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EXHIBIT 10.2
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION, CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT HAS
BEEN OMITTED FROM THIS FILING AND MARKED WITH AN ASTERISK [*]. A COMPLETE COPY
OF THE DOCUMENT HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.
U.S. $500,000,000.00
CREDIT AGREEMENT
DATED AS OF SEPTEMBER 20, 1999
BETWEEN
▇▇▇▇ ▇. ▇▇▇▇▇
AS THE BORROWER
AND
CITIBANK, N.A.
AS THE BANK
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TABLE OF CONTENTS
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PRELIMINARY STATEMENTS......................................................................1
ARTICLE I DEFINITIONS.......................................................................1
SECTION 1.1 Certain Defined Terms..................................................1
"1997 Loan Documents"........................................................1
"Advance"....................................................................1
"Aggregate Basic Collateral Amount"..........................................1
"Aggregate Loanable Value"...................................................1
"Aggregate Transaction Market Value".........................................2
"Approved Holder"............................................................2
"Base Rate"..................................................................2
"Base Rate Advance"..........................................................2
"Basic Collateral Amount"....................................................2
"Borrower Guaranty"..........................................................3
"Business Day"...............................................................3
"Cash and Cash Equivalents"..................................................3
"Collateral".................................................................3
"Collateral Account".........................................................4
"Collateral Coverage Amount".................................................4
"Collateral Coverage Ratio"..................................................4
"Collateral Market Value"....................................................4
"Commitment".................................................................5
"Confidential Information"...................................................5
"Control Person Statement"...................................................5
"Convert", "Conversion" and "Converted"......................................5
"Credit Document"............................................................5
"Credit Document Obligations"................................................5
"Cross-Collateralization Agreement"..........................................5
"Debt" ......................................................................5
"Direct Exposure"............................................................6
"Equity Hedge Agreement".....................................................6
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"Eurodollar Rate"............................................................6
"Eurodollar Rate Advance"....................................................6
"Event of Default"...........................................................7
"Exchange Investment"........................................................7
"Guaranty"...................................................................7
"Guaranty Obligations".......................................................7
"Hedge Agreement"............................................................7
"Hedged Shares"..............................................................7
"Interest Period"............................................................8
"Investment".................................................................8
"LIBO Rate"..................................................................8
"Liquid Assets"..............................................................8
"Loan Document"..............................................................8
"Loanable Value".............................................................8
"Market Rate"................................................................9
"Master Agreement"...........................................................9
"Microsoft Corporation"......................................................9
"Net Worth"..................................................................9
"Note" ......................................................................9
"Obligations"................................................................9
"Other Taxes"................................................................9
"Person".....................................................................9
"Pledge Agreement"...........................................................9
"Pledged Collateral"........................................................10
"Pledged Shares"............................................................10
"Readily Marketable Securities".............................................10
"Reference Rate"............................................................10
"Reference Rate Advance"....................................................10
"Rule 144"..................................................................10
"Strike Price"..............................................................10
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"Subsidiary"................................................................11
"Taxes".....................................................................11
"Termination Date"..........................................................11
"Transaction"...............................................................11
"Transaction Collateral"....................................................11
"Transaction Market Value"..................................................12
"Type" .....................................................................12
"Unencumbered Liquid Assets"................................................12
"United States".............................................................12
SECTION 1.2 Accounting Terms......................................................12
SECTION 1.3 Articles, Sections, Etc...............................................12
SECTION 1.4 Computation of Time Periods...........................................13
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES...............................................13
SECTION 2.1 The Advances..........................................................13
SECTION 2.2 Making the Advances...................................................13
SECTION 2.3 Responsibility for Requests for Advances..............................14
SECTION 2.4 Commitment and Facility Fees..........................................15
SECTION 2.5 Reduction and Termination of the Commitment...........................15
SECTION 2.6 Repayment.............................................................15
SECTION 2.7 Interest..............................................................15
(a) Ordinary Interest....................................................15
(i) Base Rate Advances............................................15
(ii) Eurodollar Rate Advances......................................16
(iii) Reference Rate Advances.......................................16
(b) Default Interest.....................................................16
(c) Interest Periods.....................................................16
(d) Reference Rate.......................................................16
SECTION 2.8 Optional Prepayments..................................................17
(a) Base Rate Advances...................................................17
(b) Eurodollar Rate Advances and Reference Rate Advances.................17
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SECTION 2.9 Certain Mandatory Prepayments.........................................17
SECTION 2.10 Increased Costs......................................................18
SECTION 2.11 Additional Interest..................................................18
SECTION 2.12 Increased Capital....................................................18
SECTION 2.13 Interest Rate Protection.............................................19
SECTION 2.14 Voluntary Conversion of Advances.....................................19
SECTION 2.15 Illegality, Etc......................................................20
SECTION 2.16 Payments and Computations............................................20
SECTION 2.17 Taxes................................................................21
ARTICLE III CONDITIONS OF EFFECTIVENESS AND OF LENDING.....................................22
SECTION 3.1 Conditions of Effectiveness...........................................22
SECTION 3.2 Conditions Precedent to All Advances..................................23
ARTICLE IV REPRESENTATIONS AND WARRANTIES..................................................24
SECTION 4.1 Representations and Warranties of the Borrower........................24
ARTICLE V CERTAIN COVENANTS OF THE BORROWER................................................26
SECTION 5.1 Certain Affirmative Covenants.........................................26
(a) Use of Advances......................................................26
(b) Compliance with Laws, Etc............................................26
(c) Payment of Taxes, Etc................................................26
(d) Certain Financial Covenants..........................................26
(e) Reporting Requirements...............................................26
SECTION 5.2 Certain Negative Covenants............................................28
(a) Liens, Etc...........................................................28
(b) Use of Proceeds......................................................28
ARTICLE VI CERTAIN OTHER COVENANTS.........................................................28
SECTION 6.1 Collateral Coverage...................................................28
SECTION 6.2 Partial Release of Collateral.........................................30
SECTION 6.3 Equity Hedge Agreements...............................................30
ARTICLE VII EVENTS OF DEFAULT..............................................................31
SECTION 7.1 Events of Default.....................................................31
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ARTICLE VIII MISCELLANEOUS.................................................................34
SECTION 8.1 Amendments, Etc.......................................................34
SECTION 8.2 Notices, Etc..........................................................34
SECTION 8.3 No Waiver; Remedies...................................................34
SECTION 8.4 Costs, Expenses and Taxes.............................................35
SECTION 8.5 Right of Set-off......................................................35
SECTION 8.6 Binding Effect........................................................36
SECTION 8.7 Severability..........................................................37
SECTION 8.8 Headings..............................................................37
SECTION 8.9 Governing Law; Consent to Jurisdiction................................37
SECTION 8.10 WAIVER OF JURY TRIAL.................................................38
EXHIBIT A PROMISSORY NOTE
EXHIBIT B PLEDGE AGREEMENT
EXHIBIT C CROSS-COLLATERLIZATION AGREEMENT
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CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of September 20, 1999 (this
"Agreement"), is entered into by and between ▇▇▇▇ ▇. ▇▇▇▇▇ (the "Borrower") and
CITIBANK, N.A., a national banking association (the "Bank").
PRELIMINARY STATEMENTS
A. The Borrower has requested that the Bank make available a credit
facility in the maximum amount of $500,000,000.00 to the Borrower, allowing the
Borrower to borrow, to prepay and reborrow within the limits of the Commitment
(as defined below).
B. The Bank, on the terms and subject to the conditions stated
below, is willing to grant the request of the Borrower, and the Borrower and the
Bank have agreed to the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the premises, the Borrower and the
Bank agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"1997 Loan Documents" means that certain Amended and Restated
Credit Agreement dated as of November 18, 1997, as amended by that certain
Amendment to Amended and Restated Credit Agreement dated as of July 17, 1998,
and further restated, amended, supplemented, modified or extended from time to
time, together with the Note, Pledge Agreement, Assignment and Security
Agreement (all as defined in such credit agreement) and all other ancillary
documents executed in conjunction therewith, all as further restated, amended,
supplemented, modified or extended from time to time, but excluding Credit
Documents as defined in this Agreement.
"Advance" means an advance by the Bank to the Borrower pursuant
to Article II of this Agreement.
"Aggregate Basic Collateral Amount" means, with respect to all
Transactions (other than any Transaction that is subject to or governed by any
Equity Hedge Agreement) as at any date of determination, the aggregate Basic
Collateral Amount (expressed in United States dollars) of all Transactions
(other than any Transaction that is subject to or governed by any Equity Hedge
Agreement) in effect on such date of determination.
"Aggregate Loanable Value" means, at any date of determination,
the sum of the aggregate Loanable Value for all Hedged Shares at such date plus
the aggregate Loanable Value for all Collateral other than the Hedged Shares at
such date.
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"Aggregate Transaction Market Value" means, with respect to all
Transactions (other than any Transaction that is subject to or governed by any
Equity Hedge Agreement) as at any date of determination, the aggregate
Transaction Market Value (expressed in United States dollars) of such
Transactions, including, but not limited to, any and all Transactions (other
than any Transaction that is subject to or governed by any Equity Hedge
Agreement) in effect on such date of determination, if such aggregate
Transaction Market Value is a positive number.
"Approved Holder" means Vulcan Ventures Inc., PGA Credit LLC,
PGA Credit II LLC, and any other direct or indirect wholly-owned subsidiary of
the Borrower as to which Borrower has delivered a written statement to the Bank
certifying that such subsidiary is wholly-owned (directly or indirectly) by the
Borrower, and requesting that the Debt, Cash and Cash Equivalents and Readily
Marketable Securities of such subsidiary shall be taken into account as
liabilities and assets of an Approved Holder under this Agreement.
"Base Rate" means, for any Interest Period or any other period,
a fluctuating interest rate per annum as shall be in effect from time to time,
which rate per annum shall at all times be equal to the higher of:
(a) the rate of interest announced publicly by the Bank in
New York, New York, from time to time, as the Bank's base rate; or
(b) [*] percent per annum above the latest three-week
moving average of secondary market morning offering rates in the United States
for three-month certificates of deposit of major United States money market
banks, such three-week moving average (adjusted to the basis of 360 days) being
determined weekly on each Monday (or, if any such day is not a Business Day, on
the next succeeding Business Day) for the three-week period ending on the
previous Friday by the Bank on the basis of such rates reported by certificate
of deposit dealers to and published by the Federal Reserve Bank of New York or,
if such publication shall be suspended or terminated, on the basis of quotations
for such rates received by the Bank from three New York certificate of deposit
dealers of recognized standing selected by the Bank, in either case adjusted to
the nearest 1/4 of one percent or, if there is no nearest 1/4 of one percent, to
the next higher 1/4 of one percent.
"Base Rate Advance" means an Advance which bears interest as
provided in Section 2.7(a) (i).
"Basic Collateral Amount" means, with respect to any
Transaction, an amount in United States dollars determined by the Bank in its
sole discretion at the time the Transaction is entered into and specified by the
Bank to the Borrower in writing as the aggregate amount of the Transaction
Collateral initially required to be pledged, assigned and delivered by the
Borrower to the Bank or in which the Borrower shall otherwise be required to
grant to the Bank a security interest as security for the payment of all
indebtedness, liabilities and other obligations (whether absolute or contingent
and whether for or relating to principal, interest, fees, expenses, indemnities,
[*] Confidential treatment requested.
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other sums or amounts or otherwise) of the Borrower now or hereafter existing
under the Credit Document pertaining to such Transaction and under any and all
other documents, instruments and agreements executed and delivered pursuant to
or in connection with such Credit Document.
