EXHIBIT 10.03
CREDIT AGREEMENT,
dated as of December 30, 1998,
among
PARNASSOS, L.P.
as the Borrower,
VARIOUS FINANCIAL INSTITUTIONS
as the Lenders,
THE BANK OF NOVA SCOTIA
as the Administrative Agent,
NATIONSBANK, N.A.
as the Documentation Agent,
and
TD SECURITIES (USA) INC.
as the Syndication Agent.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 30, 1998, is among
PARNASSOS, L.P., a Delaware limited partnership (the "Borrower"), the various
financial institutions as are or may become parties hereto (collectively, the
"Lenders"), THE BANK OF NOVA SCOTIA ("Scotiabank"), as administrative agent (in
such capacity, the "Administrative Agent"), NATIONSBANK, N.A. ("NationsBank"),
as documentation agent (in such capacity, the "Documentation Agent"), TD
SECURITIES (USA) INC. ("TD"), as syndication agent (in such capacity, the
"Syndication Agent") and each Managing Agent and each Co-Agent listed herein.
WITNESSETH:
WHEREAS, pursuant to the terms of this Agreement, the Borrower desires
to obtain Commitments pursuant to which
(a) Revolving Loans will be made by the Revolving Loan Lenders
from time to time prior to the Revolving Loan Commitment Termination
Date;
(b) Letters of Credit will be issued for the account of the
Borrower by one or more of the Issuers from time to time prior to the
Revolving Loan Commitment Termination Date; and
(c) Term Loans will be made on the Initial Funding Date by the
Term Loan Lenders; and
WHEREAS, the Lenders and the Issuers are willing, on the terms and
subject to the conditions set forth in this Agreement, to extend such
Commitments and make such Loans and issue (or participate in) Letters of Credit;
NOW, THEREFORE, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"ACC" means Adelphia Communications Corporation, a Delaware
corporation.
"ACI" means Adelphia Cablevision, Inc., a Pennsylvania corporation.
"Acquisition" means any transaction, or any series of related
transactions by which the Borrower or any of its Restricted Subsidiaries (i)
acquires any business (whether through the purchase of equity interests, merger
or otherwise) or all or substantially all of the assets of any Person or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
equity interests of a Person (other than a corporation) following which such
corporation or Person is consolidated with the Borrower in accordance with GAAP.
"Active Plant" means a coaxial or fiber optic television cable,
together with all amplifiers and electronics, which has been connected to a Head
End and has been energized and which is capable of carrying television signals
to subscribers with only the addition of a drop line from such television cable
to the Homes of such subscribers.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4.
"Administrative Agent's Fee Letter" means the confidential fee letter,
dated October 26, 1998, from Scotiabank to the Borrower and acknowledged and
agreed to by the Borrower, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any Plan). A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power
(a) to vote 35% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or
managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether through the ownership of voting
securities, by contract or otherwise.
"Affiliate Indebtedness" means (i) the unsecured Indebtedness which is
subordinated to the Obligations (excluding Intercompany Indebtedness) incurred
by the Borrower or a Restricted Subsidiary and payable to an Affiliate of the
Borrower or a Restricted Subsidiary in accordance with the terms of the
Intercompany Subordination Agreement, and (ii) the unsecured Management Fees
payable in accordance with the terms of the Manager Subordination Agreement,
subordinated (in each case) on (among others), the following terms:
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(a) in the event of a Default under Section 8.1.9, the
Lenders, the Issuers and the Administrative Agent shall (i) have the
right to file a claim on behalf of the holders of such Affiliate
Indebtedness and collect and receive all such payments, (ii) be
irrevocably granted a power of attorney to act on behalf of such
holders of the Affiliate Indebtedness, and (iii) be granted a security
interest in any dividend or distribution resulting from a proceeding of
the type described in Section 8.1.9;
(b) if (prior to payment in full of the Obligations in cash),
any holder of the Affiliate Indebtedness receives any payment (other
than as permitted pursuant to Sections 7.2.6, 7.2.14 and 7.2.15) in
respect of such Affiliate Indebtedness or a Lien on (or security
interest in) any assets of any Obligor, such payment or security shall
be delivered to the Administrative Agent; and
(c) such Affiliate Indebtedness will not have the benefit of
any cross-defaults or cross-accelerations with any other Indebtedness.
"Aggregate Capital Contribution Amount" means the aggregate amount of
Capital Contributions made following the Effective Date to the Borrower less,
without duplication, the sum of the aggregate amount of (i) any such Capital
Contributions used by the Borrower or any of its Subsidiaries since the
Effective Date, either directly or indirectly, to make Capital Expenditures or
to pay Management Fees pursuant to clause (b) of Section 7.2.15 and (ii)
Restricted Payments made on or subsequent to the Effective Date in accordance
with clause (b)(i) of Section 7.2.6.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time further
amended, supplemented, amended and restated or otherwise modified and in effect
on such date.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum (rounded upwards, if
necessary, to the next highest 1/16th of 1%) equal to the higher of
(a) the Base Rate in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus 1/2 of
1%.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Borrower
and the Lenders of changes in the Alternate Base Rate; provided that the failure
to give such notice shall not affect the Alternate Base Rate in effect after
such change.
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"Annualized Operating Cash Flow" means, on any date and with respect to
the Borrower and its Restricted Subsidiaries, the product of (i) the Operating
Cash Flow for the Borrower and such Restricted Subsidiaries for the most
recently ended Fiscal Quarter multiplied by (ii) four.
"Applicable Commitment Fee Margin" means at all times during the
applicable periods set forth below with respect to the fee payable pursuant to
Section 3.3.1, the applicable percentage set forth below under the column
entitled "Applicable Commitment Fee Margin":
Leverage Applicable Commitment
Ratio Fee Margin
--------------------- ---------------------
Greater than or 0.375%
equal to 4.50:1
less than 4.50:1 0.250%
The Leverage Ratio used to compute the Applicable Commitment Fee Margin shall be
that set forth in the Compliance Certificate most recently delivered by the
Borrower to the Administrative Agent; changes in the Applicable Commitment Fee
Margin resulting from a change in the Leverage Ratio shall become effective upon
the second Business Day occurring after the earlier of (i) the date that the
Borrower is required to deliver or (ii) the date that the Borrower actually
delivers, in each case, a Compliance Certificate pursuant to clause (c) of
Section 7.1.1.
"Applicable Margin" means, with respect to any Loan of any type, the
margin set forth below opposite the Leverage Ratio as in effect at the end of
the immediately preceding Fiscal Quarter and under the column designated for
such Loan, as follows:
Applicable Margin
-----------------
Base Rate LIBO Rate
Leverage Ratio Loans Loans
-------------- ----- -----
Greater than or equal to 1.000% 2.000%
6.25:1
Greater than or equal to 0.875% 1.875%
6.00:1 but less than
6.25:1
Greater than or equal to 0.625% 1.625%
5.75:1 but less than
6.00:1
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Applicable Margin
-----------------
Base Rate LIBO Rate
Leverage Ratio Loans Loans
-------------- ----- -----
Greater than or equal to 0.250% 1.250%
5.25:1 but less than
5.75:1
Greater than or equal to 0.000% 1.000%
4.75:1 but less than
5.25:1
Less than 4.75:1 0.000% 0.750%
Notwithstanding anything to the contrary set forth in this Agreement (including
the then effective Leverage Ratio), the Applicable Margin for all Loans from the
Effective Date through (and including) the sixth-month anniversary of the
Effective Date shall be the highest Applicable Margin set forth above. Following
the sixth-month anniversary of the Effective Date, the Leverage Ratio used to
compute the Applicable Margin shall be the Leverage Ratio set forth in the
Compliance Certificate most recently delivered by the Borrower to the
Administrative Agent; changes in the Applicable Margin resulting from a change
in the Leverage Ratio shall become effective upon the second Business Day
occurring after the earlier of (i) the date that the Borrower is required to
deliver or (ii) the date that the Borrower actually delivers, in each case, a
Compliance Certificate pursuant to clause (c) of Section 7.1.1.
"Approvals" is defined in Section 8.1.13.
"Approved Accounting Firm" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Deloitte & Touche
LLP, Ernst & Young LLP, Pricewaterhouse Coopers LLP or KPMG Peat Marwick LLP, or
any successor thereof.
"Arranging Agents" means, collectively, the Administrative Agent, the
Syndication Agent and the Documentation Agent.
"Arranging Agents' Fee Letter" means the confidential fee letter, dated
October 26, 1998, among Scotiabank, TD, NationsBank and the Borrower, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
"Asset Swap" means any exchange of assets (including Cable Systems) of
the Borrower or any of its Restricted Subsidiaries, whether in a single
transaction or a series of related transactions, to any other Person (including
an Unrestricted Subsidiary) for assets which are similar in all material
respects.
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"Assignee Lender" is defined in Section 10.11.1.
"Authorized Officer" means, relative to any Obligor, those of its
officers, managing member or general partners, as the case may be, whose
signatures and incumbency shall have been certified to the Administrative Agent
and the Lenders pursuant to Section 5.1.1 hereof.
"Base Rate" means, at any time, the rate of interest then most recently
established by the Administrative Agent in New York as its base rate for U.S.
dollars loaned in the United States. The Base Rate is not necessarily intended
to be the lowest rate of interest determined by the Administrative Agent in
connection with extensions of credit.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Basic Subscriber Fee" means the minimum standard monthly fees and
charges for "basic service" (as such term is commonly understood in the cable
television industry) charged to customers of any Cable System.
"Basic Subscribers" means, at any time, all subscribers subscribing to
any Cable System (excluding "second connects" as such term is commonly
understood in the cable television industry) (i) who pay the Basic Subscriber
Fee for service and (ii) whose accounts are not more than 60 days past due in
payment. In the case of commercial buildings, such as hotels or motels, or in
the case of multiple residential dwellings, such as apartment houses and
multifamily homes, which do not obtain reduced bulk service rates, each separate
guest unit or dwelling unit receiving service shall be counted as one
subscriber. The number of subscribers in a commercial building or in a multiple
residential dwelling which obtains a reduced bulk service rate shall be computed
by dividing (x) the aggregate Dollar amount of monthly subscriber's fees paid on
account of such commercial building or multiple residential dwelling for basic
service by (y) the Basic Subscriber Fee.
"Borrower" is defined in the preamble.
"Borrower Management Agreement" means the Management Services
Agreement, dated as of December 30, 1998, by and between the Borrower and ACI,
as such agreement may be amended, supplemented, amended and restated or
otherwise modified from time to time.
"Borrower Management Fees" means the aggregate amount of management
fees payable by the Borrower to the Manager pursuant to the Borrower Management
Agreement.
"Borrower Pledge Agreement" means a Pledge Agreement executed and
delivered by an Authorized Officer of the Borrower, substantially in the form of
Exhibit H-2 hereto, delivered pursuant to the terms of this Agreement, as
amended, supplemented, amended and restated or otherwise modified from time to
time.
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"Borrowing" means the Loans of the same type and, in the case of LIBO
Rate Loans, having the same Interest Period made by all Lenders on the same
Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.3.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of the Borrower, substantially in the form of Exhibit
B-1 hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York, New York; and
(b) relative to the making, continuing, prepaying or repaying
of any LIBO Rate Loans, any day which is a Business Day described in
clause (a) above and which is also a day on which dealings in Dollars
are carried on in the interbank eurodollar market of the Administrative
Agent's LIBOR Office.
"Cable Systems" means the assets of any Person constituting a CATV
System or SMATV System (including all related FCC Licenses, Franchises and
permits issued under federal, state or local laws from time to time, and all
agreements with public utilities and microwave transmission companies, pole
attachment agreements, use agreements, access or rental agreements (including
Pole Agreements and Pole Rental Leases), utility easements and all other
property owned or used in connection with the entertainment, information and
data carriage, advertising or other services provided pursuant to, and all
interest of the holder thereof to receive revenues from, or pursuant to, said
FCC Licenses, Franchises and permits) and owned or operated by such Person in
connection with providing entertainment and other services to subscribers within
a geographical area covered by one or more Franchises from the same Head End
facility or by two or more related Head End facilities.
"Capital Contribution" means the aggregate amount of (a) any cash
capital contribution made in, and (b) the principal amount of any Affiliate
Indebtedness incurred by, the Borrower or a Restricted Subsidiary after the
Effective Date from, in either case, ACC, the Rigas Family, any Partner or any
Affiliate of any of the foregoing.
"Capital Expenditures" means, for any period, the sum of (a) the
aggregate amount of all expenditures of the Borrower and its Restricted
Subsidiaries for fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital expenditures less (b) the
aggregate amounts of Capital Contributions received by the Borrower and its
Restricted Subsidiaries in order to finance all such expenditures; provided that
such payments were included in the calculations of the financial covenants
certified to by the Borrower in the most recently delivered Compliance
Certificate.
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"Capital Security" means
(a) any share, membership, partnership or other percentage
interest, unit of participation, membership interests or limited
liability company interests in any limited liability company or in each
case other equivalent (however designated) of a corporate equity
security or other equity interest in a Person; and
(b) any debt security or other evidence of Indebtedness which
is convertible into or exchangeable for, or any option, warrant or
other right to acquire, any Capital Security of any type referred to in
clause (a) of this definition.
"Capitalized Lease Liabilities" means all monetary obligations of the
Borrower or any of its Restricted Subsidiaries under any leasing or similar
arrangement which have been (or, in accordance with GAAP, should be) classified
as capitalized leases, and for purposes of each Loan Document the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP, and the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a premium or
a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any direct obligation of (or unconditionally guaranteed
by) the United States of America or a State thereof (or any agency or
political subdivision thereof, to the extent such obligations are
supported by the full faith and credit of the United States of America
or a State thereof) maturing not more than one year after such time;
(b) commercial paper maturing not more than 270 days from the
date of issue, which is issued by a corporation (other than an
Affiliate of any Obligor) organized under the laws of any State of the
United States or of the District of Columbia and rated A-1 or higher by
S&P or P-1 or higher by ▇▇▇▇▇'▇;
(c) any certificate of deposit maturing not more than one year
after its date of issuance, which is issued by either (i) any bank
organized under the laws of the United States (or any State thereof)
and which has a certificate of deposit rating equal to one of the two
highest ratings by ▇▇▇▇▇'▇ or S&P, or (ii) any Lender;
(d) any repurchase agreement having a term of 30 days or less
entered into with any Lender or any commercial banking institution
satisfying the criteria set forth in clause (c)(i) which (i) is secured
by a fully perfected security interest in any obligation of the type
described in clause (a), and (ii) has a market value at the time such
repurchase agreement is entered into of not less than 100% of the
repurchase obligation of such commercial banking institution
thereunder; or
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(e) debt securities with a remaining maturity not exceeding
one year issued by any Person organized under the laws of any state of
the United States of America or of the District of Columbia, which
securities are rated within the two highest rating categories by S&P or
▇▇▇▇▇'▇.
"CATV System" means any Cable System that is a community antenna
television system as such term is commonly understood in the cable television
industry.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) the failure of ACC to own, directly or indirectly, 51% or
more of the Capital Securities (of the type described in clause (a) of
the definition of Capital Securities) of the Borrower under ordinary
circumstances (not dependent on any contingency) having voting power;
(b) the failure of ACC or any of its Affiliates to be the only
managing general partner of the Borrower; or
(c) the failure of the Rigas Family to control, directly or
indirectly, more than 50% of the total number of votes that holders of
ACC's Capital Securities (of the type described in clause (a) of the
definition of Capital Securities) are then entitled to vote (which, on
the Effective Date, consist of the Class "A" common stock and Class "B"
common stock of ACC).
"Closing Date Certificate" means the closing date certificate executed
and delivered by the Borrower pursuant to the terms of this Agreement,
substantially in the form of Exhibit F hereto.
"Co-Agent" means Bayerische Hypo-und Vereinsbank AG, New York Branch,
Dresdner Bank AG, New York & Grand Cayman Branches, MeesPierson Capital Corp.,
The Bank of New York Company Inc. and ▇▇▇▇▇▇ Brothers Inc.
"Code" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
"Commitment" means, as the context may require, a Term Loan Commitment,
Revolving Loan Commitment or Letter of Credit Commitment.
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"Commitment Amount" means, as the context may require, the Term Loan
Commitment Amount, the Revolving Loan Commitment Amount or the Letter of Credit
Commitment Amount.
"Commitment Notice" is defined in Section 2.8.
"Commitment Termination Date" means, as the context may require, the
Term Loan Commitment Termination Date or the Revolving Loan Commitment
Termination Date.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default with respect to the
Borrower described in clauses (a) through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of all or any portion of the
Loans to be due and payable pursuant to Section 8.3, or
(ii) the giving of notice by the Administrative
Agent, acting at the direction of the Required Lenders, to the
Borrower that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit E hereto, together with such changes thereto as the Administrative Agent
may from time to time request for the purpose of monitoring the Borrower's
compliance with the financial covenants contained herein.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the Indebtedness of any
other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of any Person's obligation under any
Contingent Liability shall (subject to any limitation set forth therein) be
deemed to be the outstanding principal amount of the debt, obligation or other
liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
Borrower, substantially in the form of Exhibit C hereto.
"Contributed Property" is defined in clause (b) of Section 7.2.6.
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"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414(b) or 414(c) of the
Code or Section 4001 of ERISA.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension of
any Stated Expiry Date of any existing Letter of Credit, by an Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Credit Party" means, collectively, the Lenders, the Issuers and the
Arranging Agents and, in each case, each of their respective successors,
transferees and assigns.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented, amended and restated or
otherwise modified from time to time by the Borrower with the written consent of
the Required Lenders.
"Disposition" (or correlative words such as "Dispose") means any sale,
transfer (including Asset Swaps and Restricted Payments permitted pursuant to
clause (b)(ii) of Section 7.2.6), lease, contribution or other conveyance
(including by way of merger) of, or the granting of options, warrants or other
rights to, any of the Borrower's or its Restricted Subsidiaries' assets
(including accounts receivables, Capital Securities of Restricted Subsidiaries,
Franchises and FCC Licenses) to any other Person in a single transaction or
series of related transactions.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such Lender's "Domestic Office" set forth opposite its name
on Schedule II hereto or in a Lender Assignment Agreement, or such other office
of a Lender (or any successor or assign of such
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Lender) within the United States as may be designated from time to time by
notice from such Lender, as the case may be, to each other Person party hereto.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 10.8.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to the protection of public
health and safety with respect to Hazardous Materials and protection of the
environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections thereto.
"Event of Default" is defined in Section 8.1.
"Excess Cash Balance" means, on any date of determination, the sum of
unencumbered cash and Cash Equivalent Investments then held in the name of the
Borrower or its Restricted Subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exemption Certificate" is defined in clause (e) of Section 4.6.
"Existing Assets" means assets (including Cable Systems) owned by the
Borrower on the Effective Date (including as such assets may from time to time
be Disposed of to Restricted Subsidiaries).
"Fair Market Value" means, in respect of any assets or group of assets,
fair market value for such assets as determined in good faith (using reasonable
methods) by the Borrower.
"FCC" means the Federal Communications Commission or any successor
agency thereto.
"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 period, a fluctuating interest rate
per annum equal for each day during such period to
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(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by Scotiabank from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" means the Administrative Agents' Fee Letter and/or the
Arranging Agents' Fee Letter, as applicable.
"Fiscal Quarter" means a quarter ending on the last day of March, June,
September or December.
"Fiscal Year" means any period of twelve consecutive calendar months
ending (initially) on March 31; references to a Fiscal Year with a number
corresponding to any calendar year (e.g., the "1999 Fiscal Year") refer
(initially) to the Fiscal Year ending on March 31 of such calendar year;
provided, however, that notwithstanding the foregoing, upon no less than 10
Business Days' prior notice to the Administrative Agent the Borrower may change
its Fiscal Year to a period of twelve consecutive calendar months ending on
December 31.
"Fixed Charge Coverage Ratio" means
(a) as of the close of the Fiscal Quarter ended (i) March 31,
2001, the ratio computed for the period consisting of such Fiscal
Quarter, (ii) June 30, 2001, the ratio computed for the period
consisting of such Fiscal Quarter and the immediately preceding Fiscal
Quarter, and (iii) September 30, 2001, the ratio computed for the
period consisting of such Fiscal Quarter and the two immediately
preceding Fiscal Quarters of (i) Operating Cash Flow (for such Fiscal
Quarter or Fiscal Quarters) to (ii) Fixed Charges (for such Fiscal
Quarter or Fiscal Quarters); and
(b) as of the close of any Fiscal Quarter ending subsequent to
September 30, 2001, the ratio of (i) Annualized Operating Cash Flow to
(ii) Fixed Charges (in the case of this clause (b)(ii), for such Fiscal
Quarter and each of the three immediately preceding Fiscal Quarters).
"Fixed Charges" means, without duplication, for the period in question
and with respect to the Borrower and its Restricted Subsidiaries, the sum of (i)
all Interest Expense, (ii) the aggregate outstanding principal amount of the
Revolving Loans plus Letter of Credit Outstandings at the beginning of any
period of determination less the Revolving Loan Commitment Amount that will be
in effect at the end of such period (which amount under this clause (ii) shall
be deemed to never be less than zero), (iii) the aggregate amount of Term Loans
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scheduled to be repaid pursuant to clause (d) of Section 3.1.1 during such
period, (iv) all fees owed pursuant to Section 3.3, (v) all Capital Expenditures
of the Borrower and its Restricted Subsidiaries, and (vi) all federal, state and
foreign income taxes actually paid in cash by the Borrower and its Restricted
Subsidiaries.
"Franchise" means any franchise, permit, license or other authorization
granted by any governmental unit or authority, including all laws, regulations
and ordinances relating thereto, for the construction, operation or maintenance
of a system to receive or distribute, or both, by cable, satellite or other
technology, audio and visual signals within a geographic area, and shall
include, without limitation, all FCC Licenses and all certificates of compliance
and cable television registration statements which are required to be issued by
or filed with the FCC or any state, county, city, town, village or local
governmental authority in connection with the ongoing operation of business by
the Borrower and its Subsidiaries.
"Franchise Agreement" means all ordinances, agreements, contracts and
all other documents stating the terms and conditions of any Franchise, including
all exhibits and schedules thereto, all amendments thereto, all consents,
waivers and extensions issued in connection therewith, all documents
incorporated therein by reference and the application pursuant to which any
Franchise was granted.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantees" means, collectively, the Subsidiary Guaranty and each
other guaranty delivered from time to time in respect of the Obligations.
"Guarantor" means, collectively, each Subsidiary Guarantor.
"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended; or
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(c) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance (including any petroleum product)
within the meaning of any other applicable federal, state or local law,
regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards
of conduct concerning any hazardous, toxic or dangerous waste,
substance or material, all as amended.
"Head End" means the site and related facilities and equipment used as
the head end for a Cable System, including the antenna site, the tower and the
antenna, the microwave communications equipment, the earth station and the head
end facilities.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under currency exchange agreements, interest rate
swap agreements, interest rate cap agreements and interest rate collar
agreements, and all other agreements or arrangements designed to protect such
Person against fluctuations in interest rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Home" means a single residential dwelling or commercial building which
can be connected by a single drop line. In the case of multiple residential
dwellings, such as apartment houses and multi-family homes, which do not obtain
reduced bulk service rates, each separate dwelling unit shall be counted as one
Home. The number of Homes in a multiple residential dwelling which does obtain a
reduced bulk service rate shall be the number of Basic Subscribers for such
multiple residential dwelling.
"Home Passed" means a Home which can be connected by a single drop line
from an Active Plant.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Borrower and its Restricted Subsidiaries on a consolidated basis, any
qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such
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item the effect of which would be to cause the Borrower to be in
default of any of its obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Incremental Facility" is defined in Section 2.8.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or
advances and all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities of such Person;
(d) for purposes of Section 8.1.5 only, all other items which,
in accordance with GAAP, would be included as liabilities on the
liability side of the balance sheet of such Person as of the date at
which Indebtedness is to be determined;
(e) net liabilities of such Person under all Hedging
Obligations;
(f) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services excluding trade accounts payable in the
ordinary course of business which are not overdue for a period of more
than 90 days or, if overdue for more than 90 days, as to which a
dispute exists and adequate reserves in conformity with GAAP have been
established on the books of such Person, and indebtedness secured by
(or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) a Lien on property owned or
being acquired by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited
in recourse;
(g) obligations arising under Synthetic Leases; and
(h) all Contingent Liabilities of such Person in respect of
any of the foregoing.
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For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Initial Funding Date" is defined in Section 2.1.3.
"Intercompany Indebtedness" means unsecured Indebtedness permitted by
clause (j) of Section 7.2.2 subordinated pursuant to the Intercompany
Subordination Agreement.
"Intercompany Subordination Agreement" means the Intercompany
Subordination Agreement executed by the Borrower, each Partner, each Restricted
Subsidiary and/or an Affiliate of the Borrower substantially in the form of
Exhibit G-1 hereto, as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with its terms.
"Interest Coverage Ratio" means (as of the last day of any Fiscal
Quarter) the ratio of:
(a) Operating Cash Flow (for such Fiscal Quarter)
to
(b) Interest Expense (for such Fiscal Quarter).
"Interest Expense" means, for any Fiscal Quarter, the aggregate
interest expense payable with respect to Total Debt of the Borrower and its
Restricted Subsidiaries, on a consolidated basis, for such Fiscal Quarter, as
determined in accordance with GAAP, including the portion of any payments made
in respect of Capitalized Lease Liabilities allocable to interest expense.
