L.P., its general partner
By: ACP HOLDINGS, INC., its
general partner
By:
Name:
Title:
Rate:
Confirmed by:
1 Must be a Business Day at least (a) three Business Days following
receipt by Administrative Agent of this Conversion Notice for any
conversion from a Base Rate Borrowing to a Eurodollar Rate Borrowing or
a continuation of a Eurodollar Rate Borrowing for an additional
Interest Period, and (b) one Business Day following receipt by
Administrative Agent of this Conversion Notice for a conversion from a
Eurodollar Rate Borrowing to a Base Rate Borrowing.
2 Not less than $10,000,000 or a greater integral multiple of $500,000 or
such lesser amount as may be outstanding under any Facility (if a
Eurodollar Rate Borrowing).
3 Eurodollar Rate Borrowing or Base Rate Borrowing.
4 1, 2, 3, 6, or (if available) 12 months; in no event may the Interest
Period for any Facility end after the Termination Date for that
Facility or Discretionary Loan.
Exhibit B-2
3
EXHIBIT B-3
FORM OF LC REQUEST
(Century Cable Holdings, LLC et al.)
-------------- --, ----
-----------------------------,
as Issuing Lender as defined in the Credit
Agreement referred to below
===========================
Attn: ______________________
Fax: ______________________
Bank of America, N.A.,
as Administrative Agent for the
Lenders as defined in the Credit
Agreement referred to below
Bank of America Plaza, 14th Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Sahar Sharkaway
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Reference is made to the Credit Agreement, dated as of April 14, 2000
(as amended, modified, supplemented, or restated from time to time, the "Credit
Agreement"), among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision, LLC, and
Highland Prestige Georgia, Inc. ("Restricted Borrowers"), Bank of America, N.A.,
and The Chase Manhattan Bank as Administrative Agents, and other Agents and
Lenders party thereto. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
Restricted Borrowers hereby give you notice pursuant to Section 2.3(a) of the
Credit Agreement that they request the issuance of an LC under the LC
Subfacility, and in that connection sets forth below the terms on which such LC
is requested to be issued:
(A) Face amount of the LC 1
(B) Date on which the LC is to be issued 2
(C) Expiration date of the LC 3
The requested LC is to be issued for the benefit of the following Loan
Party:
Accompanying this notice is a duly executed and properly completed LC
Agreement in the form requested by Issuing Lender, together with the payment of
any LC Fees due and payable pursuant to Section 5.5 of the Credit Agreement.
Restricted Borrowers hereby certify that the following statements are
true and correct on the date hereof, and will be true and correct on the date
specified herein for issuance of the LC, after giving effect to the issuance of
such LC:
Exhibit B-3
1
(a) the issuance of the requested LC will not cause the
Revolver Commitment Usage to exceed the Revolver Commitment;
(b) the issuance of the requested LC will not cause the
LC Exposure to exceed $500,000,000;
(c) all of the representations and warranties of any Company
set forth in the Loan Documents are true and correct in all material
respects (except to the extent that (i) the representations and
warranties speak to a specific date or (ii) the facts on which such
representations and warranties are based have been changed by
transactions permitted by the Loan Documents and, if applicable,
supplemental Schedules have been delivered with respect thereto and,
when necessary, approved by Required Lenders); and
(d) no Default or Potential Default has occurred and is
continuing or will arise after giving effect to the requested LC.
Very truly yours,
CENTURY CABLE HOLDINGS, LLC
By: CENTURY CABLE HOLDING
CORP., its sole member
By:
Name:
Title:
HIGHLAND PRESTIGE GEORGIA, INC.
By:
Name:
Title:
FT. ▇▇▇▇▇ CABLEVISION, LLC
By: FT. ▇▇▇▇▇ ACQUISITION LIMITED
PARTNERSHIP, its sole member
By: OLYMPUS COMMUNICATIONS,
L.P., its general partner
By: ACP HOLDINGS, INC., its
general partner
By:
Name:
Title:
Rate:
Confirmed by:
1 Amount of requested LC plus the LC Exposure shall not exceed
$500,000,000 (as the maximum amount of such LC Subfacility may
be reduced or canceled in accordance with the Loan Documents).
2 Must be a Business Day at least three Business Days following
receipt by Issuing Lender and Administrative Agent of this LC
Request.
Exhibit B-3
2
3 Not later than the earlier of one year from the date of
issuance or five days prior to the Termination Date for the
Revolver Facility.
Exhibit B-3
3
EXHIBIT B-4
FORM OF DESIGNATION REQUEST
(Century Cable Holdings, LLC et al.)
-------------- --, ----
Bank of America, N.A.,
as Administrative Agent for the
Lenders as defined in the Credit
Agreement referred to below
Bank of America Plaza, 14th Floor
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Sahar Sharkaway
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Reference is made to the Credit Agreement, dated as of April 14, 2000
(as amended, modified, supplemented, or restated from time to time, the "Credit
Agreement"), among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision, LLC, and
Highland Prestige Georgia, Inc. ("Restricted Borrowers"), Bank of America, N.A.
and The Chase Manhattan Bank, as Co-Administrative Agents, and other Agents and
Lenders party thereto. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
Restricted Borrowers hereby give you notice pursuant to Section 2.1(b) of the
Credit Agreement that they request the designation of the following Person as an
Unrestricted Borrower, and in that connection set forth below the terms on which
such designation is requested to be made:
(A) Name of Unrestricted Borrower:
(B) Notice Address:
(C) Designated Amount to be Available to
such Unrestricted Borrower: $
Restricted Borrowers hereby certify that the following statements are
true and correct on the date hereof:
(a) Such Unrestricted Borrower has complied with and delivered
the items required by Section 7.2;
(b) The requested Designated Amount, when aggregated with
the Designated Amounts for all other Unrestricted Borrowers, does not
exceed $500,00,000;
(c) The aggregate number of all Unrestricted Borrowers,
including this newly designated Unrestricted Borrower, does not exceed
five; and
(d) No Default or Potential Default has occurred and is
continuing or will arise after giving effect to this request.
Very truly yours,
Exhibit B-4
1
CENTURY CABLE HOLDINGS, LLC
By: CENTURY CABLE HOLDING
CORP., its sole member
By:
Name:
Title:
HIGHLAND PRESTIGE GEORGIA, INC.
By:
Name:
Title:
FT. ▇▇▇▇▇ CABLEVISION, LLC
By: FT. ▇▇▇▇▇ ACQUISITION LIMITED
PARTNERSHIP, its sole member
By: OLYMPUS COMMUNICATIONS,
L.P., its general partner
By: ACP HOLDINGS, INC., its
general partner
By:
Name:
Title:
Exhibit B-4
2
EXHIBIT C
FORM OF GUARANTY
THIS GUARANTY is executed as of , 2000, [jointly and severally] by the
undersigned ([each a] "Guarantor" [and collectively the "Guarantors"]), for the
benefit of BANK OF AMERICA, N.A., a national banking association (in its
capacity as Administrative Agent for the benefit of Lenders).
RECITALS
A. Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision, LLC, and
Highland Prestige Georgia, Inc. ("Restricted Borrowers"), Bank of America, N.A.,
as Administrative Agent (including its permitted successors and assigns in such
capacity, "Administrative Agent"), and certain other Agents and Lenders
(including their respective permitted successors and assigns, "Lenders") have
entered into a Credit Agreement, dated as of April 14, 2000 (as amended,
modified, supplemented, or restated from time to time, the "Credit Agreement");
B. Provisions of the Credit Agreement permit Guarantor to
directly or indirectly receive proceeds of Borrowings made pursuant thereto; and
C. This Guaranty is integral to the transactions contemplated by
the Loan Documents and the execution and delivery hereof is a condition
precedent to Lenders' obligations to extend credit under the Loan
Documents.
ACCORDINGLY, for adequate and sufficient consideration, the receipt and
adequacy of which are hereby acknowledged, [each] Guarantor [, jointly and
severally,] guarantees to Administrative Agent and Lenders the prompt payment of
the Guaranteed Debt (defined below) as follows:
1. DEFINITIONS. Terms defined in the Credit Agreement have the
same meanings when used, unless otherwise defined, in this Guaranty. As used in
this Guaranty:
Borrower means any Borrower (as defined in the Credit Agreement), any
Borrower as a debtor-in- possession, and any receiver, trustee, liquidator,
conservator, custodian, or similar party appointed for any Borrower or for all
or substantially all of any Borrower's assets under any Debtor Relief Law.
Credit Agreement is defined in the recitals to this Guaranty.
Guaranteed Debt means, collectively, (a) the Obligation and (b) all
present and future costs, attorneys' fees, and expenses reasonably incurred by
Administrative Agent or any Lender to enforce any Borrower's, [any] Guarantor's,
or any other obligor's payment of any of the Guaranteed Debt, including, without
limitation (to the extent lawful), all present and future amounts that would
become due but for the operation of ▇▇.▇▇. 502 or 506 or any other provision of
Title 11 of the United States Code and all present and future accrued and unpaid
interest (including, without limitation, all post-maturity interest and any
post-petition interest in any proceeding under Debtor Relief Laws to which any
Borrower or Guarantor becomes subject).
Guarantor [and Guarantors] is defined in the preamble to this Guaranty.
--------
Bracketed provisions included to reflect variations for use in
single-Guarantor or multi-Guarantor Guaranties.
Exhibit C
1
Lender means, individually, or Lenders means, collectively, on any date
of determination, Administrative Agent and Lenders and their permitted
successors and assigns.
Subordinated Debt means[, for each Guarantor,] all present and future
obligations of any Company to [such] Guarantor, whether those obligations are
(a) direct, indirect, fixed, contingent, liquidated, unliquidated, joint,
several, or joint and several, (b) due or to become due to [such] Guarantor, (c)
held by or are to be held by [such] Guarantor, (d) created directly or acquired
by assignment or otherwise, or (e) evidenced in writing.
2. GUARANTY. This is an absolute, irrevocable, and continuing guaranty
of payment, not collection, and the circumstance that at any time or from time
to time the Guaranteed Debt may be paid in full does not affect the obligation
of [any] Guarantor with respect to the Guaranteed Debt incurred after that. This
Guaranty remains in effect until the Guaranteed Debt is fully paid and
performed, all commitments to extend any credit under the Loan Documents have
terminated, all LCs have expired or been terminated, and all Financial ▇▇▇▇▇▇
with any Lender or Affiliate of any Lender have expired. [No] Guarantor may
[not] rescind or revoke its obligations with respect to the Guaranteed Debt.
Notwithstanding any contrary provision, it is the intention of Guarantor[s],
Lenders, and Administrative Agent that the amount of the Guaranteed Debt
guaranteed by Guarantor[s] by this Guaranty shall be in, but not in excess of,
the maximum amount permitted by fraudulent conveyance, fraudulent transfer, or
similar Laws applicable to Guarantor[s]. Accordingly, notwithstanding anything
to the contrary contained in this Guaranty or any other agreement or instrument
executed in connection with the payment of any of the Guaranteed Debt, the
amount of the Guaranteed Debt guaranteed by [any] Guarantor under this Guaranty
shall be limited to an aggregate amount equal to the largest amount that would
not render [such] Guarantor's obligations hereunder subject to avoidance under
Section 548 of the United States Bankruptcy Code or any comparable provision of
any applicable state Law.
3. CONSIDERATION. [Each] Guarantor represents and warrants that its
liability under this Guaranty may reasonably be expected to directly or
indirectly benefit it.
4. CUMULATIVE RIGHTS. If [any] Guarantor becomes liable for any
indebtedness owing by any Borrower to Administrative Agent or any Lender, other
than under this Guaranty, that liability may not be in any manner impaired or
affected by this Guaranty. The Rights of Administrative Agent or Lenders under
this Guaranty are cumulative of any and all other Rights that Administrative
Agent or Lenders may ever have against [any] Guarantor. The exercise by
Administrative Agent or Lenders of any Right under this Guaranty or otherwise
does not preclude the concurrent or subsequent exercise of any other Right.
5. PAYMENT UPON DEMAND. If a Default exists, [each] Guarantor shall, on
demand and without further notice of dishonor and without any notice having been
given to [any] Guarantor previous to that demand of either the acceptance by
Administrative Agent or Lenders of this Guaranty or the creation or incurrence
of any Guaranteed Debt, pay the amount of the Guaranteed Debt then due and
payable to Administrative Agent and Lenders; provided that, if a Default exists
and Administrative Agent or Lenders cannot, for any reason, accelerate the
Obligation, then the Guaranteed Debt shall be, as among Guarantor[s],
Administrative Agent, and Lenders, a fully matured, due, and payable obligation
of Guarantor[s] to Administrative Agent and Lenders. It is not necessary for
Administrative Agent or Lenders, in order to enforce that payment by [any]
Guarantor, first or contemporaneously to institute suit or exhaust remedies
against any Borrower or others liable on any Guaranteed Debt or to enforce
Rights against any Collateral securing any Guaranteed Debt.
6. SUBORDINATION. The Subordinated Debt is expressly subordinated to
the full and final payment of the Guaranteed Debt. Upon the occurrence and
during the continuation of a Default, [each] Guarantor agrees not to accept any
payment of any Subordinated Debt from any Company. If [any] Guarantor
Exhibit C
2
receives any payment of any Subordinated Debt in violation of the foregoing,
[such] Guarantor shall hold that payment in trust for Administrative Agent and
Lenders and promptly turn it over to Administrative Agent, in the form received
(with any necessary endorsements), to be applied to the Guaranteed Debt.
7. SUBROGATION AND CONTRIBUTION. Until payment in full of the
Guaranteed Debt, the termination of the Obligation of Lenders to extend credit
under the Loan Documents, and expiration of all Financial ▇▇▇▇▇▇ between any
Company and any Lender or any Affiliate of any Lender, (a) [no] Guarantor may
[not] assert, enforce, or otherwise exercise any Right of subrogation to any of
the Rights or Liens of Administrative Agent or Lenders or any other beneficiary
against any Borrower or any other obligor on the Guaranteed Debt or any
Collateral or other security or any Right of recourse, reimbursement,
subrogation, contribution, indemnification, or similar Right against any
Borrower or any other obligor on any Guaranteed Debt or [any] Guarantor of it,
(b) [each] Guarantor defers all of the foregoing Rights (whether they arise in
equity, under contract, by statute, under common Law, or otherwise), and (c)
[each] Guarantor defers the benefit of, and subordinates any Right to
participate in, any Collateral or other security given to Administrative Agent
or Lenders or any other beneficiary to secure payment of any Guaranteed Debt.
8. NO RELEASE. Guarantor's[s'] obligations under this Guaranty may not
be released, diminished, or affected by the occurrence of any one or more of the
following events: (a) any taking or accepting of any other security or assurance
for any Guaranteed Debt; (b) any release, surrender, exchange, subordination,
impairment, or loss of any Collateral securing any Guaranteed Debt; (c) any full
or partial release of the liability of any other obligor on the Obligation,
except for any final release resulting from payment in full of such Obligation;
(d) the modification of, or waiver of compliance with, any terms of any other
Loan Document; (e) the insolvency, bankruptcy, or lack of corporate or
partnership power of any other obligor at any time liable for any Guaranteed
Debt, whether now existing or occurring in the future; (f) any renewal,
extension, or rearrangement of any Guaranteed Debt or any adjustment,
indulgence, forbearance, or compromise that may be granted or given by
Administrative Agent or any Lender to any other obligor on the Obligation; (g)
any neglect, delay, omission, failure, or refusal of Administrative Agent or any
Lender to take or prosecute any action in connection with the Guaranteed Debt or
to foreclose, take, or prosecute any action in connection with any Loan
Document; (h) any failure of Administrative Agent or any Lender to notify [any]
Guarantor of any renewal, extension, or assignment of any Guaranteed Debt, or
the release of any security or of any other action taken or refrained from being
taken by Administrative Agent or any Lender against any Borrower or any new
agreement between Administrative Agent, any Lender, and any Borrower; it being
understood that neither Administrative Agent nor any Lender is required to give
[any] Guarantor any notice of any kind under any circumstances whatsoever with
respect to or in connection with any Guaranteed Debt, other than any notice
required to be given to [any] Guarantor by Law or elsewhere in this Guaranty;
(i) the unenforceability of any Guaranteed Debt against any other obligor or any
security securing same because it exceeds the amount permitted by Law, the act
of creating it is ultra ▇▇▇▇▇, the officers creating it exceeded their authority
or violated their fiduciary duties in connection with it, or otherwise; or (j)
any payment of the Obligation to Administrative Agent or any Lender is held to
constitute a preference under any Debtor Relief Law or for any other reason
Administrative Agent or any Lender is required to refund that payment or make
payment to someone else (and in each such instance this Guaranty will be
reinstated in an amount equal to that payment).
9. WAIVERS. By execution hereof, [each] Guarantor acknowledges and
agrees to the waivers set forth in Section 11.2 of the Credit Agreement. To the
maximum extent lawful, [each] Guarantor waives all Rights by which it might be
entitled to require suit on an accrued Right of action in respect of any
Guaranteed Debt or require suit against any Borrower or others.
10. LOAN DOCUMENTS. By execution hereof, [each] Guarantor covenants
and agrees that certain representations, warranties, terms, covenants, and
conditions set forth in the Loan Documents are
Exhibit C
3
applicable to Guarantor[s] by their terms and shall be imposed upon
Guarantor[s], and [each] Guarantor reaffirms that each such representation and
warranty is true and correct and covenants and agrees to promptly and properly
perform, observe, and comply with each such term, covenant, or condition.
Moreover, [each] Guarantor acknowledges and agrees that this Guaranty is subject
to the offset provisions of the Loan Documents in favor of Administrative Agent
and Lenders. In the event the Credit Agreement or any other Loan Document shall
cease to remain in effect for any reason whatsoever during any period when any
part of the Guaranteed Debt remains unpaid, the terms, covenants, and agreements
of the Credit Agreement or such other Loan Document incorporated herein by
reference shall nevertheless continue in full force and effect as obligations of
Guarantor[s] under this Guaranty.
11. RELIANCE AND DUTY TO REMAIN INFORMED. [Each] Guarantor confirms
that it has executed and delivered this Guaranty after reviewing the terms and
conditions of the Loan Documents and such other information as it has deemed
appropriate in order to make its own credit analysis and decision to execute and
deliver this Guaranty. [Each] Guarantor confirms that it has made its own
independent investigation with respect to any Borrower's creditworthiness and is
not executing and delivering this Guaranty in reliance on any representation or
warranty by Administrative Agent or any Lender as to that creditworthiness.
[Each] Guarantor expressly assumes all responsibilities to remain informed of
the financial condition of each Borrower and any circumstances affecting any
Borrower's ability to perform under the Loan Documents to which it is a party or
any Collateral securing any Guaranteed Debt.
12. NO REDUCTION. The Guaranteed Debt may not be reduced, discharged,
or released because or by reason of any existing or future offset, claim, or
defense (except for the defense of complete and final payment of the Guaranteed
Debt) of any Borrower or any other obligor against Administrative Agent or any
Lender or against payment of the Guaranteed Debt, whether that offset, claim, or
defense arises in connection with the Guaranteed Debt or otherwise. Those claims
and defenses include, without limitation, failure of consideration, breach of
warranty, fraud, bankruptcy, incapacity/infancy, statute of limitations, lender
liability, accord and satisfaction, usury, forged signatures, mistake,
impossibility, frustration of purpose, and unconscionability.
13. COMMUNICATIONS ACT. Notwithstanding any other provision of this
Guaranty, any action taken or proposed to be taken by Administrative Agent or
any Lender under this Guaranty which would affect the operational, voting, or
other control of any Borrower or [any] Guarantor, shall be pursuant to Section
310(d) of the Communications Act of 1934 (as amended), applicable state Law, and
the applicable rules and regulations thereunder, and, if and to the extent
required thereby, subject to the prior consent of the FCC or any applicable
Franchisee.
14. INSOLVENCY OF GUARANTOR[S]. Should [any] Guarantor become
insolvent, or fail to pay Guarantor's debts generally as they become due, or
voluntarily seek, consent to, or acquiesce in, the benefit or benefits of any
Debtor Relief Law (other than as a creditor or claimant), or become a party to
(or be made the subject of) any proceeding provided for by any Debtor Relief Law
(other than as a creditor or claimant) that could suspend or otherwise adversely
affect the Rights of Administrative Agent or any Lender granted hereunder, then,
in any such event, the Guaranteed Debt shall be, as among [such] Guarantor,
Administrative Agent, and Lenders, a fully matured, due, and payable obligation
of [such] Guarantor to Administrative Agent and Lenders (without regard to
whether any Borrower is then in default under the Loan Documents or whether the
Obligation, or any part thereof, is then due and owing by any Borrower to any
Lender), payable in full by [such] Guarantor to Lenders upon demand, and the
amount thereof so payable shall be the estimated amount owing in respect of the
contingent claim created hereunder.
