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Exhibit 10.36
FALCON CABLE COMMUNICATIONS, LLC
as Borrower
CREDIT AGREEMENT
Dated as of June 30, 1998,
as Amended and Restated as of ___________, 1999
BANKBOSTON, N.A.
as Documentation Agent
THE CHASE MANHATTAN BANK
as Co-Syndication Agent
BANK OF AMERICA, N.A.
as Syndication Agent
and
TORONTO DOMINION (TEXAS), INC.
as Administrative Agent
TD SECURITIES (USA) INC. and BANCBOSTON SECURITIES INC.
as Co-Lead Arrangers and Joint Book Managers
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This Agreement, dated as of June 30, 1998, as amended and
restated as of ______________, 1999, is among Falcon Cable Communications, LLC,
a Delaware limited liability company (the "Borrower"), the Guarantors (as
defined below) parties hereto, the Lenders (as defined below) parties hereto,
BankBoston, N.A., as Documentation Agent, Toronto Dominion (Texas), Inc., as
Administrative Agent, Bank of America, N.A. (formerly known as NationsBank,
N.A.), as Syndication Agent, and The Chase Manhattan Bank, as Co-Syndication
Agent.
Recitals: Under the Credit Agreement, dated as of July 30,
1998, as amended by Amendment No. 1 dated as of September 25, 1998 and Amendment
No. 2 dated as of January 22, 1999 (the "Existing Credit Agreement"), among the
parties identified in the preamble hereto, the Lenders provided a $650,000,000
reducing revolving credit facility maturing in December 2006, a $200,000,000
amortizing term loan maturing in June 2007 and a $300,000,000 amortizing term
loan maturing in December 2007 and may make available in their discretion as
requested by the Borrower up to $350,000,000 in additional revolving credit
and/or term loans pursuant to one or more supplemental credit facilities. The
parties hereto have agreed to amend and restate the Existing Credit Agreement as
provided in this Agreement, which Agreement shall become effective upon the
satisfaction of the conditions precedent set forth in Section 5.1 hereof. It is
the intent of the parties hereto that this Agreement not constitute a novation
of the obligations and liabilities existing under the Existing Credit Agreement
or evidence repayment of any of such obligations and liabilities and that this
Agreement amend and restate in its entirety the Existing Credit Agreement and
re-evidence the obligations of the Borrower outstanding thereunder;
The parties hereto hereby agree that on the Restatement
Effective Date (as defined below) the Existing Credit Agreement shall be amended
and restated in its entirety as follows:
1. Definitions; Certain Rules of Construction. Certain
capitalized terms are used in this Agreement and in the other Credit Documents
with the specific meanings defined below in this Section 1. Except as otherwise
explicitly specified to the contrary, (a) the capitalized term "Section" refers
to sections of this Agreement, (b) the capitalized term "Exhibit" refers to
exhibits to this Agreement, (c) references to a particular Section include all
subsections thereof, (d) the word "including" shall be construed as "including
without limitation", (e) accounting terms not otherwise defined herein shall
have the meaning provided under GAAP, (f) references to a particular statute or
regulation include all rules and regulations thereunder and any successor
statute, regulation or rules, in each case as from time to time in effect, (g)
references to a particular Person include such Person's successors and assigns
to the extent not prohibited by this Agreement and the other Credit Documents,
(h) references to "Dollars" or "$" mean United States Funds and (i) financial
calculations for any period straddling the Restatement Effective Date shall, in
the case of the portion of such period preceding such date, be made (to the
extent applicable) in the manner set forth in the Existing Credit Agreement.
References to the "date hereof" mean June 30, 1998. In the event that, during
the period between the Restatement Signing Date and the Restatement Effective
Date, any changes are made in the organizational structure of the Borrower and
its Affiliates that are otherwise permitted by this Agreement, appropriate
changes to the definitions and other provisions hereof and of the other Credit
Documents reflecting such changes may be made with the approval of the
Administrative Agent. In addition, the Administrative Agent is authorized to
insert in the definitive execution copy of this Agreement (i) the respective
dollar amounts of the scheduled reductions of the Maximum Amount of Supplemental
Restatement Revolving Credit pursuant to Section 2.4.5 based on the aggregate
initial amount thereof and the respective scheduled percentage reductions set
forth in said Section and (ii) the text of any amendment approved pursuant to
the Existing Credit Agreement after the Restatement Signing Date and prior to
the Restatement Effective Date.
"Accumulated Benefit Obligations" means the actuarial present
value of the accumulated benefit obligations under any Plan, calculated in a
manner consistent with Statement No. 87 of the
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Financial Accounting Standards Board.
"Administrative Agent" means Toronto Dominion in its capacity
as administrative agent for the Lenders hereunder, as well as its successors and
assigns in such capacity pursuant to Section 11.6.
"Affected Lender" is defined in Section 12.3.
"Affiliate" means, with respect to any Restricted Company (or
any other specified Person, including a Lender), any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such Restricted Company (or other specified Person) or, in the case of any
Lender which is an investment fund, the investment advisor thereof and any
investment fund having the same investment advisor, and shall include (a) any
officer (having a title of senior vice president or equal or greater seniority)
or director or general partner of such Restricted Company (or other specified
Person) and (b) any Person of which the Restricted Company (or other specified
Person) or any Affiliate (as defined in clause (a) above) of such Restricted
Company (or other specified Person) shall, directly or indirectly, beneficially
own either (i) at least 15% of the outstanding Equity Interests having the
general power to vote or (ii) at least 15% of all Equity Interests.
"Agent" means each of the Documentation Agent, the
Administrative Agent, the Syndication Agent and the Co-Syndication Agent.
"Aggregate Percentage Interests" means, at any date, the sum
of the dollar amounts represented by the Percentage Interests in each of the
Revolving Loan, Term Loan B, Term Loan C and the Supplemental Loan.
"Agreement" means this Agreement as from time to time in
effect.
"Annualized Asset Cash Flow Amount" means, with respect to any
disposition of assets, an amount equal to the portion of Consolidated Operating
Cash Flow for the most recent fiscal quarter as to which financial statements
have been delivered pursuant to Section 7.4.1 or 7.4.2 which was contributed by
such assets multiplied by four.
"Applicable Margin" means, on any date, the percentage in the
table below for the applicable portion of the Revolving Loan, Supplemental
Restatement Revolving Loan, Term Loan B or Term Loan C, as the case may be, set
opposite the applicable Reference Leverage Ratio.
Revolving Loan/Supplemental Restatement Revolving Loan
---------------------------------------- ------------------------------------- -------------------------------------
Eurodollar
Reference Leverage Ratio Base Rate Pricing Option
---------------------------------------- ------------------------------------- -------------------------------------
Greater than or equal to 5.50 1.000% 2.000%
Greater than or equal to 5.00 0.750% 1.750%
but less than 5.50
Greater than or equal to 4.50 0.500% 1.500%
but less than 5.00
Greater than or equal to 4.00 0.250% 1.250%
but less than 4.50
Less than 4.00 0.000% 1.000%
---------------------------------------- ------------------------------------- -------------------------------------
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Term Loan B 4
---------------------------------------- ------------------------------------- -------------------------------------
Eurodollar
Reference Leverage Ratio Base Rate Pricing Option
---------------------------------------- ------------------------------------- -------------------------------------
Greater than or equal to 5.50 1.250% 2.250%
Greater than or equal to 4.50 1.000% 2.000%
but less than 5.50
Less than 4.50 0.750% 1.750%
---------------------------------------- ------------------------------------- -------------------------------------
Term Loan C
---------------------------------------- ------------------------------------- -------------------------------------
Eurodollar
Reference Leverage Ratio Base Rate Pricing Option
---------------------------------------- ------------------------------------- -------------------------------------
Greater than or equal to 5.50 1.500% 2.500%
Greater than or equal to 4.50 1.250% 2.250%
but less than 5.50
Less than 4.50 1.000% 2.000%
---------------------------------------- ------------------------------------- -------------------------------------
Any adjustment in the Applicable Margin shall take effect on
the third Banking Day following the receipt by the Administrative Agent of the
financial statements required to be furnished by Section 7.4.1 or 7.4.2;
provided, however, that if for any reason the Restricted Companies shall not
have furnished the financial statements required by Section 7.4.1 or 7.4.2 for
any fiscal quarter by the time required by such Sections and the Administrative
Agent reasonably determines that the Applicable Margin indicated by the
Reference Leverage Ratio for such fiscal quarter would be increased from that
previously in effect, commencing on the date which is three Banking Days after
such financial statements were due until the third Banking Day following receipt
by the Administrative Agent of such financial statements, the Applicable Margin
shall be the Applicable Margin as so increased.
"Applicable Maturity Date" means (a) with respect to the
Revolving Loan, the Final Revolving Maturity Date, (b) with respect to Term Loan
B, the Final Term Loan B Maturity Date, (c) with respect to Term Loan C, the
Final Term Loan C Maturity Date, (d) with respect to the Supplemental
Restatement Revolving Loan, the Final Supplemental Restatement Revolving
Maturity Date and (e) with respect to any other Supplemental Loan, the final
maturity date of the applicable portion of such Supplemental Loan.
"Applicable Rate" means, at any date, the sum of:
(a) (i) with respect to each portion of the Loan (including
the Supplemental Restatement Revolving Loan) subject to a Eurodollar
Pricing Option, the sum of the Applicable Margin plus the Eurodollar
Rate with respect to such Eurodollar Pricing Option;
(ii) with respect to each other portion of the Loan (including
the Supplemental Restatement Revolving Loan), the sum of the Applicable
Margin plus the Base Rate; and
(iii) with respect to any Supplemental Facility (other than
the Supplemental Restatement Revolving Facility), the rate per annum
agreed in writing by the Borrower and the Lenders extending such
Supplemental Facility in accordance with Section 2.4;
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plus, (b) an additional 2% beginning on the occurrence of an
Event of Default and ending on the date such Event of Default is no
longer continuing.
"Asset Reinvestment Reserve Amount" is defined in Section
4.4.3.
"Assignee" is defined in Section 12.1.1.
"Assignment and Acceptance" is defined in Section 12.1.1.
"BankBoston" means BankBoston, N.A.
"Banking Day" means any day other than Saturday, Sunday or a
day on which banks in Houston, Texas or New York, New York are authorized or
required by law or other governmental action to close and, if such term is used
with reference to a Eurodollar Pricing Option, any day on which dealings are
effected in the Eurodollars in question by first-class banks in the inter-bank
Eurodollar markets in New York, New York and at the location of the applicable
Eurodollar Office.
"Bankruptcy Code" means Title 11 of the United States Code (or
any successor statute) and the rules and regulations thereunder, all as from
time to time in effect.
"Bankruptcy Default" means an Event of Default referred to in
Section 9.1.11.
"Base Rate" means, on any day, the greater of (a) the rate of
interest announced by the Administrative Agent at the Houston Office from time
to time as its corporate base rate (which may not be its lowest commercial
lending rate) or (b) the sum of 1/2% plus the Federal Funds Rate.
"Basic Eurodollar Rate" means, with respect to each day during
each Interest Period pertaining to a Loan subject to a Eurodollar Pricing
Option, the rate per annum determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Dow ▇▇▇▇▇ Markets screen
as of 11:00 A.M., London time, two Banking Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Page 3750 of the
Dow ▇▇▇▇▇ Markets screen (or otherwise on such screen), the "Basic Eurodollar
Rate" shall be determined by reference to such other comparable publicly
available service for displaying eurodollar rates as may be selected by the
Administrative Agent or, in the absence of such availability, by reference to
the rate at which the Administrative Agent is offered Dollar deposits at or
about 10:00 A.M., Houston time, two Banking Days prior to the beginning of such
Interest Period in the interbank eurodollar market where its eurodollar and
foreign currency and exchange operations are then being conducted for delivery
on the first day of such Interest Period for the number of days comprised
therein. Each determination by the Administrative Agent of any Basic Eurodollar
Rate pursuant to the foregoing sentence shall, in the absence of manifest error,
be conclusive.
"Borrower" is defined in the preamble hereto.
"By-laws" means all written by-laws, rules, regulations and
all other documents relating to the management, governance or internal
regulation of any Person other than an individual, or interpretive of the
Charter of such Person, all as from time to time in effect.
"Capital Expenditures" means, for any period, amounts added or
required to be added to
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the property, plant and equipment or other fixed assets account on the
Consolidated balance sheet of the Restricted Companies, prepared in accordance
with GAAP, in respect of (a) the acquisition, construction, improvement or
replacement of land, buildings, machinery, equipment, leaseholds and any other
real or personal property, (b) to the extent not included in clause (a) above,
materials, contract labor and direct labor relating thereto (excluding amounts
properly expensed as repairs and maintenance in accordance with GAAP) and (c)
software development costs to the extent not expensed in accordance with GAAP;
provided, however, that Capital Expenditures shall not include the purchase
price for the acquisition of another Person (or all or a portion of the assets
of another Person) as a going concern permitted by Section 7.9; and provided,
further, that Capital Expenditures shall not include amounts funded with
insurance proceeds received in respect of the loss of or damage to property,
plant, equipment or other fixed assets of the Restricted Companies.
"Capitalized Lease" means any lease which is required to be
capitalized on the balance sheet of the lessee in accordance with GAAP,
including Statement Nos. 13 and 98 of the Financial Accounting Standards Board.
"Capitalized Lease Obligations" means the amount of the
liability reflecting the aggregate discounted amount of future payments under
all Capitalized Leases calculated in accordance with GAAP, including Statement
Nos. 13 and 98 of the Financial Accounting Standards Board.
"Cash Equivalents" means:
(a) negotiable certificates of deposit, time deposits
(including sweep accounts), demand deposits and bankers' acceptances
issued by any Lender or any United States financial institution having
capital and surplus and undivided profits aggregating at least
$100,000,000 and rated at least Prime-2 by ▇▇▇▇▇'▇ Investors Service,
Inc. or A-2 by Standard & Poor's Ratings Services;
(b) short-term corporate obligations rated at least Prime-2 by
▇▇▇▇▇'▇ Investors Service, Inc. or A-2 by Standard & Poor's Ratings
Services, or issued by any Lender;
(c) any direct obligation of the United States of America or
any agency or instrumentality thereof, or of any state or municipality
thereof, (i) which has a remaining maturity at the time of purchase of
not more than one year or (ii) which is subject to a repurchase
agreement with any Lender (or any other financial institution referred
to in clause (a) above) exercisable within one year from the time of
purchase and (iii) which, in the case of obligations of any state or
municipality, is rated Aa2 or better by ▇▇▇▇▇'▇ Investors Service,
Inc.;
(d) any mutual fund or other pooled investment vehicle rated
Aa2 or better by ▇▇▇▇▇'▇ Investors Service, Inc. which invests
principally in obligations described above; and
(e) in an amount not to exceed $5,000,000, deposits in
overnight sweep accounts offered by a bank described in clause (a)
above.
"CERCLA" means the federal Comprehensive Environmental
Response, Compensation and Liability Act of 1980.
"CERCLIS" means the federal Comprehensive Environmental
Response Compensation Liability Information System List (or any successor
document) promulgated under CERCLA.
"Charter" means the articles of organization, certificate of
incorporation, statute,
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constitution, joint venture agreement, partnership agreement, limited liability
company operating agreement, trust indenture or other charter document of any
Person other than an individual, each as from time to time in effect.
"Charter Group" means the collective reference to New Falcon I
and the Restricted Companies, together with any member of the ▇▇▇▇ ▇▇▇▇▇ Group
or any Affiliate of any such member that, in each case, directly or indirectly
owns more than 50% of the Equity Interests (determined on the basis of economic
interests) in any Restricted Company. Notwithstanding the foregoing, no
individual and no entity organized for estate planning purposes shall be deemed
to be a member of the Charter Group.
"Closing Date" means the Initial Closing Date and each
subsequent date on which any extension of credit is made pursuant to Section 2.1
or 2.4.
"Code" means, collectively, the federal Internal Revenue Code
of 1986 (or any successor statute) and the rules and regulations thereunder.
"Commitment" means, with respect to any Lender, such Lender's
Percentage Interest in the obligations to extend the credits contemplated by the
Credit Documents.
"Commitment Notice" is defined in Section 2.4.1.
"Communications Act" means the federal Communications Act of
1934, the federal Cable Television Consumer Protection and Competition Act of
1992 and the federal Telecommunications Act of 1996.
"Computation Covenants" means Sections 7.5, 7.6.6, 7.6.7,
7.6.15, 7.6.16, 7.6.17, 7.7.3, 7.9.7, 7.9.8, 7.9.9, 7.9.11, 7.10.3, 7.10.7,
7.10.8, 7.11.3, 7.11.5, 7.11.7 and 7.17.
"Consolidated" and "Consolidating", when used with reference
to any term, mean that term as applied to the accounts of the Restricted
Companies (or other specified Person) and all of their respective Subsidiaries
(or other specified group of Persons), or such of their respective Subsidiaries
as may be specified, consolidated or combined or consolidating or combining, as
the case may be, in accordance with GAAP and with appropriate deductions for
minority interests in Subsidiaries, as required by GAAP; provided, however, that
in no event shall the Excluded Companies be included in the Consolidated
financial statements of the Restricted Companies for purposes of compliance with
Section 7 (other than Section 7.4) or for purposes of determining the Applicable
Margin and the related definitions.
"Consolidated Annualized Operating Cash Flow" means the
product of Consolidated Operating Cash Flow multiplied by four.
"Consolidated Cash Interest Expense" means, for any period,
the aggregate amount of interest, including payments in the nature of interest
under Capitalized Leases and net payments under Interest Rate Protection
Agreements, accrued by the Restricted Companies on Consolidated Total Debt and
Interest Rate Protection Agreements (whether such interest is reflected as an
item of expense or capitalized) in accordance with GAAP on a Consolidated basis;
provided, however, that Consolidated Cash Interest Expense shall include
commitment fees and other Lender fees included in interest expense in accordance
with GAAP and Distributions to New Falcon I described in Section 7.10.3 on
account of
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interest on Indebtedness incurred by New Falcon I, but shall not include PIK
Interest Payments.
"Consolidated Excess Cash Flow" means, for any period,
Consolidated Operating Cash Flow minus Consolidated Total Fixed Charges.
"Consolidated Interest Coverage Ratio" means, for any fiscal
quarter of the Restricted Companies, a ratio, expressed as a percentage, equal
to Consolidated Operating Cash Flow for the three-month period ending on the
last day of such fiscal quarter divided by Consolidated Cash Interest Expense
for such three-month period.
"Consolidated Net Income" means, for any period, the net
income (or loss) of the Restricted Companies determined in accordance with GAAP
on a Consolidated basis (giving pro forma effect to the results of operations
for such period of any Person or other business acquired through purchase or
exchange by the Restricted Companies in accordance with Section 7.9 during such
period, but not giving effect to the results of operations for such period
contributed by any System or other assets sold by the Restricted Companies
during such period); provided, however, that Consolidated Net Income shall not
include:
(a) the income (or loss) of any Person (other than a
Restricted Company or a Subsidiary of a Restricted Company) in which
any Restricted Company has an ownership interest; provided, however,
that Consolidated Net Income shall include amounts in respect of the
income of such Person when actually received in cash by the Restricted
Companies in the form of dividends or similar Distributions (except as
otherwise provided in Section 7.6.16);
(b) all amounts included in computing such net income (or
loss) in respect of the write-up of any asset or the retirement of any
Indebtedness at less than face value after December 31, 1997;
(c) the effect of extraordinary and nonrecurring items of
gain, income, loss or expense, including in any event the following
items: (i) litigation and tax judgments and settlements of up to an
aggregate of $2,500,000 (or such larger amount as may be approved by at
least two of the Specified Agents, whose approval shall not be
unreasonably withheld) during any fiscal year of the Restricted
Companies and (ii) payments of up to an aggregate of $5,000,000 (or
such larger amount as may be approved by at least two of the Specified
Agents) during any fiscal quarter of the Restricted Companies in
respect of: franchise taxes relating to prior periods; payments,
refunds or credits in respect of customer late fees relating to prior
periods; other similar items relating to prior periods; and acquisition
deposits that are forfeited during such period;
(d) the income of any Subsidiary (other than a Restricted
Company) to the extent the payment of such income in the form of a
Distribution or repayment of Indebtedness to any Restricted Company is
not permitted, whether on account of any Charter or By-law restriction,
any agreement, instrument, deed or lease or any law, statute, judgment,
decree or governmental order, rule or regulation applicable to such
Subsidiary or otherwise; and
(e) any after-tax gains or losses attributable to returned
surplus assets of any Plan.
For purposes of computing Consolidated Net Income for any
fiscal quarter, to the extent such items have not previously been accrued or
allocated to a prior period, (i) payments of insurance deductible amounts and
discretionary employee or management bonuses shall be allocated one fourth to
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the fiscal quarter in which payment is made and one fourth to each of the next
three fiscal quarters and (ii) Consolidated Net Income shall include 100% of the
income of each Restricted Company, notwithstanding that such Restricted Company
may not be a Wholly Owned Subsidiary of the Borrower and that, as a result
thereof, GAAP would otherwise require a portion of such Restricted Company's
income from Consolidated Net Income to be deducted on account of minority
interests in such Restricted Company.
"Consolidated Operating Cash Flow" means, for any three-month
period, the total of:
(a) Consolidated Net Income plus
(b) all amounts deducted in computing such Consolidated Net
Income in respect of:
(i) depreciation, amortization and other
charges that are not expected to be paid in cash;
(ii) interest on Financing Debt (including
payments in the nature of interest under Capitalized
Leases) and net payments in the nature of interest
under Interest Rate Protection Agreements;
(iii) federal, state and local taxes based
upon or measured by income;
(iv) other non-cash charges; and
(v) any reasonable costs incurred or
expensed in connection with an acquisition or
disposition permitted by Sections 7.9 or 7.11.
minus (c) to the extent Consolidated Net Income has
not already been reduced thereby, payments of a type described
in Section 7.17 (in respect of management fees and expenses),
whether or not permitted thereby.
"Consolidated Pro Forma Debt Service" means, for any period,
the sum of the following items, projected to be accrued by the Restricted
Companies:
(a) Consolidated Cash Interest Expense,
plus (b) the aggregate amount of all mandatory scheduled
payments (excluding the final scheduled principal payment on each Term
Loan) and mandatory prepayments of revolving loans as a result of
mandatory reductions in revolving credit availability, all with respect
to Financing Debt of the Restricted Companies in accordance with GAAP
on a Consolidated basis, including payments in the nature of principal
under Capitalized Leases, but in no event including contingent
prepayments required by Sections 4.3, 4.4 or 4.5 or voluntary payments
contemplated by Section 4.6.
For purposes of computing Consolidated Pro Forma Debt Service:
(i) the amount of Financing Debt outstanding on the first day
of such period shall be assumed to remain outstanding during the entire
period, except to the extent required to be reduced by mandatory
scheduled payments, mandatory payments on the Revolving Loan and
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other items described in paragraph (b) above; and
(ii) where interest varies with a floating rate, the rate in
effect on the first day of such period will be assumed to remain
constant during the entire period (giving effect to any applicable
Interest Rate Protection Agreements).
"Consolidated Revenues" means, for any period:
(a) the net operating revenues (after reductions for
discounts) of the Restricted Companies determined in accordance with
GAAP on a Consolidated basis;
minus (b) any proceeds included in such net operating revenues
from the sale, refinancing, condemnation or destruction of any Systems;
minus (c) actual bad debt expense to the extent not already
deducted in computing such net operating revenues.
"Consolidated Total Debt" means, at any date, the principal
amount of all Financing Debt of the Restricted Companies on a Consolidated basis
minus the lesser of (a) cash and Cash Equivalents of the Restricted Companies on
a Consolidated basis in accordance with GAAP or (b) $5,000,000.
"Consolidated Total Fixed Charges" means, for any period, the
sum of:
(a) Consolidated Cash Interest Expense,
plus, (b) the aggregate amount of all mandatory scheduled
payments and mandatory prepayments of revolving loans as a result of
mandatory reductions in revolving credit availability, all with respect
to Financing Debt of the Restricted Companies in accordance with GAAP
on a Consolidated basis, including payments in the nature of principal
under Capitalized Leases, but in no event including contingent
prepayments required by Sections 4.4 or 4.5 or voluntary prepayments
contemplated by Section 4.6.
plus, (c) Capital Expenditures,
plus, (d) federal, state and local taxes based upon or
measured by income actually paid by any Restricted Company, other than
taxes with respect to extraordinary and nonrecurring gains,
plus, (e) Distributions by the Restricted Companies to their
partners or members that are not Restricted Companies of a type
described in Section 7.10.5 (in respect of taxes), whether or not
permitted thereby,
plus, (f) to the extent not included in the foregoing clauses,
Distributions by the Restricted Companies to New Falcon I of a type
described in Section 7.10.3 (for debt service), whether or not
permitted thereby.
"Copyright Act" is defined in Section 8.5.2.
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"Credit Document" means:
(a) this Agreement, the Notes, the Pledge and Subordination
Agreement, any fee agreement with the Administrative Agent entered into
by the Borrower on or after the Restatement Effective Date, each
Interest Rate Protection Agreement provided by a Lender (or an
Affiliate of a Lender) to any Restricted Company and the documentation
governing any Lender Letter of Credit, each as from time to time in
effect; and
(b) any other present or future agreement or instrument from
time to time entered into among any Restricted Company or (so long as
any Restricted Company is also party thereto) any Affiliate of any of
them, on one hand, and either the Administrative Agent or all the
Lenders, on the other hand, relating to, amending or modifying this
Agreement or any other Credit Document referred to above or which is
stated to be a Credit Document, each as from time to time in effect.
"Credit Obligation" means all present and future liabilities,
obligations and Indebtedness of any Restricted Company or any of their
Affiliates party to a Credit Document owing to any Lender (or, in the case of
Interest Rate Protection Agreements or Lender Letters of Credit, any Affiliate
of a Lender) under or in connection with this Agreement, any other Credit
Document or any Lender Letter of Credit, including obligations in respect of
principal, interest, commitment fees, payment and reimbursement obligations
under Interest Rate Protection Agreements and Lender Letters of Credit, amounts
provided for in Sections 3.2.4, 3.4, 3.5, 3.6 and 10 and other fees, charges,
indemnities and expenses from time to time owing hereunder or under any other
Credit Document or any Lender Letter of Credit (all whether accruing before or
after a Bankruptcy Default and whether or not allowed in a bankruptcy
proceeding).
"Credit Participant" is defined in Section 12.2.
"Credit Security" means all assets from time to time hereafter
subjected to a security interest, mortgage or charge (or intended or required so
to be subjected pursuant to the Pledge and Subordination Agreement or any other
Credit Document) to secure the payment or performance of any of the Credit
Obligations.
"Default" means any Event of Default and any event or
condition which with the passage of time or giving of notice, or both, would
become an Event of Default.
"Delinquency Period" is defined in Section 11.4.3.
"Delinquent Lender" is defined in Section 11.4.3.
"Delinquent Payment" is defined in Section 11.4.3.
"Designated Financing Debt" means Financing Debt incurred by a
Restricted Company after the date hereof other than Financing Debt permitted by
Sections 7.6.1 (the Credit Obligations), 7.6.7 (purchase money Indebtedness and
Capitalized Leases), 7.6.9 (intercompany Indebtedness), 7.6.10 (existing
Indebtedness), 7.6.15 (Specified Long-Term Indebtedness), 7.6.16 (assumed
Indebtedness) and 7.6.17 (other Indebtedness).
"Distribution" means, with respect to any Restricted Company
(or other specified Person):
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(a) the binding declaration or payment of any dividend or
distribution, including dividends payable in Equity Interests of any
Restricted Company, on or in respect of any Equity Interests of any
Restricted Company;
(b) the purchase, redemption or other retirement by any
Restricted Company of any Equity Interests of any Holding Company (or
of options, warrants or other rights for the purchase of such Equity
Interests), directly, indirectly through a Subsidiary or otherwise;
(c) any other distribution on or in respect of any Equity
Interest in any Restricted Company;
(d) any payment by any Restricted Company of principal or
interest with respect to, or any purchase, redemption or defeasance by
any Restricted Company of, any Specified Long-Term Indebtedness (other
than (i) the payment of scheduled interest payments required to be made
in cash, (ii) the prepayment of any Specified Long-Term Indebtedness
with the proceeds of other Specified Long-Term Indebtedness, so long as
such new Indebtedness has terms no less favorable to the interests of
the Borrower and the Lenders than those applicable to the Indebtedness
being refinanced, and (iii) the prepayment of Specified Subordinated
Debt with the proceeds of other Specified Long-Term Indebtedness or of
the Loan); and
(e) any payment (including amounts accrued and payable for
management fees and reimbursement of expenses), loan or advance by any
Restricted Company to, or any other Investment by any Restricted
Company in, the holder of any Equity Interest in any Holding Company or
any Affiliate of such holder;
provided, however, that the term "Distribution" shall not include payments in
the ordinary course of business in respect of (i) reasonable compensation paid
to employees, officers and directors, (ii) advances to employees for travel
expenses, drawing accounts and similar expenditures, (iii) rent paid to or
accounts payable for services rendered or goods sold by non-Affiliates or (iv)
intercompany accounts payable and real property leases to non-Affiliates.
"Documentation Agent" means BankBoston in its capacity as
Documentation Agent for the Lenders hereunder, as well as its successors and
assigns in such capacity pursuant to Section 11.6.
"Enstar" means Enstar Communications Corporation, a Georgia
corporation owned by the Borrower.
"Environmental Laws" means all applicable federal, state or
local statutes, laws, ordinances, codes, rules, regulations and guidelines
having the force of law (including consent decrees and administrative orders)
relating to public health and safety and protection of the environment.
"Equity Interests" means any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all classes of membership interests in a limited liability
company, any and all classes of partnership interests in a partnership and any
and all other equivalent ownership interests in a Person, and any and all
warrants, rights or options to purchase any of the foregoing.
"ERISA" means the federal Employee Retirement Income Security
Act of 1974.
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"ERISA Group Person" means each Restricted Company, any
Subsidiary and any Person which is a member of the controlled group or under
common control with any Restricted Company within the meaning of section 414 of
the Code or section 4001(a)(14) of ERISA.
"Eurodollar Pricing Options" means the options granted
pursuant to Section 3.2.1 to have the interest on any portion of the Loan
computed on the basis of a Eurodollar Rate.
"Eurodollars" means, with respect to any Lender, deposits of
United States Funds in a non-United States office or an international banking
facility of such Lender.
"Eurodollar Office" means such non-United States office or
international banking facility of any Lender as the Lender may from time to time
select.
"Eurodollar Rate" for any Interest Period means the rate,
rounded to the nearest 1/100%, obtained by dividing (a) the Basic Eurodollar
Rate for such Eurodollar Interest Period by (b) an amount equal to 1 minus the
Eurodollar Reserve Rate; provided, however, that if at any time during such
Interest Period the Eurodollar Reserve Rate applicable to any outstanding
Eurodollar Pricing Option changes, the Eurodollar Rate for such Interest Period
shall automatically be adjusted to reflect such change, effective as of the date
of such change.
"Eurodollar Reserve Rate" means the stated maximum rate
(expressed as a decimal) of all reserves (including any basic, supplemental,
marginal or emergency reserve or any reserve asset), if any, as from time to
time in effect, required by any Legal Requirement to be maintained by any Lender
against (a) "Eurocurrency liabilities" as specified in Regulation D of the Board
of Governors of the Federal Reserve System (or any successor regulation), (b)
any other category of liabilities that includes Eurodollar deposits by reference
to which the interest rate on portions of the Loan covered by Eurodollar Pricing
Options is determined, (c) the principal amount of or interest on any portion of
the Loan covered by a Eurodollar Pricing Option or (d) any other category of
extensions of credit, or other assets, that includes loans covered by a
Eurodollar Pricing Option.
"Event of Default" is defined in Section 9.1.
"Exchange Act" means the federal Securities Exchange Act of
1934.