"Borrower Guaranty" means each of the Guarantee, dated as of
September 20, 1996 made by the Borrower for the benefit of Citicorp U.S.A.,
Inc., and subsequently assigned to Citicorp North America, Inc. and the
Guarantee dated as of April 1, 1999 made by the Borrower for the benefit of
Citicorp North America, Inc., in each case as such Guaranty respectively may be
amended or otherwise modified from time to time.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City or Seattle, Washington, and, if
the applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"Cash and Cash Equivalents" means the aggregate amount of the
following, to the extent owned by the Borrower or an Approved Holder free and
clear of all liens, security interests, charges, encumbrances and rights of
others: (a) cash on hand; (b) United States dollar demand deposits maintained in
the United States with any commercial bank and United States dollar time
deposits maintained in the United States with, or certificates of deposit having
a maturity of one year or less issued by, any commercial bank which has its head
office in the United States and which has a combined capital and surplus of at
least $100,000,000.00; (c) direct obligations of, or obligations unconditionally
guarantied by, the United States and having a maturity of one year or less; (d)
readily marketable commercial paper having a maturity of one year or less,
issued by any corporation organized and existing under the laws of the United
States or any state thereof or the District of Columbia and rated by Standard &
Poor's Corporation or ▇▇▇▇▇'▇ Investors Service, Inc. (or, if neither such
organization shall rate such commercial paper at any time, rated by any
nationally recognized rating organization in the United States) with the highest
rating assigned by such organization; (e) repurchase agreements which (i) are
callable at any time or have a maturity date of one year or less, (ii) are
entered into with any commercial bank that has its head office in the United
States and has a combined capital and surplus of at least $100,000,000.00 and
(iii) are secured by direct obligations of, or obligations unconditionally
guarantied by, the United States and having a maturity of one year or less; (f)
mutual funds that invest exclusively in direct obligations of, or obligations
unconditionally guarantied by, the United States and having a maturity of one
year or less; and (g) such other short-term investments as shall be acceptable
to the Bank from time to time in its sole discretion.
"Collateral" means, collectively, (a) the Pledged Collateral,
(b) all additional shares of stock of any issuer of any of the Pledged Shares,
or any successor to any such issuer, from time to time acquired by the Borrower
and pledged and delivered by the Borrower to the Bank pursuant to Section 6.1 of
this Agreement or Section 14 of the Pledge Agreement, and all certificates
representing such additional
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shares and all dividends (including, but not limited to, stock dividends), cash,
instruments, financial assets, securities (whether certificated or
uncertificated), security entitlements, securities accounts, commodity
contracts, commodity accounts, other investment property and other property from
time to time received, receivable or otherwise distributed in respect of or in
exchange for any or all of such additional shares for any reason, including, but
not limited to, any change in the number or kind of outstanding shares of any
securities of any issuer of any of the Pledged Shares, or any successor to any
such issuer, by reason of any recapitalization, merger, consolidation,
reorganization, separation, liquidation, stock split, stock dividend,
combination of shares or other similar corporate event, (c) all cash from time
to time pledged and delivered by the Borrower to the Bank for deposit in any one
or more of the Collateral Accounts pursuant to Section 6.1 of this Agreement or
Section 14 of the Pledge Agreement, and (d) all proceeds of any and all of the
properties described in clauses (a), (b) and (c) of this definition.
"Collateral Account" has the meaning assigned to that term in
the Pledge Agreement.
"Collateral Coverage Amount" means, at any date of
determination, the sum of the aggregate amount of the Obligations (including,
but not limited to, the unpaid principal amount of the Advances, but excluding
any Credit Document Obligation under any Credit Document which has not expired,
terminated or matured) plus the Aggregate Transaction Market Value plus the
Aggregate Basic Collateral Amount for all Transactions.
"Collateral Coverage Ratio" means, at any date of determination,
the quotient, expressed as a percentage, the denominator of which is the
aggregate Collateral Market Value for all Collateral other than the Hedged
Shares at such date and the numerator of which is the difference obtained by
subtracting the aggregate Loanable Value for the Hedged Shares at such date from
the Collateral Coverage Amount at such date.
"Collateral Market Value" means, at any date of determination:
(a) for any portion of the Collateral comprising a marketable security quoted on
the Nasdaq National Market, the closing bid price as quoted for such security on
the Nasdaq National Market on the Business Day immediately preceding the date of
determination; (b) for any portion of the Collateral comprising a marketable
security listed or admitted to trading on the New York Stock Exchange or the
American Stock Exchange, the last reported sale price of such security on the
New York Stock Exchange or the American Stock Exchange, as the case may be, on
the Business Day immediately preceding the date of determination or, if no such
reported sale takes place on such immediately preceding Business Day, the
average of the last reported bid and asked prices for such security on the New
York Stock Exchange or the American Stock Exchange, as the case may be, on such
immediately preceding Business Day; (c) for any portion of the Collateral
comprising a cash equivalent, either the closing bid price as reported for such
cash equivalent by the applicable exchange determined by the Bank on the
Business Day immediately preceding the date of determination or such other value
for such cash
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equivalent determined by the Bank in a commercially reasonable manner; and (d)
for any portion of the Collateral comprising any other type or item of property,
the value for such type or item of property determined by the Bank in a
commercially reasonable manner.
"Commitment" has the meaning assigned to that term in Section
2.1.
"Confidential Information" means the information furnished to
the Bank by the Borrower pursuant to clauses (i), (ii) and (iii) of Section
5.1(e) and any other information that is furnished to the Bank by the Borrower
and is clearly identified by the Borrower to the Bank in writing as confidential
information.
"Control Person Statement" means any of the Control Person
Statement, dated as of November 10, 1994, the Control Person Statement, dated as
of May 1, 1996, and any subsequent Control Person Statement required pursuant to
Section 3.2(b)(ii), in each case furnished by or on behalf of the Borrower to
the Bank.
"Convert", "Conversion" and "Converted" each refers to a
conversion of an Advance of one Type into an Advance of another Type pursuant to
Section 2.14 or Section 2.15.
"Credit Document" means any Master Agreement, any other Hedge
Agreement entered into between the Bank and the Borrower (whether prior to,
contemporaneously with or at any time or times after the date of this
Agreement), and any other Hedge Agreement to which the Borrower is a party and
which is acquired by the Bank by assignment or otherwise (whether prior to,
contemporaneously with or at any time or times after the date of this
Agreement), as the same may be amended or otherwise modified from time to time.
"Credit Document Obligations" means, collectively, all
indebtedness, liabilities and other obligations of the Borrower now or hereafter
existing under any and all Credit Documents, whether absolute or contingent and
whether for or relating to principal, interest, fees, expenses, indemnities,
other sums or amounts or otherwise.
"Cross-Collateralization Agreement" has the meaning assigned to
that term in Section 3.1(d) .
"Debt" of any Person means (a) all indebtedness of such Person
for borrowed money, (b) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (c) all obligations of such
Person to pay the deferred purchase price of property or services, (d) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property), (e)
all obligations of such Person as lessee under leases which shall have been or
should be, in accordance with generally accepted accounting principles, recorded
as capital leases, (f) all obligations, contingent or otherwise, of such Person
under acceptance, letter of credit or similar facilities, (g) all obligations of
such Person in
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respect of Hedge Agreements, (h) all obligations for production payments from
property operated by or on behalf of such Person and other similar arrangements
with respect to natural resources, and (i) all obligations of such Person under
direct or indirect guaranties in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor
against loss in respect of, indebtedness or obligations of others of the kinds
referred to in clauses (a) through (h) above, and (j) all indebtedness and other
obligations of the kinds referred to in clauses (a) through (i) above secured by
(or for which the holder of such indebtedness or other obligations has an
existing right, contingent or otherwise, to be secured by) any lien, security
interest or other charge or encumbrance on property (including, but not limited
to, accounts and contract rights) owned by such Person, even though such Person
has not assumed or become liable for the payment of such indebtedness or other
obligations; provided, however, that whenever for purposes of this Agreement or
any other Loan Document the Debt of more than one Person is to be aggregated, if
more than one Person is liable for an obligation (for instance, joint and
several liability, or secondary liability), such obligation, although taken into
account for each Person in determining such Person's Debt, shall be taken into
account only once in the resulting aggregation, so as to avoid a "double count".
"Direct Exposure" means the sum of (x) obligations of the
Borrower (i) under the Loan Documents, (ii) under the 1997 Loan Documents, (iii)
under the Borrower Guaranties, and under any further loan documents entered into
by and between the Borrower and the Bank or its affiliates plus (y) the
Aggregate Transaction Market Value plus (z) the Aggregate Basic Collateral
Amount.
"Equity Hedge Agreement" means any Hedge Agreement which (a) is
designed to hedge against downward fluctuations in the market value of all or
any portion of the Pledged Shares and now or hereafter entered into by the
Borrower with a Person satisfactory to the Bank, (b) provides to the Borrower
protection, at all times during a period satisfactory to the Bank, against a
decrease in the market value of all or such portion of the Pledged Shares, as
the case may be, below a level or price per share specified in such Hedge
Agreement and satisfactory to the Bank, (c) is otherwise in form and substance
satisfactory to the Bank, and (d) together with all of the Borrower's right,
title and interest in, to and under such Hedge Agreement (including, but not
limited to, all rights of the Borrower to receive moneys due or to become due
under or pursuant to such Hedge Agreement) and all proceeds thereof, is pledged,
assigned and delivered by the Borrower to the Bank, and subject to a security
interest granted by the Borrower to the Bank, as security for the payment and
performance of all of the Obligations, all pursuant to such pledge and security
agreements as specified by and in form and substance satisfactory to the Bank.
"Eurodollar Rate" means, for any Interest Period for any
Advance, an interest rate per annum equal to the sum of the LIBO Rate for such
Interest Period [*] percent ([*]%) per annum.
"Eurodollar Rate Advance" means an Advance which bears interest
as provided in Section 2.7(a) (ii) .
[*] Confidential treatment requested.
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"Event of Default" has the meaning assigned to that term in
Section 7.1.
"Exchange Investment" means any security into which any
Investment is exchanged or converted.
"Guaranty" means any guaranty executed and delivered by the
Borrower to the Bank (whether prior to, contemporaneously with or at any time or
times after the date of this Agreement) in order to induce the Bank, acting in
the Bank's discretion, to make loans or advances or otherwise to extend or
continue credit (including, but not limited to, credit extended in connection
with any letter of credit) to or for the account of any Person other than the
Borrower, or otherwise to assure the Bank against loss in respect of
indebtedness or other obligations of any Person other than the Borrower, as such
guaranty may be amended or otherwise modified from time to time. Without
limiting the generality of the preceding sentence, the term "Guaranty" does not
include a Borrower Guaranty.
"Guaranty Obligations" means, collectively, all indebtedness,
liabilities and other obligations of the Borrower now or hereafter existing
under any and all Guaranties, whether absolute or contingent and whether for or
relating to principal, interest, fees, expenses, indemnities, other sums or
amounts or otherwise.
"Hedge Agreement" means any agreement (including, but not
limited to, any and all terms, conditions and other provisions incorporated by
reference in such agreement and any and all supplements to such agreement)
designed to hedge against fluctuations in equity values, interest rates or
foreign exchange rates, and includes, but is not limited to, any Master
Agreement and any similar master agreement or other agreement pertaining to any
interest rate swap, cap, floor, collar, future or option transaction, any basis
swap transaction, any forward rate transaction, any commodity swap or commodity
option transaction, any equity or equity index swap, future or option
transaction, any bond option transaction, any foreign exchange transaction, any
forward foreign exchange transaction, any spot foreign exchange transaction, any
currency swap, future or option transaction, any cross-currency rate swap
transaction, or any similar swap, cap, floor, collar, future or option
transaction.
"Hedged Shares" means, at any date of determination,
collectively any of the Pledged Shares comprising common stock issued by
Microsoft Corporation or any other corporation agreed to by the Bank, for which
the Borrower and the Bank have then been provided protection satisfactory to the
Bank against a decrease in the market value of such Pledged Shares below a level
or price per share satisfactory to the Bank as specified in, and pursuant to, an
Equity Hedge Agreement as to which the then remaining period of such protection
provided to the Borrower and the Bank under such Equity Hedge Agreement shall
exceed five Business Days and as to which no event shall have occurred and no
condition shall exist the effect of which is to liquidate, or to permit the
liquidation of, any payments, sums or other amounts under such Equity Hedge
Agreement or to terminate, or to permit the termination of, such Equity Hedge
Agreement, or to accelerate, or to permit the acceleration of, the maturity of
any of the Credit Document Obligations under such Equity Hedge Agreement.