15. LOAN DOCUMENT. This Guaranty is a Loan Document and is subject to
the applicable provisions of Sections 1 and 13 of the Credit Agreement,
including, without limitation, the provisions relating
Exhibit C
4
to GOVERNING LAW, JURISDICTION, VENUE, SERVICE OF PROCESS, AND WAIVER OF
JURY TRIAL, all of which are incorporated into this Guaranty by reference the
same as if set forth in this Guaranty verbatim.
16. NOTICES. For purposes of Section 13.3 of the Credit Agreement,
[each] Guarantor's address and telecopy number are as set forth next to [such]
Guarantor's signature on the signature page hereof.
17. AMENDMENTS, ETC. No amendment, waiver, or discharge to or under
this Guaranty is valid unless it is in writing and is signed by the party
against whom it is sought to be enforced and is otherwise in conformity with the
requirements of Section 13.10 of the Credit Agreement.
18. ADMINISTRATIVE AGENT AND LENDERS. Administrative Agent is
Administrative Agent for each Lender under the Credit Agreement. All Rights
granted to Administrative Agent under or in connection with this Guaranty are
for each Lender's ratable benefit. Administrative Agent may, without the joinder
of any Lender, exercise any Rights in Administrative Agent's or Lenders' favor
under or in connection with this Guaranty. Administrative Agent's and each
Lender's Rights and obligations vis-a-vis each other may be subject to one or
more separate agreements between those parties. However, [no] Guarantor is [not]
required to inquire about any such agreement or is subject to any of its terms
unless [such] Guarantor specifically joins such agreement Therefore, neither
Guarantor nor its successors or assigns is entitled to any benefits or
provisions of any such separate agreement or is entitled to rely upon or raise
as a defense any party's failure or refusal to comply with the provisions of
such agreement.
19. PARTIES. This Guaranty benefits Administrative Agent, Lenders, and
their respective successors and assigns and binds Guarantor[s] and [its] [their
respective] successors and assigns. Upon appointment of any successor
Administrative Agent under the Credit Agreement, all of the Rights of
Administrative Agent under this Guaranty automatically vest in that new
Administrative Agent as successor Administrative Agent on behalf of Lenders
without any further act, deed, conveyance, or other formality other than that
appointment. The Rights of Administrative Agent and Lenders under this Guaranty
may be transferred with any assignment of the Guaranteed Debt pursuant to and in
accordance with the terms of the Credit Agreement. The Credit Agreement contains
provisions governing assignments of the Guaranteed Debt and of Rights and
obligations under this Guaranty.
Remainder of Page Intentionally Blank.
Signature Page(s) to Follow.
Exhibit C
5
EXECUTED as of the date first stated in this Guaranty.
GUARANTOR[S]:
Address:
By:
Name:
Telephone: Title:
Facsimile:
Guaranty
Signature Page
6
EXHIBIT D-1
FORM OF PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Pledge Agreement") is executed as of
____________, 2000, [jointly and severally] by the undersigned ([each a]
"Debtor" [and collectively, the "Debtors"] "Debtor"), whose address is
_________________________, and BANK OF AMERICA, N.A., a national banking
association (in its capacity as "Administrative Agent" for the benefit of the
holders of the Obligation under the Credit Agreement [defined below]), as
"Secured Party," whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇.
RECITALS
A. Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision, LLC, and
Highland Prestige Georgia, Inc. ("Restricted Borrowers"), Administrative Agent
(including its permitted successors and assigns in such capacity,
"Administrative Agent"), and certain other Agents and Lenders (including their
respective permitted successors and assigns, "Lenders") have entered into a
Credit Agreement, dated as of April 14, 2000 (as amended, modified,
supplemented, or restated from time to time, the "Credit Agreement");
B. This Pledge Agreement is integral to the transactions contemplated
by the Loan Documents, and the execution and delivery thereof is a condition
precedent to Lenders' obligations to extend credit under the Loan Documents.
ACCORDINGLY, for valuable consideration, the receipt and adequacy of
which are hereby acknowledged, [each] Debtor, [jointly and severally], and
Secured Party hereby agree as follows:
1. REFERENCE TO CREDIT AGREEMENT. The terms, conditions, and provisions
of the Credit Agreement are incorporated herein by reference, the same as if set
forth herein verbatim, which terms, conditions, and provisions shall continue to
be in full force and effect hereunder so long as Lenders are obligated to lend
under the Credit Agreement and thereafter until the Obligation is paid and
performed in full.
2. CERTAIN DEFINITIONS. Unless otherwise defined herein, or the context
hereof otherwise requires, each term defined in either of the Credit Agreement
or in the UCC is used in this Pledge Agreement with the same meaning; provided
that (a) if the definition given to such term in the Credit Agreement conflicts
with the definition given to such term in the UCC, the Credit Agreement
definition shall control to the extent legally allowable; and (b) if any
definition given to such term in Chapter 9 of the UCC conflicts with the
definition given to such term in any other chapter of the UCC, the Chapter 9
definition shall prevail. As used herein, the following terms have the meanings
indicated:
Collateral has the meaning set forth in Paragraph 4.
Lender means, individually, or Lenders means, collectively, on any date
of determination, Co- Administrative Agents and Lenders and their permitted
successors and assigns.
Obligation means, collectively, (a) the "Obligation" as defined in the
Credit Agreement and (b) all indebtedness, liabilities, and obligations of
Debtor[s] arising under this Pledge Agreement or Guaranty assuring payment of
the Obligation. The Obligation shall include, without limitation, future, as
well as
--------
Bracketed provisions included to reflect variations for use in
single-Debtor or multi-Debtor Pledge Agreements.
Exhibit D-1
1
existing, advances, indebtedness, liabilities, and obligations owed by Debtor[s]
to Secured Party or to any Lender arising under the Loan Documents.
Obligor means any Person obligated with respect to any of the
Collateral, whether as an obligor on an instrument, issuer of securities, or
otherwise.
Partnership means any partnership issuing a Partnership Interest.
Pledged Securities means, collectively, the Pledged Shares, the
Partnership Interests, LLC Interests (whether or not a security), and any other
Collateral constituting securities.
Security Interest means the security interest granted and the pledge
and assignment made under Paragraph 3.
UCC means the Uniform Commercial Code, including each such provision as
it may subsequently be renumbered, as enacted in the State of New York or other
applicable jurisdiction, as amended at the time in question.
3. SECURITY INTEREST. In order to secure the full and complete payment
and performance of the Obligation when due, [each] Debtor hereby grants to
Secured Party a Security Interest in all of [such] Debtor's Rights, titles, and
interests in and to the Collateral and pledges, collaterally transfers, and
assigns the Collateral to Secured Party, all upon and subject to the terms and
conditions of this Pledge Agreement. Such Security Interest is granted and
pledge and assignment are made as security only and shall not subject Secured
Party to, or transfer or in any way affect or modify, any obligation of [such]
Debtor with respect to any of the Collateral or any transaction involving or
giving rise thereto.
4. COLLATERAL. As used herein, the term "Collateral" means the
following items and types of property:
(a) All present and future issued and outstanding stock,
equity, or other investment securities in any corporation that is a
Restricted Subsidiary now owned or hereafter acquired by [such] Debtor,
including, without limitation, all capital stock of the Restricted
Subsidiaries of [such] Debtor as more particularly listed on Annex B,
[for such Debtor,] together with all Distributions with respect thereto
or other property in exchange therefor, all cash and noncash proceeds
thereof, and any securities issued in substitution or replacement
thereof (collectively, the "Pledged Shares").
(b) All present and future partnership interests now owned or
hereafter acquired by Debtor in any partnership that is a Restricted
Subsidiary, including, without limitation, the partnerships listed on
Annex B, [for such Debtor,] together with all Distributions with
respect thereto or other property in exchange therefor, all cash and
noncash proceeds thereof, and any securities issued in substitution or
replacement thereof (collectively, the "Partnership Interests").
(c) All present and future membership interests or limited
liability company interests now owned or hereafter acquired by Debtor
in any limited liability company that is a Restricted Subsidiary,
including, without limitation, the limited liability companies listed
on Annex B, [for such Debtor,] together with all Distributions with
respect thereto or other property in exchange therefor, all cash and
noncash proceeds thereof, and any securities issued in substitution or
replacement thereof (collectively, the "LLC Interests").
Exhibit D-1
2
(d) All present and future increases, profits, combinations,
reclassifications, and substitutes and replacements for, all or part of
the Collateral described above.
(e) All present and future accounts, contract Rights, general
intangibles, chattel paper, documents, instruments, cash and noncash
proceeds, and other Rights arising from or by virtue of, or from the
voluntary or involuntary sale or other disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or
claims against any other Person with respect to, all or any part of the
Collateral described above in this clause or otherwise.
The description of the Collateral contained in this Paragraph 4 shall not be
deemed to permit any action prohibited by this Pledge Agreement or by the terms
incorporated in this Pledge Agreement. [Furthermore, notwithstanding any
contrary provision, [such] Debtor agrees that, if, but for the application of
this paragraph, granting a Security Interest in the Collateral would constitute
a fraudulent conveyance under 11 U.S.C. SS 548 or a fraudulent conveyance or
transfer under any state fraudulent conveyance, fraudulent transfer, or similar
Law in effect from time to time (each a "fraudulent conveyance"), then the
Security Interest remains enforceable to the maximum extent possible without
causing such Security Interest to be a fraudulent conveyance, and this Pledge
Agreement is automatically amended to carry out the intent of this paragraph.]
[Bracketed language to be included in all Pledge Agreements other than the
Pledge Agreements for Restricted Borrowers.]
5. REPRESENTATIONS AND WARRANTIES. [Each] Debtor represents and
warrants to Secured Party that:
(a) Credit Agreement. Certain representations and warranties
in the Credit Agreement are applicable to it or its assets or
operations, and each such representation and warranty is true and
correct.
(b) Binding Obligation. This Pledge Agreement creates a legal,
valid, and binding Lien in and to the Collateral in favor of Secured
Party and enforceable against [such] Debtor. For Collateral in which
the Security Interest may be perfected by the filing of Financing
Statements, once those Financing Statements have been properly filed in
the jurisdictions described on Annex A[ for such Debtor], the Security
Interest in that Collateral will be fully perfected. Once perfected
and, in the case of investment property or instruments, upon possession
or "control" (within the meaning of Sections 8-106 and 9-115 of the
UCC) by Secured Party, the Security Interest will constitute a first-
priority Lien on the Collateral. The creation of the Security Interest
does not require the consent of any Person that has not been obtained.
(c) Location. [Such] Debtor's place of business and chief
executive office is where [such] Debtor is entitled to receive notices
hereunder.
(d) Securities. All Collateral that is Pledged Securities is
duly authorized and validly issued, and the transfer thereof is not
subject to any restrictions, other than restrictions imposed by
applicable securities and corporate Laws and any restrictions on
transferability by any Governmental Authority with respect to the
Authorizations. All Collateral that is Pledged Shares is fully paid and
non-assessable. The Pledged Securities constitute 100% of the issued
and outstanding capital stock or other equity or investment securities
issued by or other interests (including membership interests or limited
liability company interests) in each Restricted Subsidiary owned by
[such] Debtor. [Such] Debtor has good title to the Collateral, free and
clear of all Liens and encumbrances thereon (except for the Security
Interest created hereby), and has delivered to Secured Party all stock
certificates, promissory notes, bonds, debentures, or other instruments
or documents representing or evidencing
Exhibit D-1
3
the Pledged Shares and certificated LLC Interests, together with
corresponding assignment or transfer powers duly executed in blank by
[such] Debtor, and such powers have been duly and validly executed and
are binding and enforceable against [such] Debtor in accordance with
their terms; and the pledge of the Pledged Shares and certificated LLC
Interests in accordance with the terms hereof creates a valid and
perfected first priority Security Interest in the Pledged Shares and
certificated LLC Interests securing payment of the Obligation. The
filing of financing statements in the jurisdictions listed on Annex A
hereto, shall create and perfect valid and continuing security
interests in favor of Secured Party for the benefit of Lenders in the
uncertificated LLC Interests and the Partnership Interests.
(e) Partnerships and Partnership Interests. Each Partnership
issuing a Partnership Interest is duly organized, currently existing,
and in good standing under all applicable Laws; there have been no
amendments, modifications, or supplements to any agreement or
certificate creating any Partnership or any material contract relating
to the Partnerships, of which Secured Party has not been advised in
writing; no default has occurred under the terms of any contract
relating to any Partnership which default could reasonably be expected
to be a Material Adverse Event; and no approval or consent of the
partners of any Partnership is required as a condition to the validity
and enforceability of the Security Interest created hereby or the
consummation of the transactions contemplated hereby which has not been
duly obtained by [such] Debtor. Debtor has good title to the
Partnership Interests free and clear of all Liens and encumbrances
(except for the Security Interest granted hereby). The Partnership
Interests are validly issued and are not subject to statutory,
contractual, or other restrictions governing their transfer, ownership,
or control, except as set forth in the applicable partnership
agreements, the Credit Agreement, or applicable securities Laws and any
restrictions on transferability by any Governmental Authority with
respect to the Authorizations. All capital contributions required to be
made by the terms of the partnership agreements for each Partnership
have been made.
(f) Governmental Authority. No authorization, approval, or
other action by, and no notice to or filing with, any Governmental
Authority is required either (i) for the pledge by [such] Debtor of the
Pledged Securities pursuant to this Pledge Agreement or for the
execution, delivery, or performance of this Pledge Agreement by [such]
Debtor, or (ii) for the exercise by Secured Party of the voting or
other Rights provided for in this Pledge Agreement or the remedies in
respect of the Collateral pursuant to this Pledge Agreement (except as
may be required in connection with the disposition of the Pledged
Securities by Laws affecting the offering and sale of securities
generally and in connection with the transfer of control of the
Authorizations).
(g) Liens. Debtor owns all presently existing Collateral, and
will acquire all hereafter-acquired Collateral, free and clear of all
Liens.
The foregoing representations and warranties will be true and correct in all
material respects with respect to any additional Collateral or additional
specific descriptions of certain Collateral delivered to Secured Party in the
future by [each] Debtor.
The failure of any of these representations or warranties to be
accurate and complete does not impair the Security Interest in any Collateral.
6. COVENANTS. So long as Lenders are committed to extend credit to any
Borrower or [any] Debtor under the Credit Agreement and until the Obligation is
paid and performed in full, [each] Debtor covenants and agrees with Secured
Party that [such] Debtor will:
Exhibit D-1
4
(a) Credit Agreement. (i) Comply with, perform, and be bound
by all covenants and agreements in the Credit Agreement that are
applicable to it, its assets, or its operations, each of which
is hereby ratified and confirmed (INCLUDING, WITHOUT LIMITATION, THE
INDEMNIFICATION AND RELATED PROVISIONS IN SECTION 11.12 OF THE CREDIT
AGREEMENT); AND (ii) CONSENT TO AND APPROVE THE VENUE, SERVICE OF
PROCESS, AND WAIVER OF JURY TRIAL PROVISIONS OF SECTION 13.9 OF THE
CREDIT AGREEMENT.
(b) Perform Obligations. Except as expressly permitted by the
Credit Agreement, fully perform all of [such] Debtor's duties under and
in connection with each transaction to which the Collateral, or any
part thereof, relates, so that the amounts thereof shall actually
become payable in their entirety to Secured Party.
(c) Notices. (i) Promptly notify Secured Party of (A) any
change in any fact or circumstances represented or warranted by [such]
Debtor with respect to any of the Collateral or Obligation, (B) any
claim, action, or proceeding affecting title to all or any of the
Collateral or the Security Interest and, at the request of Secured
Party, appear in and defend, at [such] Debtor's expense, any such
action or proceeding, and (C) the occurrence of any other event or
condition (including without limitation matters as to Lien priority)
that could have a material adverse effect on the Collateral (taken as a
whole) or the Security Interest created hereunder; and (ii) give
Secured Party 30 days written notice before any proposed (A) relocation
of its principal place of business or chief executive office and (B)
change of its name, identity, or corporate structure. Prior to making
any of the changes contemplated in clause (ii) preceding, [such] Debtor
shall execute and deliver all such additional documents and perform all
additional acts as Secured Party, in its sole discretion, may request
in order to continue or maintain the existence and priority of the
Security Interests in all of the Collateral.
(d) Collateral in Trust. Hold in trust (and not commingle with
other assets of Debtor[s]) for Secured Party all Collateral that is
chattel paper, instruments, Pledged Securities, or documents at any
time received by [such] Debtor, and promptly deliver same to Secured
Party, unless Secured Party at its option (which may be evidenced only
by a writing signed by Secured Party stating that Secured Party elects
to permit [such] Debtor to so retain) permits Debtor to retain the
same, but any Collateral so retained shall be marked to state that it
is assigned to Secured Party; each such instrument shall be endorsed to
the order of Secured Party (but the failure of same to be so marked or
endorsed shall not impair the Security Interest thereon).
(e) Further Assurances. At [such] Debtor's expense and Secured
Party's request, before or after a Default or Potential Default, (i)
file or cause to be filed such applications and take such other actions
as Secured Party may request to obtain the consent or approval of any
Governmental Authority to Secured Party's Rights hereunder, including,
without limitation, the Right to sell all the Collateral upon a Default
without additional consent or approval from such Governmental Authority
(and, because [such] Debtor agrees that Secured Party's remedies at Law
for failure of [such] Debtor to comply with this provision would be
inadequate and that such failure would not be adequately compensable in
damages, [such] Debtor agrees that its covenants in this provision may
be specifically enforced); (ii) from time to time promptly execute and
deliver to Secured Party all such other assignments, certificates,
supplemental documents, and financing statements, and do all other acts
or things as Secured Party may reasonably request in order to more
fully create, evidence, perfect, continue, and preserve the priority of
the Security Interest and to carry out the provisions of this Pledge
Agreement; and (iii) pay all filing fees in connection with any
financing, continuation, or termination statement or other instrument
with respect to the Security Interests.
Exhibit D-1
5
(f) Modifications to Agreements. Not modify or substitute, or
permit the modification or substitution of, any document evidencing the
Collateral.
(g) Securities. Except as permitted by the Credit Agreement,
not sell, exchange, transfer, or otherwise dispose of any of the
Pledged Shares; except as permitted by the Credit Agreement, not permit
any issuer of any Pledged Shares to issue any additional shares of
stock or other securities in addition to or in substitution for the
Pledged Shares; except as permitted by the Credit Agreement, cause any
company whose shares or securities constitute Pledged Shares not to
issue any stock or other securities in addition to or in substitution
for the Pledged Shares issued by such company, pledge hereunder,
immediately upon [such] Debtor's acquisition (directly or indirectly)
thereof, any and all additional shares of stock or other securities of
each Restricted Subsidiary of [such] Debtor; and take any action
necessary, required, or requested by Secured Party to allow Secured
Party to fully enforce its Security Interest in the Collateral,
including, without limitation, the filing of any claims with any court,
liquidator, trustee, custodian, receiver, or other like person or
party.
(h) Partnerships and Partnership Interests. (i) Promptly
perform, observe, and otherwise comply with each and every covenant,
agreement, requirement, and condition set forth in the contracts and
agreements creating any Partnership; (ii) except as expressly permitted
by the Credit Agreement, do or cause to be done all things necessary or
appropriate to keep the Partnerships in full force and effect and the
Rights of [such] Debtor and Secured Party thereunder unimpaired; (iii)
except as expressly permitted by the Credit Agreement, not consent to
any Partnership selling, leasing, or disposing of substantially all of
its assets in a single transaction or a series of transactions; (iv)
except as expressly permitted by the Credit Agreement, not consent to
the material amendment or modification, or any surrender, impairment,
forfeiture, cancellation, dissolution, or termination of any
Partnership; (v) except as permitted by the Credit Agreement, not
transfer, sell, or assign any of the Partnership Interests or any part
thereof; (vi) except as permitted by the Credit Agreement, cause each
Partnership to refrain from granting any partnership interests in
addition to or in substitution for the Partnership Interests granted by
the Partnerships; (vii) pledge hereunder, immediately upon [such]
Debtor's acquisition (directly or indirectly) thereof, any and all
additional Partnership Interests of any Partnership granted to
Debtor[s] and any and all additional shares of stock or other
securities of each; (viii) deliver to Secured Party a fully-executed
Pledge Instruction, substantially in the form of Annex C, for each
Partnership Interest, together with the General Partner's written
consent thereto and an Initial Transaction Statement executed by the
Managing General Partner of such Partnership; and (ix) take any action
necessary, required, or requested by Secured Party to allow Secured
Party to fully enforce its Security Interest in the Partnership
Interests, including, without limitation, the filing of any claims with
any court, liquidator, trustee, custodian, receiver, or other like
person or party.