"Excluded Companies" means Enstar, Enstar's Subsidiaries,
Falcon Lake Las Vegas Cablevision, L.P., a Delaware limited partnership,
Falcon/Capital Cable, a Delaware general partnership, Falcon/Capital Cable
Partners, L.P., a Delaware limited partnership, Falcon Britannia, L.P., a
California limited partnership, Falcon Classic Cable Income Properties, L.P., a
California limited partnership, Duhamel Falcon Cable Mexico, L.L.C., a Delaware
limited liability company, Pacific Microwave Joint Venture, a California general
partnership, Wildcat Transmission Company, Inc., a Delaware corporation, Falcon
Pacific Microwave, Inc., a Delaware corporation, SFC Transmissions, a California
joint venture, and ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., a Missouri corporation, and any
other Subsidiary (including a Subsidiary that is a Permitted Joint Venture) of a
Restricted Company that at the time of determination shall be designated as an
Excluded Company by written notice of such Restricted Company to the
Administrative Agent. The Borrower may designate any Subsidiary of the
Restricted Companies (including any newly acquired or newly organized Subsidiary
of the Restricted Companies) to be an Excluded Company by written notice to the
Administrative Agent, provided the acquisition or organization of such
Subsidiary would be permitted under Section 7.9. The Borrower may designate any
Excluded Company to be a
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Restricted Company by written notice to the Administrative Agent, provided that
no Default shall occur and be continuing or shall result as a consequence
thereof.
"Excluded Swap Excess Amount" means any Swap Excess Amount
determined pursuant to one or more Permitted Asset Swaps consummated after the
Restatement Effective Date until the aggregate Swap Excess Percentages equal
15%. For the purposes of this definition, the "Swap Excess Percentage" with
respect to any Permitted Asset Swap that results in a Swap Excess Amount shall
equal the quotient (expressed as a percentage) of such Swap Excess Amount
divided by Consolidated Annualized Operating Cash Flow as shown in the most
recently submitted compliance computations pursuant to Section 7.4.2(b).
"FCC" means the Federal Communications Commission and any
successor governmental agency.
"FCC License" means any broadcasting, community antenna
television or relay systems, each station, business radio, microwave and other
license issued by the FCC under the Communications Act.
"Federal Funds Rate" means, for any day, (a) the rate equal to
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as such
weighted average is published for such day (or, if such day is not a Banking
Day, for the immediately preceding Banking Day) by the Federal Reserve Bank of
New York or (b) if such rate is not so published for such Banking Day, as
determined by the Administrative Agent using any reasonable means of
determination. Each determination by the Administrative Agent of the Federal
Funds Rate shall, in the absence of manifest error, be conclusive.
"Final Revolving Maturity Date" means December 29, 2006.
"Final Supplemental Restatement Revolving Maturity Date" means
December 31, 2007.
"Final Term Loan B Maturity Date" means June 29, 2007.
"Final Term Loan C Maturity Date" means December 31, 2007.
"Financial Officer" means in the case of any specified Person,
the chief financial officer, treasurer, corporate controller or vice president
whose primary responsibility is for the financial affairs of such Person, and
whose incumbency and signatures will have been certified to the Administrative
Agent by an appropriate attesting officer prior to or contemporaneously with the
delivery of any certificates delivered to the Administrative Agent hereunder.
"Financing Debt" means:
(a) Indebtedness in respect of borrowed money;
(b) Indebtedness evidenced by notes, debentures or similar
instruments;
(c) Indebtedness in respect of Capitalized Leases;
(d) Indebtedness in respect of the deferred purchase price of
assets (other than normal
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trade accounts payable that are not overdue beyond customary practice);
and
(e) Indebtedness in respect of mandatory redemption,
repurchase or dividend rights on Equity Interests.
"Franchise" means any franchise, permit, license or other
authorization granted by any governmental unit or authority that authorizes the
construction and operation of a System.
"GAAP" means generally accepted accounting principles, as
defined by the United States Financial Accounting Standards Board, as from time
to time in effect; provided, however, that (a) for purposes of compliance with
Section 7 (other than Section 7.4) and the related definitions, "GAAP" means
such principles as in effect on December 31, 1998 as applied by the Restricted
Companies in the preparation of the December 31, 1998 financial statements
referred to in Section 8.2.1, and consistently followed, without giving effect
to any subsequent changes thereto and (b) in the event of a change in generally
accepted accounting principles after such date, either the Borrower or the
Required Lenders may request a change in the definition of "GAAP", in which case
the parties hereto shall negotiate in good faith with respect to an amendment of
this Agreement implementing such change.
"Guarantee" means, with respect to any Restricted Company (or
other specified Person):
(a) any guarantee by the Restricted Company of the payment or
performance of, or any contingent obligation by the Restricted Company
in respect of, any Financing Debt of any other Person;
(b) any other arrangement whereby credit is extended to a
Person on the basis of any promise or undertaking of the Restricted
Company (including any "comfort letter" or "keep well agreement"
written by the Restricted Company to a creditor or prospective creditor
of such Person) to (i) pay the Financing Debt of such Person, (ii)
purchase an obligation owed by such Person, (iii) pay for the purchase
or lease of assets or services regardless of the actual delivery
thereof or (iv) maintain the capital, working capital, solvency or
general financial condition of such Person, in each case whether or not
such arrangement is disclosed in the balance sheet of the Restricted
Company or referred to in a footnote thereto;
(c) any liability of the Restricted Company as a general
partner of a partnership in respect of Financing Debt of such
partnership;
(d) any liability of the Restricted Company as a joint
venturer of a joint venture in respect of Financing Debt of such joint
venture; and
(e) reimbursement obligations with respect to letters of
credit, surety bonds and other financial guarantees;
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The amount of any
Guarantee and the amount of Indebtedness resulting from such Guarantee shall be
the amount which should be carried on the balance sheet of the obligor whose
obligations were guaranteed in respect of such obligations, determined in
accordance with GAAP.
"Guarantor" means each Restricted Company and each Subsidiary
of a Restricted Company that is party hereto and is not either the Borrower or
an Excluded Company. Exhibit 1-A lists
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the Guarantors as of the Restatement Effective Date.
"Hazardous Material" means, collectively, any pollutant, toxic
or hazardous material or waste, including any "hazardous substance" or
"pollutant" or "contaminant" as defined in section 101(14) of CERCLA or any
similar state or local statute or regulation or regulated as toxic or hazardous
under the Resource Conservation and Recovery Act or any similar state or local
statute or regulation, and the rules and regulations thereunder, as from time to
time in effect.
"Holding Companies" means Holding, L.P., Holding, Inc. and
their respective Subsidiaries, including New Falcon I and the Restricted
Companies.
"Holding, Inc." means Falcon Holding Group, Inc., a California
corporation that is the general partner of Holding, L.P., or any successor
corporation, partnership, limited liability company or other entity that would
not create an Event of Default immediately as a result of such succession and
that enters into assumption agreements with respect to the Pledge and
Subordination Agreement and the other Credit Documents to which either Holding,
Inc. or Holding, L.P. is a party reasonably satisfactory to such successor and
the Administrative Agent in all respects.
"Holding, L.P." means Falcon Holding Group, L.P., a Delaware
limited partnership, or any successor corporation, partnership, limited
liability company or other entity that would not create an Event of Default
immediately as a result of such succession and that enters into assumption
agreements with respect to the Pledge and Subordination Agreement and the other
Credit Documents to which either Holding, Inc. or Holding, L.P. is a party
reasonably satisfactory to such successor and the Administrative Agent in all
respects.
"Houston Office" means the principal banking office of the
Administrative Agent in Houston, Texas.
"Indebtedness" means all obligations, contingent or otherwise,
which in accordance with GAAP are required to be classified upon the balance
sheet of any Restricted Company (or other specified Person) as liabilities, but
in any event including:
(a) indebtedness in respect of borrowed money;
(b) indebtedness evidenced by notes, debentures or similar
instruments;
(c) Capitalized Lease Obligations;
(d) the deferred purchase price of assets (including trade
accounts payable);
(e) mandatory redemption, repurchase or dividend obligations
with respect to Equity Interests;
(f) unfunded pension fund obligations and liabilities;
(g) all Guarantees and endorsements in respect of Indebtedness
of others; and
(h) liabilities secured by any Lien existing on property owned
or acquired by any Restricted Company, whether or not the liability
secured thereby shall have been assumed; provided, however, that, to
the extent that a liability secured by a Lien on such property is
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otherwise nonrecourse to the Restricted Company, the amount of
Indebtedness in respect of such liability shall be the lesser of the
fair market value of such property or the amount of such liability.
"Indemnified Party" is defined in Section 10.2.
"Indenture Modifications" means any amendments, waivers,
consents or other modifications with respect to the New Falcon I Debentures and
the New Falcon I Debentures Indenture required in connection with the ▇▇▇▇ ▇▇▇▇▇
Acquisition.
"Initial Closing Date" means the first Closing Date hereunder,
which date was June 30, 1998.
"Initial Public Offering" means an underwritten public
offering of Equity Interests of any member of the Charter Group pursuant to a
registration statement filed with the Securities and Exchange Commission in
accordance with the Securities Act of 1933, as amended, that yields net cash
proceeds of at least $500,000,000.
"Interest Period" means any period, selected as provided in
Section 3.2.1, of one, two, three and six months (or any longer period to which
all the Lenders have given their consent to the Administrative Agent),
commencing on any Banking Day and ending on the corresponding date in the
subsequent calendar month so indicated (or, if such subsequent calendar month
has no corresponding date, on the last day of such subsequent calendar month);
provided, however, that subject to Section 3.2.3, if any Interest Period so
selected would otherwise begin or end on a date which is not a Banking Day, such
Interest Period shall instead begin or end, as the case may be, on the
immediately preceding or succeeding Banking Day as determined by the
Administrative Agent in accordance with the then current banking practice in the
inter-bank Eurodollar market with respect to Eurodollar deposits at the
applicable Eurodollar Office, which determination by the Administrative Agent
shall, in the absence of manifest error, be conclusive.
"Interest Rate Protection Agreement" means any interest rate
swap, interest rate cap, interest rate hedge or other contractual arrangement
protecting a Person against increases in variable interest rates or converting
fixed interest rates into variable interest rates on Financing Debt.
"Investment" means, with respect to any Restricted Company (or
other specified Person):
(a) any Equity Interest, evidence of Indebtedness or other
security issued by any other Person;
(b) any loan, advance or extension of credit to, or
contribution to the capital of, any other Person;
(c) any Guarantee of the Indebtedness of any other Person;
(d) any acquisition of all or any part of the business of any
other Person or the assets comprising such business or part thereof;
(e) any commitment or option to make any Investment if the
consideration for such
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commitment or option exceeds $1,000,000; and
(f) any other similar investment.
The investments described in the foregoing clauses (a) through
(f) shall constitute Investments whether they are made or acquired by purchase,
exchange, issuance of stock or other securities, merger, reorganization or any
other method, provided, however, that Investments shall not include (i) current
trade and customer accounts receivable for property leased, goods furnished or
services rendered in the ordinary course of business and payable in accordance
with customary trade terms, (ii) advances, payments and prepayments to suppliers
for property leased, goods furnished and services rendered in the ordinary
course of business, (iii) advances to employees for travel expenses, drawing
accounts and similar expenditures, (iv) stock or other securities acquired in
connection with the satisfaction or enforcement of Indebtedness or claims due to
any Restricted Company or as security for any such Indebtedness or claim or (v)
demand deposits in banks or trust companies.
In determining the amount of outstanding Investments for
purposes of Section 7.9, the amount of any Investment shall be the cost thereof
(including the amount of any Indebtedness assumed in any purchase or secured by
any asset acquired in such purchase (whether or not any Indebtedness is assumed)
or for which any Person that becomes a Subsidiary is liable on the date on which
the securities of such Person are acquired) minus any returns of capital on such
Investment actually received in cash (determined in accordance with GAAP without
regard to amounts realized as income on such Investment).
"Legal Requirement" means any requirement imposed upon any of
the Lenders by any law of the United States of America or any jurisdiction in
which any Eurodollar Office is located or by any regulation, order,
interpretation, ruling or official directive of the Board of Governors of the
Federal Reserve System or any other board or governmental or administrative
agency of the United States of America, of any jurisdiction in which any
Eurodollar Office is located, or of any political subdivision of any of the
foregoing. Any requirement imposed by any such regulation, order, ruling or
official directive not having the force of law shall be deemed to be a Legal
Requirement if any of the Lenders reasonably believes that compliance therewith
is in accordance with customary commercial practice.
"Lender" means the Persons owning a Percentage Interest in the
Credit Obligations under this Agreement or having a Commitment and their
respective Assignees permitted by Section 12.1.
"Lender Letters of Credit" means letters of credit issued by
any Lender (or any Affiliate thereof) for the account of the Borrower, so long
as the aggregate undrawn face amount thereof, together with any unreimbursed
reimbursement obligations in respect thereof, does not exceed $15,000,000 at any
one time.
"Lending Officer" shall mean such officers or employees of the
Administrative Agent as from time to time designated by it in writing to the
Borrower.
"Lien" means, with respect to any Restricted Company (or any
other specified Person):
(a) any encumbrance, mortgage, pledge, lien, charge or
security interest of any kind upon any property or assets of the
Restricted Company, whether now owned or hereafter acquired, or upon
the income or profits therefrom;
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(b) the acquisition of, or the agreement to acquire, any
property or asset upon conditional sale or subject to any other title
retention agreement, device or arrangement (including a Capitalized
Lease); and
(c) the sale, assignment, pledge or transfer for security of
any accounts, general intangibles or chattel paper of the Restricted
Company, with or without recourse.
"Loan" means, collectively, the Revolving Loan, the Term Loan
and the Supplemental Loan.
"Mandatory Assignment" is defined in Section 2.2.3.
"Margin Stock" means "margin stock" within the meaning of
Regulations T, U or X (or any successor provisions) of the Board of Governors of
the Federal Reserve System, or any regulations, interpretations or rulings
thereunder, all as from time to time in effect.
"Material Adverse Change" means a material adverse change
since December 31, 1998 in the business, assets, financial condition or income
of the Restricted Companies (on a Consolidated basis) (or any other specified
Persons) as a result of any event or development.
"Material Agreements" means (a) the documentation relating to
the MONY Subordinated Debt, (b) the partnership agreements or limited liability
company agreements for each Restricted Company (other than Falcon First, Inc.)
and (c) the New Falcon I Debentures and the New Falcon I Debentures Indenture,
in each case as amended, modified and supplemented in accordance with Section
7.2.3.
"Material Financing Debt" means any Financing Debt (other than
the Credit Obligations under this Agreement) outstanding in an aggregate amount
of principal (whether or not due) and accrued interest exceeding $10,000,000.
"Maximum Amount of Relevant Supplemental Revolving Credit" is
defined in Section 2.4.1.
"Maximum Amount of Revolving Credit" is defined in Section
2.1.1.
"Maximum Amount of Supplemental Credit" is defined in Section
2.4.1.
"Maximum Amount of Supplemental Restatement Revolving Credit"
is defined in Section 2.4.5.
"MONY Subordinated Debt" means the 11.56% Series B
Subordinated Notes due March 31, 2001, originally issued by Falcon Telecable, a
California Limited Partnership, pursuant to a Note Purchase Agreement dated as
of October 21, 1991, as in effect from time to time in accordance with Section
7.2.3, with Affiliates of the Mutual Life Insurance Company of New York,
including notes evidencing deferred fees due on account of risk-based capital
requirements issued by such Restricted Companies on the same terms as the other
MONY Subordinated Debt issued by Falcon Telecable, a California Limited
Partnership.
"Multiemployer Plan" means any Plan that is a "multiemployer
plan" as defined in
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section 4001(a)(3) of ERISA.
"Net Cash Proceeds" means the cash proceeds of an Operating
Asset Sale by any Restricted Company net of (a) any Indebtedness permitted by
Section 7.6.7 (Capitalized Leases and purchase money indebtedness) secured by
assets being sold in such transaction required to be paid from such proceeds,
(b) with respect to any such Restricted Company that is not a tax flow-through
entity, income taxes that will be required to be paid as a result of such asset
sale as estimated by such Restricted Company in good faith, and with respect to
any such Restricted Company that is a tax flow-through entity, distributions to
all the direct or indirect holders of the equity of such Restricted Company, in
proportion to their ownership interests, sufficient to permit each such direct
or indirect holder of the equity of such Restricted Company to pay income taxes
that may be required to be paid by it as a result of such asset sale as
estimated by such Restricted Company in good faith, (c) all reasonable expenses
of such Restricted Company incurred in connection with the transaction and (d)
amounts subject to a reserve or escrow to fund indemnification obligations
incurred in connection with such asset sale; provided, however, that the
principal (but not interest) component of amounts described in this clause (d)
will become Net Cash Proceeds upon release from such reserve or escrow.
"Net Debt Proceeds" means the cash proceeds of the incurrence
of Designated Financing Debt by any Restricted Company (net of reasonable
out-of-pocket transaction fees and expenses).
"New Falcon I" means Falcon Communications, L.P., a California
limited partnership, and any successor corporation, partnership, limited
liability company or other entity that would not create an Event of Default
immediately as a result of such succession and that enters into assumption
agreements with respect to the Pledge and Subordination Agreement and the other
Credit Documents to which New Falcon I is a party reasonably satisfactory to
such successor and the Administrative Agent in all respects.
"New Falcon I Debentures" means, collectively, the
$375,000,000 8.375% Senior Debentures due 2010 and the $435,250,000 9.285%
Senior Discount Debentures due 2010, each issued jointly and severally by New
Falcon I and its Wholly Owned Subsidiary, Falcon Funding Corporation, pursuant
to the New Falcon I Debentures Indenture.
"New Falcon I Debentures Indenture" means the Indenture dated
as of April 3, 1998, as in effect from time to time in accordance with Section
7.2.3, among New Falcon I, Falcon Funding Corporation and United States Trust
Company of New York, as trustee, with respect to the New Falcon I Debentures
(and any subsequent indentures on identical terms, except with respect to
transfer restrictions, entered into for a registered exchange offer of the New
Falcon I Debentures).
"Nonperforming Lender" is defined in Section 11.4.3.
"Notes" means each of the Revolving Notes, the Term B Notes,
the Term C Notes and the Supplemental Notes.
"Obligor" means the Borrower and each other Restricted Company
guaranteeing or granting collateral to secure any Credit Obligations.
"Operating Assets" means (a) a group of tangible and
intangible assets used by a Person to provide cable television services or to
conduct any related activities, or (b) all of the outstanding Equity Interests
in a Person engaged in the provision of cable television services or conducting
any
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related activities.
"Operating Asset Sale" is defined in Section 4.4.1.
"▇▇▇▇ ▇▇▇▇▇ Acquisition" is defined in Section 5.1.3.
"▇▇▇▇ ▇▇▇▇▇ Group" means the collective reference to (a) ▇▇▇▇
▇. ▇▇▇▇▇, (b) his estate, spouse, immediate family members and heirs and (c) any
trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners or other owners of which consist exclusively of ▇▇▇▇ ▇.
▇▇▇▇▇ or such other Persons referred to in clause (b) above or a combination
thereof.
"Payment Date" means the last Banking Day of each March, June,
September and December occurring after the Initial Closing Date.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor entity.
"Percentage Interest" is defined in Section 11.1.
"Performing Lender" is defined in Section 11.4.3.
"Permitted Asset Swap" means the exchange by any Restricted
Company of Operating Assets (including Systems) (a) for fair value in a single
transaction (or a substantially contemporaneous series of related transactions)
pursuant to which, within five Banking Days of the transfer of such Operating
Assets, the Restricted Companies receive Operating Assets related to businesses
permitted by Section 7.2.1 or (b) in a transaction which qualifies as a
like-kind exchange under section 1031 of the Code or any successor provision
(with any cash received by the Restricted Company in connection with such
exchange constituting Net Cash Proceeds therefrom and any cash paid by the
Restricted Company in connection with such exchange being subject to the
limitations of Section 7.9).
"Permitted Joint Venture" means a joint venture, limited
partnership, corporation, general partnership or limited liability company or
other entity between or involving a Restricted Company pursuant to which the new
entity would operate a business not prohibited by Section 7.2.1; provided,
however, that if the Permitted Joint Venture is not a Restricted Company, the
Restricted Companies shall in no event incur any Financing Debt, by way of
guarantee, general partner or joint venturer liability or otherwise, as a result
of the incurrence of Financing Debt by any such joint venture, limited
partnership, corporation, general partnership or limited liability company.
"Person" means any present or future natural person or any
corporation, association, partnership, joint venture, company, limited liability
company, business trust, trust, organization, business or government or any
governmental agency or political subdivision thereof.
"PIK Interest Payments" means any accrued interest payments on
Financing Debt that are postponed, evidenced by book-entry accrual or made
through the issuance of "payment-in-kind" notes or other securities, all in
accordance with the terms of such Financing Debt; provided, however, that in no
event shall PIK Interest Payments include payments made with cash or Cash
Equivalents.
"Plan" means, at any time, any pension benefit plan subject to
Title IV of ERISA maintained, or to which contributions have been made or are
required to be made, by any ERISA Group Person within six years prior to such
time.
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"Pledge and Subordination Agreement" means the Amended and
Restated Pledge and Subordination Agreement in substantially the form of Exhibit
18.7, as from time to time in effect, among Holding, L.P., Holding, Inc., the
Restricted Companies, the Administrative Agent and New Falcon I.
"Pro Rata Revolver Prepayment Portion" means, at any date,
with respect to specified Net Cash Proceeds from any Operating Asset Sale that
will be allocated to repay the Revolving Loan, the portion of such Net Cash
Proceeds calculated as follows:
(a) add all percentage reductions of the Revolving Loan
occurring on or after the date of such Operating Asset Sale through the
Final Revolving Maturity Date;
(b) divide the percentage reduction of each remaining Payment
Date by the sum in clause (a) above; and
(c) multiply the Net Cash Proceeds by the percentage
determined under clause (b) above for each such Payment Date.
An example of the computation of the Pro Rata Revolver Prepayment Portion is set
forth in Exhibit 1-B.
"Pro Rata Supplemental Restatement Revolver Prepayment
Portion" means, at any date, with respect to specified Net Cash Proceeds from
any Operating Asset Sale that will be allocated to repay the Supplemental
Restatement Revolving Loan, the portion of such Net Cash Proceeds calculated as
follows:
(a) add all percentage reductions of the Supplemental
Restatement Revolving Loan occurring on or after the date of such
Operating Asset Sale through the Final Supplemental Restatement
Revolving Maturity Date;
(b) divide the percentage reduction of each remaining Payment
Date by the sum in clause (a) above; and
(c) multiply the Net Cash Proceeds by the percentage
determined under clause (b) above for each such Payment Date.
"Pro Rata Term Loan B Prepayment Portion" means, at any date,
with respect to specified Net Cash Proceeds from any Operating Asset Sale that
will be allocated to repay Term Loan B, the portion of such Net Cash Proceeds
calculated as follows:
(a) add all percentage reductions of Term Loan B occurring on
or after the date of such Operating Asset Sale up to but excluding the
Final Term Loan B Maturity Date;
(b) divide the percentage reduction of each remaining Payment
Date by the sum in clause (a) above; and
(c) multiply the Net Cash Proceeds by the percentage
determined under clause (b) above for each such Payment Date.
"Pro Rata Term Loan C Prepayment Portion" means, at any date,
with respect to specified Net Cash Proceeds from any Operating Asset Sale that
will be allocated to repay Term Loan C,
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the portion of such Net Cash Proceeds calculated as follows:
(a) add all percentage reductions of Term Loan C occurring on
or after the date of such Operating Asset Sale up to but excluding the
Final Term Loan C Maturity Date;
(b) divide the percentage reduction of each remaining Payment
Date by the sum in clause (a) above; and
(c) multiply the Net Cash Proceeds by the percentage
determined under clause (b) above for each such Payment Date.
"Pro Rata Term Prepayment Portions" means, collectively, the
Pro Rata Term Loan B Prepayment Portion and the Pro Rata Term Loan C Prepayment
Portion.
"Qualified Institutional Buyer" means:
(a) a duly authorized domestic bank, savings and loan
association, insurance company, registered investment company,
registered investment adviser or registered dealer, acting for its own
account or the accounts of other Qualified Institutional Buyers, which
in the aggregate owns and invests on a discretionary basis at least
$100 million in securities and (if a bank or savings and loan
association) which has a net worth of at least $25 million; or
(b) a foreign bank or savings and loan association or
equivalent institution, acting for its own account or the account of
other Qualified Institutional Buyers, which in the aggregate owns and
invests on a discretionary basis at least $100 million in securities
and has a net worth of at least $25 million; or
(c) any other entity which also constitutes a "qualified
institutional buyer" as defined in Rule 144A under the Securities Act;
or
(d) any other entity acceptable to the Restricted Companies.
"Redeemable Capital Stock" means any class or series of Equity
Interests of any Person that, either by its terms, by the terms of any security
into which it is convertible or exchangeable or otherwise, is or upon the
happening of an event or passage of time would be, required to be redeemed (in
whole or in part) prior to the final maturity of any portion of the Loan or is
redeemable (in whole or in part) at the option of the holder thereof at any time
prior to the final maturity of any portion of the Loan.
"Reference Leverage Ratio" means, at any date, the ratio of
(a) Consolidated Total Debt as of the end of the most recent fiscal quarter for
which financial statements have been furnished to the Lenders in accordance with
Section 7.4.2 prior to such date to (b) Consolidated Annualized Operating Cash
Flow for such period.
"Register" is defined in Section 12.1.3.
"Related Fund" means, with respect to any Lender that is a
fund that invests in senior bank loans, any other fund or entity that invests in
bank loans and is advised or managed by the same investment advisor as such
Lender or by an Affiliate of such investment advisor.
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"Remaining Dollar-Years" of any Indebtedness means, at any
date, the sum of the products obtained by multiplying (a) the amount of each
remaining scheduled payment of principal (or in the case of a revolving credit
facility, each scheduled reduction in the revolving credit commitment) by (b)
the number of years (calculated to the nearest twelfth) which will elapse
between such date and the making of the payment (or in the case of a revolving
credit facility, such scheduled reduction in the revolving credit commitment).
"Replacement Lender" is defined in Section 12.3.
"Required Lenders" means, with respect to any consent or other
action to be taken by either the Lenders or any Agent under the Credit
Documents, such Lenders as own at least a majority of the Aggregate Percentage
Interests; provided, however, that with respect to the matters referred to in
the proviso to Section 17.1, Required Lenders means such Lenders as own at least
the respective portions of the Percentage Interests indicated therein.
"Resource Conservation and Recovery Act" means the federal
Resource Conservation and Recovery Act, 42 U.S.C. section 690, et seq.
"Restatement Effective Date" is defined in Section 5.1.
"Restatement Signing Date" means the date on which the
condition described in Section 5.1.1 shall have been satisfied.
"Restricted Company" means each of the Borrower, the
Guarantors and their respective Subsidiaries that are Guarantors and that are
not Excluded Companies. Exhibit 1-A lists the Restricted Companies as of the
Restatement Effective Date.
"Revolving Lender" means each Lender owning a Percentage
Interest in the Revolving Loan or having a Commitment to extend a portion of the
Revolving Loan and its Assignees permitted by Section 12.1.
"Revolving Loan" is defined in Section 2.1.1.
"Revolving Note" is defined in Section 2.1.3.
"Securities Act" means the federal Securities Act of 1933.
"Specified Agent" means, collectively, the Documentation
Agent, the Syndication Agent and the Administrative Agent.
"Specified Change of Control" means a "Change of Control" as
defined in the New Falcon I Debentures Indenture and any defined term having a
comparable purpose contained in the documentation governing any other
Indebtedness of Holding, Inc., Holding, L.P. or New Falcon I or any Specified
Long-Term Indebtedness.
"Specified Long-Term Indebtedness" means any Indebtedness
incurred pursuant to Section 7.6.15.
"Specified Subordinated Debt" means any Indebtedness of the
Borrower issued directly or indirectly to ▇▇▇▇ ▇. ▇▇▇▇▇ or any of his
Affiliates, so long as such Indebtedness (a) qualifies as
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Specified Long-Term Indebtedness and (b) has subordination terms substantially
identical to those set forth in Exhibit 1-C.
"Subscriber" means each home with one or more television sets
connected to a System and each subscriber equivalent represented by a bulk
account (determined by dividing the total monthly ▇▇▇▇ for the account by the
basic monthly charge for a single outlet in the area).
"Subsidiary" means any Person of which the Borrower (or other
specified Person) shall at the time, directly or indirectly through one or more
of its Subsidiaries, (a) own at least 50% of the outstanding Equity Interests
entitled to vote generally, (b) hold at least 50% of the partnership, joint
venture or similar interests or (c) be a general partner or joint venture.
"Supplemental Agent" is defined in Section 2.4.1.
"Supplemental Facility" is defined in Section 2.4.1.
"Supplemental Lenders" is defined in Section 2.4.1.
"Supplemental Loan" is defined in Section 2.4.4.
"Supplemental Note" is defined in Section 2.4.4.
"Supplemental Restatement Revolving Facility" is defined in
Section 2.4.5.
"Supplemental Restatement Revolving Lenders" is defined in
Section 2.4.5.
"Supplemental Restatement Revolving Loan" is defined in
Section 2.4.5.
"Swap Excess Amount" is defined in Section 7.11.5.
"Syndication Agent" means Bank of America, N.A., in its
capacity as syndication agent hereunder, as well as its successors and assigns
in such capacity pursuant to Section 11.6.
"System" means the assets constituting a cable television
system most of which is within a geographical area covered by one or more
Franchises held by any Restricted Company serving subscribers who are connected
by drop lines to trunk or distribution lines carrying signals from one or more
head-end facilities.
"Tax" means any tax, levy, duty, deduction, withholding or
other charges of whatever nature at any time required by any Legal Requirement
(a) to be paid by any Lender or (b) to be withheld or deducted from any payment
otherwise required hereby to be made to any Lender, in each case on or with
respect to (i) the principal amount of or interest on any portion of the Loan,
(ii) any fees, expenses, indemnities or other amounts payable to any Lender
under any Credit Document or (iii) funds transferred from a non-United States
office or an international banking facility of any Lender to a United States
office of such Lender in order to fund (or deemed by Section 3.2.6 to have
funded) a portion of the Loan subject to a Eurodollar Pricing Option; provided,
however, that the term "Tax" shall not include (A) taxes imposed upon or
measured by the net income of such Lender or (B) franchise or similar business
licensing taxes for qualification of offices of such Lender in any jurisdiction.
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"Term Lender" means each Lender owning a Percentage Interest
in the Term Loans and its Assignees permitted by Section 12.1.
"Term Loan" means Term Loan B and Term Loan C, collectively.
"Term Loan B" is defined in Section 2.2.1.
"Term Loan B Lender" means each Lender owning a Percentage
Interest in Term Loan B and its Assignees permitted by Section 12.1.
"Term Loan B Note" is defined in Section 2.2.2.
"Term Loan C" is defined in Section 2.3.1.
"Term Loan C Lender" means each Lender owning a Percentage
Interest in Term Loan C and its Assignees permitted by Section 12.1.
"Term Loan C Note" is defined in Section 2.3.2.
"Term Notes" means the Term Loan B Notes and the Term Loan C
Notes, collectively.
"Threshold Management Fee Date" means any date on which, both
before and after giving pro forma effect to the payment of any previously
deferred management fees pursuant to Section 7.17 (including any Indebtedness
incurred in connection therewith), the Consolidated Interest Coverage Ratio,
determined in respect of the most recent fiscal quarter for which the relevant
financial information is available, is greater than 225%.
"Threshold Transaction Date" means any date on which, both
before and after giving pro forma effect to a particular transaction (including
any Indebtedness incurred in connection therewith), the Consolidated Interest
Coverage Ratio, determined in respect of the most recent fiscal quarter for
which the relevant financial information is available, is greater than 175%.