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"Interest Period" means, for each Advance, the period commencing
on the date of such Advance or the date of the Conversion of any Advance into
such an Advance and ending on the last day of the period selected by the
Borrower pursuant to the provisions of Section 2.7(c) and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions of Section 2.7(c) .
"Investment" means any limited liability company interest in
Charter Communications Holding Company, LLC, a Delaware limited liability
company, purchased by the Borrower or any affiliate thereof with the proceeds of
any Advances.
"LIBO Rate" means, for any Interest Period for any Advance, an
interest rate per annum equal to the rate of interest per annum at which
deposits in United States dollars are offered by the principal office of the
Bank in London, England, to prime banks in the London interbank market at 11:00
a.m. (London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to such Advance and for a period equal
to such Interest Period.
"Liquid Assets" means the aggregate value of Cash and Cash
Equivalents plus Readily Marketable Securities, including assets which would
satisfy the definitions of Cash and Cash Equivalents or Readily Marketable
Securities, but for the fact that such assets are subject to a pledge, lien or
other security interest.
"Loan Document" means any of this Agreement, the Note, the
Pledge Agreement and any other pledge and security agreements executed and
delivered pursuant to Section 6.1 of this Agreement or Section 14 of the Pledge
Agreement, as the same may be amended or otherwise modified from time to time.
"Loanable Value" means: (a) for any Hedged Share, the product,
expressed in United States dollars, obtained by multiplying the Strike Price for
such Hedged Share times such percentage as may be quoted by the Bank to the
Borrower, and agreed to by the Borrower in writing, as the loanable value
percentage for such Hedged Shares; (b) for any Pledged Share which is common
stock issued by Microsoft Corporation or any other corporation agreed to by the
Bank, and is not a Hedged Share, the product, expressed in United States
dollars, obtained by multiplying [*] percent ([*]%) times the Collateral Market
Value for such Pledged Share; and (c) for any Collateral other than any of the
Pledged Shares comprising common stock issued by Microsoft Corporation or any
other corporation agreed to by the Bank, the product, expressed in United States
dollars, obtained by multiplying the Collateral Market Value for such Collateral
times such percentage as may be quoted by the Bank to the Borrower, and agreed
to by the Borrower in writing, as the loanable value percentage for such
Collateral; provided that the Loanable Value shall be deemed to be zero for any
portion of the Collateral comprising (i) a marketable security which has a
Collateral Market Value of less than $10.00 or (ii) any Equity Hedge Agreement
or any right, title or interest of the Borrower in, to and under any Equity
Hedge Agreement (including, but not limited to, any right of the Borrower to
receive moneys due or to become due under or pursuant to any such Equity Hedge
Agreement).
[*] Confidential treatment requested.
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"Market Rate" has the meaning assigned to that term in Section
8.4(b).
"Master Agreement" means any ISDA, International Swap Dealers
Association, Inc., Master Agreement, and any and all schedules, other addenda
and confirmations relating to such Master Agreement, entered into between the
Bank and the Borrower (whether prior to, contemporaneously with or at any time
or times after the date of this Agreement), as such Master Agreement may be
amended or otherwise modified from time to time.
"Microsoft Corporation" means Microsoft Corporation, a
Washington corporation, and any successor.
"Net Worth" means net worth computed in accordance with
generally accepted accounting principles applied on a basis consistent with the
preparation of Borrower's financial statements delivered to the Bank from time
to time in compliance with Section 5.1(e) of this Agreement.
"Note" means a promissory note of the Borrower payable to the
order of the Bank, in substantially the form of Exhibit A, evidencing the
aggregate indebtedness of the Borrower to the Bank resulting from the Advances
and delivered to the Bank pursuant to Article III, as such promissory note may
be further amended, extended, renewed or otherwise modified from time to time.
"Obligations" means, collectively, (a) all indebtedness,
liabilities and other obligations of the Borrower now or hereafter existing
under this Agreement, the Note, the Pledge Agreement and any and all other Loan
Documents, whether for principal, interest, fees, expenses, indemnities, other
sums or amounts or otherwise, (b) all Credit Document Obligations, (c) all
Guaranty Obligations, and (d) all other indebtedness, liabilities and
obligations of the Borrower to the Bank (whether or not contemplated by or
related in any manner to obligations under the foregoing clauses (a),(b) and
(c)), whether now or hereafter existing, whether directly created or acquired by
assignment or otherwise, whether absolute or contingent and whether for or
relating to principal, interest, fees, expenses, indemnities, other sums or
amounts or otherwise; provided, that Obligations shall exclude obligations under
or pursuant to the Borrower Guaranties.
"Other Taxes" has the meaning assigned to that term in Section
2.17(b).
"Person" means an individual, a partnership (including a general
partnership, a limited partnership, a limited liability limited partnership and
a limited liability partnership), a limited liability company, a corporation
(including a business trust), a joint stock company, a trust, an unincorporated
association, a joint venture or any other entity, or a government or any
political subdivision or agency of any government.
"Pledge Agreement" means a pledge agreement, duly executed by
the Borrower and the Bank in substantially the form of Exhibit B, as such pledge
agreement may be further amended or otherwise modified from time to time.
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"Pledged Collateral" has the meaning assigned to that term in
the Pledge Agreement.
"Pledged Shares" has the meaning assigned to that term in the
Pledge Agreement.
"Readily Marketable Securities" means the aggregate current
market value of marketable securities listed or admitted to trading on the New
York Stock Exchange or the American Stock Exchange or quoted on the Nasdaq
National Market and legally and beneficially owned by the Borrower or an
Approved Holder free and clear of all liens, security interests, options,
charges, encumbrances and restrictions, including, but not limited to,
restrictions (contractual or otherwise) on the transferability of such
securities, other than restrictions on the transferability of any such
marketable securities imposed by Rule 144 so long as a minimum of two years has
elapsed since the later of (a) the date of the acquisition by the Borrower of
such marketable securities from the respective issuers thereof or from any
affiliate (as that term is defined in paragraph (a) (1) of Rule 144) of any of
such issuers and (b) the date of payment by the Borrower of the full purchase
price or other consideration paid or given to acquire such marketable securities
from the respective issuers thereof or from any affiliate (as that term is
defined in paragraph (a) (1) of Rule 144) of any such issuers.
For the purposes of Section 5.1(d), the current market value of
any marketable security quoted on the Nasdaq National Market shall mean the
closing bid price as quoted for such security on the Nasdaq National Market on
the Business Day immediately preceding the date of determination, and the
current market value of any marketable security listed or admitted to trading on
the New York Stock Exchange or the American Stock Exchange shall mean the last
reported sale price of such security on the New York Stock Exchange or the
American Stock Exchange, as the case may be, on the Business Day immediately
preceding the date of determination or, if no such reported sale takes place on
such immediately preceding Business Day, the average of the last reported bid
and asked prices for such security on the New York Stock Exchange or the
American Stock Exchange, as the case may be, on such immediately preceding
Business Day.
"Reference Rate" has the meaning assigned to that term in
Section 2.7(d).
"Reference Rate Advance" means an Advance which bears interest
as provided in Section 2.7(a) (iii).
"Rule 144" means Rule 144 under the Securities Act of 1933, as
amended from time to time.
"Strike Price" means, for any Hedged Share and the Equity Hedge
Agreement pertaining to such Hedged Share, the price (expressed in United States
dollars) specified or otherwise provided in such Equity Hedge Agreement below
which the Borrower or the Borrower's assignee shall have the right to receive
the payment of moneys under or pursuant to such Equity Hedge Agreement at or
before the expiration
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or termination of such Equity Hedge Agreement, all as specified or otherwise
provided in such Equity Hedge Agreement.
"Subsidiary" means, for any Person, any corporation, partnership
(including a general partnership, a limited partnership, a limited liability
limited partnership and a limited liability partnership), limited liability
company, joint venture, trust or estate of which, or in which, (a) in the case
of a corporation, more than fifty percent of the outstanding capital stock
having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether or not at the time capital stock of
any other class or classes of such corporation shall or might have voting power
upon the occurrence of any contingency), or (b) in the case of a partnership, a
limited liability company or a joint venture, more than fifty percent of the
interest in the capital or profits of such partnership, limited liability
company or joint venture, or (c) in the case of a trust or estate, more than
fifty percent of the beneficial interest of such trust or estate, is at the time
directly or indirectly owned by such Person, by such Person and one or more
other Subsidiaries, or by one or more other Subsidiaries.
"Taxes" has the meaning assigned to that term in Section 2.17
(a).
"Termination Date" means September 20, 2004, or the earlier date
of termination in whole of the Commitment pursuant to Section 2.5, Section 2.9
or Section 7.1.
"Transaction" means any transaction, whether now or hereafter
existing, which is now or at any time hereafter subject to or governed by any
Credit Document, including, but not limited to, any interest rate swap, cap,
floor, collar, future or option transaction, any basis swap transaction, any
forward rate transaction, any commodity swap or commodity option transaction,
any equity or equity index swap, future or option transaction, any bond option
transaction, any foreign exchange transaction, any forward foreign exchange
transaction, any spot foreign exchange transaction, any currency swap, future or
option transaction, any cross-currency rate swap transaction, or any similar
swap, cap, floor, collar, future or option transaction.
"Transaction Collateral" means, collectively with respect to any
Transaction, all property, whether tangible or intangible, which at any date of
determination secures the payment or performance of any indebtedness,
liabilities or other obligations of the Borrower now or hereafter existing under
the Credit Document pertaining to such Transaction and under any and all other
documents, instruments and agreements executed and delivered pursuant to or in
connection with such Credit Document, including, but not limited to, (a) any and
all shares of stock, certificates representing shares of stock, dividends
(including, but not limited to, stock dividends), cash, instruments, financial
assets, securities (whether certificated or uncertificated), security
entitlements, securities accounts, commodity contracts, commodity accounts,
other investment property and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for any
securities for any reason, including, but not limited to, any change in the
number or kind of outstanding shares of any securities by reason of any
recapitalization, merger, consolidation, reorganization,
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separation, liquidation, stock split, stock dividend, combination of shares or
other similar corporate event, (b) any and all cash collateral accounts and
custody or safekeeping accounts now or hereafter established with the Bank in
the name of the Borrower or the Bank but under the sole control and dominion of
the Bank, and all funds and other property at any time delivered or transferred
or credited to, or deposited or held in, any such account or accounts and all
certificates and instruments, if any, from time to time representing or
evidencing any such account or accounts, (c) any and all cash from time to time
pledged and delivered by the Borrower to the Bank pursuant to such Credit
Document or any other documents, instruments and agreements executed and
delivered pursuant to or in connection with such Credit Document, and (d) all
proceeds of any and all of such properties.
"Transaction Market Value" means, with respect to any
Transaction as at any date of determination, the value (expressed in United
States dollars and whether positive or negative) of such Transaction determined
by the Bank in a commercially reasonable manner and in good faith as of the
close of the Bank's normal business hours on such date or, if such date is not a
Business Day, as of the close of the Bank's normal business hours on the
immediately preceding Business Day. The value of a Transaction determined in
accordance with this definition shall be expressed as a negative number if the
Bank would be required to give consideration to a hypothetical assignee (which
shall be a registered competitive market maker or a registered equity market
maker) in order to induce such hypothetical assignee to accept the Bank's rights
and obligations under or in respect of such Transaction, and the value of a
Transaction determined in accordance with this definition shall be expressed as
a positive number if such hypothetical assignee could be expected to give
consideration to the Bank in order to induce the Bank to assign to such
hypothetical assignee the Bank's rights and obligations under or in respect of
such Transaction.