7. DEFAULT; REMEDIES. If a Default exists, Secured Party may, at its
election (but subject to the terms and conditions of the Credit Agreement),
exercise any and all Rights available to a secured party under the UCC, in
addition to any and all other Rights afforded by the Loan Documents, at Law, in
equity, or otherwise, including, without limitation, (a) applying by appropriate
judicial proceedings for appointment of a receiver for all or part of the
Collateral (and [each] Debtor hereby consents to any such appointment), and (b)
applying to the Obligation any cash held by Secured Party under this Pledge
Agreement, if any. Notwithstanding the foregoing, Secured Party will not
exercise any remedies against the Collateral unless it has given at least ten
days written notification to [the applicable] Debtor, to the FCC, to the extent
such notice is required under [47 C.F.R. 22.937(f)], and to any other
Governmental Authority, to the extent such notice is required by Law.
(a) Notice. Reasonable notification of the time and place of
any public sale of the Collateral, or reasonable notification of the
time after which any private sale or other intended
Exhibit D-1
6
disposition of the Collateral is to be made, shall be sent to Debtor[s]
and to any other Person entitled to notice under the UCC; provided,
that if any of the Collateral threatens to decline speedily in value or
is of the type customarily sold on a recognized market, Secured Party
may sell or otherwise dispose of the Collateral without notification,
advertisement, or other notice of any kind. It is agreed that notice
sent or given not less than ten Business Days prior to the taking of
the action to which the notice relates is reasonable notification and
notice for the purposes of this subparagraph.
(b) Sales of Pledged Securities.
(i) [Each] Debtor agrees that, because of the
Securities Act of 1933, as amended, or the rules and
regulations promulgated thereunder (collectively, the
"Securities Act"), or any other Laws or regulations, and for
other reasons, there may be legal or practical restrictions or
limitations affecting Secured Party in any attempts to dispose
of certain portions of the Pledged Securities and for the
enforcement of its Rights. For these reasons, Secured Party is
hereby authorized by [such] Debtor, but not obligated, upon
the occurrence and during the continuation of a Default, to
sell all or any part of the Pledged Securities at private
sale, subject to investment letter or in any other manner
which will not require the Pledged Securities, or any part
thereof, to be registered in accordance with the Securities
Act or any other Laws or regulations, at a reasonable price at
such private sale or other distribution in the manner
mentioned above. [Each] Debtor understands that Secured Party
may in its discretion approach a limited number of potential
purchasers and that a sale under such circumstances may yield
a lower price for the Pledged Securities, or any part thereof,
than would otherwise be obtainable if such Pledged Securities
were either afforded to a larger number or potential
purchasers, registered under the Securities Act, or sold in
the open market. [Each] Debtor agrees that any such private
sale made under this Paragraph 7(a) shall be deemed to have
been made in a commercially reasonable manner, and that
Secured Party has no obligation to delay the sale of any
Pledged Securities to permit the issuer thereof to register it
for public sale under any applicable federal or state
securities Laws.
(ii) Secured Party is authorized, in connection with
any such sale, (A) to restrict the prospective bidders on or
purchasers of any of the Pledged Securities to a limited
number of sophisticated investors who will represent and agree
that they are purchasing for their own account for investment
and not with a view to the distribution or sale of any of such
Pledged Securities, and (B) to impose such other limitations
or conditions in connection with any such sale as Secured
Party reasonably deems necessary in order to comply with
applicable Law. [Each] Debtor covenants and agrees that it
will execute and deliver such documents and take such other
action as Secured Party reasonably deems necessary in order
that any such sale may be made in compliance with applicable
Law. Upon any such sale Secured Party shall have the Right to
deliver, assign, and transfer to the purchaser thereof the
Pledged Securities so sold. Each purchaser at any such sale
shall hold the Pledged Securities so sold absolutely, free
from any claim or Right of [such] Debtor of whatsoever kind,
including any equity or Right of redemption of [such] Debtor.
[Each] Debtor, to the extent permitted by applicable Law,
hereby specifically waives all Rights of redemption, stay, or
appraisal which it has or may have under any Law now existing
or hereafter enacted.
(iii) [Each] Debtor agrees that ten days' written
notice from Secured Party to [such] Debtor of Secured Party's
intention to make any such public or private sale or sale at a
broker's board or on a securities exchange shall constitute
"reasonable notification" within the meaning of Section
9-504(c) of the UCC. Such notice shall (A) in case of a public
sale, state the time and place fixed for such sale, (B) in
case of sale at a broker's board or on a
Exhibit D-1
7
securities exchange, state the board or exchange at which such
a sale is to be made and the day on which the Pledged
Securities, or the portion thereof so being sold, will first
be offered to sale at such board or exchange, and (C) in the
case of a private sale, state the day after which such sale
may be consummated. Any such public sale shall be held at such
time or times within ordinary business hours and at such place
or places as Secured Party may fix in the notice of such sale.
At any such sale, the Pledged Securities may be sold in one
lot as an entirety or in separate parcels, as Secured Party
may reasonably determine. Secured Party shall not be obligated
to make any such sale pursuant to any such notice. Secured
Party may, without notice or publication, adjourn any public
or private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for the sale,
and such sale may be made at any time or place to which the
same may be so adjourned.
(iv) In case of any sale of all or any part of the
Pledged Securities on credit or for future delivery, the
Pledged Securities so sold may be retained by Secured Party
until the selling price is paid by the purchaser thereof, but
Secured Party shall not incur any liability in case of the
failure of such purchaser to take up and pay for the Pledged
Securities so sold and in case of any such failure, such
Pledged Securities may again be sold upon like notice. Secured
Party, instead of exercising the power of sale herein
conferred upon it, may proceed by a suit or suits at Law or in
equity to foreclose the Security Interests and sell the
Pledged Securities, or any portion thereof, under a judgment
or decree of a court or courts of competent jurisdiction.
(v) Without limiting the foregoing, or imposing upon
Secured Party any obligations or duties not required by
applicable Law, [each] Debtor acknowledges and agrees that, in
foreclosing upon any of the Pledged Securities, or exercising
any other Rights or remedies provided Secured Party hereunder
or under applicable Law, Secured Party may, but shall not be
required to, (A) qualify or restrict prospective purchasers of
the Pledged Securities by requiring evidence of sophistication
or creditworthiness, and requiring the execution and delivery
of confidentiality agreements or other documents and
agreements as a condition to such prospective purchasers'
receipt of information regarding the Pledged Securities or
participation in any public or private foreclosure sale
process, (B) provide to prospective purchasers business and
financial information regarding Debtor[s] or the other Loan
Parties available in the files of Secured Party at the time of
commencing the foreclosure process, without the requirement
that Secured Party obtain, or seek to obtain, any updated
business or financial information or verify, or certify to
prospective purchasers, the accuracy of any such business or
financial information, or (C) offer for sale and sell the
Pledged Securities with, or without, first employing an
appraiser, investment banker, or broker with respect to the
evaluation of the Pledged Securities, the solicitation of
purchasers for Pledged Securities, or the manner of sale of
Pledged Securities.
(c) Application of Proceeds. Secured Party shall apply the
proceeds of any sale or other disposition of the Collateral under this
Paragraph 7 in the following order: first, to the payment of all
expenses incurred in retaking, holding, and preparing any of the
Collateral for sale(s) or other disposition, in arranging for such
sale(s) or other disposition, and in actually selling or disposing of
the same (all of which are part of the Obligation); second, toward
repayment of amounts expended by Secured Party under Paragraph 8; and
third, toward payment of the balance of the Obligation in the order and
manner specified in the Credit Agreement. Any surplus remaining shall
be delivered to [the appropriate] Debtor or as a court of competent
jurisdiction may direct. [If the proceeds are insufficient to pay the
Obligation in full, Debtor[s] shall remain liable for any deficiency.]
[Bracketed language to be included in Pledge Agreements for Loan
Parties (other than Unrestricted Borrowers) only.]
Exhibit D-1
8
8. OTHER RIGHTS OF SECURED PARTY.
(a) Performance. If [any] Debtor fails to preserve the
priority of the Security Interest in any of the Collateral or otherwise
fails to perform any of its obligations under the Loan Documents with
respect to the Collateral, then Secured Party may, at its option, but
without being required to do so, prosecute or defend any suits in
relation to the Collateral, or take all other action which [such]
Debtor is required, but has failed or refused, to take under the Loan
Documents. Any sum which may be expended or paid by Secured Party under
this subparagraph (including, without limitation, court costs and
reasonable attorneys' fees) shall bear interest from the dates of
expenditure or payment at the Default Rate until paid and, together
with such interest, shall be payable by [such] Debtor to Secured Party
upon demand and shall be part of the Obligation.
(b) Collection. If a Default exists and upon notice from
Secured Party, each Obligor with respect to any payments on any of the
Collateral (including, without limitation, dividends and other
distributions with respect to Pledged Securities) is hereby authorized
and directed by [each] Debtor to make payment directly to Secured
Party, regardless of whether [such] Debtor was previously making
collections thereon. Subject to Paragraph 8(e), until such notice is
given, [each] Debtor is authorized to retain and expend all payments
made on Collateral. If a Default exists, Secured Party shall have the
Right in its own name or in the name of [each] Debtor to compromise or
extend time of payment with respect to all or any portion of the
Collateral for such amounts and upon such terms as Secured Party may
determine; to demand, collect, receive, receipt for, ▇▇▇ for, compound,
and give acquittances for any and all amounts due or to become due with
respect to Collateral; to take control of cash and other proceeds of
any Collateral; to endorse the name of [such] Debtor on any notes,
acceptances, checks, drafts, money orders, or other evidences of
payment on Collateral that may come into the possession of Secured
Party; to sign the name of [such] Debtor on any invoice or ▇▇▇▇ of
lading relating to any Collateral, on any drafts against Obligors or
other Persons making payment with respect to Collateral, on assignments
and verifications of accounts or other Collateral and on notices to
Obligors making payment with respect to Collateral; to send requests
for verification of obligations to any Obligor; and to do all other
acts and things necessary to carry out the intent of this Pledge
Agreement. If a Default exists and any Obligor fails or refuses to make
payment on any Collateral when due, Secured Party is authorized, in its
sole discretion, either in its own name or in the name of [the
applicable] Debtor, to take such action as Secured Party shall deem
appropriate for the collection of any amounts owed with respect to
Collateral or upon which a delinquency exists. Regardless of any other
provision hereof, however, Secured Party shall never be liable for its
failure to collect, or for its failure to exercise diligence in the
collection of, any amounts owed with respect to Collateral, nor shall
it be under any duty whatsoever to anyone except Debtor[s] to account
for funds that it shall actually receive hereunder. Without limiting
the generality of the foregoing, Secured Party shall have no
responsibility for ascertaining any maturities, calls, conversions,
exchanges, offers, tenders, or similar matters relating to any
Collateral, or for informing Debtor[s] with respect to any of such
matters (irrespective of whether Secured Party actually has, or may be
deemed to have, knowledge thereof). The receipt of Secured Party to any
Obligor shall be a full and complete release, discharge, and
acquittance to such Obligor, to the extent of any amount so paid to
Secured Party.
(c) Record Ownership of Securities. If a Default exists,
Secured Party at any time may have any Collateral that is Pledged
Securities and that is in the possession of Secured Party, or its
nominee or nominees, registered in its name, or in the name of its
nominee or nominees, as Secured Party; and, as to any Collateral that
is Pledged Securities so registered, Secured Party shall execute and
deliver (or cause to be executed and delivered) to [the applicable]
Debtor all such proxies, powers of attorney, dividend coupons or
orders, and other documents as [such] Debtor may reasonably request for
the purpose of enabling [such] Debtor to exercise the voting Rights and
powers which it is entitled
Exhibit D-1
9
to exercise under this Pledge Agreement or to receive the dividends and
other Distributions and payments in respect of such Collateral that is
Pledged Securities or proceeds thereof which it is authorized to
receive and retain under this Pledge Agreement.
(d) Voting of Securities. As long as no Default exists, [each]
Debtor is entitled to exercise all voting Rights pertaining to any
Pledged Securities; provided, however, that no vote shall be cast or
consent, waiver, or ratification given or action taken without the
prior written consent of Secured Party which would (x) be inconsistent
with or violate any provision of this Pledge Agreement or any other
Loan Document or (y) amend, modify, or waive any term, provision or
condition of the certificate of incorporation, bylaws, certificate of
formation, or other charter document, or other agreement relating to,
evidencing, providing for the issuance of, or securing any Collateral
if such action could adversely affect the Rights of Lenders; and
provided further that [each] Debtor shall give Secured Party at least
ten Business Days' prior written notice in the form of an officers'
certificate of the manner in which it intends to exercise, or the
reasons for refraining from exercising, any voting or other consensual
Rights pertaining to the Collateral or any part thereof which might
have a material adverse effect on the value of the Collateral or any
part thereof. If a Default exists and if Secured Party elects to
exercise such Right, the Right to vote any Pledged Securities shall be
vested exclusively in Secured Party. To this end, [each] Debtor hereby
irrevocably constitutes and appoints Secured Party the proxy and
attorney-in-fact of [such] Debtor, with full power of substitution, to
vote, and to act with respect to, any and all Collateral that is
Pledged Securities standing in the name of [such] Debtor or with
respect to which [such] Debtor is entitled to vote and act, subject to
the understanding that such proxy may not be exercised unless a Default
exists. The proxy herein granted is coupled with an interest, is
irrevocable, and shall continue until the Obligation has been paid and
performed in full.
(e) Certain Proceeds. Except to the extent such transaction is
expressly permitted by Sections 9.20, 9.22, or 9.24 of the Credit
Agreement, notwithstanding any contrary provision herein, any and all
(i) dividends, interest, or other Distributions paid
or payable other than in cash in respect of, and instruments
and other property received, receivable, or otherwise
distributed in respect of, or in exchange for, any Collateral;
(ii) dividends, interest, or other Distributions
hereafter paid or payable in cash in respect of any Collateral
in connection with a partial or total liquidation or
dissolution, or in connection with a reduction of capital,
capital surplus, or paid-in-surplus;
(iii) cash paid, payable, or otherwise distributed in
redemption of, or in exchange for, any Collateral; and
(iv) dividends, interest, or other Distributions paid
or payable in violation of the Loan Documents,
shall be part of the Collateral hereunder, and shall, if received by
[any] Debtor, be held in trust for the benefit of Secured Party, and
shall forthwith be delivered to Secured Party (accompanied by proper
instruments of assignment and/or stock and/or bond powers executed by
[such] Debtor in accordance with Secured Party's instructions) to be
held subject to the terms of this Pledge Agreement. Any cash proceeds
of Collateral which come into the possession of Secured Party on and
after the occurrence of a Default (including, without limitation,
insurance proceeds) may, at Secured Party's option, be applied in whole
or in part to the Obligation (to the extent then due), be released in
whole or in part
Exhibit D-1
10
to or on the written instructions of [such] Debtor for any general or
specific purpose, or be retained in whole or in part by Secured Party
as additional Collateral. Any cash Collateral in the possession of
Secured Party may be invested by Secured Party in certificates of
deposit issued by Secured Party (if Secured Party issues such
certificates) or by any state or national bank having combined capital
and surplus greater than $100,000,000 with a rating from ▇▇▇▇▇'▇ and
S&P of P-1 and A-1+, respectively, or in securities issued or
guaranteed by the United States of America or any agency thereof.
Secured Party shall never be obligated to make any such investment and
shall never have any liability to Debtor[s] for any loss which may
result therefrom. All interest and other amounts earned from any
investment of Collateral may be dealt with by Secured Party in the same
manner as other cash Collateral. The provisions of this subparagraph
are applicable whether or not a Default or Potential Default exists.
(f) Power of Attorney. [Each] Debtor hereby irrevocably
constitutes and appoints Secured Party as [such] Debtor's
attorney-in-fact, with full irrevocable power and authority in the
place and stead of [such] Debtor and in the name of [such] Debtor,
Secured Party, Lenders, or otherwise, from time to time in Secured
Party's discretion, for the sole purpose of carrying out the terms of
this Pledge Agreement and, to the extent permitted by applicable Law,
to take any action and to execute any document and instrument which
Secured Party may deem necessary or advisable to accomplish the
following when a Default exists:
(i) to receive, endorse, and collect any drafts or
other instruments or documents in connection with clause (b)
above and this clause (f); and
(ii) to execute on behalf of [such] Debtor, any
financing statements or continuation statements with respect
to the Security Interests created hereby, which Secured Party
may deem necessary or advisable to protect and preserve the
Collateral, and all Rights thereto.
(g) Purchase Money Collateral. To the extent that Secured
Party or any Lender has advanced or will advance funds to or for the
account of [any] Debtor to enable [such] Debtor to purchase or
otherwise acquire Rights in Collateral, Secured Party or such Lender,
at its option, may pay such funds (i) directly to the Person from whom
[such] Debtor will make such purchase or acquire such Rights, or (ii)
to [such] Debtor, in which case [such] Debtor covenants to promptly pay
the same to such Person, and forthwith furnish to Secured Party
evidence satisfactory to Secured Party that such payment has been made
from the funds so provided.
(h) Subrogation. If any of the Obligation is given in renewal
or extension or applied toward the payment of indebtedness secured by
any Lien, Secured Party shall be, and is hereby, subrogated to all of
the Rights, titles, interests, and Liens securing the indebtedness so
renewed, extended, or paid.
(i) Indemnification. [Each] Debtor hereby assumes all
liability for the Collateral, for the Security Interest, and for any
use or possession of, all or any of the Collateral, including, without
limitation, any Taxes arising as a result of, or in connection with,
the transactions contemplated herein, and agrees to assume liability
for, and to indemnify and hold Secured Party and each Lender harmless
from and against, any and all claims, causes of action, or liability,
for injuries to or deaths of Persons and damage to property, howsoever
arising, from or incident to such use, possession, maintenance, and
management, whether such Persons be agents or employees of [any] Debtor
or of third parties, or such damage be to property of [such] Debtor or
of others. [Each] Debtor agrees to indemnify, save, and hold Secured
Party and each Lender harmless from and against, and covenants to
defend Secured
Exhibit D-1
11
Party and each Lender against, any and all losses, damages, claims,
costs, penalties, liabilities, and expenses (collectively, "Claims"),
including, without limitation, court costs and attorneys' fees, and any
of the foregoing arising from the negligence of Secured Party or any
Lender, or any of their respective officers, employees, agents,
advisors, employees, or representatives, howsoever arising or incurred
because of, incident to, or with respect to Collateral or any use,
possession, maintenance, or management thereof; provided, however, that
the indemnity set forth in this Paragraph 8(i) will not apply to Claims
caused by the gross negligence or willful misconduct of Secured Party
or any Lender.
9. ACKNOWLEDGMENT OF REGULATORY CONSIDERATIONS
(a) No Prohibited Transfers. It is hereby acknowledged that
assignment or transfer of control of any Authorization without the
prior approval of Governmental Authorities may constitute a prohibited
transfer in violation of Law. Secured Party agrees that exercise of its
Rights hereunder shall be effected only after the obtaining of any
necessary approvals for such exercise.
(b) Actions by Debtor. If counsel to Secured Party reasonably
determines that the consent of any Governmental Authority is required
in connection with any of the actions which may be taken by Secured
Party on behalf of Lenders in the exercise of their Rights hereunder or
under the Loan Documents, then [each] Debtor, at its sole cost and
expense, agrees to use its best efforts to secure such consent and to
cooperate with Secured Party and Lenders in any action commenced by
Secured Party to secure such consent. Upon the occurrence and during
the continuation of a Default or Potential Default, [each] Debtor shall
promptly execute or cause the execution of all applications,
certificates, instruments, and other documents and papers that Secured
Party may be required to file in order to obtain any necessary
governmental consent, approval, or authorization, and if [such] Debtor
fails or refuses to execute such documents, then, on the order of any
court of competent jurisdiction, the Clerk of the Court with
jurisdiction may execute such documents on behalf of [such] Debtor.
Debtor further recognizes that a violation of this covenant would
result in irreparable harm to Lenders for which monetary damages are
not readily ascertainable and which might not fully compensate such
Lenders. Therefore, in addition to any other remedy which may be
available to Lenders, at Law or in equity, Secured Party on behalf of
Lenders shall have the remedy of specific performance of the provisions
of this subsection.