"Toronto Dominion" means Toronto Dominion (Texas), Inc.
"Tranche" means each of the Revolving Loan, Term Loan B, Term
Loan C and the Supplemental Loan, each considered as a separate credit facility.
"United States Funds" means such coin or currency of the
United States of America as at the time shall be legal tender therein for the
payment of public and private debts.
"Weighted Average Life to Maturity" of any Indebtedness means,
at any date, the number of years obtained by dividing the Remaining Dollar-Years
of such Indebtedness by the outstanding principal amount of the Indebtedness
(or, in the case of a revolving credit facility, the maximum amount of revolving
credit commitment, regardless of the amount of revolving loans then
outstanding).
"Wholly Owned Guarantor" means any Guarantor that is a Wholly
Owned Subsidiary of the Borrower.
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"Wholly Owned Subsidiary" means any Subsidiary of which all of
the outstanding Equity Interests entitled to vote generally (other than
directors' qualifying shares) is owned by the Borrower (or other specified
Person) directly, or indirectly through one or more Wholly Owned Subsidiaries.
20 The Credits.
2.1. Revolving Credit.
2.1.1. Revolving Loan. Subject to all of the terms and
conditions of this Agreement and so long as no Default exists and is continuing,
each Revolving Lender severally agrees to make revolving loans to the Borrower
in an aggregate principal amount for all Revolving Lenders equal to the amount
requested in accordance with Section 2.1.2 from time to time prior to the Final
Revolving Maturity Date, but not to exceed at any time outstanding the Maximum
Amount of Revolving Credit. In no event will the principal amount of the loans
at any one time outstanding made by any Revolving Lender under this Section 2.1
exceed an amount equal to such Revolving Lender's Percentage Interest in the
Maximum Amount of Revolving Credit.
"Maximum Amount of Revolving Credit" means, on any date, the
amount set forth for such date in the table below, reduced as provided further
below:
Percentage
Date Stated Amount Reduction
---- ------------- ---------
Prior to September 30, 2001 $646,049,740 0.000%
September 30, 2001 through
December 30, 2001 $629,898,497 2.500%
December 31, 2001 through
March 30, 2002 $613,747,253 2.500%
March 31, 2002 through
June 29, 2002 $597,596,010 2.500%
June 30, 2002 through
September 29, 2002 $581,444,766 2.500%
September 30, 2002 through
December 30, 2002 $565,293,523 2.500%
December 31, 2002 through
March 30, 2003 $549,142,279 2.500%
March 31, 2003 through
June 29, 2003 $532,991,036 2.500%
June 30, 2003 through
September 29, 2003 $516,839,792 2.500%
September 30, 2003 through
December 30, 2003 $500,688,549 2.500%
December 31, 2003 through
March 30, 2004 $484,537,305 2.500%
March 31, 2004 through
June 29, 2004 $452,234,818 5.000%
June 30, 2004 through
September 29, 2004 $419,932,331 5.000%
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September 30, 2004 through
December 30, 2004 $387,629,844 5.000%
December 31, 2004 through
March 30, 2005 $355,327,357 5.000%
March 31, 2005 through
June 29, 2005 $314,949,248 6.250%
June 30, 2005 through
September 29, 2005 $274,571,140 6.250%
September 30, 2005 through
December 30, 2005 $234,193,031 6.250%
December 31, 2005 through
March 30, 2006 $193,814,922 6.250%
March 31, 2006 through
June 29, 2006 $145,361,192 7.500%
June 30, 2006 through
September 29, 2006 $96,907,461 7.500%
September 30, 2006 up to the Final
Revolving Maturity Date $48,453,731 7.500%
Final Revolving Maturity Date $0 7.500%
Each amount in the foregoing table shall be further
permanently reduced by the following amounts:
(a) The sum of the Pro Rata Revolver Prepayment Portions
applicable to the reduction date for such amount set forth in such
table of the respective amounts of Net Cash Proceeds from Operating
Asset Sales to the extent that such Net Cash Proceeds are not applied
to repay the Term Loans or the Supplemental Loan pursuant to Section
4.4 or allocated to an effective Asset Reinvestment Reserve Amount.
(b) The amount of Net Debt Proceeds to the extent that such
amount is allocated to the permanent reduction of the Maximum Amount of
Revolving Credit by Section 4.5.
(c) Such amount (in an integral multiple of $1,000,000 and in
a minimum amount of $1,000,000) specified by three Banking Days' notice
from the Borrower to the Administrative Agent.
The aggregate principal amount of the loans made pursuant to
this Section 2.1.1 at any time outstanding is referred to as the "Revolving
Loan".
2.1.2. Borrowing Requests. Revolving Loans will be made to the
Borrower by the Revolving Lenders under Section 2.1.1 on any Banking Day on or
after the Initial Closing Date and prior to the Final Revolving Maturity Date.
Not later than noon (New York time) on the first Banking Day (third Banking Day
if any portion of such loan will be subject to a Eurodollar Pricing Option on
the requested Closing Date) prior to the requested Closing Date for any such
loan, a Financial Officer for the Borrower will give the Administrative Agent
notice of its request (which may be given by a telephone call received by a
Lending Officer and promptly confirmed in writing), specifying (a) the amount of
the requested loan (not less than $1,000,000 and an integral multiple of
$100,000) (except to the extent a greater amount may be required in the case of
a Eurodollar Pricing Option) and (b) the requested Closing Date therefor. Upon
receipt of such notice by the Administrative Agent, the Administrative Agent
shall give prompt telephonic or written notice to each Lender. Each such loan
will be made at the Houston
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Office by wire deposit to the Administrative Agent as specified in writing from
time to time. In connection with each such loan, the Borrower shall furnish to
the Administrative Agent a certificate in substantially the form of Exhibit
5.2.1.
2.1.3. Revolving Notes. The Administrative Agent shall keep a
record of the Revolving Loan and the respective interests of the Lenders therein
as part of the Register, which shall evidence the Revolving Loan. The Revolving
Loan shall be deemed owed to each Lender having a Commitment therein severally
in accordance with such Lender's Percentage Interest therein, and all payments
thereon shall be for the account of each Lender in accordance with its
Percentage Interest therein. Upon written request of any Lender, the Borrower's
obligations to pay such Lender's Percentage Interest in the Revolving Loan shall
be evidenced by a separate note of the Borrower in substantially the form of
Exhibit 2.1.3 (the "Revolving Notes"), payable to such Lender in accordance with
such Lender's Percentage Interest in the Revolving Loan.
2.2. Term Loan B.
2.2.1. Term Loan B. On June 30, 1998, certain Lenders made
term loans to the Borrower in an aggregate amount equal to $125,794,117.75 and
on September 30, 1998 certain Lenders made term loans to the Borrower in an
aggregate amount equal to $74,205,882.25. The aggregate principal amount of the
loans made pursuant to this Section 2.2.1 at any one time outstanding is
collectively referred to as "Term Loan B".
2.2.2. Term Loan B Notes. Term Loan B is evidenced by term
notes of the Borrower (the "Term Loan B Notes") payable to the respective Term
Loan B Lenders. The Term Loan B Note issued to each Lender shall be in
substantially the form of Exhibit 2.2.2.
2.3. Term Loan C.
2.3.1. Term Loan C. On June 30, 1998, certain Lenders made
term loans to the Borrower in an aggregate amount equal to $300,000,000. The
aggregate principal amount of the loans made pursuant to this Section 2.3.1 at
any one time outstanding is collectively referred to as "Term Loan C".
2.3.2. Term Loan C Notes. Term Loan C is evidenced by term
notes of the Borrower (the "Term Loan C Notes") payable to the respective Term
Loan C Lenders. The Term Loan C Note issued to each Term Loan C Lender shall be
in substantially the form of Exhibit 2.3.2.
2.4. Supplemental Credit.
2.4.1. Request for Supplemental Facilities. Subject to all the
terms of this Agreement and so long as no Default exists and is continuing, from
time to time on and after the Initial Closing Date, the Borrower may request, by
written notice to the Administrative Agent, a revolving credit and/or term loan
facility (a "Supplemental Facility") in a specified aggregate amount (in the
case of a revolving credit facility requested under this Section 2.4.1, the
"Maximum Amount of Relevant Supplemental Revolving Credit") that, when added to
the sum of then effective Supplemental Facilities (including the Supplemental
Restatement Revolving Facility), does not exceed $700,000,000 (the "Maximum
Amount of Supplemental Credit"). The interest rate, commitment fee rate,
amortization schedule, maturity date and other terms and conditions for each
Supplemental Facility shall be proposed by the Borrower at the time the Borrower
requests such Supplemental Facility; provided, however, that (a) the maturity of
all or
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any portion of such Supplemental Facility shall in no event occur prior to the
Final Term Loan C Maturity Date, (b) the Weighted Average Life to Maturity of
such Supplemental Facility shall in no event be shorter than, if the
Supplemental Facility is a revolving credit loan, the Weighted Average Life to
Maturity of the Revolving Loan and, if the Supplemental Facility is a term loan,
the Weighted Average Life to Maturity of Term Loan C and (c) the terms and
conditions of such Supplemental Facility shall be materially no more restrictive
on the Restricted Companies than the provisions of this Agreement applicable to
the Loan.
Upon receipt of such request and proposed terms, the
Administrative Agent will promptly notify, and deliver a copy of such request
and related materials to, each other Lender (by telephone or otherwise). Within
10 Banking Days after receipt by the Lenders of such request, each Lender
interested in participating in the requested Supplemental Facility shall notify
the Administrative Agent and the Borrower of its desire to participate and the
maximum amount of its proposed Commitment with respect to such Supplemental
Facility (a "Commitment Notice"); provided, however, that each Lender may
participate in such Supplemental Facility in its sole discretion, and, except as
otherwise provided in Section 2.4.5, no Lender shall have any obligation to
participate in any Supplemental Facility unless and until it commits to do so as
provided in this Section 2.4.1. Following receipt of such Commitment Notices,
the Borrower (i) shall allocate the Commitments with respect to such
Supplemental Facility, which allocations may be made, at the Borrower's option,
in whole or in part to one or more of the Lenders or other lenders selected by
the Borrower (such Lenders or other lenders, the "Supplemental Lenders"), (ii)
shall select one or more financial institutions (which financial institutions
may, but need not, include one or more of the Agents or Lenders) to serve as the
agent or agents for the Supplemental Facility (such agent or agents, the
"Supplemental Agent") and (iii) shall advise each Lender of the amount of such
Lender's Commitment with respect to the Supplemental Facility; provided,
however, that the existing Lenders providing a Commitment Notice with respect to
such Supplemental Facility shall be entitled to participate in such Supplemental
Facility on terms and conditions generally applicable to all Supplemental
Lenders with respect to such Supplemental Facility, subject, however, to the
allocations made by the Borrower pursuant to clause (i) above. Supplemental
Lenders and Supplemental Agents not otherwise Lenders hereunder shall become
Lenders hereunder pursuant to a joinder agreement reasonably satisfactory to the
Specified Agents and the Borrower. The Specified Agents and the Borrower will
agree on amendments to this Agreement, if any, necessary to implement any
Supplemental Facility and a form of Supplemental Note to be issued by the
Borrower in connection with such Supplemental Facility.
2.4.2. Supplemental Facilities. Subject to all the terms and
conditions of this Agreement and so long as no Default exists and is continuing,
from time to time prior to the final maturity of the Supplemental Facility
determined in accordance with Section 2.4.1, the Supplemental Lenders will,
severally in accordance with their respective Commitments therein, make loans to
the Borrower with respect to such Supplemental Facility as may be requested by
the Borrower in accordance with Section 2.4.3. The aggregate principal amount of
outstanding revolving loans under any Supplemental Facility shall in no event
exceed the Maximum Amount of Relevant Supplemental Revolving Credit for such
Supplemental Facility. The sum of the aggregate principal amount of outstanding
loans under all Supplemental Facilities shall in no event exceed the Maximum
Amount of Supplemental Credit.
2.4.3. Borrowing Requests. After a Supplemental Facility has
been established as provided in this Section 2.4, the Borrower may from time to
time request a loan under this Section 2.4 by providing to the Supplemental
Agent and the Administrative Agent a written notice in accordance with Section
2.4.1. Such notice must be not later than noon (Houston time) on the first
Banking Day (third Banking Day if any portion of such loan will be subject to a
Eurodollar Pricing Option on the requested
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Closing Date) prior to the requested Closing Date for such loan. The notice must
specify (a) the amount of the requested loan (which shall be not less than
$500,000 and an integral multiple of $100,000) and (b) the requested Closing
Date therefor (which shall be a Banking Day). Upon receipt of such notice, the
Supplemental Agent will promptly inform each Supplemental Lender participating
in such Supplemental Facility (by telephone or otherwise). Each such loan will
be made at the office of the Supplemental Agent specified by such Supplemental
Agent by depositing the amount thereof to the general account of the Borrower
with the Supplemental Agent or by wire transfer as the Borrower may direct in
writing to the Supplemental Agent. In connection with each such loan, the
Borrower shall furnish to the Supplemental Agent and the Administrative Agent a
certificate in substantially the form of Exhibit 5.2.1 and any additional
information the Supplemental Agent, Administrative Agent or any Lender shall
reasonably request. For the purposes of this Section 2.4.3, the Supplemental
Agent in respect of the Supplemental Restatement Revolving Facility shall be the
Administrative Agent.
2.4.4. Supplemental Notes. The aggregate principal amount of
the loans outstanding from time to time under this Section 2.4 (including the
Supplemental Restatement Revolving Loan) is referred to as the "Supplemental
Loan". The Administrative Agent shall keep a record of the Supplemental Loan and
the interests of the respective Lenders therein as part of the Register, which
shall evidence the Supplemental Loan. The Supplemental Loan shall be deemed owed
to each Lender having a Commitment therein severally in accordance with such
Lender's Percentage Interest therein, and all payments thereon shall be for the
account of each Lender in accordance with its Percentage Interest therein. Upon
request of any Lender, the Borrower's obligations to pay such Lender's
Percentage Interest in the Supplemental Loan shall be evidenced by a separate
note of the Borrower (the "Supplemental Note"), payable to such Lender in
accordance with such Lender's Percentage Interest in the Supplemental Loan.
2.4.5. Supplemental Restatement Revolving Facility. Effective
on the Restatement Effective Date, certain Lenders (the "Supplemental
Restatement Revolving Lenders") that have agreed to do so in a separate written
agreement with the Borrower shall provide a Supplemental Facility (the
"Supplemental Restatement Revolving Facility") having the terms and conditions
set forth in this Agreement. Subject to all of the terms and conditions of this
Agreement and so long as no Default exists and is continuing, each Supplemental
Restatement Revolving Lender severally agrees to make revolving loans to the
Borrower in an aggregate principal amount for all Supplemental Restatement
Revolving Lenders equal to the amount requested in accordance with this Section
2.4.5 from time to time prior to the Final Supplemental Restatement Revolving
Maturity Date, but not to exceed at any time outstanding the Maximum Amount of
Supplemental Restatement Revolving Credit. In no event will the principal amount
of the loans at any one time outstanding made by any Supplemental Restatement
Revolving Lender under this Section 2.4.5 exceed an amount equal to such
Revolving Lender's Percentage Interest in the Maximum Amount of Supplemental
Restatement Revolving Credit.
"Maximum Amount of Supplemental Restatement Revolving Credit"
means, on any date, the amount set forth for such date in the table below,
reduced as provided further below:
Percentage
Date Stated Amount Reduction
Prior to March 31, 2003 $ 0.000%
March 31, 2003 through
June 29, 2003 $ 1.250%
June 30, 2003 through
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September 29, 2003 $ 1.250%
September 30, 2003 through
December 30, 2003 $ 1.250%
December 31, 2003 through
March 30, 2004 $ 1.250%
March 31, 2004 through
June 29, 2004 $ 1.875%
June 30, 2004 through
September 29, 2004 $ 1.875%
September 30, 2004 through
December 30, 2004 $ 1.875%
December 31, 2004 through
March 30, 2005 $ 1.875%
March 31, 2005 through
June 29, 2005 $ 2.500%
June 30, 2005 through
September 29, 2005 $ 2.500%
September 30, 2005 through
December 30, 2005 $ 2.500%
December 31, 2005 through
March 30, 2006 $ 2.500%
March 31, 2006 through
June 29, 2006 $ 5.000%
June 30, 2006 through
September 29, 2006 $ 5.000%
September 30, 2006 through
December 30, 2006 $ 5.000%
December 31, 2006 through
March 30, 2007 $ 5.000%
March 31, 2007 through
June 29, 2007 $ 14.375%
June 30, 2007 through
September 29, 2007 $ 14.375%
September 30, 2007 up to
the Final Supplemental Restatement
Revolving Maturity Date $ 14.375%
Final Supplemental Restatement
Revolving Maturity Date $0 14.375%
In addition, each amount in the foregoing table shall be
further permanently reduced by the following amounts:
(a) The sum of the Pro Rata Supplemental Restatement Revolver
Prepayment Portions applicable to the reduction date for such amount
set forth in such table of the respective amounts of Net Cash Proceeds
from Operating Asset Sales to the extent that such Net Cash Proceeds
are not applied to repay the Revolving Loan, the Term Loans or any
other Supplemental Loan pursuant to Section 4.4 or allocated to an
effective Asset Reinvestment Reserve Amount.
(b) The amount of Net Debt Proceeds to the extent that such
amount is allocated to the
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permanent reduction of the Maximum Amount of Supplemental Restatement
Revolving Credit by Section 4.5.
(c) Such amount (in an integral multiple of $1,000,000 and in
a minimum amount of $1,000,000) specified by three Banking Days' notice
from the Borrower to the Administrative Agent.
The aggregate principal amount of the loans made pursuant to
this Section 2.4.5 at any time outstanding is referred to as the "Supplemental
Restatement Revolving Loan".
2.5. Application of Proceeds.
2.5.1. Loan. Subject to Section 2.5.2, the Borrower will apply
the proceeds of the Loan (to the extent made on or after the Restatement
Effective Date) for general purposes, including to finance permitted
Investments.
2.5.2. Specifically Prohibited Applications. The Borrower will
not, directly or indirectly, apply any part of the proceeds of any extension of
credit made pursuant to the Credit Documents to purchase or to carry Margin
Stock or to any transaction prohibited by the Credit Documents or by Legal
Requirements applicable to the Lenders.
2.6. Nature of Obligations of Lenders to Extend Credit. The
Lenders' obligations under this Agreement to make the Loan are several and are
not joint or joint and several. If any Lender shall fail to perform its
obligations to extend any such credit, the amount of the commitment of the
Lender so failing to perform may be assumed by the other Lenders, in their sole
discretion, in such proportions as such Lenders may agree among themselves and
the Percentage Interests of each other Lender shall be appropriately adjusted,
but such assumption and adjustment shall not relieve the Lenders from any of
their obligations to make any such extension of credit or to repay any
Delinquent Payment required by Section 11.4.
30 Interest: Eurodollar Pricing Options: Fees.
3.1. Interest. The Loan shall accrue and bear interest at a
rate per annum which shall at all times equal the Applicable Rate. Prior to any
stated or accelerated maturity of the Revolving Loan, either Term Loan or the
Supplemental Loan, as the case may be, the Borrower will, on each Payment Date,
pay the accrued and unpaid interest on the portion of the Loan which was not
subject to a Eurodollar Pricing Option. On the last day of each Interest Period
or on any earlier termination of any Eurodollar Pricing Option, the Borrower
will pay the accrued and unpaid interest on the portion of the Loan which was
subject to the Eurodollar Pricing Option which expired or terminated on such
date; provided, however, that in the case of any Interest Period longer than
three months, the Borrower will also pay the accrued and unpaid interest on the
Loan subject to the Eurodollar Pricing Option having such Interest Period every
90 days, beginning on the 90th day after the commencement of such Interest
Period (or if any such day is not a Banking Day, the Banking Day immediately
preceding such 90th day). On any stated or accelerated maturity of the Revolving
Loan, either Term Loan or the Supplemental Loan, as the case may be, the
Borrower will pay all accrued and unpaid interest on the Revolving Loan, the
Term Loans or the Supplemental Loan, as the case may be, including any accrued
and unpaid interest on the portion of the Loan which is subject to a Eurodollar
Pricing Option. All payments of interest hereunder shall be made to the
Administrative Agent for the account of each Lender in accordance with the
Lenders' respective Percentage Interests.
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3.2. Eurodollar Pricing Options.
3.2.1. Election of Eurodollar Pricing Options. Subject to any
of the terms and conditions hereof and so long as no Default under Sections
9.1.1, 9.1.5 (except clause (b) thereof) or 9.1.11 exists and is continuing, the
Borrower may from time to time, by irrevocable notice from a Financial Officer
to the Administrative Agent received no later than noon (New York time) three
Banking Days prior to the commencement of the Interest Period selected in such
notice, elect to have such portion of the Loan as the Borrower may specify in
such notice accrue and bear daily interest during the Interest Period so
selected at the Applicable Rate computed on the basis of the Eurodollar Rate. In
the event the Borrower, at any time, fails to elect a Eurodollar Pricing Option
under this Section 3.2.1 for any portion of the Loan, then such portion of the
Loan will accrue and bear interest at the Applicable Rate based on the Base
Rate. Simultaneous elections by the Borrower for the same Interest Period of a
portion of the Revolving Loan, either Term Loan, the Supplemental Loan or all of
such Tranches on a combined basis shall be deemed to be the election of a single
Eurodollar Pricing Option.
No election under this Section 3.2.1 shall become effective
if, prior to the commencement of any such Interest Period, the Administrative
Agent determines, in the manner provided below, that (a) the electing or
granting of the Eurodollar Pricing Option in question would violate a Legal
Requirement or (b) Eurodollar deposits in an amount comparable to the principal
amount of the Loan as to which such Eurodollar Pricing Option has been elected
and which have a term corresponding to the proposed Interest Period are not
readily available in the inter-bank Eurodollar market for delivery at any
Eurodollar Office or, by reason of circumstances affecting such market, adequate
and reasonable methods do not exist for ascertaining the interest rate
applicable to such deposits for the proposed Interest Period.
For purposes of determining ready availability of Eurodollar
deposits with respect to a proposed Interest Period, such Eurodollar deposits
shall be deemed not readily available if the Required Lenders shall have advised
the Administrative Agent by telephone, confirmed in writing or by facsimile, at
or prior to noon (New York time) on the second Banking Day prior to the
commencement of such proposed Interest Period that, based upon the knowledge of
such Lenders of the Eurodollar market and after reasonable efforts to determine
the availability of such Eurodollar deposits, such Lenders reasonably determine
that Eurodollar deposits in an amount equal to the respective Percentage
Interest of such Lenders in the portion of the Loan as to which such Eurodollar
Pricing Option has been elected and which have a term corresponding to the
Interest Period in question will not be offered in the Eurodollar market to such
Lender at a rate of interest that does not exceed the Basic Eurodollar Rate, and
the Administrative Agent and the Borrower reasonably concurs in such
determination (unless the foregoing results from the creditworthiness of such
Lenders or a change in the availability of Eurodollar markets to such Lenders
resulting from the failure of such Lenders to comply with legal or regulatory
requirements).
3.2.2. Notice to Lenders and Borrower. The Administrative
Agent will promptly inform each Lender (by telephone or otherwise and promptly
confirmed in writing) of each notice received by it from the Borrower pursuant
to Section 3.2.1 and of the Interest Period specified in such notice. Upon
determination by the Administrative Agent of the Eurodollar Rate for such
Interest Period or in the event no such election shall become effective, the
Administrative Agent will promptly notify the Borrower and each Lender (by
telephone or otherwise and promptly confirmed in writing) of the Eurodollar Rate
so determined or why such election did not become effective.
3.2.3. Selection of Interest Periods. Interest Periods shall
be selected so that:
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(a the minimum portion of the Loan subject to any Eurodollar
Pricing Option shall be $5,000,000 and an integral multiple of
$1,000,000;
(b no more than 20 Eurodollar Pricing Options shall be
outstanding at any one time;
(c a portion of Term Loan B equal to the amount of the next
mandatory prepayment required by Section 4.2.1 shall not be subject to
a Eurodollar Pricing Option on the date such mandatory prepayment is
required to be made;
(d a portion of Term Loan C equal to the amount of the next
mandatory prepayment required by Section 4.2.2 shall not be subject to
a Eurodollar Pricing Option on the date such mandatory prepayment is
required to be made;
(e an aggregate principal amount of the Revolving Loan equal
to the amount of the next mandatory prepayment required by Section 4.3
shall not be subject to a Eurodollar Pricing Option on the date such
mandatory prepayment is required to be made;
(f an aggregate principal amount of the Supplemental
Restatement Revolving Loan equal to the amount of the next mandatory
prepayment required by Section 4.3 shall not be subject to a Eurodollar
Pricing Option on the date such mandatory prepayment is required to be
made; and
(g no Interest Period with respect to any part of the Loan
subject to a Eurodollar Pricing Option shall expire later than the
Applicable Maturity Date.
3.2.4. Additional Interest. If any portion of the Loan which
is subject to a Eurodollar Pricing Option is repaid, or any Eurodollar Pricing
Option is terminated for any reason (other than (a) a Legal Requirement not
having the force of law or (b) the payment in full of the Credit Obligations as
a result of the failure of any Lender to perform its obligations hereunder), on
a date which is prior to the last Banking Day of the Interest Period applicable
to such Eurodollar Pricing Option, the Borrower will pay to the Administrative
Agent for the account of each Lender in accordance with the Lenders' respective
Percentage Interests, in addition to any amounts of interest otherwise payable
hereunder, an amount equal to daily interest for the unexpired portion of such
Interest Period on the portion of the Loan so repaid, or as to which a
Eurodollar Pricing Option was so terminated, at a per annum rate equal to the
excess, if any, of (i) the Eurodollar Rate calculated on the basis of the rate
applicable to such Eurodollar Pricing Option minus (ii) the lowest rate of
interest obtainable by the Lenders with respect to Eurodollar deposits which
have a maturity date approximating the last Banking Day of such Interest Period.
For purposes of this Section 3.2.4, if any portion of the Loan which was to have
been subject to a Eurodollar Pricing Option is not outstanding on the first day
of the Interest Period applicable to such Eurodollar Pricing Option other than
for reasons described in Section 3.2,1, the Borrower shall be deemed to have
terminated such Eurodollar Pricing Option. A certificate of an officer of the
Administrative Agent setting forth in reasonable detail the basis of calculation
of such amount of interest shall, in the absence of manifest error, be
conclusive. Except to the extent set forth in Section 12.3, the assignment by
any Lender of all or a portion of such Lender's interests, rights and
obligations under this Agreement and the other Credit Documents shall not
constitute a termination of a Eurodollar Pricing Option.
3.2.5. Change in Applicable Laws, Regulations, etc. If any
Legal Requirement having the force of law shall prevent any Lender from funding
through the purchase of deposits, or maintaining, any portion of the Loan
subject to a Eurodollar Pricing Option or otherwise from giving effect to such
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Lender's obligations as contemplated hereby (unless the foregoing results from
the creditworthiness of such Lender or a change in the availability of
Eurodollar markets to such Lender resulting from the failure of such Lender to
comply with legal or regulatory requirements), (a) the Administrative Agent may
by notice to the Borrower terminate all of the affected Eurodollar Pricing
Options, (b) the portion of the Loan subject to such terminated Eurodollar
Pricing Options shall immediately bear interest thereafter at the Applicable
Rate computed on the basis of the Base Rate and (c) the Borrower shall make any
payment required by Section 3.2.4 to the extent the Applicable Rate based on the
Eurodollar Rates for the affected Eurodollar Pricing Options exceeds the
Applicable Rate based on the Base Rate. A certificate of an officer of the
Administrative Agent describing in reasonable detail such mandatory Legal
Requirement and setting forth in reasonable detail a calculation of the payment
required by Section 3.2.4 shall, in the absence of manifest error, be
conclusive.
3.2.6. Funding Procedure. The Lenders may fund any portion of
the Loan subject to a Eurodollar Pricing Option out of any funds available to
the Lenders. Regardless of the source of the funds actually used by any of the
Lenders to fund any portion of the Loan subject to a Eurodollar Pricing Option,
however, all amounts payable hereunder, including the interest rate applicable
to any such portion of the Loan and the amounts payable under Sections 3.2.4 and
3.4, shall be computed as if each Lender had actually funded such Lender's
Percentage Interest in such portion of the Loan through the purchase of deposits
in such amount with a maturity the same as the applicable Interest Period
relating thereto and through the transfer of such deposits from an office of the
Lender having the same location as the applicable Eurodollar Office to one of
such Lender's offices in the United States of America.
3.3. Commitment Fees. In consideration of the Revolving
Lenders' and the Supplemental Restatement Revolving Lenders' commitments to make
the extensions of credit provided for in Section 2.1 or 2.4.5, as the case may
be, while such commitments are outstanding, the Borrower will pay to the
Administrative Agent for the account of such Lenders, on each Payment Date and
on the Final Revolving Maturity Date or the Final Supplemental Restatement
Revolving Maturity Date, as the case may be, commitment fees in an amount equal
to the product of:
(a annual interest at a rate equal to the commitment
fee percentage in the table below set opposite the Reference
Leverage Ratio as of such date;
multiplied by (b) the amount by which (i) the average
daily Maximum Amount of Revolving Credit or Maximum Amount of
Supplemental Restatement Revolving Credit, as the case may be,
during the three-month period or portion thereof ending on
such date exceeded (ii) the average daily Revolving Loan or
Supplemental Restatement Revolving Loan, as the case may be,
during such period or portion thereof:
Commitment Fee
Reference Leverage Ratio Percentage
------------------------ ----------
Greater than or equal to 4.00 0.375%
Less than 4.00 0.250%
The commitment fee under this Section 3.3 shall begin to accrue in accordance
with the table set forth above on the Restatement Effective Date (and shall
accrue as set forth in the Existing Credit Agreement for previous periods). Any
adjustment in the commitment fee percentage shall take effect on the third
Banking Day following the receipt by the Administrative Agent of the financial
statements required to be
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furnished by Sections 7.4.1 or 7.4.2; provided, however, that if for any reason
the Restricted Companies shall not have furnished the financial statements
required by Sections 7.4.1 or 7.4.2 for any fiscal quarter by the time required
by such Sections, the commitment fee percentage during the period from the date
which is three Banking Days after such financial statements were due until the
third Banking Day following receipt by the Administrative Agent of such
financial statements shall be 0.375%.
3.4. Taxes. If (a) any Lender shall be subject to any Tax or
(b) the Borrower shall be required to withhold or deduct any Tax, the Borrower
will on demand by the Administrative Agent or such Lender, accompanied by the
certificate referred to below, pay to the Administrative Agent for such Lender's
account such additional amount as is necessary to enable such Lender to receive
net of any Tax the full amount of all payments of principal, interest, fees,
expenses, indemnities and other amounts payable by the Borrower to such Lender
under any Credit Document. Each Lender agrees that if, after the payment by the
Borrower of any such additional amount, any amount identifiable as a part of any
Tax related thereto is subsequently recovered or used as a credit by such
Lender, such Lender shall reimburse the Borrower to the extent of the amount so
recovered or used. A certificate of an officer of such Lender setting forth the
amount of such Tax or recovery or use and the basis therefor shall, in the
absence of manifest error, be conclusive. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
3.5. Capital Adequacy. Except as provided in Section 3.6, if
any Lender shall have determined that compliance by such Lender with any change
after the date hereof in any applicable law, governmental rule, regulation or
order regarding capital adequacy of banks or bank holding companies, or any
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by such Lender with any request or directive regarding
capital adequacy if such Lender reasonably believes that compliance therewith is
in accordance with customary commercial practice (whether or not having the
force of law and whether or not failure to comply therewith would be unlawful)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's capital as a consequence
of such Lender's obligations hereunder to a level below that which such Lender
could have achieved but for such compliance (taking into consideration such
Lender's policies with respect to capital adequacy immediately before such
compliance and assuming that such Lender's capital was fully utilized prior to
such compliance) by an amount deemed by such Lender to be material, then the
Borrower will on demand by the Administrative Agent, accompanied by the
certificate referred to below, pay to the Administrative Agent from time to time
as specified by such Lenders as are so affected such additional amounts as shall
be sufficient to compensate such Lenders for such reduced return, together with
interest on each such amount from 15 Banking Days after the date demanded until
payment in full thereof at the rate of interest on overdue installments of
principal provided in Section 3.1. A certificate of an officer of any such
Lender setting forth the amount to be paid to it and the basis for computation
thereof hereunder shall, in the absence of manifest error, be conclusive. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods.