"Type" refers to an Advance and means a Base Rate Advance, a
Eurodollar Rate Advance or a Reference Rate Advance, as the case may be.
"Unencumbered Liquid Assets" means the aggregate value of Cash
and Cash Equivalents plus Readily Marketable Securities.
"United States" and "U.S." each means United States of America.
SECTION 1.2 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with generally accepted
accounting principles consistently applied.
SECTION 1.3 Articles, Sections, Etc. Unless stated otherwise in this
Agreement, references in this Agreement to Articles, Sections, Schedules and
Exhibits are references to Articles and Sections of, and Schedules and Exhibits
attached to, this Agreement. Each Schedule to this Agreement is by this
reference incorporated in this Agreement.
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SECTION 1.4 Computation of Time Periods. In this Agreement, the Note and
the other Loan Documents, for the purpose of computing periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and each of the words "to" and "until" means "to but excluding."
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.1 The Advances. The Bank agrees, on the terms and conditions
set forth in this Agreement, to make Advances to the Borrower from time to time
on any Business Day during the period from the date of this Agreement until the
Termination Date in an aggregate amount not to exceed at any time outstanding
Five Hundred Million and No/100 Dollars ($500,000,000.00), as such amount may be
reduced pursuant to Section 2.5 (the "Commitment"). Each Base Rate Advance shall
be in an amount not less than $250,000.00; provided that a Base Rate Advance may
be in an amount equal to the entire unused Commitment if the entire unused
Commitment is less than $250,000.00. Subject to Section 2.2(b), each Eurodollar
Rate Advance and each Reference Rate Advance shall be in an amount not less than
$2,500,000.00. Within the limits of the Commitment, the Borrower may borrow,
prepay pursuant to Section 2.8 and reborrow under this Section 2.1.
SECTION 2.2 Making the Advances.
(a) Each Advance shall be made on notice given, with respect
to any proposed Base Rate Advance not later than 12:00 noon (New York City time)
on the Business Day of the proposed Advance and with respect to any proposed
Eurodollar Rate Advance or any proposed Reference Rate Advance not later than
12:00 noon (New York City time) three Business Days prior to the date of the
proposed Advance, by or on behalf of the Borrower to the Bank, specifying the
date and amount thereof and selecting the interest rate therefor pursuant to
Section 2.7 and, if such Advance is to be a Eurodollar Rate Advance or a
Reference Rate Advance, the initial Interest Period for such Advance. Not later
than 2:00 p.m. (New York City time) on the date of such Advance and upon
fulfillment of the applicable conditions set forth in Article III, the Bank will
make such Advance available to the Borrower in same day funds at the Bank's
address referred to in Section 8.2.
(b) Any other provision of this Agreement to the contrary
notwithstanding, the Borrower may not select the Eurodollar Rate or the
Reference Rate for any Advance if the principal amount of such Advance is less
than $2,500,000.00, unless, on the date of such Eurodollar Rate Advance or such
Reference Rate Advance, as the case may be, the Borrower also Converts one or
more Advances pursuant to Section 2.14 into an Advance of the same Type and
having the same Interest Period as such Eurodollar Rate Advance or such
Reference Rate Advance and the aggregate amount of such Advances so made and
Converted on such date is not less than $2,500,000.00.
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(c) Each notice from or on behalf of the Borrower to the
Bank requesting an Advance shall be irrevocable and binding on the Borrower. If
any Eurodollar Rate Advance or any Reference Rate Advance is not made as a
result of any failure to fulfill the applicable conditions to such Advance set
forth in Article III on or before the date for such Advance specified in the
notice from or on behalf of the Borrower to the Bank requesting such Advance,
then the Borrower shall pay to the Bank, upon demand by the Bank, an amount
equal to the difference (if a positive number) obtained by subtracting (i) the
amount of interest that would have accrued on such Advance at an interest rate
per annum equal to the rate of interest per annum at which deposits in United
States dollars are offered by the principal office of the Bank in London,
England, to prime banks in the London interbank market at 11:00 a.m. (London
time) on the date for such Advance specified in the notice from or on behalf of
the Borrower to the Bank requesting such Advance in an amount substantially
equal to such Advance and for a period equal to the Interest Period specified in
the notice from or on behalf of the Borrower to the Bank requesting such Advance
from (ii) the amount of interest that would have accrued on such Advance at the
Eurodollar Rate [*] percent ([*]%) per annum or the Reference Rate [*] percent
(*%) per annum, as the case may be, that would have been applicable to such
Advance during the Interest Period for such Advance specified in the notice from
or on behalf of the Borrower to the Bank requesting such Advance.
SECTION 2.3 Responsibility for Requests for Advances.
(a) The Borrower hereby authorizes the Bank to make Advances
under this Agreement upon notice given by the Borrower or upon notice given on
behalf of the Borrower by any one or more of [*] and any other Person designated
in writing by the Borrower to the Bank from time to time, each of whom shall at
all times continue to be authorized by the Borrower to request Advances on
behalf of the Borrower under this Agreement until receipt by the Bank of written
notice from the Borrower of the revocation of such authority of any such Person.
Each Advance made by the Bank upon notice given by the Borrower or by any of [*]
or any other Person designated in writing by the Borrower to the Bank shall be
conclusively presumed to have been made to or for the benefit of the Borrower
when made by the Bank in accordance with such notice and deposited in or
credited to any account of the Borrower with the Bank, regardless of whether any
Person (including, but not limited to, any Person authorized to request Advances
on behalf of the Borrower) other than the Borrower also shall have authority to
withdraw funds from any such account. The Borrower agrees to repay, and to pay
interest on, any Advance that is so made, deposited or credited by the Bank.
(b) The Borrower acknowledges and agrees that the making by
the Bank of Advances in response to notices given via telephone facsimile
communications is in the interest of the Borrower and that the Bank cannot
effectively determine whether a specific notice requesting an Advance and
purporting to have been made by or on behalf of the Borrower is actually
authorized or authentic. In order to induce the Bank to make Advances in
response to notices given via telephone facsimile communications, the Borrower
hereby assumes all risks regarding the validity, authenticity and due
authorization of all notices requesting Advances that are purported to be given
by or on
[*] Confidential treatment requested.
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behalf of the Borrower, whether or not the Person giving such notice has
authority in fact to request Advances on behalf of the Borrower and whether or
not the requested Advance or the application of the proceeds of such Advance
constitutes an Event of Default or would constitute an Event of Default but for
the requirement that notice be given or time elapse or both. The Bank shall
incur no liability to the Borrower in acting upon any notice or other
communication, whether given via telephone facsimile or telex or otherwise in
writing, which the Bank believes in good faith to have been given by any Person
authorized to give notices requesting Advances on behalf of the Borrower or in
otherwise acting in good faith under this Agreement.
SECTION 2.4 Commitment and Facility Fees. In consideration of the
Commitment available on the terms of this Agreement, the Borrower agrees to pay
to the Bank (a) a commitment fee on the average daily unused portion of the
Commitment from September 22, 1999, until the Termination Date at the rate of
[*] percent ([*]%) per annum, payable quarterly in arrears on the last day of
each March, June, September and December during the term of the Commitment,
commencing September 30, 1999, and on the Termination Date, (b) a facility fee
equal to [*], payable in five equal consecutive installments of [*] the first
installment due on or prior to the date of the initial Advance, and the
succeeding installments on the last day of September in each of 2000, 2001, 2002
and 2003; provided that if the unused portion of the Commitment is terminated in
whole pursuant to Section 2.5, Section 2.9 or Section 7.1, then the entire
unpaid balance of the facility fee referred to in Section 2.4(b) shall become
and be forthwith due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by the Borrower.
SECTION 2.5 Reduction and Termination of the Commitment. The Borrower
shall have the right, upon at least two Business Days notice to the Bank, to
terminate in whole or reduce in part the unused portion of the Commitment;
provided that each partial reduction shall be in an amount of not less than
$2,500,000.00.
SECTION 2.6 Repayment. The Borrower shall repay the aggregate unpaid
principal amount of all Advances in accordance with the Note.
SECTION 2.7 Interest.
(a) Ordinary Interest. The Borrower shall pay interest on
the unpaid principal amount of each Advance from the date of such Advance until
such principal amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at all times to
the Base Rate in effect from time to time, payable monthly on the last
day of each calendar month and on the date such Base Rate Advance shall
be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as
such Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during the Interest Period for such Advance to the Eurodollar Rate
for such
[*] Confidential treatment requested.
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Interest Period, payable monthly on the last day of each calendar month
and on the last day of such Interest Period.
(iii) Reference Rate Advances. During such periods as
such Advance is a Reference Rate Advance, a rate per annum equal at all
times during the Interest Period for such Advance to the Reference Rate
for such Advance, payable monthly on the last day of each calendar month
and on the last day of such Interest Period.
(b) Default Interest. The Borrower shall pay interest on the
unpaid principal amount of each Advance that is not paid when due and on the
unpaid amount of all interest, fees and other amounts payable hereunder that is
not paid when due, payable on demand, at a rate per annum equal at all times to
(i) in the case of any amount of principal, the greater of (A) [*] percent
([*]%) per annum above the rate per annum required to be paid on such Advance
immediately prior to the date on which such amount became due and (B) [*]
percent [*]%) per annum above the Base Rate in effect from time to time, and
(ii) in the case of all other amounts, [*] percent ([*]%) per annum above the
Base Rate in effect from time to time.
(c) Interest Periods. The duration of each Interest Period
shall be (i) one, two, three, four, five, six, seven, eight, nine, ten, eleven
or twelve months in the case of a Eurodollar Rate Advance and (ii) any number of
whole months not less than three months in the case of a Reference Rate Advance,
in each case as the Borrower may, upon notice received by the Bank not later
than 12:00 noon (New York City time) three Business Days prior to the first day
of such Interest Period, select; provided that:
(A) the duration of any Interest Period which
commences before September 20, 2004, and would otherwise end after such
date shall end on such date; and
(B) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day; provided that, in the case of any Interest
Period for a Eurodollar Rate Advance, if such extension would cause the
last day of such Interest Period to occur in the next following calendar
month, then the last day of such Interest Period shall occur on the next
preceding Business Day.
(d) Reference Rate. The term "Reference Rate" means, for any
Interest Period for any Advance, the rate per annum quoted by the Bank to the
Borrower, and agreed to by the Borrower, at any time for such Interest Period;
provided that if no rate per annum shall be agreed between the Borrower and the
Bank prior to the first day of such Interest Period as the Reference Rate for
such Interest Period, such Advance shall be a Base Rate Advance during such
Interest Period. Within two Business Days after the first day of such Interest
Period, the Bank shall send to the Borrower a confirmation of the Reference Rate
quoted to and agreed to by the Borrower, if any (and if no Reference Rate was
agreed to by the Borrower, a
[*] Confidential treatment requested.
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confirmation of the Base Rate), for such Interest Period, and unless the
Borrower shall object thereto within one Business Day after the Bank shall send
such confirmation, such confirmation shall be conclusive. If the Borrower
objects to the Reference Rate specified in such confirmation for any Advance
within one Business Day after the Bank shall send such confirmation, then such
Advance shall be a Base Rate Advance during such Interest Period, and the
Borrower shall pay to the Bank, upon demand by the Bank, an amount equal to the
difference (if a positive number) obtained by subtracting the amount of interest
that would have accrued on such Advance at the LIBO Rate from the amount of
interest that would have accrued on such Advance at the Reference Rate [*]
percent ([*]%) per annum that would have been applicable to such Advance during
such Interest Period.
SECTION 2.8 Optional Prepayments.
(a) Base Rate Advances. The Borrower may, upon at least two
Business Days notice to the Bank stating the proposed date and principal amount
of the prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amounts of the Base Rate Advances, in whole or in part,
plus accrued interest to the date of such prepayment on the principal amount
prepaid.