(c) Approval of Governmental Authorities. Notwithstanding
anything to the contrary contained in this Pledge Agreement, Secured
Party will not take any action pursuant to this Pledge Agreement or any
of the documents executed pursuant hereto which would constitute an
assignment of an Authorization or any transfer of control of an
Authorization if such assignment of license or transfer of control
would require under then-existing Law (including the written rules and
regulations promulgated by any Governmental Authority) the prior
approval of the Governmental Authority issuing such Authorization,
without first obtaining such approval. [Each] Debtor agrees to take, or
cause to be taken, any action which Secured Party may reasonably
request in order to obtain and enjoy the full Rights and benefits
granted to Secured Party by this Pledge Agreement and any other
instruments or agreements executed pursuant hereto, including, without
limitation, at [such] Debtor's cost and expense, the exercise of its
best efforts to cooperate in obtaining Governmental Authority approval
of any action or transaction contemplated by this Pledge Agreement or
any other instrument or agreement executed pursuant hereto which is
then required by Law.
(d) Subsequent Actions by Debtor. [Each] Debtor agrees that
if, for any reason, any Governmental Authority does not approve within
a reasonable period of time the initial application for approval of the
transfer of control of any Authorization, then Paragraphs 9(b) and (c)
shall be
Exhibit D-1
12
applicable to any subsequent application for transfer of control of any
Authorization pursuant to action taken by Secured Party in the exercise
of its Rights hereunder or under the Loan Documents. With respect to
each subsequent proposed purchaser(s), [such] Debtor agrees to execute
all such applications and other documents and take all such other
action as may be reasonably requested by Secured Party at any time and
from time to time in order to obtain the approval by the Governmental
Authorities. Exercise by Secured Party of the Right to such cooperation
shall not be exhausted by the initial or any subsequent exercise
thereof.
10. MISCELLANEOUS.
(a) Continuing Security Interest. This Pledge Agreement
creates a continuing security interest in the Collateral and shall (i)
remain in full force and effect until the termination of the
obligations of Lenders to advance Borrowings or issue LCs under the
Loan Documents, the payment in full of the Obligation, and the
expiration of all LCs and Financial ▇▇▇▇▇▇ relating to the Principal
Debt issued by any Lender or any Affiliate of any Lender to [any]
Debtor or any Company; (ii) be binding upon [each] Debtor, its
successors, and assigns; and (iii) inure to the benefit of and be
enforceable by Secured Party, Lenders, and their respective successors,
transferees, and assigns. Without limiting the generality of the
foregoing clause (iii), Secured Party and Lenders may assign or
otherwise transfer any of their respective Rights under this Pledge
Agreement to any other Person in accordance with the terms and
provisions of Section 13.12 of the Credit Agreement, and to the extent
of such assignment or transfer such Person shall thereupon become
vested with all the Rights and benefits in respect thereof granted
herein or otherwise to Secured Party or Lenders, as the case may be.
Upon payment in full of the Obligation, the termination of the
commitment of Lenders to extend credit or issue LCs, and the expiration
of all LCs or Financial ▇▇▇▇▇▇ relating to the Principal Debt issued by
any Lender or any Affiliate of any Lender to [any] Debtor or any
Company, [each] Debtor shall be entitled to the return, upon its
request and at its expense, of such of the Collateral as shall not have
been sold or otherwise applied pursuant to the terms hereof.
(b) Reference to Miscellaneous Provisions. This Pledge
Agreement is one of the "Loan Documents" referred to in the Credit
Agreement, and all provisions relating to Loan Documents set forth in
Section 13 of the Credit Agreement, other than the provisions set forth
in Section 13.6, are incorporated herein by reference, the same as if
set forth herein verbatim.
(c) Term. Upon full and final payment and performance of the
Obligation or other release of [a particular] Debtor from the
obligations hereunder as expressly permitted by the Credit Agreement,
this Pledge Agreement shall thereafter terminate [with respect to a
particular Debtor] upon receipt by Secured Party of [such] Debtor's
written notice of such termination; provided that no Obligor, if any,
on any of the Collateral shall ever be obligated to make inquiry as to
the termination of this Pledge Agreement, but shall be fully protected
in making payment directly to Secured Party until actual notice of such
total payment of the Obligation is received by such Obligor.
(d) Actions Not Releases. The Security Interest and [each]
Debtor's obligations and Secured Party's Rights hereunder shall not be
released, diminished, impaired, or adversely affected by the occurrence
of any one or more of the following events: (i) the taking or accepting
of any other security or assurance for any or all of the Obligation;
(ii) any release, surrender, exchange, subordination, or loss of any
security or assurance at any time existing in connection with any or
all of the Obligation; (iii) the modification of, amendment to, or
waiver of compliance with any terms of any of the other Loan Documents
without the notification or consent of [any] Debtor, except as required
therein (the Right to such notification or consent being herein
specifically waived by [each] Debtor); (iv) the insolvency, bankruptcy,
or lack of corporate or trust power of any party at any time
Exhibit D-1
13
liable for the payment of any or all of the Obligation, whether now
existing or hereafter occurring; (v) any renewal, extension, or
rearrangement of the payment of any or all of the Obligation, either
with or without notice to or consent of [any] Debtor, or any
adjustment, indulgence, forbearance, or compromise that may be granted
or given by Secured Party or any Lender to [any] Debtor; (vi) any
neglect, delay, omission, failure, or refusal of Secured Party or any
Lender to take or prosecute any action in connection with any other
agreement, document, guaranty, or instrument evidencing, securing, or
assuring the payment of all or any of the Obligation; (vii) any failure
of Secured Party or any Lender to notify [any] Debtor of any renewal,
extension, or assignment of the Obligation or any part thereof, or the
release of any Collateral or other security, or of any other action
taken or refrained from being taken by Secured Party or any Lender
against [any] Debtor or any new agreement between or among Secured
Party or one or more Lenders and [any] Debtor, it being understood that
except as expressly provided herein, neither Secured Party nor any
Lender shall be required to give [any] Debtor any notice of any kind
under any circumstances whatsoever with respect to or in connection
with the Obligation, including, without limitation, notice of
acceptance of this Pledge Agreement or any Collateral ever delivered to
or for the account of Secured Party hereunder; (viii) the illegality,
invalidity, or unenforceability of all or any part of the Obligation
against any party obligated with respect thereto by reason of the fact
that the Obligation, or the interest paid or payable with respect
thereto, exceeds the amount permitted by Law, the act of creating the
Obligation, or any part thereof, is ultra ▇▇▇▇▇, or the officers,
partners, or trustees creating same acted in excess of their authority,
or for any other reason; or (ix) if any payment by any party obligated
with respect thereto is held to constitute a preference under
applicable Laws or for any other reason Secured Party or any Lender is
required to refund such payment or pay the amount thereof to someone
else.
(e) Waivers. Except to the extent expressly otherwise provided
herein or in other Loan Documents and to the fullest extent permitted
by applicable Law, [each] Debtor waives (i) any Right to require
Secured Party or any Lender to proceed against any other Person, to
exhaust its Rights in Collateral, or to pursue any other Right which
Secured Party or any Lender may have; (ii) with respect to the
Obligation, presentment and demand for payment, protest, notice of
protest and nonpayment, and notice of the intention to accelerate; and
(iii) all Rights of marshaling in respect of any and all of the
Collateral.
(f) Financing Statement. Secured Party shall be entitled at
any time to file this Pledge Agreement or a carbon, photographic, or
other reproduction of this Pledge Agreement, as a financing statement,
but the failure of Secured Party to do so shall not impair the validity
or enforceability of this Pledge Agreement.
(g) Amendments. No amendment, waiver, or discharge to or under
this Pledge Agreement is valid unless it is in writing and is signed by
the party against whom it is sought to be enforced and is otherwise in
conformity with the requirements of Section 13.10 of the Credit
Agreement.
(h) Multiple Counterparts. This Pledge Agreement has been
executed in a number of identical counterparts, each of which shall be
deemed an original for all purposes and all of which constitute,
collectively, one agreement; but, in making proof of this Pledge
Agreement, it shall not be necessary to produce or account for more
than one such counterpart.
(i) Parties Bound; Assignment. This Pledge Agreement shall be
binding on [each] Debtor and [each] Debtor's heirs, legal
representatives, successors, and assigns and shall inure to the benefit
of Secured Party and Secured Party's successors and assigns.
Exhibit D-1
14
(i) Secured Party is the agent for each Lender under
the Credit Agreement, the Security Interest and all Rights
granted to Secured Party hereunder or in connection herewith
are for the ratable benefit of each Lender, and Secured Party
may, without the joinder of any Lender, exercise any and all
Rights in favor of Secured Party or Lenders hereunder,
including, without limitation, conducting any foreclosure
sales hereunder, and executing full or partial releases
hereof, amendments or modifications hereto, or consents or
waivers hereunder. The Rights of each Lender vis-a-vis Secured
Party and each other Lender may be subject to one or more
separate agreements between or among such parties, but [no]
Debtor need [not] inquire about any such agreement or be
subject to any terms thereof unless [such] Debtor specifically
joins therein; and consequently, neither [any] Debtor nor
[any] Debtor's heirs, personal representatives, successors,
and assigns shall be entitled to any benefits or provisions of
any such separate agreements or be entitled to rely upon or
raise as a defense, in any manner whatsoever, the failure or
refusal of any party thereto to comply with the provisions
thereof.
(ii) [No] Debtor may [not], without the prior written
consent of Secured Party, assign any Rights, duties, or
obligations hereunder.
(j) Governing Law. Pursuant to Section 5-1401 of the New York
General Obligations Law, the substantive laws of the State of New York
applicable to agreements made and to be performed entirely within such
state, without regard to the choice of law principles that might
otherwise apply, except to the extent the laws of another jurisdiction
govern the creation, perfection, validity, or enforcement of Liens
under the Pledge Agreement, and the applicable federal laws of the
United States of America, shall govern the validity, construction,
enforcement and interpretation of this Pledge Agreement and all of the
other Loan Documents.
[(k) Limited Recourse. [Each] Debtor shall be liable for all
representations, warranties, covenants, and obligations set forth in
this Pledge Agreement, but shall not be otherwise be liable to repay
any Principal Debt. No manager, director, officer, employee,
shareholder, member, or partner of [any] Debtor (which is not a Loan
Party) or any transferee (which is not a Loan Party) of any Collateral
securing the Obligation to the extent such transfer is permitted by the
terms of the Loan Documents or is otherwise made with the prior written
consent of each requisite Lender shall be personally liable for any
obligations of any Parent, except as set forth below. This Paragraph
10(k) shall not (a) prevent or restrict recourse to the Collateral
securing the Obligation or constitute a waiver, release, or discharge
of the Obligation, but the Obligation shall remain outstanding until
paid or discharged; (b) limit any Rights, claims for damages, or
recourse of Administrative Agent, the Lenders, or the Issuing Lenders
or their respective transferees or assigns as a result of (i) any
knowing or willful breach by any Person of any representation or
warranty of such Person made under or pursuant to this Pledge Agreement
or any other Loan Document or (ii) any knowing or willful breach of any
covenant or other obligation by any Person under this Pledge Agreement
or any other Loan Document; or (c) limit the Right of any Person to
name [any] Debtor or any transferee of any interest in the Collateral
securing the Obligation as a party defendant in any action or suit for
a judicial sale or in the exercise of any other remedy under this
Pledge Agreement or any other Loan Document, so long as no judgment in
the nature of a deficiency judgment shall be asked for, taken, or
enforced against any Person referred to in the second sentence of this
Paragraph 10(k). Notwithstanding the foregoing, nothing herein shall be
construed to constitute a waiver by Administrative Agent, the Lenders,
or the Issuing Lenders of any Rights to damages, other monetary relief,
injunctive relief, or any other remedy at Law or equity against [any]
Debtor, Loan Party, or any Person referred to in the
Exhibit D-1
15
second sentence of this Paragraph 10(k) by reason of fraud, knowing or
willful breach of representations and warranties, willful tortious acts
or omissions, gross negligence, or criminal acts.] [Bracketed Language
to be included in Pledge Agreements for Parents only.]
Remainder of Page Intentionally Blank.
Signature Page(s) to Follow.
Exhibit D-1
16
EXECUTED as of the day and year first herein set forth.
----------------------------------- ,
as Debtor
By:
Name:
Title:
Pledge Agreement
Signature Page
17
ANNEX A TO PLEDGE AGREEMENT
(To be Provided by [each] Debtor)
JURISDICTIONS FOR FILING FINANCING STATEMENTS
Exhibit D-1
1
ANNEX B TO PLEDGE AGREEMENT
(To be Provided by [each] Debtor)
A. PLEDGED SHARES
B. PARTNERSHIP INTERESTS
C. LLC INTERESTS
Exhibit D-1
1
ANNEX C TO PLEDGE AGREEMENT
PLEDGE INSTRUCTION
PARTNERSHIP:
INTEREST OWNER:
BY THIS PLEDGE INSTRUCTION, dated as of ___________ , 2000, ("Interest
Owner"), hereby instructs (the "Partnership") to register a pledge in favor of
Bank of America, N.A. ("Pledgee"), in its capacity as Administrative Agent for
certain Lenders and as Secured Party under that certain Pledge Agreement dated
as of , 2000 (as amended, modified, supplemented, or restated from time to time,
the "Pledge Agreement"), against, and a security interest in favor of Pledgee
in, all of the Interest Owner's Rights in connection with any partnership
interest in the Partnership now and hereafter owned by the Interest Owner
("Partnership Interest").
(i) Pledge Instructions. The Partnership is hereby instructed
by the Interest Owner to register all of the Interest Owner's Right, title, and
interest in and to all of the Interest Owner's Partnership Interest as subject
to a pledge and security interest in favor of Pledgee who, upon such
registration of pledge, shall become the registered pledgee of the Partnership
Interest with all Rights incident thereto.
(ii) Initial Transaction Statement. The Partnership is further
instructed by the Interest Owner to promptly inform Pledgee of the registration
of the pledge by sending the initial transaction statement, in the form attached
hereto as Annex A, to Pledgee at its office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, with a copy to Interest Owner.
(iii) Partnership Distributions, Accounts, and Correspondence.
Except as expressly permitted by the Credit Agreement, the Partnership is
further instructed by the Interest Owner to promptly (i) cause the Partnership
to pay and remit to the Pledgee all proceeds, distributions, and other amounts
payable to the Interest Owner upon demand or otherwise, including, without
limitation, upon the termination, liquidation, and dissolution of the
Partnership, (ii) cause the Partnership to hold all funds in deposit accounts
for the benefit of Pledgee, and (iii) cause the Partnership to comply with all
instructions originated by Pledgee after a Default without further consent of
the Partnership or any partner.
(iv) Warranties of the Interest Owner. The Interest Owner
hereby warrants that (i) the Interest Owner is an appropriate person to
originate this instruction; (ii) the Interest Owner is entitled to effect the
instruction here given; and (iii) the Interest Owner's taxpayer identification
number is
.
Remainder of Page Intentionally Blank.
Signature Page to Follow.
Exhibit D-1
EXECUTED as of the date first stated in this Pledge
Instruction.
By:
Name:
Title:
CONSENT OF THE GENERAL PARTNER
The undersigned, , in its capacity as general partner of the
Partnership (in such capacity, the "General Partner") hereby acknowledges and
consents to, and agrees to cause to be registered on the books and records of
the Partnership, the Pledge of Partnership Interests, and further agrees that
upon receipt of written notice from the Pledgee, the General Partner shall,
except as expressly permitted by the Credit Agreement, (i) cause the Partnership
to pay and remit to the Pledgee all proceeds, distributions, and other amounts
payable to the Interest Owner upon demand or otherwise, including, without
limitation, upon the termination, liquidation, and dissolution of the
Partnership, (ii) cause the Partnership to hold all funds in deposit accounts
for the benefit of Pledgee, and (iii) cause the Partnership to comply with all
instructions originated by Pledgee after a Default without further consent of
the Partnership or any partner
,
as General Partner
By:
Name:
Title:
Pledge Instruction
Signature Page
ANNEX A TO PLEDGE INSTRUCTION
FORM OF INITIAL TRANSACTION STATEMENT
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEE
AS OF THE TIME OF ISSUANCE. DELIVERY OF THIS STATEMENT, OF ITSELF,
CONFERS NO RIGHTS ON THE RECIPIENT. THIS STATEMENT IS NEITHER A
NEGOTIABLE INSTRUMENT NOR A SECURITY.
NAME OF PLEDGOR:
ADDRESS OF PLEDGOR:
Tax ID or Social Security Number:
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
[Tax ID Number: ]
On , 2000, the undersigned, , in its capacity as managing general
partner of (in such capacity, the "Managing General Partner") caused the pledge
of ( %) of the outstanding partnership interests in ("Partnership Interest") by
(the "Pledgor"), in favor of Bank of America, N.A. (the "Pledgee"), in its
capacity as Administrative Agent for certain Lenders and as Secured Party under
that certain Pledge Agreement dated as of , 2000 (as the same may be amended,
modified, supplemented, or restated from time to time), to be registered on the
books and records of the Partnership. Except for the pledge in favor of the
Pledgee, to the knowledge of the undersigned (including, without limitation, any
information which may appear on the undersigned's books and records) there are
no liens, restrictions, or adverse claims to which the Partnership Interest is,
or may be, subject as of the date hereof.
By:
Name:
Title:
Exhibit D-1
EXHIBIT D-2
FORM OF MINORITY PLEDGE AGREEMENT
THIS PLEDGE AGREEMENT (this "Pledge Agreement") is executed as of
____________, 2000, by the undersigned ("Debtor"), whose address is
_________________________, and BANK OF AMERICA, N.A., a national banking
association (in its capacity as "Administrative Agent" for the benefit of the
holders of the Obligation under the Credit Agreement [defined below]), as
"Secured Party," whose address is ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇.
For valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Debtor and Secured Party hereby agree as follows:
1. REFERENCE TO CREDIT AGREEMENT. The terms, conditions, and provisions
of the Credit Agreement are incorporated herein by reference, the same as if set
forth herein verbatim, which terms, conditions, and provisions shall continue to
be in full force and effect hereunder so long as Lenders are obligated to lend
under the Credit Agreement and thereafter until the Obligation is paid and
performed in full.
2. CERTAIN DEFINITIONS. Unless otherwise defined herein, or the context
hereof otherwise requires, each term defined in either of the Credit Agreement
or in the UCC is used in this Pledge Agreement with the same meaning; provided
that (a) if the definition given to such term in the Credit Agreement conflicts
with the definition given to such term in the UCC, the Credit Agreement
definition shall control to the extent legally allowable; and (b) if any
definition given to such term in Chapter 9 of the UCC conflicts with the
definition given to such term in any other chapter of the UCC, the Chapter 9
definition shall prevail. As used herein, the following terms have the meanings
indicated:
Collateral has the meaning set forth in Paragraph 4.
Credit Agreement means that certain Credit Agreement dated as of April
14, 2000 by and between Century Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision, LLC,
and Highland Prestige Georgia, Inc. ("Restricted Borrowers"), Administrative
Agent (including its permitted successors and assigns in such capacity,
"Administrative Agent"), and certain other Agents and Lenders (including their
respective permitted successors and assigns, "Lenders").
Lender means, individually, or Lenders means, collectively, on any date
of determination, Administrative Agent and Lenders and their permitted
successors and assigns.
Obligation means, collectively, (a) the "Obligation" as defined in the
Credit Agreement and (b) all indebtedness, liabilities, and obligations of
Debtor arising under this Pledge Agreement or Guaranty assuring payment of the
Obligation. The Obligation shall include, without limitation, future, as well as
existing, advances, indebtedness, liabilities, and obligations owed by Debtor to
Secured Party or to any Lender arising under the Loan Documents or otherwise.
Obligor means any Person obligated with respect to any of the
Collateral, whether as an obligor on an instrument, issuer of securities, or
otherwise.
Pledged Securities means, collectively, the Partnership Interests
(whether or not a security) and any other Collateral constituting securities;
Security Interest means the security interest granted and the pledge
and assignment made under Paragraph 3.
Exhibit D-2
1
UCC means the Uniform Commercial Code, including each such provision as
it may subsequently be renumbered, as enacted in the State of New York or other
applicable jurisdiction, as amended at the time in question.
3. SECURITY INTEREST. In order to secure the full and complete payment
and performance of the Obligation when due, Debtor hereby grants to Secured
Party a Security Interest in all of Debtor's Rights, titles, and interests in
and to the Collateral and pledges, collaterally transfers, and assigns the
Collateral to Secured Party, all upon and subject to the terms and conditions of
this Pledge Agreement. Such Security Interest is granted and pledge and
assignment are made as security only and shall not subject Secured Party to, or
transfer or in any way affect or modify, any obligation of Debtor with respect
to any of the Collateral or any transaction involving or giving rise thereto.