"Interest Period" means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or 2.4
and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three, six or, if available to all Lenders, twelve months
thereafter (or, if such month has no numerically corresponding day, on the last
Business Day of such month), in either case as the Borrower may select in its
relevant notice pursuant to Section 2.3 or 2.4; provided, however, that
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(a) the Borrower shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration dates
occurring on more than ten different dates;
(b) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the
first Business Day of a calendar month, in which case such Interest
Period shall end on the Business Day next preceding such numerically
corresponding day); and
(c) no Interest Period for any Loan may end later than the
Stated Maturity Date for such Loan.
"Investment" means, relative to any Person,
(a) any loan, advance or extension of credit made by such
Person (either directly or indirectly) to any other Person (either
directly or indirectly), including the purchase by such Person of any
bonds, notes, debentures or other debt securities of any other Person
(excluding commission, travel, ▇▇▇▇▇ cash and similar advances to
officers and employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any Capital Security held by such Person (either directly
or indirectly) in any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the Fair Market Value
of such property at the time of such Investment.
"Investment Grade Senior Debt" means, with respect to any Person, that
such Person's long-term senior, unsecured debt for borrowed money (without third
party credit enhancement) is rated BBB- or above by S&P or Baa3 or above by
Moody's.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the Borrower, substantially in the
form of Exhibit B-2 hereto.
"Issuer" means an Arranging Agent in its capacity as issuer of the
Letters of Credit. At the request of such Arranging Agent and with the
Borrower's consent (not to be unreasonably withheld), another Lender or an
Affiliate of such Arranging Agent may issue one or more Letters of Credit
hereunder.
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"Lender Assignment Agreement" means a notice to be delivered to the
Administrative Agent and the Borrower pursuant to Section 10.11.1 substantially
in the form of Exhibit D hereto.
"Lenders" is defined in the preamble and, in addition, shall include
(a) any commercial bank or other financial institution that becomes a Lender
pursuant to Section 10.11.1 and (b) any Supplemental Lender which executes a
joinder agreement pursuant to Section 2.8.
"Lender's Environmental Liability" means any and all losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
costs, judgments, suits, proceedings, damages (including consequential damages),
disbursements or expenses of any kind or nature whatsoever (including reasonable
attorneys' fees at trial and appellate levels and experts' fees and
disbursements and expenses incurred in investigating, defending against or
prosecuting any litigation, claim or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against the Administrative
Agent, any Lender or any Issuer or any of such Person's Affiliates,
shareholders, directors, officers, employees, and agents in connection with or
arising from:
(a) any Hazardous Material on, in, under or affecting all or
any portion of any property of the Borrower or any of its Subsidiaries,
the groundwater thereunder, or any surrounding areas thereof to the
extent caused by Releases from the Borrower's or any of its
Subsidiaries' or any of their respective predecessors' properties;
(b) any misrepresentation, inaccuracy or breach of any
warranty, contained or referred to in Section 6.12;
(c) any violation or claim of violation by the Borrower or any
of its Subsidiaries of any Environmental Laws; or
(d) the imposition of any lien for damages caused by or the
recovery of any costs for the cleanup, release or threatened release of
Hazardous Material by the Borrower or any of its Subsidiaries, or in
connection with any property owned or formerly owned by the Borrower or
any of its Subsidiaries.
"Letter of Credit" is defined in Section 2.1.2.
"Letter of Credit Commitment" means, with respect to an Issuer, such
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.2 and,
with respect to each Revolving Loan Lender, the obligations of each such Lender
to participate in such Letters of Credit pursuant to Section 2.6.1.
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"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $75,000,000, as such amount may be permanently reduced from time to
time pursuant to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to
the sum of (a) the then aggregate amount which is undrawn and available under
all issued and outstanding Letters of Credit, plus (b) the then aggregate amount
of all unpaid and outstanding Reimbursement Obligations.
"Leverage Ratio" means, as of the last day of any Fiscal Quarter, the
ratio of
(a) Total Debt outstanding on the last day of such Fiscal
Quarter
to
(b) Annualized Operating Cash Flow determined on the last day
of such Fiscal Quarter.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
the rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to the Administrative Agent's LIBOR
Office in the London interbank market as at or about 11:00 a.m. London, England
time two Business Days prior to the beginning of such Interest Period for
delivery on the first day of such Interest Period, and in an amount
approximately equal to the amount of the Administrative Agent's LIBO Rate Loan
and for a period approximately equal to such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a rate of interest determined by
reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) -------------------------------
1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans
will be determined by the Administrative Agent on the basis of the LIBOR Reserve
Percentage in effect two Business Days before the first day of such Interest
Period.
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"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such Lender's "LIBOR Office" set forth opposite its name on
Schedule II hereto or in a Lender Assignment Agreement, or such other office of
a Lender as designated from time to time by notice from such Lender to the
Borrower and the Administrative Agent, whether or not outside the United States,
which shall be making or maintaining LIBO Rate Loans of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of or including
"Eurocurrency Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or other priority or preferential
arrangement of any kind or nature whatsoever, to secure payment of a debt or
performance of an obligation.
"Loan Documents" collectively means this Agreement, the Letters of
Credit, each Note, each Rate Protection Agreement, the Pledge Agreements, the
Fee Letters, each Guarantee, each agreement pursuant to which the Administrative
Agent is granted a Lien to secure the Obligations and each other agreement,
certificate, document or instrument delivered in connection with this Agreement
or such other Loan Documents, whether or not specifically mentioned herein or
therein.
"Loans" means, as the context may require, a Revolving Loan or a Term
Loan, of any type.
"Management Agreements" means the Borrower Management Agreement and
each other agreement with respect to the management of the Cable Systems of any
Restricted Subsidiary that is reasonably acceptable to the Administrative Agent.
"Management Fees" means any of the Borrower Management Fees and any of
the management fees payable by any Restricted Subsidiary to any Manager pursuant
to any other Management Agreement.
"Manager" means, as the context may require, as of the Effective Date,
ACI in its capacity as manager under the Borrower Management Agreement (and
shall also include any Affiliate of ACI in its capacity as manager under the
Borrower Management Agreement) and, following the Effective Date, any manager
party to a Management Agreement.
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"Manager Subordination Agreements" means, collectively, (i) the Manager
Subordination Agreement, dated the date hereof, executed and delivered by ACI
and (ii) each other Manager Subordination Agreement from time to time executed
by any Manager, in each case, substantially in the form of Exhibit G-2 hereto
with such changes as agreed to by the Administrative Agent and as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with its terms.
"Managing Agent" means Bank of Montreal, Barclays Bank PLC, CIBC Inc.,
Credit Lyonnais, New York Branch, Credit Suisse First Boston, First Union
National Bank, Fleet Bank, N.A., PNC Bank, National Association, Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., New York Branch and Salomon Brothers
Holding Company Inc.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, properties or assets, liabilities, condition (financial or
otherwise), results of operations or prospects of the Borrower and the
Restricted Subsidiaries taken as a whole, (b) the ability of the Borrower to
perform its Obligations under the Loan Documents or (c) the validity or
enforceability of this Agreement or any other Loan Document or the rights or
remedies of the Administrative Agent, the Lenders or the Issuers hereunder or
thereunder.
"Merge" is defined in Section 7.2.9.
"Minority Owner" means any Person that owns less than 51% of the
Capital Securities of any Restricted Subsidiary.
"Minority Owner Pledge Agreement" means a Pledge Agreement to be
executed and delivered by an Authorized Officer of a Minority Owner, in
substantially the form of the Borrower Pledge Agreement with such changes as the
Administrative Agent may reasonably request, as amended, supplemented, amended
and restated or otherwise modified from time to time in accordance with its
terms.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"NationsBank" is defined in the preamble.
"Net Disposition Proceeds" means, with respect to any Permitted
Disposition, the excess of
(a) the gross Permitted Consideration received as a result of
such Permitted Disposition
less
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(b) all reasonable fees and expenses with respect to legal,
accounting and other professional fees, sales commissions and
disbursements actually incurred in connection with such Permitted
Disposition and all taxes actually paid in connection with such
Permitted Disposition;
provided, however, that Net Disposition Proceeds shall include the net amount
(determined as provided above) of any insurance proceeds or condemnation awards
received in connection with the damage, destruction or condemnation, as the case
may be, of property of the Borrower or any of its Restricted Subsidiaries, any
such proceeds or awards, as the case may be, to be treated as if resulting from
a Disposition of the type described in the definition of "Permitted
Disposition".
"Net Income" means, for any period, the aggregate of all amounts which,
in accordance with GAAP, would be included as net income on the consolidated
financial statements of the Borrower and its Restricted Subsidiaries for such
period.
"Non-Excluded Taxes" means any Taxes other than net income and
franchise taxes imposed with respect to any Credit Party by a Governmental
Authority under the laws of which such Credit Party is organized or in which it
maintains its applicable lending office.
"Non-U.S. Lender" means any Lender that is not a "United States
person", as defined under section 7701(a)(30) of the Code.
"Note" means, as the context may require, a Revolving Note or a Term
Note.
"Obligated Party" means, collectively, each Restricted Subsidiary and
each Person that has granted a Lien in favor of the Secured Parties pursuant to
any Loan Document.
"Obligations" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured) of the Borrower and each other
Obligor arising under, or in connection with, this Agreement and each other Loan
Document.
"Obligor" means, as the context may require, (i) the Borrower, each
Restricted Subsidiary and each Partner and (ii) the Manager or any other Person
(other than a Secured Party) obligated under any Loan Document (other than the
Intercompany Subordination Agreement).
"Operating Cash Flow" means, without duplication, during any period and
with respect to the Borrower and its Restricted Subsidiaries, the sum during
such period of:
(a) Net Income;
plus
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(b) to the extent deducted in determining such Net Income,
interest expense, depreciation, amortization and income taxes of the
Borrower and its Restricted Subsidiaries;
provided, that (i) in calculating Operating Cash Flow, there shall be excluded
from such calculation all non-cash charges and non-cash expenses, non-cash
income and non-cash gains; and (ii) if the Borrower or any of its Restricted
Subsidiaries shall have made any Dispositions of Cable Systems, Permitted
Business Acquisitions or Asset Swaps during such period, Operating Cash Flow for
such period shall be adjusted on a pro forma basis to give effect to all such
Dispositions, Permitted Business Acquisitions or Asset Swaps as if they had
occurred at the beginning of such period.
"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement and all
shareholder agreements, voting trusts and similar arrangements applicable to any
of such Obligor's shares of Capital Securities.
"Participant" is defined in Section 10.11.2.
"Partners" means Parnassos Communications, L.P., a Delaware limited
partnership and the managing general partner of the Borrower, and Parnassos
Holdings, LLC, a Delaware limited liability company and, as of the Effective
Date, the sole limited partner of the Borrower, and their respective successors,
transferees and assigns.
"Partners Pledge Agreement" means the Pledge Agreement, executed and
delivered by each Partner pursuant to Section 5.1.5, substantially in the form
of Exhibit H-1 hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with its terms.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which the
Borrower or any corporation, trade or business that is, along with the Borrower,
a member of a Controlled Group, may have liability, including any liability by
reason of having been a substantial employer within the meaning of Section 4063
of ERISA at any time during the preceding five years, or by reason of being
deemed to be a contributing sponsor under Section 4069 of ERISA.
"Percentage" means, as the context may require, any Lender's Revolving
Loan Percentage or Term Loan Percentage.
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"Permitted Business Acquisition" means any Investment or Acquisition
(other than an Asset Swap) made by the Borrower or any of its Restricted
Subsidiaries of (a) a Person that owns and operates a Cable System or business
permitted by Section 7.2.1 or (b) a Cable System or business permitted by
Section 7.2.1, in either case, only if (i) as a result of such Acquisition or
Investment such Person becomes a Restricted Subsidiary or (if assets are being
purchased), such purchase is made by the Borrower or a Restricted Subsidiary,
(ii) no Default shall have occurred and be continuing immediately before or
after giving effect to such Acquisition or Investment, (iii) the aggregate
consideration paid (including any assumption of Indebtedness and the Fair Market
Value of any non-cash consideration) to consummate each such Acquisition is (x)
equal to the Fair Market Value of the assets the subject of such Acquisition and
(y) included as an Investment in the Fiscal Quarter in which such Acquisition is
to be consummated for purposes of computing the limits prescribed by clause (d)
of Section 7.2.5 and (iv) prior to consummating any Investment or Acquisition
with a purchase price (based on both cash and non-cash consideration) in excess
of $50,000,000, the Borrower shall have delivered to the Administrative Agent a
pro forma Compliance Certificate for the most recently reported Fiscal Quarter
(prepared in good faith and in a manner and using such methodology which is
consistent with the most recent financial statements delivered pursuant to
Section 7.1.1) giving pro forma effect to the consummation of such acquisition
and evidencing compliance with the covenants set forth in Section 7.2.4.
"Permitted Consideration" means cash, Cash Equivalent Investments of
the type set forth in clauses (a), (b) or (c)(i) of that definition, common or
preferred Capital Securities (including debt securities) issued by a Person
which has Investment Grade Senior Debt or common or preferred Capital Securities
issued by a Person engaged as its primary business in owning and operating Cable
Systems whose long-term senior, unsecured debt for borrowed money (without
credit enhancement) is rated BB or above by S&P or Ba2 or above by ▇▇▇▇▇'▇. Any
non-cash Permitted Consideration shall be valued at the Fair Market Value of
such assets as of the date of the applicable Disposition.
"Permitted Disposition" means any Disposition (other than as permitted
by Section 7.2.5, Section 7.2.6, clauses (a) and (b) of Section 7.2.9, clauses
(c), (d), (e) or (f) of Section 7.2.10 or an Asset Swap) of assets (which shall
include Cable Systems) of the Borrower and its Restricted Subsidiaries, whether
in a single transaction or a series of related transactions, to any Person
(including Unrestricted Subsidiaries), but only if (i) no Default has occurred
and is continuing or would result therefrom, (ii) the consideration received for
such Disposition is Permitted Consideration and represents the Fair Market Value
for such assets, and (iii) all Net Disposition Proceeds shall either be
reinvested or applied toward the prepayment of the Loans pursuant to Sections
3.1.1 and 3.1.2.
"Permitted Existing Asset Transfer" means, in the case of Existing
Assets only, a Disposition (by way of Permitted Dispositions of Existing Assets,
Restricted Payments, Asset Swaps or a Merger permitted by clause (c) of Section
7.2.9), whereby, unless otherwise agreed to by the Required Lenders (such
consent not to be unreasonably withheld), (i) the System Cash
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Flow Percentage of such Existing Assets Disposed of by the Borrower and its
Restricted Subsidiaries in any single Disposition shall be 25% or less and (ii)
the System Cash Flow Percentage of all such Existing Assets Disposed of by the
Borrower and its Restricted Subsidiaries subsequent to the date of this
Agreement shall not exceed, in the aggregate, 35%; provided, that if the Fair
Market Value of the Existing Assets being Disposed equals or exceeds
$50,000,000, the Borrower shall, at least seven Business Days prior to effecting
any such Disposition, deliver to the Administrative Agent a Compliance
Certificate (for the most recently ended full Fiscal Quarter for which a
Compliance Certificate was delivered preceding such Disposition) executed by an
Authorized Officer of the Borrower demonstrating to the satisfaction of the
Administrative Agent pro forma compliance with the covenants set forth in
Section 7.2.4 after giving effect to such Disposition.
"Person" means any natural person, corporation, limited liability
company, partnership, joint venture, association, trust or unincorporated
organization, Governmental Authority or any other legal entity, whether acting
in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreements" means, collectively, the Partners Pledge Agreement,
the Borrower Pledge Agreement, any Minority Owner Pledge Agreement and the
Subsidiary Pledge Agreement.
"Pole Agreement" means any pole attachment agreement or underground
conduit use agreement which was entered into in connection with the operation of
any Cable System.
"Pole Rental Lease" means any lease under which the Borrower or any of
its Restricted Subsidiaries has the right to use telephone or utility poles,
conduits or trenches for the purpose of supporting or housing cables of any
Cable System owned or operated by the Borrower or any of its Subsidiaries.
"Premium Subscriptions" means all subscriptions to a motion picture or
other entertainment services subscribed to by any Basic Subscriber of any Cable
System (excluding any subscriptions to pay-per-view events) at an additional
charge in excess of the Basic Subscriber Fee, exclusive of all such
subscriptions as to which the payment of such additional charges is more than 60
days past due.
"Pro-Forma Balance Sheet" is defined in Section 5.1.13.
"Pro-Forma Debt Service" means, at any date of determination and with
respect to the Borrower and its Restricted Subsidiaries, the sum, without
duplication, of all Pro-Forma Interest Expense, commitment fees, and "scheduled
principal payments" (including the current maturities thereof), due on any Total
Debt of the Borrower and its Restricted Subsidiaries, for the four Fiscal
Quarters immediately succeeding such date of determination. On any date of
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determination, "scheduled principal payments" under this Agreement shall equal
the sum of (i) the aggregate outstanding principal amount of the Revolving Loans
plus Letter of Credit Outstandings on such date of determination less the
Revolving Loan Commitment Amount 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 aggregate amount of Term Loans scheduled to be repaid
pursuant to clause (d) of Section 3.1.1 during such period.
"Pro-Forma Interest Expense" means, at any date of determination
thereof, the Interest Expense (calculated using interest rates in effect on the
last day of the most recently ended Fiscal Quarter of the Borrower) of the
Borrower and its Restricted Subsidiaries for the four Fiscal Quarters
immediately succeeding such date of determination.
"Property Contribution" means any capital contribution of real or
personal property made in the Borrower after the Effective Date by ACC, the
Rigas Family, any Partner or any Affiliate of any of the foregoing.
"Quarterly Payment Date" means the last day of March, June, September
and December, or, if any such day is not a Business Day, the next succeeding
Business Day.
"Rate Protection Agreement" means, collectively, any currency exchange
agreements, interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements, and all other agreements or arrangements
designed to protect against fluctuations in interest rates or currency exchange
rates entered into by the Borrower or any of its Restricted Subsidiaries under
which the counterparty to such agreement is (or at the time such agreement was
entered into, was) a Lender or an Affiliate of a Lender.
"Register" is defined in Section 2.7.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Release" means a "release", as such term is defined in CERCLA.
"Replacement Lender" is defined in clause (g) of Section 10.11.1.
"Required Lenders" means, at any time,
(a) prior to the date of the making of the initial Credit
Extension hereunder, Lenders having at least 51% of the Term Loan
Commitments and the Revolving Loan Commitments; and
(b) on and after the Effective Date, Lenders holding at least
51% of the Total Exposure Amount.
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"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.
"Restricted Payment" means, in each case directly or indirectly,
whether in cash or property, obligations of the Borrower or any Restricted
Subsidiary or otherwise in respect of (a) the declaration or payment of any
dividend on, or the making of any repayment or prepayment or distribution on
account of, or setting apart assets for a sinking or other analogous fund for,
the purchase, redemption, defeasance, retirement or other acquisition of
Subordinated Debt (other than the payment of interest or premium, thereon)
pursuant to the last sentence of Section 7.2.8, of the principal amount of
and/or interest or premium on Affiliate Indebtedness (other than Management
Fees) or on any class of Capital Security of the Borrower or any Restricted
Subsidiary (other than dividends or distributions made in Capital Securities (of
the type set forth in clause (a) of the definition thereof) of the Borrower
which does not result in a Default) or any warrants or options to purchase any
such Capital Security, whether now or hereafter outstanding, or the making of
any other distribution in respect thereof (other than dividends or distributions
made by Restricted Subsidiaries to the Borrower or to other Restricted
Subsidiaries) and (b) Investments by the Borrower or any Restricted Subsidiary
in an Unrestricted Subsidiary.
"Restricted Subsidiary" means each Subsidiary that is not an
Unrestricted Subsidiary.
"Revolving Loan" is defined in Section 2.1.1.
"Revolving Loan Commitment" means, relative to any Lender, such
Lender's obligation (if any) to make Revolving Loans pursuant to Section 2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $350,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" means the earliest of
(a) January 5, 1999 (if the initial Credit Extension has not
occurred on or prior to such date);
(b) June 30, 2007;
(c) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to the terms of this
Agreement; and
(d) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in the preceding clauses (c) or (d),
the Revolving Loan Commitments shall terminate automatically and without any
further action.
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"Revolving Loan Lender" is defined in Section 2.1.1.
"Revolving Loan Percentage" means, relative to any Lender, its
percentage (if any) of the Revolving Loan Commitment Amount set forth opposite
its name on Schedule II hereto under the Revolving Loan Commitment column, as
such percentage may be adjusted from time to time pursuant to Lender Assignment
Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered
pursuant to Section 10.11.1.
"Revolving Note" means a promissory note of the Borrower payable to any
Revolving Loan Lender, in the form of Exhibit A-1 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrower to such Revolving Loan
Lender resulting from outstanding Revolving Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Rigas Family" means ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, or any of their respective spouses, estates, or
lineal descendants, or any trust created for the direct and 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.
"S&P" means Standard & Poor's Ratings Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies..
"Scotiabank" is defined in the preamble.
"SEC" means the Securities and Exchange Commission.
"Secured Parties" means, collectively, the Lenders, the Issuers, the
Administrative Agent, each counterparty to a Rate Protection Agreement and (in
each case), each of their respective successors, transferees and assigns.
"SMATV System" means any Cable System that is a satellite master
antenna television system as such term is commonly understood in the cable
television industry.
"Stated Amount" means, on any date and with respect to a particular
Letter of Credit, the total amount then available to be drawn under such Letter
of Credit regardless of whether conditions to drawing are then satisfied.
"Stated Expiry Date" is defined in Section 2.6.
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"Stated Maturity Date" means June 30, 2007.
"Sub Debt Documents" means, collectively, the loan agreements,
indentures, note purchase agreements, promissory notes, guarantees, and other
instruments and agreements evidencing the terms of Subordinated Debt, as
amended, supplemented, amended and restated or otherwise modified in accordance
with Section 7.2.11.
"Subordinated Debt" means all Indebtedness (other than Affiliate
Indebtedness or Intercompany Indebtedness) of the Borrower and its Restricted
Subsidiaries incurred pursuant to any Sub Debt Document, subordinated (in each
case) on customary terms reasonably satisfactory to the Arranging Agents,
including the following terms:
(a) payments of scheduled amortizations of the Subordinated
Debt and the scheduled maturity thereof shall not occur prior to July
1, 2007;
(b) no security interest in or Lien on any assets of the
Partners, the Borrower or any Restricted Subsidiary shall be given to
secure Subordinated Debt;
(c) upon any payment or distribution of assets of the Borrower
upon the occurrence of any of the events described in Section 8.1.9,
all Obligations, including interest accruing thereon (whether or not
permitted as a claim) shall be paid in full in cash directly to the
Administrative Agent before any payment of any amounts (including,
principal and interest) on Subordinated Debt shall be made; and
(d) if prior to payment in full of the Obligations in cash,
the holder of Subordinated Debt receives any payment in respect of such
Subordinated Debt or a Lien on (or security interest in) any assets of
any Obligor and has actual knowledge that such payment is not
permitted, such payment or security shall be delivered to the
Administrative Agent.
"Subordinated Notes" means, collectively, any promissory notes
evidencing Subordinated Debt, as such notes or instruments may be amended,
supplemented or otherwise modified from time to time in accordance with Section
7.2.11.
"Subordination Agreements" means, collectively, the Intercompany
Subordination Agreement and each Manager Subordination Agreement.
"Subordination Provisions" is defined in Section 8.1.11.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership or other entity of which more than 50% of
the outstanding Capital Securities having ordinary voting power to elect the
board of directors, managers or other voting members of the governing body of
such corporation, limited liability company, partnership or
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other entity (irrespective of whether at the time securities (or other ownership
interest) of any other class or classes of such corporation, limited liability
company, partnership or other entity shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more other Subsidiaries of
such Person, or by one or more other Subsidiaries of such Person. Unless the
context otherwise specifically requires, the terms "Subsidiary", "Restricted
Subsidiary" and "Unrestricted Subsidiary" shall be references to a Subsidiary of
the Borrower.
"Subsidiary Guarantor" means each Subsidiary that is required, pursuant
to Section 7.1.11, to execute and deliver a Subsidiary Guaranty, and
collectively means all such Persons.
"Subsidiary Guaranty" means the guaranty executed and delivered by each
Subsidiary Guarantor pursuant to the terms of this Agreement in substantially
the form of Exhibit I hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Subsidiary Pledge Agreement" means the pledge agreement executed and
delivered by each Subsidiary Pledgor pursuant to the terms of this Agreement in
substantially the form of the Borrower Pledge Agreement with such changes as the
Administrative Agent may reasonably request, as amended, supplemented, amended
and restated or otherwise modified from time to time in accordance with its
terms.
"Subsidiary Pledgor" means each Subsidiary of the Borrower that is
required, pursuant to Section 7.1.11, to execute and deliver a Subsidiary Pledge
Agreement, and collectively means all such Persons.
"Supplemental Lenders" is defined in Section 2.8.
"Synthetic Lease" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) (i) that is not a capital lease in accordance
with GAAP and (ii) in respect of which the lessee retains or obtains ownership
of the property so leased for federal income tax purposes, other than any such
lease under which that Person is the lessor.