3.6. Regulatory Changes. If any Lender shall have determined
that (a) any change in any Legal Requirement after the date hereof shall
directly or indirectly (i) reduce the amount of any sum received or receivable
by such Lender with respect to the Loan or the return to be earned by such
Lender on the Loan, (ii) impose a cost on such Lender or any Affiliate of such
Lender that is attributable to the making or maintaining of, or such Lender's
commitment to make, its portion of the Loans, (iii) require such Lender or any
Affiliate of such Lender to make any payment on or calculated by reference to
the gross amount of any amount received by such Lender under any Credit
Document, or (iv) reduce, or have the effect of reducing, the rate of return on
any capital of such Lender or any Affiliate of such Lender
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that such Lender or such Affiliate is required to maintain on account of the
Loan or such Lender's Commitment and (b) such reduction, increased cost or
payment shall not be fully compensated for by an adjustment in the Applicable
Rate, then the Borrower shall pay to such Lender (without duplication of
payments to other Lenders) such additional amounts as such Lender determines
will, together with any adjustment in the Applicable Rate, fully compensate for
such reduction, increased cost or payment, together with interest on each such
amount from 15 Banking Days after the date demanded until payment in full
thereof at the then highest Applicable Rate. A certificate of an officer of such
Lender setting forth in reasonable detail the amount to be paid to it and the
basis for computation thereof hereunder shall, in the absence of manifest error,
be conclusive. In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
3.7. Computations of Interest and Fees. For purposes of this
Agreement, interest and commitment fees (and any amount expressed as interest)
shall be computed on a daily basis and (a) with respect to any portion of the
Loan subject to a Eurodollar Pricing Option, on the basis of a 360-day year and
(b) with respect to commitment fees and any other portion of the Loan, on the
basis of a 365- or 366-day year, as the case may be.
3.8. Interest Limitation. Notwithstanding any other provision
of this Agreement or any other Credit Document, the maximum amount of interest
that may be charged to or collected from the Borrower by any Lender under this
Agreement or any other Credit Document shall in no event exceed the maximum
amount of interest that could lawfully be charged or collected under applicable
law. Any provision of this Agreement or any other Credit Document that could be
construed as providing for interest in excess of such lawful maximum shall be
expressly subject to this Section 3.8. Any part of the Credit Obligations
consisting of amounts to be paid to any Lender for the use, forbearance or
retention of the Credit Obligations shall, to the extent permitted by applicable
law, be allocated throughout the full term of the Credit Obligations until
payment in full of the Credit Obligations (including any renewal or extension
thereof) so that interest on account of the Credit Obligations shall not exceed
the maximum amount permitted by applicable law.
4. Payment.
4.1. Payment at Maturity. On the Applicable Maturity Date or
any accelerated maturity of any portion of the Loan, the Borrower will pay to
the Administrative Agent for the account of each Lender for credit to the
Revolving Loan, Term Loan B, Term Loan C or the Supplemental Loan, as the case
may be, an amount equal to the Revolving Loan, Term Loan B Term Loan C or the
Supplemental Loan, as the case may be, then due, together with all accrued and
unpaid interest and any fees thereon, and on the latest Applicable Maturity Date
or any earlier accelerated maturity of the Loan, all other Credit Obligations
then outstanding under the Credit Documents.
4.2. Fixed Required Prepayments.
4.2.1. Term Loan B. On the last Banking Day of March, June,
September and December, beginning March 31, 1999, the Borrower will pay to the
Administrative Agent, for the account of the Lenders as a prepayment of Term
Loan B the lesser of (a) $500,000, as adjusted after the date hereof in
accordance with this Section 4, or (b) the amount of Term Loan B then
outstanding, in each case, together with accrued interest on such amount
prepaid, and a final payment of the balance of Term Loan B on the Final Term
Loan B Maturity Date.
4.2.2. Term Loan C. On the last Banking Day of each March,
June, September and December, beginning March 31, 1999, the Borrower will pay to
the Administrative Agent, for the
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account of the Lenders as a prepayment of Term Loan C, the lesser of (a)
$750,000, as adjusted after the date hereof in accordance with this Section 4,
or (b) the amount of Term Loan C then outstanding, in each case together with
accrued interest on such prepaid amount, and a final payment of the balance of
Term Loan C on the Final Term Loan C Maturity Date.
4.2.3. Supplemental Loan. The schedule for prepayments of each
Supplemental Facility shall be determined in accordance with Section 2.4.
4.3. Maximum Amount of Revolving Credit, etc. If at any time
the Revolving Loan exceeds the Maximum Amount of Revolving Credit, the Borrower
will immediately pay the amount of such excess to the Administrative Agent for
the account of the Revolving Lenders as a mandatory prepayment of the Revolving
Loan. If at any time a revolving portion of the Supplemental Loan exceeds the
applicable Maximum Amount of Relevant Supplemental Revolving Credit, the
Borrower will immediately pay the amount of such excess to the Administrative
Agent for the account of the Lenders participating therein as a mandatory
prepayment of such Supplemental Loan.
4.4. Asset Sales.
4.4.1. Operating Asset Sale Notice. In the event that the
Restricted Companies sell, exchange or dispose of Operating Assets in a
transaction (excluding a transaction permitted by Section 7.11.1 or Section
7.11.2, but including a Permitted Asset Swap to the extent of the amount of cash
received by the Restricted Companies) (each, an "Operating Asset Sale"), the
Borrower shall, within five days after such Operating Asset Sale, provide
written notice to the Administrative Agent of (a) the closing date for such
Operating Asset Sale, (b) the amount of Net Cash Proceeds (if any, in the case
of an exchange) therefrom, (c) whether any portion of the Net Cash Proceeds will
be reserved as an Asset Reinvestment Reserve Amount in accordance with Section
4.4.3, (d) how much of the Revolving Loan, the Term Loan and the Supplemental
Loan will be prepaid with the Net Cash Proceeds in accordance with Section
4.4.2, (e) a revised schedule of reductions in the Maximum Amount of Revolving
Credit and any Maximum Amount of Relevant Supplemental Revolving Credit giving
effect to such prepayment, (f) a revised schedule of mandatory prepayments of
each of Term Loan B and Term Loan C giving effect to such prepayment and (g) a
revised schedule of mandatory prepayments of the Supplemental Loan giving effect
to such prepayment.
4.4.2. Prepayment on Sale. The Loan shall be repaid in
accordance with this Section 4.4 to the extent that (a) the Net Cash Proceeds of
the Operating Asset Sale described in such written notice exceeds 15% of
Consolidated Operating Cash Flow for the period of four fiscal quarters of the
Restricted Companies ending on the last day of the fiscal quarter ending
immediately prior to the date of the Operating Asset Sale and (b) such excess
Net Cash Proceeds are not subject to an effective Asset Reinvestment Reserve
Amount in accordance with Section 4.4.3.
4.4.3. Asset Reinvestment Reserve Amount. The Borrower may
elect to reserve Net Cash Proceeds described in Section 4.4.2(a) for
reinvestment (directly or by stock purchase, merger or otherwise, provided any
entity so acquired becomes a Restricted Company) in replacement Operating
Assets. The amount so reserved (the "Asset Reinvestment Reserve Amount") must be
so applied within 540 days after the Operating Asset Sale creating the Asset
Reinvestment Reserve Amount. In the event the Asset Reinvestment Reserve Amount
is not reinvested within such 540-day period (or if the Borrower abandons its
plans for the reinvestment of the Asset Reinvestment Reserve Amount), the
Borrower shall notify the Administrative Agent within three Banking Days and
specify (a) how much of the Revolving Loan, the Term Loan and the Supplemental
Loan will be prepaid with the ▇▇▇▇▇
▇▇
▇▇
Reinvestment Reserve Amount in accordance with Section 4.4.4, (b) a revised
schedule of reductions in the Maximum Amount of Revolving Credit and any Maximum
Amount of Relevant Supplemental Revolving Credit giving effect to such
prepayment, (c) a revised schedule of mandatory prepayments of each of Term Loan
B and Term Loan C giving effect to such prepayment and (d) a revised schedule of
mandatory prepayments of the Supplemental Loan giving effect to such prepayment.
4.4.4. Allocations of Prepayment. Prepayments of the Loan (and
reductions in the Maximum Amount of Revolving Credit and any Maximum Amount of
Relevant Supplemental Revolving Credit) made pursuant to this Section 4.4 will
be allocated to the Revolving Loan, Term Loan B, Term Loan C and the
Supplemental Loan, pro rata in proportion to the relative size of the Maximum
Amount of Revolving Credit, any Maximum Amount of Relevant Supplemental
Revolving Credit, Term Loan B, Term Loan C and the term portions of the
Supplemental Loan, and prepayments of Term Loan B, Term Loan C and the term
portions of the Supplemental Loan under this Section 4.4 shall be applied to the
prepayments required under Section 4.2 pro rata over the remaining payments in
accordance with the Pro Rata Term Prepayment Portions. All such prepayments (and
reductions in the Maximum Amount of Revolving Credit and any Maximum Amount of
Relevant Supplemental Revolving Credit) must be made within five Banking Days
after the Operating Asset Sale or the termination of effectiveness of an Asset
Reinvestment Reserve Amount, as the case may be.
4.5. Designated Financing Debt. Upon, or within five days
prior to, the incurrence by any of the Restricted Companies of Designated
Financing Debt, the Borrower shall provide written notice to the Lenders of the
closing date for such incurrence and the amount of Net Debt Proceeds. Such Net
Debt Proceeds shall be applied to the prepayment of the Revolving Loan, Term
Loan B, Term Loan C and the Supplemental Loan, pro rata in proportion to the
relative size of the Maximum Amount of Revolving Credit, any Maximum Amount of
Relevant Supplemental Revolving Credit, Term Loan B, Term Loan C and the term
portions of the Supplemental Loan, and prepayments of Term Loan B, Term Loan C
and term portions of the Supplemental Loan under this Section 4.5 shall be
applied to the prepayments required under Section 4.2 pro rata over the
remaining payments in accordance with the Pro Rata Term Prepayment Portions. All
such payments (and reductions in the Maximum Amount of Revolving Credit and any
Maximum Amount of Relevant Supplemental Revolving Credit) must be made within
five Banking Days after the incurrence of the Designated Financing Debt.
4.6. Voluntary Prepayments. In addition to the prepayments
required by Sections 4.2, 4.3, 4.4 and 4.5, the Borrower may from time to time
prepay all or any portion of the Loan (in a minimum amount of $1,000,000 and an
integral multiple of $100,000), without premium (except as provided in Section
3.2.4 with respect to early termination of Eurodollar Pricing Options). The
Borrower shall give the Administrative Agent at least one Banking Day prior
notice in the case of a Revolving Loan or revolving portion of the Supplemental
Loan prepayment (three Banking Days' prior notice if any portion of the
Revolving Loan or revolving portion of the Supplemental Loan to be repaid is
subject to a Eurodollar Pricing Option) and at least five Banking Days' prior
notice in the case of a Term Loan or term portion of the Supplemental Loan
prepayment, specifying the date of payment, the total principal amount of the
Revolving Loan, Term Loan or Supplemental Loan to be paid on such date and the
amount of interest to be paid with such prepayment (and any amounts due with
respect to early termination of Eurodollar Pricing Options under Section 3.2.4).
Any prepayment of the Revolving Loan or revolving portion of the Supplemental
Loan made pursuant to this Section 4.6 may, at the Borrower's option as
indicated in the notice delivered pursuant to the preceding sentence,
permanently reduce the Maximum Amount of Revolving Credit or Maximum Amount of
Relevant Supplemental Revolving Credit, as the case may be. The effectiveness of
such notice may, at the Borrower's option, be conditioned on the
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closing of a credit facility the proceeds of which will be used to prepay the
Loan, or the effectiveness of Investments or acquisitions permitted by Section
7.9 or mergers, consolidations or dispositions of assets permitted by Section
7.11, in which case such notice may be revoked by the Borrower (by notice
delivered in accordance with this Section 4.6) if such condition is not
satisfied without any liability to the Lenders. If such condition is satisfied,
such notice shall be deemed to have been effective as of the date of the giving
of such notice. All prepayments of Term Loan B, Term Loan C or the term portions
of the Supplemental Loan under this Section 4.6 shall be applied to the
prepayments required under Section 4.2 pro rata over the remaining payments.
With respect to the amount of such prepayment allocated to the Term Loan in
accordance with the previous sentence, the Borrower may allocate the first
$80,000,000 of such prepayment either pro rata in proportion to the relative
size of Term Loan B and Term Loan C or disproportionately to Term Loan C, as the
Borrower may elect. To the extent of aggregate prepayments over $80,000,000,
such excess amounts shall be allocated pro rata in proportion to the relative
size of Term Loan B and Term Loan C.
4.7. Application of Payments. Any prepayment of the Revolving
Loan, Term Loan or the Supplemental Loan, as the case may be, shall be applied
first to the portion of the Revolving Loan, Term Loan or the Supplemental Loan,
as the case may be, not then subject to Eurodollar Pricing Options, then the
balance of any such prepayment shall be applied to the portion of the Revolving
Loan, Term Loan or Supplemental Loan, as the case may be, then subject to
Eurodollar Pricing Options, in the chronological order of the respective
maturities thereof (or as the Restricted Companies may otherwise specify),
together with any payments required by Section 3.2.4 with respect to early
termination of Eurodollar Pricing Options. All payments of principal hereunder
shall be made to the Administrative Agent for the account of each Lender in
accordance with the Lenders' respective Percentage Interests. The amounts of the
Term Loan or term portion of the Supplemental Loan prepaid pursuant to Sections
4.2, 4.4, 4.5 or 4.6 may not be reborrowed.
5. Conditions to Extending Credit.
5.1. Conditions to Effectiveness of Amendment and Restatement.
The amendment and restatement of the Existing Credit Agreement pursuant to this
Agreement shall become effective on the date (the "Restatement Effective Date")
on which the following conditions shall have been satisfied:
5.1.1. Consents. The Administrative Agent shall have received
consent letters from the Required Lenders authorizing it to enter into
this Agreement, provided, that the deletion of clause (c) of Section
2.1.1 from the Existing Credit Agreement shall not become effective
unless the Administrative Agent shall have received consent letters
from Lenders holding a majority of the Percentage Interests in respect
of the Commitments relating to the Revolving Loan.
5.1.2. Agreement. This Agreement shall have been executed and
delivered by the Borrower, the Guarantors and the Administrative Agent.
5.1.3. ▇▇▇▇ ▇▇▇▇▇ Acquisition. New Falcon I shall have been
acquired (the "▇▇▇▇ ▇▇▇▇▇ Acquisition"), directly or indirectly, by a
member of the ▇▇▇▇ ▇▇▇▇▇ Group.
5.1.4. Officer's Certificate; Proper Proceedings. After giving
effect to this Agreement, each of the conditions specified in Section
5.2.1 (other than clause (c) thereof) and 5.2.2 shall have been
satisfied as if the Restatement Effective Date were a "Closing Date".
5.1.5. Payment of Fees. The Borrower shall have paid to the
Administrative Agent the fees due on the Restatement Effective Date in
the amounts agreed separately by the Borrower
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and the Administrative Agent, including (a) a commitment fee on the
commitments of the Supplemental Restatement Revolving Lenders
calculated at the rate of 0.125% per annum for the period from the date
of allocation of such commitments through the Restatement Effective
Date and (b) an amendment fee payable to each Lender in an amount equal
to 0.125% of the sum of its Term Loan and its commitment in respect of
the Revolving Loan.
5.1.6. Legal Opinions. On the Restatement Effective Date, the
Lenders shall have received the legal opinion of Paul, Hastings,
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel to the Restricted Companies, with
respect to the amendment and restatement of the Existing Credit
Agreement pursuant to this Agreement, which opinion shall be in form
and substance reasonably satisfactory to the Administrative Agent. The
Restricted Companies authorize and direct their counsel to furnish such
opinion.
5.2. Conditions to Each Extension of Credit. The obligations
of the Lenders to make any extension of credit pursuant to Section 2 shall be
subject to the satisfaction, on or before the Closing Date for such extension of
credit, of the following conditions:
5.2.1. Officer's Certificate. (a) The representations and
warranties contained in Sections 6.6 and 8 and in sections 2.2 and 4 of
the Pledge and Subordination Agreement shall be true and correct on and
as of the Closing Date with the same force and effect as though
originally made on and as of such date (except for those
representations and warranties as of a specified earlier date, which
shall have been true and correct as of such date); (b) no Default shall
exist and be continuing on such Closing Date prior to or immediately
after giving effect to the requested extension of credit; (c) as of the
Closing Date, the Borrower shall be permitted to incur the requested
loan under section 4.07 of the New Falcon I Debentures Indenture; (d)
as of the Closing Date, no Material Adverse Change shall have occurred;
and (e) the Borrower shall have furnished to the Administrative Agent
on such Closing Date a certificate to such effect in substantially the
form of Exhibit 5.2.1, signed by a Financial Officer.
5.2.2. Proper Proceedings. This Agreement, each other Credit
Document and the extensions of credit and the granting of the security
interests contemplated hereby and thereby shall have been authorized by
all necessary proceedings of each Obligor and any of their respective
Affiliates party thereto. All necessary consents, approvals and
authorizations of any governmental or administrative agency or any
other Person with respect to the foregoing shall have been obtained and
shall be in full force and effect. The Administrative Agent shall have
received copies of all documents, including certificates, records of
corporate, partnership and limited liability company proceedings and
opinions of counsel, which the Administrative Agent may have reasonably
requested in connection therewith, such documents where appropriate to
be certified by proper corporate or governmental authorities.
5.2.3. Legality, etc. The making of the requested extension of
credit shall not (a) subject any Lender to any penalty or special tax
(other than a Tax for which the Borrower has reimbursed the Lenders
under Section 3.4), (b) be prohibited by any law or governmental order
or regulation applicable to any Lender or any Obligor or (c) violate
any mandatory credit restraint program of the executive branch of the
government of the United States of America, the Board of Governors of
the Federal Reserve System or any other governmental or administrative
agency.
5.3. Conditions on Supplemental Facility Closing Dates. The
obligations of the
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Supplemental Lenders to make any extension of credit pursuant to a Supplemental
Facility pursuant to Section 2.4 (to the extent the Supplemental Lenders agreed
to become so obligated) shall be subject to the satisfaction, on or before the
initial Closing Date for such Supplemental Facility, of the conditions set forth
in this Section 5.3, as well as the further conditions of Section 5.2.
5.3.1. Supplemental Notes. The Borrower shall have duly
executed and delivered to the Administrative Agent the appropriate
Supplemental Notes for each Supplemental Lender having a Commitment
therein.
5.3.2. Joinder Agreement. Any new Lenders participating in
such Supplemental Facility shall have executed and delivered a joinder
agreement reasonably satisfactory to the Administrative Agent and the
Borrower pursuant to which each such new Lender agrees to become a
party to and be bound by this Agreement.
5.3.3. Legal Opinions. On such Closing Date, the Lenders shall
have received legal opinions satisfactory to the Supplemental Lenders
and the Administrative Agent from counsel to the Borrower.
5.3.4. General. All legal, corporate, limited liability
company and partnership proceedings in connection with the transactions
contemplated by this Agreement shall be reasonably satisfactory in form
and substance to the Administrative Agent and the Administrative Agent
shall have received copies of all documents which the Administrative
Agent may have reasonably requested in connection with such
Supplemental Facility. All other conditions as may be reasonably
determined by the Administrative Agent and set forth in the written
commitments with respect to such Supplemental Facility, including the
payment of any syndication or closing fees which are so set forth,
shall be reasonably satisfactory in form and substance to the
Administrative Agent.
6. Guarantees.
6.1. Guarantees of Credit Obligations. Each Guarantor
unconditionally jointly and severally guarantees that the Credit Obligations
incurred by the Borrower or any other Obligor will be performed and will be paid
in full in cash when due and payable, whether at the stated or accelerated
maturity thereof or otherwise, this guarantee being a guarantee of payment and
not of collectability and being absolute and in no way conditional or
contingent. In the event any part of such Credit Obligations shall not have been
so paid in full when due and payable, such Guarantor will, immediately upon
written notice by the Administrative Agent or, without notice, immediately upon
the occurrence of a Bankruptcy Default, pay or cause to be paid to the
Administrative Agent for the Lenders' account the amount of such Credit
Obligations which are then due and payable and unpaid. The obligations of each
Guarantor hereunder shall not be affected by the invalidity, unenforceability or
irrecoverability of any of the Credit Obligations as against any Obligor, any
other guarantor thereof or any other Person. For purposes hereof, the Credit
Obligations shall be due and payable when and as the same shall be due and
payable under the terms of this Agreement or any other Credit Document
notwithstanding the fact that the collection or enforcement thereof may be
stayed or enjoined under the Bankruptcy Code, as from time to time in effect, or
other applicable law. Anything herein or in any other Credit Document to the
contrary notwithstanding, the maximum liability of each Guarantor hereunder and
under the other Credit Documents shall in no event exceed the amount which can
be guaranteed by such Guarantor under applicable federal and state laws relating
to the insolvency of debtors (after giving effect to the right of contribution
established in Section 6.9).
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6.2. Continuing Obligation. Each Guarantor acknowledges that
the Lenders have entered into this Agreement (and, to the extent that the
Lenders may enter into any future Credit Document, will have entered into such
agreement) in reliance on this Section 6 being a continuing irrevocable
agreement, and such Guarantor agrees that its guarantee may not be revoked in
whole or in part. The obligations of the Guarantors hereunder shall terminate
when the commitment of the Lenders to extend credit under this Agreement shall
have terminated and all of the Credit Obligations have been indefeasibly paid in
full in cash and discharged; provided, however, that:
(a if a claim is made upon the Lenders at any time for
repayment or recovery of any amounts or any property received by the
Lenders from any source on account of any of the Credit Obligations and
the Lenders repay or return any amounts or property so received
(including interest thereon to the extent required to be paid by the
Lenders) or
(b if the Lenders become liable for any part of such claim by
reason of (i) any judgment or order of any court or administrative
authority having competent jurisdiction, or (ii) any settlement or
compromise of any such claim,
then the Guarantors shall remain liable under this Agreement for the amounts so
repaid or returned or the amounts for which the Lenders become liable (such
amounts being deemed part of the Credit Obligations) to the same extent as if
such amounts had never been received by the Lenders, notwithstanding any
termination hereof or the cancellation of any instrument or agreement evidencing
any of the Credit Obligations. The Guarantors shall, not later than five days
after receipt of notice from the Administrative Agent, jointly and severally pay
to the Administrative Agent an amount equal to the amount of such repayment or
return for which the Lenders have so become liable. Payments hereunder by a
Guarantor may be required by the Administrative Agent on any number of
occasions.
6.3. Waivers with Respect to Credit Obligations. Except to the
extent expressly required by this Agreement or any other Credit Document, each
Guarantor waives, except to the extent prohibited by the provisions of
applicable law that may not be waived, all of the following (including all
defenses, counterclaims and other rights of any nature based upon any of the
following):
(a presentment, demand for payment and protest of nonpayment
of any of the Credit Obligations, and notice of protest, dishonor or
nonperformance;
(b notice of acceptance of this guarantee and notice that
credit has been extended in reliance on the Guarantor's guarantee of
the Credit Obligations;
(c notice of any Default or of any inability to enforce
performance of the obligations of any Obligor or any other Person
thereunder;
(d demand for performance or observance of, and any
enforcement of any provision of, the Credit Obligations, this Agreement
or any other Credit Document or any pursuit or exhaustion of rights or
remedies with respect to any Credit Security or against any Obligor or
any other Person in respect of the Credit Obligations or any
requirement of diligence or promptness on the part of the Lenders in
connection with any of the foregoing;
(e any act or omission on the part of the Lenders which may
impair or prejudice the rights of the Guarantor, including subrogation
rights or rights to obtain exoneration, contribution, indemnification
or any other reimbursement from any Obligor or any other Person;
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(f failure or delay to perfect or continue the perfection of
any security interest in any Credit Security;
(g any action which ▇▇▇▇▇ or impairs the value of, or any
failure to preserve or protect the value of, any Credit Security;
(h any act or omission which might vary the risk of the
Guarantor or otherwise operate as a deemed release or discharge;
(i any statute or rule of law which provides that the
obligation of a surety must be neither larger in amount nor in other
respects more burdensome than the obligation of the principal;
(j the provisions of any "one action" or "anti-deficiency" law
which would otherwise prevent the Lenders from bringing any action,
including any claim for a deficiency, against the Guarantor before or
after the Lenders' commencement or completion of any foreclosure
action, whether judicially, by exercise of power of sale or otherwise,
or any other law which would otherwise require any election of remedies
by the Lenders;
(k all demands and notices of every kind with respect to the
foregoing; and
(l to the extent not referred to above, all defenses (other
than disputed facts) which any Obligor may now or hereafter have to the
payment of the Credit Obligations, together with all suretyship
defenses, which could otherwise be asserted by such Guarantor.
No delay or omission on the part of the Lenders in exercising
any right under this Agreement or any other Credit Document or under any
guarantee of the Credit Obligations or with respect to any Credit Security shall
operate as a waiver or relinquishment of such right. No action which the Lenders
or any Obligor may take or refrain from taking with respect to the Credit
Obligations, including any amendments thereto or modifications thereof or
waivers with respect thereto, shall affect the provisions of this Agreement or
the obligations of the Guarantor hereunder. None of the Lenders' rights shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of any Obligor, or by any noncompliance by any Obligor with the terms,
provisions and covenants of this Agreement, regardless of any knowledge thereof
which the Lenders may have or otherwise be charged with.
6.4. Lenders' Power to Waive, etc. Each Guarantor grants to
the Lenders full power in their discretion, without notice to or consent of such
Guarantor, such notice and consent being hereby expressly waived to the fullest
extent permitted by applicable law, and without in any way affecting the
liability of the Guarantor under its guarantee hereunder:
(a to waive compliance with, and any Default under, and to
consent to any amendment to or modification or termination of any terms
or provisions of, or to give any waiver in respect of, this Agreement,
any other Credit Document, any Credit Security, the Credit Obligations
or any guarantee thereof (each as from time to time in effect);
(b to grant any extensions of the Credit Obligations (for any
duration), and any other indulgence with respect thereto, and to effect
any total or partial release (by operation of law or
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otherwise), discharge, compromise or settlement with respect to the
obligations of the Obligors or any other Person in respect of the
Credit Obligations, whether or not rights against the Guarantor under
this Agreement are reserved in connection therewith;
(c to take security from the Restricted Companies or other
Obligors in any form for the Credit Obligations, and to consent to the
addition to or the substitution, exchange, release or other disposition
of, or to deal in any other manner with, any part of any property
contained in any Credit Security whether or not the property, if any,
received upon the exercise of such power shall be of a character or
value the same as or different from the character or value of any
property disposed of, and to obtain, modify or release any present or
future guarantees of the Credit Obligations and to proceed against any
of the Credit Security or such guarantees in any order;
(d to collect or liquidate or realize upon any of the Credit
Obligations or any Credit Security in any manner or to refrain from
collecting or liquidating or realizing upon any of the Credit
Obligations or the Credit Security; and
(e to extend credit under this Agreement, any other Credit
Document or otherwise in such amount as the Lenders may determine, even
though the condition of the Obligors (financial or otherwise on an
individual or Consolidated basis) may have deteriorated since the date
hereof.
6.5. Information Regarding Obligors, etc. Each Guarantor
acknowledges and agrees that it has made such investigation as it deems
desirable of the risks undertaken by it in entering into this Agreement and is
fully satisfied that it understands all such risks. Each Guarantor waives any
obligation which may now or hereafter exist on the part of the Lenders to inform
it of the risks being undertaken by entering into this Agreement or of any
changes in such risks and, from and after the date hereof, each Guarantor
undertakes to keep itself informed of such risks and any changes therein. Each
Guarantor expressly waives any duty which may now or hereafter exist on the part
of the Lenders to disclose to the Guarantor any matter related to the business,
operations, character, collateral, credit, condition (financial or otherwise),
income or prospects of the Obligors or their Affiliates or their properties or
management, whether now or hereafter known by the Lenders. Each Guarantor
represents, warrants and agrees that it assumes sole responsibility for
obtaining from the Obligors all information concerning this Agreement and all
other Credit Documents and all other information as to the Obligors and their
Affiliates or their properties or management as such Guarantor deems necessary
or desirable.
6.6. Certain Guarantor Representations. Each Guarantor
represents that:
(a it is in its best interest and in pursuit of its
partnership, limited liability company or corporate purposes as an
integral part of the business conducted and proposed to be conducted by
the Restricted Companies (including such Guarantor), and reasonably
necessary and convenient in connection with the conduct of the business
conducted and proposed to be conducted by it, to induce the Lenders to
enter into this Agreement and to extend credit to the Borrower by
making the Guarantees contemplated by this Section 6;
(b the credit available hereunder will directly or indirectly
inure to its benefit; and
(c by virtue of the foregoing it is receiving at least
reasonably equivalent consideration from the Lenders for its Guarantee.
Each Guarantor acknowledges that it has been advised by the Administrative Agent
that the Lenders are
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unwilling to enter into this Agreement unless the Guarantees contemplated by
this Section 6 are given by it. Each Guarantor represents that:
(i0 it will not be rendered insolvent as a result of entering
into this Agreement,
(ii0 after giving effect to the transactions contemplated by
this Agreement it will have assets having a fair saleable value in
excess of the amount required to pay its probable liability on its
existing debts as they have become absolute and matured,
(iii0 it has, and will have, access to adequate capital for
the conduct of its business and
(iv0 it has the ability to pay its debts from time to time
incurred in connection therewith as such debts mature.
6.7. No Subrogation. Until the Credit Obligations have been
indefeasibly paid in full and all commitments to extend further credit under the
Credit Documents have been irrevocably terminated, each Guarantor waives all
rights of reimbursement, subrogation, contribution, offset and other claims
against the Borrower arising by contract or operation of law in connection with
any payment made or required to be made by such Guarantor under this Agreement,
except for contribution rights provided in Section 6.9.
6.8. Subordination. Each Guarantor covenants and agrees that
all Indebtedness claims and liabilities now or hereafter owing by the Borrower
to such Guarantor are hereby subordinated to the prior payment in full of the
Credit Obligations and are so subordinated as a claim against the Borrower or
any of its assets whether such claim be in the ordinary course of business or in
the event of voluntary or involuntary liquidation, dissolution, insolvency or
bankruptcy so that no payment with respect to any such Indebtedness, claim or
liability will be made or received while any of the Credit Obligations are
outstanding; provided, however, that the Borrower may make payments permitted by
Section 7.10 and the relevant Guarantor may retain such payments.