4. COLLATERAL. As used herein, the term "Collateral" means the
following items and types of property:
(a) All of Debtor's Rights, title, and interest, whether now
owned or hereafter acquired, in and to any general and limited
partnership interests in the partnerships listed on Annex B, together
with all Distributions with respect thereto or other property in
exchange therefor, all cash and noncash proceeds thereof, and any
securities issued in substitution or replacement thereof (collectively,
the "Partnership Interests").
(b) All present and future increases, profits, combinations,
reclassifications, and substitutes and replacements for, all or part of
the Collateral described above.
(c) All present and future accounts, contract Rights, general
intangibles, chattel paper, documents, instruments, cash and noncash
proceeds, and other Rights arising from or by virtue of, or from the
voluntary or involuntary sale or other disposition of, or collections
with respect to, or insurance proceeds payable with respect to, or
claims against any other Person with respect to, all or any part of the
Collateral described above in this clause or otherwise.
The description of the Collateral contained in this Paragraph 4 shall not be
deemed to permit any action prohibited by this Pledge Agreement or by the terms
incorporated in this Pledge Agreement. Furthermore, notwithstanding any contrary
provision, Debtor agrees that, if, but for the application of this paragraph,
granting a Security Interest in the Collateral would constitute a fraudulent
conveyance under 11 U.S.C. SS 548 or a fraudulent conveyance or transfer under
any state fraudulent conveyance, fraudulent transfer, or similar Law in effect
from time to time (each a "fraudulent conveyance"), then the Security Interest
remains enforceable to the maximum extent possible without causing such Security
Interest to be a fraudulent conveyance, and this Pledge Agreement is
automatically amended to carry out the intent of this paragraph.
5. REPRESENTATIONS AND WARRANTIES. Debtor represents and warrants to
Secured Party that:
(a) Existence/Good Standing. Debtor is [corporation] [limited
liability company] [limited partnership] duly organized, validly
existing and in good standing under the laws of the State of.
(b) No Violation. None of the execution and delivery of this
Pledge Agreement, the consummation of the transactions herein
contemplated, or compliance with the terms and provisions hereof will
conflict with or result in a breach of, or require any consent under
any partnership agreement or other organizational documents of Debtor,
or any applicable law or regulation, or any
hibit D-2
2
order, writ, injunction, or decree of any Governmental Authority, or
any agreement or instrument to which Debtor is a party or by which it
or any of its property is bound or to which it is subject, or
constitute a default under any such agreement or instrument, or (except
for the Liens created pursuant hereto) result in the creation or
imposition of any Lien upon any property or Debtor pursuant to the
terms of any such agreement or instrument.
(c) Authority. Debtor has all necessary [corporate] [limited
liability company] [partnership] power, authority, and legal right to
execute, deliver, and perform its obligations under this Pledge
Agreement; the execution, delivery, and performance by Debtor of this
Pledge Agreement have been duly authorized by all necessary [corporate]
[limited liability company] [partnership] action on its part; and this
Pledge Agreement has been duly and validly executed and delivered by
Debtor.
(d) Investment Company Act. Debtor is not an "investment
company," or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
(e) Public Utility. Debtor is not a "holding company," or an
"affiliate" of a "holding company" or a "subsidiary company" of a
"holding company," within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
(f) Binding Obligation. This Pledge Agreement creates a legal,
valid, and binding Lien in and to the Collateral in favor of Secured
Party and enforceable against Debtor. For Collateral in which the
Security Interest may be perfected by the filing of Financing
Statements, once those Financing Statements have been properly filed in
the jurisdictions described on Annex A, the Security Interest in that
Collateral will be fully perfected. Once perfected and, in the case of
investment property or instruments, upon possession or "control"
(within the meaning of Sections 8-106 and 9- 115 of the UCC) by Secured
Party, the Security Interest will constitute a first-priority Lien on
the Collateral. The creation of the Security Interest does not require
the consent of any Person that has not been obtained.
(g) Location. Debtor's place of business and chief executive
office is where Debtor is entitled to receive notices hereunder.
(h) Partnerships and Partnership Interests. Each Partnership
issuing a Partnership Interest is duly organized, currently existing,
and in good standing under all applicable Laws; there have been no
amendments, modifications, or supplements to any agreement or
certificate creating any Partnership or any material contract relating
to the Partnerships, of which Secured Party has not been advised in
writing; no default has occurred under the terms of any contract
relating to any Partnership which default could reasonably be expected
to be a Material Adverse Event; and no approval or consent of the
partners of any Partnership is required as a condition to the validity
and enforceability of the Security Interest created hereby or the
consummation of the transactions contemplated hereby which has not been
duly obtained by [such] Debtor. Debtor has good title to the
Partnership Interests free and clear of all Liens and encumbrances
(except for the Security Interest granted hereby). The Partnership
Interests are validly issued and are not subject to statutory,
contractual, or other restrictions governing their transfer, ownership,
or control, except as set forth in the applicable partnership
agreements, the Credit Agreement, or applicable securities Laws and any
restrictions on transferability by any Governmental Authority with
respect to the Authorizations. All capital contributions required to be
made by the terms of the partnership agreements for each Partnership
have been made.
Exhibit D-2
3
(i) Governmental Authority. No authorization, approval, or
other action by, and no notice to or filing with, any Governmental
Authority is required either (i) for the pledge by Debtor of the
Pledged Securities pursuant to this Pledge Agreement or for the
execution, delivery, or performance of this Pledge Agreement by Debtor,
or (ii) for the exercise by Secured Party of the voting or other Rights
provided for in this Pledge Agreement or the remedies in respect of the
Collateral pursuant to this Pledge Agreement (except as may be required
in connection with the disposition of the Pledged Securities by Laws
affecting the offering and sale of securities generally and in
connection with the transfer of control of the Authorizations).
The foregoing representations and warranties will be true and correct in all
respects with respect to any additional Collateral or additional specific
descriptions of certain Collateral delivered to Secured Party in the future by
Debtor.
The failure of any of these representations or warranties to be
accurate and complete does not impair the Security Interest in any Collateral.
6. COVENANTS. So long as Lenders are committed to extend credit to any
Borrower under the Credit Agreement and until the Obligation is paid and
performed in full, Debtor covenants and agrees with Secured Party that Debtor
will:
(a) Credit Agreement. (i) Comply with, perform, and be bound
by THE INDEMNIFICATION AND RELATED PROVISIONS IN SECTION 11.12 OF THE
CREDIT AGREEMENT; AND (ii) CONSENT TO AND APPROVE THE VENUE, SERVICE OF
PROCESS, AND WAIVER OF JURY TRIAL PROVISIONS OF SECTION 13.9 OF THE
CREDIT AGREEMENT.
(b) Perform Obligations. Except as expressly permitted by the
Credit Agreement, fully perform all of Debtor's duties under and in
connection with each transaction to which the Collateral, or any part
thereof, relates, so that the amounts thereof shall actually become
payable in their entirety to Secured Party.
(c) Notices. (i) Promptly notify Secured Party of (A) any
change in any fact or circumstances represented or warranted by Debtor
with respect to any of the Collateral or Obligation, (B) any claim,
action, or proceeding affecting title to all or any of the Collateral
or the Security Interest and, at the request of Secured Party, appear
in and defend, at Debtor's expense, any such action or proceeding, and
(C) the occurrence of any other event or condition (including without
limitation matters as to Lien priority) that could have a material
adverse effect on the Collateral (taken as a whole) or the Security
Interest created hereunder; and (ii) give Secured Party 30 days written
notice before any proposed (A) relocation of its principal place of
business or chief executive office and (B) change of its name,
identity, or corporate structure. Prior to making any of the changes
contemplated in clause (ii) preceding, Debtor shall execute and deliver
all such additional documents and perform all additional acts as
Secured Party, in its sole discretion, may request in order to continue
or maintain the existence and priority of the Security Interests in all
of the Collateral.
(d) Collateral in Trust. Hold in trust (and not commingle with
other assets of Debtor) for Secured Party all Collateral that is
chattel paper, instruments, Pledged Securities, or documents at any
time received by Debtor, and promptly deliver same to Secured Party,
unless Secured Party at its option (which may be evidenced only by a
writing signed by Secured Party stating that Secured Party elects to
permit Debtor to so retain) permits Debtor to retain the same, but any
Collateral so retained shall be marked to state that it is assigned to
Secured Party.
Exhibit D-2
4
(e) Further Assurances. At Debtor's expense and Secured
Party's request, before or after a Default or Potential Default, (i)
file or cause to be filed such applications and take such other actions
as Secured Party may request to obtain the consent or approval of any
Governmental Authority to Secured Party's Rights hereunder, including,
without limitation, the Right to sell all the Collateral upon a Default
without additional consent or approval from such Governmental Authority
(and, because Debtor agrees that Secured Party's remedies at Law for
failure of Debtor to comply with this provision would be inadequate and
that such failure would not be adequately compensable in damages,
Debtor agrees that its covenants in this provision may be specifically
enforced); (ii) from time to time promptly execute and deliver to
Secured Party all such other assignments, certificates, supplemental
documents, and financing statements, and do all other acts or things as
Secured Party may reasonably request in order to more fully create,
evidence, perfect, continue, and preserve the priority of the Security
Interest and to carry out the provisions of this Pledge Agreement; and
(iii) pay all filing fees in connection with any financing,
continuation, or termination statement or other instrument with respect
to the Security Interests.
(f) Modifications to Agreements. Not modify or substitute, or
permit the modification or substitution of, any document evidencing the
Collateral.
(g) Partnerships and Partnership Interests. (i) Promptly
perform, observe, and otherwise comply with each and every covenant,
agreement, requirement, and condition set forth in the contracts and
agreements creating or relating to any Partnership; (ii) except as
expressly permitted by the Credit Agreement, do or cause to be done all
things necessary or appropriate to keep the Partnerships in full force
and effect and the Rights of Debtor and Secured Party thereunder
unimpaired; (iii) except as expressly permitted by the Credit
Agreement, not consent to any Partnership selling, leasing, or
disposing of substantially all of its assets in a single transaction or
a series of transactions; (iv) except as expressly permitted by the
Credit Agreement, not consent to the material amendment or
modification, or any surrender, impairment, forfeiture, cancellation,
dissolution, or termination of any Partnership; (v) except as permitted
by the Credit Agreement, not transfer, sell, or assign any of the
Partnership Interests or any part thereof; [(vi) cause each Partnership
to refrain from granting any partnership interests in addition to or in
substitution for the Partnership Interests granted by the Partnerships,
except to Debtor;] (vii) pledge hereunder, immediately upon Debtor's
acquisition (directly or indirectly) thereof, any and all additional
Partnership Interests of any Partnership granted to Debtor and any and
all additional shares of stock or other securities of each; (viii)
deliver to Secured Party a fully-executed Pledge Instruction,
substantially in the form of Annex C, for each Partnership Interest,
together with the General Partner's written consent thereto and an
Initial Transaction Statement executed by the Managing General Partner
of such Partnership; and (ix) take any action necessary, required, or
requested by Secured Party to allow Secured Party to fully enforce its
Security Interest in the Partnership Interests, including, without
limitation, the filing of any claims with any court, liquidator,
trustee, custodian, receiver, or other like person or party.
7. DEFAULT; REMEDIES. If a Default exists, Secured Party may, at its
election (but subject to the terms and conditions of the Credit Agreement),
exercise any and all Rights available to a secured party under the UCC, in
addition to any and all other Rights afforded by the Loan Documents, at Law, in
equity, or otherwise, including, without limitation, (a) applying by appropriate
judicial proceedings for appointment of a receiver for all or part of the
Collateral (and Debtor hereby consents to any such appointment), and (b)
applying to the Obligation any cash held by Secured Party under this Pledge
Agreement, if any. Notwithstanding the foregoing, Secured Party will not
exercise any remedies against the Collateral unless it has given at least ten
days written notification to Debtor, to the FCC, to the extent such notice is
required under [47 C.F.R. 22.937(f)], and to any other Governmental Authority,
to the extent such notice is required by Law.
Exhibit D-2
5
(a) Notice. Reasonable notification of the time and place of
any public sale of the Collateral, or reasonable notification of the
time after which any private sale or other intended disposition of the
Collateral is to be made, shall be sent to Debtor and to any other
Person entitled to notice under the UCC; provided, that if any of the
Collateral threatens to decline speedily in value or is of the type
customarily sold on a recognized market, Secured Party may sell or
otherwise dispose of the Collateral without notification,
advertisement, or other notice of any kind. It is agreed that notice
sent or given not less than ten Business Days prior to the taking of
the action to which the notice relates is reasonable notification and
notice for the purposes of this subparagraph.
(b) Sales of Pledged Securities.
(i) Debtor agrees that, because of the Securities Act
of 1933, as amended, or the rules and regulations promulgated
thereunder (collectively, the "Securities Act"), or any other
Laws or regulations, and for other reasons, there may be legal
or practical restrictions or limitations affecting Secured
Party in any attempts to dispose of certain portions of the
Pledged Securities and for the enforcement of its Rights. For
these reasons, Secured Party is hereby authorized by Debtor,
but not obligated, upon the occurrence and during the
continuation of a Default, to sell all or any part of the
Pledged Securities at private sale, subject to investment
letter or in any other manner which will not require the
Pledged Securities, or any part thereof, to be registered in
accordance with the Securities Act or any other Laws or
regulations, at a reasonable price at such private sale or
other distribution in the manner mentioned above. Debtor
understands that Secured Party may in its discretion approach
a limited number of potential purchasers and that a sale under
such circumstances may yield a lower price for the Pledged
Securities, or any part thereof, than would otherwise be
obtainable if such Pledged Securities were either afforded to
a larger number or potential purchasers, registered under the
Securities Act, or sold in the open market. Debtor agrees that
any such private sale made under this Paragraph 7(a) shall be
deemed to have been made in a commercially reasonable manner,
and that Secured Party has no obligation to delay the sale of
any Pledged Securities to permit the issuer thereof to
register it for public sale under any applicable federal or
state securities Laws.
(ii) Secured Party is authorized, in connection with
any such sale, (A) to restrict the prospective bidders on or
purchasers of any of the Pledged Securities to a limited
number of sophisticated investors who will represent and agree
that they are purchasing for their own account for investment
and not with a view to the distribution or sale of any of such
Pledged Securities, and (B) to impose such other limitations
or conditions in connection with any such sale as Secured
Party reasonably deems necessary in order to comply with
applicable Law. Debtor covenants and agrees that it will
execute and deliver such documents and take such other action
as Secured Party reasonably deems necessary in order that any
such sale may be made in compliance with applicable Law. Upon
any such sale Secured Party shall have the Right to deliver,
assign, and transfer to the purchaser thereof the Pledged
Securities so sold. Each purchaser at any such sale shall hold
the Pledged Securities so sold absolutely, free from any claim
or Right of Debtor of whatsoever kind, including any equity or
Right of redemption of Debtor. Debtor, to the extent permitted
by applicable Law, hereby specifically waives all Rights of
redemption, stay, or appraisal which it has or may have under
any Law now existing or hereafter enacted.
(iii) Debtor agrees that ten days' written notice
from Secured Party to Debtor of Secured Party's intention to
make any such public or private sale or sale at a broker's
board or on a securities exchange shall constitute "reasonable
notification" within the meaning of
Exhibit D-2
6
Section 9-504(c) of the UCC. Such notice shall (A) in case of
a public sale, state the time and place fixed for such sale,
(B) in case of sale at a broker's board or on a securities
exchange, state the board or exchange at which such a sale is
to be made and the day on which the Pledged Securities, or the
portion thereof so being sold, will first be offered to sale
at such board or exchange, and (C) in the case of a private
sale, state the day after which such sale may be consummated.
Any such public sale shall be held at such time or times
within ordinary business hours and at such place or places as
Secured Party may fix in the notice of such sale. At any such
sale, the Pledged Securities may be sold in one lot as an
entirety or in separate parcels, as Secured Party may
reasonably determine. Secured Party shall not be obligated to
make any such sale pursuant to any such notice. Secured Party
may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to
time by announcement at the time and place fixed for the sale,
and such sale may be made at any time or place to which the
same may be so adjourned.
(iv) In case of any sale of all or any part of the
Pledged Securities on credit or for future delivery, the
Pledged Securities so sold may be retained by Secured Party
until the selling price is paid by the purchaser thereof, but
Secured Party shall not incur any liability in case of the
failure of such purchaser to take up and pay for the Pledged
Securities so sold and in case of any such failure, such
Pledged Securities may again be sold upon like notice. Secured
Party, instead of exercising the power of sale herein
conferred upon it, may proceed by a suit or suits at Law or in
equity to foreclose the Security Interests and sell the
Pledged Securities, or any portion thereof, under a judgment
or decree of a court or courts of competent jurisdiction.
(v) Without limiting the foregoing, or imposing upon
Secured Party any obligations or duties not required by
applicable Law, Debtor acknowledges and agrees that, in
foreclosing upon any of the Pledged Securities, or exercising
any other Rights or remedies provided Secured Party hereunder
or under applicable Law, Secured Party may, but shall not be
required to, (A) qualify or restrict prospective purchasers of
the Pledged Securities by requiring evidence of sophistication
or creditworthiness, and requiring the execution and delivery
of confidentiality agreements or other documents and
agreements as a condition to such prospective purchasers'
receipt of information regarding the Pledged Securities or
participation in any public or private foreclosure sale
process, (B) provide to prospective purchasers business and
financial information regarding Debtor or the Loan Parties
available in the files of Secured Party at the time of
commencing the foreclosure process, without the requirement
that Secured Party obtain, or seek to obtain, any updated
business or financial information or verify, or certify to
prospective purchasers, the accuracy of any such business or
financial information, or (C) offer for sale and sell the
Pledged Securities with, or without, first employing an
appraiser, investment banker, or broker with respect to the
evaluation of the Pledged Securities, the solicitation of
purchasers for Pledged Securities, or the manner of sale of
Pledged Securities.
(c) Application of Proceeds. Secured Party shall apply the
proceeds of any sale or other disposition of the Collateral under this
Paragraph 7 in the following order: first, to the payment of all
expenses incurred in retaking, holding, and preparing any of the
Collateral for sale(s) or other disposition, in arranging for such
sale(s) or other disposition, and in actually selling or disposing of
the same (all of which are part of the Obligation); second, toward
repayment of amounts expended by Secured Party under Paragraph 8; and
third, toward payment of the balance of the Obligation in the order and
manner specified in the Credit Agreement. Any surplus remaining shall
be delivered to Debtor or as a court of competent jurisdiction may
direct.
Exhibit D-2
7
8. OTHER RIGHTS OF SECURED PARTY.
(a) Performance. If Debtor fails to preserve the priority of
the Security Interest in any of the Collateral or otherwise fails to
perform any of its obligations under the Loan Documents with respect to
the Collateral, then Secured Party may, at its option, but without
being required to do so, prosecute or defend any suits in relation to
the Collateral, or take all other action which Debtor is required, but
has failed or refused, to take under the Loan Documents. Any sum which
may be expended or paid by Secured Party under this subparagraph
(including, without limitation, court costs and attorneys' fees) shall
bear interest from the dates of expenditure or payment at the Default
Rate until paid and, together with such interest, shall be payable by
Debtor to Secured Party upon demand and shall be part of the
Obligation.
(b) Collection. If a Default exists and upon notice from
Secured Party, each Obligor with respect to any payments on any of the
Collateral (including, without limitation, dividends and other
distributions with respect to Pledged Securities) is hereby authorized
and directed by Debtor to make payment directly to Secured Party,
regardless of whether Debtor was previously making collections thereon.