(b) Eurodollar Rate Advances and Reference Rate Advances.
The Borrower may, upon at least thirty days notice to the Bank specifying the
Advance to be prepaid and stating the proposed date and principal amount of the
prepayment, and if such notice is given the Borrower shall, prepay the entire
outstanding principal amount of any Eurodollar Rate Advance or any Reference
Rate Advance specified in such notice, plus accrued interest to the date of such
prepayment on the principal amount prepaid; provided that the Borrower shall be
obligated to pay the Bank in respect of such prepayment pursuant to Section
8.4(b).
SECTION 2.9 Certain Mandatory Prepayments.
(a) Upon the death of the Borrower or the appointment by a
court of competent jurisdiction of a guardian, conservator, committee or other
similar appointee for the Borrower, then, and in any such event, (i) the
obligation of the Bank to make Advances shall automatically be terminated and
(ii) the Advances, the Note, all interest thereon and all other amounts payable
under this Agreement and the other Loan Documents shall automatically become and
be due and payable on the ninetieth day after the earlier to occur of the date
of such death or the date of such appointment, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
(b) In the event the Borrower or any affiliate of the
Borrower elects to exchange any Exchange Investment consisting of Class B Common
Stock of Charter Communications, Inc. into Class A Common Stock of Charter
Communications, Inc., the Borrower shall, at least five Business Days prior to
the date on which such Class A Common Stock is to be issued in such exchange,
prepay the principal amount of any Advances the proceeds of which were used to
acquire any Investment or Exchange
[*] Confidential treatment requested.
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Investment, together with all accrued and unpaid interest thereon through the
date of prepayment.
SECTION 2.10 Increased Costs. If, due to either (a) the introduction of
or any change (other than any change by way of imposition or increase of reserve
requirements referred to in Section 2.11) in or in the interpretation of any law
or regulation or (b) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law), there shall be any increase in the cost to the Bank of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or Reference Rate
Advances, then the Borrower shall from time to time, upon demand by the Bank,
pay to the Bank additional amounts sufficient to compensate the Bank for such
increased cost incurred or accrued by the Bank not more than ninety days prior
to the date of such demand by the Bank. A certificate as to the amount of such
increased cost, submitted to the Borrower by the Bank, shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.11 Additional Interest. The Borrower shall pay to the Bank, so
long as the Bank shall be required under regulations of the Board of Governors
of the Federal Reserve System to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency liabilities (as such term is
defined in Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time), additional interest on the unpaid principal
amount of each Eurodollar Rate Advance, from the date of such Advance until such
principal amount is paid in full, at an interest rate per annum equal at all
times to the remainder obtained by subtracting (a) the LIBO Rate for the
Interest Period for such Advance from (b) the rate obtained by dividing such
LIBO Rate by a percentage equal to 100% minus the reserve percentage applicable
during such Interest Period (or if more than one such percentage shall be so
applicable, the daily average of such percentages for those days in such
Interest Period during which any such percentage shall be so applicable) under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency, supplemental or other
marginal reserve requirement) for the Bank with respect to liabilities or assets
consisting of or including Eurocurrency liabilities having a term equal to such
Interest Period, payable on each date on which interest is payable on such
Advance. Such additional interest shall be determined by the Bank and notified
to the Borrower, and such determination by the Bank shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.12 Increased Capital. If the Bank determines that compliance
with any law or regulation or any guideline or request from any central bank or
other governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by the
Bank or any corporation controlling the Bank and that the amount of such capital
is increased by or based upon the existence of the Bank's commitment to lend
hereunder and other commitments of this type, then, upon demand by the Bank
within ninety days after such increase in capital, the Borrower shall
immediately pay to the Bank, from time to time as specified by the Bank,
additional amounts sufficient to compensate the Bank or such
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corporation in the light of such circumstances, to the extent that the Bank
reasonably determines such increase in capital to be allocable to the existence
of the Bank's commitment to lend hereunder. A certificate as to such amounts
submitted to the Borrower by the Bank shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.13 Interest Rate Protection.
(a) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advance or any Reference Rate Advance in
accordance with the provisions of Section 2.7(c), the Bank will forthwith so
notify the Borrower and such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance.
(b) On the date on which the sum of the unused portion of
the Commitment plus the aggregate unpaid principal amount of the Advances shall
be reduced, by payment or prepayment or otherwise, to less than $2,500,000.00,
any and all Advances that are of a Type other than Base Rate Advances
automatically shall Convert into Base Rate Advances and, on and after such date,
the right of the Borrower to Convert such Advances into Advances of a Type other
than Base Rate Advances shall terminate.
SECTION 2.14 Voluntary Conversion of Advances. The Borrower may on any
Business Day, upon notice given to the Bank not later than 12:00 noon (New York
City time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.7 and 2.15, Convert an
Advance of one Type into an Advance of another Type; provided that, except as
otherwise provided in Section 2.15(a), any Conversion of any Eurodollar Rate
Advance or any Reference Rate Advance into an Advance of another Type shall be
made on, and only on, the last day of an Interest Period for such Eurodollar
Rate Advance or such Reference Rate Advance, as the case may be; provided,
further, that the Borrower may not Convert an Advance into a Eurodollar Rate
Advance or a Reference Rate Advance if the principal amount of the Advance to be
Converted is less than $2,500,000.00, unless, on the date of such Conversion,
the Borrower also obtains other Advances pursuant to Sections 2.1, 2.2 and 2.7
of the same Type and having the same Interest Period as such Eurodollar Rate
Advance or such Reference Rate Advance, as the case may be, or Converts one or
more other Advances pursuant to this Section into an Advance of the same Type
and having the same Interest Period as such Eurodollar Rate Advance or such
Reference Rate Advance, as the case may be, and the aggregate amount of such
Advances so made and Converted on such date is not less than $2,500,000.00. Each
notice of a Conversion pursuant to this Section 2.14 shall, within the
restrictions specified above, specify (a) the date of such Conversion, (b) the
Advance to be Converted and (c) if such Conversion is into a Eurodollar Rate
Advance or a Reference Rate Advance, the duration of the Interest Period for
such Advance.
SECTION 2.15 Illegality, Etc.
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(a) Any other provision of this Agreement to the contrary
notwithstanding, if the Bank shall notify the Borrower that the introduction of,
or any change in or in the interpretation of, any law or regulation makes it
unlawful, or that any central bank or other governmental authority asserts that
it is unlawful, for the Bank to perform its obligations hereunder to make
Eurodollar Rate Advances or to fund or maintain Eurodollar Rate Advances
hereunder, then (i) the obligation of the Bank to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended until the Bank shall notify
the Borrower that the circumstances causing such suspension no longer exist and
(ii) the Borrower shall forthwith prepay in full all Eurodollar Rate Advances
then outstanding, plus interest accrued thereon, unless the Borrower, within
five Business Days of notice from the Bank, Converts all Eurodollar Rate
Advances then outstanding into Advances of another Type in accordance with
Section 2.14, and provided that in the event of such prepayment the Borrower
shall be obligated to pay the Bank in respect of such prepayment pursuant to
Section 8.4(b).
(b) If, with respect to any Eurodollar Rate Advance, the
Bank notifies the Borrower that (i) the Bank is unable to determine the
Eurodollar Rate or (ii) the Eurodollar Rate for any Interest Period for such
Advance will not adequately reflect the cost to the Bank of making, funding or
maintaining such Eurodollar Rate Advance for such Interest Period, such
Eurodollar Rate Advance will automatically, on the last day of the then existing
Interest Period therefor, Convert into a Base Rate Advance, and the obligation
of the Bank to make, or to Convert Advances into, Eurodollar Rate Advances shall
be suspended until the Bank shall notify the Borrower that the circumstances
causing such suspension no longer exist.
SECTION 2.16 Payments and Computations.
(a) The Borrower shall make each payment under any Loan
Document not later than 12:00 noon (New York City time) on the day when due in
United States dollars to the Bank at its address referred to in Section 8.2 in
same day funds.
(b) The Borrower hereby authorizes the Bank, if and to the
extent payment is not made when due under any Loan Document, to charge from time
to time against any or all of the Borrower's accounts with the Bank any amount
so due.
(c) All computations of interest and of commitment fees
shall be made by the Bank on the basis of a year of 360 days, in each case for
the actual number of days (including the first day, but excluding the last day)
occurring in the period for which such interest or commitment fees are payable.
Each determination by the Bank of an interest rate hereunder shall be conclusive
and binding for all purposes, absent manifest error.
(d) Whenever any payment under any Loan Document shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided that if such extension would cause payment of interest
on or principal of any
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Eurodollar Rate Advances to be made in the next following calendar month, such
payment shall be made on the next preceding Business Day.
SECTION 2.17 Taxes.
(a) Any and all payments by the Borrower hereunder or under
the Note shall be made, in accordance with Section 2.16, free and clear of and
without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of the Bank, net income taxes that are imposed by the
United States and franchise taxes and net income taxes that are imposed on the
Bank by the state or foreign jurisdiction under the laws of which the Bank is
organized or any political subdivision thereof (all such non-excluded taxes,
levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable to the Bank hereunder or
under the Note, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including, but not limited to,
deductions applicable to additional sums payable under this Section 2.17) the
Bank receives an amount equal to the sum the Bank would have received had no
such deductions been made, (ii) the Borrower shall make such deductions and
(iii) the Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or
future stamp, documentary, excise, property or similar taxes, charges or levies
that arise from any payment made hereunder or under the Note or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Note (all such taxes, charges and levies being hereinafter
referred to as "Other Taxes").
(c) The Borrower shall indemnify the Bank for the full
amount of Taxes and Other Taxes, and for the full amount of taxes imposed by any
jurisdiction on amounts payable under this Section 2.17, paid by the Bank and
any liability (including, but not limited to, penalties, additions to tax,
interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within thirty days from the date the Bank makes
written demand therefor.
(d) Within thirty days after the date of any payment of
Taxes, the Borrower shall furnish to the Bank, at the Bank's address referred to
in Section 8.2, the original receipt of payment thereof or a certified copy of
such receipt. In the case of any payment hereunder or under the Note by the
Borrower through an account or branch outside the United States or on behalf of
the Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Bank, at such address of
the Bank, an opinion of counsel acceptable to the Bank stating that such payment
is exempt from Taxes. For the purposes of this subsection (d) and subsection (a)
of this Section 2.17, the terms "United States" and "United States person" shall
have the respective meanings specified in section 7701 of the Internal Revenue
Code.
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(e) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.17 shall survive the payment in full of principal
and interest hereunder and under the Note.
ARTICLE III
CONDITIONS OF EFFECTIVENESS AND OF LENDING
SECTION 3.1 Conditions of Effectiveness. This Agreement shall become
effective when (and only when), and the obligation of the Bank to make its
initial Advance on or after the date of this Agreement is subject to the
condition precedent that, the Bank shall have received the following, each in
form and substance satisfactory to the Bank:
(a) This Agreement duly executed by the Borrower and the
Bank;
(b) The Note duly executed by the Borrower;
(c) The Pledge Agreement duly executed by the Borrower and
the Bank;
(d) A cross-collateralization agreement, duly executed by
the Borrower in substantially the form of Exhibit C (the
"Cross-Collateralization Agreement");
(e) Acknowledgment copies or stamped receipt copies of
proper financing statements, duly filed under the Uniform Commercial Code of all
jurisdictions that the Bank may deem necessary or desirable in order to perfect
the security interests created by the Pledge Agreement;
(f) Completed requests for information or equivalent
reports, listing the financing statements referred to in Section 3.1(e) and all
other effective financing statements and statements of amendment filed in the
jurisdictions referred to in Section 3.1(e) that name the Borrower as debtor,
together with copies of such other financing statements and statements of
amendment (none of which shall cover the collateral purported to be covered by
the Pledge Agreement);
(g) Certificates, free of any restrictive legend,
representing the Pledged Shares and either accompanied by undated stock powers
executed in blank or registered in the name of the Bank or such nominee or
nominees as the Bank shall specify, or such other evidence that the Bank has a
valid and perfected first priority security interest in, and exclusive control
(as "control" is defined in Articles 8 and 9 of the Uniform Commercial Code in
effect in the State of New York) of, the Pledged Shares;
(h) Evidence that all other actions (including, but not
limited to, the giving of any and all notices) necessary or, in the opinion of
the Bank, desirable to perfect and protect the security interests created by the
Pledge Agreement;
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(i) Federal Reserve Form U-1 provided for in Regulation U
issued by the Board of Governors of the Federal Reserve System, duly executed by
the Borrower, the statements made in which shall be such, in the opinion of the
Bank, as to permit the transactions contemplated hereby in accordance with said
Regulation U;
(j) Certified copies of all documents evidencing necessary
governmental approvals, if any, with respect to each Loan Document;
(k) A favorable written opinion of the law firm of Heller,
Ehrman, White & ▇▇▇▇▇▇▇▇▇, counsel for the Borrower, as to such matters as the
Bank may reasonably request;
(l) A certificate, signed by the Borrower, that the
representations and warranties contained in Section 4.1 of this Agreement and
Section 4 of the Pledge Agreement are true and correct as of such date; and
(m) Such other approvals, opinions and documents as the Bank
may reasonably request.