6.9. Contribution Among Guarantors. The Guarantors agree that,
as among themselves in their capacity as guarantors of the Credit Obligations,
the ultimate responsibility for repayment of the Credit Obligations, in the
event that the Borrower fails to pay when due their Credit Obligations, shall be
equitably apportioned, to the extent consistent with the Credit Documents, among
the respective Guarantors (a) in the proportion that each, in its capacity as a
guarantor, has benefitted from the extensions of credit to the Borrower by the
Lenders under the Credit Agreement, or (b) if such equitable apportionment
cannot reasonably be determined or agreed upon among the affected Guarantors, in
proportion to their respective net worths determined on or about the date hereof
(or such later date as such Guarantor becomes party hereto). In the event that
any Guarantor, in its capacity as a guarantor, pays an amount with respect to
the Credit Obligations in excess of its proportionate share as set forth in this
Section 6.9, each other Guarantor shall, to the extent consistent with the
Credit Documents, make a contribution payment to such Guarantor in an amount
such that the aggregate amount paid by each Guarantor reflects its proportionate
share of the Credit Obligations. In the event of any default by any Guarantor
under this Section 6.9, each other Guarantor will bear, to the extent consistent
with the Credit Documents, its proportionate share of the defaulting Guarantor's
obligation under this Section 6.9. This Section 6.9 is intended to set forth
only the rights and obligations of the Guarantors among themselves and shall not
in any way affect the obligations of any Guarantor to the Lenders under the
Credit Documents (which obligations shall at all times constitute the joint and
several obligations of all the Guarantors).
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6.10. Future Subsidiaries; Further Assurances. The Borrower
and each Guarantor shall from time to time cause any present or future
Subsidiary not designated as an Excluded Company to join this Agreement as a
Restricted Company and a Guarantor pursuant to a joinder agreement in form and
substance reasonably satisfactory to the Administrative Agent. Each Guarantor
will, promptly upon the request of the Administrative Agent from time to time,
execute, acknowledge and deliver, and file and record, all such instruments, and
take all such action, as the Administrative Agent reasonably deems necessary or
advisable to carry out the intent and purposes of this Section 6.
6.11. Release of Guarantor. If any Guarantor is the subject of
a merger or a sale or disposition of its stock or of substantially all of its
assets in a transaction permitted under Section 7.11, the Guarantee of such
Person under this Section 6 shall be automatically terminated as of the closing
of such merger, sale or disposition and the application of any proceeds thereof
as required by this Agreement. The Guarantee under this Section 6 of any Person
that is subsequently designated as an Excluded Company in accordance with this
Agreement shall be automatically terminated as of the effectiveness of such
designation.
7. General Covenants. Each of the Restricted Companies
covenants that, until all of the Credit Obligations shall have been paid in full
and until the Lenders' commitments to extend credit under this Agreement and any
other Credit Document shall have been irrevocably terminated (except for
indemnification and other customary provisions that survive termination), it
will comply with such of the following provisions as are applicable to it:
7.1. Taxes and Other Charges; Accounts Payable.
7.1.1. Taxes and Other Charges. Each of the Restricted
Companies will duly pay and discharge, or cause to be paid and discharged,
before the same shall become in arrears, all material taxes, assessments and
other governmental charges imposed upon such Person and its properties, sales or
activities, or upon the income or profits therefrom, as well as all material
claims for labor, materials or supplies which if unpaid might by law become a
Lien upon any of its property; provided, however, that any such tax, assessment,
charge or claim need not be paid if the validity or amount thereof shall at the
time be contested in good faith by appropriate proceedings (or if all such
unpaid taxes, assessments, charges or claims do not exceed $500,000 in the
aggregate) and if such Person shall, in accordance with GAAP, have set aside on
its books adequate reserves with respect thereto; and provided further, that
each of the Restricted Companies will pay or bond, or cause to be paid or
bonded, all such taxes, assessments, charges or other governmental claims
immediately upon the commencement of proceedings to foreclose any Lien which may
have attached as security therefor (except to the extent such proceedings have
been dismissed or stayed).
7.1.2. Accounts Payable. Each of the Restricted Companies will
promptly pay when due, or in conformity with customary trade terms, all other
material Indebtedness incident to the operations of such Person; provided,
however, that any such Indebtedness need not be paid if the validity or amount
thereof shall at the time be contested in good faith and if such Person shall,
in accordance with GAAP, have set aside on its books adequate reserves with
respect thereto.
7.2. Conduct of Business, etc.
7.2.1. Types of Business. The Restricted Companies will engage
only in (a) those businesses in which the Restricted Companies are significantly
engaged on the Restatement Effective
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Date and (b) businesses which are reasonably similar or related thereto or
reasonable extensions thereof but not, in the case of this clause (b), in the
aggregate, material to the overall business of the Restricted Companies,
provided, that, in any event, the Restricted Companies will continue to be
primarily engaged in the businesses in which they are primarily engaged on the
Restatement Effective Date; and provided, further, that Investments permitted by
Section 7.9.8 will not be prohibited by this Section 7.2.1.
7.2.2. Maintenance of Properties. Each Restricted Company:
(a) will keep its properties in such repair, working order and
condition, and will from time to time make such repairs, replacements,
additions and improvements thereto for the efficient operation of its
businesses in management's reasonable business judgment and will comply
at all times in all material respects with all Franchises, FCC Licenses
and leases to which it is party so as to prevent any loss or forfeiture
thereof or thereunder, unless (i) compliance is at the time being
contested in good faith by appropriate proceedings or (ii) the
management of the Restricted Company reasonably determines that
compliance is not in the best interests of the Restricted Company and
that such loss or forfeiture will not result in a Material Adverse
Change; and
(b) except to the extent permitted under Section 7.11, will do
all things necessary to preserve, renew and keep in full force and
effect and in good standing its legal existence and authority necessary
to continue its business (other than in the case of an inactive
subsidiary that does not own material assets).
7.2.3. Compliance with Material Agreements; Amendments of
Material Agreements. Each of the Restricted Companies will comply with the
provisions of the Material Agreements to which they are a party or bound (to the
extent not inconsistent with this Agreement or any other Credit Document),
except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to result in a Material Adverse Change.
Without the prior written consent of the Required Lenders, which may not be
unreasonably withheld, no Material Agreement shall be amended, modified, waived
or terminated in any manner that would have in any material respect an adverse
effect on the interests of the Lenders; provided, however, that notwithstanding
the foregoing, (a) in the case of the New Falcon I Debentures and the New Falcon
I Debentures Indenture, the consent of the Required Lenders shall be required
only with respect to an increase in the interest rate applicable to the
Debentures currently outstanding under such Indenture and (b) notwithstanding
clause (a) above, approval of any Indenture Modifications shall require only the
consent of two of the Specified Agents rather than the consent of the Required
Lenders.
7.2.4. Statutory Compliance. Each of the Restricted Companies
will comply in all material respects with the Communications Act, including the
rules and regulations of the FCC relating to the carriage of television signals,
and all other valid and applicable statutes, laws, ordinances, zoning and
building codes and other rules and regulations of the United States of America,
of the states and territories thereof and their counties, municipalities and
other subdivisions and of any foreign country or other jurisdictions applicable
to such Person, except where compliance therewith shall at the time be contested
in good faith by appropriate proceedings or the failure so to comply is not
reasonably likely to result in a Material Adverse Change.
7.3. Insurance. Each of the Restricted Companies will maintain
with financially sound and reputable insurers insurance in such amounts and
against such risks as are customarily maintained by companies engaged in the
same or similar businesses operating in the same general locations as the
Restricted Companies. The Restricted Companies will from time to time provide
such information
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regarding such insurance arrangements as the Administrative Agent may reasonably
request. The Agents and the Lenders acknowledge that the existing self-insurance
programs of the Restricted Companies, as they may be modified from time to time
in a manner that does not materially change the nature and relative scale of
such programs, comply with the requirements of this Section 7.3.
7.4. Financial Statements and Reports. Each of the Restricted
Companies will maintain a system of accounting in which entries will be made in
their books and records of all transactions in relation to their business and
affairs in accordance with GAAP. The fiscal year of the Restricted Companies
will end on December 31 in each year.
7.4.1. Annual Reports. The Restricted Companies will furnish
to the Administrative Agent (with sufficient copies for each Lender) as soon as
available, and in any event within 105 days after the end of each fiscal year,
the Consolidated and Consolidating balance sheet of New Falcon I and its
Subsidiaries as at the end of such fiscal year, the Consolidated and
Consolidating statements of earnings, changes in equity and cash flows of New
Falcon I and its Subsidiaries for such fiscal year (all in reasonable detail
and, in such Consolidating financial statements, showing the financial condition
and performance of the Restricted Companies as a group), and together with
comparative figures for the preceding fiscal year, all accompanied by:
(a) Unqualified reports of Ernst & Young LLP (or, if they
cease to be auditors of the Restricted Companies, independent certified
public accountants of recognized national standing reasonably
satisfactory to the Administrative Agent), to the effect that they have
audited such Consolidated financial statements in accordance with
generally accepted auditing standards and that such Consolidated
financial statements present fairly, in all material respects, the
financial position of the Restricted Companies at the dates thereof and
the results of their operations for the periods covered thereby in
conformity with GAAP.
(b) The statement of such accountants that they have caused
Section 7.5 to be reviewed and that in the course of their audit of the
Restricted Companies no facts have come to their attention that cause
them to believe that any Default under such Section exists or, if such
is not the case, specifying such Default and the nature thereof. This
statement is furnished by such accountants with the understanding that
the examination of such accountants cannot be relied upon to give such
accountants knowledge of any such Default except as it relates to
accounting or auditing matters within the scope of their audit.
(c) A certificate of a Financial Officer to the effect that
such officer has caused this Agreement to be reviewed and has no
knowledge of any Default, or if such officer has such knowledge,
specifying such Default and the nature thereof, and what action the
Restricted Companies have taken, are taking or propose to take with
respect thereto.
(d) In the event of a material change in GAAP after the date
hereof, computations, certified by a Financial Officer, reconciling the
financial statements referred to above with financial statements
prepared in accordance with GAAP as applied to the other covenants in
Section 7 and related definitions.
(e) Computations demonstrating, as of the end of such fiscal
year, compliance with the Computation Covenants.
(f) A supplement to Exhibit 8.1 showing any changes in the
information set forth in such
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Exhibit during the last quarter of such fiscal year.
7.4.2. Quarterly Reports. The Restricted Companies will
furnish to the Administrative Agent (with sufficient copies for each Lender) as
soon as available and, in any event, within 60 days after the end of each of the
first three calendar quarters of each fiscal year, the internally prepared
Consolidated balance sheet as of the end of such quarter and the Consolidated
statements of income, changes in equity and cash flows of New Falcon I and its
Subsidiaries for such quarter and for the portion of the fiscal year then ending
(all in reasonable detail and, in such Consolidating financial statements,
showing the financial condition and performance of the Restricted Companies as a
group), together with comparative figures for the same period in the preceding
fiscal year, all accompanied by:
(a) A certificate signed by a Financial Officer to the effect
that such financial statements have been prepared in accordance with
GAAP and present fairly, in all material respects, the financial
position of the Restricted Companies covered thereby at the dates
thereof and the results of their operations for the periods covered
thereby, subject only to normal year-end audit adjustments and the
addition of footnotes.
(b) Computations demonstrating, as of the end of such quarter,
compliance with the Computation Covenants.
(c) For each quarter, a supplement to Exhibit 8.1 showing any
changes in the information set forth in such Exhibit during such fiscal
quarter.
(d) A certificate signed by a Financial Officer to the effect
that such officer has caused this Agreement to be reviewed and has no
knowledge of any Default, or if such officer has such knowledge,
specifying such Default and the nature thereof and what action the
Restricted Companies have taken, are taking or propose to take with
respect thereto.
7.4.3. Other Reports. Upon request by the Administrative
Agent, the Restricted Companies will promptly furnish to the Administrative
Agent (with sufficient copies for each Lender) such registration statements,
proxy statements and reports, including Forms ▇-▇, ▇-▇, ▇-▇, ▇-▇, 10-K, 10-Q and
8-K, as may be filed for New Falcon I or any Restricted Company with the
Securities and Exchange Commission. In addition, the Borrower shall notify the
Administrative Agent promptly after any of the foregoing become available.
7.4.4. Notice of Litigation; Notice of Defaults. The
Restricted Companies will promptly furnish to the Administrative Agent notice of
any litigation or any administrative or arbitration proceeding to which any
Restricted Company may hereafter become a party which involves the risk of any
judgment which resulted, or poses a material risk of resulting, after giving
effect to any applicable insurance, of the payment by the Restricted Companies
of at least $10,000,000. Promptly upon acquiring knowledge thereof, the
Restricted Companies will notify the Lenders of the existence of any Default,
specifying the nature thereof and what action the Restricted Companies have
taken, are taking or propose to take with respect thereto.
7.4.5. Franchise Matters. The Restricted Companies will
promptly furnish to the Administrative Agent notice of any action by any
federal, state or local governmental authority of the institution of proceedings
to revoke, terminate or suspend any Franchise now or hereafter held by any
Restricted Company, and any abandonment or expiration (without renewal) of a
Franchise now or hereafter held by any Restricted Company, in either case, which
would result, or be reasonably likely to
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result, in a Material Adverse Change.
7.4.6. ERISA Reports. The Restricted Companies will furnish to
the Administrative Agent as soon as available the following items with respect
to any Plan:
(a) any request for a waiver of the funding standards or an
extension of the amortization period,
(b) any reportable event (as defined in section 4043 of
ERISA), unless the notice requirement with respect thereto has been
waived by regulation,
(c) any notice received by any ERISA Group Person that the
PBGC has instituted or intends to institute proceedings to terminate
any Plan, or that any Multiemployer Plan is insolvent or in
reorganization,
(d) notice of the possibility of the termination of any Plan
by its administrator pursuant to section 4041 of ERISA, and
(e) notice of the intention of any ERISA Group Person to
withdraw, in whole or in part, from any Multiemployer Plan.
7.4.7. Other Information. From time to time upon request of
any authorized officer of any Agent, each of the Restricted Companies will
furnish to the Administrative Agent (with sufficient copies for each Lender)
such other information regarding the business, assets, financial condition,
income or prospects of the Restricted Companies as such officer may reasonably
request, including copies of all tax returns, licenses, agreements, contracts,
leases and instruments to which any of the Restricted Companies is party. The
authorized officers and representatives of any Agent or, after the occurrence
and during the continuation of an Event of Default, of any Lender (coordinated
through the Administrative Agent) shall have the right during normal business
hours upon reasonable notice and at reasonable intervals to examine the books
and records of the Restricted Companies, to make copies, notes and abstracts
therefrom and to make an independent examination of its books and records, for
the purpose of verifying the accuracy of the reports delivered by any of the
Restricted Companies pursuant to this Section 7.4 or otherwise and ascertaining
compliance with or obtaining enforcement of this Agreement or any other Credit
Document.
7.5. Certain Financial Tests.
7.5.1. Consolidated Total Debt to Consolidated Annualized
Operating Cash Flow. Consolidated Total Debt shall not as of the end of any
fiscal quarter exceed the percentage indicated in the table below of
Consolidated Annualized Operating Cash Flow for such fiscal quarter:
Date Percentage
---- ----------
Initial Closing Date through
March 30, 2001 600%
March 31, 2001 through
December 30, 2001 575%
December 31, 2001 through
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June 29, 2002 550%
June 30, 2002 through
June 29, 2003 500%
June 30, 2003 through
June 29, 2004 450%
June 30, 2004 through
June 29, 2005 350%
June 30, 2005 through
June 29, 2006 275%
June 30, 2006 and
thereafter 200%
7.5.2. Consolidated Interest Coverage Ratio. For each fiscal
quarter of the Restricted Companies, the Consolidated Interest Coverage Ratio
shall exceed the percentage indicated below: (a) from the Initial Closing Date
through December 31, 2000, 140%, (b) from January 1, 2001 through December 31,
2002, 150% and (c) thereafter, 200%.
7.5.3. Consolidated Annualized Operating Cash Flow to
Consolidated Pro Forma Debt Service. On the last day of each fiscal quarter of
the Restricted Companies, Consolidated Annualized Operating Cash Flow for the
three-month period then ending shall exceed 110% of Consolidated Pro Forma Debt
Service for the 12-month period beginning immediately after such date.
7.6. Indebtedness. The Restricted Companies shall not create,
incur, assume or otherwise become or remain liable with respect to any
Indebtedness other than the following:
7.6.1. The Credit Obligations.
7.6.2. Guarantees permitted by Section 7.7.
7.6.3. Current liabilities existing from time to time, other
than for Financing Debt, incurred in the ordinary course of business.
7.6.4. To the extent that payment thereof shall not at the
time be required by Section 7.1, Indebtedness in respect of taxes,
assessments, governmental charges and claims for labor, materials and
supplies.
7.6.5. Indebtedness secured by Liens of carriers,
warehousemen, mechanics and landlords permitted by Sections 7.8.5 and
7.8.6.
7.6.6. Indebtedness in respect of judgments or awards not in
excess of $10,000,000 in the aggregate at any time outstanding (a)
which have been in force for less than the applicable appeal period, so
long as execution is not levied, or (b) in respect of which any
Restricted Company shall at the time in good faith be prosecuting an
appeal or proceedings for review, so long as execution thereof shall
have been stayed pending such appeal or review and the Restricted
Companies shall have taken appropriate reserves therefor consistent
with GAAP.
7.6.7. Indebtedness in respect of Capitalized Lease
Obligations or secured by purchase money security interests to the
extent Liens securing such Indebtedness are permitted by Section
7.8.10; provided, however, that the aggregate principal amount of all
Indebtedness permitted by
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this Section 7.6.7 at any one time outstanding shall not exceed
$25,000,000.
7.6.8. Indebtedness in respect deferred taxes arising in the
ordinary course of business.
7.6.9. Indebtedness in respect of inter-company loans and
advances among the Restricted Companies which are not prohibited by
Section 7.9.
7.6.10. Indebtedness outstanding on the Initial Closing Date
and described in Exhibit 7.6.10, except that only the Indebtedness
under the heading "Post-Closing Financing Debt" on Exhibit 7.6.10 is
permitted by this Section 7.6.10 to remain outstanding after the
Initial Closing Date.
7.6.11. Indebtedness on account of security deposits of
Subscribers held by the Restricted Companies to secure the return of
equipment placed by the Restricted Companies with Subscribers in the
ordinary course of its business.
7.6.12. Binding obligations of the Restricted Companies to
make acquisitions and Investments permitted by Section 7.9.
7.6.13. The MONY Subordinated Debt.
7.6.14. Minority interests in Subsidiaries and equity in
losses of affiliated partnerships in excess of investment.
7.6.15. Indebtedness of the Borrower (but not any Subsidiary
of the Borrower) incurred on any Threshold Transaction Date so long as
(a) no Default shall have occurred and be continuing or would result
therefrom, (b) such Indebtedness shall have no scheduled amortization
prior to the date that is one year after the final maturity of the
latest-maturing Loan outstanding on the date such Indebtedness is
incurred and (c) the covenants and default provisions applicable to
such Indebtedness shall be no more restrictive than those contained in
this Agreement, provided that the requirement that such Indebtedness be
incurred on a Threshold Transaction Date shall not apply in the case of
any refinancing of Indebtedness previously incurred pursuant to this
Section 7.6.15 so long as the interest rate and cash-pay
characteristics applicable to such refinancing Indebtedness are no more
onerous than those applicable to such refinanced Indebtedness.
7.6.16. Indebtedness of any Person that becomes a Subsidiary
pursuant to an Investment permitted by Section 7.9, so long as (a) no
Default shall have occurred and be continuing or would result
therefrom, (b) such Indebtedness existed at the time of such Investment
and was not created in anticipation thereof, (c) the Borrower shall use
its best efforts to cause such Indebtedness to be repaid no later than
120 days after the date of such Investment, (d) if such Indebtedness is
not repaid within such period then, until such Indebtedness is repaid,
the operating cash flow of the relevant Subsidiary shall be excluded
for the purposes of calculating Consolidated Operating Cash Flow
(whether or not distributed to the Borrower or any other Restricted
Company) and (e) the aggregate outstanding principal amount of
Indebtedness incurred pursuant to this Section 7.6.16 shall not exceed
$150,000,000.
7.6.17. Other Indebtedness of the Restricted Companies not in
excess of $50,000,000 in the aggregate at any one time outstanding.
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7.7. Guarantees; Letters of Credit. The Restricted Companies
shall not become or remain liable with respect to any Guarantee, including
reimbursement obligations under letters of credit and other financial guarantees
by third parties, except the following:
7.7.1. Guarantees of the Credit Obligations.
7.7.2. Guarantees by the Restricted Companies of Indebtedness
incurred by any other Restricted Company and permitted by Section 7.6.
7.7.3. Guarantees to governmental authorities in respect of
performance under Franchises and to Obligors upon indemnity,
performance or similar bonds or letters of credit made in the ordinary
course of business, not involving Guarantees of Financing Debt, and not
exceeding $50,000,000 in aggregate principal amount at any one time
outstanding.
7.7.4. Guarantees by the Restricted Companies of the MONY
Subordinated Debt, which Guarantees shall be subordinated on the same
terms as the MONY Subordinated Debt.
7.8. Liens. The Restricted Companies shall not create, incur
or enter into, or suffer to be created or incurred or to exist, any Lien, except
the following:
7.8.1. Liens on any Credit Security which secure the Credit
Obligations and restrictions on transfer contained in the Credit
Documents.
7.8.2. Liens to secure taxes, assessments and other
governmental charges, to the extent that payment thereof shall not at
the time be required by Section 7.1.
7.8.3. Deposits or pledges made (a) in connection with, or to
secure payment of, workers' compensation, unemployment insurance, old
age pensions or other social security, (b) in connection with casualty
insurance maintained in accordance with Section 7.3, (c) to secure the
performance of bids, tenders, contracts (other than contracts relating
to Financing Debt) or leases, (d) to secure statutory obligations or
surety or appeal bonds, (e) to secure indemnity, performance or other
similar bonds in the ordinary course of business, (f) in connection
with claims contested to the extent that payment thereof shall not at
that time be required by Section 7.1 or (g) as acquisition or sale
contract escrows in connection with transactions permitted under
Sections 7.9 or 7.11.
7.8.4. Liens in respect of judgments or awards, to the extent
that such judgments or awards are permitted by Section 7.6.6.
7.8.5. Liens of carriers, warehousemen, mechanics and similar
Liens, in each case (a) in existence less than 90 days from the date of
creation thereof or (b) being contested in good faith by any Restricted
Company in appropriate proceedings (so long as the Restricted Company
shall, in accordance with GAAP, have set aside on its books adequate
reserves with respect thereto).
7.8.6. Encumbrances in the nature of (a) zoning restrictions,
(b) easements, (c) restrictions of record on the use of real property,
(d) landlords' and lessors' Liens on rented premises and (e)
restrictions on transfers or assignment of leases, which in each case
do not materially detract from the value of the encumbered property or
impair the use thereof in the
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business of any Restricted Company.
7.8.7. Restrictions under federal and state securities laws on
the transfer of securities.
7.8.8. Restrictions under the Communications Act, specific
Franchises, pole agreements, leases and other documents entered into in
the ordinary course of business on the transfer or licensing of certain
assets of the Restricted Companies.
7.8.9. Set-off rights of depository institutions with which
any Restricted Company maintains deposit accounts.
7.8.10. Liens constituting (a) purchase money security
interests (including mortgages, conditional sales, Capitalized Leases
and any other title retention or deferred purchase devices) in real
property, interests in leases or tangible personal property existing or
created on the date on which such property is acquired, and (b) the
renewal, extension or refunding of any security interest referred to in
the foregoing clause (a) in an amount not to exceed the amount thereof
remaining unpaid immediately prior to such renewal, extension or
refunding; provided, however, that each such security interest shall
attach solely to the particular item of property so acquired, and the
principal amount of Indebtedness (including Indebtedness in respect of
Capitalized Lease Obligations) secured thereby shall not exceed the
cost (including all such Indebtedness secured thereby, whether or not
assumed) of such item of property; and provided, further, that the
aggregate principal amount of all Indebtedness secured by Liens
permitted by this Section 7.8.10 shall not exceed the amount permitted
by Section 7.6.7.
7.8.11. Liens as of the Initial Closing Date described in
Exhibit 7.6.10.
7.8.12. Arrangements constituting a qualified escrow account,
qualified trust or qualified intermediary for funds included in an
Asset Reinvestment Reserve Amount to facilitate a deferred like-kind
exchange exempt from taxation under the Code.
7.8.13. Liens on the Equity Interests of any Person that is
not a Restricted Company to secure loans from banks and other
institutional lenders to such Person or Affiliates of such Person that
are not Restricted Companies.
7.8.14. Liens not otherwise permitted by this Section 7.8 so
long as neither (a) the aggregate outstanding principal amount of the
obligations secured thereby nor (b) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets subject
thereto exceeds (as to all Restricted Companies) $10,000,000 at any one
time.
7.9. Investments and Acquisitions. The Restricted Companies
shall not have outstanding, acquire, commit to acquire under a binding contract
or a contract not conditioned on the receipt of customary Lenders' consents or
hold any Investment (including any Investment consisting of the acquisition of
any business) except for the following:
7.9.1. Investments of the Restricted Companies in other
Restricted Companies.
7.9.2. Investments in Cash Equivalents.
7.9.3. Loans and other advances to employees, officers and
directors in an aggregate
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principal amount at any one time outstanding not to exceed $10,000,000.
7.9.4. Prepaid royalties and fees paid in the ordinary course
of business.
7.9.5. Guarantees permitted by Section 7.7.
7.9.6. Investments as of the Initial Closing Date described in
Exhibit 7.6.10.
7.9.7. Investments consisting of loans from the Restricted
Companies to Holding, L.P. or New Falcon I that constitute
Distributions permitted by Section 7.10.
7.9.8. Contributions by any Restricted Company of cable
systems to any Permitted Joint Venture so long as (a) such Disposition
is permitted pursuant to Section 7.11.3, (b) no Default shall have
occurred and be continuing or would result therefrom, (c) after giving
effect thereto, the Reference Leverage Ratio shall be equal to or lower
than the Reference Leverage Ratio in effect immediately prior thereto
and (d) the Equity Interests received by any Restricted Company in
connection therewith shall be pledged as Credit Security (either
directly or through a holding company parent of such Permitted Joint
Venture so long as such parent is a Wholly Owned Guarantor).
7.9.9. Investments not otherwise permitted by this Section 7.9
at any one time outstanding not exceeding $100,000,000, except with the
prior written consent of the Required Lenders; provided, however, that
in no event will the book value of Margin Stock owned by the Restricted
Companies exceed 20% of the Consolidated assets of the Restricted
Companies determined in accordance with GAAP.
7.9.10. Investments consisting of the acquisition of Systems
or assets in exchange transactions permitted by Section 7.11.5.
7.9.11. Acquisitions by the Borrower or any Wholly Owned
Guarantor of Operating Assets (substantially all of which consist of
Systems), directly through an asset acquisition or indirectly through
the acquisition of 100% of the Equity Interests of a Person
substantially all of whose assets consist of Systems, provided, that
(a) no Default shall have occurred and be continuing or would result
therefrom and (b) the aggregate Consideration (excluding Consideration
paid with the proceeds of contributions described in Section 7.9.12)
paid in connection with such acquisitions, other than acquisitions
consummated on a Threshold Transaction Date, shall not exceed
$200,000,000 since the Restatement Effective Date.
7.9.12. So long as immediately before and after giving effect
thereto no Default exists and is continuing, acquisitions or
Investments (other than acquisitions and Investments of the type
described in Section 7.9.8) by the Restricted Companies with the
proceeds of cash equity contributions specified by written notice to
the Administrative Agent at the time of receipt of such proceeds for
the purpose of effecting such acquisition or Investment.
7.9.13. Acquisition deposits and deposits with a qualified
intermediary in connection with transactions permitted by this Section
7.9.
7.10. Distributions. The Restricted Companies shall not make
any Distribution except for the following:
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7.10.1. The Restricted Companies may make Distributions to
other Restricted Companies.
7.10.2. Any Restricted Company may declare and pay dividends
payable in common stock (or similar common equity) of such Restricted
Company.
7.10.3. So long as immediately before and after giving effect
thereto no Event of Default exists and is continuing, the Restricted
Companies may make:
(a) Distributions on or about April 15 and October 15
in each year in an amount on each such date not exceeding
mandatory scheduled cash payments then due of accrued interest
on the New Falcon I Debentures, which Distributions are used
exclusively for the obligor thereunder to pay such interest.
(b) Distributions to New Falcon I in an amount
necessary for it to make mandatory, scheduled payments of
principal and interest on Indebtedness (including Indebtedness
owed to the Restricted Companies) of New Falcon I not
elsewhere described in this Section 7.10; provided, however,
that (i) at least three Banking Days prior to such
Distribution the Administrative Agent shall receive a
certificate signed by a Financial Officer demonstrating pro
forma compliance as of the end of the most recent fiscal
quarter of the Restricted Companies with Sections 7.5.2 and
7.5.3 after giving effect to such Distribution, and (ii) the
proceeds of such Indebtedness are or were used to (A) prepay
the Loan pursuant to Section 4.6 or (B) make equity
Investments or subordinated debt Investments (in the form of
Specified Subordinated Debt) in any Restricted Company for its
own business purposes (other than Investments in Excluded
Companies).
(c) Distributions to New Falcon I in an amount
necessary for it to make mandatory, scheduled payments of
interest on Indebtedness (including Indebtedness owed to the
Restricted Companies) of New Falcon I; provided, however, that
(i) at least three Banking Days prior to such Distribution the
Administrative Agent shall receive a certificate signed by a
Financial Officer demonstrating that such Distribution shall
be made on a Threshold Transaction Date and (ii) each such
Distribution shall be made no earlier than three Banking Days
prior to the date the relevant interest payment is due.
7.10.4. The Restricted Companies may make Distributions on
account of management services to the extent permitted by Section 7.17.
7.10.5. So long as immediately before and after giving effect
thereto no Event of Default exists and is continuing, the Restricted
Companies that are partnerships or limited liability companies may, in
any calendar year, pay Distributions to all the holders of the Equity
Interests of such Restricted Companies, in proportion to their
ownership interests, sufficient to permit each such holder to pay
income taxes that may be required to be paid by it with respect to its
equity in the Restricted Companies for the prior calendar year, as
estimated by such Restricted Company in good faith.
7.10.6. Investments permitted by Sections 7.9.7 and 7.9.9 and
Affiliate transactions permitted by Section 7.14 or described in the
second sentence of Section 7.14.
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7.10.7. So long as immediately before and after giving effect
thereto no Event of Default exists and is continuing, the Borrower may
make Distributions for any purpose; provided, however, that, after
giving effect to any such Distribution on a pro forma basis, the
Reference Leverage Ratio shall not exceed 400%.
7.10.8. So long as immediately before and after giving effect
thereto no Event of Default exists and is continuing, the Borrower may
make Distributions for any purpose; provided, however, that if, after
giving effect to any such Distribution on a pro forma basis, the
Reference Leverage Ratio exceeds 400%, the cumulative, aggregate amount
of all Distributions under this Section 7.10.8 (excluding any such
Distributions made for the purpose of paying fees approved by the
Agents in connection with the Indenture Modifications) made since the
Restatement Effective Date shall not exceed the sum of (a) $25,000,000,
plus (b) the net proceeds of cash equity contributions (and, with the
written consent of at least two Specified Agents, which consent shall
not be unreasonably withheld, the net equity value of non-cash equity
contributions) made to the Borrower after the Restatement Effective
Date (to the extent not specified for acquisitions pursuant to Section
7.9.12) plus (c) 25% of Consolidated Excess Cash Flow for the most
recently completed fiscal year for which financial statements have been
furnished to the Lenders in accordance with Section 7.4.1 (commencing
with the fiscal year ended December 31, 1999).
7.10.9. So long as immediately before and after giving effect
thereto no Event of Default exists and is continuing, the Restricted
Companies may make Distributions constituting the purchase, redemption,
acquisition, cancellation or other retirement for value of Equity
Interests in any Holding Company, options on any such interests or
related equity appreciation rights or similar securities held by
officers or employees or former officers or employees of such Holding
Company (or their estates or beneficiaries under their estates), upon
death, disability, retirement or termination of employment; provided,
however, that the aggregate consideration paid for such purchase,
redemption, acquisition, cancellation or other retirement (excluding
any such consideration paid prior to the Restatement Effective Date)
does not in any one fiscal year of the Restricted Companies exceed
$7,500,000 in the aggregate.