Subject to Paragraph 8(e), until such notice is given, Debtor is
authorized to retain and expend all payments made on Collateral. If a
Default exists, Secured Party shall have the Right in its own name or
in the name of Debtor to compromise or extend time of payment with
respect to all or any portion of the Collateral for such amounts and
upon such terms as Secured Party may determine; to demand, collect,
receive, receipt for, ▇▇▇ for, compound, and give acquittances for any
and all amounts due or to become due with respect to Collateral; to
take control of cash and other proceeds of any Collateral; to endorse
the name of Debtor on any notes, acceptances, checks, drafts, money
orders, or other evidences of payment on Collateral that may come into
the possession of Secured Party; to sign the name of Debtor on any
invoice or ▇▇▇▇ of lading relating to any Collateral, on any drafts
against Obligors or other Persons making payment with respect to
Collateral, on assignments and verifications of accounts or other
Collateral and on notices to Obligors making payment with respect to
Collateral; to send requests for verification of obligations to any
Obligor; and to do all other acts and things necessary to carry out the
intent of this Pledge Agreement. If a Default exists and any Obligor
fails or refuses to make payment on any Collateral when due, Secured
Party is authorized, in its sole discretion, either in its own name or
in the name of Debtor, to take such action as Secured Party shall deem
appropriate for the collection of any amounts owed with respect to
Collateral or upon which a delinquency exists. Regardless of any other
provision hereof, however, Secured Party shall never be liable for its
failure to collect, or for its failure to exercise diligence in the
collection of, any amounts owed with respect to Collateral, nor shall
it be under any duty whatsoever to anyone except Debtor to account for
funds that it shall actually receive hereunder. Without limiting the
generality of the foregoing, Secured Party shall have no responsibility
for ascertaining any maturities, calls, conversions, exchanges, offers,
tenders, or similar matters relating to any Collateral, or for
informing Debtor with respect to any of such matters (irrespective of
whether Secured Party actually has, or may be deemed to have, knowledge
thereof). The receipt of Secured Party to any Obligor shall be a full
and complete release, discharge, and acquittance to such Obligor, to
the extent of any amount so paid to Secured Party.
(c) Record Ownership of Securities. If a Default or Potential
Default exists, Secured Party at any time may have any Collateral that
is Pledged Securities and that is in the possession of Secured Party,
or its nominee or nominees, registered in its name, or in the name of
its nominee or nominees, as Secured Party; and, as to any Collateral
that is Pledged Securities so registered, Secured Party shall execute
and deliver (or cause to be executed and delivered) to Debtor all such
proxies, powers of attorney, dividend coupons or orders, and other
documents as Debtor may reasonably request for the purpose of enabling
Debtor to exercise the voting Rights and powers which it is entitled
Exhibit D-2
8
to exercise under this Pledge Agreement or to receive the dividends and
other payments in respect of such Collateral that is Pledged Securities
which it is authorized to receive and retain under this Pledge
Agreement.
(d) Voting of Securities. As long as no Default exists, Debtor
is entitled to exercise all voting Rights pertaining to any Pledged
Securities; provided, however, that no vote shall be cast or consent,
waiver, or ratification given or action taken without the prior written
consent of Secured Party which would (x) be inconsistent with or
violate any provision of this Pledge Agreement or any other Loan
Document or (y) amend, modify, or waive any term, provision or
condition of the certificate of incorporation, bylaws, certificate of
formation, or other charter document, or other agreement relating to,
evidencing, providing for the issuance of, or securing any Collateral
if such action could adversely affect the Rights of Lenders; and
provided further that Debtor shall give Secured Party at least ten
Business Days' prior written notice in the form of an officers'
certificate of the manner in which it intends to exercise, or the
reasons for refraining from exercising, any voting or other consensual
Rights pertaining to the Collateral or any part thereof which might
have a material adverse effect on the value of the Collateral or any
part thereof. If a Default exists and if Secured Party elects to
exercise such Right, the Right to vote any Pledged Securities shall be
vested exclusively in Secured Party. To this end, Debtor hereby
irrevocably constitutes and appoints Secured Party the proxy and
attorney-in-fact of Debtor, with full power of substitution, to vote,
and to act with respect to, any and all Collateral standing in the name
of Debtor or with respect to which Debtor is entitled to vote and act,
subject to the understanding that such proxy may not be exercised
unless a Default exists. The proxy herein granted is coupled with an
interest, is irrevocable, and shall continue until the Obligation has
been paid and performed in full.
(e) Certain Proceeds. Except to the extent such transaction is
expressly permitted by Sections 9.20, 9.22, or 9.24 of the Credit
Agreement, notwithstanding any contrary provision herein, any and all
(i) dividends, interest, or other Distributions paid
or payable other than in cash in respect of, and instruments
and other property received, receivable, or otherwise
distributed in respect of, or in exchange for, any Collateral;
(ii) dividends, interest, or other Distributions
hereafter paid or payable in cash in respect of any Collateral
in connection with a partial or total liquidation or
dissolution, or in connection with a reduction of capital,
capital surplus, or paid-in-surplus;
(iii) cash paid, payable, or otherwise distributed in
redemption of, or in exchange for, any Collateral; and
(iv) dividends, interest, or other Distributions paid
or payable in violation of the Loan Documents,
shall be part of the Collateral hereunder, shall, if received by
Debtor, be held in trust for the benefit of Secured Party, and shall
forthwith be delivered to Secured Party (accompanied by proper
instruments of assignment and/or stock and/or bond powers executed by
Debtor in accordance with Secured Party's instructions) to be held
subject to the terms of this Pledge Agreement. Any cash proceeds of
Collateral which come into the possession of Secured Party (including,
without limitation, insurance proceeds) may, at Secured Party's option,
be applied in whole or in part to the Obligation (to the extent then
due), be released in whole or in part to or on the written instructions
of Debtor for any general or specific purpose, or be retained in whole
or in part by Secured Party as additional
Exhibit D-2
9
Collateral. Any cash Collateral in the possession of Secured Party may
be invested by Secured Party in certificates of deposit issued by
Secured Party (if Secured Party issues such certificates) or by any
state or national bank having combined capital and surplus greater than
$100,000,000 with a rating from ▇▇▇▇▇'▇ and S&P of P-1 and A-1+,
respectively, or in securities issued or guaranteed by the United
States of America or any agency thereof. Secured Party shall never be
obligated to make any such investment and shall never have any
liability to Debtor for any loss which may result therefrom. All
interest and other amounts earned from any investment of Collateral may
be dealt with by Secured Party in the same manner as other cash
Collateral. The provisions of this subparagraph are applicable whether
or not a Default or Potential Default exists.
(f) Power of Attorney. Debtor hereby irrevocably constitutes
and appoints Secured Party as Debtor's attorney-in-fact, with full
irrevocable power and authority in the place and stead of Debtor and in
the name of Debtor, Secured Party, Lenders, or otherwise, from time to
time in Secured Party's discretion, for the sole purpose of carrying
out the terms of this Pledge Agreement and, to the extent permitted by
applicable Law, to take any action and to execute any document and
instrument which Secured Party may deem necessary or advisable to
accomplish the following when a Default exists:
(i) to receive, endorse, and collect any drafts or
other instruments or documents in connection with clause (b)
above and this clause (f); and
(ii) to execute on behalf of Debtor, any financing
statements or continuation statements with respect to the
Security Interests created hereby, which Secured Party may
deem necessary or advisable to protect and preserve the
Collateral, and all Rights thereto.
(g) Purchase Money Collateral. To the extent that Secured
Party or any Lender has advanced or will advance funds to or for the
account of Debtor to enable Debtor to purchase or otherwise acquire
Rights in Collateral, Secured Party or such Lender, at its option, may
pay such funds (i) directly to the Person from whom Debtor will make
such purchase or acquire such Rights, or (ii) to Debtor, in which case
Debtor covenants to promptly pay the same to such Person, and forthwith
furnish to Secured Party evidence satisfactory to Secured Party that
such payment has been made from the funds so provided.
(h) Subrogation. If any of the Obligation is given in renewal
or extension or applied toward the payment of indebtedness secured by
any Lien, Secured Party shall be, and is hereby, subrogated to all of
the Rights, titles, interests, and Liens securing the indebtedness so
renewed, extended, or paid.
(i) Indemnification. Debtor hereby assumes all liability for
the Collateral, for the Security Interest, and for any use or
possession of, all or any of the Collateral, including, without
limitation, any Taxes arising as a result of, or in connection with,
the transactions contemplated herein, and agrees to assume liability
for, and to indemnify and hold Secured Party and each Lender harmless
from and against, any and all claims, causes of action, or liability,
howsoever arising, from or incident to such use, possession,
maintenance, and management, whether such Persons be agents or
employees of Debtor or of third parties. Debtor agrees to indemnify,
save, and hold Secured Party and each Lender harmless from and against,
and covenants to defend Secured Party and each Lender against, any and
all losses, damages, claims, costs, penalties, liabilities, and
expenses (collectively, "Claims"), including, without limitation, court
costs and attorneys' fees, and any of the foregoing arising from the
negligence of Secured Party or any Lender, or any of their respective
officers, employees, agents, advisors, employees, or representatives,
howsoever arising or incurred because of, incident to, or with respect
to Collateral or any use or possession thereof; provided, however, that
the indemnity
Exhibit D-2
10
set forth in this Paragraph 8(i) will not apply to Claims caused by the
gross negligence or willful misconduct of Secured Party or any Lender.
9. ACKNOWLEDGMENT OF REGULATORY CONSIDERATIONS
(a) No Prohibited Transfers. It is hereby acknowledged that
assignment or transfer of control of any Authorization without the
prior approval of Governmental Authorities may constitute a prohibited
transfer in violation of Law. Secured Party agrees that exercise of its
Rights hereunder shall be effected only after the obtaining of any
necessary approvals for such exercise.
(b) Actions by Debtor. If counsel to Secured Party reasonably
determines that the consent of any Governmental Authority is required
in connection with any of the actions which may be taken by Secured
Party on behalf of Lenders in the exercise of their Rights hereunder or
under the Loan Documents, then Debtor, at its sole cost and expense,
agrees to use its best efforts to secure such consent and to cooperate
with Secured Party and Lenders in any action commenced by Secured Party
to secure such consent. Upon the occurrence and during the continuation
of a Default or Potential Default, Debtor shall promptly execute or
cause the execution of all applications, certificates, instruments, and
other documents and papers that Secured Party may be required to file
in order to obtain any necessary governmental consent, approval, or
authorization, and if Debtor fails or refuses to execute such
documents, then, on the order of any court of competent jurisdiction,
the Clerk of the Court with jurisdiction may execute such documents on
behalf of Debtor. Debtor further recognizes that a violation of this
covenant would result in irreparable harm to Lenders for which monetary
damages are not readily ascertainable and which might not fully
compensate such Lenders. Therefore, in addition to any other remedy
which may be available to Lenders, at Law or in equity, Secured Party
on behalf of Lenders shall have the remedy of specific performance of
the provisions of this subsection.
(c) Approval of Governmental Authorities. Notwithstanding
anything to the contrary contained in this Pledge Agreement, Secured
Party will not take any action pursuant to this Pledge Agreement or any
of the documents executed pursuant hereto which would constitute an
assignment of an Authorization or any transfer of control of any
Authorization if such assignment of license or transfer of control
would require under then-existing Law (including the written rules and
regulations promulgated by any Governmental Authority) the prior
approval of the Governmental Authority issuing such Authorization,
without first obtaining such approval. Debtor agrees to take, or cause
to be taken, any action which Secured Party may reasonably request in
order to obtain and enjoy the full Rights and benefits granted to
Secured Party by this Pledge Agreement and any other instruments or
agreements executed pursuant hereto, including, without limitation, at
Debtor's cost and expense, the exercise of its best efforts to
cooperate in obtaining Governmental Authority approval of any action or
transaction contemplated by this Pledge Agreement or any other
instrument or agreement executed pursuant hereto which is then required
by Law.
(d) Subsequent Actions by Debtor. Debtor agrees that if, for
any reason, any Governmental Authority does not approve within a
reasonable period of time the initial application for approval of the
transfer of control of any Authorization, then Paragraphs 9(b) and (c)
shall be applicable to any subsequent application for transfer of
control of any Authorization pursuant to action taken by Secured Party
in the exercise of its Rights hereunder or under the Loan Documents.
With respect to each subsequent proposed purchaser(s), Debtor agrees to
execute all such applications and other documents and take all such
other action as may be reasonably requested by Secured Party at any
time and from time to time in order to obtain the approval by the
Governmental Authorities.
Exhibit D-2
11
Exercise by Secured Party of the Right to such cooperation shall not be
exhausted by the initial or any subsequent exercise thereof.
10. MISCELLANEOUS.
(a) Continuing Security Interest. This Pledge Agreement
creates a continuing security interest in the Collateral and shall (i)
remain in full force and effect until the termination of the
obligations of Lenders to advance Borrowings or issue LCs under the
Loan Documents, the payment in full of the Obligation, and the
expiration of all LCs and Financial ▇▇▇▇▇▇ relating to the Principal
Debt issued by any Lender or any Affiliate of any Lender to Debtor or
any Company; (ii) be binding upon Debtor, its successors, and assigns;
and (iii) inure to the benefit of and be enforceable by Secured Party,
Lenders, and their respective successors, transferees, and assigns.
Without limiting the generality of the foregoing clause (iii), Secured
Party and Lenders may assign or otherwise transfer any of their
respective Rights under this Pledge Agreement to any other Person in
accordance with the terms and provisions of Section 13.12 of the Credit
Agreement, and to the extent of such assignment or transfer such Person
shall thereupon become vested with all the Rights and benefits in
respect thereof granted herein or otherwise to Secured Party or
Lenders, as the case may be. Upon payment in full of the Obligation,
the termination of the commitment of Lenders to extend credit or issue
LCs, and the expiration of all LCs or Financial ▇▇▇▇▇▇ relating to the
Principal Debt issued by any Lender or any Affiliate of any Lender to
Debtor or any Company, Debtor shall be entitled to the return, upon its
request and at its expense, of such of the Collateral as shall not have
been sold or otherwise applied pursuant to the terms hereof.
(b) Reference to Miscellaneous Provisions. This Pledge
Agreement is one of the "Loan Documents" referred to in the Credit
Agreement, and all provisions relating to Loan Documents set forth in
Section 13 of the Credit Agreement, other than the provisions set forth
in Section 13.6, are incorporated herein by reference, the same as if
set forth herein verbatim.
(c) Term. Upon full and final payment and performance of the
Obligation or other release of Debtor from the obligations hereunder as
expressly permitted by the Credit Agreement, this Pledge Agreement
shall thereafter terminate upon receipt by Secured Party of Debtor's
written notice of such termination; provided that no Obligor, if any,
on any of the Collateral shall ever be obligated to make inquiry as to
the termination of this Pledge Agreement, but shall be fully protected
in making payment directly to Secured Party until actual notice of such
total payment of the Obligation is received by such Obligor.
(d) Actions Not Releases. The Security Interest and Debtor's
obligations and Secured Party's Rights hereunder shall not be released,
diminished, impaired, or adversely affected by the occurrence of any
one or more of the following events: (i) the taking or accepting of any
other security or assurance for any or all of the Obligation; (ii) any
release, surrender, exchange, subordination, or loss of any security or
assurance at any time existing in connection with any or all of the
Obligation; (iii) the modification of, amendment to, or waiver of
compliance with any terms of any of the other Loan Documents without
the notification or consent of Debtor, except as required therein (the
Right to such notification or consent being herein specifically waived
by Debtor); (iv) the insolvency, bankruptcy, or lack of corporate or
trust power of any party at any time liable for the payment of any or
all of the Obligation, whether now existing or hereafter occurring; (v)
any renewal, extension, or rearrangement of the payment of any or all
of the Obligation, either with or without notice to or consent of
Debtor, or any adjustment, indulgence, forbearance, or compromise that
may be granted or given by Secured Party or any Lender to Debtor; (vi)
any neglect, delay, omission, failure, or refusal of Secured Party or
any Lender to take or prosecute any action in connection with any other
Exhibit D-2
12
agreement, document, guaranty, or instrument evidencing, securing, or
assuring the payment of all or any of the Obligation; (vii) any failure
of Secured Party or any Lender to notify Debtor of any renewal,
extension, or assignment of the Obligation or any part thereof, or the
release of any security, or of any other action taken or refrained from
being taken by Secured Party or any Lender against Debtor or any new
agreement between or among Secured Party or one or more Lenders and
Debtor, it being understood that neither Secured Party nor any Lender
shall be required to give Debtor any notice of any kind under any
circumstances whatsoever with respect to or in connection with the
Obligation, including, without limitation, notice of acceptance of this
Pledge Agreement or any Collateral ever delivered to or for the account
of Secured Party hereunder; (viii) the illegality, invalidity, or
unenforceability of all or any part of the Obligation against any party
obligated with respect thereto by reason of the fact that the
Obligation, or the interest paid or payable with respect thereto,
exceeds the amount permitted by Law, the act of creating the
Obligation, or any part thereof, is ultra ▇▇▇▇▇, or the officers,
partners, or trustees creating same acted in excess of their authority,
or for any other reason; or (ix) if any payment by any party obligated
with respect thereto is held to constitute a preference under
applicable Laws or for any other reason Secured Party or any Lender is
required to refund such payment or pay the amount thereof to someone
else.
(e) Waivers. Except to the extent expressly otherwise provided
herein or in other Loan Documents and to the fullest extent permitted
by applicable Law, Debtor waives (i) any Right to require Secured Party
or any Lender to proceed against any other Person, to exhaust its
Rights in Collateral, or to pursue any other Right which Secured Party
or any Lender may have; (ii) with respect to the Obligation,
presentment and demand for payment, protest, notice of protest and
nonpayment, and notice of the intention to accelerate; and (iii) all
Rights of marshaling in respect of any and all of the Collateral.
(f) Financing Statement. Secured Party shall be entitled at
any time to file this Pledge Agreement or a carbon, photographic, or
other reproduction of this Pledge Agreement, as a financing statement,
but the failure of Secured Party to do so shall not impair the validity
or enforceability of this Pledge Agreement.
(g) Amendments. No amendment, waiver, or discharge to or under
this Pledge Agreement is valid unless it is in writing and is signed by
the party against whom it is sought to be enforced and is otherwise in
conformity with the requirements of Section 13.10 of the Credit
Agreement.
(h) Multiple Counterparts. This Pledge Agreement has been
executed in a number of identical counterparts, each of which shall be
deemed an original for all purposes and all of which constitute,
collectively, one agreement; but, in making proof of this Pledge
Agreement, it shall not be necessary to produce or account for more
than one such counterpart.
(i) Parties Bound; Assignment. This Pledge Agreement shall be
binding on Debtor and Debtor's heirs, legal representatives,
successors, and assigns and shall inure to the benefit of Secured
Party and Secured Party's successors and assigns.
(i) Secured Party is the agent for each Lender under
the Credit Agreement, the Security Interest and all Rights
granted to Secured Party hereunder or in connection herewith
are for the ratable benefit of each Lender, and Secured Party
may, without the joinder of any Lender, exercise any and all
Rights in favor of Secured Party or Lenders hereunder,
including, without limitation, conducting any foreclosure
sales hereunder, and executing full or partial releases
hereof, amendments or modifications hereto, or consents or
waivers hereunder. The
Exhibit D-2
13
Rights of each Lender vis-a-vis Secured Party and each other
Lender may be subject to one or more separate agreements
between or among such parties, but Debtor need not inquire
about any such agreement or be subject to any terms thereof
unless Debtor specifically joins therein; and consequently,
neither Debtor nor Debtor's heirs, personal representatives,
successors, and assigns shall be entitled to any benefits or
provisions of any such separate agreements or be entitled to
rely upon or raise as a defense, in any manner whatsoever, the
failure or refusal of any party thereto to comply with the
provisions thereof.
(ii) Debtor may not, without the prior written
consent of Secured Party, assign any Rights, duties, or
obligations hereunder.
(j) Governing Law. Pursuant to Section 5-1401 of the New York
General Obligations Law, the substantive laws of the State of New York
applicable to agreements made and to be performed entirely within such
state, without regard to the choice of law principles that might
otherwise apply, except to the extent the laws of another jurisdiction
govern the creation, perfection, validity, or enforcement of Liens
under the Pledge Agreement, and the applicable federal laws of the
United States of America, shall govern the validity, construction,
enforcement and interpretation of this Pledge Agreement and all of the
other Loan Documents.
(k) Limited Recourse. Debtor shall be liable for all
representations, warranties, covenants, and obligations set forth in
this Pledge Agreement, but shall not be otherwise be liable to repay
any Principal Debt. No manager, director, officer, employee,
shareholder, member, or partner of Debtor (which is not a Loan Party)
or any transferee (which is not a Loan Party) of any Collateral
securing the Obligation to the extent such transfer is permitted by the
terms of the Loan Documents or is otherwise made with the prior written
consent of each requisite Lender shall be personally liable for any
obligations of Debtor, except as set forth below. This Paragraph 10(k)
shall not (a) prevent or restrict recourse to the Collateral securing
the Obligation or constitute a waiver, release, or discharge of the
Obligation, but the Obligation shall remain outstanding until paid or
discharged; (b) limit any Rights, claims for damages, or recourse of
Administrative Agent, the Lenders, or the Issuing Lenders or their
respective transferees or assigns as a result of (i) any knowing or
willful breach by any Person of any representation or warranty of such
Person made under or pursuant to this Pledge Agreement or any other
Loan Document or (ii) any knowing or willful breach of any covenant or
other obligation by any Person under this Pledge Agreement or any other
Loan Document; or (c) limit the Right of any Person to name Debtor or
any transferee of any interest in the Collateral securing the
Obligation as a party defendant in any action or suit for a judicial
sale or in the exercise of any other remedy under this Pledge Agreement
or any other Loan Document, so long as no judgment in the nature of a
deficiency judgment shall be asked for, taken, or enforced against any
Person referred to in the second sentence of this Paragraph 10(k).