SECTION 3.2 Conditions Precedent to All Advances. The obligation of the
Bank to make each Advance (including the initial Advance) shall be subject to
the further conditions precedent that on the date of such Advance:
(a) the following statements shall be true (and each of the
giving of the applicable notice requesting such Advance and the acceptance by
the Borrower of the proceeds of such Advance shall constitute a representation
and warranty by the Borrower that on the date of such Advance such statements
are true):
(i) The representations and warranties contained in
subsections (a), (b), (c), (d), (g), (h), (i), (j), (k) and (l) of
Section 4.1 of this Agreement and in subsections (d), (j) and (k) of
Section 4 of the Pledge Agreement are correct on and as of the date of
such Advance, before and after giving effect to such Advance and to the
application of the proceeds therefrom, as though made on and as of such
date;
(ii) The balance sheet of the Borrower then most
recently furnished to the Bank pursuant to Section 5.1(e) (i) fairly
presents the financial condition of the Borrower as at the date of such
balance sheet, and since the date of such balance sheet there has been
no material adverse change in such condition; and
(iii) No event has occurred and is continuing, or
would result from such Advance or from the application of the proceeds
therefrom, which constitutes an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both;
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(b) if shares of Microsoft Corporation are to be pledged
pursuant to the Pledge Agreement, the Bank shall have received the following,
each in form and substance satisfactory to the Bank:
(i) a revised Schedule I to the Pledge Agreement
identifying the shares to be pledged and providing additional
information regarding such shares;
(ii) a new Control Person Statement relating to the
shares to be pledged;
(iii) certificates, free of any restrictive legend,
representing the shares to be pledged and either accompanied by undated
stock powers executed in blank or registered in the name of the Bank or
such nominee or nominees as the Bank shall specify, or such other
evidence that the Bank has a valid and perfected first priority security
interest in, and exclusive control (as "control" is defined in Articles
8 and 9 of the Uniform Commercial Code in effect in the State of New
York) of, the shares to be pledged; and
(c) the Bank shall have received such other approvals,
opinions or documents as the Bank may reasonably request. the Bank shall have
received such other approvals, opinions or documents as the Bank may reasonably
request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) The Borrower has the legal capacity to execute, deliver
and perform this Agreement and the other Loan Documents to which the Borrower is
or will be a party.
(b) The execution, delivery and performance by the Borrower
of each Loan Document to which the Borrower is or will be a party do not and
will not (i) contravene any law or any contractual restriction binding on or
affecting the Borrower or (ii) result in a preferential transfer or fraudulent
transfer under federal bankruptcy or equivalent state insolvency or fraudulent
transfer laws, or result in or require the creation or imposition of any lien,
security interest or other charge or encumbrance (other than pursuant to the
Loan Documents or otherwise in favor of the Bank) upon or with respect to any of
the Borrower's properties.
(c) No consent, authorization, approval or other action by,
and no notice to or filing or registration with, any governmental authority or
regulatory body or any other Person is required for the due execution, delivery
and performance by the Borrower of any Loan Document to which the Borrower is or
will be a party.
(d) This Agreement is, and each other Loan Document to which
the Borrower will be a party when delivered hereunder will be, a legal, valid
and binding
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obligation of the Borrower, enforceable against the Borrower in accordance with
its terms.
(e) The balance sheet of the Borrower most recently
furnished to the Bank pursuant to Section 5.1(e) (i) of the Credit Agreement
fairly presents the financial condition of the Borrower as at the date of such
balance sheet, and since the date of such balance sheet there has been no
material adverse change in such condition.
(f) [Intentionally omitted]
(g) There is no pending or threatened action, suit or
proceeding affecting the Borrower before any court, any arbitrator or mediator
or any governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, which may materially adversely affect the
financial condition of the Borrower or which purports to affect the legality,
validity or enforceability of this Agreement or any other Loan Document to which
the Borrower is or will be a party.
(h) No proceeds of any Advance have been or will be used to
acquire any equity security of a class which is registered pursuant to Section
12 of the Securities Exchange Act of 1934, as amended.
(i) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulation G issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance have been or will be used to purchase or
carry any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(j) The Borrower is not a party to any indenture, loan or
credit agreement, lease or other instrument, contract or agreement which could
have a material adverse effect on the properties, assets or financial condition
of the Borrower or on the ability of the Borrower to perform the Borrower's
obligations under this Agreement or any other Loan Document.
(k) The Borrower has filed when due (or obtained extensions
to such filing date) all tax returns (federal, state and local) required to be
filed by the Borrower and has paid all taxes shown (or in the case of
extensions, estimated) on such tax returns to be due, including, but not limited
to, interest and penalties.
(l) The Borrower's principal residence and the Borrower's
chief executive office are in the State of Washington, the Borrower has no place
of business in the State of New York, and the address specified for the Borrower
in Section 8.2 is a mailing address of the Borrower.
(m) No event has occurred and is continuing which
constitutes an Event of Default or would constitute an Event of Default but for
the requirement that notice be given or time elapse or both.
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ARTICLE V
CERTAIN COVENANTS OF THE BORROWER
SECTION 5.1 Certain Affirmative Covenants. So long as the Note shall
remain unpaid in whole or in part or the Bank shall have any Commitment
hereunder, the Borrower shall, unless the Bank shall otherwise consent in
writing:
(a) Use of Advances. Use and apply the proceeds of the
Advances solely for funding Investments and for working capital and other
commercial, business and investment purposes of the Borrower.
(b) Compliance with Laws, Etc. Comply in all material
respects with all applicable laws, rules, regulations and orders.
(c) Payment of Taxes, Etc. Without limiting the generality
of Section 5.1(b), pay and discharge, before the same shall become delinquent,
(i) all taxes, assessments and governmental charges or levies imposed upon the
Borrower or upon any property of the Borrower, and (ii) all lawful claims which,
if unpaid, might by law become a lien upon any property of the Borrower;
provided that the Borrower shall not be required to pay or discharge any such
tax, assessment, charge or claim which is being contested in good faith and by
proper proceedings.
(d) Certain Financial Covenants. At all times:
(i) maintain a Net Worth of not less than [*];
(ii) maintain Unencumbered Liquid Assets of not less
than [*];
(iii) maintain a ratio of the aggregate Debt of
Borrower and Approved Holders to Liquid Assets of not more than [*]; and
(iv) maintain on deposit in a Collateral Account with
the Bank Cash and Cash Equivalents equal to the excess of Direct
Exposure over [*].
(e) Reporting Requirements. Furnish to the Bank:
(i) as soon as available, and in any event no later
than September 15 of each calendar year, a balance sheet of the Borrower
as of the preceding June 30, reviewed by KPMG Peat Marwick LLP in
accordance with the Statements on Standards for Accounting and Review
Services issued by the American Institute of Certified Public
Accountants, and accompanied by (A) a certificate of the Borrower
stating that no Event of Default or other event which, with the giving
of notice or the lapse of time or both, would constitute an Event of
Default has occurred and is continuing or, if an Event of Default or any
such other event has occurred and is continuing, a statement as to the
nature thereof and the action which the Borrower has taken and proposes
to take with respect thereto, and (B) a certificate of compliance of the
Borrower and accompanying schedule in form and detail satisfactory to
the Bank of the computations used by
[*] Confidential treatment requested.
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the Borrower in determining compliance with the covenant set forth in
Section 5.1(d);
(ii) as soon as available, and in any event no later
than April 30 of each calendar year, an unaudited, unreviewed balance
sheet of the Borrower as of December 31 of the previous year, internally
prepared, and accompanied by (A) a certificate of the Borrower stating
that no Event of Default or other event which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default has
occurred and is continuing or, if an Event of Default or any such other
event has occurred and is continuing, a statement as to the nature
thereof and the action which the Borrower has taken and proposes to take
with respect thereto, and (B) a certificate of compliance of the
Borrower and accompanying schedule in form and detail satisfactory to
the Bank of the computations used by the Borrower in determining
compliance with the covenant set forth in Section 5.1(d);
(iii) promptly and in any event within fifteen days
after the filing thereof with the Internal Revenue Service, (A) copies
of any and all requests for an extension of time for the filing of the
Borrower's income tax returns and (B) complete copies of the Borrower's
federal income tax returns with all supporting schedules;
(iv) as soon as possible and in any event within
fifteen days after the occurrence of each Event of Default and each
other event which, with the giving of notice or the lapse of time or
both, would constitute an Event of Default, continuing on the date of
such statement, a statement of the Borrower setting forth details of
such Event of Default or such other event and the action which the
Borrower has taken and proposes to take with respect thereto;
(v) promptly after the sending or filing thereof,
copies of all Forms 3 (Initial Statement of Beneficial Ownership of
Securities), Forms 4 (Statement of Changes of Beneficial Ownership of
Securities) and Forms 5 (Annual Statement of Beneficial Ownership of
Securities) which the Borrower files with the Securities and Exchange
Commission (or any governmental authority or regulatory body that may be
substituted therefor) by reason or in respect of any securities of, or
any relationship of the Borrower to, any issuer of any securities
constituting any of the Collateral;
(vi) promptly after the earlier of the commencement
thereof or receipt by the Borrower of notice or knowledge thereof,
notice of any pending or threatened action, suit, proceeding or
investigation affecting the Borrower by or before any court, any
arbitrator or mediator or any governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, or of any
claim for the payment of money asserted against the Borrower, which
seeks or involves an amount exceeding $10,000,000.00 or which may
materially adversely affect the properties, assets or financial
condition of the Borrower;
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(vii) prompt notice of any material adverse change in
the properties, assets or financial condition of the Borrower since the
date of the financial statements of the Borrower then most recently
furnished to the Bank pursuant to Section 5.1(e) (i);
(viii) in the event any securities of any class of any
issuer that are included in the Collateral at any time constitute five
percent or more of the issued and outstanding securities of such issuer
and such class, prompt notice of such event; and
(ix) such other information respecting the
properties, assets or financial condition of the Borrower or any
Subsidiary of the Borrower as the Bank may from time to time reasonably
request.
SECTION 5.2 Certain Negative Covenants. So long as the Note shall remain
unpaid in whole or in part or the Bank shall have any Commitment hereunder, the
Borrower will not, without the written consent of the Bank:
(a) Liens, Etc. Create or suffer to exist any lien, security
interest or other charge or encumbrance, or any other type of preferential
arrangement, upon or with respect to any of the Collateral, whether now owned or
hereafter acquired, other than the security interest created by the Pledge
Agreement and any other lien or security interest created in favor of the Bank
pursuant to Section 6.1 of this Agreement or Section 14 of the Pledge Agreement.