"System Cash Flow Percentage" means, on any date of determination, as
to any assets (including Cable Systems) being Disposed of, the percentage of the
total Annualized Operating Cash Flow (arising solely from the Existing Assets),
based on the most recent full Fiscal Quarter ended prior to the date of such
Disposition contributed by such assets and/or Cable Systems (and subscribers
thereof of such Cable Systems).
"Taxes" means any and all income, stamp or other taxes, duties, levies,
imposts, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, and all
interest, penalties or similar liabilities with respect thereto.
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"TCIA" means TCI Adelphia Holdings, LLC, a Delaware limited liability
company.
"TD" is defined in the preamble.
"Term Loan" is defined in Section 2.1.3.
"Term Loan Commitment" means, relative to any Lender, such Lender's
obligation (if any) to make Term Loans pursuant to Section 2.1.3.
"Term Loan Commitment Amount" means, on any date, $350,000,000.
"Term Loan Commitment Termination Date" means the earlier of
(a) January 5, 1999 (if the initial Credit Extension has not
occurred on or prior to such date);
(b) the date the initial Credit Extensions are made
(immediately after the making of the Term Loans on such date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Term Loan
Commitments shall terminate automatically and without any further action.
"Term Loan Lender" is defined in Section 2.1.3.
"Term Loan Percentage" means, relative to any Lender, its percentage
(if any) of the Term Loan Commitment Amount set forth opposite its name on
Schedule II hereto under the Term Loan Commitment column, as such percentage may
be adjusted from time to time pursuant to Lender Assignment Agreement(s)
executed by such Lender and its Assignee Lender(s) and delivered pursuant to
Section 10.11.1.
"Term Note" means a promissory note of the Borrower payable to any
Lender, in the form of Exhibit A-2 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrower to such Lender resulting from outstanding
Term Loans, and also means all other promissory notes accepted from time to time
in substitution therefor or renewal thereof.
"Termination Date" means the date on which all Obligations (other than
in respect of the Rate Protection Agreements) shall have been paid in full in
cash, all Letters of Credit have been terminated or expired (or the
Administrative Agent shall have received immediately available funds in an
amount equal to all Letter of Credit Outstandings, deposited in a cash
collateral account with the Administrative Agent or its designee on terms
satisfactory to the Administrative
-32-
Agent), all Rate Protection Agreements have been terminated and all Commitments
shall have terminated.
"Total Debt" means, on any date, the amount (in excess of zero) of (i)
the sum of the outstanding principal amount of all Indebtedness of the Borrower
and its Restricted Subsidiaries of the type referred to in clause (a) (exclusive
of Affiliate Indebtedness and Intercompany Indebtedness), clause (b), clause (c)
and clause (g), in each case of the definition of "Indebtedness" and (without
duplication) any Contingent Liability in respect of any of the foregoing minus
(ii) any Excess Cash Balance existing on such date.
"Total Exposure Amount" means, on any date of determination (and
without duplication), the outstanding principal amount of all Loans, the
aggregate amount of all Letter of Credit Outstandings and the unfunded amount of
the Commitments.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"U.C.C." means the Uniform Commercial Code as from time to time in
effect in the State of New York.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"Unrestricted Subsidiaries" shall mean Subsidiaries of the Borrower
(other than Subsidiaries which have executed and delivered a Subsidiary
Guaranty) which are classified after the Effective Date by a resolution of the
Board of Directors of the Borrower that is promptly delivered to the
Administrative Agent as an Unrestricted Subsidiary.
"U.S. Subsidiary" means any Subsidiary that is incorporated or
organized under the laws of the United States or a state thereof or the District
of Columbia.
"Voting Stock" means, with respect to any Person, Capital Securities of
any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Weighted Average Life to Maturity" means, relative to any Indebtedness
at any date, the number of years (rounded to the nearest one-twelfth) obtained
by dividing (a) the then outstanding principal amount of such Indebtedness 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 (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment.
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"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
"wholly-owned" means, with respect to any Person, any Subsidiary of
such Person all of the Capital Securities of the types set forth in clause (a)
of such definition (and all rights and options to purchase such Capital
Securities) of which, other than directors' qualifying shares, are owned,
beneficially and of record, by such Person and/or one or more wholly-owned
Subsidiaries of such Person, and the term "wholly-owned Subsidiary" shall mean a
Subsidiary of the Borrower that is also a wholly-owned Subsidiary of the
Borrower.
"Year 1" is defined in Section 7.2.7.
"Year 2" is defined in Section 7.2.7.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each other Loan Document and the
Disclosure Schedule.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. (a) Unless
otherwise specified, all accounting terms used herein or in any other Loan
Document shall be interpreted, and all accounting determinations and
computations hereunder or thereunder (including under Section 7.2.4) shall be
made, in accordance with, those generally accepted accounting principles
("GAAP") applied in the preparation of the financial statements referred to
Section 5.1.13. Unless otherwise expressly provided, all financial covenants and
defined financial terms shall be computed on a consolidated basis for the
Borrower and its Restricted Subsidiaries, in each case without duplication.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES AND NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions
of this Agreement, the Lenders and the Issuers severally agree to make Credit
Extensions as set forth below.
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SECTION 2.1.1. Revolving Loan Commitment. From time to time on any
Business Day occurring from and after the Effective Date but prior to the
Revolving Loan Commitment Termination Date, each Lender with a Revolving Loan
Percentage in excess of zero (referred to as a "Revolving Loan Lender"), will
make loans (relative to such Lender, its "Revolving Loans") to the Borrower
equal to such Lender's Revolving Loan Percentage of the aggregate amount of each
Borrowing of the Revolving Loans requested by the Borrower to be made on such
day. On the terms and subject to the conditions hereof, the Borrower may from
time to time borrow, prepay and reborrow Revolving Loans.
SECTION 2.1.2. Letter of Credit Commitment. From time to time on any
Business Day occurring from and after the Effective Date but no later than five
Business Days prior to the Revolving Loan Commitment Termination Date, each
Issuer will
(a) issue one or more standby letters of credit (relative to
such Issuer, its "Letter of Credit") for the account of the Borrower or
any Subsidiary Guarantor in the Stated Amount requested by the Borrower
on such day; or
(b) extend the Stated Expiry Date of an existing standby
Letter of Credit previously issued hereunder to a date not later than
the earlier of (x) five Business Days prior to the Revolving Loan
Commitment Termination Date and (y) unless otherwise agreed to by such
Issuer in its sole discretion, one year from the date of such
extension.
SECTION 2.1.3. Term Loan Commitment. In a single Borrowing (which shall
be on a Business Day) occurring on or after the Effective Date but prior to the
Term Loan Commitment Termination Date (the "Initial Funding Date"), each Lender
with a Term Loan Percentage in excess of zero (referred to as a "Term Loan
Lender") will make loans (relative to such Lender, its "Term Loans") to the
Borrower equal to such Lender's Term Loan Percentage of the aggregate amount of
the Borrowing of Term Loans requested by the Borrower to be made on such day
(with the commitment of each such Lender described in this clause herein
referred to as its "Term Loan Commitment").
No amounts paid or prepaid with respect to Term Loans may be reborrowed.
SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans. No
Lender shall be permitted or required to make any Loan if, after giving effect
thereto, the aggregate outstanding principal amount of
(a) all Revolving Loans (i) of all Revolving Loan Lenders,
together with the aggregate amount of all Letter of Credit
Outstandings, would exceed the then existing Revolving Loan Commitment
Amount; or (ii) of such Revolving Loan Lender, together with such
Lender's Revolving Loan Percentage of the aggregate amount of all
Letter of Credit Outstandings, would exceed such Lender's Revolving
Loan Percentage of the then existing Revolving Loan Commitment Amount;
and
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(b) all Term Loans (i) of all Term Loan Lenders made on the
Initial Funding Date would exceed the Term Loan Commitment Amount; or
(ii) of a Term Loan Lender would exceed such Term Loan Lender's Term
Loan Percentage.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. No Issuer shall be permitted or required to issue any Letter of Credit
if, after giving effect thereto, (a) the aggregate amount of all Letter of
Credit Outstandings would exceed the Letter of Credit Commitment Amount; or (b)
the sum of the aggregate amount of all Letter of Credit Outstandings plus the
aggregate principal amount of all Revolving Loans then outstanding would exceed
the Revolving Loan Commitment Amount then in effect.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment
Amounts are subject to reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrower may, from time to time on any
Business Day occurring after the Effective Date, voluntarily reduce the amount
of the Revolving Loan Commitment Amount or the Letter of Credit Commitment
Amount on the Business Day so specified by the Borrower; provided, however, that
all such reductions shall require at least one Business Day's prior notice to
the Administrative Agent and be permanent, and any partial reduction of any
Commitment Amount shall be in a minimum amount of $5,000,000 and in an integral
multiple of $1,000,000. Any optional or mandatory reduction of the Revolving
Loan Commitment Amount pursuant to the terms of this Agreement which reduces the
Revolving Loan Commitment Amount below the Letter of Credit Commitment Amount
shall result in an automatic and corresponding reduction of the Letter of Credit
Commitment Amount (as directed by the Borrower in a notice to the Administrative
Agent delivered together with the notice of such voluntary reduction in the
Revolving Loan Commitment Amount) to an aggregate amount not in excess of the
Revolving Loan Commitment Amount, as so reduced, without any further action on
the part of any Issuer.
SECTION 2.2.2. Mandatory Reduction of Revolving Loan Commitment
Amount. Prior to the Revolving Loan Commitment Termination Date, the Revolving
Loan Commitment Amount shall also be permanently reduced as follows:
(a) Commencing on December 31, 2001, and on each subsequent
Quarterly Payment Date occurring during each period set forth below,
the Revolving Loan Commitment Amount will be reduced in an amount
corresponding to the percentage of the Revolving Loan Commitment Amount
existing on the Effective Date set forth opposite such period:
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Amount Of
Period Reduction
------ ---------
10/01/01 through (and
including) 12/31/02 3.00%
01/01/03 through (and
including) 12/31/05 4.25%
01/01/06 through (and
including) 03/31/07 5.50%
04/01/07 through (and
including) 06/30/07 6.50%, or the then
outstanding principal amount
of all Revolving Loans, if
different.
(b) After all Term Loans (and, if applicable, term loans made
under the Incremental Facility) have been paid in full, the Revolving
Loan Commitment Amount will be permanently reduced in an amount equal
to 100% of the Net Disposition Proceeds remaining after giving effect
to any Net Disposition Proceeds applied to Term Loan prepayments to the
extent (and on the dates) required pursuant to clause (c) of Section
3.1.1, with the commitment reduction applied against future scheduled
reductions in the Revolving Loan Commitment Amount (as set forth in
clause (a) above), ratably in accordance with the then remaining
scheduled reductions in the Revolving Loan Commitment Amount.
SECTION 2.3. Borrowing Procedure. By delivering a Borrowing Request to
the Administrative Agent on or before 10:00 a.m., New York time (in the case of
Base Rate Loan) or 12:00 noon (in the case of a LIBO Rate Loan), on a Business
Day, the Borrower may from time to time irrevocably request on such Business Day
in the case of Base Rate Loans, or three Business Days' notice in the case of
LIBO Rate Loans, and in either case not more than five Business Days' notice,
that a Borrowing be made, in the case of LIBO Rate Loans, in a minimum amount of
$5,000,000 and an integral multiple of $1,000,000, in the case of Base Rate
Loans, in a minimum amount of $3,000,000 and an integral multiple of $1,000,000
or, in either case, in the unused amount of the applicable Commitment. On the
terms and subject to the conditions of this Agreement, each Borrowing shall be
comprised of the type of Loans, and shall be made on the Business Day, specified
in such Borrowing Request. On or before 12:00 noon, New York time (or, if later,
two hours following the Administrative Agent's providing of notice to such
Lender of such Borrowing Request), on such Business Day each Lender that has a
Commitment to make the Loans being requested shall deposit with the
Administrative Agent same day funds in an
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amount equal to such Lender's Percentage of the requested Borrowing. Such
deposit will be made to an account which the Administrative Agent shall specify
from time to time by notice to the Lenders. To the extent funds are received
from the Lenders, the Administrative Agent shall make such funds available to
the Borrower by wire transfer to the accounts the Borrower shall have specified
in its Borrowing Request. No Lender's obligation to make any Loan shall be
affected by any other Lender's failure to make any Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/ Conversion Notice to the Administrative Agent on or before 12:00
noon, New York time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than one Business Day's notice in the case of
Base Rate Loans, or three Business Days' notice in the case of LIBO Rate Loans,
and in either case not more than five Business Days' notice, that all, or any
portion in an aggregate minimum amount of $5,000,000 and an integral multiple of
$1,000,000 be, in the case of Base Rate Loans, converted into LIBO Rate Loans or
be, in the case of LIBO Rate Loans, converted into Base Rate Loans or continued
as LIBO Rate Loans (in the absence of delivery of a Continuation/Conversion
Notice with respect to any LIBO Rate Loan at least three Business Days (but not
more than five Business Days) before the last day of the then current Interest
Period with respect thereto, such LIBO Rate Loan shall, on such last day,
automatically convert to a Base Rate Loan); provided, however, that (x) each
such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Lenders that have made such Loans, and (y) no portion
of the outstanding principal amount of any Loans may be continued as, or be
converted into, LIBO Rate Loans when any Default has occurred and is continuing.
The Administrative Agent will promptly notify the Lenders of each such
Continuation/Conversion Notice and the contents thereof.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrower to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, the
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent and the applicable Issuer an Issuance Request on or before 12:00 noon.,
New York time, on a Business Day, the Borrower may from time to time irrevocably
request on not less than three nor more than ten Business Days' notice, in the
case of an initial issuance of a Letter of Credit and not less than three
Business Days' prior notice, in the case of a request for the extension of the
Stated Expiry Date of a standby Letter of Credit, that an Issuer issue, or
extend the Stated Expiry Date of, as the case may be, an irrevocable Letter of
Credit in such form as may be requested by the
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Borrower and approved by such Issuer, solely for the purposes described in
Section 7.1.9. Each Letter of Credit shall by its terms be stated to expire on a
date (its "Stated Expiry Date") no later than the earlier to occur of (i) five
Business Days prior to the Revolving Loan Commitment Termination Date or (ii)
(unless otherwise agreed to by an Issuer, in its sole discretion) one year from
the date of its issuance. Each Issuer will make available to the beneficiary
thereof the original of the Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by an Issuer pursuant hereto, and without further
action, each Revolving Loan Lender (other than such Issuer) shall be deemed to
have irrevocably purchased, to the extent of its Percentage to make Revolving
Loans, a participation interest in such Letter of Credit (including the
Contingent Liability and any Reimbursement Obligation with respect thereto), and
such Revolving Loan Lender shall, to the extent of its Percentage to make
Revolving Loans, be responsible for reimbursing promptly (and in any event
within one Business Day) the applicable Issuer for Reimbursement Obligations
which have not been reimbursed by the Borrower in accordance with Section 2.6.3.
In addition, such Revolving Loan Lender shall, to the extent of its Percentage
to make Revolving Loans, be entitled to receive a ratable portion of the Letter
of Credit fees payable pursuant to Section 3.3.3 with respect to each Letter of
Credit (other than the issuance fees payable to an Issuer of such Letter of
Credit pursuant to the last sentence of Section 3.3.3) and of interest payable
pursuant to Section 3.2 with respect to any Reimbursement Obligation. To the
extent that any Revolving Loan Lender has reimbursed any Issuer for a
Disbursement, such Lender shall be entitled to receive its ratable portion of
any amounts subsequently received (from the Borrower or otherwise) in respect of
such Disbursement.
SECTION 2.6.2. Disbursements. An Issuer will notify the Borrower and
the Administrative Agent promptly of the presentment for payment of any Letter
of Credit issued by such Issuer, together with notice of the date (the
"Disbursement Date") such payment shall be made (each such payment, a
"Disbursement"). Subject to the terms and provisions of such Letter of Credit
and this Agreement, the applicable Issuer shall make such payment to the
beneficiary (or its designee) of such Letter of Credit. Prior to 12:00 noon, New
York time, on the Disbursement Date, the Borrower will reimburse the
Administrative Agent, for the account of the applicable Issuer, for all amounts
which such Issuer has disbursed under such Letter of Credit, together with
interest thereon at a rate per annum equal to the rate per annum then in effect
for Base Rate Loans (with the then Applicable Margin for Revolving Loans
accruing on such amount) pursuant to Section 3.2 for the period from the
Disbursement Date through the date of such reimbursement. Without limiting in
any way the foregoing and notwithstanding anything to the contrary contained
herein or in any separate application for any Letter of Credit, the Borrower
hereby acknowledges and agrees that it shall be obligated to reimburse the
applicable Issuer upon each Disbursement of a Letter of Credit, and it shall be
deemed to be the obligor for purposes of each such Letter of Credit issued
hereunder (whether the account party on such Letter of Credit is the Borrower or
a Restricted Subsidiary).
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SECTION 2.6.3. Reimbursement. The obligation (a "Reimbursement
Obligation") of the Borrower under Section 2.6.2 to reimburse an Issuer with
respect to each Disbursement (including interest thereon), and, upon the failure
of the Borrower to reimburse an Issuer, each Revolving Loan Lender's obligation
under Section 2.6.1 to reimburse an Issuer, shall be absolute and unconditional
under any and all circumstances and irrespective of any setoff, counterclaim or
defense to payment which the Borrower or such Revolving Loan Lender, as the case
may be, may have or have had against such Issuer or any Lender, including any
defense based upon the failure of any Disbursement to conform to the terms of
the applicable Letter of Credit (if, in such Issuer's good faith opinion, such
Disbursement is determined to be appropriate) or any non- application or
misapplication by the beneficiary of the proceeds of such Letter of Credit;
provided, however, that after paying in full its Reimbursement Obligation
hereunder, nothing herein shall adversely affect the right of the Borrower or
such Lender, as the case may be, to commence any proceeding against an Issuer
for any wrongful Disbursement made by such Issuer under a Letter of Credit as a
result of acts or omissions constituting gross negligence or wilful misconduct
on the part of such Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Default under Section 8.1.9 or upon notification by the
Administrative Agent (acting at the direction of the Required Lenders) to the
Borrower of its obligations under this Section, following the occurrence and
during the continuation of any other Event of Default,
(a) the aggregate Stated Amount of all Letters of Credit
shall, without demand upon or notice to the Borrower or any other
Person, be deemed to have been paid or disbursed by the applicable
Issuers of such Letters of Credit (notwithstanding that such amount may
not in fact have been paid or disbursed); and
(b) the Borrower shall be immediately obligated to reimburse
the applicable Issuers for the amount deemed to have been so paid or
disbursed by such Issuers.
Amounts payable by the Borrower pursuant to this Section shall be deposited in
immediately available funds with the Administrative Agent and held as collateral
security for the Reimbursement Obligations. When all Defaults giving rise to the
deemed disbursements under this Section have been cured or waived the
Administrative Agent shall return to the Borrower all amounts then on deposit
with the Administrative Agent pursuant to this Section which have not been
applied to the satisfaction of the Reimbursement Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. The Borrower, each
other Obligated Party and, to the extent set forth in Section 2.6.1, each
Revolving Loan Lender shall assume all risks of the acts, omissions or misuse of
any Letter of Credit by the beneficiary thereof. No Issuer (except to the extent
of its own gross negligence or wilful misconduct) shall be responsible for:
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(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Letter of Credit or any document submitted by any
party in connection with the application for and issuance of a Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove
to be invalid or ineffective for any reason;
(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to any Issuer or any Revolving Loan Lender hereunder.
In furtherance and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by an Issuer in good faith (and not
constituting gross negligence or willful misconduct) shall be binding upon each
Obligated Party and each such Secured Party, and shall not put such Issuer under
any resulting liability to any Obligated Party or any Secured Party, as the case
may be.
SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder. In the
case of a Lender that does not request, pursuant to clause (b)(ii) below,
execution and delivery of a Note evidencing the Loans made by such Lender to the
Borrower, such account or accounts shall, to the extent not inconsistent with
the notations made by the Administrative Agent in the Register, be conclusive
and binding on the Borrower absent manifest error; provided, however, that the
failure of any Lender to maintain such account or accounts shall not limit or
otherwise affect any Obligations of the Borrower or any other Obligor.
(b)(i) The Borrower hereby designates the Administrative Agent to serve
as the Borrower's agent, solely for the purpose of this clause (b), to maintain
a register (the "Register") on which the Administrative Agent will record each
Lender's Commitment, the Loans made by each Lender and each repayment in respect
of the principal amount of the Loans of each Lender
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and annexed to which the Administrative Agent shall retain a copy of each Lender
Assignment Agreement delivered to the Administrative Agent pursuant to Section
10.11.1. Failure to make any recordation, or any error in such recordation,
shall not affect the Borrower's obligation in respect of such Loans. The entries
in the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders shall treat each Person in
whose name a Loan (and as provided in clause (ii) the Note evidencing such Loan,
if any) is registered as the owner thereof for all purposes of this Agreement,
notwithstanding notice or any provision herein to the contrary. A Lender's
Commitment and the Loans made pursuant thereto may be assigned or otherwise
transferred in whole or in part only by registration of such assignment or
transfer in the Register. Any assignment or transfer of a Lender's Commitment or
the Loans made pursuant thereto shall be registered in the Register only upon
delivery to the Administrative Agent of a Lender Assignment Agreement duly
executed by the assignor thereof and the compliance by the parties thereto with
the other requirements of Section 10.11.1. No assignment or transfer of a
Lender's Commitment or the Loans made pursuant thereto shall be effective unless
such assignment or transfer shall have been recorded in the Register by the
Administrative Agent as provided in this Section.
(ii) The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender, as
applicable, a Note evidencing the Loans made by such Lender. The Borrower hereby
irrevocably authorizes each Lender to make (or cause to be made) appropriate
notations on the grid attached to such Lender's Notes (or on any continuation of
such grid), which notations, if made, shall evidence, inter alia, the date of,
the outstanding principal amount of, and the interest rate and Interest Period
applicable to the Loans evidenced thereby. Such notations shall, to the extent
not inconsistent with the notations made by the Administrative Agent in the
Register, be conclusive and binding on the Borrower absent manifest error;
provided, however, that the failure of any Lender to make any such notations
shall not limit or otherwise affect any Obligations of the Borrower or any other
Obligor.
SECTION 2.8. Incremental Facility. (a) Subject to the terms of this
Agreement and so long as no Default has occurred and is continuing, the Borrower
may request, by written notice to the Administrative Agent delivered not more
than twice over the term of this Agreement, that a revolving credit and/or term
loan facility (the "Incremental Facility") in a specified principal amount which
(when aggregated with the outstanding principal amount of Loans and unused
amount of commitments under all other Incremental Facilities provided pursuant
to this Section) shall not exceed $100,000,000 pursuant to which revolving loans
and/or term loans will be made to the Borrower pursuant to this Agreement. Loans
made pursuant to the Incremental Facility will (subject to clause (c)), be on
terms and conditions satisfactory to the Required Lenders, with (x) revolving
loans under the Incremental Facility being instituted as an increase to the then
existing Revolving Loan Commitment Amount (and having a maturity date the same
as the Stated Maturity Date), and loans made thereunder being "Revolving Loans"
hereunder and otherwise treated pari passu (including as to repayments,
prepayments, interest rate, commitment fees, mandatory commitment reductions,
risk participations in Letters of Credit and collateral)
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pro rata with all other Revolving Loans and (y) term loans under the Incremental
Facility being instituted as an increase to the aggregate outstanding principal
amount of the Term Loans (and having a maturity date the same as the Stated
Maturity Date), and loans made thereunder being "Term Loans" hereunder and
otherwise treated pari passu (as to repayments, prepayments, mandatory
commitment reductions and collateral) pro rata with all other Term Loans,
provided that the Weighted Average Life to Maturity of such Incremental Facility
term loans shall in no event be shorter than the Weighted Average Life to
Maturity of the then outstanding Term Loans.
(b) Upon receipt of such request, the Administrative Agent will
promptly notify, and deliver a copy of such request and related materials to,
each Lender (by telephone or otherwise). Within 15 Business Days after receipt
by the Lenders of such request, each Lender interested in participating in the
requested Incremental Facility shall notify the Administrative Agent and the
Borrower of its desire to participate and the maximum amount of its proposed
Commitment with respect to such Incremental Facility (a "Commitment Notice");
provided, however, that each Lender may participate or not participate in the
Incremental Facility in its sole discretion, and no Lender shall be deemed to
have committed to participate in any Incremental Facility as a result of being a
signatory to this Agreement prior to the effectiveness of the Incremental
Facility, nor shall any Lender have any obligation to participate in any
Incremental Facility unless and until it commits to do so as provided in this
Section. Following receipt of such Commitment Notices, the Borrower (i) shall
allocate the Incremental Facility, which allocations may be made, at the
Borrower's option, in whole or in part to one or more of the Lenders or other
lenders (such Lenders or other lenders, the "Supplemental Lenders") selected by
the Borrower with, as to any Supplemental Lender which is not a Lender
hereunder, the consent of the Administrative Agent and each Issuer (such consent
not to be unreasonably withheld), (ii) shall advise each Lender of the amount of
such Lender's commitment with respect to the Incremental Facility; provided,
however, that the existing Lenders providing a Commitment Notice with respect to
such Incremental Facility shall be entitled to participate in the Incremental
Facility on the same terms and conditions applicable to the Supplemental Lenders
with respect to such Incremental Facility (subject, however, to the allocations
made by the Borrower pursuant to clause (i) above).