7.10.10. So long as immediately before and after giving effect
thereto no Event of Default exists and is continuing, the Restricted
Companies may make Distributions in respect of loans and other advances
to employees, officers and directors permitted by Section 7.9.3.
7.10.11. The Restricted Companies may make required scheduled
payments of principal and accrued interest with respect to the MONY
Subordinated Debt in accordance with the terms thereof as in effect on
the Initial Closing Date and as subsequently amended in accordance with
Section 7.2.3, including the subordination terms, and, so long as
immediately before and after giving effect thereto no Default exists
and is continuing, the Restricted Companies may make voluntary
prepayments of principal (together with accrued interest thereon and
any premium with respect thereto) on the MONY Subordinated Debt, and
special principal prepayments (together with accrued interest thereon)
on such debt on account of risk-based capital requirements.
7.11. Merger, Consolidation and Dispositions of Assets. The
Restricted Companies shall not merge or enter into a consolidation or sell,
lease, sell and lease back, sublease or otherwise dispose of any of its assets
(each, "Fundamental Transaction"), except the following:
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7.11.1. Any Restricted Company may sell or otherwise dispose
of (a) inventory in the ordinary course of business, (b) tangible
assets to be replaced in the ordinary course of business by other
tangible assets of equal or greater value, (c) tangible assets that are
no longer used or useful in the business of the Restricted Companies,
the fair market value (or book value if greater) of which shall not be
material in any fiscal year and (d) cash and Cash Equivalents.
7.11.2. Any Restricted Company may (i) merge or be liquidated
into, or transfer or make dispositions of assets to, any other
Restricted Company or (ii) enter into a transaction solely for the
purpose of changing its organizational form so long as any Fundamental
Transaction related thereto does not involve any third party other than
another Restricted Company.
7.11.3. Subject to Section 4.4, so long as no Event of Default
exists and is continuing on the date a binding contract with respect to
such sale is entered into and the Restricted Companies have furnished
prior written notice of such sale to the Administrative Agent, the
Restricted Companies may sell Systems or other assets for fair market
value in transactions not constituting Permitted Asset Swaps (it being
understood that Swap Excess Amounts (other than Excluded Swap Excess
Amounts) shall be deemed to constitute usage of availability in respect
of sales pursuant to this Section 7.11.3); provided, however, that the
sum of the aggregate percentages of Consolidated Annualized Operating
Cash Flow for the period of three consecutive months most recently
ended prior to each such sale for which financial statements have been
(or are required to have been) furnished in accordance with Section
7.4.2 properly allocable to all such Systems or other assets so sold on
or after the Restatement Effective Date shall not exceed 30%.
7.11.4. So long as immediately before and after giving effect
thereto no Event of Default exists and is continuing, the Restricted
Companies may contribute Systems and other assets to Permitted Joint
Ventures as Investments permitted by Section 7.9.8.
7.11.5. The Restricted Companies may consummate Permitted
Asset Swaps; provided that (a) on the date of such Permitted Asset
Swap, no Default shall have occurred and be continuing or would result
therefrom, (b) in the event that the Annualized Asset Cash Flow Amount
attributable to the assets being transferred exceeds the annualized
asset cash flow amount (determined in a manner comparable to the manner
in which Annualized Asset Cash Flow Amounts are determined hereunder)
of the assets received in connection with such Permitted Asset Swap
(such excess amount, a "Swap Excess Amount"), then, unless such Swap
Excess Amount is an Excluded Swap Excess Amount, the Disposition of
such Swap Excess Amount is permitted by Section 7.11.3 and (c) the Net
Cash Proceeds of such Permitted Asset Swap, if any, shall be applied in
the manner contemplated by Section 4.4.
7.11.6. The Restricted Companies may consummate mergers or
consolidations necessary to effect acquisitions and Investments
permitted by Section 7.9.
7.11.7. The Restricted Companies may sell property acquired
after the Restatement Effective Date (other than property acquired in
connection with Permitted Asset Swaps involving property owned on the
Restatement Effective Date), so long as (a) no Default shall have
occurred and be continuing or would result therefrom, (b) a definitive
agreement to consummate such sale is executed no later than twelve
months after the date on which relevant property is acquired and (c)
such sale is
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consummated within eighteen months after the date on which the relevant
property is acquired.
7.12. Issuance of Stock by Subsidiaries; Subsidiary
Distributions.
7.12.1. Issuance of Stock by Subsidiaries. No Subsidiary
(other than an Excluded Company) of a Restricted Company shall issue or
sell any of its Equity Interests to any Person other than a Restricted
Company unless (a) in the case of a stock dividend or other
distribution of Equity Interests, such dividend or distribution is pro
rata among existing equity owners or (b) in the case of purchased
equity, the sale of such equity is on an arm's length basis.
7.12.2. No Restrictions on Subsidiary Distributions. Except
for restrictions contained in the Credit Documents, the Restricted
Companies shall not enter into or be bound by any agreement (including
covenants requiring the maintenance of specified amounts of net worth
or working capital) restricting the right of any Subsidiary to make
Distributions or extensions of credit to the Borrower (directly or
indirectly through another Subsidiary).
7.13. ERISA, etc. Each of the Restricted Companies will
comply, and will cause all of their Subsidiaries to comply, in all material
respects, with the provisions of ERISA and the Code applicable to each Plan.
Each of the Restricted Companies will meet, and will cause all of their
Subsidiaries to meet, all minimum funding requirements applicable to them with
respect to any Plan pursuant to section 302 of ERISA or Section 412 of the Code,
without giving effect to any waivers of such requirements or extensions of the
related amortization periods which may be granted. At no time shall the
Accumulated Benefit Obligations under any Plan that is not a Multiemployer Plan
exceed the fair market value of the assets of such Plan allocable to such
benefits by more than $10,000,000. After the Restatement Effective Date, the
Restricted Companies will not withdraw, and will cause all of their Subsidiaries
not to withdraw, in whole or in part, from any Multiemployer Plan so as to give
rise to withdrawal liability exceeding $10,000,000 in the aggregate. At no time
shall the actuarial present value of unfunded liabilities for post-employment
health care benefits, whether or not provided under a Plan, calculated in a
manner consistent with Statement No. 106 of the Financial Accounting Standards
Board, exceed $10,000,000.
7.14. Transactions with Affiliates. Other than the Material
Agreements, none of the Restricted Companies shall effect any transaction with
any of their respective Affiliates on a basis less favorable to the Restricted
Companies than would be the case if such transaction had been effected with a
non-Affiliate. This Section 7.14 shall not apply to: (a) customary directors'
fees, indemnification and similar arrangements and payments in respect thereof,
consulting fees, employee salaries, bonuses or employment agreements,
compensation or employee benefit arrangements and incentive arrangements with
any officer, or employee of a Restricted Company entered into in the ordinary
course of business (including customary benefits thereunder), (b) the
organizational agreements of New Falcon I and Holding, L.P., including any
amendments or extensions thereof that do not otherwise violate any other
covenant set forth in this Agreement, and any transactions undertaken or to be
undertaken pursuant to any of such agreements or pursuant to any other
contractual obligations in the ordinary course of business in existence on the
Restatement Effective Date (as in effect on the Restatement Effective Date) or
as set forth on Exhibit 7.14, (c) the issuance and sale by any Restricted
Company to its partners, members or stockholders of Equity Interests (other than
Redeemable Capital Stock), (d) loans and advances to officers, directors and
employees of the Restricted Companies in the ordinary course of business, (e)
customary commercial banking, investment banking, underwriting, placement agent,
financial advisory, legal, accounting or regulatory fees paid in connection with
services rendered to the
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Restricted Companies in the ordinary course of business, (f) so long as no
Default shall have occurred and be continuing, the payment (either directly or
by way of a distribution to New Falcon I) of amounts not in excess of 1.0% of
the aggregate enterprise value of Investments permitted hereby to certain
members of the Charter Group, (g) the incurrence of intercompany indebtedness
that does not otherwise violate any other provision of this Agreement, (h)
repayments of Specified Subordinated Debt with the proceeds of Loans or
Specified Long-Term Indebtedness, (i) the pledge of Equity Interests of Excluded
Companies to support the Indebtedness thereof, (j) the payment of management
fees permitted by Section 7.17, and (k) programming agreements, marketing and
promotional agreements and other billing services, equipment agreements and
agreements for other goods and services related to the business of the
Restricted Companies entered into between members of the Charter Group and the
Restricted Companies. Holding, L.P. shall deliver to the Administrative Agent as
soon as reasonably practicable copies of all documents delivered pursuant to
clause (ii) of the first sentence of section 4.13 of the New Falcon I Debentures
Indenture in connection with Affiliate transactions.
7.15. Interest Rate Protection. Within 30 days after the
Initial Closing Date, the Borrower will obtain and thereafter keep in effect one
or more Interest Rate Protection Agreements conforming to International
Securities Dealers Association standards with any Lender or Affiliate of a
Lender or other financial institution reasonably satisfactory to the
Administrative Agent protecting against increases in interest rates, each in
form and substance reasonably satisfactory to the Administrative Agent, covering
a notional amount of at least 50% of the Financing Debt of New Falcon I,
Holding, L.P. and the Restricted Companies for a two year period at rates
reasonably satisfactory to the Administrative Agent; provided, however, that
Financing Debt with a fixed interest rate for a period of at least two years
shall be deemed to be covered by an Interest Rate Protection Agreement for
purposes of this Section 7.15.
7.16. Compliance with Environmental Laws. Each of the
Restricted Companies will:
7.16.1. Use and operate all of its facilities and properties
in compliance with all Environmental Laws, keep all necessary permits,
approvals, certificates, licenses and other authorizations relating to
environmental matters in effect and remain in compliance therewith, and
handle all Hazardous Materials in compliance with all applicable
Environmental Laws, except where the failure to comply with, or keep in
effect, as applicable, such laws, permits, approvals, certificates,
licenses and authorizations would not reasonably be expected to result
in a Material Adverse Change.
7.16.2. Immediately notify the Administrative Agent, and
provide copies upon receipt, of all written claims or complaints from
governmental authorities relating to the condition of its facilities
and properties or compliance with Environmental Laws, and in the case
of potential liability in excess of $10,000,000 shall promptly cure and
have dismissed with prejudice to the satisfaction of the Administrative
Agent any actions and proceedings relating to compliance with
Environmental Laws, except where contested in good faith by appropriate
proceedings and sufficient reserves with respect thereto as required by
GAAP have been established.
7.16.3. Provide such information and certifications which the
Administrative Agent may reasonably request from time to time to
evidence compliance with this Section 7.16.
7.17. No Outside Management Fees. The Restricted Companies
shall not pay in cash any management fees or other amounts in respect of
management services to any Person other than another Restricted Company, except
that the Borrower may pay management fees to its Affiliates (either
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directly or by way of a Distribution to New Falcon I) so long as (a) no Default
shall have occurred and be continuing or would result therefrom, (b) the
aggregate amount of such payments expensed during any fiscal year of the
Borrower shall not exceed 3.50% of Consolidated Revenues for the immediately
preceding fiscal year (provided that, in addition, payments of management fees
may be made in respect of amounts that have been accrued, but were not paid,
during any preceding fiscal year of the Borrower ending on or after December 31,
1999, so long as the aggregate amount of payments made pursuant to this
parenthetical during any fiscal year of the Borrower (other than any such
payments made on a Threshold Management Fee Date), when added to the aggregate
amount of non-deferred management fees otherwise paid pursuant to this clause
(b) during such fiscal year, shall not exceed 5.0% of Consolidated Revenues for
the immediately preceding fiscal year ) and (c) each such payment shall be made
no earlier than three Banking Days prior to the date such payment is due for
Distributions; provided, however, that this Section 7.17 shall not prohibit the
payment of fees to non-Affiliates for services rendered to the Restricted
Companies on an arm's length basis in the ordinary course of business.
7.18. Derivative Contracts. None of the Restricted Companies
nor any of their Subsidiaries shall enter into any Interest Rate Protection
Agreement, foreign currency exchange contract or other financial or commodity
derivative contracts except to provide hedge protection for an underlying
economic transaction in the ordinary course of business.
7.19. Negative Pledge Clauses. None of the Restricted
Companies nor any of their Subsidiaries shall enter into any agreement,
instrument, deed or lease which prohibits or limits the ability of the
Restricted Companies or any of their Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of their respective properties, assets or
revenues, whether now owned or hereafter acquired, or which requires the grant
of any collateral for such obligation if collateral is granted for another
obligation, except the following:
7.19.1. This Agreement and the other Credit Documents.
7.19.2. Covenants in documents creating Liens permitted by
Section 7.8 prohibiting further Liens on the assets encumbered thereby.
7.19.3. Covenants in the note purchase agreement relating to
the MONY Subordinated Debt prohibiting certain of the Restricted
Companies from granting Liens, but in any event permitting the Liens
provided by the Credit Documents.
7.19.4. Restrictions on transfer and pledges imposed in the
ordinary course of business pursuant to Franchises, pole agreements,
leases and other operating agreements.
8. Representations and Warranties. In order to induce the
Lenders to extend credit to the Borrower hereunder, each of the Restricted
Companies jointly and severally represents and warrants to each Lender that:
8.1. Organization and Business.
8.1.1. The Borrower. The Borrower is a duly organized and
validly existing limited liability company, in good standing under the laws of
the jurisdiction in which it is organized, with all limited liability company
power and authority necessary to (a) enter into and perform this Agreement and
each other Credit Document to which it is party, (b) borrow and guarantee the
Credit Obligations, (c)
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grant the Lenders security interests in any Credit Security owned by it to
secure the Credit Obligations and (d) own its properties and carry on the
business now conducted or proposed to be conducted by it. Certified copies of
the Charter and By-laws of the Borrower have been previously delivered to the
Administrative Agent and are correct and complete. Exhibit 8.1, as from time to
time hereafter supplemented in accordance with Sections 7.4.1 and 7.4.2, sets
forth (i) the jurisdiction of organization of the Borrower, (ii) the address of
the Borrower's principal executive office and chief place of business and (iii)
the number of authorized and issued shares and ownership of the Borrower.
8.1.2. Other Guarantors. Each Restricted Company (other than
the Borrower) is duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it is organized, with all organizational power
and authority necessary to (a) enter into and perform this Agreement and each
other Credit Document to which it is party, (b) guarantee the Credit
Obligations, (c) grant the Lenders a security interest in Credit Security owned
by such Restricted Company to secure the Credit Obligations and (d) own its
properties and carry on the business now conducted or proposed to be conducted
by it. Certified copies of the Charter and By-laws of each such Restricted
Company have been previously delivered to the Administrative Agent and are
correct and complete. Exhibit 8.1, as from time to time hereafter supplemented
in accordance with Sections 7.4.1 and 7.4.2, sets forth (i) the name and
jurisdiction of organization of each Restricted Company, (ii) the address of the
chief executive office and principal place of business of each Restricted
Company, and (iii) the number of authorized and issued Equity Interests and
ownership of each Restricted Company.
8.1.3. Qualification. Except as set forth on Exhibit 8.1 as
from time to time supplemented in accordance with Sections 7.4.1 and 7.4.2, each
Restricted Company is duly and legally qualified to do business as a foreign
limited partnership or other entity and is in good standing in each state or
jurisdiction in which such qualification is required and is duly authorized,
qualified and licensed under all laws, regulations, ordinances or orders of
public authorities, or otherwise, to carry on its business in the places and in
the manner in which it is conducted, except for failures to be so qualified,
authorized or licensed which would not in the aggregate result, or pose a
material risk of resulting, in any Material Adverse Change.
8.1.4. Capitalization. Except as set forth in Exhibit 8.1, as
from time to time supplemented in accordance with Sections 7.4.1 and 7.4.2, no
options, warrants, conversion rights, preemptive rights or other statutory or
contractual rights to purchase Equity Interests of any Restricted Company now
exist, nor has any Restricted Company authorized any such right, nor is any
Restricted Company obligated in any other manner to issue its Equity Interests.
8.2. Financial Statements and Other Information; Material
Agreements.
8.2.1. Financial Statements and Other Information. The
Restricted Companies have previously furnished to the Lenders copies of the
unaudited Consolidated balance sheet of the Borrower and its Subsidiaries, and
the audited Consolidated balance sheet of Holding, L.P. as at December 31, 1998
and the unaudited Consolidated statements of income and changes in equity and
cash flows of the Borrower and its Subsidiaries, and the audited Consolidated
statements of income and changes in equity and cash flows of Holding, L.P., for
the fiscal year then ended.
The audited Consolidated financial statements (including the
notes thereto) referred to above were prepared in accordance with GAAP and
fairly present the financial position of the Restricted Companies covered
thereby on a Consolidated basis at the respective dates thereof and the results
of their operations for the periods covered thereby. No Restricted Company has
any known contingent liability material to the Restricted Companies on a
Consolidated basis that is required to be reflected by GAAP
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which is not reflected in the sheet referred to above (or delivered pursuant to
Sections 7.4.1 or 7.4.2) or the notes thereto.
8.2.2. Material Agreements. The Restricted Companies have
previously furnished to the Administrative Agent correct and complete copies,
including all exhibits, schedules and amendments thereto, of the agreements set
forth in Exhibit 8.2.2, each as in effect on the date hereof (or, if such
agreement is not in effect on the date hereof, in the form of the most recent
draft as indicated in such Exhibit).
8.3. Changes in Condition. No Material Adverse Change has
occurred.
8.4. Title to Assets. The Restricted Companies have good and
valid title to all material assets necessary for the operations of their
business as now conducted by them and reflected in the most recent balance sheet
referred to in Section 8.2.1(a) (or the balance sheet most recently tarnished to
the Lenders pursuant to Sections 7.4.1 or 7.4.2), and to all material assets
necessary for the operations of such business acquired subsequent to the date of
such balance sheet, subject to no Liens except for those permitted by Section
7.8 and except for assets disposed of as permitted by Section 7.11.
8.5. Licenses, etc. The Restricted Companies have all patents,
patent applications, patent licenses, patent rights, trademarks, trademark
rights, trade names, trade name rights, copyrights, licenses, FCC Licenses,
Franchises, permits, authorizations and other rights including agreements with
public utilities and microwave transmission companies, pole use, access or
rental agreements and utility easements the lack, loss or termination of which
would result, or is reasonably likely to result, in a Material Adverse Change.
All of the foregoing are in full force and effect except as would not result in,
or be reasonably likely to result in, a Material Adverse Change, and each of the
Restricted Companies is in substantial compliance with the foregoing without any
known conflict with the valid rights of others which has resulted, or poses a
material risk of resulting, in any Material Adverse Change. No event has
occurred which permits, or after notice or lapse of time or both would permit,
the revocation or termination of any such license, Franchise or other right or
affect the rights of any of the Restricted Companies thereunder so as to result
in any Material Adverse Change. Except as would not result, or create a material
risk of resulting, in a Material Adverse Change:
8.5.1. Franchises; FCC Licenses. Each Franchise and FCC
License held by any Restricted Company is validly issued, and no
Restricted Company is in violation of the terms of any of its
Franchises or FCC Licenses.
8.5.2. FCC and Other Matters. Each Restricted Company has
filed all cable television registration statements and other filings
which are required to be filed by it under the Communications Act. Each
Restricted Company is in all material respects in compliance with the
Communications Act, including the rules and regulations of the FCC
relating to the carriage of television signals. The execution, delivery
and performance by the Restricted Companies of this Agreement does not
require the approval of the FCC and will not result in any violation of
the Communications Act. Each Restricted Company has recorded or
deposited with and paid to the federal Copyright Office and the
Register of Copyright all notices, statements of account, royalty fees
and other documents and instruments required under Title 17 of the
United States Code and all rules and regulations thereunder
(collectively and as from time to time in effect, the "Copyright Act"),
including such of the foregoing required by section 111(d) of the
Copyright Act by virtue of such Restricted Company having made any
secondary transmission subject to compulsory licensing pursuant to
section 111(c) of the Copyright Act.
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8.6. Litigation. No litigation, at law or in equity, or any
proceeding before any court, board or other governmental or administrative
agency or any arbitrator, including the litigation described in Exhibit 8.6, is
pending or, to the knowledge of the Restricted Companies, threatened which, in
either case, involves any material risk of any final judgment, order or
liability which, after giving effect to any applicable insurance, has resulted,
or poses a material risk of resulting, in any Material Adverse Change or which
seeks to enjoin (and poses a material risk of enjoining) the consummation, or
which (except for litigation which does not pose a material risk of impairing
the validity or effectiveness of the transactions contemplated by this Agreement
or any other Credit Document) questions the validity, of any of the transactions
contemplated by this Agreement or any other Credit Document. No judgment, decree
or order of any court, board or other governmental or administrative agency or
any arbitrator has been issued against or binds any Restricted Company which has
resulted, or poses a material risk of resulting, in any Material Adverse Change.
8.7. Tax Returns. Except as would not result, or create a
material risk of resulting, in a Material Adverse Change, each of the Restricted
Companies has filed all material tax and information returns which are required
to be filed by it and has paid, or made adequate provision for the payment of,
all taxes which have or may become due pursuant to such returns or to any
assessment received by it (except for taxes being disputed in good faith and for
which sufficient reserves have been established) and no Restricted Company knows
of any material additional assessments or any basis therefor and the Restricted
Companies reasonably believe that the charges, accruals and reserves on the
books of the Restricted Companies in respect of taxes or other governmental
charges are adequate.
8.8. Authorization and Enforceability. The Borrower and each
Guarantor has taken all organizational action required to execute, deliver and
perform this Agreement and each other Credit Document to which it is party. Each
of this Agreement and each other Credit Document constitutes the legal, valid
and binding obligation of each Restricted Company party thereto and is
enforceable against such Person in accordance with its terms.
8.9. No Legal Obstacle to Agreements. Neither the execution
and delivery of this Agreement or any other Credit Document, nor the making of
any borrowings hereunder, nor the guaranteeing of the Credit Obligations, nor
the securing of the Credit Obligations with any Credit Security, has constituted
or resulted in or will constitute or result in:
(a) any breach or termination of the provisions of any
material agreement, instrument, deed or lease to which any Holding
Company is a party or by which it is bound, or of the Charter or
By-laws of any Holding Company;
(b) the violation of any law, statute, judgment, decree or
governmental order, rule or regulation applicable to any Holding
Company;
(c) the creation under any agreement, instrument, deed or
lease of any Lien (other than Liens on Credit Security which secure the
Credit Obligations) upon any of the assets of any Holding Company; or
(d) any redemption, retirement or other repurchase obligation
of any Holding Company under any Charter or By-law or of any material
agreement, instrument, deed or lease.
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person that has not
been obtained or made is required to be
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obtained or made by any Holding Company in connection with the execution,
delivery and performance of this Agreement, the Notes or any other Credit
Document, the making of any borrowing hereunder, the guaranteeing of the Credit
Obligations or the securing of the Credit Obligations with the Credit Security.
8.10. Defaults. No Restricted Company is in default under any
provision of its Charter or By-laws or of this Agreement or any other Credit
Document. No Restricted Company is in default under any provision of any
agreement, instrument, deed or lease to which it is party or by which it or its
property is bound, or has violated any law, judgment, decree or governmental
order, rule or regulation, in each case so as to result, or creates a material
risk of resulting, in any Material Adverse Change.
8.11. Certain Business Representations.
8.11.1. Labor Relations. No dispute or controversy between any
Restricted Company and any of its employees has resulted, or is reasonably
likely to result, in any Material Adverse Change, and no Restricted Company
anticipates that its relationships with its unions or employees will result, or
are reasonably likely to result, in any Material Adverse Change. Each Restricted
Company is in compliance in all material respects with all federal and state
laws with respect to (a) non-discrimination in employment with which the failure
to comply, in the aggregate, has resulted in, or poses a material risk of
resulting in, a Material Adverse Change and (b) the payment of wages, the
failure of which to pay, in the aggregate, has resulted in, or creates a
material risk of resulting in, a Material Adverse Change.
8.11.2. Antitrust. Each of the Restricted Companies is in
compliance in all material respects with all federal and state antitrust laws
relating to its business and the geographic concentration of its business.
8.11.3. Consumer Protection. No Restricted Company is in
violation of any rule, regulation, order, or interpretation of any rule,
regulation or order of the Federal Trade Commission (including
truth-in-lending), with which the failure to comply, in the aggregate, has
resulted in, or poses a material risk of resulting in, a Material Adverse
Change.
8.11.4. Year 2000 Issues. Based on a review of the operations
of the Restricted Companies as they relate to the processing, storage and
retrieval of data, the Restricted Companies do not believe that a Material
Adverse Change is reasonably likely to occur as a result of computer software
and hardware that will not function with respect to periods commencing January
1, 2000 at least as effectively as with respect to periods ending on or prior to
December 31, 1999.
8.12. Environmental Regulations.
8.12.1. Environmental Compliance. Each of the Restricted
Companies is in compliance in all material respects with the Clean Air Act, the
Federal Water Pollution Control Act, the Marine Protection Research and
Sanctuaries Act, the Resource Conservation and Recovery Act, CERCLA and any
similar state or local statute or regulation in effect in any jurisdiction in
which any properties of any Restricted Company are located or where any of them
conducts its business, and with all applicable published rules and regulations
(and applicable standards and requirements) of the federal Environmental
Protection Agency and of any similar agencies in states or foreign countries in
which any Restricted Company conducts its business, other than any noncompliance
which in the aggregate has not resulted in, and could not reasonably be expected
to result in, a Material Adverse Change.
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8.12.2. Environmental Litigation. Except as would not result
in, or could not reasonably be expected to result in, a Material Adverse Change,
no suit, claim, action or proceeding of which any Restricted Company has been
given notice or otherwise to its knowledge is now pending before any court,
governmental agency or board or other forum, or to any Restricted Company's
knowledge, threatened by any Person (nor to any Restricted Company's knowledge,
does any factual basis exist therefor) for, and the Restricted Companies have
received no written correspondence from any federal, state or local governmental
authority with respect to any of the following that has resulted in, or creates
a material risk of resulting in, a Material Adverse Change:
(a) noncompliance in any material respect by any Restricted
Company with any such environmental law, rule or regulation;
(b) material liabilities for personal injury, wrongful death
or other tortious conduct relating to materials, commodities or
products used, generated, sold, transferred or manufactured by any
Restricted Company (including products made of, containing or
incorporating asbestos, lead or other hazardous materials, commodities
or toxic substances); or
(c) the release into the environment by any Restricted Company
of any material amount of Hazardous Material generated by any
Restricted Company whether or not occurring at or on a site owned,
leased or operated by any Restricted Company.
8.12.3. Hazardous Material. The Restricted Companies have
provided to the Lenders a written list as of the Initial Closing Date of all
waste disposal or dump sites at which a material amount of Hazardous Material
generated by any Restricted Company has been disposed of directly by the
Restricted Companies and all independent contractors to whom the Restricted
Companies have delivered Hazardous Material, or to any Restricted Company's
knowledge, finally came to be located, and indicates all such sites which are or
have been included (including as a potential or suspect site) in any published
federal, state or local "superfund" or other list of hazardous or toxic waste
sites. Any waste disposal or dump sites at which Hazardous Material generated by
any Restricted Company has been disposed of directly by the Restricted Companies
and all independent contractors to whom the Restricted Companies have delivered
Hazardous Material, or to any Restricted Company's knowledge, finally came to be
located, has not resulted in, and could not reasonably be expected to result in,
a Material Adverse Change.
8.12.4. Environmental Condition of Properties. Except as would
not result in, or could not reasonably be expected to result in, a Material
Adverse Change, none of the properties owned or, to its knowledge, leased by any
Restricted Company has been used as a treatment, storage or disposal site. No
Hazardous Material is present in any real property currently or formerly owned
or operated by any Restricted Company except that which would not reasonably be
expected to result in a Material Adverse Change.
8.13. Pension Plans. Each Plan is in material compliance with
the applicable provisions of ERISA and the Code. No Plan is a Multiemployer Plan
or a "defined benefit plan" (as defined in ERISA). Each ERISA Group Person has
met all of the funding standards applicable to all Plans, and no condition
exists which would permit the institution of proceedings to terminate any Plan
under section 4042 of ERISA.
8.14. Government Regulation; Margin Stock.
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8.14.1. Government Regulation. No Restricted Company, nor any
Person controlling any Restricted Company or under common control with any
Restricted Company is subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act, the Investment Company Act, the
Interstate Commerce Act or any similar federal or state statutes. Each Lender is
aware that various aspects of the business conducted by Restricted Companies,
including the nature of the services required to be furnished and the rates
which may be charged therefor, are subject to regulation by federal, state and
local governmental authorities.
8.14.2. Margin Stock. The Restricted Companies do not own
Margin Stock having a book value exceeding 20% of the Consolidated assets of the
Restricted Companies determined in accordance with GAAP.
8.15. Disclosure. Neither this Agreement nor any other Credit
Document to be furnished to the Lenders by or on behalf of any Restricted
Company in connection with the transactions contemplated hereby or by such
Credit Document contains any untrue statement of material fact or omits to state
a material fact necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances under which they were made.
9. Defaults.
9.1. Events of Default. The following events are referred to
as "Events of Default":
9.1.1. Non-Payment. The Borrower shall fail to make any
payment in respect of: (a) interest or any fee on or in respect of any of the
Credit Obligations owed by it as the same shall become due and payable, and such
failure shall continue for a period of five days, or (b) principal of any of the
Credit Obligations owed by it as the same shall become due, whether at maturity
or by acceleration or otherwise.
9.1.2. Breach of Designated Covenants. Any Restricted Company
shall fail to perform or observe any of the provisions of Sections 7.5 through
7.12, 7.14, 7.17, 7.18 or 7.19.
9.1.3. Breach of Other Covenants. Any Restricted Company or
any of its Affiliates party to any Credit Document shall fail to perform or
observe any other covenant, agreement or provision to be performed or observed
by it under this Agreement or any other Credit Document, and such failure shall
not be rectified or cured to the reasonable satisfaction of the Required Lenders
within 30 days after notice thereof by the Administrative Agent to the Company.
9.1.4. Misrepresentation. Any representation or warranty of or
with respect to any Restricted Company or any of its Affiliates party to any
Credit Document made to the Lenders in, pursuant to or in connection with this
Agreement or any other Credit Document or in any financial statement, report,
notice, mortgage, assignment or certificate delivered to the Agent or any of the
Lenders by any Restricted Company or any other Obligor in connection herewith or
therewith, shall be materially false or misleading on the date as of which it
was made.
9.1.5. Cross-Default, etc.
(a) Holding, L.P., New Falcon I or any Restricted Company
shall fail to make any payment when due (after giving effect to any
applicable grace periods) in respect of any Material Financing Debt
(including, in any event, the New Falcon I Debentures and the MONY
Subordinated Debt);
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(b) Holding, L.P., New Falcon I or any Restricted Company
shall fail to perform or observe the terms of any agreement relating to
any Material Financing Debt, and such failure shall continue, without
having been duly cured, waived or consented to, beyond the period of
grace, if any, specified in such agreement, and such failure shall
permit the acceleration of such Material Financing Debt;
(c) all or any part of any Material Financing Debt of Holding,
L.P., New Falcon I or any Restricted Company shall be accelerated or
become due or payable prior to its stated maturity for any reason
whatsoever (other than voluntary prepayments or any mandatory
prepayment not resulting from a Default thereof);
(d) any Lien on any property of Holding, L.P., New Falcon I or
any Restricted Company securing any Material Financing Debt shall be
enforced by foreclosure or similar action; or
(e) any holder of any Material Financing Debt shall exercise
any right of rescission with respect to the issuance thereof, or put or
repurchase rights against any Obligor with respect to such Material
Financing Debt (other than any such rights that may be satisfied with
"payment in kind" notes or other similar securities).