(b) Use of Proceeds. Use, or permit any other Person to use,
any proceeds of any Advance (i) to purchase or carry any margin stock (within
the meaning of Regulation U issued by the Board of Governors of the Federal
Reserve System), (ii) to extend credit to others for the purpose of purchasing
or carrying any margin stock or (iii) for personal, family or household
purposes.
ARTICLE VI
CERTAIN OTHER COVENANTS
SECTION 6.1 Collateral Coverage. So long as any of the Obligations shall
remain unpaid in whole or in part or the Bank shall have any Commitment under
this Agreement, the Borrower shall at all times maintain an Aggregate Loanable
Value greater than or equal to the Collateral Coverage Amount. If, at any time
prior to payment in full in cash of all of the Obligations (whether absolute or
contingent and whether for principal, interest, fees, expenses, indemnities,
other sums or amounts or otherwise), or at any other time when the Bank shall
have any Commitment under this Agreement, and in either case provided that the
Collateral does not consist solely of Hedged Shares, the Collateral Coverage
Ratio shall be greater than [*] percent ([*]%) but less than or equal to [*]
percent ([*]%), then, within five Business Days after notice (which may be given
orally via the telephone or in writing via any means specified in Section 8.2)
of such event shall have been given by the Bank to the Borrower, the Borrower
[*] Confidential treatment requested.
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(a) shall prepay the outstanding principal amounts of the
Advances, in whole or in part, plus accrued interest to the date of such
prepayment on the principal amount prepaid, and/or
(b) shall (i) pledge, assign and deliver to the Bank cash
for deposit in one or more of the Collateral Accounts and/or pledge and assign
to the Bank, and grant to the Bank security interests in, such additional shares
of stock of any issuer of any of the Pledged Shares, or any successor to any
such issuer, from time to time acquired by the Borrower as shall be acceptable
to the Bank in its sole discretion, all as security for the payment and
performance of all of the Obligations, (ii) duly execute and deliver to the Bank
such pledge and security agreements (including, but not limited to, amendments
to the Pledge Agreement), as specified by and in form and substance satisfactory
to the Bank, securing the payment and performance of all of the Obligations and
constituting pledges and assignments of and security interests in such cash as
shall be pledged and delivered by the Borrower to the Bank for deposit in one or
more of the Collateral Accounts and in such additional shares of stock of any
issuer of any of the Pledged Shares, or any successor to any such issuer, from
time to time acquired by the Borrower as shall be acceptable to the Bank in its
sole discretion, (iii) take whatever action (including, but not limited to, the
delivery to the Bank of original instruments, stock certificates and stock
powers, the filing of Uniform Commercial Code financing statements and
amendments to financing statements and the giving of notices and endorsements)
may be necessary or advisable in the opinion of the Bank to vest in the Bank
exclusive control (as "control" is defined in Articles 8 and 9 of the Uniform
Commercial Code in effect in the State of New York) of any investment property
(as that term is defined in the Uniform Commercial Code in effect in the State
of New York) purported to be subject to the pledge and security agreements
delivered pursuant to this Section 6.1(b) or Section 14 of the Pledge Agreement,
and otherwise to vest in the Bank (or in any representative or nominee of the
Bank designated by the Bank, including, but not limited to, any clearing
corporation or other securities intermediary (as those terms are defined in the
Uniform Commercial Code in effect in the State of New York)) valid, subsisting
and perfected liens on and security interests in the properties purported to be
subject to the pledge and security agreements delivered pursuant to this Section
6.1(b) or Section 14 of the Pledge Agreement, enforceable against all third
parties in accordance with their respective terms, (iv) deliver to the Bank a
signed favorable opinion, addressed to the Bank, of counsel for the Borrower
acceptable to the Bank as to the matters contained in Sections 6.1(b) (i),
6.1(b) (ii) and 6.1(b) (iii), as to such pledge and security agreements being
legal, valid and binding obligations of the Borrower, enforceable against the
Borrower in accordance with their respective terms and as to such other matters
as the Bank may reasonably request, (v) deliver to the Bank a signed favorable
opinion, addressed to the Bank, of counsel for any issuer of any of the Pledged
Shares, or any successor to such issuer, acceptable to the Bank as to such
matters as the Bank may reasonably request, and (vi) execute and deliver to the
Bank any and all further certificates, instruments and documents and take all
such other action as the Bank may deem desirable in obtaining the full benefits
of, or in preserving the security interests of, such pledge and security
agreements,
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so that, immediately after giving effect to such prepayment and/or such other
actions, the Collateral Coverage Ratio shall be not greater than [*] percent
([*]%) and thereafter, so long as any of the Obligations shall remain unpaid in
whole or in part or the Bank shall have any Commitment under this Agreement, the
Borrower shall at all times maintain an Aggregate Loanable Value greater than or
equal to the Collateral Coverage Amount.
SECTION 6.2 Partial Release of Collateral. So long as no Event of
Default shall have occurred and be continuing or would result from any release
of any portion of the Collateral pursuant to this Section 6.2 or Section 15 of
the Pledge Agreement, if at any time and from time to time after October 31,
1999, the Collateral Coverage Ratio shall be less than [*] percent ([*]%) for a
period of ninety consecutive days, then, upon request by the Borrower made
following each such period of ninety consecutive days, the Bank, at the
Borrower's expense, will release a portion of the Collateral (other than any
portion of the Collateral comprising any Hedged Shares or any other Pledged
Shares for which the Borrower and the Bank have then been provided protection
against a decrease in the market value of such Pledged Shares below a level or
price per share as specified in, and pursuant to, an Equity Hedge Agreement) so
that, immediately after giving effect to such release of such portion of the
Collateral, the Collateral Coverage Ratio shall be approximately (but not
greater than) [*] percent ([*]%). Upon any such partial release, the Bank, at
the Borrower's expense, will return to the Borrower the portion of the
Collateral so released and will execute and deliver to the Borrower such
documents as the Borrower shall reasonably request to evidence such partial
release.
SECTION 6.3 Equity Hedge Agreements. If at any time the Borrower enters
into an Equity Hedge Agreement which provides to the Borrower and the Bank, for
a period less than the then remaining term of the Note, protection against a
decrease in the market value of any portion of the Pledged Shares below a level
or price per share satisfactory to the Bank as specified in such Equity Hedge
Agreement, then the Borrower shall give to the Bank, within ten Business Days
prior to the expiration or termination of such period of protection, notice
stating whether the Borrower will provide for the uninterrupted continuation of
such protection to the Borrower and the Bank by renewing such Equity Hedge
Agreement or entering into one or more replacement Equity Hedge Agreements with
respect to such Pledged Shares. Each notice from the Borrower to the Bank
stating that the Borrower will provide for the uninterrupted continuation of the
protection provided to the Borrower and the Bank under any Equity Hedge
Agreement shall be irrevocable and binding on the Borrower and, upon giving such
notice to the Bank, the Borrower, not less than five Business Days prior to the
expiration or termination of the period of such protection under such Equity
Hedge Agreement, shall renew such Equity Hedge Agreement or replace such Equity
Hedge Agreement with one or more replacement Equity Hedge Agreements
satisfactory to the Bank.
[*] Confidential treatment requested.
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ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.1 Events of Default. If any of the following events
(individually, an "Event of Default" and collectively, "Events of Default")
shall occur and be continuing:
(a) Any principal of, or interest on, the Note shall not be
paid within three Business Days after the same becomes due and payable; or any
portion of the Credit Document Obligations or the Guaranty Obligations shall not
be paid when the same becomes due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise); or
(b) Any representation or warranty made by the Borrower
under or in connection with any Loan Document, any Guaranty or any Credit
Document, or any representation or warranty made in any Control Person
Statement, or any certification made by the Borrower in connection with any
financial statement furnished to the Bank under or in connection with any Loan
Document, any Guaranty or any Credit Document, shall prove to have been
incorrect in any material respect when made; or
(c) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.1(a), Section 5.1(e)(iv), Section
5.1(e)(v), Section 5.1(e)(vi), Section 5.1(e) (vii), Section 5.1(e) (viii),
Section 5.1(e) (ix), Section 5.2(a), Section 5.2(b), Section 6.1 or Section 6.3
of this Agreement, or the Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5, Section 6, Section 7, Section 8 or
Section 14 of the Pledge Agreement; or
(d) The Borrower shall fail to perform or observe any term,
covenant or agreement contained in Section 5.1(d) of this Agreement and such
failure shall remain unremedied for five Business Days after written notice of
such failure shall have been given to the Borrower by the Bank; or
(e) The Borrower shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on the Borrower's
part to be performed or observed if such failure shall remain unremedied for ten
days after written notice thereof shall have been given to the Borrower by the
Bank; or
(f) The Borrower shall fail to pay any principal of or
premium or interest on any Debt of the Borrower which is outstanding in a
principal amount of at least $10,000,000.00 in the aggregate (but excluding Debt
evidenced by or arising under the Note, any Guaranty, any Credit Document or the
Borrower Guaranties) when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and such
failure shall continue after the applicable grace period, if any, specified in
the agreement or instrument relating to such Debt; or any other event shall
occur or condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Debt; or
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any such Debt shall be declared to be due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment), redeemed, purchased
or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall
be required to be made, in each case prior to the stated maturity thereof; or
(g) The Borrower shall generally not pay his debts as such
debts become due, or shall admit in writing his inability to pay his debts
generally, or shall make a general assignment for the benefit of creditors; or
any proceeding shall be instituted by or against the Borrower seeking to
adjudicate him a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
him or his debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee, custodian or other similar official
for him or for any substantial part of his property and, in the case of any such
proceeding instituted against him (but not instituted by him), either such
proceeding shall remain undismissed or unstayed for a period of sixty days, or
any of the actions sought in such proceeding (including, but not limited to, the
entry of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, him or for any substantial part of his
property) shall occur; or the Borrower shall take any action to authorize any of
the actions set forth above in this Section 7.1(g); or
(h) Any judgment or order for the payment of money in excess
of $10,000,000.00 shall be rendered against the Borrower and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be any period of ten consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(i) Any lawful claims for the payment of money in an
aggregate amount exceeding $10,000,000.00 which, if unpaid, might by law become
liens upon any property of the Borrower shall be asserted against the Borrower
and shall not be contested by the Borrower in good faith and by proper
proceedings and as to which appropriate reserves are not being maintained in
accordance with generally accepted accounting principles consistently applied;
or
(j) Any material adverse change shall occur in the
properties, assets or financial condition of the Borrower; or
(k) Any provision of the Pledge Agreement or any other Loan
Document after delivery thereof pursuant to Section 3.1 or Section 6.1 of this
Agreement or Section 14 of the Pledge Agreement shall for any reason cease to be
valid and binding on the Borrower, or the Borrower shall so state in writing; or
any provision of any Guaranty or any Credit Document after delivery thereof
shall for any reason cease to be valid and binding on the Borrower, or the
Borrower shall so state in writing; or
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(l) The Pledge Agreement or any other Loan Document after
delivery thereof pursuant to Section 3.1 or Section 6.1 of this Agreement or
Section 14 of the Pledge Agreement shall for any reason (other than pursuant to
the terms thereof) cease to create a valid and perfected first priority security
interest in any of the Collateral purported to be covered thereby, or the Bank
shall cease to have exclusive control (as "control" is defined in Articles 8 and
9 of the Uniform Commercial Code in effect in the State of New York) of all of
the Collateral purported to be covered thereby; or any Guaranty or any Credit
Document after delivery thereof shall for any reason (other than pursuant to the
terms thereof) cease to create a valid, subsisting and perfected first priority
assignment of, lien on or security interest in, any of the collateral or other
security purported to be covered thereby; or
(m) In the event that any of the Collateral consists of
property other than Hedged Shares, the Collateral Coverage Ratio shall be
greater than [*] percent ([*]%); or
(n) Any of the Pledged Shares shall cease to be quoted on
the Nasdaq National Market or listed or admitted to trading on the New York
Stock Exchange or the American Stock Exchange; or
(o) Any other event shall occur or condition shall exist
under any Guaranty or any Credit Document and shall continue after the
applicable grace period, if any, specified in such Guaranty or such Credit
Document, if such occurrence or existence and any such continuance constitutes
an event of default or a default as defined or provided in such Guaranty or such
Credit Document, as the case may be; or
(p) Any event shall occur or condition shall exist under a
Borrower Guaranty and shall continue after the applicable grace period, if any,
specified in such Borrower Guaranty, if such occurrence or existence and any
such continuance constitutes an event of default or a default as defined or
provided in such Borrower Guaranty; or
(q) Any event shall occur or condition shall exist under the
1997 Loan Documents, or any subsequent loan documents entered into by and
between Borrower and the Bank or an affiliate of the Bank, and shall continue
after the applicable grace period, if any, specified in such loan document, if
such occurrence or existence and any such continuance constitutes an event of
default or a default as defined or provided in such loan document;
then, and in any such event, the Bank (A) may, by notice to the Borrower,
declare the Bank's obligation to make Advances to be terminated, whereupon the
same shall forthwith terminate, and (B) may, by notice to the Borrower, declare
the Note, all interest thereon and all other amounts payable under this
Agreement to be forthwith due and payable, whereupon the Note, all such interest
and all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest, or further notice of any kind, all of which are
hereby expressly waived by the Borrower; provided that in the event of an actual
or deemed entry of an order for relief with respect to the Borrower
[*] Confidential treatment requested.