Notwithstanding the foregoing, nothing herein shall be construed to
constitute a waiver by Administrative Agent, the Lenders, or the
Issuing Lenders of any Rights to damages, other monetary relief,
injunctive relief, or any other remedy at Law or equity against Debtor
or any Person referred to in the second sentence of this Paragraph
10(k) by reason of fraud, knowing or willful breach of representations
and warranties, willful tortious acts or omissions, gross negligence,
or criminal acts.
Remainder of Page Intentionally Blank.
Signature Page(s) to Follow.
Exhibit D-2
14
EXECUTED as of the day and year first herein set forth.
----------------------------,
as Debtor
By:
Name:
Title:
Minority Pledge Agreement
Signature Page
15
ANNEX A TO PLEDGE AGREEMENT
(To be Provided by Debtor)
JURISDICTION FOR FILING FINANCING STATEMENTS
Exhibit D-2
1
ANNEX B TO PLEDGE AGREEMENT
(To be Provided by Debtor)
PARTNERSHIP INTERESTS
Exhibit D-2
1
ANNEX C TO PLEDGE AGREEMENT
PLEDGE INSTRUCTION
PARTNERSHIP:
INTEREST OWNER:
BY THIS PLEDGE INSTRUCTION, dated as of ___________ , 2000, ("Interest
Owner"), hereby instructs (the "Partnership") to register a pledge in favor of
Bank of America, N.A. ("Pledgee"), in its capacity as Administrative Agent for
certain Lenders and as Secured Party under that certain Pledge Agreement dated
as of , 2000 (as amended, modified, supplemented, or restated from time to time,
the "Pledge Agreement"), against, and a security interest in favor of Pledgee
in, all of the Interest Owner's Rights in connection with any partnership
interest in the Partnership now and hereafter owned by the Interest Owner
("Partnership Interest").
(i) Pledge Instructions. The Partnership is hereby instructed
by the Interest Owner to register all of the Interest Owner's Right, title, and
interest in and to all of the Interest Owner's Partnership Interest as subject
to a pledge and security interest in favor of Pledgee who, upon such
registration of pledge, shall become the registered pledgee of the Partnership
Interest with all Rights incident thereto.
(ii) Initial Transaction Statement. The Partnership is further
instructed by the Interest Owner to promptly inform Pledgee of the registration
of the pledge by sending the initial transaction statement, in the form attached
hereto as Annex A, to Pledgee at its office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, with a copy to Interest Owner.
(iii) Partnership Distributions, Accounts, and Correspondence.
Except as expressly permitted by the Credit Agreement, the Partnership is
further instructed by the Interest Owner to promptly (i) cause the Partnership
to pay and remit to the Pledgee all proceeds, distributions, and other amounts
payable to the Interest Owner upon demand or otherwise, including, without
limitation, upon the termination, liquidation, and dissolution of the
Partnership, (ii) cause the Partnership to hold all funds in deposit accounts
for the benefit of Pledgee, and (iii) cause the Partnership comply with all
instructions originated by Pledgee after a Default without further consent of
the Partnership or any partner.
(iv) Warranties of the Interest Owner. The Interest Owner
hereby warrants that (i) the Interest Owner is an appropriate person to
originate this instruction; (ii) the Interest Owner is entitled to effect the
instruction here given; and (iii) the Interest Owner's taxpayer identification
number is
.
Remainder of Page Intentionally Blank.
Signature Page to Follow.
Exhibit D-2
2
EXECUTED as of the date first stated in this Pledge
Instruction.
By:
Name:
Title:
CONSENT OF THE GENERAL PARTNER
The undersigned, , in its capacity as general partner of the
Partnership (in such capacity, the "General Partner") hereby acknowledges and
consents to, and agrees to cause to be registered on the books and records of
the Partnership, the Pledge of Partnership Interests, and further agrees that
upon receipt of written notice from the Pledgee, the General Partner shall,
except as expressly permitted by the Credit Agreement, (i) cause the Partnership
to pay and remit to the Pledgee all proceeds, distributions, and other amounts
payable to the Interest Owner upon demand or otherwise, including, without
limitation, upon the termination, liquidation, and dissolution of the
Partnership, (ii) cause the Partnership to hold all funds in deposit accounts
for the benefit of Pledgee, and (iii) cause the Partnership comply with all
instructions originated by Pledgee after a Default without further consent of
the Partnership or any partner.
,
as General Partner
By:
Name:
Title:
Pledge Instruction
Signature Page
3
ANNEX A TO PLEDGE INSTRUCTION
FORM OF INITIAL TRANSACTION STATEMENT
THIS STATEMENT IS MERELY A RECORD OF THE RIGHTS OF THE ADDRESSEE
AS OF THE TIME OF ISSUANCE. DELIVERY OF THIS STATEMENT, OF ITSELF,
CONFERS NO RIGHTS ON THE RECIPIENT. THIS STATEMENT IS NEITHER A
NEGOTIABLE INSTRUMENT NOR A SECURITY.
NAME OF PLEDGOR:
ADDRESS OF PLEDGOR:
Tax ID or Social Security Number:
Bank of America, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
[Tax ID Number: ]
On , 2000, the undersigned, , in its capacity as managing general
partner of (in such capacity, the "Managing General Partner") caused the pledge
of ( %) of the outstanding partnership interests in ("Partnership Interest") by
(the "Pledgor"), in favor of Bank of America, N.A. (the "Pledgee"), in its
capacity as Administrative Agent for certain Lenders and as Secured Party under
that certain Pledge Agreement dated as of , 2000 (as the same may be amended,
modified, supplemented, or restated from time to time), to be registered on the
books and records of the Partnership. Except for the pledge in favor of the
Pledgee, to the knowledge of the undersigned (including, without limitation, any
information which may appear on the undersigned's books and records) there are
no liens, restrictions, or adverse claims to which the Partnership Interest is,
or may be, subject as of the date hereof.
By:
Name:
Title:
Exhibit D-2
4
EXHIBIT E
FORM OF COMPLIANCE CERTIFICATE
(Century Cable Holdings, LLC et al.)
DATE: ,
SUBJECT PERIOD: ended ,
ADMINISTRATIVE AGENT: Bank of America, N.A.
RESTRICTED BORROWERS: Century Cable Holdings, LLC, Ft. ▇▇▇▇▇
Cablevision, LLC, and
Highland Prestige Georgia, Inc.
This certificate is delivered under the Credit Agreement, dated as of
April 14, 2000 (as amended, modified, supplemented, or restated from time to
time, the "Credit Agreement"), among Restricted Borrowers, Bank of America, N.A.
and The Chase Manhattan Bank, as Co-Administrative Agents, and other Agents and
Lenders party thereto. Capitalized terms used herein and not otherwise defined
herein shall have the meaning given to such terms in the Credit Agreement.
The undersigned certifies to Lenders that:
(a) the undersigned is a Responsible Officer of each Restricted
Borrower in the position set forth under the signature below;
(b) the Financial Statements of the Companies attached to this
certificate were prepared in accordance with GAAP, and present fairly in all
material respects the combined financial condition and results of operations of
the Companies as of, and for the [three, six, or nine months, or fiscal year]
ended on,
, (the "Subject Period") [(subject only to normal
year-end audit adjustments)];
(c) the undersigned has reviewed the activities of the Companies during
the Subject Period, and during the Subject Period, (i) the Companies kept,
observed, performed, and fulfilled each and every covenant and condition of the
Loan Documents in all material respects, and (ii) no Default (nor any Potential
Default) has occurred which has not been cured or waived;
(d) the status of compliance by the Companies with Sections 9.12, 9.13,
9.20, 9.22, and 9.28 of the Credit Agreement at the end of the Subject Period is
as set forth on Annex A to this certificate;
(e) all Net Cash Proceeds from the disposition of any CATV System of
any Company required to be reinvested in property or assets of the Companies
during the Subject Period have been reinvested, and no mandatory prepayment is
required to be paid by Restricted Borrowers to Lenders pursuant to Section
3.3(b)(i) of the Credit Agreement; and
(f) during the Subject Period, each Schedule and Annex to each Loan
Document that was required to be revised and supplied to Administrative Agent in
accordance with the terms of the Loan Documents has been so revised and supplied
(including, without limitation, each Annex to each Pledge Agreement listing the
locations of Collateral).
Exhibit E
1
[Signature of Responsible Officer of Century Cable
Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision, LLC, and
Highland Prestige Georgia, Inc.]
By:
Name:
Title:
Exhibit E
2
ANNEX A TO COMPLIANCE CERTIFICATE
(Century Cable Holdings, LLC et al.)
Status of Compliance with
Sections 9.12, 9.13, 9.20, 9.22, and 9.28
of the Credit Agreement 1
[(Unless otherwise indicated, all calculations are to be made on
a consolidated basis for the Companies at the date of determination with
respect to the most recently-ended Rolling Period)]
Restricted Borrowers shall provide to Administrative Agent (for the
benefit of Lenders) detailed calculations, in form and substance reasonably
acceptable to Administrative Agent, demonstrating compliance with the following
covenants:
Section 9.12 Debt and Guaranties
Section 9.13 Liens
Section 9.20 Investments and Restricted Payments
Section 9.22 Sale of Assets
Section 9.28(a) - Leverage Ratio
Section 9.28(b) - Debt Service Coverage Ratio
Section 9.28(c) - Interest Coverage Ratio
1 All as more particularly determined in accordance with the terms of the
Credit Agreement, which control in the event of conflicts with this
form.
Exhibit E
3
EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
Reference is made to the Credit Agreement dated as of April 14, 2000
(as amended, modified, supplemented, or restated to the Effective Date [defined
below], the "Credit Agreement") among Century Cable Holdings, LLC, Ft. ▇▇▇▇▇
Cablevision, LLC, and Highland Prestige Georgia, Inc. ("Restricted Borrowers"),
Bank of America, N.A., as Administrative Agent for Lenders ("Administrative
Agent"), and other Agents and Lenders party thereto. Capitalized terms used
herein and not otherwise defined herein shall have the meanings assigned to such
terms in the Credit Agreement.
"Assignor" and "Assignee" referred to on Schedule 1 agree as follows:
1. Assignor hereby sells and assigns to Assignee, without recourse and
without representation or warranty except as expressly set forth herein, and
Assignee hereby purchases and assumes from Assignor, an interest in and to
Assignor's Rights and obligations under the Credit Agreement and the related
Loan Documents as of the Effective Date equal to the percentage interest
specified on Schedule 1 of all outstanding Rights and obligations with respect
to those Facilities under the Credit Agreement as set forth on Schedule 1 (each
an "Assigned Facility").
2. Assignor (a) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (b) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties, or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency,
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (c) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any party to any Loan
Document or the performance or observance by any such party of any of its
obligations under the Loan Documents or any other instrument or document
furnished pursuant thereto; and (d) attaches the Notes held by Assignor (to the
extent any of the Principal Debt being assigned and owed to Assignor is
evidenced by Notes) and requests that Administrative Agent exchange such Notes
for new Notes if so requested by either Assignor or Assignee. Any such new Notes
shall be prepared in accordance with the provisions of Sections 3.1(b) of the
Credit Agreement and will reflect the respective Committed Sums or Principal
Debt (for each Facility, as appropriate) of Assignee and Assignor after giving
effect to this Assignment and Acceptance Agreement.
3. Assignee (a) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance Agreement; (b) confirms that it has
received a copy of the Credit Agreement, together with copies of the Current
Financials and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Acceptance Agreement; (c) agrees that it will, independently and without
reliance upon Administrative Agent, Assignor, or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (d) confirms that it is an Eligible Assignee; (e) appoints
and authorizes Administrative Agent to take such action as Administrative Agent
on its behalf and to exercise such powers and discretion under the Credit
Agreement as are delegated to Administrative Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(f) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (g) attaches any U.S. Internal Revenue Service
or other forms required under Section 4.6(d) of the Credit Agreement.
4. Following the execution of this Assignment and Acceptance Agreement
by Assignor, Assignee, and Restricted Borrowers (to the extent required
hereunder), it will be delivered to Administrative
Exhibit F
1
Agent for acceptance and recording by Administrative Agent pursuant to the
Credit Agreement. The effective date for this Assignment and Acceptance
Agreement shall be the date described on Schedule 1 (the "Effective Date"),
which shall not, unless otherwise agreed to by Administrative Agent in its sole
discretion, be earlier than five Business Days from the date of such acceptance
and recording by Administrative Agent.
5. Upon such acceptance and recording by Administrative Agent, as of
the Effective Date, (a) Assignee shall be a party to the Credit Agreement and,
to the extent provided in this Assignment and Acceptance Agreement, have the
Rights and obligations of a Lender thereunder, and (b) Assignor shall, to the
extent provided in this Assignment and Acceptance Agreement, relinquish its
Rights and be released from its obligations under the Agreement.
6. Upon such acceptance and recording by Administrative Agent, from and
after the Effective Date, Administrative Agent shall make all payments under the
Credit Agreement, the Notes (to the extent any of the Principal Debt owed to
Assignee is evidenced by Notes), and loan accounts in respect of the interest
assigned hereby (including, without limitation, all payments of principal,
interest, and commitment fees and other fees with respect thereto) to Assignee.
Assignor and Assignee shall make all appropriate adjustments in payments under
the Credit Agreement and the other Loan Documents for periods prior to the
Effective Date directly between themselves.
7. Unless Assignee is a Lender, an Affiliate of any Lender, or an
Approved Fund of Assignor, this Assignment and Acceptance Agreement is
conditioned upon the consent of Administrative Agent and, unless a Default or
Potential Default then exists, Restricted Borrowers, pursuant to the definition
of "Eligible Assignee" in the Credit Agreement. The execution and delivery of
this Assignment and Acceptance Agreement by Restricted Borrowers and
Administrative Agent is evidence of this consent.
8. As contemplated by Section 13.12(b)(iv) of the Credit Agreement,
Assignor or Assignee (as determined between Assignor and Assignee) agrees to pay
to Administrative Agent for its account on the Effective Date in federal funds a
processing fee of $3,500 (unless Assignee is an existing Lender or an Affiliate
of an existing Lender).
9. THIS ASSIGNMENT AND ACCEPTANCE AGREEMENT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
10. This Assignment and Acceptance Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery of an
executed counterpart of Schedule 1 to this Assignment and Acceptance Agreement
by telecopier shall be effective as delivery of a manually executed counterpart
of this Assignment and Acceptance Agreement.
IN WITNESS WHEREOF, Assignor and Assignee have caused Schedule 1 to
this Assignment and Acceptance Agreement to be executed by their officers
thereunto duly authorized as of the date specified thereon.
Exhibit F
2
SCHEDULE 1
TO ASSIGNMENT AND ACCEPTANCE AGREEMENT
Assigned Facility Committed Sum or Commitment Percentage
Principal Debt (i.e. the proportion that Assignee's Committed
Assigned (as Sum to be acquired bears to the aggregate
applicable) Committed Sum of all Lenders) or Percentage
of Principal Debt assigned (i.e. the proportion
that the Principal Debt to be acquired by
Assignee bears to the aggregate Principal Debt
under the respective Facility)(set forth to at
least 8 decimal points)
Revolver Facility
Term Loan Facility
Discretionary Revolver
Loan+
Discretionary Term
Loan+
+ Describe specific Discretionary Loan
EFFECTIVE DATE OF ASSIGNMENT: *______________ ___, ______
By execution below Assignor and Assignee represent and warrant to Administrative
Agent and the Companies that this Assignment and Acceptance Agreement and the
assignment proposed to be effected hereby satisfies all the requirements of
Section 13.12(b) of the Credit Agreement.
[NAME OF ASSIGNOR], as Assignor By:
Name:
Title:
Date:
Address for Notice:
Attn:
Telephone:
Telecopier:
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance Agreement to Administrative Agent unless
otherwise agreed by Administrative Agent in its sole discretion.
Exhibit F
3
[NAME OF ASSIGNEE], as Assignee By:
Name:
Title:
Date:
Address for Notice:
Attn:
Telephone:
Telecopier:
Exhibit F
4
If Section 13.12(b) and clause (d) of the definition of "Eligible Assignee" of
the Credit Agreement so require, Restricted Borrowers and Administrative Agent
consent to this Assignment and Acceptance Agreement.
CENTURY CABLE HOLDINGS, LLC
By:
Name:
Title:
Date:
FT. ▇▇▇▇▇ CABLEVISION, LLC
By:
Name:
Title:
Date:
HIGHLAND PRESTIGE GEORGIA, INC.
By:
Name:
Title:
Date:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
Name:
Title:
Dated:
Exhibit F
5
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 1
EXHIBIT H
FORM OF AFFILIATE SUBORDINATION AGREEMENT
THIS AFFILIATE SUBORDINATION AGREEMENT is entered into as of , , among
Bank of America, N.A., in its capacity as Administrative Agent for the
benefit of Lenders (defined below), and , a __________________ [corporation]
("Subordinated Creditor"), and Century
Cable Holdings, LLC, Ft. ▇▇▇▇▇ Cablevision, LLC, and Highland Prestige
Georgia, Inc. ("Restricted Borrowers").
RECITALS
A.Restricted Borrowers, Bank of America, N.A., as Administrative Agent,
and certain other Agents and Lenders have entered into a Credit
Agreement, dated as of April 14, 2000 (as amended, modified,
supplemented, or restated from time to time, the "Credit
Agreement");
B.This Agreement is integral to the transactions contemplated by the Loan
Documents, and the execution and delivery thereof is a condition
precedent to Lenders' obligations to extend credit under the Loan
Documents;
ACCORDINGLY, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Administrative Agent, Subordinated
Creditor, and Restricted Borrowers agree as follows:
a.Unless otherwise defined herein, or the context hereof otherwise requires,
each term defined in the Credit Agreement is used in this Agreement with
the same meaning. As used herein, the following terms have
the meanings indicated:
Senior Debt means, whether now or hereafter arising, the Obligation,
including, without limitation, interest thereon after the
commencement of any proceedings under any Debtor Relief Law.
Subordinated Debt means the principal of and interest on all Debt of any
Restricted Borrower or any other Company, whether direct, indirect, fixed,
contingent, liquidated, unliquidated, joint, several, or joint and several,
now or hereafter existing, due, or to become due to Subordinated Creditor, or
held or to be held by
Subordinated Creditor, whether created directly or acquired by assignment
or otherwise, and whether evidenced by written instrument or not.
Exhibit G-1
1
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 2
b.The payment of any and all Subordinated Debt is hereby expressly
subordinated to all Senior Debt to the extent and in the manner set forth
in this Agreement.
c.Except as expressly set forth herein, Subordinated Creditor shall not
accelerate, demand, ▇▇▇ for, commence any collection or enforcement action
or proceeding, take, receive, accept, or retain any payment
or distribution of any character, whether in cash, securities, or other
property, in respect of the principal of, premium on, or interest on, the
Subordinated Debt, until all Senior Debt shall have been paid in full with
interest, including, without limitation, interest during any bankruptcy or
similar proceeding involving any
Company from the date of the filing thereof to the date of distribution
(notwithstanding any statute, including without limitation the Federal
Bankruptcy Code, any rule of Law, or bankruptcy procedures to
the contrary).
▇.▇▇ the event of the institution of and in connection with any
proceeding against any Restricted Borrower pursuant to any Debtor
Relief Law, and unless or until the Senior Debt is paid in full:
(a)All Senior Debt shall first be paid in full before any payment or
distribution of any character, whether in cash, securities, or
other property, shall be made in respect of any Subordinated Debt;
(b)Any payment or distribution of any character, whether in cash,
securities, or other property, which would otherwise (but for the terms
hereof) be payable or deliverable in respect of any Subordinated Debt,
shall be paid or delivered directly to Administrative Agent, for the benefit
of Lenders, until all Senior Debt shall have been paid in full, and
Subordinated Creditor irrevocably authorizes, empowers, and directs all
receivers, trustees, liquidators, conservators, and others having authority
to effect all such payments and deliveries;
(c)Administrative Agent, on behalf of Lenders, may, as attorney-in-fact
for Subordinated Creditor, take such action on behalf of Subordinated
Creditor, and Subordinated Creditor hereby appoints Administrative
Agent, on behalf of Lenders, as its attorney-in-fact, to demand, ▇▇▇ for,
collect, and receive any and all such moneys, dividends, or other assets and
give acquittance therefor and to file any claim, proof of claim,
or other instrument of similar character and to take such other
proceedings in the name of Subordinated Creditor as Administrative Agent
may deem necessary or advisable for the enforcement of this Agreement;
and
(d)Each Subordinated Creditor shall execute and deliver to
Administrative Agent, for the benefit of Lenders, all such further
instruments confirming the authorization referred to in the foregoing
clauses (b)
Exhibit G-1
2
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 3
and (c) and all such proofs of claim, assignments of claim, and other
instruments and shall take all such other actions as may be reasonably
requested by Administrative Agent in order to enable Administrative
Agent to enforce all Rights of Lenders and Administrative Agent
hereunder and all claims of Administrative Agent or any Lender upon or in
respect of the Subordinated Debt, and failing execution of
such instruments or taking of such actions by Subordinated Creditor,
Administrative Agent, for the benefit of Lenders, is hereby authorized
and empowered to execute and perform the same on behalf of such
Subordinated Creditor.