9.1.6. Change of Control, etc. Any of the following events
shall occur:
(a) the ▇▇▇▇ ▇▇▇▇▇ Group shall cease to have the power,
directly or indirectly, to vote or direct the voting of Equity
Interests having at least 51% (determined on a fully diluted basis) of
the ordinary voting power for the management of the Borrower;
(b) the ▇▇▇▇ ▇▇▇▇▇ Group shall cease to own of record and
beneficially, directly or indirectly, Equity Interests of the Borrower
representing at least 51% (determined on a fully diluted basis) of the
economic interests therein (provided that such percentage shall be
reduced to 25% after the consummation of an Initial Public Offering);
(c) a Specified Change of Control shall occur; or
(d) less than 100% of the outstanding Equity Interests of the
Borrower shall be pledged to the Administrative Agent pursuant to the
Pledge and Subordination Agreement or otherwise as security for the
Credit Obligations.
9.1.7. Enforceability, etc. Any Credit Document shall cease,
for any reason (other than the scheduled or other agreed termination thereof in
accordance with its terms), to be in full force and effect; or any Restricted
Company or any of its Affiliates party thereto shall so assert in a judicial or
similar proceeding; or the security interests created by this Agreement and the
other Credit Documents shall cease to be enforceable and of the same effect and
priority purported to be created hereby, except to the extent expressly agreed
by the Required Lenders.
9.1.8. Judgments, etc. A final judgment (a) which with other
outstanding final judgments against the Restricted Companies, exceeds an
aggregate of $10,000,000 (in excess of applicable insurance coverage) shall be
rendered against any Restricted Company or its Affiliates party to any Credit
Document, or (b) which grants injunctive relief that results in, or poses a
material risk of resulting in, a Material Adverse Change, and if, within 30 days
after entry thereof, such judgment shall
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not have been discharged or execution thereof stayed pending appeal, or if,
within 30 days after the expiration of any such stay, such judgment shall not
have been discharged.
9.1.9. Franchise Revocation, etc. Except as would not result
in, or be reasonably likely to result in, a Material Adverse Change, Franchises
covering a number of Subscribers greater than 25% of the Subscriber Measurement
Base shall have been revoked, or terminated with a notice from the applicable
franchising authority that such Franchises will not be renewed. As used in this
Section 9.1.9, "Subscriber Measurement Base" refers to, at any date of
determination, the total number of Subscribers of the Restricted Companies on
the Restatement Effective Date adjusted upwards or downwards, as applicable, to
reflect any additions to or subtractions from such number after the Restatement
Effective Date and prior to such date of determination, other than as a result
of the circumstances described in this Section.
9.1.10. ERISA. (a) ERISA Group Persons shall fail to pay when
due amounts (other than amounts being contested in good faith through
appropriate proceedings) for which they shall have become liable under Title IV
of ERISA to pay to the PBGC or to a Plan, (b) the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee to be
appointed to administer any Plan or a proceeding shall be instituted by a
fiduciary of any Plan against any ERISA Group Person to enforce sections 515 or
4219(c)(5) of ERISA and such proceeding shall not have been dismissed within 30
days thereafter, or (c) a condition shall exist which would require the PBGC to
obtain a decree adjudicating that any Plan must be terminated; and in each case
in clauses (a) through (c) above, such event or condition, together with all
other such events or conditions, if any, could, in the sole judgment of the
Required Lenders, reasonably be expected to result in a Material Adverse Change.
9.1.11. Bankruptcy, etc. Any Restricted Company, New Falcon I,
Holding, L. P., Holding, Inc. or any other Obligor shall:
(a) commence a voluntary case under the Bankruptcy Code or
authorize, by appropriate proceedings of its board of directors or
other governing body, the commencement of such a voluntary case;
(b) have filed against it a petition commencing an involuntary
case under the Bankruptcy Code which shall not have been dismissed
within 60 days after the date on which such petition is filed; or file
an answer or other pleading within such 60-day period admitting or
failing to deny the material allegations of such a petition or seeking,
consenting to or acquiescing in the relief therein provided;
(c) have entered against it an order for relief in any
involuntary case commenced under the Bankruptcy Code;
(d) seek relief as a debtor under any applicable law, other
than the Bankruptcy Code of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or consent to or acquiesce in
such relief;
(e) have altered against it an order by a court of competent
jurisdiction (i) finding it to be bankrupt or insolvent, (ii) ordering
or approving its liquidation, reorganization or ally modification or
alteration of the rights of its creditors or (iii) assuming custody of,
or appointing a receiver or other custodian for, all or a substantial
portion of its property; or
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(f) make an assignment for the benefit of, or enter into a
composition with, its creditors, or appoint, or consent to the
appointment of, or suffer to exist a receiver or other custodian for,
all or a substantial portion of its property.
9.2. Certain Actions Following an Event of Default. If any one
or more Events of Default shall occur and be continuing, then in each and every
such case:
9.2.1. No Obligation to Extend Credit. The Administrative
Agent may (and upon written request of such Lenders as own a majority of the
Percentage Interests in the Revolving Loan shall) suspend or terminate the
obligations of the Revolving Lenders to make any further extensions of credit
under the Credit Documents by furnishing notice thereof to the Borrower. The
Administrative Agent may (and upon written request of such Lenders as own a
majority of the Percentage Interests in the Supplemental Restatement Revolving
Loan shall) suspend or terminate the obligations of the Supplemental Restatement
Revolving Lenders to make any further extensions of credit under the Credit
Documents by furnishing notice thereof to the Borrower.
9.2.2. Specific Performance; Exercise of Rights. The
Administrative Agent may (and upon written request of the Required Lenders
shall) proceed to protect and enforce the Lenders' rights by suit in equity,
action at law and/or other appropriate proceeding, either for specific
performance of any covenant or condition contained in this Agreement or any
other Credit Document or in any instrument or assignment delivered to the
Lenders pursuant to this Agreement or any other Credit Document, or in aid of
the exercise of any power granted in this Agreement or any other Credit Document
or any such instrument or assignment.
9.2.3. Acceleration. The Administrative Agent on behalf of the
Lenders may (and upon written request of the Required Lenders shall) by notice
in writing to the Borrower declare all or any part of the unpaid balance of the
Credit Obligations then outstanding to be immediately due and payable, and
thereupon such unpaid balance or part thereof shall become so due and payable
without presentation, protest or further demand or notice of any kind, all of
which are hereby expressly waived; provided, however, that if a Bankruptcy
Default shall have occurred, the unpaid balance of the Credit Obligations shall
automatically become immediately due and payable.
9.2.4. Enforcement of Payment; Credit Security; Setoff. The
Administrative Agent may (and upon written request of the Required Lenders
shall) proceed to enforce payment of the Credit Obligations in such manner as it
may elect (or have been instructed by the Required Lenders) and to realize upon
any and all rights in any Credit Security. The Lenders may offset and apply
toward the payment of the Credit Obligations (and/or toward the curing of any
Event of Default) any Indebtedness from the Lenders to the respective Obligors,
including any Indebtedness represented by deposits in any account maintained
with the Lenders, regardless of the adequacy of any security for the Credit
Obligations. The Lenders shall have no duty to determine the adequacy of any
such security in connection with any such offset.
9.2.5. Cumulative Remedies. To the extent not prohibited by
applicable law which cannot be waived, all of the Lenders' rights hereunder and
under each other Credit Document shall be cumulative.
9.3. Annulment of Defaults. Any Default or Event of Default
shall be deemed to exist and to be continuing for any purpose of this Agreement
until the Required Lenders or the Administrative Agent (with the consent of the
Required Lenders) shall have waived such Default or Event of Default in writing,
stated in writing that the same has been cured to such Lenders' reasonable
satisfaction or entered
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into an amendment to this Agreement which by its express terms cures such
Default or Event of Default or until such Default or Event of Default is
actually cured. No such action by the Lenders or the Administrative Agent shall
extend to or affect any subsequent Default or Event of Default or impair any
rights of the Lenders upon the occurrence thereof. The making of any extension
of credit during the existence of any Default or Event of Default shall not
constitute a waiver thereof.
9.4. Waivers. Each of the Restricted Companies waives to the
extent not prohibited by the provisions of applicable law that cannot be waived:
(a) all presentments, demands for performance, notices of
nonperformance (except to the extent required by the provisions of this
Agreement or any other Credit Document), protests, notices of protest
and notices of dishonor;
(b) any requirement of diligence or promptness on the part of
any Lender in the enforcement of its rights under this Agreement, the
Notes or any other Credit Document;
(c) any and all notices (other than notices required by any
other provision of this Agreement) of every kind and description which
may be required to be given by any statute or rule of law; and
(d) any defense (other than indefeasible payment in full or
dispute of facts) which it may now or hereafter have with respect to
its liability under this Agreement, the Notes or any other Credit
Document or with respect to the Credit Obligations.
10. Expenses; Indemnity.
10.1. Expenses. Whether or not the transactions contemplated
hereby shall be consummated, the Obligors jointly and severally will pay:
(a) all reasonable out-of-pocket expenses of the
Administrative Agent (including reasonable fees and disbursements of
the special counsel to the Administrative Agent) in connection with the
preparation and duplication of this Agreement, each other Credit
Document, examinations by, and reports of, commercial financial
examiners selected by the Administrative Agent, the transactions
contemplated hereby and thereby and operations and amendments hereunder
and thereunder, subject to the acceptance of the Obligors, which
acceptance shall not be unreasonably withheld;
(b) all recording and filing fees and transfer and documental
stamp and similar taxes at any time payable in respect of this
Agreement, any other Credit Document, any Credit Security or the
incurrence of the Credit Obligations; and
(c) to the extent not prohibited by applicable law that cannot
be waived, all other reasonable out-of-pocket costs and expenses
(including a reasonable allowance for the hourly cost of attorneys
employed by any of the Lenders on a salaried basis and any special
counsel to the Lenders) incurred by the Lenders or the holder of any
Credit Obligation in connection with the enforcement of any rights
hereunder or under any other Credit Document, including such reasonable
costs and expenses incurred after the occurrence of an Event of Default
(i) in enforcing any Credit Obligation or in foreclosing against the
Credit Security, or exercising or enforcing any other right or remedy
available by reason of such Event of Default; (ii) in
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connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement or any other Credit Document
in the nature of a workout or in any insolvency or bankruptcy
proceeding; (iii) in commencing, defending or intervening in any
litigation or in filing a petition, complaint, answer, motion or other
pleadings in any legal proceeding; (iv) in taking any other action in
or with respect to any suit or proceeding (bankruptcy or otherwise);
and (v) in protecting, preserving, collecting, leasing, selling, taking
possession of or liquidating any of the Credit Security; provided,
however, that the foregoing indemnity in this paragraph (c) shall not
apply (A) to litigation commenced by the Borrower against the Lenders
which seeks enforcement of any of the rights of the Borrower hereunder
or under any other Credit Document and is determined adversely to the
Lenders in a final nonappealable judgment and (B) to the extent such
claims, damages, liabilities and expenses result from a Lender's gross
negligence or willful misconduct.
10.2. General Indemnity. The Obligors will, jointly and
severally, indemnify the Lenders and hold them harmless from any claims,
damages, liabilities, losses and reasonable expenses (including reasonable fees
and disbursements of counsel with whom any Indemnified Party may consult in
connection therewith and all reasonable expenses of litigation or preparation
therefor) resulting from the violation by the Borrower of Section 2.5. The
Obligors will also, jointly and severally, indemnify each Lender, each of the
Lenders' directors, officers and employees, and each Person, if any, who
controls any Lender (each Lender and each of such directors, officers, employees
and control Persons is referred to as an "Indemnified Party") and hold each of
them harmless from and against any and all claims, damages, liabilities, losses
and reasonable expenses (including reasonable fees and disbursements of counsel
with whom any Indemnified Party may consult in connection therewith and all
reasonable expenses of litigation or preparation therefor) which any Indemnified
Party may incur or which may be asserted against any Indemnified Party in
connection with (a) the Indemnified Party's compliance with or contest of any
subpoena or other process issued against it in any proceeding involving any
Restricted Company or Affiliates, (b) any litigation or investigation involving
the Restricted Companies or their Affiliates, or any officer, director or
employee thereof, (c) the existence or exercise of any security rights with
respect to the Credit Security in accordance with the Credit Documents or (d)
this Agreement, any other Credit Document or any transactions contemplated
hereby or thereby, other than (i) litigation commenced by the Borrower against
the Lenders which seeks enforcement of any of the rights of the Borrower
hereunder or under any other Credit Document and is determined adversely to the
Lenders in a final nonappealable judgment and (ii) to the extent such claims,
damages, liabilities, losses and expenses result from a Lender's gross
negligence or willful misconduct.
11. Operations.
11.1. Interests in Credits. The Percentage Interest of each
Lender in the Loan and each Lender's related Commitments shall be computed based
on the maximum principal amount for each lender as set forth in the Register, as
from time to time in effect.
11.2. Agents' Authority to Act, etc. Each of the Lenders
appoints and authorizes the Agents (other than the Co-Agents) to act for the
Lenders as the Lenders' Agents in connection with the transactions contemplated
by this Agreement and the other Credit Documents or the terms set forth herein.
In acting hereunder, each Agent (other than the Co-Agents) is acting for its own
account to the extent of its Percentage Interest and for the account of each
other Lender to the extent of the Lenders' respective Percentage Interests, and
all action in connection with the enforcement of, or the exercise of any
remedies (other than the Lenders' rights of set-off as provided in Section 9.2.4
or in any Credit Document) in respect of the Credit Obligations and Credit
Documents shall be taken by the
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Administrative Agent. The Co-Agents shall have no duties or responsibilities
under this Agreement or the other Credit Documents except to the extent
subsequently expressly agreed in writing by the Co-Agents and the Borrower.
11.3. Borrower to Pay Agent, etc. The Borrower and each
Guarantor shall be fully protected in making all payments in respect of the
Credit Obligations to the Administrative Agent, in relying upon consents,
modifications and amendments executed by the Administrative Agent purportedly on
the Lenders' behalf, and in dealing with the Agents as herein provided. The
Administrative Agent shall charge the account of the Borrower, on the dates when
the amounts thereof become due and payable, with the amounts of the principal of
and interest on the Loan, commitment fees and all other fees and amounts owing
under any Credit Document. All payments of any Credit Obligation shall be made
in United States Funds.
11.4. Lender Operations for Advances, etc.
11.4.1. Advances. On each Closing Date, each Lender shall
advance to the Administrative Agent in immediately available funds such Lender's
Percentage Interest in the portion of the Loan advanced on such Closing Date
prior to noon (New York time). If such funds are not received at such time, but
all the conditions set forth in Section 5 have been satisfied, each Lender
authorizes and requests the Administrative Agent to advance for the Lender's
account, pursuant to the terms hereof, the Lender's respective Percentage
Interest in such portion of the Loan and agrees to reimburse the Administrative
Agent in immediately available funds for the amount thereof prior to 2:00 p.m.
(New York time) on the day any portion of the Loan is advanced hereunder;
provided, however, that the Administrative Agent is not authorized to make any
such advance for the account of any Lender who has previously notified the
Administrative Agent in writing that such Lender will not be performing its
obligations to make further advances hereunder.
11.4.2. Administrative Agent to Allocate Payments, etc. All
payments of principal and interest in respect of the extensions of credit made
pursuant to this Agreement, commitment fees and other fees under this Agreement
shall, as a matter of convenience, be made by the Borrower and the Guarantors to
the Administrative Agent in immediately available funds. The share of each
Lender shall be credited to such Lender by the Administrative Agent in
immediately available funds in such manner that the principal amount of the
Credit Obligations to be paid shall be paid proportionately in accordance with
the Lenders' respective Percentage Interests in such Credit Obligations. Under
no circumstances shall any Lender be required to produce or present its Notes as
evidence of its interests in the Credit Obligations in any action or proceeding
relating to the Credit Obligations.
11.4.3. Delinquent Lenders; Nonperforming Lenders. In the
event that any Lender fails to reimburse the Administrative Agent pursuant to
Section 11.4.1 for the Percentage Interest of such Lender (a "Delinquent
Lender") in any credit advanced by the Administrative Agent pursuant hereto,
overdue amounts (the "Delinquent Payment") due from the Delinquent Lender to the
Administrative Agent shall bear interest, payable by the Delinquent Lender on
demand, at a per annum rate equal to (a) the Federal Funds Rate for the first
three days overdue and (b) the sum of 2% plus the Federal Funds Rate for any
longer period. Such interest shall be payable to the Administrative Agent for
its own account for the period commending on the date the Delinquent Payment was
due and ending on the date the Delinquent Lender reimburses the Administrative
Agent on account of the Delinquent Payment (to the extent not paid by a
Restricted Company as provided below) and the accrued interest thereon (the
"Delinquency Period"), whether pursuant to the assignments referred to below or
otherwise. Within five Banking Days after the request by the Administrative
Agent, the Borrower will pay to the Administrative
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Agent the principal (but not the interest) portion of the Delinquent Payment.
During the Delinquency Period, in order to make reimbursements for the
Delinquent Payment and accrued interest thereon, the Delinquent Lender shall be
deemed to have assigned to the Administrative Agent all payments made by the
Borrower under Section 4 which would have thereafter otherwise been payable
under the Credit Documents to the Delinquent Lender. During any other period in
which any Lender is not performing its obligations to extend credit under
Section 2 (a "Nonperforming Lender"), the Nonperforming Lender shall be deemed
to have assigned to each Lender that is not a Nonperforming Lender (a
"Performing Lender") all payments made by the Borrower under Section 4 which
would have thereafter otherwise been payable under the Credit Documents to the
Nonperforming Lender, and the Administrative Agent shall credit a portion of
such payments to each Performing Lender in an amount equal to the Percentage
Interest of such Performing Lender divided by one minus the Percentage Interest
of the Nonperforming Lender until the respective portions of the Loan owed to
all the Lenders are the same as the Percentage Interests of the Lenders
immediately prior to the failure of the Nonperforming Lender to perform its
obligations under Section 2. The foregoing provisions shall be in addition to
any other remedies the Administrative Agent, the Performing Lenders or the
Borrower may have under law or equity against the Delinquent Lender as a result
of the Delinquent Payment or against the Nonperforming Lender as a result of its
failure to perform its obligations under Section 2.
11.5. Sharing of Payments, etc. Each Lender agrees that (a) if
by exercising any right of set-off or counterclaim or otherwise, it shall
receive payment of a proportion of the aggregate amount of principal and
interest due with respect to its Percentage Interest in the Loan which is
greater than the proportion received by any other Lender in respect of the
aggregate amount of principal and interest due with respect to the Percentage
Interest in the Loan of such other Lender and (b) if such inequality shall
continue for more than 10 days, the Lender receiving such proportionately
greater payment shag purchase participations in the Percentage Interests in the
Loan held by the other Lenders, and such other adjustments shall be made from
time to time (including rescission of such purchases of participations in the
event the unequal payment originally received is recovered from such Lender
through bankruptcy proceedings or otherwise), as may be required so that all
such payments of principal and interest with respect to the Loan held by the
Lenders shall be shared by the Lenders pro rata in accordance with their
respective Percentage Interests, provided, however, that this Section 11.5 shall
not impair the right of any Lender to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of Indebtedness of any Obligor other than such Obligor's Indebtedness
with respect to the Loan. Each Obligor agrees, to the fullest extent permitted
by applicable law, that any Credit Participant and any Lender purchasing a
participation from another Lender pursuant to this Section 11.5 may exercise all
rights of payment (including the right of set-off), and shall be obligated to
share payments under this Section 11.5, with respect to its participation as
fully as if such Credit Participant or such Lender were the direct creditor of
the Obligors and a Lender hereunder in the amount of such participation.
11.6. Agent's Resignation or Removal. Any Agent may resign at
any time by giving at least 60 days' prior written notice of its intention to do
so to each of the other Lenders and the Borrower pending the appointment by the
Borrower of a successor Agent reasonably satisfactory to the Required Lenders.
If in the event of the resignation of any Agent, no successor Agent shall have
been so appointed and shall have accepted such appointment within 45 days after
the retiring Agent's giving of such notice of resignation, then the retiring
Agent may with the consent of the Borrower, which shall not be unreasonably
withheld, appoint a successor Agent which shall be a bank or a trust company
organized, or having a branch that is licensed, under the laws of the United
States of America or any state thereof and having a combined capital, surplus
and undivided profit of at least $100,000,000; provided, however, that any
successor Agent appointed under this sentence may be removed upon the written
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request of the Required Lenders, which request shall also appoint a successor
Agent reasonably satisfactory to the Borrower. Any Agent may be removed upon the
written request of such Lenders as own at least two thirds of the Percentage
Interests, which request shall also appoint a successor Agent reasonably
satisfactory to the Borrower. Upon the appointment of a new Agent hereunder, the
term "Agent" shall for all purposes of this Agreement thereafter include such
applicable successor Agent. Upon the resignation or removal of the Documentation
Agent, the Administrative Agent shall take over the duties of the Documentation
Agent. In the event of the resignation or removal of any Agent that is not a
Specified Agent, no successor need be appointed. After any retiring Agent's
resignation hereunder as Agent, or the removal hereunder of any Agent, the
provisions of this Agreement shall continue to inure to the benefit of such
Agent as to any actions taken or omitted to be taken by it while it was an Agent
under this Agreement.
11.7. Concerning the Agents.
11.7.1. Action in Good Faith, etc. Each Agent and its
officers, directors, employees and agents shall be under no liability to any of
the Lenders or to any future holder of any interest in the Credit Obligations
for any action or failure to act taken or suffered in good faith, and any action
or failure to act in accordance with an opinion of its counsel shall
conclusively be deemed to be in good faith; provided, however, that the
foregoing shall not extend to actions or omissions which are taken by an Agent
with gross negligence or willful misconduct. Each Agent shall in all cases be
entitled to rely, and shall be fully protected in relying, on instructions given
to the Agent by the required holders of Credit Obligations as provided in this
Agreement.
11.7.2. No Implied Duties, etc. Each Agent shall have and may
exercise such powers as are specifically delegated to the Agent under this
Agreement or any other Credit Document together with all other powers incidental
thereto. Each Agent shall have no implied duties to any Person or any obligation
to take any action under this Agreement or any other Credit Document except for
action specifically provided for in this Agreement or any other Credit Document
to be taken by such Agent. Before taking any action under this Agreement or any
other Credit Document, each Agent may request an appropriate specific indemnity
satisfactory to it from each Lender in addition to the general indemnity
provided for in Section 11.10. Until the Agent has received such specific
indemnity, Agent shall not be obligated to take (although it may in its sole
discretion take) any such action under this Agreement or any other Credit
Document. Each Lender confirms that the Agents do not have a fiduciary
relationship to it under the Credit Documents. Each of the Restricted Companies
confirms that neither of the Agents nor any other Lender has a fiduciary
relationship to it under the Credit Documents.
11.7.3. Validity, etc. Subject to Section 11.7.1, the Agents
shall not be responsible to any Lender or any future holder of any interest in
the Credit Obligations (a) for the legality, validity, enforceability or
effectiveness of this Agreement or any other Credit Document, (b) for any
recitals, reports, representations, warranties or statements contained in or
made in connection with this Agreement or any other Credit Document, (c) for the
existence or value of any assets included in any security for the Credit
Obligations, (d) for the perfection or effectiveness of any Lien purported to be
included in such security or (e) for the specification or failure to specify any
particular assets to be included in such security.
11.7.4. Compliance. The Agents shall not be obligated to
ascertain or inquire as to the performance or observance of any of the terms of
this Agreement or any other Credit Document; and in connection with any
extension of credit under this Agreement or any other Credit Document, the
Agents shall be fully protected in relying on a certificate of the Borrower or
any Guarantor as to the fulfillment
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by the Borrower of any conditions to such extension of credit.
11.7.5. Employment of Agents and Counsel. The Agents may
execute any of their duties as Agent under this Agreement or any other Credit
Document by or through employees, agents and attorney-in-fact and shall not be
responsible to any of the Lenders, any Restricted Company or any other Obligor
(except as to money or securities received by the Agent or the Agent's
authorized agents) for the default or misconduct of any such agents or
attorneys-in-fact selected by the Agent with reasonable care. The Agents shall
be entitled to advice of counsel concerning all matters pertaining to the agency
hereby created and its duties hereunder or under any other Credit Document.
11.7.6. Reliance on Documents and Counsel. Each Agent shall be
entitled to rely, and shall be fully protected In relying, upon any affidavit,
certificate, cablegram, consent, instrument, letter, notice, order, document,
statement, telecopy, telegram, telex or teletype message or writing reasonably
believed in good faith by the Agent to be genuine and correct and to have been
signed, sent or made by the Person in question, including any telephonic or oral
statement made by such Person, and, with respect to legal matters, upon the
opinion of counsel selected by the Agent.
11.7.7. Agent's Reimbursement. Each of the Lenders severally
agrees to reimburse the Agents in the amount of such Lender's Percentage
Interest, for any reasonable expenses not reimbursed by the Borrower or the
other Guarantors (without limiting the obligation of the Borrower or the other
Guarantors to make such reimbursement): (a) for which the Agents are entitled to
reimbursement by the Borrower or the other Guarantors under this Agreement or
any other Credit Document, and (b) after the occurrence of a Default, for any
other reasonable expenses incurred by the Agents on the Lenders' behalf in
connection with the enforcement of the Lenders' rights under this Agreement or
any other Credit Document; provided that the Agents shall not be reimbursed for
any such expenses arising as a result of their gross negligence or willful
misconduct.
11.8. Rights as a Lender. With respect to any credit extended
by it hereunder, each of BankBoston, Toronto Dominion and the other financial
institutions serving as Agents hereunder shall have the same rights, obligations
and powers hereunder as any other Lender and may exercise such rights and powers
as though it were not an Agent, and unless the context otherwise specifies, each
of BankBoston, Toronto Dominion and such other financial institutions shall be
treated in its individual capacity as though it were not an Agent hereunder.
Without limiting the generality of the foregoing, the Percentage Interest of
BankBoston, Toronto Dominion and such other financial institutions shall be
included in any computations of Percentage Interests. BankBoston, Toronto
Dominion, such other financial institutions and their Affiliates may accept
deposits from, lend money to, act as trustee for and generally engage in any
kind of banking or trust business with the Restricted Companies or any Affiliate
Of any of them and any Person who may do business with or own an Equity Interest
in the Restricted Companies or any Affiliate of any of them, all as if
BankBoston, Toronto Dominion or such other financial institutions were not an
Agent and without any duty to account therefor to the other Lenders.
11.9. Independent Credit Decision. Each of the Lenders
acknowledges that it has independently and without reliance upon the Agents,
based on the financial statements and other documents referred to in Section
8.2, on the other representations and warranties contained herein and on such
other information with respect to the Restricted Companies as such Lender deemed
appropriate, made such Lender's own credit analysis and decision to enter into
this Agreement and to make the extensions of credit provided for hereunder. Each
Lender represents to the Agents that such Lender will continue to make its own
independent credit and other decisions in taking or not taking action under this
Agreement or any other Credit Document. Each Lender expressly acknowledges that
neither the Agents
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nor any of their officers, directors, employees, agents, attorneys-in-fact or
Affiliates has made any representations or warranties to such Lender, and no act
by the Agents taken under this Agreement or any other Credit Document; including
any review of the affairs of the Restricted Companies, shall be deemed to
constitute any representation or warranty by the Agents. Except for notices,
reports and other documents expressly required to be furnished to each Lender by
the Agents under this Agreement or any other Credit Document, the Agents shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition,
financial or otherwise, or credit worthiness of any Restricted Company which may
come into the possession of the Agents or any of their officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
11.10. Indemnification. The holders of the Credit Obligations
agree to indemnify the Agents (to the extent not reimbursed by the Obligors and
without limiting the obligation of any of the Obligors to do so), pro rata
according to their respective aggregate Percentage Interests, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits and reasonable costs, expenses or disbursements of any kind
whatsoever which may at any time be imposed on, incurred by or asserted against
the Agents in their capacity as Agents hereunder relating to or arising out of
this Agreement, any other Credit Document, the transactions contemplated hereby
or thereby, or any action taken or omitted by the Agents in connection with any
of the foregoing; provided, however, that the foregoing shall not extend to (a)
litigation commenced by the holders of the Credit Obligations against the Agents
which seeks enforcement of any of the rights of such holders hereunder or under
any other Credit Document and is determined adversely to the Agents in a final
nonappealable judgment or (b) actions or omissions which are taken by the Agents
with gross negligence or willful misconduct.
12. Successors and Assigns; Lender Assignments and
Participations. Any reference in this Agreement to any of the parties hereto
shall be deemed to include the successors and assigns of such party, and all
covenants and agreements by or on behalf of the Borrower, the other Guarantors,
the Agents or the Lenders that are contained in this Agreement or any other
Credit Document shall bind and inure to the benefit of their respective
successors and assigns; provided, however, that (a) the Restricted Companies may
not assign their rights or obligations under this Agreement except for mergers
or liquidations permitted by Section 7.11.2, and (b) the Lenders shall be not
entitled to assign their respective Percentage Interests in the Loan hereunder
except as set forth below in this Section 12.
12.1. Assignments by Lenders.
12.1.1. Assignees and Assignment Procedures. Each Lender may
(a) without the consent of the Administrative Agent or the Borrower if the
proposed assignee is already a Lender hereunder, a Related Fund, Affiliate or a
Subsidiary of the same corporate parent of which the assigning Lender or any
other Lender is a Subsidiary, or (b) otherwise with the consents of the
Administrative Agent and (so long as no Event of Default has occurred and is
continuing) the Borrower (which consents will not be unreasonably withheld) in
compliance with applicable laws in connection with such assignment, assign to
one or more commercial banks or other financial institutions or other entity
reasonably acceptable to the Borrower (each, an "Assignee") all or a portion of
its interests, rights and obligations under this Agreement and the other Credit
Documents, including all or a portion of its Commitment, the portion of the Loan
at the time owing to it and the Notes held by it; provided, however, that:
(i) the aggregate amount of the Commitment of the assigning Lender
subject to each assignment described in clause (b) above (determined as
of the date the Assignment and Acceptance with respect to such
assignment is delivered to the Administrative Agents shall be
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not less than $5,000,000 and in increments of $1,000,000 (or, if
smaller, the entire Commitment of such assigning Lender); and
(ii) the parties to each such assignment shall execute and deliver
to the Administrative Agent an Assignment and Acceptance (the
"Assignment and Acceptance") substantially in the form of Exhibit
12.1.1, together with the Note or Notes subject to such assignment and,
in the case of an assignment described in clause (b) above, a
processing and recordation fee of $3,500.
Upon acceptance and recording pursuant to Section 12.1.4, from and after the
effective date specified in each Assignment and Acceptance (which effective date
shall be at least five Banking Days after the execution thereof unless waived by
the Administrative Agent):
(1) the Assignee shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement and
(2) the assigning Lender shall, to the extent provided in such
assignment, be released from its obligations under this Agreement (and,
in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 3.2.4, 3.4, 3.5,
3.6 and 10, as well as to any fees accrued for its account hereunder
and not yet paid).
12.1.2. Terms of Assignment and Acceptance. By executing and
delivering an Assignment and Acceptance, the assigning Lender and Assignee shall
be deemed to confirm to and agree with each other and the other parties hereto
as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement,
any other Credit Document or any other instrument or document furnished
pursuant hereto;
(b) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition
of the Restricted Companies or the performance or observance by the
Borrower or any Guarantor of any of its obligations under this
Agreement, any other Credit Document or any other instrument or
document furnished pursuant hereto;
(c) such Assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 8.2 and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(d) such Assignee will independently and without reliance upon
the Agents, such assigning Lender or any other Lender, and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under this Agreement;
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(e) such Assignee appoints and authorizes the Agents to take
such action as agent on its behalf and to exercise such powers under
this Agreement as are delegated to the Agents by the terms hereof,
together with such powers as are reasonably incidental thereto; and
(f) such Assignee agrees that it will perform in accordance
with the terns of this Agreement all the obligations which are required
to be performed by it as a Lender.