(c) Each Lender hereby authorizes the Arranging Agents, without the
requirement to obtain any further consents of the Lenders, the Issuers, the
Managing Agents or the Co-Agents (but subject to the provisions of clauses (a)
through (g) of Section 10.1), to enter into any amendments or supplements
(including an amendment and restatement of the Agreement) with the Borrower to
this and any other Loan Document to the extent necessary to implement the
foregoing and include the Incremental Facility hereunder. By way of example, and
not in limitation, the following items and sections hereof would be revised in
order to implement the Incremental Facility: (a) the definitions of the terms
"Commitment", "Commitment Amount", "Commitment Termination Date", "Loans",
"Note", "Percentage", "Revolving Loan Commitment Amount","Term Loan Commitment
Amount" and "Termination Date"; (b) Sections 2.1.1, 2.1.3, 2.1.4, 2.2, 2.6.1,
3.1.1, and 3.1.2; and (c) Supplemental Lenders not otherwise Lenders hereunder
shall become Lenders hereunder pursuant to a joinder agreement reasonably
satisfactory to the Administrative Agent and the Borrower. Prior to the making
of any
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Loans under the Incremental Facility, the Borrower will satisfy conditions and
provide to the Arranging Agents (with counterparts for each Lender) similar
documents as those executed and provided on the Effective Date including
satisfaction of conditions similar to those contained in Sections 5.1.1, 5.1.2,
5.1.3, 5.1.5, 5.1.6, 5.1.7, 5.1.8, 5.1.9, 5.1.11, 5.1.13, 5.1.14, 5.1.15 and
5.2, and such others as reasonably requested by the Arranging Agents.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application. The Borrower
agrees that the Loans shall be repaid and prepaid pursuant to the following
terms.
SECTION 3.1.1. Repayments and Prepayments. The Borrower shall repay in
full the unpaid principal amount of each Loan upon the applicable Stated
Maturity Date therefor. Prior thereto, payments and prepayments of Loans shall
or may be made as set forth below.
(a) From time to time on any Business Day, the Borrower may
make a voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Loans; provided, however, that
(i) any such prepayment of the Term Loans shall be
made pro rata among Term Loans of the same type and, if
applicable, having the same Interest Period of all Lenders
that have made such Term Loans (applied pro rata to the
remaining amortization payments for the Term Loans) and any
such prepayment of Revolving Loans shall be made pro rata
among the Revolving Loans of the same type and, if applicable,
having the same Interest Period of all Lenders that have made
such Revolving Loans;
(ii) all such voluntary prepayments (other than those
made on the date of the initial credit extension) shall
require at least three but no more than five Business Days'
prior written notice to the Administrative Agent; and
(iii) all such voluntary partial prepayments shall
be, in the case of LIBO Rate Loans, in an aggregate minimum
amount of $5,000,000 and an integral multiple of $1,000,000
and, in the case of Base Rate Loans, in an aggregate minimum
amount of $3,000,000 and an integral multiple of $1,000,000.
(b) On each date when the sum of (i) the aggregate outstanding
principal amount of all Revolving Loans and (ii) the aggregate amount
of all Letter of Credit Outstandings exceeds the then existing
Revolving Loan Commitment Amount, the Borrower shall make a mandatory
prepayment of Revolving Loans and/or deposit cash collateral with the
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Administrative Agent or its designee pursuant to an agreement
satisfactory to the Administrative Agent to collateralize Letter of
Credit Outstandings, in an aggregate amount equal to such excess.
(c) Within 365 days following the date of any Permitted
Disposition, the Borrower shall (subject to the following proviso) make
a mandatory prepayment of the Loans in an amount equal to 100% of such
Net Disposition Proceeds, to be applied as set forth in Section 3.1.2;
provided, however, that if no Event of Default has occurred and is
continuing, the Borrower may at any time during such 365-day period
apply such Net Disposition Proceeds to purchase one or more Cable
Systems in lieu of the foregoing mandatory prepayment requirement to
the extent that such Net Disposition Proceeds were so applied.
(d) On the Stated Maturity Date and on each Quarterly Payment
Date occurring during any period set forth below, the Borrower shall
make a scheduled repayment of the aggregate outstanding principal
amount, if any, of all Term Loans in an amount equal to the percentage
(of $350,000,000, as such amount may be increased pursuant to Section
2.8) set forth below opposite the Stated Maturity Date or such
Quarterly Payment Date, as applicable:
Amount of Required
Period Principal Repayment
------ -------------------
10/01/00 through (and
including) 03/31/01 2.00%
04/01/01 through (and
including) 03/31/04 3.00%
04/01/04 through (and
including) 12/31/05 4.25%
01/01/06 through (and
including) 03/31/07 5.00%
04/01/07 through (and
including) 06/30/07 5.25%, or the then outstanding
principal amount of all Term
Loans, if different.
(e) Immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 8.2 or Section 8.3, the Borrower
shall repay all the Loans, unless, pursuant to Section 8.3, only a
portion of all the Loans is so accelerated (in which case the portion
so accelerated shall be so repaid).
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Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. No prepayment of
principal of any Revolving Loans pursuant to clause (a) or (b) shall cause a
reduction in the Revolving Loan Commitment Amount.
SECTION 3.1.2. Application. Amounts prepaid pursuant to Section 3.1.1
shall be applied as set forth in this Section.
(a) Subject to clause (b), each prepayment or repayment of the
principal of the Loans shall be applied, to the extent of such
prepayment or repayment, first, to the principal amount thereof being
maintained as Base Rate Loans, and second, subject to the terms of
Section 4.4, to the principal amount thereof being maintained as LIBO
Rate Loans.
(b) Each prepayment of Loans made pursuant to clause (c) of
Section 3.1.1 shall be applied (i) first, to a mandatory prepayment of
the outstanding principal amount of all Term Loans (with the amount of
such prepayment of the Term Loans being applied to the remaining Term
Loan amortization payments, pro rata in accordance with the amount of
each such remaining Term Loan amortization payment), until all Term
Loans have been paid in full, and (ii) second, once all Term Loans have
been repaid in full, all prepayments of Loans made pursuant to clause
(c) of Section 3.1.1 shall be applied to the repayment of any
outstanding Revolving Loans and a reduction of the Revolving Loan
Commitment Amount in accordance with Section 2.2.2.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the Borrower may elect that
Loans comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to
time in effect plus the Applicable Margin; and
(b) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the LIBO
Rate (Reserve Adjusted) for such Interest Period plus the Applicable
Margin.
All LIBO Rate Loans shall bear interest from and including the first
day of the applicable Interest Period to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such LIBO
Rate Loan.
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SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan or Reimbursement Obligation is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise), or after any other
monetary Obligation of the Borrower shall have become due and payable, the
Borrower shall pay, but only to the extent permitted by law, interest (after as
well as before judgment) on such amounts at a rate per annum equal to the sum of
the interest rate then in effect with respect to such Loan or Reimbursement
Obligation (including any Applicable Margin) plus 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan on the principal amount so
paid or prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment
Date occurring after the Effective Date;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on the date occurring on each three-month interval
occurring after the first day of such Interest Period); and
(e) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. The Borrower agrees to pay the fees set forth in
this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, for the period (including
any portion thereof when any of its Commitments are suspended by reason of the
Borrower's inability to satisfy any condition of Article V) commencing on the
Effective Date and continuing through the Revolving Loan Commitment Termination
Date, a commitment fee in an amount equal to the Applicable Commitment Fee
Margin, in each case on such Lender's Percentage of the sum of the average daily
unused portion of the applicable Commitment Amount (net of Letter of Credit
Outstandings, in the case of the Revolving Loan Commitment Amount). All
commitment fees payable pursuant to this Section shall be calculated on a year
comprised of 365 days and payable by the Borrower in arrears on each Quarterly
Payment Date, commencing with the first Quarterly
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Payment Date following the Effective Date, and on the Revolving Loan Commitment
Termination Date.
SECTION 3.3.2. Agent's Fee. The Borrower agrees to pay to the
Administrative Agent, for its own account, the fees in the amounts and on the
dates set forth in the Administrative Agent's Fee Letter. The Borrower agrees to
pay to the applicable party the fees in the amounts and on the dates set forth
in the Arranging Agents' Fee Letter.
SECTION 3.3.3. Letter of Credit Fee. The Borrower agrees to pay to the
Administrative Agent, for the pro rata account of each Revolving Loan Lender, a
Letter of Credit fee in an amount equal to the then effective Applicable Margin
for LIBO Rate Loans, multiplied by the Stated Amount of each such Letter of
Credit, such fees being payable quarterly in arrears on each Quarterly Payment
Date following the date of issuance of each Letter of Credit and on the
Revolving Loan Commitment Termination Date. The Borrower further agrees to pay
to the applicable Issuer for its own account quarterly in arrears on each
Quarterly Payment Date following the date of issuance of a Letter of Credit and
on the Revolving Loan Commitment Termination Date an issuance fee as specified
in the Arranging Agents' Fee Letter.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrower and the
Administrative Agent, be conclusive and binding on the Borrower) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any Governmental Authority asserts that it is unlawful, for such
Lender to make or continue any Loan as, or to convert any Loan into, a LIBO Rate
Loan, the obligations of such Lender to make, continue or convert any such LIBO
Rate Loan shall, upon such determination, forthwith be suspended until such
Lender shall notify the Administrative Agent that the circumstances causing such
suspension no longer exist, and all outstanding LIBO Rate Loans payable to such
Lender shall automatically convert into Base Rate Loans at the end of the then
current Interest Periods with respect thereto or sooner, if required by such law
or assertion.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall
have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to it in its relevant
market; or
(b) by reason of circumstances affecting it's relevant market,
adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans;
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then, upon notice from the Administrative Agent to the Borrower and the Lenders,
the obligations of all Lenders under Section 2.3 and Section 2.4 to make or
continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. The Borrower agrees
to reimburse each Lender and Issuer for any increase in the cost to such Lender
or Issuer of, or any reduction in the amount of any sum receivable by such
Lender or Issuer in respect of, such Lender's or Issuer's Commitments and the
making of Credit Extensions hereunder (including the making, continuing or
maintaining (or of its obligation to make, continue or maintain) any Loans as,
or of converting (or of its obligation to convert) any Loans into, LIBO Rate
Loans) that arise in connection with any change in, or the introduction,
adoption, effectiveness, interpretation, reinterpretation or phase-in after the
date hereof of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority, except
for such changes with respect to increased capital costs and Taxes which are
governed by Sections 4.5 and 4.6, respectively. Each affected Lender or Issuer
shall promptly notify the Administrative Agent and the Borrower in writing of
the occurrence of any such event, such notice to state the reasons therefor and
the additional amount required fully to compensate such Lender or Issuer for
such increased cost or reduced amount. Such additional amounts shall be payable
by the Borrower directly to such Lender or Issuer within five days of its
receipt of such notice, and such notice shall, in the absence of manifest error,
be conclusive and binding on the Borrower.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make or continue any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a LIBO Rate Loan)
as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loan on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
Article III or otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/Conversion Notice
therefor;
then, upon the written notice of such Lender to the Borrower (with a copy to the
Administrative Agent), the Borrower shall, within five days of its receipt
thereof, pay directly to such Lender in each case at the applicable rate of
interest for such Loans provided for in this Agreement over the
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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 the Borrower.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority affects
or would affect the amount of capital required or expected to be maintained by
any Lender or Issuer or any Person controlling such Lender or Issuer, and such
Lender or Issuer determines (in good faith but in its sole and absolute
discretion) that the rate of return on its or such controlling Person's capital
as a consequence of the Commitments or the Credit Extensions made, or the
Letters of Credit participated in, by such Lender or Issuer is reduced to a
level below that which such Lender or Issuer or such controlling Person could
have achieved but for the occurrence of any such circumstance, then, in any such
case upon notice from time to time by such Lender or Issuer to the Borrower, the
Borrower shall within five days following receipt of such notice pay directly to
such Lender or Issuer additional amounts sufficient to compensate such Lender or
Issuer or such controlling Person for such reduction in rate of return. A
statement of such Lender or Issuer as to any such additional amount or amounts
shall, in the absence of manifest error, be conclusive and binding on the
Borrower. In determining such amount, such Lender or Issuer may use any method
of averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable.
SECTION 4.6. Taxes. The Borrower covenants and agrees as follows with
respect to Taxes.
(a) Any and all payments by the Borrower under this Agreement
and each other Loan Document shall be made without setoff, counterclaim
or other defense, and free and clear of, and without deduction or
withholding for or on account of, any Taxes. In the event that any
Taxes are required by law to be deducted or withheld from any payment
required to be made by the Borrower to or on behalf of any Credit Party
under any Loan Document, then (i) subject to clause (f), if such Taxes
are Non-Excluded Taxes, the amount of such payment shall be increased
as may be necessary such that such payment is made, after withholding
or deduction for or on account of such Taxes, in an amount that is not
less than the amount provided for herein or in such other Loan
Document; and (ii) the Borrower shall withhold the full amount of such
Taxes from such payment (as increased pursuant to clause (a) (i)) and
shall pay such amount to the Governmental Authority imposing such Taxes
in accordance with applicable law.
(b) In addition, the Borrower shall pay any and all Other
Taxes imposed to the relevant Governmental Authority imposing such
Other Taxes in accordance with applicable law.
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(c) As promptly as practicable after the payment of any Taxes
or Other Taxes, and in any event within 45 days of any such payment
being due, the Borrower shall furnish to the Administrative Agent a
copy of an official receipt (or a certified copy thereof) evidencing
the payment of such Taxes or Other Taxes. The Administrative Agent
shall make copies thereof available to any Lender upon request
therefor.
(d) Subject to clause (f), the Borrower shall indemnify each
Credit Party for any Non-Excluded Taxes and Other Taxes levied, imposed
or assessed on (and whether or not paid directly by) such Credit Party
(whether or not such Non-Excluded Taxes or Other Taxes are correctly or
legally asserted by the relevant Governmental Authority). Promptly upon
having knowledge that any such Non-Excluded Taxes or Other Taxes have
been levied, imposed or assessed, and promptly upon notice thereof by
any Credit Party, the Borrower shall pay such Non-Excluded Taxes or
Other Taxes directly to the relevant Governmental Authority (provided,
however, that no Credit Party shall be under any obligation to provide
any such notice to the Borrower). In addition, the Borrower shall
indemnify each Credit Party for any incremental Taxes that may become
payable by such Credit Party as a result of any failure of the Borrower
to pay any Taxes when due to the appropriate Governmental Authority or
to deliver to the Administrative Agent, pursuant to clause (c),
documentation evidencing the payment of Taxes or Other Taxes. With
respect to indemnification for Non-Excluded Taxes and Other Taxes
actually paid by any Credit Party or the indemnification provided in
the immediately preceding sentence, such indemnification shall be made
within 30 days after the date such Credit Party makes written demand
therefor. The Borrower acknowledges that any payment made to any Credit
Party or to any Governmental Authority in respect of the
indemnification obligations of the Borrower provided in this clause
shall constitute a payment in respect of which the provisions of clause
(a) and this clause shall apply.
(e) Each Non-U.S. Lender, on or prior to the date on which
such non-U.S. Lender becomes a Lender hereunder (and from time to time
thereafter upon the request of the Borrower or the Administrative
Agent, but only for so long as such non-U.S. Lender is legally entitled
to do so), shall deliver to the Borrower and the Administrative Agent
either
(i) (x) two duly completed copies of either (A)
Internal Revenue Service Form 1001 or (B) Internal Revenue
Service Form 4224, or in either case an applicable successor
form, and (y) a duly completed copy of Internal Revenue
Service Form W-8 or W-9 or applicable successor form; or
(ii) in the case of a Non-U.S. Lender that is not
legally entitled to deliver either form listed in clause
(e)(i)(x), (x) a certificate of a duly authorized officer of
such Non-U.S. Lender to the effect that such Non-U.S. Lender
is not (A) a "bank" within the meaning of Section 881(c)(3)(A)
of the Code, (B) a "10 percent shareholder" of the Borrower
within the meaning of Section 881(c)(3)(B) of the
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Code, or (C) a controlled foreign corporation receiving
interest from a related person within the meaning of Section
881(c)(3)(C) of the Code (such certificate, an "Exemption
Certificate") and (y) two duly completed copies of Internal
Revenue Service Form W-8 or applicable successor form.
(f) The Borrower shall not be obligated to gross up any
payments to any Lender pursuant to clause (a)(i), or to indemnify any
Lender pursuant to clause (d), in respect of United States federal
withholding taxes to the extent imposed as a result of (i) the failure
of such Lender to deliver to the Borrower the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to clause
(e), (ii) such form or forms and/or Exemption Certificate not
establishing a complete exemption from U.S. federal withholding tax or
the information or certifications made therein by the Lender being
untrue or inaccurate on the date delivered in any material respect, or
(iii) the Lender designating a successor lending office at which it
maintains its Loans which has the effect of causing such Lender to
become obligated for tax payments in excess of those in effect
immediately prior to such designation; provided, however, that the
Borrower shall be obligated to gross up any payments to any such Lender
pursuant to clause (a)(i), and to indemnify any such Lender pursuant to
clause (d), in respect of United States federal withholding taxes if
(i) any such failure to deliver a form or forms or an Exemption
Certificate or the failure of such form or forms or Exemption
Certificate to establish a complete exemption from U.S. federal
withholding tax or inaccuracy or untruth contained therein resulted
from a change in any applicable statute, treaty, regulation or other
applicable law or any interpretation of any of the foregoing occurring
after the date hereof, which change rendered such Lender no longer
legally entitled to deliver such form or forms or Exemption Certificate
or otherwise ineligible for a complete exemption from U.S. federal
withholding tax, or rendered the information or certifications made in
such form or forms or Exemption Certificate untrue or inaccurate in a
material respect, (ii) the redesignation of the Lender's lending office
was made at the request of the Borrower or (iii) the obligation to
gross up payments to any such Lender pursuant to clause (a)(i) or to
indemnify any such Lender pursuant to clause (d) is with respect to an
Assignee Lender that becomes an Assignee Lender as a result of an
assignment made at the request of the Borrower.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided in a Loan Document, all payments by the Borrower pursuant to this
Agreement or any other Loan Document shall be made by the Borrower to the
Administrative Agent for the pro rata account of the Credit Parties entitled to
receive such payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or counterclaim,
not later than 2:00 p.m., New York time, on the date due, in same day or
immediately available funds, to such account as the Administrative Agent shall
specify from time to time by notice to the Borrower. Funds received after that
time shall be deemed to have been received by the Administrative Agent on the
next succeeding Business Day. The Administrative Agent shall promptly remit in
same day funds to each Credit Party its share, if any, of such payments received
by the
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Administrative Agent for the account of such Credit Party. All interest and fees
based upon the LIBO Rate (Reserve Adjusted) shall be computed on the basis of
the actual number of days (including the first day but excluding the last day)
occurring during the period for which such interest or fee is payable over a
year comprised of 360 days and all other interest and fees shall be computed in
the same manner, however such calculations will be based upon a year comprised
of 365 days or, if appropriate, 366 days. Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (c) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Credit Party shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Credit Extension or Reimbursement
Obligation (other than pursuant to the terms of Section 4.3, 4.4, 4.5 or 4.6) in
excess of its pro rata share of payments obtained by all Credit Parties, such
Credit Party shall purchase from the other Credit Parties such participations in
Credit Extensions made by them as shall be necessary to cause such purchasing
Credit Party to share the excess payment or other recovery ratably (to the
extent such other Credit Parties were entitled to receive a portion of such
payment or recovery) with each of them; provided, however, that if all or any
portion of the excess payment or other recovery is thereafter recovered from
such purchasing Credit Party, the purchase shall be rescinded and each Credit
Party which has sold a participation to the purchasing Credit Party shall repay
to the purchasing Credit Party the purchase price to the ratable extent of such
recovery together with an amount equal to such selling Credit Party's ratable
share (according to the proportion of
(a) the amount of such selling Credit Party's required
repayment to the purchasing Credit Party
to
(b) total amount so recovered from the purchasing Credit
Party)
of any interest or other amount paid or payable by the purchasing Credit Party
in respect of the total amount so recovered. The Borrower agrees that any Credit
Party so purchasing a participation from another Credit Party pursuant to this
Section may, to the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section 4.9) with respect to such participation
as fully as if such Credit Party were the direct creditor of the Borrower in the
amount of such participation. If under any applicable bankruptcy, insolvency or
other similar law, any Credit Party receives a secured claim in lieu of a setoff
to which this Section applies, such Credit Party shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Credit Parties entitled under this Section to
share in the benefits of any recovery on such secured claim.
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SECTION 4.9. Setoff. Each Credit Party shall, upon the occurrence and
during the continuance of any Default described in clauses (a) through (d) of
Section 8.1.9 or, with the consent of the Required Lenders, upon the occurrence
and during the continuance of any other Event of Default, have the right to
appropriate and apply to the payment of the Obligations owing to it (whether or
not then due), and (as security for such Obligations) the Borrower hereby grants
to each Credit Party a continuing security interest in, any and all balances,
credits, deposits, accounts or moneys of the Borrower then or thereafter
maintained with such Credit Party; provided, however, that any such
appropriation and application shall be subject to the provisions of Section 4.8.
Each Credit Party agrees promptly to notify the Borrower and the Administrative
Agent after any such setoff and application made by such Credit Party; provided,
however, that the failure to give such notice shall not affect the validity of
such setoff and application. The rights of each Credit Party under this Section
are in addition to other rights and remedies (including other rights of setoff
under applicable law or otherwise) which such Credit Party may have.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders
and, if applicable, any Issuer to fund the initial Credit Extension shall be
subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have
received from each of the Borrower, the Partners and the Manager, as applicable,
(i) a copy of a good standing certificate, dated a date reasonably close to the
Effective Date, for each such Person and (ii) a certificate, dated the Effective
Date and with counterparts for each Lender, duly executed and delivered by such
Person's Secretary or Assistant Secretary, managing member or general partner,
as applicable, as to
(a) resolutions of each such Person's Board of Directors (or
other managing body, in the case of other than a corporation) then in
full force and effect authorizing, to the extent relevant, delivery and
performance of this Agreement, each other Loan Document to be executed
by such Person and the transactions contemplated hereby and thereby;
(b) the incumbency and signatures of those of its Authorized
Officers, as applicable, authorized to act with respect to this
Agreement and each other Loan Document to be executed by such Person;
and
(c) the full force and validity of each Organic Document of
such Person and copies thereof;
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upon which certificates each Secured Party may conclusively rely until it shall
have received a further certificate of the Secretary, Assistant Secretary,
managing member or general partner, as applicable, of any such Person canceling
or amending the prior certificate of such Person.
SECTION 5.1.2. Delivery of Notes. The Administrative Agent shall have
received, for the account of each Lender that has requested a Note, such
Lender's Notes duly executed and delivered by an Authorized Officer of the
Borrower.
SECTION 5.1.3. Payment of Outstanding Indebtedness, etc. All
Indebtedness identified in Item 7.2.2(b) of the Disclosure Schedule, together
with all interest, all prepayment premiums and other amounts due and payable
with respect thereto, shall have been paid in full from the proceeds of the
initial Credit Extension and the commitments in respect of such Indebtedness
shall have been terminated, and all Liens securing payment of any such
Indebtedness have been released and the Administrative Agent shall have received
all Uniform Commercial Code Form U.C.C.-3 termination statements or other
instruments as may be suitable or appropriate in connection therewith.
SECTION 5.1.4. Due Diligence. Each of the Arranging Agents shall have
completed and be satisfied in all respects with its review of the unaudited
financial statements of the Borrower for the Fiscal Quarter ended September 30,
1998.
SECTION 5.1.5. Partners Pledge Agreement. The Administrative Agent
shall have received, with counterparts for each Lender, the Partners Pledge
Agreement, dated as of the date hereof, duly executed and delivered by an
Authorized Officer of each Partner, together with confirmation and evidence
satisfactory to the Administrative Agent that the security interest in the
Capital Securities of the Borrower has been transferred to and perfected by the
Administrative Agent for the benefit of the Secured Parties in accordance with
Articles 8 and 9 of the U.C.C. and all laws otherwise applicable to the
perfection of the pledge of such shares. The Administrative Agent and its
counsel shall be satisfied that (i) the Lien granted to the Administrative
Agent, for the benefit of the Secured Parties in the collateral described above
is a first priority (or local equivalent thereof) security interest; and (ii) no
Lien exists on any of the collateral described above other than the Lien created
in favor of the Administrative Agent, for the benefit of the Secured Parties,
pursuant to a Loan Document.
SECTION 5.1.6. Subordination Agreements. The Administrative Agent shall
have received, with counterparts for each Lender, (a) the Manager Subordination
Agreement duly executed and delivered by an Authorized Officer of each Manager
and the Borrower, and (b) the Intercompany Subordination Agreement, duly
executed and delivered by an Authorized Officer of each Partner, the Borrower,
and each other Affiliate of the Borrower which may from time to time be the
payee of any Affiliate Indebtedness.
SECTION 5.1.7. Insurance. The Administrative Agent shall have
received, with copies for each Lender, certificates from one or more insurance
companies satisfactory to the
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Administrative Agent, evidencing coverage required to be maintained pursuant
hereto and each Loan Document.
SECTION 5.1.8. Closing Fees, Expenses, etc. The Administrative Agent
shall have received for its own account, or for the account of each Lender, as
the case may be, all fees, costs and expenses due and payable pursuant to
Sections 3.3 and 10.3, if then invoiced.