▇.▇▇ the event any payment or distribution of any character, whether in cash,
securities, or other property, is received by Subordinated Creditor in
contravention of the terms of this Agreement, and before all Senior
Debt shall have been paid in full, such payment or distribution shall be
held by such Subordinated Creditor, as trustee of an express trust, in trust
for the benefit of, and shall be paid over or delivered and
transferred to Administrative Agent for application to all Senior Debt
remaining unpaid until such Senior Debt shall have been paid in full. Each
Subordinated Creditor hereby assigns to Administrative Agent, for the
benefit of Lenders, all its Rights to any such payments or distributions,
which Administrative Agent
may exercise in Administrative Agent's name or in the name of such
Subordinated Creditor, and agrees to execute such instruments as may be
required by Administrative Agent to enable Administrative Agent, for the
benefit of Lenders, to enforce such claims. Any payments or distributions
received in excess of the
amount sufficient to pay all Senior Debt
in full shall be returned by
Administrative Agent to such
Subordinated Creditor.
2.Notwithstanding anything to the contrary contained in this
Agreement, Borrower may pay, and Subordinated Creditor may accept and
retain, payments of principal and interest on the Subordinated Debt;
provided that: (a) such payment is permitted pursuant to Section 9.20 of
the Credit Agreement, and (b) no
Default or Potential Default exists or arises as a
result thereof.
3.Administrative Agent or Lenders may, at any time and from time to
time, without the consent of or notice to Subordinated Creditor, without
incurring responsibility to Subordinated Creditor, and without impairing
or releasing any of Administrative Agent's Rights, or any of the
obligations of Subordinated Creditor hereunder, (a) change the amount,
manner, place, or terms of payment, or change or extend the
time of payment of or renew or alter all or any part of the Senior Debt or
amend, modify, supplement, or restate, any of the Loan Documents in any
manner whatsoever; (b) sell, exchange, release, or otherwise deal with all
or any part of any property by whomsoever at any time pledged or mortgaged
to secure, or howsoever securing, all or any part of the Senior Debt; (c)
release anyone liable in any manner for the
payment or collection of all or any part of the Senior Debt; (d) exercise
or refrain from exercising any Rights against Borrowers and others
(including the undersigned); and (e) apply any sums, by whomsoever
paid or however realized, to the Senior Debt.
Exhibit G-1
3
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 4
4.Notwithstanding anything to the contrary contained in any other
instrument or document delivered in connection with the Subordinated Debt or
otherwise, including, without limitation, any prior perfection of
a security interest or Lien, any security interests and Liens now or
hereafter held by Subordinated Creditor in any Collateral for the Subordinated
Debt shall be released in their entirety and to the extent not released
shall be junior and subordinate to any security interests and Liens now or
hereafter held by Administrative Agent, for the benefit of Lenders, in the
same Collateral. So long as the Senior Debt shall remain unpaid,
Administrative Agent may at all times in its sole discretion exercise any and
all powers and Rights which it now has or may hereafter acquire with respect
to any of the Collateral securing the Senior Debt, all without the necessity
of obtaining any consent or approval of Subordinated Creditor.
5.Each Subordinated Creditor represents and warrants that it is duly
organized, validly existing, and in good standing under the Laws of its
state of organization and has the power and authority under the Laws
of such state and under its articles of incorporation and bylaws or other
organizational documents to enter into this Agreement; all actions
necessary or appropriate for its execution and performance of this
Agreement have been taken and upon its execution, this Agreement will
constitute its valid and binding obligation enforceable in accordance
with its terms; and the making and performance of this Agreement
will not violate any Law or its articles of incorporation or bylaws or
other organizational documents, or result in any violation of or constitute a
default under any agreement by which it or any of its property is
bound except where the lack of
enforceability or such defaults
could not reasonably be expected
to be a Material Adverse Event.
6.This Agreement is a continuing agreement of subordination and Lenders
may continue to make loans to or otherwise accept the obligations of
Borrower in reliance hereon, without notice to Subordinated
Creditor.
7.While this Agreement remains in effect, each Subordinated Creditor
covenants and agrees that it will not (a) modify or amend or permit
modification or amendment of the terms and conditions of the Subordinated
Debt, without obtaining the prior written consent of
Administrative Agent, or (b) grant or permit the
granting of any security interest to secure the
Subordinated Debt.
▇.▇▇ amendment, waiver, or discharge to or under this Agreement is valid
unless it is in writing and is signed by the party against whom it is
sought to be enforced and is otherwise in conformity with the
requirements of Section 13.10 of the Credit Agreement. Each Subordinated
Creditor hereby waives all
notices with respect to the subject matter hereof, including, but not limited
to, notice of acceptance of this
Agreement, of the making of loans or advances to the Borrower or any
extensions, renewals, or modifications thereof, releases of collateral
security or guarantors or other indulgences of any character, or
of the occurrence or declaration of any default or the taking of any
collection or enforcement action. This Agreement shall be governed by
and construed according to the Laws of the State of New York.
Exhibit G-1
4
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 5
9.This Agreement inures to the benefit of Administrative Agent, Lenders,
and their respective successors and assigns, and the Rights under this
Agreement may be assigned in accordance with the terms of the
Loan Documents in whole or in part in connection with any partial or
complete assignment or transfer of
the Senior Debt. Administrative Agent is Administrative Agent for each
Lender, and Administrative
Agent may, without the joinder of any Lender, exercise any and all Rights
in favor of Lenders hereunder. The Rights of each Lender vis-a-vis
Administrative Agent and each other Lender may be subject to one or
more separate agreements between or among such parties, but Subordinated
Creditor need not inquire about any such agreement or be subject to any
terms thereof unless Subordinated Creditor specifically joins
therein; and, consequently, neither Subordinated Creditor nor its heirs,
personal representatives, successors, or assigns are entitled to any
benefits or provisions of any such separate agreements or are
entitled to rely upon or raise as a defense, in any manner whatsoever, the
failure or refusal of any party
thereto to comply with the provisions thereof. This Agreement binds
Subordinated Creditor and its
successors and assigns, and Subordinated Creditor will advise each future
holder of all or any part of the Subordinated Debt that the Subordinated
Debt is subordinated to the Senior Debt in the manner and to the extent set
forth in this Agreement.
10.This Agreement may be executed in a number of identical counterparts,
each of which is deemed an original for all purposes and all of which
constitute, collectively, one agreement; but, in making proof of
this Agreement, it is not necessary to produce or account for more than one
counterpart.
11.Subject to the provisions of this Agreement and the Rights of
Administrative Agent hereunder, as between Borrower and Subordinated
Creditor, nothing herein contained shall impair the obligation of
Borrower, which is absolute and unconditional to pay the Subordinated
Debt as and when the same shall become due and payable in accordance
with the terms thereof, or prevent Subordinated Creditor upon
default with respect to the Subordinated Debt,
from exercising all Rights, powers, and
remedies otherwise provided therein or by
applicable Law.
Remainder of Page Intentionally Blank.
Signature Page to Follow.
Exhibit G-1
5
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 6
EXECUTED on the date first stated in this Affiliate Subordination Agreement.
[SUBORDINATED CREDITOR]
By:
Name:
Title:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
Name:
Title:
Each Restricted Borrower (a) acknowledges and confirms that it has
received an executed copy of this Affiliate Subordination Agreement and
approves of and consents to it in all respects; and (b) agrees to be bound
by and to observe all of the terms and conditions of this Affiliate
Subordination Agreement.
CENTURY CABLE HOLDINGS, LLC
Affiliate Subordination Agreement
Signature Page
6
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 7
By:
Name:
Title:
HIGHLAND PRESTIGE GEORGIA, INC.
By:
Name:
Title:
FT. ▇▇▇▇▇ CABLEVISION, LLC
Affiliate Subordination Agreement
Signature Page
7
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 8
By:
Name:
Title:
Affiliate Subordination Agreement
Signature Page
8
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 1
EXHIBIT I
FORM OF MANAGEMENT FEE SUBORDINATION AGREEMENT
THIS MANAGEMENT FEE SUBORDINATION AGREEMENT is entered into as
of ,
, among Bank of America, N.A., in its capacity as Administrative
Agent for the benefit of Lenders (defined below), ,
a __________________ [corporation] ("Manager"), Century Cable Holdings, LLC,
Ft. ▇▇▇▇▇ Cablevision, LLC, and Highland Prestige Georgia, Inc. ("Restricted
Borrowers").
RECITALS
A.Restricted Borrowers, Bank of America, N.A., as Administrative Agent,
and certain other Agents and Lenders have entered into a Credit
Agreement, dated as of April 14, 2000 (as amended, modified,
supplemented, or restated from time to time, the "Credit Agreement");
B.This Agreement is integral to the transactions contemplated by the Loan
Documents, and the execution and delivery thereof is a condition
precedent to Lenders' obligations to extend credit under the Loan
Documents;
ACCORDINGLY, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, Administrative Agent, Manager,
and Restricted Borrowers agree as follows:
1.Unless otherwise defined herein, or the context hereof otherwise requires,
each term defined in the Credit Agreement is used in this Agreement with
the same meaning. As used herein, the following terms have the meanings
indicated: Senior Debt means, whether now or hereafter arising, the
Obligation, including, without limitation, interest thereon after the
commencement of any proceedings under any Debtor Relief Law.
Exhibit I
1
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 2
Subordinated Debt means all obligations of any Company with respect to any
Management Fee payable by any Company to the Manager; provided that
Management Fees (including Management Fees of the Companies that have
accrued but have not been paid) paid in accordance with the last sentence
of Section 9.29 of the Credit Agreement shall not be included in the
definition of "Subordinated Debt".
2.The payment of any and all Subordinated Debt is hereby expressly
subordinated to all Senior Debt to the extent and in the manner set forth
in this Agreement.
3.Except as expressly set forth herein, Manager shall not accelerate,
demand, ▇▇▇ for, commence any collection or enforcement action or
proceeding, take, receive, accept, or retain any payment or distribution of
any character, whether in cash, securities, or other property, in respect
of the principal of, premium on, or interest on, the Subordinated Debt,
until all Senior Debt shall have been paid in full with interest,
including, without limitation, interest during any bankruptcy or similar
proceeding involving any Company from the date of the filing thereof to the
date of distribution (notwithstanding any statute, including without
limitation the Federal Bankruptcy Code, any rule of Law, or bankruptcy
procedures to the contrary).
▇.▇▇ the event of the institution of and in connection with any
proceeding against any Restricted Borrower pursuant to any Debtor Relief
Law, and unless or until the Senior Debt is paid in full: (a)All Senior
Debt shall first be paid in full before any payment or distribution of any
character, whether in cash, securities, or other property, shall be made in
respect of any Subordinated Debt; (b)Any payment or distribution of any
character, whether in cash, securities, or other property, which would
otherwise (but for the terms hereof) be payable or deliverable in respect
of any Subordinated Debt, shall be paid or delivered directly to
Administrative Agent, for the benefit of Lenders, until all Senior Debt
shall have been paid in full, and Manager irrevocably authorizes, empowers,
and directs all receivers, trustees, liquidators, conservators, and others
having authority to effect all such payments and deliveries;
(c)Administrative Agent, on behalf of Lenders, may, as attorney-in-fact for
Manager, take such action on behalf of Manager, and Manager hereby appoints
Administrative Agent, on behalf of Lenders, as its attorney-in-fact, to
demand, ▇▇▇ for, collect, and receive any and all such moneys, dividends,
or other assets and give acquittance therefor and to file any claim, proof
of claim, or other instrument of similar character and to take such other
proceedings in the name of Manager as Administrative Agent may deem
necessary or advisable for the enforcement of this Agreement; and
Exhibit I
2
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 3
(d)Each Manager shall execute and deliver to Administrative Agent, for the
benefit of Lenders, all such further instruments confirming the
authorization referred to in the foregoing clauses (b) and (c) and all such
proofs of claim, assignments of claim, and other instruments and shall take
all such other actions as may be reasonably requested by Administrative
Agent in order to enable Administrative Agent to enforce all Rights of
Lenders and Administrative Agent hereunder and all claims of Administrative
Agent or any Lender upon or in respect of the Subordinated Debt, and
failing execution of such instruments or taking of such actions by Manager,
Administrative Agent, for the benefit of Lenders, is hereby authorized and
empowered to execute and perform the same on behalf of such Manager.
▇.▇▇ the event any payment or distribution of any character, whether in cash,
securities, or other property, is received by Manager in contravention of
the terms of this Agreement, and before all Senior Debt shall have been
paid in full, such payment or distribution shall be held by such Manager,
as trustee of an express trust, in trust for the benefit of, and shall be
paid over or delivered and transferred to Administrative Agent for
application to all Senior Debt remaining unpaid until such Senior Debt
shall have been paid in full. Each Manager hereby assigns to Administrative
Agent, for the benefit of Lenders, all its Rights to any such payments or
distributions, which Administrative Agent may exercise in Administrative
Agent's name or in the name of such Manager, and agrees to execute such
instruments as may be required by Administrative Agent to enable
Administrative Agent, for the benefit of Lenders, to enforce such claims.
Any payments or distributions received in excess of the amount sufficient
to pay all Senior Debt in full shall be returned by Administrative Agent to
such Manager.
6.Notwithstanding anything to the contrary contained in this Agreement,
Borrower may pay, and Manager may accept and retain, payments of Management
Fees; provided that such payment is permitted pursuant to Section 9.29 of
the Credit Agreement.
7.Administrative Agent or Lenders may, at any time and from time to
time, without the consent of or notice to Manager, without incurring
responsibility to Manager, and without impairing or releasing any of
Administrative Agent's Rights, or any of the obligations of Manager
hereunder, (a) change the amount, manner, place, or terms of payment, or
change or extend the time of payment of or renew or alter all or any part
of the Senior Debt or amend, modify, supplement, or restate, any of the
Loan Documents in any manner whatsoever; (b) sell, exchange, release, or
otherwise deal with all or any part of any property by whomsoever at any
time pledged or mortgaged to secure, or howsoever securing, all or any part
of the Senior Debt; (c) release anyone liable in any manner for the payment
or collection of all or any part of the Senior Debt; (d) exercise or
refrain from exercising any Rights against Borrowers and others (including
the undersigned); and (e) apply any sums, by whomsoever paid or however
realized, to the Senior Debt.
8.Notwithstanding anything to the contrary contained in any other
instrument or document delivered in connection with the Subordinated Debt
or otherwise, including, without limitation, any prior perfection of
Exhibit I
3
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 4
a security interest or Lien, any security interests and Liens now or
hereafter held by Manager in any Collateral for the Subordinated Debt shall
be released in their entirety and to the extent not released shall be
junior and subordinate to any security interests and Liens now or hereafter
held by Administrative Agent, for the benefit of Lenders, in the same
Collateral. So long as the Senior Debt shall remain unpaid, Administrative
Agent may at all times in its sole discretion exercise any and all powers
and Rights which it now has or may hereafter acquire with respect to any of
the Collateral securing the Senior Debt, all without the necessity of
obtaining any consent or approval of Manager.
9.Each Manager represents and warrants that it is duly organized, validly
existing, and in good standing under the Laws of its state of organization
and has the power and authority under the Laws of such state and under its
articles of incorporation and bylaws or other organizational documents to
enter into this Agreement; all actions necessary or appropriate for its
execution and performance of this Agreement have been taken and upon its
execution, this Agreement will constitute its valid and binding obligation
enforceable in accordance with its terms; and the making and performance of
this Agreement will not violate any Law or its articles of incorporation or
bylaws or other organizational documents, or result in any violation of or
constitute a default under any agreement by which it or any of its property
is bound except where the lack of enforceability or such defaults could not
reasonably be expected to be a Material Adverse Event.
10.This Agreement is a continuing agreement of subordination and Lenders
may continue to make loans to or otherwise accept the obligations of
Borrower in reliance hereon, without notice to Manager.
11.While this Agreement remains in effect, each Manager covenants and
agrees that it will not (a) modify or amend or permit modification or
amendment of the terms and conditions of the Subordinated Debt, without
obtaining the prior written consent of Administrative Agent, or (b) grant
or permit the granting of any security interest to secure the Subordinated
Debt.
▇▇.▇▇ amendment, waiver, or discharge to or under this Agreement is valid
unless it is in writing and is signed by the party against whom it is
sought to be enforced and is otherwise in conformity with the requirements
of Section 13.10 of the Credit Agreement. Each Manager hereby waives all
notices with respect to the subject matter hereof, including, but not
limited to, notice of acceptance of this Agreement, of the making of loans
or advances to the Borrower or any extensions, renewals, or modifications
thereof, releases of collateral security or guarantors or other indulgences
of any character, or of the occurrence or declaration of any default or the
taking of any collection or enforcement action. This Agreement shall be
governed by and construed according to the Laws of the State of New York.
Exhibit I
4
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 5
13.This Agreement inures to the benefit of Administrative Agent, Lenders,
and their respective successors and assigns, and the Rights under this
Agreement may be assigned in accordance with the terms of the
Loan Documents in whole or in part in connection with any partial or
complete assignment or transfer of the Senior Debt. Administrative Agent is
Administrative Agent for each Lender, and Administrative Agent may, without
the joinder of any Lender, exercise any and all Rights in favor of Lenders
hereunder. The Rights of each Lender vis-a-vis Administrative Agent and
each other Lender may be subject to one or more separate agreements between
or among such parties, but Manager need not inquire about any such
agreement or be subject to any terms thereof unless Manager specifically
joins therein; and, consequently, neither Manager nor its heirs, personal
representatives, successors, or assigns are entitled to any benefits or
provisions of any such separate agreements or are entitled to rely upon or
raise as a defense, in any manner whatsoever, the failure or refusal of any
party thereto to comply with the provisions thereof. This Agreement binds
Manager and its successors and assigns, and Manager will advise each future
holder of all or any part of the Subordinated Debt that the Subordinated
Debt is subordinated to the Senior Debt in the manner and to the extent set
forth in this Agreement.
14.This Agreement may be executed in a number of identical counterparts,
each of which is deemed an original for all purposes and all of which
constitute, collectively, one agreement; but, in making proof of this
Agreement, it is not necessary to produce or account for more than one
counterpart.
15.Subject to the provisions of this Agreement and the Rights of
Administrative Agent hereunder, as between Borrower and Manager, nothing
herein contained shall impair the obligation of Borrower, which is absolute
and unconditional to pay the Subordinated Debt as and when the same shall
become due and payable in accordance with the terms thereof, or prevent
Manager upon default with respect to the Subordinated Debt, from exercising
all Rights, powers, and remedies otherwise provided therein or by
applicable Law.
Remainder of Page Intentionally Blank.
Signature Page to Follow.
Exhibit I
5
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 6
EXECUTED on the date first stated in this Management Fee
Subordination Agreement.
[MANAGER]
By:
Name:
Title:
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
Name:
Title:
Each Restricted Borrower (a) acknowledges and confirms that it has
received an executed copy of this Affiliate Subordination Agreement and
approves of and consents to it in all respects; and (b) agrees to be bound
by and to observe all of the terms and conditions of this Affiliate
Subordination Agreement.
CENTURY CABLE HOLDINGS, LLC
Management Fee Subordination Agreement
Signature Page
6
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 7
By:
Name:
Title:
HIGHLAND PRESTIGE GEORGIA, INC.
By:
Name:
Title:
FT. ▇▇▇▇▇ CABLEVISION, LLC
Management Fee Subordination Agreement
Signature Page
7
Bank of America, N.A., as Administrative Assistant
Each Lender under the Credit Agreement
April 14, 2000
Page 8
By:
Name:
Title:
Management Fee Subordination Agreement
Signature Page
8