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under the United States Bankruptcy Code, (1) the obligation of the Bank to make
Advances shall automatically be terminated and (2) the Advances, the Note, all
such interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind, all of
which are hereby expressly waived by the Borrower.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1 Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Note, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Bank, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
SECTION 8.2 Notices, Etc. Except as expressly provided in Section 6.1,
all notices and other communications provided for hereunder shall be in writing
(including, but not limited to, telephone facsimile communications) and sent via
certified or registered mail, return receipt requested, via telephone facsimile,
via personal delivery or via express courier or delivery service to the Borrower
or the Bank, as the case may be, at the respective addresses or telephone
facsimile numbers of the Borrower and the Bank specified below or, as to either
party, at such other address or telephone facsimile number as shall be
designated by such party in a written notice to the other party complying as to
delivery with the terms of this Section: if to the Borrower, at ▇▇▇ - ▇▇▇▇▇
▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telephone facsimile number
(▇▇▇)▇▇▇-▇▇▇▇; and if to the Bank, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention of [*], Vice President, Private Bank, telephone facsimile number (212)
[*], with copies to Citicorp North America, Inc., Two Union Square, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention of [*], Vice President,
telephone facsimile number [*], and to Citicorp North America, Inc., Citicorp
Center, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention of [*], Vice President Credit Product Management, telephone facsimile
number [*]. All such notices and other communications shall be deemed given (a)
when receipted for (or upon the date of attempted delivery when delivery is
refused) if sent via certified or registered mail, return receipt requested, via
personal delivery or via express courier or delivery service, and (b) when
received if sent via telephone facsimile (confirmation of such receipt via
telephone facsimile being deemed receipt). Notwithstanding the preceding
sentence, notices to the Bank pursuant to the provisions of Article II shall in
no event be effective until received by the Bank.
SECTION 8.3 No Waiver; Remedies. No failure on the part of the Bank to
exercise, and no delay in exercising, any right under any Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies provided in the Loan Documents are cumulative and not
exclusive of any remedies provided by law.
[*] Confidential treatment requested.
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SECTION 8.4 Costs, Expenses and Taxes.
(a) The Borrower agrees to pay on demand all reasonable
costs and expenses in connection with the preparation, execution, delivery,
administration, modification and amendment of the Loan Documents and the other
documents to be delivered under the Loan Documents, including, but not limited
to, the reasonable fees and out-of-pocket expenses of counsel for the Bank with
respect thereto and with respect to advising the Bank as to the Bank's rights
and responsibilities under the Loan Documents. The Borrower further agrees to
pay on demand all reasonable costs and expenses, if any (including, but not
limited to, reasonable counsel fees and expenses), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
the Loan Documents and the other documents to be delivered under the Loan
Documents, including, but not limited to, reasonable counsel fees and expenses
in connection with the enforcement of rights under this Section 8.4(a).
(b) If any payment of principal of any Eurodollar Rate
Advance or any Reference Rate Advance is made other than on the last day of the
Interest Period for such Advance, as a result of any payment pursuant to Section
2.8(b), Section 2.9, Section 2.15 or Section 6.1 or as a result of acceleration
of the maturity of the Advances and the Note pursuant to Section 7.1 or for any
other reason, the Borrower shall pay to the Bank, upon demand by the Bank, an
amount equal to the difference (if a positive number) obtained by subtracting
the amount of interest that would have accrued on the amount of principal so
paid at the Market Rate during the remaining term of the relevant Interest
Period from the amount of interest that would have accrued on such amount of
principal at the Eurodollar Rate ([*] percent ([*]%) per annum) or the Reference
Rate ([*] percent ([*]%) per annum), as the case may be, that would have been
applicable to such amount of principal during the remaining term of the relevant
Interest Period. The term "Market Rate" means, for any payment of principal of
any Eurodollar Rate Advance or any Reference Rate Advance that is made or is
deemed to have been made other than on the last day of the Interest Period for
such Advance, a rate of interest per annum equal to the rate of interest per
annum at which deposits in United States dollars are offered by the principal
office of the Bank in London, England, to prime banks in the London interbank
market at 11:00 a.m. (London time) two Business Days before the date of such
principal payment in an amount substantially equal to the amount of such
principal payment and for a period substantially equal to the remaining term of
such Interest Period.
SECTION 8.5 Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default the Bank is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by the Bank to
or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under any Loan Document,
whether or not the Bank shall have made any demand under such Loan Document and
although such obligations may be unmatured. The Bank agrees promptly to notify
the Borrower after any such set-off and application; provided that the failure
to give such notice shall not affect the validity of such set-off and
application.
[*] Confidential treatment requested.
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The rights of the Bank under this Section are in addition to other rights and
remedies (including, but not limited to, other rights of set-off) which the Bank
may have.
SECTION 8.6 Binding Effect.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Bank, the respective successors and assigns of the
Borrower and the Bank, and the heirs, executors, administrators and legal
representatives of the Borrower, except that the Borrower shall not have the
right to assign the Borrower's rights hereunder or any interest herein without
the prior written consent of the Bank, which consent may be withheld for no
reason or for any reason.
(b) The Bank, without any notice to or consent of the
Borrower, may merge or consolidate with another entity and may sell
participations to one or more Persons in or to all or any portion of the Bank's
rights and obligations under this Agreement, the Note and any other Loan
Document (including, but not limited to, all or any portion of the Commitment,
the Advances and the Note); provided that in the case of sale of participations
(i) the Bank's obligations under this Agreement (including, but not limited to,
the Commitment) shall remain unchanged, (ii) the Bank shall remain solely
responsible to the Borrower for the performance of such obligations, (iii) the
Bank shall remain the holder of the Note for all purposes of this Agreement and
(iv) the Borrower shall continue to deal solely and directly with the Bank in
connection with the Bank's rights and obligations under this Agreement.
(c) The Bank, with the prior written consent of the
Borrower, which consent shall not be unreasonably withheld, may assign,
syndicate or otherwise transfer all or any portion of the Bank's rights and
obligations under this Agreement, the Note and any other Loan Document
(including, but not limited to, all or any portion of the Commitment, the
Advances and the Note) to any other Person, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to the
Bank in this Agreement or otherwise.
(d) Any other provision of this Agreement to the contrary
notwithstanding, the Bank may at any time create a security interest in all or
any portion of the Bank's rights under this Agreement (including, but not
limited to, the Advances owing to the Bank and the Note held by the Bank) in
favor of any Federal Reserve Bank in accordance with Regulation A of the Board
of Governors of the Federal Reserve System.
(e) The Bank will use reasonable good faith efforts to hold
in confidence any Confidential Information, except to the extent that any such
Confidential Information can be shown to have been (i) previously known on a
nonconfidential basis by the Bank, (ii) in the public domain through no fault of
the Bank or (iii) later lawfully acquired by the Bank from sources other than
the Borrower; provided that the Bank may disclose Confidential Information (A)
to the Bank's directors, officers, employees, accountants, attorneys,
consultants, advisors, agents and other representatives who are or reasonably
are expected to be or become engaged in evaluating, approving,
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structuring, negotiating, documenting or administering the Loan Documents or the
transactions contemplated by the Loan Documents, (B) to the Bank's attorneys and
independent auditors, (C) to any actual or prospective participant, assignee or
transferee under Section 8.6(b), Section 8.6(c) or Section 8.6(d), so long as
such Persons are informed by the Bank of the confidential nature of such
Confidential Information and are directed by the Bank to treat such Confidential
Information confidentially, (D) to any other Person if such disclosure is
reasonably incidental to the administration of the Loan Documents or any of the
transactions contemplated by the Loan Documents, so long as such Persons are
informed by the Bank of the confidential nature of such Confidential Information
and are directed by the Bank to treat such Confidential Information
confidentially, (E) upon any order or directive of, or any request by, any
court, arbitrator, mediator or governmental department, commission, board,
bureau, agency or instrumentality, provided that the Bank provides the Borrower
prompt notice thereof to the extent such notice is permitted by law, (F) in
connection with any action, suit or proceeding to which the Bank or any
affiliate of the Bank is a party, provided that the Bank provides the Borrower
prompt notice thereof to the extent such notice is permitted by law, and (G) to
the extent reasonably required in connection with the exercise of any right or
remedy under this Agreement or any other Loan Document. Without limiting the
preceding sentence, the Bank may disclose to any actual or prospective
participant, assignee or transferee under Section 8.6(b), Section 8.6(c) or
Section 8.6(d) any financial statements, documents and other information that
the Bank now or in the future has relating to the Advances, the Loan Documents,
the Collateral, the Borrower, or the properties, assets or financial condition
of the Borrower, so long as such Persons are informed by the Bank of the
confidential nature of such Confidential Information and are directed by the
Bank to treat such Confidential Information confidentially.
SECTION 8.7 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective, as to such
jurisdiction, to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 8.8 Headings. The table of contents to this Agreement and the
headings of the Articles, Sections, subsections, paragraphs and other divisions
of this Agreement are included in this Agreement for convenience of reference
only and shall not constitute a part of this Agreement for any other purpose.
SECTION 8.9 Governing Law; Consent to Jurisdiction. This Agreement and
the Note shall be governed by, and construed in accordance with, the laws of the
State of New York. The Borrower hereby submits to the exclusive jurisdiction of
the United States District Court for the Southern District of New York and of
any court of the State of New York sitting in New York City for purposes of all
legal proceedings arising out of or relating to this Agreement, the Note, any
other Loan Document or any transactions contemplated hereby or thereby. The
Borrower irrevocably waives, to the fullest extent permitted by law, any
objection which the Borrower may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim that
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any such proceeding brought in such a court has been brought in an inconvenient
forum. Notwithstanding the preceding two sentences, the Bank retains the right
to bring any suit, action or proceeding seeking to enforce any provision of, or
based on any matter arising out of or in connection with, this Agreement, the
Note, any other Loan Document or any of the transactions contemplated hereby or
thereby in any court that has jurisdiction over the parties and subject matter.
SECTION 8.10 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK HEREBY
IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THIS AGREEMENT, THE NOTE, THE PLEDGE AGREEMENT, ANY OTHER
LOAN DOCUMENT, THE ADVANCES OR THE ACTIONS OF THE BANK IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
IN WITNESS WHEREOF, the Borrower and the Bank have executed this
Agreement as of the date first above written.
/s/
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
CITIBANK, N.A.
By /s/
-------------------------------------
Vice President
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