SECTION 5.1.9. Approvals. The Administrative Agent shall have received
evidence satisfactory to it that each Obligor possesses all governmental
authorizations, consents and approvals (if any) necessary for the execution,
delivery and performance of this Agreement and each other Loan Document to be
executed by such Obligor.
SECTION 5.1.10. Management Agreements. The Administrative Agent shall
have received, with copies for each Lender, the Borrower Management Agreement
and each other Management Agreement in effect on the Effective Date, in each
case, together with all amendments, waivers and other modifications made thereto
and a part thereof, certified in the Closing Date Certificate as being true and
correct and in full force and effect and such Management Agreements shall be in
form and substance (including terms regarding the subordination to the
Obligations of all Management Fees payable thereunder) satisfactory to the
Arranging Agents.
SECTION 5.1.11. Opinions of Counsel. The Administrative Agent shall
have received opinions, dated the Effective Date and addressed to the
Administrative Agent and all Lenders, from
(a) ▇▇▇▇▇ ▇▇▇▇▇▇, Deputy General Counsel to the Borrower and
each other Obligor, in form and substance satisfactory to the Arranging
Agents;
(b) ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, FCC counsel to the Borrower, in form
and substance satisfactory to the Arranging Agents; and
(c) ▇▇▇▇▇▇▇▇ Ingersoll, a Professional Corporation, special
Pennsylvania and New York counsel to the Borrower and each other
Obligor, in form and substance satisfactory to the Arranging Agents.
SECTION 5.1.12. Franchise Agreements and FCC Licenses. The Borrower
shall certify that it has all FCC Licenses, material permits and other rights,
including, all Franchises which are necessary to own and operate their
respective properties and Cable Systems and to carry on their respective
businesses as conducted on the Effective Date, and that all such instruments are
in the name of such Person.
SECTION 5.1.13. Financial Information, etc. The Administrative Agent
shall have received, with counterparts for each Lender, a pro forma consolidated
balance sheet of the
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Borrower and its Restricted Subsidiaries, as of the Effective Date (the
"Pro-Forma Balance Sheet"), certified by the chief financial or accounting
Authorized Officer of the Borrower, giving effect to all the transactions
contemplated by this Agreement and reflecting the proposed capital structure of
the Borrower, which shall be satisfactory to the Arranging Agents.
SECTION 5.1.14. Compliance Certificate. The Administrative Agent shall
have received, with counterparts for each Lender, an initial Compliance
Certificate on a pro forma basis as if the initial Credit Extension had been
made as of September 30, 1998 and as to such items therein as the Administrative
Agent reasonably requests, dated the Effective Date, duly executed (and with all
schedules thereto duly completed) and delivered by the chief executive,
financial or accounting Authorized Officer of the Borrower.
SECTION 5.1.15. Closing Date Certificate. The Administrative Agent
shall have received, with counterparts for each Lender, the Closing Date
Certificate, dated the Effective Date and duly executed and delivered by an
Authorized Officer of the Borrower, in which certificate the Borrower shall
agree and acknowledge that the statements made therein shall be deemed to be
true and correct representations and warranties of the Borrower as of such date,
and, at the time each such certificate is delivered, such statements shall in
fact be true and correct. All documents and agreements required to be appended
to the Closing Date Certificate shall be in form and substance satisfactory to
the Arranging Agents.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and
each Issuer to make any Credit Extension (including the initial Credit
Extension) shall be subject to the satisfaction of each of the conditions
precedent set forth below.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension (but, if any Default of the
nature referred to in Section 8.1.5 shall have occurred with respect to any
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds thereof) the following statements shall be true and
correct:
(a) the representations and warranties set forth in Article VI
and in each other Loan Document shall, in each case, be true and
correct with the same effect as if then made (unless stated to relate
solely to an earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of
such earlier date); and
(b) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request, etc. The Administrative Agent
shall have received a Borrowing Request if Loans are being requested, or an
Issuance Request if a Letter of Credit is being requested or extended. Each of
the delivery of a Borrowing Request or Issuance Request and the acceptance by
the Borrower of the proceeds of such Credit Extension shall
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constitute a representation and warranty by the Borrower that on the date of
such Credit Extension (both immediately before and after giving effect to such
Credit Extension and the application of the proceeds thereof) the statements
made in Section 5.2.1 are true and correct in all material respects.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower or any other Obligor
shall be reasonably satisfactory in form and substance to the Administrative
Agent and its counsel, and the Administrative Agent and its counsel shall have
received all information, approvals, opinions, documents or instruments as the
Administrative Agent or its counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce each Arranging Agent, each Issuer and each Lender to
enter into this Agreement and to make Credit Extensions hereunder, the Borrower
represents and warrants to each Arranging Agent, each Issuer and each Lender as
set forth in this Article.
SECTION 6.1. Organization, etc. (a) The Borrower, each of its
Restricted Subsidiaries and each other Obligor is validly organized and existing
and in good standing under the laws of the state or jurisdiction of its
incorporation or organization, is duly qualified to do business and is in good
standing as a foreign entity in each jurisdiction where the nature of its
business requires such qualification, and has full power and authority and holds
all requisite governmental licenses, permits and other approvals to enter into
and perform its Obligations under this Agreement and each other Loan Document to
which it is a party and to own and hold under lease its property and to conduct
its business substantially as currently conducted by it.
(b) The Partners are the only partners of the Borrower.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement and each other Loan
Document executed or to be executed by it and the execution, delivery and
performance by each other Obligor of each Loan Document executed or to be
executed by it, have been duly authorized by all necessary action, and do not
(a) contravene any such Person's Organic Documents;
(b) contravene any contractual restriction, any law or
governmental regulation, or any court decree or order binding on or
affecting any such Person; or
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(c) result in, or require the creation or imposition of, any
Lien on any of such Person's properties other than those contemplated
by the Loan Documents.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person (other than those that have been,
or on the Effective Date will be, duly obtained or made and which are, or on the
Effective Date will be, in full force and effect) is required for the due
execution, delivery or performance by the Borrower or any other Obligor of this
Agreement or any other Loan Document to which it is a party, in each case by the
parties thereto. Neither the Borrower nor any of its Subsidiaries is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes and each other
Loan Document executed by the Borrower will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms; and
each other Loan Document executed by each other Obligor will, on the due
execution and delivery thereof by such Obligor, constitute the legal, valid and
binding obligation of such Obligor enforceable against such Obligor in
accordance with its terms. The Franchise Agreements constitute the legal, valid
and binding obligations of the parties thereto, enforceable in accordance with
their respective terms.
SECTION 6.5. Financial Information. The financial statements of the
Borrower and its Restricted Subsidiaries furnished to the Administrative Agent
and each Lender pursuant to Section 5.1.13 have been prepared in accordance with
GAAP consistently applied, and present fairly the consolidated financial
condition of the Persons covered thereby as at the dates thereof and the results
of their operations for the periods then ended. All balance sheets, all
statements of operations, shareholders' equity and cash flow and all other
financial information of each of the Borrower and its Restricted Subsidiaries
furnished pursuant to Section 7.1.1 have been and will for periods following the
Effective Date be prepared in accordance with GAAP consistently applied, and do
or will present fairly the consolidated financial condition of the Persons
covered thereby as at the dates thereof and the results of their operations for
the periods then ended.
SECTION 6.6. No Material Adverse Change. There has been no material
adverse change in the financial condition, results of operations, assets,
business, properties or prospects of the Borrower or the Borrower and any of its
Subsidiaries, taken as a whole since September 30, 1998.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no
pending or, to the knowledge of the Borrower, its Subsidiaries or any Partner,
threatened litigation, action, proceeding, or labor controversy
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(a) except as disclosed in Item 6.7 of the Disclosure
Schedule, affecting the Borrower, or any other Obligated Party, or any
of their respective properties, businesses, assets or revenues, which
could reasonably be expected to have a Material Adverse Effect, and no
development has occurred in any labor controversy, litigation,
arbitration or governmental investigation or proceeding disclosed in
Item 6.7 which could reasonably be expected to have a Material Adverse
Effect; or
(b) which purports to affect the legality, validity or
enforceability of this Agreement, any other Loan Document, any
Management Agreement, the Organic Documents of any Obligor or any
Franchise Agreement to which the Borrower or any other Obligated Party
is a party.
SECTION 6.8. Subsidiaries. The Borrower has no Subsidiaries, except
those Subsidiaries
(a) which are identified in Item 6.8 of the Disclosure
Schedule; or
(b) which are permitted to have been organized or acquired in
accordance with Sections 7.2.5 or 7.2.9.
SECTION 6.9. Ownership of Properties. The Borrower and each of its
Restricted Subsidiaries owns (i) in the case of owned real property, good and
marketable fee title to, and (ii) in the case of owned personal property, good
and valid title to, or, in the case of leased real or personal property, valid
and enforceable leasehold interests (as the case may be) in, all of its
properties and assets, real and personal, tangible and intangible, of any nature
whatsoever, free and clear in each case of all Liens or claims, except for Liens
permitted pursuant to Section 7.2.3.
SECTION 6.10. Taxes. The Borrower and each of its Subsidiaries has
filed all tax returns and reports required by law to have been filed by it and
has paid all taxes and governmental charges thereby shown to be due and owing,
except any such taxes or charges which are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
SECTION 6.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the date of any Credit Extension hereunder, no
steps have been taken to terminate any Pension Plan, and no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a Lien
under section 302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which might result in the incurrence
by the Borrower or any member of the Controlled Group of any material liability,
fine or penalty. Except as disclosed in Item 6.11 of the Disclosure Schedule,
neither the Borrower nor any member of the Controlled Group has any contingent
liability with respect to any post-retirement benefit under a Welfare Plan,
other than liability for continuation coverage described in Part 6 of Title I of
ERISA.
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SECTION 6.12. Environmental Warranties. The Borrower and its
Subsidiaries are in material compliance with all Environmental Laws applicable
to the operation of their respective businesses in all jurisdictions in which
they are presently doing business, such that they will not incur or be subject
to any liability or penalty thereunder which is reasonably likely to result in a
Material Adverse Effect. Neither the Borrower nor any of its Subsidiaries
manages any Hazardous Materials in material violation of any Environmental Law,
and there are no known conditions or previously owned or leased properties or
operations of the Borrower or any of its Subsidiaries or tenants of the Borrower
or such Subsidiary which may give rise to any liabilities and costs under any
Environmental Law which are reasonably likely to result in a Material Adverse
Effect.
SECTION 6.13. Regulations U and X. Neither the Borrower or any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying margin stock, and no proceeds of any Credit Extensions
will be used to purchase or carry margin stock or otherwise for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation U or Regulation
X. Terms for which meanings are provided in F.R.S. Board Regulation U or
Regulation X or any regulations substituted therefor, as from time to time in
effect, are used in this Section with such meanings.
SECTION 6.14. The Franchises. Each Franchise of the Borrower and each
of its Restricted Subsidiaries is in full force and effect pursuant to each
agreement set forth in Item 6.14 ("Franchises") of the Disclosure Schedule, was
lawfully issued pursuant to the rules and regulations of each jurisdiction set
forth in Item 6.14 of the Disclosure Schedule and authorizes the Borrower and
each such Restricted Subsidiary to operate such Franchise until the dates set
forth in Item 6.14 of the Disclosure Schedule, 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 Borrower's or any of its Restricted
Subsidiaries' operation of its Cable Systems in accordance with the terms
thereof. Item 6.14 of the Disclosure Schedule correctly identifies each
franchisee. The Borrower and its Restricted Subsidiaries are in compliance with
all material terms and conditions of each of their respective Franchises and FCC
Licenses 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 Franchise or FCC License. No Unrestricted Subsidiary
owns or has rights to any FCC License or Franchise necessary for the ongoing
operations of the Borrower and its Restricted Subsidiaries or their respective
Cable Systems.
SECTION 6.15. Patents, Copyrights, FCC Licenses, etc. The Borrower and
each of its Restricted Subsidiaries owns, possesses and has the right to use all
licenses, permits and other rights, including all material agreements with
public utilities and microwave transmission companies, pole use access or rental
agreements (including Pole Agreements and Pole Rental Leases) and all other
utility easements, necessary to own and operate its properties and its Cable
Systems and to carry on its business as presently conducted or as presently
planned to be conducted. Each of the foregoing is in full force and effect and
the Borrower and each of its
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Restricted Subsidiaries is in compliance in all material respects with all the
terms and conditions of each thereof, with no known conflict with the rights of
others.
SECTION 6.16. Partnership Agreements; Management Agreement. The
partnership agreement of the Borrower and the partnership agreements of its
Restricted Subsidiaries (that are partnerships) and each Management Agreement
are in full force and effect and no default or event which, with the passage of
time or notice or both, would constitute a default, has occurred and is
continuing under each such Management Agreement or partnership agreement. Each
Manager has signed a Manager Subordination Agreement.
SECTION 6.17. Issuance of Subordinated Debt, and Affiliate Indebtedness
and Intercompany Indebtedness; Status of Obligations as Senior Indebtedness,
etc. The Borrower has the power and authority to incur the Subordinated Debt,
Affiliate Indebtedness and Intercompany Indebtedness as provided for under the
documents applicable thereto and has duly authorized, executed and delivered the
documents applicable to such Subordinated Debt, Affiliate Indebtedness and
Intercompany Indebtedness. The Borrower has issued, pursuant to due
authorization, the Subordinated Debt, Affiliate Indebtedness and Intercompany
Indebtedness under the applicable documents, and such documents constitute the
legal, valid and binding obligations of the Borrower enforceable against the
Borrower in accordance with its terms (except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and by principles of equity). The
subordination provisions of the Subordinated Debt, Affiliate Indebtedness and
Intercompany Indebtedness contained in the documents relating thereto are
enforceable against the holders of the Subordinated Debt, Affiliate Indebtedness
and Intercompany Indebtedness by the holder of any "Senior Indebtedness" or
similar term referring to the Obligations (as defined in such documents). All
Obligations, including those to pay principal of and interest (including
post-petition interest, whether or not allowed as a claim under bankruptcy or
similar laws) on the Loans and Reimbursement Obligations, and fees and expenses
in connection therewith, constitute "Senior Indebtedness" or similar term
relating to the Obligations (as defined in the applicable documents) and all
such Obligations are entitled to the benefits of the subordination by such
documents. The Borrower acknowledges that each Arranging Agent, each Lender and
each Issuer is entering into this Agreement and is extending its Commitments in
reliance upon the subordination provisions of the Sub Debt Documents, the
Intercompany Subordination Agreement and the Manager Subordination Agreements.
SECTION 6.18. Accuracy of Information. None of the factual information
heretofore or contemporaneously furnished in writing to any Credit Party by or
on behalf of the Borrower or any other Obligor for purposes of or in connection
with this Agreement or any transaction contemplated hereby (true and complete
copies of which were furnished to the Credit Parties in connection with its
execution and delivery hereof), contains any untrue statement of a material
fact, and no other factual information hereafter furnished in connection with
this Agreement or any other Loan Document by the Borrower or any other Obligor
to any Credit Party will contain any untrue statement of a material fact on the
date as of which such information is dated or
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certified and, as of the date of the execution and delivery of this Agreement by
the Credit Parties, the information delivered prior to the date of execution and
delivery of this Agreement (unless such information specifically relates to a
prior date) does not, and the factual information hereafter furnished shall not
on the date as of which such information is dated or certified, omit to state
any material fact necessary to make any information not misleading.
SECTION 6.19. Solvency. Both before and immediately after giving
effect to any Credit Extension requested hereunder:
(a) the fair value of the assets of the Borrower and its
Subsidiaries on a consolidated basis will exceed the total amount of
liabilities (including contingent, subordinated, unmatured and
unliquidated liabilities) of the Borrower and its Subsidiaries on a
consolidated basis, on a going-concern basis;
(b) the present fair salable value (as defined below) of the
assets of the Borrower and its Subsidiaries on a consolidated basis
will exceed the probable total liabilities (including contingent,
subordinated, unmatured and unliquidated liabilities) of the Borrower
and its Subsidiaries on a consolidated basis as they become absolute
and matured;
(c) the Borrower and its Subsidiaries on a consolidated basis
will be able to pay their debts, including contingent liabilities, as
they mature and become due;
(d) the Borrower and its Subsidiaries on a consolidated basis
are not, and will not be, engaged in a business for which their
consolidated capital is, or would be, unreasonably small for the
Borrower's consolidated business; and
(e) the Borrower and its Subsidiaries on a consolidated basis
have not incurred (by way of assumption or otherwise) any obligations
or liabilities (contingent or otherwise) under this Agreement or any
other Loan Document, nor have they made any conveyance pursuant to or
in connection therewith, with actual intent to hinder, delay or defraud
either present or future creditors of the Borrower or any of its
Subsidiaries.
For purposes of this Section, the "fair salable value" of the Borrower's and its
Subsidiaries' assets means the amount which may be realized within a reasonable
time, either through collection or sale of such assets on an "arms' length"
basis at the regular market value, based upon the amount which could be obtained
for such assets within such period by a capable and diligent seller from an
interested buyer who is willing (but is under no compulsion) to purchase under
ordinary selling conditions.
SECTION 6.20. Compliance with Laws. The Borrower and its Subsidiaries
and the Cable Systems owned or to be owned by them are in compliance in all
material respects with all applicable federal, state and local laws, rules and
regulations.
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SECTION 6.21. Year 2000 Compliance. The Borrower and each other
Obligated Party has reviewed the areas within its business and operations
(including those affected by suppliers and vendors) which could be adversely
affected by, and has developed or is developing a program to address on a timely
basis, the "Year 2000 Problem" (that is, the risk that computer applications
used by such Person (or suppliers and vendors) may be unable to recognize and
properly perform date-sensitive functions involving certain dates prior to and
any date after December 31, 1999). Based on such review and program, the Year
2000 Problem could not reasonably be expected to have a Material Adverse Effect.
ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. The Borrower agrees with each
Lender, each Issuer and each Arranging Agent that until the Termination Date has
occurred, the Borrower will, and will cause its Subsidiaries to, perform or
cause to be performed the obligations set forth below.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. The
Borrower will furnish or cause to be furnished to the Administrative Agent (with
sufficient copies for each Lender) copies of the following financial statements,
reports, notices and information:
(a) as soon as available and in any event within 90 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year,
an unaudited consolidated balance sheet of the Borrower and its
Restricted Subsidiaries as of the end of such Fiscal Quarter and
consolidated statements of income and cash flow of the Borrower and its
Restricted Subsidiaries for such Fiscal Quarter and for the period
commencing at the end of the previous Fiscal Year and ending with the
end of such Fiscal Quarter, and, beginning with the financial
statements for the December 31, 1999 Fiscal Quarter, including (in each
case), in comparative form the figures for the corresponding Fiscal
Quarter in, and (to the extent available) year to date portion of, the
immediately preceding Fiscal Year (in each case as to assets owned by
the Borrower and its Restricted Subsidiaries during the period in
question), certified as complete and correct by any financial or
accounting Authorized Officer of the Borrower;
(b) as soon as available and in any event within 120 days
after the end of each Fiscal Year, a copy of the consolidated balance
sheet of the Borrower and its Restricted Subsidiaries, and the related
consolidated statements of income and cash flow of the Borrower and its
Restricted Subsidiaries for such Fiscal Year, and, beginning with the
financial statements delivered for the 2001 Fiscal Year (or, if the
Borrower changes its Fiscal Year to one ending on December 31, the 2000
Fiscal Year), setting forth in comparative form the figures for the
immediately preceding Fiscal Year (in each case as
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to assets owned by the Borrower and its Restricted Subsidiaries during
the period in question), audited (without any Impermissible
Qualification) by an Approved Accounting Firm or another independent
public accounting firm reasonably acceptable to the Administrative
Agent stating that, in performing the examination necessary to deliver
the audited financial statements of the Borrower, no knowledge was
obtained of any Default;
(c) concurrently with the delivery of the financial
information pursuant to clauses (a) and (b), a Compliance Certificate,
executed by any financial or accounting Authorized Officer of the
Borrower, (i) showing (in reasonable detail and with appropriate
calculations and computations in all respects satisfactory to the
Administrative Agent) compliance with the financial covenants set forth
in Section 7.2.4 and Section 7.2.7, (ii) stating that no Default has
occurred and is continuing and (iii) giving notice, if applicable, of
(A) the incurrence of Indebtedness of the types described in clauses
(d), (e), (g), and (j) of Section 7.2.2, (B) any Investments made, as
permitted pursuant to clauses (d) and (f) of Section 7.2.5, (C) any
payment of dividends or distributions, as permitted pursuant to Section
7.2.6, (D) any prepayment of Subordinated Debt, as permitted pursuant
to Section 7.2.8, (E) the occurrence of any liquidations, dissolutions
or mergers, as permitted pursuant to Section 7.2.9, (F) the occurrence
of any Permitted Asset Swap, Permitted Business Acquisition or
Permitted Disposition, (G) notice of any (i) voluntary liquidation or
dissolution by any Subsidiary of the Borrower into the Borrower or
another Subsidiary of the Borrower, (ii) merger by any Subsidiary of
the Borrower with and into the Borrower or another Subsidiary of the
Borrower, or (iii) the purchase by the Borrower or any of its
Subsidiaries of any Capital Securities of the Borrower or any other
Subsidiary of the Borrower, during the preceding Fiscal Quarter, (H)
any Capital Contribution or Property Contribution made to the Borrower,
(I) the sale or distribution of any limited partnership interest in the
Borrower and (J) the occurrence of any Default or Event of Default and
specifying the details of such Default and the action that the Borrower
or such Obligor has taken or proposes to take with respect thereto;
(d) as soon as possible and in any event within five days
after the Borrower or any other Obligated Party obtains knowledge of
the occurrence of a Default, a statement of an Authorized Officer of
the Borrower setting forth details of such Default and the action which
the Borrower or such Obligated Party has taken and proposes to take
with respect thereto;
(e) as soon as possible and in any event within five days
after the Borrower or any other Obligated Party obtains knowledge of
(i) the occurrence of any material adverse development with respect to
any litigation, action, proceeding or labor controversy described in
Item 6.7 of the Disclosure Schedule or (ii) the commencement of any
litigation, action, proceeding or labor controversy of the type and
materiality described in Section 6.7, notice thereof and, to the extent
the Administrative Agent requests, copies of all documentation relating
thereto;
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(f) concurrently with the delivery of the financial
information pursuant to clauses (a) and (b), a subscriber's report of
the Borrower as of the end of such Fiscal Quarter setting forth (i) the
number of Basic Subscribers of the Borrower and its Subsidiaries, (ii)
the number of Premium Subscriptions of the Borrower and its
Subsidiaries and (iii) the number of Homes Passed of the Borrower and
its Subsidiaries;
(g) promptly after the sending or filing thereof, copies of
all reports, notices, prospectuses and registration statements which
the Borrower, any Subsidiary, any Partner or ACC files with the SEC or
any national securities exchange (including, copies of Form 10-K and
Form 10-Q);
(h) immediately upon becoming aware of (i) the institution of
any steps by any Person to terminate any Pension Plan, (ii) the failure
to make a required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under Section 302(f) of ERISA, (iii)
the taking of any action with respect to a Pension Plan which could
result in the requirement that any Obligated Party furnish a bond or
other security to the PBGC or such Pension Plan, or (iv) the occurrence
of any event with respect to any Pension Plan which could result in the
incurrence by any Obligated Party of any material liability, fine or
penalty, notice thereof and copies of all documentation relating
thereto;
(i) promptly upon receipt thereof, copies of all "management
letters" submitted to the Borrower or any other Obligated Party by the
Approved Accounting Firm or other independent public accountants
referred to in clause (b) in connection with each audit made by such
accountants;
(j) promptly following the mailing or receipt of any notice or
report delivered under the terms of any Subordinated Debt, copies of
such notice or report;
(k) promptly after the occurrence of (i) any lapse or other
termination of any FCC License, permit, Franchise or other
authorization issued to the Borrower or any of its Restricted
Subsidiaries by any Governmental Authority or (ii) any refusal by any
Governmental Authority to renew or extend any such FCC License, permit,
Franchise or other authorization, in either case to the extent that any
such event could reasonably be expected to result in a Material Adverse
Effect, notice thereof;
(l) promptly upon their becoming available to the Borrower,
copies of (i) any periodic or special report filed by the Borrower or
any of its Restricted Subsidiaries with the FCC or any other
Governmental Authority regulating any of their respective Cable Systems
if (A) such report indicates any material changes in the business,
operations, assets, properties or financial condition of the Borrower
and its Subsidiaries, taken as a whole, or (B) a copy thereof is
requested by any Lender and (ii) any notice or other communication from
the FCC or from any state or local authority regulating cable systems
which specifically relates to the operation of any Cable System of the
Borrower
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or any of its Restricted Subsidiaries, or which relates to matters
which, in each case, if unremedied, could reasonably be expected to
have a Material Adverse Effect; and
(m) such other financial and other information regarding any
Obligor as any Lender or Issuer through the Administrative Agent may
from time to time reasonably request (including information and reports
in such detail as the Administrative Agent may request with respect to
the terms of and information provided pursuant to the Compliance
Certificate).
SECTION 7.1.2. Maintenance of Existence; Compliance with Laws, etc.