12.1.3. Register. The Administrative Agent shall maintain at
the Houston Office a register (the "Register") for the recordation of (a) the
names and addresses of the Lenders and the Assignees which assume rights and
obligations pursuant to an assignment under Section 12.1.1, (b) the Percentage
Interest of each such Lender as set forth in Section 11.1 and (c) the amount of
the Loan owing to each Lender from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrower, the
Agents and the Lenders may treat each Person whose name is registered thrown for
the purposes as a party to this Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time to
time upon reasonable prior notice.
12.1.4. Acceptance of Assignment and Assumption. Upon its
receipt of a completed Assignment and Acceptance executed by an assigning Lender
and an Assignee together with the Note or Notes subject to such assignment, and
the processing and recordation fee referred to in Section 12.1.1, the
Administrative Agent shall (a) accept such Assignment and Acceptance, (b) record
the information contained therein in the Register and (c) give prompt notice
thereof to the Borrower. Within five Banking Days after receipt of notice, the
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent, in exchange for the surrendered Note or Notes, a new Note or Notes to the
order of such Assignee in a principal amount equal to the applicable Commitment
and Loan assumed by it pursuant to such Assignment and Acceptance and, if the
assigning Lender has retained a Commitment and Loan, a new Note to the order of
such assigning Lender in a principal amount equal to the applicable Commitment
and Loan retained by it. Such new Note or Notes shall be in an aggregate
principal amount equal to the aggregate principal amount of such surrendered
Note or Notes, and shall be dated the date of the surrendered Notes which they
replace.
12.1.5. Pledges. Notwithstanding the foregoing provisions of
this Section 12, any Lender may at any time pledge or assign all or any portion
of such Lender's rights under this Agreement and the other Credit Documents to
any representative of its creditors (including a Federal Reserve Bank);
provided, however, that no such pledge or assignment shall release such Lender
from such Lender's obligations hereunder or under any other Credit Document.
12.1.6. Further Assurances. The Restricted Companies shall
sign such documents and take such other actions from time to time reasonably
requested by an Assignee to enable it to share in the benefits of the rights
created by the Credit Documents.
12.2. Credit Participants. Each Lender may, without the
consent of the Borrower or any Agent, in compliance with applicable laws in
connection with such participation, sell to one or more Qualified Institutional
Buyers (each a "Credit Participant") participations in all or a portion of its
interests, rights and obligations under this Agreement and the other Credit
Documents (including all or a portion of its Commitment and the Loan owing to it
and the Notes held by it); provided, however, that:
(a) such Lender's obligations under this Agreement shall
remain unchanged;
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(b) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(c) the Credit Participant shall be entitled to the benefit of
the cost protection provisions contained in Sections 3.2.4, 3.4, 3.5,
3.6 and 10, but shall not be entitled to receive any greater payment
thereunder than the selling Lender would have been entitled to receive
with respect to the interest so sold if such interest had not been
sold; and
(d) the Borrower, the Agents and the other Lenders shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement, and
such Lender shall retain the sole right to enforce the obligations of
the Borrower relating to the Loan and to approve any amendment,
modification or waiver of any provision of this Agreement (other than
amendments, modifications or waivers with respect to any fees payable
hereunder or the amount of principal of or the rate at which interest
is payable on the Loan, or the final maturity date of any portion of
the Loan).
12.3. Replacement of Lender. In the event that any Lender or,
to the extent applicable, any Credit Participant (the "Affected Lender"):
(a) fails to perform its obligations to fund any portion of
the Loan on any Closing Date when required to do so by the terms of the
Credit Documents, or fails to provide its portion of any Eurodollar
Pricing Option on account of a Legal Requirement as contemplated by
Section 3.2.5 or the unavailability of Eurodollar deposits as
contemplated by the last sentence of Section 3.2.1;
(b) demands payment under the Tax provisions of Section 3.4,
the capital adequacy provisions of Section 3.5 or the regulatory change
provisions in Section 3.6 in an amount the Restricted Companies deem
materially in excess of the amounts with respect thereto demanded by
the other Lenders; or
(c) refuses to consent to a proposed amendment, modification,
waiver or other action that is consented to by Lenders holding at least
80% of the Percentage Interests the consent of which is requested in
connection with the proposed amendment, modification, waiver or other
action;
then, so long as no Event of Default exists, the Restricted Companies shall have
the right to seek a replacement lender or lenders reasonably satisfactory to the
Administrative Agent (the "Replacement Lender"). The Replacement Lender shall
purchase the interests of the Affected Lender in the Loan and its Commitment and
shall assume the obligations of the Affected Lender hereunder and under the
other Credit Documents upon execution by the Replacement Lender of an Assignment
and Acceptance and the tender by it to the Affected Lender of a purchase price
agreed between it and the Affected Lender (or, if they are unable to agree, a
purchase price in the amount of the Affected Lender's Percentage Interest in the
Loan and all other outstanding Credit Obligations then owed to the Affected
Lender). Such assignment by the Affected Lender shall be deemed an early
termination of any Eurodollar Pricing Option to the extent of the Affected
Lender's portion thereof, and the Restricted Companies will pay to the Affected
Lender any resulting amounts due under Section 3.2.4. Upon consummation of such
assignment, the Replacement Lender shall become party to this Agreement as a
signatory hereto and shall have all the rights and obligations of the Affected
Lender under this Agreement and the other Credit Documents with a Percentage
Interest equal to the Percentage Interest of the Affected Lender, the
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Affected Lender shall be released from its obligations hereunder and under the
other Credit Documents, and no further consent or action by any party shall be
required. Upon the consummation of such assignment, the Restricted Companies,
the Agent and the Affected Lender shall make appropriate arrangements so that
new Notes are issued to the Replacement Lender. The Restricted Companies shall
sign such documents and take such other actions reasonably requested by the
Replacement Lender to enable it to share in the benefits of the rights created
by the Credit Documents Until the consummation of an assignment in accordance
with the foregoing provisions of this Section 12.3, the Restricted Companies
shall continue to pay to the Affected Lender (or to the Administrative Agent for
the account of the Affected Lender, as applicable) any Credit Obligations as
they become due and payable.
13. Confidentiality. Each Lender agrees that it will make no
disclosure of confidential information furnished to it by any Restricted Company
unless such information shall have become public, except:
(a) in connection with operations under or the enforcement of
this Agreement or any other Credit Document;
(b) pursuant to any statutory or regulatory requirement or any
mandatory court order, subpoena or other legal process;
(c) to any parent or corporate Affiliate of such Lender or to
any Credit Participant, proposed Credit Participant or proposed
Assignee; provided, however, that any such Person shall agree to comply
with the restrictions set forth in this Section 13 with respect to such
information;
(d) to its independent counsel, auditors and other
professional advisors with an instruction to such Person to keep such
information confidential; and
(e) to any direct or indirect contractual counterparty in swap
agreements with the same professional advisor as the Lender or such
contractual counterparty's professional advisor (so long as such
contractual counterparty or professional advisor agrees to be bound by
the provisions of this Section 13); and
(f) with the prior written consent of the Borrower, to any
other Person.
14. Foreign Lenders. If any Lender is not created or organized
in, or under the laws of, the United States of America or any state thereof,
such Lender, to the extent it may legally do so, shall deliver to the Borrower
and the Administrative Agent the forms described in one of the following two
clauses:
(a) two fully completed and duly executed United States
Internal Revenue Service Forms 1001 or 4224 or any successor forms, as
the case may be, certifying that such Lender is entitled to receive
payments of the Credit Obligations payable to it without deduction or
withholding of any United States federal income taxes; or
(b) a statement, executed by such Lender under penalty of
perjury, certifying that such Lender is not a "bank" within the meaning
of section 881(c)(3)(A) of the Code and two fully completed and duly
executed United States Internal Revenue Service Forms W-8 or any
successor forms certifying that such Lender is not a "United States
person" within the meaning of section 7701(a)(30) of the Code.
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Each Lender that delivers any form or statement pursuant to this Section 14
further undertakes to renew such forms and statements by delivering to the
Borrower and the Administrative Agent any updated forms, successor forms or
other certification, as the case may be, on or before the date that any form or
statement previously delivered pursuant to this Section 14 expires or becomes
obsolete or after the occurrence of any event requiring a change in such most
recent form or statement. If at any time the Borrower and the Administrative
Agent have not received all forms and statements (including any renewals
thereof) required to be provided by any Lender pursuant to this Section 14,
Section 3.4 shall not apply with respect to any amount of United States federal
income taxes required to be withheld from payments of the Credit Obligations to
such Lender.
15. Notices. Except as otherwise specified in this Agreement,
any notice required to be given pursuant to this Agreement shall be given in
writing. Any notice, demand or other communication in connection with this
Agreement shall be deemed to be given if given in writing (including telecopy or
similar teletransmission) addressed as provided below (or to the addressee at
such other address as the addressee shall have specified by notice actually
received by the addressor), and if either (a) actually delivered in fully
legible form to such address or (b) in the case of a letter, five days shall
have elapsed after the same shall have been deposited in the United States
mails, with first-class postage prepaid and registered or certified.
If to any Restricted Company, to it at its address set forth
in Exhibit 8.1 (as supplemented pursuant to Sections 7.4.1 and 7.4.2), to the
attention of the chief financial officer.
If to any Lender, to it at its address as notified to the
Administrative Agent, with copies to the Administrative Agent.
16. Limited Recourse Against Partners. The remedies of the
holders of the Credit Obligations, including any remedy which could be exercised
upon the occurrence of an Event of Default, shall be limited to the extent that
none of the partners, members or shareholders of any Obligor shall have any
personal liability as a general partner or limited partner of any Obligor with
respect to the Credit Obligations, and in no event shall any such partner be
personally liable as a general partner or limited partner for any deficiency
judgment for any Credit Obligation; provided, however, that the provisions of
this Section 16 shall not impair the ability of any holder of any Credit
Obligation (a) to realize on the assets of any Obligor or any of its
Subsidiaries or on any other security, including any personal property or
Capital Stock pledged to secure the Credit Obligations or (b) to pursue any
remedy against any guarantor of the Credit Obligations or (c) to recover any
Distribution made in violation of Section 7.10.
17. Amendments, Consents, Waivers, etc.
17.1. Lender Consents for Amendments. Except as otherwise set forth
herein, the Administrative Agent may (and upon the written request of the
Required Lenders the Administrative Agent shall) take or refrain from taking any
action under this Agreement or any other Credit Document, including giving its
written consent to any modification of or amendment to and waiving in writing
compliance with any covenant or condition in this Agreement or any other Credit
Document (other than an Interest Rate Protection Agreement) or any Default or
Event of Default, all of which actions shall be binding upon all of the Lenders;
provided, however, that:
(a) Except as provided below, without the written consent of
the Lenders owning at least a majority of the Aggregate Percentage
Interests (disregarding the Percentage Interest of any
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Delinquent Lender during the existence of a Delinquency Period or of
any Nonperforming Lender so long as such Lender is treated equally with
the other Lenders with respect to any actions enumerated below), no
written modification of, amendment to, consent with respect to, waiver
of compliance with or waiver of a Default under, any of the Credit
Documents (other than an Interest Rate Protection Agreement) shall be
made.
(b) Without the written consent of such Lenders as own 100% of
the Percentage Interests (disregarding the Percentage Interest of any
Delinquent Lender during the existence of a Delinquency Period or of
any Nonperforming Lender so long as such Lender is treated equally with
the other Lenders with respect to any actions enumerated below):
(i) No release of all or substantially all of the
Credit Security or release of the Borrower or any material
Guarantor shall be made (in any event, without the written
consent of the Lenders, the Administrative Agent may release
particular items of Credit Security or particular Guarantors
whose equity has been sold in dispositions permitted by
Section 7.11, as modified by amendments thereto approved by
the Required Lenders, and may release all Credit Security
pursuant to Section 18.1 upon payment in full of the Credit
Obligations and termination of the Commitments).
(ii) No alteration shall be made of the Lenders'
rights of set-off contained in Section 9.2.4.
(iii) No amendment to or modification of this Section
17.1 or the definition of "Required Lenders" shall be made.
(c) Without the written consent of each Lender that is
directly affected thereby and of such Lenders as own at least a
majority of the Percentage Interests (disregarding the Percentage
Interest of any Delinquent Lender during the existence of a Delinquency
Period of or any Nonperforming Lender so long as such Lender is treated
equally with the other Lenders with respect to any actions enumerated
below):
(i) No reduction shall be made in (A) the amount of
principal of the Loan owing to such Lender or (B) the interest
rate on or fees with respect to the portion of the Loan owing
to such Lender (other than amendments and waivers approved by
the Required Lenders that modify defined terms used in
calculating the Applicable Margin or Consolidated Excess Cash
Flow or that waive an increase in the Applicable Rate as a
result of an Event of Default).
(ii) No change shall be made in the stated, scheduled
time of payment of any portion of the Loan owing to such
Lender under Sections 4.1 or 4.2 or interest thereon or fees
relating to any of the foregoing payable to such Lender, and
no waiver shall be made of any Default under Section 9.1.1
with respect to such Lender (other than amendments and waivers
approved by the Required Lenders that modify defined terms
used in calculating the Applicable Margin or Consolidated
Excess Cash Flow).
(iii) No increase shall be made in the amount, or
extension of the term, of the stated Commitments of such
Lender beyond that provided for under Section 2.
(d) Without the written consent of such Lenders owning at
least a majority of the
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Percentage Interests in a particular Tranche (disregarding the
Percentage Interest of any Delinquent Lender during the existence of a
Delinquency Period or of any Nonperforming Lender so long as such
Lender is treated equally with the other Lenders with respect to any
actions enumerated below) voting as a separate class, no change may be
made in the time of payment of any portion of such Tranche under
Sections 4.3, 4.4 or 4.5 or in the allocation of mandatory prepayments
under Sections 4.3, 4.4 or 4.5 between the respective Tranches.
(e) Without the written consent of the Administrative Agent or
the Documentation Agent, as the case may be, no amendment or
modification of any Credit Document shall affect the rights or duties
of the Administrative Agent or the Documentation Agent, as the case may
be, under the Credit Documents.
17.2. Course of Dealing; No Implied Waivers. No course of
dealing between any Lender, on the one hand, and any Restricted Company or its
Affiliates, on the other hand, shall operate as a waiver of any of the Lenders'
rights under this Agreement or any other Credit Document or with respect to the
Credit Obligations. In particular, no delay or omission on the part of any
Lender or any Agent in exercising any right under this Agreement or any other
Credit Document or with respect to the Credit Obligations shall operate as a
waiver of such right or any other right hereunder or thereunder. A waiver on any
one occasion shall not be construed as a bar to or waiver of any right or remedy
on any future occasion. No waiver, consent or amendment with respect to this
Agreement or any other Credit Document shall be binding unless it is in writing
and signed by the Administrative Agent or the Required Lenders, as appropriate.
18. General Provisions.
18.1. Defeasance. When all Credit Obligations have been paid,
performed and reasonably determined by the Agent to have been indefeasibly
discharged in full, and if at the time no Lender continues to be committed to
extend any credit to the Company hereunder or under any other Credit Document,
this Agreement and the other Credit Documents shall terminate and, at the
Company's written request, accompanied by such certificates and other items as
the Agent shall reasonably deem necessary, any Credit Security shall revert to
the Obligors and the right, title and interest of the Administrative Agent and
the Lenders therein shall terminate. Thereupon, on the Obligors' demand and at
their cost and expense, the Agent shall execute proper instruments,
acknowledging satisfaction of and discharging this Agreement and the other
Credit Documents, and shall redeliver to the Obligors any Credit Security then
in its possession; provided, however, that Sections 3.2.4, 3.5, 10, 11.7.7,
11.10, 12 and 18 shall survive the termination of this Agreement.
18.2. No Strict Construction. The parties have participated
jointly in the negotiation and drafting of this Agreement and the other Credit
Documents with counsel sophisticated in financing transactions. In the event an
ambiguity or question of intent or interpretation arises, this Agreement and the
other Credit Documents shall be construed as if drafted jointly by the parties
and no presumption or burden of proof shall arise favoring or disfavoring any
party by virtue of the authorship of any provisions of this Agreement and the
other Credit Documents.
18.3. Certain Obligor Acknowledgments. Each of the Restricted
Companies and the other Obligors acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Credit
Documents;
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(b) neither the Agents nor any Lender has any fiduciary
relationship with or duty to the Obligors arising out of or in
connection with this Agreement or any other Credit Document, and the
relationship between the Agents and Lenders, on one hand, and the
Restricted Companies and the Obligors, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor, and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions
contemplated hereby or thereby among the Obligors, the Restricted
Companies and the Lenders.
18.4. Venue; Service of Process; Certain Waivers. Each of the
Restricted Companies, the other Obligors, the Agents and the Lenders:
(a) Irrevocably submits to the nonexclusive jurisdiction of
the state courts of the State of New York and to the nonexclusive
jurisdiction of the United States District Court for the Southern
District of New York for the purpose of any suit, action or other
proceeding arising out of or based upon this Agreement or any other
Credit Document or the subject matter hereof or thereof;
(b) Waives to the extent not prohibited by applicable law that
cannot be waived, and agrees not to assert, by way of motion, as a
defense or otherwise, in any such proceeding brought in any of the
above-named courts, any claim that it is not subject personally to the
jurisdiction of such court, that its property is exempt or immune from
attachment or execution, that such proceeding is brought in an
inconvenient forum, that the venue of such proceeding is improper, or
that this Agreement or any other Credit Document, or the subject matter
hereof or thereof, may not be enforced in or by such court;
(c) Agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Restricted Company at its address referred to in
Section 15; and
(d) Waives to the extent not prohibited by applicable law that
cannot be waived any right it may have to claim or recover in any such
proceeding any special, exemplary, punitive or consequential damages.
18.5. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY
APPLICABLE LAW THAT CANNOT BE WAIVED, EACH OF THE RESTRICTED COMPANIES, THE
OTHER OBLIGORS, THE AGENTS AND THE LENDERS WAIVES, AND COVENANTS THAT IT WILL
NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY
JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF
THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE SUBJECT MATTER HEREOF OR
THEREOF OR ANY CREDIT OBLIGATION OR IN ANY WAY CONNECTED WITH THE DEALINGS OF
THE LENDERS, THE AGENTS, THE RESTRICTED COMPANIES OR ANY OTHER OBLIGOR IN
CONNECTION WITH ANY OF TO ABOVE, IN EACH CASE WITHER NOW EXISTING OR HEREAFTER
ARISING AND WHETHER IN CONTRACT, TORT OR OTHERWISE. Each of the Restricted
Companies and the other Obligors acknowledges that it has been informed by the
Administrative Agent that the foregoing sentence constitutes a material
inducement upon which each of the Lenders has relied and will rely in entering
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into this Agreement and any other Credit Document. Any Lender, the Agents, the
Borrower or any other Obligor may file an original counterpart or a copy of this
Agreement with any court as written evidence of the consent of the Restricted
Companies, the other Obligors, the Agents and the Lenders to the waiver of their
rights to trial by jury.
18.6. Interpretation; Governing Law; etc. Time is (and shall
be) of the essence in this Agreement and the other Credit Documents. All
covenants, agreements, representations and warranties made in this Agreement or
any other Credit Document or in certificates delivered pursuant hereto or
thereto shall be deemed to have been relied on by each Lender, notwithstanding
any investigation made by any Lender on its behalf, and shall survive the
execution and delivery to the Lenders hereof and thereof. The invalidity or
unenforceability of any provision hereof shall not affect the validity or
enforceability of any other provision hereof, and any invalid or unenforceable
provision shall be modified so as to be enforced to the maximum extent of its
validity or enforceability. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
This Agreement and the other Credit Documents constitute the entire
understanding of the parties with respect to the subject matter hereof and
thereof and supersede all prior and contemporaneous understandings and
agreements, whether written or oral. This Agreement may be executed in any
number of counterparts which together shall constitute one instrument. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
18.7. Amendment and Restatement of Pledge and Subordination
Agreement. The parties hereto hereby consent to the amendment and restatement of
the Pledge and Subordination Agreement in the form attached as Exhibit 18.7.
[THE REST OF THIS PAGE IS INTENTIONALLY BLANK.]
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Each of the undersigned has caused this Agreement to be
executed and delivered by its duly authorized officer as an agreement under seal
as of the date first above written.
FALCON CABLE MEDIA, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON CABLE SYSTEMS COMPANY II, L.P.
FALCON CABLEVISION, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON COMMUNITY CABLE, L.P.
FALCON COMMUNITY VENTURES I
LIMITED PARTNERSHIP
FALCON TELECABLE, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON COMMUNITY INVESTORS, L.P.
FALCON INVESTORS GROUP, LTD., A
CALIFORNIA LIMITED PARTNERSHIP
FALCON MEDIA INVESTORS GROUP, A
CALIFORNIA LIMITED PARTNERSHIP
FALCON TELECABLE INVESTORS GROUP,
A CALIFORNIA LIMITED PARTNERSHIP
FALCON TELECOM, L.P.
By FALCON HOLDING GROUP, INC.,
as general partner,
or general partner of the
general partner, of each
of the foregoing Restricted
Companies
By ____________________________
Title:
FALCON FIRST, INC.
By _____________________________________
Title:
90
90
FALCON CABLE COMMUNICATIONS, LLC
By FALCON HOLDING GROUP, INC., as
general partner of the managing
general partner of its sole member
By _____________________________________
Title:
ATHENS CABLEVISION, INC.
AUSABLE CABLE TV, INC.
CEDAR BLUFF CABLEVISION, INC.
▇▇▇▇▇▇ CABLEVISION, INC.
EASTERN MISSISSIPPI CABLEVISION, INC.
FALCON FIRST CABLE OF NEW YORK, INC.
FALCON FIRST CABLE OF THE SOUTHEAST,
INC.
FALCON FIRST HOLDINGS, INC.
FF CABLE HOLDINGS, INC.
LAUDERDALE CABLEVISION, INC.
MULTIVISION NORTHEAST, INC.
MULTIVISION OF COMMERCE, INC.
PLATTSBURG CABLEVISION, INC.
SCOTTSBORO CABLEVISION, INC.
SCOTTSBORO TV CABLE, INC.
By _____________________________________
As an authorized officer of each of
the foregoing corporations
TORONTO DOMINION (TEXAS), INC., as
Administrative Agent
By _____________________________________
Title:
91
91
TABLE OF CONTENTS
Page
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1. Definitions; Certain Rules of Construction 1
2. The Credits 25
2.1. Revolving Credit 25
2.1.1. Revolving Loan 25
2.1.2. Borrowing Requests 27
2.1.3. Revolving Notes 27
2.2. Term Loan B 27
2.2.1. Term Loan B 27
2.2.2. Term Loan B Notes 27
2.3. Term Loan C 27
2.3.1. Term Loan C 27
2.3.2. Term Loan C Notes 27
2.4. Supplemental Credit 27
2.4.1. Request for Supplemental Facilities 28
2.4.2. Supplemental Facilities 28
2.4.3. Borrowing Requests 29
2.4.4. Supplemental Notes 29
2.4.5. Supplemental Restatement Revolving Facility 29
2.5. Application of Proceeds 31
2.5.1. Loan 31
2.5.2. Specifically Prohibited Applications 31
2.6. Nature of Obligations of Lenders to Extend Credit 31
3. Interest: Eurodollar Pricing Options: Fees 31
3.1. Interest 31
3.2. Eurodollar Pricing Options 32
3.2.1. Election of Eurodollar Pricing Options 32
3.2.2. Notice to Lenders and Borrower 32
3.2.3. Selection of Interest Periods 32
3.2.4. Additional Interest 33
3.2.6. Funding Procedure 34
3.3. Commitment Fees 34
3.4. Taxes 35
3.5. Capital Adequacy 35
3.6. Regulatory Changes 35
3.7. Computations of Interest and Fees 36
3.8. Interest Limitation 36
4. Payment 36
4.1. Payment at Maturity 36
4.2. Fixed Required Prepayments 36
4.2.1. Term Loan B 36
4.2.2. Term Loan C 36
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4.2.3. Supplemental Loan 37
4.3. Maximum Amount of Revolving Credit, etc 37
4.4. Asset Sales 37
4.4.1. Operating Asset Sale Notice 37
4.4.2. Prepayment on Sale 37
4.4.3. Asset Reinvestment Reserve Amount 37
4.4.4. Allocations of Prepayment 38
4.5. Designated Financing Debt 38
4.6. Voluntary Prepayments 38
4.7. Application of Payments 39
5. Conditions to Extending Credit 39
5.1. Conditions to Effectiveness of Amendment and Restatement 39
5.1.1. Consents 39
5.1.2. Agreement 39
5.1.3. ▇▇▇▇ ▇▇▇▇▇ Acquisition 39
5.1.4. Officer's Certificate; Proper Proceedings 39
5.1.5. Payment of Fees 39
5.1.6. Legal Opinions 39
5.2. Conditions to Each Extension of Credit 40
5.2.1. Officer's Certificate 40
5.2.2. Proper Proceedings 40
5.2.3. Legality, etc 40
5.3. Conditions on Supplemental Facility Closing Dates 40
5.3.1. Supplemental Notes 40
5.3.2. Joinder Agreement 40
5.3.3. Legal Opinions 41
5.3.4. General 41
6. Guarantees 41
6.1. Guarantees of Credit Obligations 41
6.2. Continuing Obligation 41
6.3. Waivers with Respect to Credit Obligations 42
6.4. Lenders' Power to Waive, etc 43
6.5. Information Regarding Obligors, etc 44
6.6. Certain Guarantor Representations 44
6.7. No Subrogation 44
6.8. Subordination 45
6.9. Contribution Among Guarantors 45
6.10. Future Subsidiaries; Further Assurances 45
6.11. Release of ▇▇▇▇▇▇▇▇▇ ▇▇
▇. General Covenants 45
7.1. Taxes and Other Charges; Accounts Payable 46
7.1.1. Taxes and Other Charges 46
7.1.2. Accounts Payable 46
7.2. Conduct of Business, etc 46
7.2.1. Types of Business 46
7.2.2. Maintenance of Properties 46
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7.2.3. Compliance with Material Agreements; Amendments of Material Agreements 47
7.2.4. Statutory Compliance 47
7.3. Insurance 47
7.4. Financial Statements and Reports 47
7.4.1. Annual Reports 47
7.4.2. Quarterly Reports 48
7.4.3. Other Reports 49
7.4.4. Notice of Litigation; Notice of Defaults 49
7.4.5. Franchise Matters 49
7.4.6. ERISA Reports 49
7.4.7. Other Information 49
7.5. Certain Financial Tests 50
7.5.1. Consolidated Total Debt to Consolidated Annualized Operating Cash Flow 50
7.5.2. Consolidated Interest Coverage Ratio 50
7.5.3. Consolidated Annualized Operating Cash Flow to Consolidated Pro Forma Debt Service 50
7.6. Indebtedness 50
7.7. Guarantees; Letters of Credit 52
7.8. Liens 52
7.9. Investments and Acquisitions 54
7.10. Distributions 55
7.11. Merger, Consolidation and Dispositions of Assets 57
7.12. Issuance of Stock by Subsidiaries; Subsidiary Distributions 58
7.12.1. Issuance of Stock by Subsidiaries 58
7.12.2. No Restrictions on Subsidiary Distributions 58
7.13. ERISA, etc 58
7.14. Transactions with Affiliates 58
7.15. Interest Rate Protection 59
7.16. Compliance with Environmental Laws 59
7.17. No Outside Management Fees 59
7.18. Derivative Contracts 60
7.19. Negative Pledge Clauses 60
8. Representations and Warranties 60
8.1. Organization and Business 60
8.1.1. The Borrower 60
8.1.2. Other Guarantors 61
8.1.3. Qualification 61
8.1.4. Capitalization 61
8.2. Financial Statements and Other Information; Material Agreements 61
8.2.1. Financial Statements and Other Information 61
8.2.2. Material Agreements 62
8.3. Changes in Condition 62
8.4. Title to Assets 62
8.5. Licenses, etc 62
8.5.1. Franchises; FCC Licenses 62
8.5.2. FCC and Other Matters 62
8.6. Litigation 62
8.7. Tax Returns 63
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8.8. Authorization and Enforceability 63
8.9. No Legal Obstacle to Agreements 63
8.10. Defaults 63
8.11. Certain Business Representations 64
8.11.1. Labor Relations 64
8.11.2. Antitrust 64
8.11.3. Consumer Protection 64
8.11.4. Year 2000 Issues 64
8.12. Environmental Regulations 64
8.12.1. Environmental Compliance 64
8.12.2. Environmental Litigation 64
8.12.3. Hazardous Material 65
8.12.4. Environmental Condition of Properties 65
8.13. Pension Plans 65
8.14. Government Regulation; Margin Stock 65
8.14.1. Government Regulation 65
8.14.2. Margin Stock 65
8.15. Disclosure 66
9. Defaults 66
9.1. Events of Default 66
9.1.1. Non-Payment 66
9.1.2. Breach of Designated Covenants 66
9.1.3. Breach of Other Covenants 66
9.1.4. Misrepresentation 66
9.1.5. Cross-Default, etc 66
9.1.6. Change of Control, etc 67
9.1.7. Enforceability, etc 67
9.1.8. Judgments, etc 67
9.1.9. Franchise Revocation, etc 67
9.1.10. ERISA 68
9.1.11. Bankruptcy, etc 68
9.2. Certain Actions Following an Event of Default 68
9.2.1. No Obligation to Extend Credit 68
9.2.2. Specific Performance; Exercise of Rights 69
9.2.3. Acceleration 69
9.2.4. Enforcement of Payment; Credit Security; Setoff 69
9.2.5. Cumulative Remedies 69
9.3. Annulment of Defaults 69
9.4. Waivers 69
10. Expenses; Indemnity 70
10.1. Expenses 70
10.2. General Indemnity 70
11. Operations 71
11.1. Interests in Credits 71
11.2. Agents' Authority to Act, etc 71
11.3. Borrower to Pay Agent, etc 71
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11.4. Lender Operations for Advances, etc 71
11.4.1. Advances 71
11.4.2. Administrative Agent to Allocate Payments, etc 72
11.4.3. Delinquent Lenders; Nonperforming Lenders 72
11.5. Sharing of Payments, etc 72
11.6. Agent's Resignation or Removal 73
11.7. Concerning the Agents 73
11.7.1. Action in Good Faith, etc 73
11.7.2. No Implied Duties, etc 74
11.7.3. Validity, etc 74
11.7.4. Compliance 74
11.7.5. Employment of Agents and Counsel 74
11.7.6. Reliance on Documents and Counsel 74
11.7.7. Agent's Reimbursement 74
11.8. Rights as a Lender 75
11.9. Independent Credit Decision 75
11.10. Indemnification 75
12. Successors and Assigns; Lender Assignments and Participations 75
12.1. Assignments by Lenders 76
12.1.1. Assignees and Assignment Procedures 76
12.1.2. Terms of Assignment and Acceptance 76
12.1.3. Register 77
12.1.4. Acceptance of Assignment and Assumption 77
12.1.5. Pledges 78
12.1.6. Further Assurances 78
12.2. Credit Participants 78
12.3. Replacement of Lender 78
13. Confidentiality 79
14. Foreign Lenders 80
15. Notices 80
16. Limited Recourse Against Partners 80
17. Amendments, Consents, Waivers, etc 81
17.1. Lender Consents for Amendments 81
17.2. Course of Dealing; No Implied Waivers 82
18. General Provisions 82
18.1. Defeasance 82
18.2. No Strict Construction 82
18.3. Certain Obligor Acknowledgments 83
18.4. Venue; Service of Process; Certain Waivers 83
18.5. WAIVER OF JURY TRIAL 83
18.6. Interpretation; Governing Law; etc 84
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18.7. Amendment and Restatement of Pledge and Subordination Agreement 84
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