The Borrower will, and will cause each of its Subsidiaries to,
(a) except as otherwise permitted by Section 7.2.9 or Section
7.2.10, preserve and maintain its legal existence;
(b) comply in all material respects with all applicable laws,
rules, regulations and orders, including the payment (before the same
become delinquent), of all taxes, assessments and governmental charges
imposed upon the Borrower or its Subsidiaries or upon their property
except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP have been set aside on the books of the Borrower or its
Subsidiaries, as applicable; and
(c) maintain in full force and effect all material
authorizations, consents, approvals, licenses, exemptions and other
actions by, and all registrations, qualifications, designations and
declarations and other filings with, each Governmental Authority
necessary or advisable in connection with the execution and delivery of
each Loan Document and the ownership and operation of each of their
respective Cable Systems.
SECTION 7.1.3. Maintenance of Properties. The Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its and
their respective properties in good repair, working order and condition
(ordinary wear and tear excepted), and make necessary repairs, renewals and
replacements so that the business carried on by the Borrower and its
Subsidiaries may be properly conducted at all times, unless the Borrower or such
Subsidiary determines in good faith that the continued maintenance of such
property is no longer economically desirable.
SECTION 7.1.4. Insurance. The Borrower will, and will cause each of
its Restricted Subsidiaries to maintain:
(a) insurance on its property with financially sound and
reputable insurance companies against loss and damage in at least the
amounts (and with only those deductibles) customarily maintained, and
against such risks as are typically insured
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against in the same general area, by Persons of comparable size engaged
in the same or similar business as the Borrower and its Restricted
Subsidiaries; and
(b) all worker's compensation, employer's liability insurance
or similar insurance as may be required under the laws of any state or
jurisdiction in which it may be engaged in business.
SECTION 7.1.5. Books and Records. The Borrower will, and will cause
each of its Restricted Subsidiaries to, keep books and records in accordance
with GAAP which accurately reflect all of its business affairs and transactions
and permit each Credit Party or any of their respective representatives, at
reasonable times and intervals upon reasonable notice to the Borrower, to visit
the Borrower's and its Restricted Subsidiaries' respective offices, to discuss
such Person's financial matters with its officers and employees, and its
independent public accountants (and the Borrower hereby authorizes such
independent public accountant to discuss the Borrower's and its Restricted
Subsidiaries') financial matters with each Credit Party or their representatives
if a representative of the Borrower or such Subsidiary is present) and to
examine (and photocopy extracts from) any of its books and records. The Borrower
shall pay any fees of such independent public accountant incurred in connection
with any Credit Party's exercise of its rights pursuant to this Section.
SECTION 7.1.6. Environmental Law Covenant. The Borrower will, and
will cause each of its Subsidiaries to,
(a) use and operate all of its and their facilities and
properties in material compliance with all Environmental Laws, keep all
necessary permits, approvals, certificates, licenses and other
authorizations relating to environmental matters in effect and remain
in material compliance therewith, and handle all Hazardous Materials in
material compliance with all applicable Environmental Laws; and
(b) promptly notify the Administrative Agent and provide
copies upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and properties in
respect of, or as to compliance with, Environmental Laws, and shall
promptly resolve any material non-compliance with Environmental Laws
and keep its property free of any Lien imposed by any Environmental
Law.
SECTION 7.1.7. Rate Protection. On or prior to the 180th day following
the Effective Date, the Borrower will enter into one or more Rate Protection
Agreements having expiration dates occurring no earlier than the third
anniversary of the Effective Date, in substance reasonably satisfactory to the
Administrative Agent, on an aggregate notional principal amount equal to at
least 35% of the average principal amount of the Loans outstanding from the
Effective Date (after the making of the initial Loans) through and including the
180th day following the Effective Date. Notwithstanding the foregoing, however,
the Borrower may obtain up to 50% of its interest rate protection required
pursuant to this Section 7.1.7 from one or more of its
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Affiliates (satisfactory to the Administrative Agent). All such interest rate
protection agreements which are not Rate Protection Agreements shall be
unsecured and all Rate Protection Agreements shall be secured, on a pari passu
basis, with the security interests granted by the Borrower to the Administrative
Agent on behalf of the Lenders in connection with this Agreement.
SECTION 7.1.8. Subordination. The Borrower will take all action
necessary to ensure that the payment or repayment of the Affiliate Indebtedness
and the Intercompany Indebtedness is subject to the terms and conditions of the
Subordination Agreements at all times.
SECTION 7.1.9. Use of Proceeds. The proceeds of the Credit Extensions
will be applied as follows:
(a) the proceeds of the Loans in an amount not to exceed
$668,000,000 made on the Initial Funding Date will be used by the
Borrower (either directly or by way of a distribution to Affiliates of
the Borrower to then contemporaneously be applied) to repay in full the
Indebtedness identified in Item 7.2.2(b) of the Disclosure Schedule;
and
(b) the proceeds of Loans made or Letters of Credit issued on
or subsequent to the Initial Funding Date will be used for the ongoing
working capital and general corporate and partnership purposes, as the
case may be, of the Borrower and its Restricted Subsidiaries.
SECTION 7.1.10. Additional Collateral. The Borrower shall, and shall
cause each of its Restricted Subsidiaries and each Minority Owner to, cause the
Secured Parties to have at all times a first priority perfected security
interest in all of the issued and outstanding Capital Securities of the
Restricted Subsidiaries acquired or created by the Borrower or any of its
Restricted Subsidiaries after the Effective Date as well as any intercompany
notes evidencing intercompany Indebtedness permitted by clause (j) of Section
7.2.2. Without limiting the generality of the foregoing, the Borrower shall, and
shall cause each of its Restricted Subsidiaries and each Minority Owner to,
deliver or cause to be delivered to the Administrative Agent all Capital
Securities of the after-acquired Restricted Subsidiaries for which possession by
the Administrative Agent is required and (in the case of uncertificated
securities), take all actions necessary under Articles 8 and 9 of the applicable
State's Uniform Commercial Code, in each case for perfection of such security
interest, and shall, and shall cause each of its Restricted Subsidiaries to
execute, deliver and/or file (as applicable), or cause to be executed, delivered
and/or filed (as applicable), each Pledge Agreement, U.C.C. financing statement,
U.C.C. termination statement and other documentation necessary to grant and
perfect such security interest, in each case in form and substance reasonably
satisfactory to the Administrative Agent.
SECTION 7.1.11. Future Subsidiaries. Upon any Person becoming, after
the Effective Date, either a direct or indirect Restricted Subsidiary or upon
the Borrower or any Restricted Subsidiary acquiring additional Capital
Securities of any other Restricted Subsidiary or upon any Minority Owner
acquiring any Capital Securities of any Restricted Subsidiary or upon the
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Borrower, any Restricted Subsidiary or any Minority Owner acquiring additional
Capital Securities of any existing Restricted Subsidiary, the Borrower shall, or
shall cause such Restricted Subsidiary or such Minority Owner, as the case may
be, to, promptly notify the Administrative Agent of such event, and
(a) if such Person is a U.S. Subsidiary of the Borrower before
or after giving effect to such acquisition the Borrower will, and cause
any Subsidiary that owns Capital Securities in a Restricted Subsidiary
to, (i) enter into or deliver a supplement to the Borrower Pledge
Agreement (as applicable), in order to pledge to the Administrative
Agent the Borrower's ownership interest in such Restricted Subsidiary
in a manner satisfactory to the Administrative Agent and, as
applicable, (ii) cause each Minority Owner of such Person to enter into
or deliver a supplement to, the Minority Owner Pledge Agreement (as
applicable), in order to pledge to the Administrative Agent such
Minority Owner's ownership interest in such Restricted Subsidiary in a
manner satisfactory to the Administrative Agent;
(b) such Restricted Subsidiary (if a U.S. Subsidiary of the
Borrower before or after giving effect to such acquisition) shall
become a party to the Subsidiary Pledge Agreement and the Subsidiary
Guaranty, if not already a party thereto, in a manner satisfactory to
the Administrative Agent; and
(c) such Restricted Subsidiary, if it is party to a Management
Agreement, shall become a party to a Manager Subordination Agreement,
if not already a party thereto, in a manner satisfactory to the
Administrative Agent;
together, in each case, with such opinions, in form and substance satisfactory
to the Administrative Agent, as the Administrative Agent may reasonably require.
Neither the Borrower nor any of its Restricted Subsidiaries shall acquire or
otherwise establish or own any interest in any Restricted Subsidiary unless all
the Capital Securities are owned by the Borrower, one or more Restricted
Subsidiaries and/or (if applicable) Minority Owners, in each case free and clear
of all Liens (except for Liens in favor of the Secured Parties to secure the
Obligations).
SECTION 7.1.12. Year 2000 Compliance. The Borrower will promptly notify
the Administrative Agent in the event the Borrower or any Restricted Subsidiary
discovers or determines that any computer application (including those of its
suppliers or vendors) that is material to its or any of its Subsidiaries'
business and operations will not be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000, except to the extent
that such failure could not reasonably be expected to have a Material Adverse
Effect.
SECTION 7.2. Negative Covenants. The Borrower covenants and agrees with
each Lender, each Issuer and each Arranging Agent that until the Termination
Date has occurred, the Borrower will, and will cause its Restricted Subsidiaries
to, perform or cause to be performed the obligations set forth below.
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SECTION 7.2.1. Business Activities. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, engage in any business activity,
except owning, operating, managing and investing in Cable Systems and activities
reasonably incidental or related thereto.
SECTION 7.2.2. Indebtedness. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, create, incur, assume or permit to
exist any Indebtedness, other than:
(a) Indebtedness in respect of the Obligations;
(b) until the date of the initial Credit Extensions,
Indebtedness that is to be repaid in full as further identified in Item
7.2.2(b) of the Disclosure Schedule;
(c) Indebtedness existing as of the Effective Date which is
identified in Item 7.2.2(c) of the Disclosure Schedule, and refinancing
of such Indebtedness so long as the amount is not increased;
(d) unsecured Subordinated Debt of the Borrower and its
Restricted Subsidiaries incurred pursuant to the terms of the Sub Debt
Documents, and refinancings thereof (provided, that such refinanced
Indebtedness shall continue to comply with the definition of
"Subordinated Debt");
(e) unsecured Affiliate Indebtedness (excluding Management
Fees) in an aggregate outstanding principal amount not to exceed
$125,000,000 at any time;
(f) deferred Management Fees owing to a Manager that has
executed and delivered a Manager Subordination Agreement;
(g) senior unsecured Indebtedness of the Borrower and its
Restricted Subsidiaries which shall not provide for any scheduled
principal repayments prior to the Stated Maturity Date and not have a
scheduled maturity date earlier than the Stated Maturity Date, with
material terms that are no more restrictive to the Borrower and its
Restricted Subsidiaries, as determined in the reasonable judgement of
the Arranging Agents, than those terms found in this Agreement;
(h) Indebtedness in an aggregate principal amount not to
exceed $35,000,000 for the Borrower and its Restricted Subsidiaries at
any time outstanding which is incurred in respect of Capitalized Lease
Liabilities; provided, that at the election of the Borrower, up to
$5,000,000 of the Indebtedness permitted by this clause can be incurred
for obligations which do not constitute Capitalized Lease Liabilities;
(i) unsecured Indebtedness (i) incurred in the ordinary course
of business of the Borrower and its Restricted Subsidiaries (including
open accounts extended by suppliers on normal trade terms in connection
with purchases of goods and services which are not
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overdue for a period of more than 90 days or, if overdue for more than
90 days, as to which a dispute exists and adequate reserves in
conformity with GAAP have been established on the books of the Borrower
or such Restricted Subsidiary) and (ii) in respect of performance,
surety or appeal bonds provided in the ordinary course of business, but
excluding (in each case), Indebtedness incurred through the borrowing
of money or Contingent Liabilities in respect thereof; and
(j) unsecured Indebtedness of (i) the Borrower owing to
Restricted Subsidiaries that have executed and delivered the
Intercompany Subordination Agreement and (ii) the Borrower's Restricted
Subsidiaries owing to the Borrower or to another Restricted Subsidiary
which shall not be forgiven or otherwise discharged for any
consideration other than payment Dollar for Dollar in cash, unless the
Arranging Agents otherwise consent;
provided, however, that no Indebtedness otherwise permitted by clause (d), (e),
(g), or (j)(ii) shall be assumed or otherwise incurred if a Default has occurred
and is then continuing or would result therefrom.
SECTION 7.2.3. Liens. The Borrower will not, and will not permit any of
its Restricted Subsidiaries to, create, incur, assume or permit to exist any
Lien upon any of its property (including Capital Securities of any Person),
revenues or assets, whether now owned or hereafter acquired, except:
(a) Liens securing payment of the Obligations;
(b) until the Effective Date, Liens securing payment of
Indebtedness of the type described in clause (b) of Section 7.2.2;
(c) Liens existing as of the Effective Date and disclosed in
Item 7.2.3(c) of the Disclosure Schedule securing Indebtedness
described in clause (c) of Section 7.2.2, and refinancings of such
Indebtedness; provided, that no such Lien shall encumber any additional
property and the amount of Indebtedness secured by such Lien is not
increased from that existing on the Effective Date (as such
Indebtedness may have been permanently reduced subsequent to the
Effective Date);
(d) Liens securing Indebtedness permitted pursuant to clause
(h) of Section 7.2.2; provided, that such Lien does not (i) secure
Indebtedness in excess of the amount of Indebtedness incurred with
respect to such Capitalized Lease Liability, (ii) attach to any assets
or property of the Borrower or its Restricted Subsidiaries beyond the
assets or property leased or acquired as a result of the incurrence of
such Indebtedness (in the case of Capitalized Lease Liabilities), and
(iii) in the case of other than Capitalized Lease Liabilities, such
Lien is in respect of real property owned or leased by the Borrower or
a Restricted Subsidiary;
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(e) 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;
(f) Liens in favor of carriers, warehousemen, mechanics,
materialmen and landlords granted in the ordinary course of business
for amounts not overdue or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;
(g) Liens incurred or deposits made in the ordinary course of
business in connection with workmen's compensation, unemployment
insurance or other forms of governmental insurance or benefits, or to
secure performance of tenders, statutory obligations, bids, leases or
other similar obligations (other than for borrowed money) entered into
in the ordinary course of business or to secure obligations on surety
and appeal bonds or performance bonds;
(h) judgment Liens in existence for less than 45 days after
the entry thereof or with respect to which execution has been stayed or
the payment of which is (i) covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance
companies, (ii) adequately bonded (as reasonably determined by the
Administrative Agent) or (iii) covered by adequate reserves in
conformity with GAAP which have been established on the books of such
Person;
(i) easements, rights-of-way, zoning restrictions, minor
defects or irregularities in title and other similar encumbrances not
interfering in any material respect with the value or use of the
property to which such Lien is attached;
(j) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books; and
(k) Liens securing Indebtedness of any Unrestricted Subsidiary
in favor of a lender to such Subsidiary; provided that (i) such Liens
are granted only in the Capital Securities of such Subsidiary and (ii)
the Indebtedness is totally nonrecourse (including by way of a
Contingent Liability) to the Borrower nor any Restricted Subsidiary.
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SECTION 7.2.4. Financial Condition and Operations. The Borrower will
not permit to occur any of the events set forth below.
(a) Leverage Ratio. The Borrower will not permit the Leverage
Ratio on the last day of any Fiscal Quarter occurring during any period
set forth below to be greater than the ratio set forth opposite such
period:
Period Ratio
------ -----
Effective Date through (and including) 6.50:1
03/31/00
04/01/00 through (and including) 6.25:1
09/30/00
10/01/00 through (and including) 6.00:1
03/31/01
04/01/01 through (and including 5.75:1
09/30/01
10/01/01 through (and including) 5.50:1
03/31/02
Each Fiscal Quarter thereafter 4.50:1
(b) Interest Coverage. The Borrower will not permit the
Interest Coverage Ratio on the last day of any Fiscal Quarter to be
less than 2:1.
(c) Pro-Forma Debt Service Coverage. The Borrower will not
permit the ratio of Annualized Operating Cash Flow to Pro-Forma Debt
Service on the last day of any Fiscal Quarter to be less than 1.10:1;
provided, however, that this covenant shall not apply for any Fiscal
Quarter in which the Leverage Ratio is less than 3.5:1.
(d) Fixed Charge Coverage. From and after March 31, 2001, the
Borrower will not permit the Fixed Charge Coverage Ratio on the last
day of any Fiscal Quarter to be less than 1:1; provided, however, that
this covenant shall not apply for any Fiscal Quarter in which the
Leverage Ratio is less than 3.5:1.
SECTION 7.2.5. Investments. The Borrower will not, and will not
permit any of its Restricted Subsidiaries to, purchase, make, incur, assume or
permit to exist any Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified
in Item 7.2.5(a) of the Disclosure Schedule;
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(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
(d) without duplication, Permitted Business Acquisitions made
by the Borrower or any of its Restricted Subsidiaries in an aggregate
amount not to exceed (individually or in the aggregate over the term of
this Agreement) at any time $150,000,000 plus the amount of any Net
Disposition Proceeds not theretofore utilized pursuant to this clause
or applied to a repayment of the Loans pursuant to the terms of this
Agreement; provided, that upon making such Investments, the provisions
of Section 7.1.11 are complied with;
(e) Investments constituting (i) accounts receivable arising,
(ii) trade debt granted, or (iii) deposits made in connection with the
purchase price of goods or services, in each case in the ordinary
course of business;
(f) Investments received (i) in consideration for Restricted
Payments permitted under Section 7.2.6 or (ii) (without duplication) as
non-cash Permitted Consideration;
(g) Investments made by the Borrower or any Restricted
Subsidiary in other Restricted Subsidiaries;
(h) Investments made in accordance with clause (a) of Section
7.2.10; and
(i) Investments consisting of Contributed Property;
provided, however, that
(j) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment"
may continue to be held (but not renewed) notwithstanding that such
Investment if made thereafter would not comply with such requirements;
and
(k) no Investment otherwise permitted by clauses (d), (f) and
(h) shall be permitted to be made if, immediately before or after
giving effect thereto, any Default (including under Section 7.2.4)
shall have occurred and be continuing or would result therefrom.
SECTION 7.2.6. Restricted Payments, etc. (a) The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, declare or make a
Restricted Payment, or make any deposit for any Restricted Payment; provided,
however, that after the delivery of the most recent financial statements and
Compliance Certificate required by Section 7.1.1, the Borrower or any of its
Restricted Subsidiaries may declare and make Restricted Payments if (x) no
Default
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hereunder or any default under other Total Debt exists immediately before and
after giving effect to the making of such Restricted Payment and (y) the
Leverage Ratio has been less than 5:1 for the most recently ended Fiscal Quarter
for which a Compliance Certificate was delivered immediately preceding the date
of such Restricted Payment, and shall continue to be less than 5:1 on a pro
forma basis after giving effect thereto; provided, further, that in the case of
Restricted Payments of Existing Assets, such Restricted Payment also satisfies
the requirements of a Permitted Existing Asset Transfer.
(b) Notwithstanding the foregoing, however, the Borrower or any of its
Restricted Subsidiaries may declare and make Restricted Payments (i) with the
amount of Capital Contributions made into the Borrower after the Effective Date;
provided that (A) no Default exists immediately before and after giving effect
to the making of such Restricted Payment and (B) after giving effect thereto,
the Aggregate Capital Contribution Amount is greater than $1.00; or (ii) so long
as no Default exists immediately before and after giving effect to the making of
such Restricted Payment, (A) with property (referred to as "Contributed
Property") which had been previously contributed to the Borrower as a Property
Contribution; provided, that such property is similar in all material respects
(as determined by the Arranging Agents, including as to the Fair Market Value
thereof) to the Contributed Property and the Restricted Payment under this
clause (b)(ii) shall cause a reduction in the amount (equal to the Fair Market
Value (determined as of the date of contribution) of such Contributed Property)
available for future Restricted Payments under this clause (b)(ii) or (B) with
Existing Assets so long as (x) such Restricted Payment satisfies the
requirements of a Permitted Existing Asset Transfer (or, if less, the amount
available to be made as a Restricted Payment pursuant to this clause (b)(ii))
and (y) such Existing Assets shall have a Fair Market Value no greater than the
aggregate Fair Market Value of all Contributed Property contributed on or prior
to such date (as such amount has been reduced by Restricted Payments of
Contributed Property previously made pursuant to this clause (b)(ii)).
SECTION 7.2.7. Capital Expenditures (1999 and 2000). The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, make or commit
to make Capital Expenditures in excess of $85,000,000 during the twelve-month
period ending December 31, 1999 ("Year 1") and $85,000,000 during the
twelve-month period ending December 31, 2000 ("Year 2"); provided, however,
that, to the extent the amount of Capital Expenditures permitted to be made in
Year 1 pursuant to this Section exceeds the aggregate amount of Capital
Expenditures actually made by the Borrower and its Restricted Subsidiaries
during Year 1, the excess amount may be carried forward to Year 2 (any such
amount to be certified by the Borrower to the Administrative Agent in the
Compliance Certificate delivered for the last Fiscal Quarter of the 1999 Fiscal
Year).
SECTION 7.2.8. No Prepayment of Subordinated Debt. Subject to the
last sentence of this Section, the Borrower will not, and will not permit any of
its Restricted Subsidiaries to,
(a) make any payment or prepayment of principal of, or premium
or interest on, any Subordinated Debt (i) other than, in the case of
interest only, the stated, scheduled
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date for such payment of interest set forth in the Sub Debt Documents
governing such Subordinated Debt, or (ii) which would violate the terms
of this Agreement or the Sub Debt Documents governing such Subordinated
Debt;
(b) redeem, retire, purchase, defease or otherwise acquire any
Subordinated Debt; or
(c) make any deposit (including the payment of amounts into a
sinking fund or other similar fund) for any of the foregoing purposes.
Notwithstanding the foregoing, the Borrower and its Restricted Subsidiaries may
take any of the foregoing actions pursuant to the same terms on which Restricted
Payments are permitted by Section 7.2.6.
SECTION 7.2.9. Consolidation, Merger, etc. The Borrower will not, and
will not permit any of its Restricted Subsidiaries to, liquidate or dissolve,
consolidate with, or merge into or with, any other Person (collectively, to
"Merge"), or purchase or otherwise consummate an Acquisition except:
(a) any Restricted Subsidiary may Merge with and into, the
Borrower (with the Borrower being the surviving Person) or any other
Restricted Subsidiary, and the assets or Capital Securities of any
Restricted Subsidiary may be purchased, transferred or otherwise
acquired by the Borrower or any other Restricted Subsidiary;
(b) Permitted Business Acquisitions permitted by Section
7.2.5;
(c) any Restricted Subsidiary may Merge with a Person other
than the Borrower or another Restricted Subsidiary so long as (i) no
Default has occurred and is continuing or would result therefrom and
(ii) the requirements contained in the Permitted Existing Asset
Transfer definition are satisfied; and
(d) Acquisitions to the extent permitted as by Section 7.2.6.
SECTION 7.2.10. Asset Swaps, Dispositions, etc. The Borrower will not,
and will not permit any of its Restricted Subsidiaries to, Dispose of any of
their respective assets to any Person in one transaction or series of
transactions except:
(a) Asset Swaps; provided, that (i) both before and after
giving effect thereto, no Default shall have occurred and be continuing
or would result from such Asset Swap; and (ii) in the case of Existing
Assets, such Asset Swap satisfies the requirements of a Permitted
Existing Asset Transfer;
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(b) Permitted Dispositions; provided, that any Permitted
Disposition of Existing Assets satisfies the requirements of a
Permitted Existing Asset Transfer;
(c) Dispositions (i) from the Borrower to any Restricted
Subsidiary, (ii) from a Restricted Subsidiary to the Borrower, or (iii)
from a Restricted Subsidiary to another Restricted Subsidiary;
(d) the Disposition of obsolete or worn out equipment or
equipment no longer used or useful in the business of any Borrower or
any Restricted Subsidiary, in each case, in the ordinary course of
business;
(e) the sale of inventory in the ordinary course of business;
(f) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection
with the compromise or collection thereof (which in any event will not
include a "securitization" or similar receivables sale program);
(g) Dispositions permitted by Section 7.2.5 and by Section
7.2.9; and
(h) all Restricted Payments permitted under Section 7.2.6.
SECTION 7.2.11. Modification of Certain Agreements. The Borrower will
not, and will not permit any of its Restricted Subsidiaries to, consent to any
amendment, supplement, waiver or other modification of, or enter into any
forbearance from exercising any rights with respect to, any of the terms or
provisions contained in, or applicable to, any Management Agreement, any Organic
Documents of the Borrower or of any Restricted Subsidiary or any Sub Debt
Document if the effect of such consent, supplement or modification is to impair
or is in any manner adverse to, the rights or interests of any Lender under this
Agreement or any Loan Document, without the prior written consent of the
Administrative Agent and the Required Lenders, other than any amendment,
supplement, waiver or modification which (i) extends the date or reduces the
amount of any required repayment, prepayment or redemption of the principal of
such Subordinated Debt, (ii) reduces the rate or extends the date for payment of
the interest, premium (if any) or fees payable on such Subordinated Debt or
(iii) makes the covenants, events of default or remedies in such Sub Debt
Documents less restrictive on the Borrower.
SECTION 7.2.12. Transactions with Affiliates. Except for the Affiliate
Indebtedness and the Intercompany Indebtedness payable in accordance with the
terms of the Subordination Agreements, the Borrower will not, and will not
permit any of its Restricted Subsidiaries to, enter into or cause or permit to
exist any arrangement or contract (including for the purchase, lease or exchange
of property or the rendering of services) with any of its other Affiliates,
unless such arrangement or contract (i) is on fair and reasonable terms no less
favorable to the Borrower or such Restricted Subsidiary than it could obtain in
an arm's-length transaction with a Person that
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is not an Affiliate and (ii) is of the kind which would be entered into by a
prudent Person in the position of the Borrower or such Restricted Subsidiary
with a Person that is not one of its Affiliates; provided, however, that the
Management Agreements and Management Fees accrued or paid in accordance with
Section 7.2.14 or Section 7.2.15 shall not violate this Section.
SECTION 7.2.13. Negative Pledges, Restrictive Agreements, etc. The
Borrower will not, and will not permit any of its Restrictive Subsidiaries to,
enter into any agreement prohibiting
(a) the creation or assumption of any Lien upon any assets,
whether now owned or hereafter acquired, that are, or are required to
be, delivered in pledge pursuant to the terms of this Agreement or a
Loan Document;
(b) the ability of any Obligor to amend or otherwise modify
this Agreement or any other Loan Document; or
(c) the ability of any Restricted Subsidiary to make any
payments, directly or indirectly, to the Borrower, including by way of
dividends, advances, repayments of loans, reimbursements of management
and other intercompany charges, expenses and accruals or other returns
on investments.
The foregoing prohibitions shall not apply to restrictions contained in this
Agreement and any other Loan Document.
SECTION 7.2.14. Management Fees. The Borrower will not permit the
Management Fees (including any interest thereon) payable to accrue at a rate
such that, during any Fiscal Quarter of the Borrower, the total amount of such
accrued fees exceeds 5% of the gross revenue (which, when used in this Agreement
and the Loan Documents, shall be determined in accordance with GAAP), of the
Borrower and its Restricted Subsidiaries for the immediately preceding Fiscal
Quarter.
SECTION 7.2.15. Payment of Management Fees. (a) The Borrower will not,
and will not permit any of its Restricted Subsidiaries to, pay any Management
Fees during any Fiscal Quarter in excess of 5% of the gross revenues of the
Borrower and its Restricted Subsidiaries for the immediately preceding Fiscal
Quarter. In addition, and without limiting the foregoing, the Borrower will not,
and will not permit any of its Restricted Subsidiaries to, make any payments of
such Management Fees (or make any payments of Management Fees of the Borrower or
any of its Restricted Subsidiaries that have accrued prior to or during the
Fiscal Quarter immediately last ended for which a Compliance Certificate was
delivered but remain unpaid), at any time when any Default has occurred and is
continuing or would result therefrom.
(b) Notwithstanding the foregoing, however, the Borrower may, and may
permit any of its Restricted Subsidiaries to, make payments of such Management
Fees (or make payments of
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Management Fees of the Borrower or any of its Restricted Subsidiaries that have
accrued prior to or during the Fiscal Quarter immediately last ended for which a
Compliance Certificate was delivered but remain unpaid) out of the proceeds of a
Capital Contribution received by the Borrower after the occurrence of a Default
which was made for the purpose of funding such Management Fee payments; provided
that after giving effect thereto, the Aggregate Capital Contribution Amount is
greater than $1.00. Other than the payment of Management Fees from the proceeds
of Capital Contributions, Management Fees shall be Affiliate Indebtedness.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following
events or occurrences described in this Article shall constitute an "Event of
Default".
SECTION 8.1.1. Non-Payment of Obligations. The Borrower shall default
in the payment or prepayment when due of
(a) any principal of or interest (which default, as to
interest only, shall continue for a period of three Business Days) on
any Loan, or any Reimbursement Obligation or any deposit of cash for
collateral purposes pursuant to Section 2.6.4; or
(b) any fee described in Article III or any other monetary
Obligation, and such default shall continue unremedied for a period of
three days after such amount was due.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
any Obligor made or deemed to be made in any Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when made
or deemed to have been made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrower shall default in the due performance or observance of any of its
obligations under Section 7.1.1, Section 7.1.9 or Section 7.2 or any Obligor
shall default in the due performance or observance of its obligations under
Article III or Article IV of a Pledge Agreement.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
obligations contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrower by the Administrative Agent or any
Lender.
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SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of the Borrower or any other Obligated Party having
a principal amount, individually or in the aggregate, in excess of $10,000,000
(in the case of the Borrower and its Restricted Subsidiaries) or $25,000,000 (in
the case of other Obligated Parties), or a default shall occur in the
performance or observance of any obligation or condition with respect to such
Indebtedness if the effect of such default is to accelerate the maturity of any
such Indebtedness or to cause or declare such Indebtedness to become due and
payable or to require such Indebtedness to be prepaid, redeemed, purchased or
defeased, or require an offer to purchase or defease such Indebtedness to be
made, prior to its expressed maturity, or (only in the case of the Borrower or
any Restricted Subsidiary) such default shall continue unremedied for any
applicable period of time sufficient to permit the holder or holders of such
Indebtedness, or any trustee or agent for such holders, to take the foregoing
actions.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of
money in excess of $10,000,000 (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) shall be
rendered against the Borrower or any Restricted Subsidiary and such judgment
shall not have been vacated or discharged or stayed or bonded pending appeal
within 30 days after the entry thereof.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan
(a) the institution of any steps by the Borrower, any member
of its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, the Borrower or any such member
could be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension
Plan, in excess of $1,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. Any Partner, the
Borrower, any of their respective Restricted Subsidiaries or any other Obligated
Party shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to generally pay, debts as they
become due;
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(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for any such
Person, or any substantial part of the property of any thereof, or make
a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence in or permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for any such Person
or for a substantial part of the property of any thereof, and such
trustee, receiver, sequestrator or other custodian shall not be
discharged within 60 days; provided, however, that each such Person
hereby expressly authorizes each Secured Party to appear in any court
conducting any relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution,
winding up or liquidation proceeding, in respect of any such Person,
and, if any such case or proceeding is not commenced by any such
Person, such case or proceeding shall be consented to or acquiesced in
by any such Person, as the case may be, or shall result in the entry of
an order for relief or shall remain for 60 days undismissed; provided,
however, that each such Person hereby expressly authorizes each Secured
Party to appear in any court conducting any such case or proceeding
during such 60-day period to preserve, protect and defend their rights
under the Loan Documents; or
(e) take any action authorizing, or in furtherance of, any of
the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document or any
Lien granted thereunder shall (except in accordance with its terms), in whole or
in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; any Obligor or
any other party shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or, except as
permitted under any Loan Document, any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien.
SECTION 8.1.11. Failure of Subordination. Unless otherwise waived or
consented to by the Arranging Agents, the Lenders and the Issuers in writing,
the subordination provisions set forth in any Sub Debt Document relating to any
Subordinated Debt or in any Subordination Agreement (the "Subordination
Provisions") shall fail to be enforceable by the Arranging Agents, the Lenders
and the Issuers in accordance with the terms thereof, or the monetary
Obligations shall fail to constitute "Senior Indebtedness" (or similar term)
referring to the Obligations; or the Borrower or any of its Subsidiaries shall,
directly or indirectly, disavow or contest in any manner (i) the effectiveness,
validity or enforceability of any of the Subordination Provisions, (ii) that the
Subordination Provisions exist for the benefit of the Administrative Agent, the
Lenders and the Issuers or (iii) that all payments of principal of or premium
and interest on the Subordinated
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Debt, Affiliate Indebtedness or Intercompany Indebtedness, or realized from the
liquidation of any property of any Obligor, shall be subject to any of such
Subordination Provisions.
SECTION 8.1.12. Failure to Obtain or Cessation of Authorization, etc.
Any authorization, consent, approval, license, exemption, registration,
qualification, designation, declaration, filing or other action or undertaking
now or hereafter made by or with any Governmental Authority in connection with
this Agreement (other than matters referred to in Section 8.1.13 hereof) or the
other Loan Documents or any such action or undertaking now or hereafter
necessary or advisable to make this Agreement or the other Loan Documents legal,
valid and enforceable against any Obligor party thereto in accordance with their
respective terms is not obtained or shall have ceased to be in full force and
effect or shall have been modified or amended or shall have been held to be
illegal or invalid.
SECTION 8.1.13. Cancellation of Any Franchise Agreement. Any Franchise,
Franchise Agreement or any other license, permit, lease, easement, conduit
occupancy right, pole attachment, use, access or rental agreement, certificate,
consent, approval, authorization or agreement (collectively, for purposes of
this Section, the "Approvals") granted by the FCC or by any other Governmental
Authority with jurisdiction over any Cable System or by any public utility or
third party lessors, whether presently existing or hereafter granted to or
obtained by the Borrower or any of its Restricted Subsidiaries, the cancellation
or termination of which could reasonably be expected to have a Material Adverse
Effect, or which could reasonably be expected to materially impair the continued
operation of any of their respective Cable Systems, shall expire without renewal
or shall be suspended or revoked, and shall not be replaced, or the Borrower or
any of its Restricted Subsidiaries shall become subject to any injunction or
other order with respect to its respective Franchise or Franchise Agreement or
the Approvals which could reasonably be expected to have a Material Adverse
Effect (in the reasonable judgment of the Arranging Agents).
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur with respect to the
Borrower, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations (including Reimbursement Obligations) shall automatically be
and become immediately due and payable, without notice or demand to any Person
and the Borrower shall automatically and immediately be obligated to deposit
with the Administrative Agent cash collateral in an amount equal to all Letter
of Credit Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9 with respect to the Borrower) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of the Required Lenders, shall by notice to the Borrower declare all
or any portion of the outstanding principal amount of the Loans and other
Obligations (including Reimbursement Obligations) to be due and payable and/or
the Commitments (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount
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of such Loans and other Obligations which shall be so declared due and payable
shall be and become immediately due and payable, without further notice, demand
or presentment, and/or, as the case may be, the Commitments shall terminate and
the Borrower shall automatically and immediately be obligated to deposit with
the Administrative Agent cash collateral in an amount equal to all Letter of
Credit Outstandings.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints Scotiabank as its
Administrative Agent under and for purposes of this Agreement and each other
Loan Document. Each Lender authorizes the Administrative Agent to act on behalf
of such Lender under this Agreement and each other Loan Document and, in the
absence of other written instructions from the Required Lenders received from
time to time by the Administrative Agent (with respect to which the
Administrative Agent agrees that it will comply, except as otherwise provided in
this Section or as otherwise advised by counsel in order to avoid contravention
of applicable law), to exercise such powers hereunder and thereunder as are
specifically delegated to or required of the Administrative Agent by the terms
hereof and thereof, together with such powers as may be reasonably incidental
thereto. Each Lender hereby indemnifies (which indemnity shall survive any
termination of this Agreement) the Administrative Agent, pro rata according to
such Lender's proportionate Total Exposure Amount, from and against any and all
liabilities, obligations, losses, damages, claims, costs or expenses of any kind
or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against, the Administrative Agent in any way relating to or arising out
of this Agreement and any other Loan Document, including reasonable attorneys'
fees, and as to which the Administrative Agent is not reimbursed by the
Borrower; provided, however, that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, claims, costs or
expenses which are determined by a court of competent jurisdiction in a final
proceeding to have resulted from the Administrative Agent's gross negligence or
wilful misconduct. The Administrative Agent shall not be required to take any
action hereunder or under any other Loan Document, or to prosecute or defend any
suit in respect of this Agreement or any other Loan Document, unless it is
indemnified hereunder to its satisfaction. If any indemnity in favor of the
Administrative Agent shall be or become, in the Administrative Agent's
determination, inadequate, the Administrative Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
3:00 p.m., New York time, on the Business Day prior to a Borrowing that such
Lender will not make available the amount which would constitute its Percentage
of such Borrowing on the date specified therefor, the Administrative Agent may
assume that such Lender has made such amount available to the
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Administrative Agent and, in reliance upon such assumption, make available to
the Borrower a corresponding amount. If and to the extent that such Lender shall
not have made such amount available to the Administrative Agent, such Lender and
the Borrower severally agree to repay the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date the Administrative Agent made such amount available to the
Borrower to the date such amount is repaid to the Administrative Agent, at the
interest rate applicable at the time to Loans comprising such Borrowing (in the
case of the Borrower) and (in the case of a Lender), at the Federal Funds Rate
(for the first two Business Days after which such amount has not been repaid),
and thereafter at the interest rate applicable to Loans comprising such
Borrowing.
SECTION 9.3. Exculpation. Neither the Administrative Agent nor any of
its directors, officers, employees or agents shall be liable to any Lender for
any action taken or omitted to be taken by it under this Agreement or any other
Loan Document, or in connection herewith or therewith, except for its own wilful
misconduct or gross negligence, nor responsible for any recitals or warranties
herein or therein, nor for the effectiveness, enforceability, validity or due
execution of this Agreement or any other Loan Document, nor for the creation,
perfection or priority of any Liens purported to be created by any of the Loan
Documents, or the validity, genuineness, enforceability, existence, value or
sufficiency of any collateral security, nor to make any inquiry respecting the
performance by the Borrower or any other Obligor of its obligations hereunder or
under any other Loan Document. Any such inquiry which may be made by the
Administrative Agent shall not obligate it to make any further inquiry or to
take any action. The Administrative Agent shall be entitled to rely upon advice
of counsel concerning legal matters and upon any notice, consent, certificate,
statement or writing which the Administrative Agent believes to be genuine and
to have been presented by a proper Person.
SECTION 9.4. Successor. The Administrative Agent may resign as such at
any time upon at least 30 days' prior notice to the Borrower and all Lenders. If
the Administrative Agent at any time shall resign, the Required Lenders may
appoint another Lender as a successor Administrative Agent which shall thereupon
become the Administrative Agent hereunder. If no successor Administrative Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent's
giving notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which shall be
one of the Lenders or a commercial banking institution organized under the laws
of the U.S. (or any State thereof) or a U.S. branch or agency of a commercial
banking institution, and having a combined capital and surplus of at least
$250,000,000; provided, however, that if such retiring Administrative Agent is
unable to find a commercial banking institution which is willing to accept such
appointment and which meets the qualifications set forth in above, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor as provided for above. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor
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Administrative Agent shall be entitled to receive from the retiring
Administrative Agent such documents of transfer and assignment as such successor
Administrative Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation hereunder as the Administrative Agent, the
provisions of
(a) this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to
its benefit.
SECTION 9.5. Loans by Arranging Agents. Each Arranging Agent shall have
the same rights and powers with respect to (x) the Credit Extensions made by it
or any of its Affiliates, and (y) the Notes held by it or any of its Affiliates
as any other Lender and may exercise the same as if it were not the
Administrative Agent, the Syndication Agent or the Documentation Agent
hereunder, as the case may be. Each Arranging Agent and its respective
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with the Borrower or any Subsidiary or Affiliate of the
Borrower as if such Person were not an Arranging Agent.
SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Arranging Agent and each other Lender, and based on such
Lender's review of the financial information of the Borrower, this Agreement,
the other Loan Documents (the terms and provisions of which being satisfactory
to such Lender) and such other documents, information and investigations as such
Lender has deemed appropriate, made its own credit decision to extend its
Commitments. Each Lender also acknowledges that it will, independently of each
Arranging Agent and each other Lender, and based on such other documents,
information and investigations as it shall deem appropriate at any time,
continue to make its own credit decisions as to exercising or not exercising
from time to time any rights and privileges available to it under this Agreement
or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrower pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrower for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement or any other
Loan Document.
SECTION 9.8. Limitation on Duties. Notwithstanding anything else to
the contrary contained in this Agreement or any other Loan Document, neither the
Syndication Agent, the Documentation Agent, any Managing Agent nor any Co-Agent,
in such capacity, shall have any
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obligations hereunder or under any other Loan Document, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against either the Syndication Agent, the
Documentation Agent, any Managing Agent or any Co-Agent.
SECTION 9.9. Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, facsimile, telecopy, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person, and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Administrative Agent.
As to any matters not expressly provided for by this Agreement or any other Loan
Document, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or thereunder in accordance with
instructions given by the Required Lenders or all of the Lenders as is required
in such circumstance, and such instructions of such Lenders and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders. For
purposes of applying amounts in accordance with this Section, the Administrative
Agent shall be entitled to rely upon any Secured Party that has entered into a
Rate Protection Agreement with the Borrower or any of its Subsidiaries for a
determination (which such Secured Party agrees to provide or cause to be
provided upon request of the Administrative Agent) of the outstanding Secured
Obligations owed to such Secured Party under any Rate Protection Agreement.
Unless it has actual knowledge evidenced by way of written notice from any such
Secured Party and the Borrower to the contrary, the Administrative Agent, in
acting hereunder and each other Loan Document, shall be entitled to assume that
no Rate Protection Agreements or Obligations in respect thereof are in existence
or outstanding between any Secured Party and any Obligor.
SECTION 9.10. Defaults. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of a Default unless the
Administrative Agent has received written notice from a Lender or the Borrower
specifying such Default and stating that such notice is a "Notice of Default".
In the event that the Administrative Agent receives such a notice of the
occurrence of a Default, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall (subject to Section 10.1)
take such action with respect to such Default as shall be directed by the
Required Lenders; provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it determines to be in the best interest of the Lenders.
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ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document (other than any Rate Protection
Agreement) may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by the Borrower
and the Required Lenders (or, in the case of any Rate Protection Agreement, the
Borrower and the Lender party thereto); provided, however, that no such
amendment, modification or waiver shall:
(a) modify this Section 10.1 without the consent of all
Lenders;
(b) increase any Lender's Percentage of any Commitment Amount,
increase any Lender's Commitment, extend the final Commitment
Termination Date of Credit Extensions made (or participated in) by a
Lender, waive a default in the payment of principal, interest or fees
owing to a Lender or reduce any fees described in Article III payable
to any Lender without the consent of such Lender;
(c) extend the date (including the final Stated Maturity Date)
of repayment or prepayment of any Lender's Loans or the principal
amount required to be repaid or prepaid on such date, or reduce the
principal amount of or rate of interest on any Lender's Loan or extend
the date on which interest or fees are payable in respect of such
Lender's Loans or change the application of payment contained in
Section 3.1.2, in each case, without the consent of such Lender (it
being understood and agreed, however, that any vote to rescind any
acceleration made pursuant to Section 8.2 and Section 8.3 of amounts
owing with respect to the Loans and other Obligations shall only
require the vote of the Required Lenders);
(d) reduce the percentage set forth in the definition of
"Required Lenders" or any requirement hereunder that any particular
action be taken by all Lenders without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless
consented to by the Issuer of such Letter of Credit;
(f) except as otherwise expressly provided in this Agreement
(including, without limitation, Section 10.16) or another Loan
Document, release (i) any Guarantor from its obligations under a
Guaranty or (ii) all or substantially all of the collateral under the
Loan Documents, in either case without the consent of all Lenders; or
(g) affect adversely the interests, rights or obligations of
the Administrative Agent (in its capacity as the Administrative Agent),
or any Issuer (in its capacity as
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Issuer), unless consented to by the Administrative Agent or such
Issuer, as the case may be.
No failure or delay on the part of the Administrative Agent, any Issuer or any
Lender in exercising any power or right under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
the Borrower or any other Obligor in any case shall entitle it to any notice or
demand in similar or other circumstances. No waiver or approval by the
Administrative Agent, any Issuer or any Lender under this Agreement or any other
Loan Document shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 10.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth on Schedule II or set forth in the
Lender Assignment Agreement or at such other address or facsimile number as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and
sent by pre-paid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when the confirmation
of transmission thereof is received by the transmitter.
SECTION 10.3. Payment of Costs and Expenses. The Borrower agrees to pay
on demand all expenses of the Administrative Agent (including the fees and
out-of-pocket expenses of counsel to the Administrative Agent and of local
counsel, if any, who may be retained by counsel to the Administrative Agent) in
connection with
(a) the negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated; and
(b) the filing, recording, refiling or rerecording of any Loan
Document and/or any Uniform Commercial Code financing statements
relating thereto and all amendments, supplements, amendments and
restatements and other modifications to any thereof and any and all
other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or the
terms of any Loan Document; and
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(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
The Borrower further agrees to pay, and to save each Secured Party harmless from
all liability for, any stamp or other taxes which may be payable in connection
with the execution or delivery of this Agreement, the Credit Extensions
hereunder, or the issuance of the Notes, Letters of Credit or any other Loan
Documents. The Borrower also agrees to reimburse each Secured Party upon demand
for all reasonable out-of-pocket expenses (including reasonable attorneys' fees
and legal expenses of counsel to each Secured Party) incurred by such Secured
Party in connection with (x) the negotiation of any restructuring or "work-out"
with the Borrower, whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Secured Party, the Borrower hereby
indemnifies, exonerates and holds each Secured Party and each of their
respective officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all actions,
causes of action, suits, losses, costs, liabilities and damages, and expenses
incurred in connection therewith (irrespective of whether any such Indemnified
Party is a party to the action for which indemnification hereunder is sought),
including reasonable attorneys' fees and disbursements, whether incurred in
connection with actions between or among the parties hereto or the parties
hereto and third parties (collectively, the "Indemnified Liabilities"), incurred
by the Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension, including all Indemnified Liabilities arising in connection
with the entering into and performance of this Agreement;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of the Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to fund
any Credit Extension, provided that any such action is resolved in
favor of such Indemnified Party);
(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by the Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not an Indemnified Party is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the protection of the environment or the Release by the Borrower or any
of its Subsidiaries of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by the Borrower or any Subsidiary thereof of
any Hazardous Material (including any losses,
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liabilities, damages, injuries, costs, expenses or claims asserted or
arising under any Environmental Law), regardless of whether caused by,
or within the control of, the Borrower or such Subsidiary; or
(f) each Lender's Environmental Liability (the indemnification
herein shall survive repayment of the Loans and any transfer of the
property of the Borrower or any of its Subsidiaries by foreclosure or
by a deed in lieu of foreclosure for any Lender's Environmental
Liability, regardless of whether caused by, or within the control of,
the Borrower or such Subsidiary);
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. The Borrower and its successors and assigns
hereby waive, release and agree not to make any claim or bring any cost recovery
action against, any Secured Party under CERCLA or any state equivalent, or any
similar law now existing or hereafter enacted. It is expressly understood and
agreed that to the extent that any of such Persons is strictly liable under any
Environmental Laws, the Borrower's obligation to such Person under this
indemnity shall likewise be without regard to fault on the part of the Borrower
with respect to the violation or condition which results in liability of such
Person. If and to the extent that the foregoing undertaking may be unenforceable
for any reason, the Borrower hereby agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
SECTION 10.5. Survival. The obligations of the Borrower under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any assignment from one Lender to
another (in the case of Sections 10.3 and 10.4) and any termination of this
Agreement, the payment in full of all the Obligations and the termination of all
the Commitments. The representations and warranties made by the Borrower and
each other Obligor in this Agreement and in each other Loan Document shall
survive the execution and delivery of this Agreement and each such other Loan
Document.
SECTION 10.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective when counterparts
hereof executed on behalf of the Borrower, the
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Administrative Agent and each Lender (or notice thereof satisfactory to the
Administrative Agent) shall have been received by the Administrative Agent and
notice thereof shall have been given by the Administrative Agent to the Borrower
and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT AND EACH
OTHER LOAN DOCUMENT (INCLUDING PROVISIONS WITH RESPECT TO INTEREST, LOAN CHARGES
AND COMMITMENT FEES) SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH
PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK), EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF A SECURITY
INTEREST UNDER A LOAN DOCUMENT, OR REMEDIES UNDER A LOAN DOCUMENT IN RESPECT OF
ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN
THE STATE OF NEW YORK. This Agreement and the other Loan Documents constitute
the entire understanding among the parties hereto with respect to the subject
matter hereof and thereof and supersede any prior agreements, written or oral,
with respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 10.11.
SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans,
Letters of Credit and Commitments to one or more other Persons in accordance
with the terms set forth below.
SECTION 10.11.1. Assignments. Any Lender, pursuant to a Lender
Assignment Agreement,
(a) with the consent of the Borrower and the Administrative
Agent (which consents shall not be unreasonably delayed or withheld
and, which consent, in the case of the Borrower, shall not be required
during the continuation of an Event of Default or if the assignment is
to another Lender) may at any time assign and delegate to one or more
financial institutions; and
(b) upon notice to the Borrower and the Administrative Agent,
upon the Administrative Agent's acknowledgment on a Lender Assignment
Agreement, may assign and delegate to any of its Affiliates or to any
other Lender
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(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Lender's total Loans,
Letter of Credit Outstandings and Commitments in a minimum aggregate amount of
$5,000,000 (or, if less, the entire remaining amount of such Lender's Loans,
Letter of Credit Outstandings and Commitments) and; provided, however, that
following such assignment, such assigning Lender's total Loans, Letter of Credit
Outstandings and Commitments shall be either a minimum aggregate amount of
$5,000,000 or zero ($0); and provided, further, however, that such minimum
assignment amount will not apply to assignments by a Lender to its Affiliate.
Each Obligor and the Administrative Agent shall be entitled to continue to deal
solely and directly with a Lender in connection with the interests so assigned
and delegated to an Assignee Lender until
(c) notice of such assignment and delegation, together with
(i) payment instructions, (ii) the Internal Revenue Service forms or
other statements contemplated or required to be delivered pursuant to
Section 4.6, if applicable, and (iii) addresses and related information
with respect to such Assignee Lender, shall have been delivered to the
Borrower and the Administrative Agent by such assignor Lender and such
Assignee Lender;
(d) such Assignee Lender shall have executed and delivered to
the Borrower and the Administrative Agent a Lender Assignment
Agreement, accepted by the Administrative Agent;
(e) the processing fees described below shall have been paid;
and
(f) the Administrative Agent shall have registered such
assignment and delegation in the Register pursuant to clause (b) of
Section 2.7.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement and such assignment and delegation is registered in the
Register, (i) the Assignee Lender thereunder shall be deemed automatically to
have become a party hereto and to the extent that rights and obligations
hereunder have been assigned and delegated to such Assignee Lender in connection
with such Lender Assignment Agreement, shall have the rights and obligations of
a Lender hereunder and under the other Loan Documents, and (ii) the assignor
Lender, to the extent that rights and obligations hereunder have been assigned
and delegated by it in connection with such Lender Assignment Agreement, shall
be released from its obligations hereunder and under the other Loan Documents.
Subject to the provisions of Section 2.7, within five Business Days after its
receipt of notice that the Administrative Agent has received and accepted an
executed Lender Assignment Agreement (and if requested by the Assignee Lender),
but subject to clause (c), the Borrower shall execute and deliver to the
Administrative Agent (for delivery to the relevant Assignee Lender) a new Note
(if the Assignee Lender so requests a Note) evidencing such Assignee Lender's
assigned Loans and Commitments and, if the assignor Lender has retained Loans
and Commitments hereunder (and if requested by such Lender), a replacement Note
in the principal amount of the Loans and Commitments retained by the assignor
Lender hereunder (such Note to be in exchange for, but not in payment of, the
Note then held by such
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assignor Lender). Each such Note shall be dated the date of the predecessor
Note. The assignor Lender shall ▇▇▇▇ each predecessor Note "exchanged" and
deliver each of them to the Borrower. Accrued interest on the transferred Loans
and accrued fees, shall be paid as provided in this Agreement. Accrued interest
on that part of the assigned Loans shall be paid to the assignor Lender. Accrued
interest and accrued fees shall be paid at the same time or times provided in
this Agreement. Such assignor Lender or such Assignee Lender must also pay a
processing fee in the amount of $3,500 to the Administrative Agent upon delivery
of any Lender Assignment Agreement unless such assignment and delegation is by a
Lender to its Affiliate or if such assignment and delegation is by a Lender to
the Federal Reserve Bank, as provided below or is otherwise consented to by the
Administrative Agent. Any attempted assignment and delegation not made in
accordance with this Section shall be null and void. Notwithstanding anything to
the contrary set forth above, any Lender may (without requesting the consent of
the Borrower or the Administrative Agent) pledge its rights under this Agreement
and/or its Loans and/or its Notes hereunder to a Federal Reserve Bank in support
of borrowings made by such Lender from such Federal Reserve Bank.
(g) In the event that S&P, ▇▇▇▇▇'▇ or ▇▇▇▇▇▇▇▇'▇ BankWatch (or
InsuranceWatch Ratings Service, in the case of Lenders that are
insurance companies (or Best's Insurance Reports, if such insurance
company is not rated by InsuranceWatch Ratings Service)) shall, after
the date that any Lender with a Commitment to make Revolving Loans or
participate in Letters of Credit becomes a Lender, downgrade the
long-term certificate of deposit rating or long-term senior, unsecured
debt rating of such Lender, and the resulting rating shall be below
BBB-, Baa3 or C (or BB, in the case of Lender that is an insurance
company (or B, in the case of an insurance company not rated by
InsuranceWatch Ratings Service)), then the Issuer shall have the right,
but not the obligation, upon notice to such Lender and the
Administrative Agent, to replace such Lender with a financial
institution (a "Replacement Lender") in accordance with and subject to
the restrictions contained in this Section, and such Lender hereby
agrees to transfer and assign without recourse (in accordance with and
subject to the restrictions contained in this Section) all its
interests, rights and obligations in respect of its Revolving Loan
Commitment under this Agreement to such Assignee Lender; provided,
however, that (i) no such assignment shall conflict with any law, rule
and regulation or order of any governmental authority and (ii) such
Replacement Lender shall pay to such Lender in immediately available
funds on the date of such assignment the principal of and interest and
fees (if any) accrued to the date of payment on the Loans made, and
Letters of Credit participated in, by such Lender hereunder and all
other amounts accrued for such Lender's account or owed to it
hereunder. Upon any such termination or assignment, such Lender shall
cease to be a party hereto but shall continue to be entitled to the
benefits of any provisions of this Agreement which by their terms
survive the termination of this Agreement.
SECTION 10.11.2. Participations. Any Lender may sell to one or more
commercial banks or other Persons (each of such commercial banks and other
Persons being herein called a "Participant") participating interests in any of
the Loans, Commitments, or other interests of such Lender hereunder; provided,
however, that
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(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrower and each other Obligor and the Administrative
Agent shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement and each of the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate of
such Lender or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in clauses (b), (c) and
(f) of Section 10.1; and
(e) the Borrower shall not be required to pay any amount under
this Agreement that is greater than the amount which it would have been
required to pay had no participating interest been sold.
The Borrower acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 7.1.1, 10.3 and 10.4, shall be considered
a Lender. Each Participant shall only be indemnified for increased costs
pursuant to Section 4.3, 4.5 or 4.6 if and to the extent that the Lender which
sold such participating interest to such Participant concurrently is entitled to
make, and does make, a claim on the Borrower for such increased costs. Any
Lender that sells a participating interest in any Loan, Commitment or other
interest to a Participant under this Section shall indemnify and hold harmless
the Borrower and the Administrative Agent from and against any taxes, penalties,
interest or other costs or losses (including reasonable attorneys' fees and
expenses) incurred or payable by the Borrower or the Administrative Agent as a
result of the failure of the Borrower or the Administrative Agent to comply with
its obligations to deduct or withhold any Taxes from any payments made pursuant
to this Agreement to such Lender or the Administrative Agent, as the case may
be, which Taxes would not have been incurred or payable if such Participant had
been a Non-U.S. Lender that was entitled to deliver to the Borrower, the
Administrative Agent or such Lender, and did in fact so deliver, a duly
completed and valid Form 1001 or 4224 (or applicable successor form) entitling
such Participant to receive payments under this Agreement without deduction or
withholding of any United States federal taxes.
SECTION 10.12. Other Transactions. Nothing contained herein shall
preclude any Arranging Agent, any Managing Agent, any Co-Agent, any Issuer or
any other Lender from engaging in any transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Affiliates in which the Borrower or such Affiliate is not restricted
hereby from engaging with any other Person.
SECTION 10.13. Limited Recourse. Notwithstanding any contrary
provision of this Agreement or any other Loan Document, no recourse shall be had
for the payment of the
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principal of or interest or premium, if any, on the Loans or for any claim based
thereon against (i) any Partner or any of their respective legal
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, permitted successors or assigns or (ii) any
corporation, partnership (or any general or limited partner thereof) or
individual to which the collateral securing the payment of the Obligations shall
have been transferred with the prior written consent of each Lender, except to
the extent such consent is not required pursuant to this Agreement or any other
Loan Document. It is understood that all Obligations may not be enforced against
any of the Persons described in clause (i) or (ii); provided, however, that this
Section 10.13 shall not (A) prevent or restrict recourse to the collateral
securing the payment of the Obligations or constitute a waiver, release or
discharge of any Indebtedness or Obligations, but such Indebtedness shall remain
outstanding until paid or discharged; (B) limit any rights, claims for damages
or recourse of the Lenders, the Arranging Agents, the Managing Agents, the
Co-Agents, the Issuers or their respective transferees or assigns as a result of
(x) any knowing or wilful breach by such Person of any representation or
warranty of such Person made under or pursuant to this Agreement or any other
Loan Document or (y) any knowing or wilful breach of covenant or other
obligation by such Person under this Agreement, or any other Loan Document; or
(C) limit the right of any Person to name the Borrower, any Obligor or any
transferee of any interest in the collateral securing the payment of the
Obligations 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 clauses (i) and
(ii). Notwithstanding the foregoing, nothing herein shall be construed to
constitute a waiver by the Arranging Agents, the Managing Agents, the Co-Agents,
the Issuers or the Lenders of any rights to damages, other monetary relief,
injunctive relief or any other remedy at law or equity against the Borrower, any
Obligor or any Partner by reason of fraud, knowing or wilful breach of
representations and warranties, wilful tortious acts or omissions, gross
negligence or criminal acts. This Section 10.13 is not intended to and shall not
impair or limit any Arranging Agent's, any Managing Agent's, any Co-Agent's, the
Issuer's or any Lender's ability to realize on the collateral securing the
payment of the Obligations or on any other assets of the Borrower or any
Obligor.
SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS, ANY ISSUER OR THE BORROWER IN CONNECTION HEREWITH OR
THEREWITH SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE
OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. EACH OF THE BORROWER AND THE PARTNERS HEREBY EXPRESSLY
AND IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY
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PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE ADDRESS FOR
NOTICES SPECIFIED IN SECTION 10.2. EACH OF THE BORROWER AND THE PARTNERS HEREBY
EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT THE BORROWER OR ANY PARTNER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, EACH OF THE BORROWER AND THE
PARTNERS HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. EACH ARRANGING AGENT, EACH
MANAGING AGENT, EACH CO-AGENT, EACH ISSUER, EACH LENDER, THE BORROWER AND EACH
PARTNER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE TO THE FULLEST
EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF SUCH ARRANGING
AGENT, SUCH ISSUER, SUCH LENDER OR THE BORROWER OR SUCH PARTNER IN CONNECTION
HEREWITH OR THEREWITH. THE BORROWER AND EACH PARTNER ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND
EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH ARRANGING AGENT, EACH
MANAGING AGENT, EACH CO-AGENT, EACH ISSUER AND EACH LENDER ENTERING INTO THIS
AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.16. Release. The Administrative Agent is hereby authorized
and directed by the Lenders and Issuers to, and shall, release Liens, any party
to a Guaranty and any other guarantees or any other Obligations under the Loan
Documents and take such other actions as the Borrower may reasonably request in
connection with any transaction permitted under this Agreement and involving any
asset subject to any such Lien.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
PARNASSOS, L.P.,
By: PARNASSOS COMMUNICATIONS, L.P.,
its General Partner
By: ADELPHIA WESTERN NEW YORK
HOLDINGS, L.L.C., its General Partner
By: ADELPHIA COMMUNICATIONS
CORPORATION, its Sole Member
By: /S/ ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
THE BANK OF NOVA SCOTIA,
as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Authorized Signatory
NATIONSBANK, N.A., as Documentation
Agent and as a Lender
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
TORONTO DOMINION (TEXAS), INC., as
Syndication Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Title: Vice President
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BANK OF MONTREAL, as Managing Agent and
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
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BARCLAYS BANK PLC, as Managing Agent and
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate Director
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CIBC INC., as Managing Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Director:
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CREDIT LYONNAIS NEW YORK BRANCH, as
Managing Agent and as a Lender
By: /s/ ▇▇▇▇ ▇. Judge
Name: ▇▇▇▇ ▇. Judge
Title: Vice President
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CREDIT SUISSE FIRST BOSTON, as Managing
Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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FIRST UNION NATIONAL BANK, as Managing
Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
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FLEET BANK, N.A., as Managing Agent and as a
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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PNC BANK, NATIONAL ASSOCIATION,
as Managing Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK NEDERLAND",
NEW YORK BRANCH, as Managing Agent and as a
Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇ ▇▇▇▇▇
Name: ▇▇▇ ▇▇▇▇▇
Title: Senior Credit Officer
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SALOMON BROTHERS HOLDING COMPANY
INC., as Managing Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
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BAYERISCHE HYPO-UND VEREINSBANK AG,
NEW YORK BRANCH, as a Co-Agent and as a
Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ von Eschenback
Name: ▇▇▇▇▇ ▇▇▇▇▇ von Eschenback
Title: Managing Director
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate Director
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DRESDNER BANK, AG, NEW YORK AND
GRAND CAYMAN BRANCHES, as a Co-Agent
and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
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MEESPIERSON CAPITAL CORP., as a Co-Agent
and as a Lender
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Assistant Vice President
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Operating Officer
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THE BANK OF NEW YORK COMPANY INC., as
a Co-Agent and as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized ▇▇▇▇▇▇
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LENDERS
BANQUE NATIONALE DE PARIS
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
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CRESTAR BANK
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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FIRST HAWAIIAN BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
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FIRST NATIONAL BANK OF MARYLAND
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
-116-
▇▇▇▇▇▇▇ SACHS CREDIT PARTNERS L.P.
By: /s/ S. Strenbin
Name:
Title:
-117-
MANUFACTURERS AND TRADERS TRUST
COMPANY
By: /s/ C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Assistant Vice President
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USTRUST
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Vice President
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SCHEDULE I
DISCLOSURE SCHEDULE
Item 6.7 Litigation, Labor Controversies, etc.
Item 6.8 Subsidiaries.
Item 6.11 Pension and Welfare Plans.
Item 6.12 Environmental.
Item 6.14 Franchises.
Item 6.15 Patents, Copyrights, FCC Licenses, etc.
Item 7.2.2(b) Indebtedness to be paid.
Item 7.2.2(c) Ongoing Indebtedness.
Item 7.2.3(c) Ongoing Liens.
Item 7.2.5(a) Investments.
SCHEDULE II
PERCENTAGES AND ADMINISTRATIVE INFORMATION
The Borrower:
Parnassos, L.P.
Address:
Main at ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Lenders:
Percentages
-----------
Term Loan
Commitment/ Revolving Loan
Name: Term Loans: Commitment: Domestic Office: LOBOR Office:
---- ---------- ---------- --------------- ------------
The Bank of Nova Scotia 14.▇▇▇▇▇▇▇▇▇▇▇% 14.▇▇▇▇▇▇▇▇▇▇▇% ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
NationsBank (to be merged into 5.95238100000% 5.95238100000% ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ SAME.
Bank of America) ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
Percentages
-----------
Term Loan
Commitment/ Revolving Loan
Name: Term Loans: Commitment: Domestic Office: LOBOR Office
---- ---------- ---------- --------------- ------------
TD Securities (USA) Inc. 5.95238100000% 5.95238100000% ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Bank of Montreal 5.▇▇▇▇▇▇▇▇▇▇▇% 5.▇▇▇▇▇▇▇▇▇▇▇% ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Barclays Bank PLC 5.00000000000% 5.00000000000% ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CIBC Inc. 5.00000000000% 5.00000000000% ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Holding 5.00000000000% 5.00000000000% ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ SAME.
Company Inc. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Credit Lyonnais 5.00000000000% 5.00000000000% ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: 212-261-7890
Attention: ▇▇▇▇ ▇▇▇▇▇
Percentages
-----------
Term Loan
Commitment/ Revolving Loan
Name: Term Loans: Commitment: Domestic Office: LOBOR Office:
---- ---------- ---------- --------------- ------------
First Union National Bank 5.00000000000% 5.00000000000% ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fleet Bank, NA 5.00000000000% 5.00000000000% 1185 Avenue of the Americas SAME.
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
PNC Bank, National 5.00000000000% 5.00000000000% Communications Banking Division SAME.
Association ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇-▇▇▇▇-▇▇-▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Rabobank Nederland 5.00000000000% 5.00000000000% ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Corporate Services
The Bank of New York 3.57142857143% 3.57142857143% One Wall Street SAME.
Company Inc. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Bayerische Hypound 3.57142857143% 3.57142857143% ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ SAME.
Vereinsbank AG ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Percentages
-----------
Term Loan
Commitment/ Revolving Loan
Name: Term Loans: Commitment: Domestic Office: LOBOR Office:
---- ---------- ---------- --------------- ------------
MeesPierson Capital Corp. 3.57142857143% 3.57142857143% ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ SAME.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Dresdner Bank AG 2.85714285714% 2.85714285714% ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Banque Nationale de Paris 2.14285714286% 2.14285714286% ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: ▇▇▇-▇▇▇-▇▇▇▇
Crestar Bank 2.14285714286% 2.14285714286% ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
First Hawaiian Bank 2.14285714286% 2.14285714286% ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
First National Bank of Maryland 2.14285714286% 2.14285714286% ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇. SAME.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Percentages
-----------
Term Loan
Commitment/ Revolving Loan
Name: Term Loans: Commitment: Domestic Office: LOBOR Office:
---- ---------- ---------- --------------- ------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners 2.14285714286% 2.14285714286% ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Manufacturers and Traders 2.14285714286% 2.14285714286% One Fountain Plaza SAME.
Trust Company ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
USTrust 2.14285714286% 2.14285714286% ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.......................................................................................1
1.2. Use of Defined Terms...............................................................................33
1.3. Cross-References...................................................................................34
1.4. Accounting and Financial Determinations............................................................34
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES AND NOTES AND LETTERS OF CREDIT
2.1. Commitments........................................................................................34
2.1.1. Revolving Loan Commitment..........................................................................34
2.1.2. Letter of Credit Commitment........................................................................34
2.1.3. Term Loan Commitment...............................................................................35
2.1.4. Lenders Not Permitted or Required to Make Loans....................................................35
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit........................................35
2.2. Reduction of the Commitment Amounts................................................................35
2.2.1. Optional...........................................................................................35
2.2.2. Mandatory Reduction of Revolving Loan Commitment Amount............................................36
2.3. Borrowing Procedure................................................................................37
2.4. Continuation and Conversion Elections..............................................................37
2.5. Funding............................................................................................38
2.6. Issuance Procedures................................................................................38
2.6.1. Other Lenders' Participation.......................................................................38
2.6.2. Disbursements......................................................................................38
2.6.3. Reimbursement......................................................................................39
2.6.4. Deemed Disbursements...............................................................................39
2.6.5. Nature of Reimbursement Obligations................................................................40
2.7. Register; Notes....................................................................................40
2.8. Incremental Facility...............................................................................41
SECTION PAGE
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application............................................................43
3.1.1. Repayments and Prepayments.........................................................................43
3.1.2. Application........................................................................................45
3.2. Interest Provisions................................................................................45
3.2.1. Rates..............................................................................................46
3.2.2. Post-Maturity Rates................................................................................46
3.2.3. Payment Dates......................................................................................46
3.3. Fees...............................................................................................47
3.3.1. Commitment Fee.....................................................................................47
3.3.2. Agent's Fee........................................................................................47
3.3.3. Letter of Credit Fee...............................................................................47
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful.........................................................................47
4.2. Deposits Unavailable...............................................................................48
4.3. Increased LIBO Rate Loan Costs, etc................................................................48
4.4. Funding Losses.....................................................................................48
4.5. Increased Capital Costs............................................................................49
4.6. Taxes..............................................................................................49
4.7. Payments, Computations, etc........................................................................52
4.8. Sharing of Payments................................................................................52
4.9. Setoff.............................................................................................53
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extension...........................................................................53
5.1.1. Resolutions, etc...................................................................................53
5.1.2. Delivery of Notes..................................................................................54
5.1.3. Payment of Outstanding Indebtedness, etc...........................................................54
5.1.4. Due Diligence......................................................................................54
5.1.5. Partners Pledge Agreement..........................................................................54
5.1.6. Subordination Agreements...........................................................................55
5.1.7. Insurance..........................................................................................55
5.1.8. Closing Fees, Expenses, etc........................................................................55
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SECTION PAGE
5.1.9. Approvals..........................................................................................55
5.1.10. Management Agreements..............................................................................55
5.1.11. Opinions of Counsel................................................................................55
5.1.12. Franchise Agreements and FCC Licenses..............................................................56
5.1.13. Financial Information, etc.........................................................................56
5.1.14. Compliance Certificate.............................................................................56
5.1.15. Closing Date Certificate...........................................................................56
5.2. All Credit Extensions..............................................................................56
5.2.1. Compliance with Warranties, No Default, etc........................................................56
5.2.2. Credit Extension Request, etc......................................................................57
5.2.3. Satisfactory Legal Form............................................................................57
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc..................................................................................57
6.2. Due Authorization, Non-Contravention, etc..........................................................57
6.3. Government Approval, Regulation, etc...............................................................58
6.4. Validity, etc......................................................................................58
6.5. Financial Information..............................................................................58
6.6. No Material Adverse Change.........................................................................58
6.7. Litigation, Labor Controversies, etc...............................................................59
6.8. Subsidiaries.......................................................................................59
6.9. Ownership of Properties............................................................................59
6.10. Taxes..............................................................................................59
6.11. Pension and Welfare Plans..........................................................................59
6.12. Environmental Warranties...........................................................................60
6.13. Regulations U and X................................................................................60
6.14. The Franchises.....................................................................................60
6.15. Patents, Copyrights, FCC Licenses, etc.............................................................60
6.16. Partnership Agreements; Management Agreement.......................................................61
6.17. Issuance of Subordinated Debt, and Affiliate Indebtedness and Intercompany
Indebtedness; Status of Obligations as Senior Indebtedness, etc....................................61
6.18. Accuracy of Information............................................................................61
6.19. Solvency...........................................................................................62
6.20. Compliance with Laws...............................................................................63
6.21. Year 2000 Compliance...............................................................................63
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SECTION PAGE
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants..............................................................................63
7.1.1. Financial Information, Reports, Notices, etc.......................................................63
7.1.2. Maintenance of Existence; Compliance with Laws, etc................................................66
7.1.3. Maintenance of Properties..........................................................................66
7.1.4. Insurance..........................................................................................66
7.1.5. Books and Records..................................................................................67
7.1.6. Environmental Law Covenant.........................................................................67
7.1.7. Rate Protection....................................................................................67
7.1.8. Subordination......................................................................................68
7.1.9. Use of Proceeds....................................................................................68
7.1.10. Additional Collateral..............................................................................68
7.1.11. Future Subsidiaries................................................................................68
7.1.12. Year 2000 Compliance...............................................................................69
7.2. Negative Covenants.................................................................................69
7.2.1. Business Activities................................................................................70
7.2.2. Indebtedness.......................................................................................70
7.2.3. Liens..............................................................................................71
7.2.4. Financial Condition and Operations.................................................................72
7.2.5. Investments........................................................................................73
7.2.6. Restricted Payments, etc...........................................................................74
7.2.7. Capital Expenditures (1999 and 2000)...............................................................75
7.2.8. No Prepayment of Subordinated Debt.................................................................75
7.2.9. Consolidation, Merger, etc.........................................................................76
7.2.10. Asset Swaps, Dispositions, etc.....................................................................76
7.2.11. Modification of Certain Agreements.................................................................77
7.2.12. Transactions with Affiliates.......................................................................77
7.2.13. Negative Pledges, Restrictive Agreements, etc......................................................77
7.2.14. Management Fees....................................................................................78
7.2.15. Payment of Management Fees.........................................................................78
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default.......................................................................79
8.1.1. Non-Payment of Obligations.........................................................................79
8.1.2. Breach of Warranty.................................................................................79
8.1.3. Non-Performance of Certain Covenants and Obligations...............................................79
8.1.4. Non-Performance of Other Covenants and Obligations.................................................79
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SECTION PAGE
8.1.5. Default on Other Indebtedness......................................................................79
8.1.6. Judgments..........................................................................................80
8.1.7. Pension Plans......................................................................................80
8.1.8. Change in Control..................................................................................80
8.1.9. Bankruptcy, Insolvency, etc........................................................................80
8.1.10. Impairment of Security, etc........................................................................81
8.1.11. Failure of Subordination...........................................................................81
8.1.12. Failure to Obtain or Cessation of Authorization, etc...............................................81
8.1.13. Cancellation of Any Franchise Agreement............................................................82
8.2. Action if Bankruptcy...............................................................................82
8.3. Action if Other Event of Default...................................................................82
ARTICLE IX
THE AGENTS
9.1. Actions............................................................................................83
9.2. Funding Reliance, etc..............................................................................83
9.3. Exculpation........................................................................................84
9.4. Successor..........................................................................................84
9.5. Loans by Arranging Agents..........................................................................85
9.6. Credit Decisions...................................................................................85
9.7. Copies, etc........................................................................................85
9.8. Limitation on Duties...............................................................................85
9.9. Reliance by Administrative Agent...................................................................85
9.10. Defaults...........................................................................................86
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc...........................................................................86
10.2. Notices............................................................................................87
10.3. Payment of Costs and Expenses......................................................................88
10.4. Indemnification....................................................................................88
10.5. Survival...........................................................................................90
10.6. Severability.......................................................................................90
10.7. Headings...........................................................................................90
10.8. Execution in Counterparts, Effectiveness, etc......................................................90
10.9. Governing Law; Entire Agreement....................................................................90
10.10. Successors and Assigns.............................................................................91
10.11. Sale and Transfer of Loans and Notes; Participations in Loans and Notes............................91
10.11.1. Assignments........................................................................................91
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10.11.2. Participations.....................................................................................93
10.12. Other Transactions.................................................................................94
10.13. Limited Recourse...................................................................................94
10.14. Forum Selection and Consent to Jurisdiction........................................................95
10.15. Waiver of Jury Trial...............................................................................96
10.16. Release............................................................................................96
SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Term Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Lender Assignment Agreement
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Closing Date Certificate
EXHIBIT G-1 - Form of Intercompany Subordination Agreement
EXHIBIT G-2 - Form of Manager Subordination Agreement
EXHIBIT H-1 - Form of Partners Pledge Agreement (Borrower's Partners)
EXHIBIT H-2 - Form of Borrower Pledge Agreement
EXHIBIT I - Form of Subsidiary Guaranty
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