Exhibit 10.33
EXECUTION COPY
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CSC HOLDINGS, INC.
$2,400,000,000
SEVENTH AMENDED AND RESTATED
CREDIT AGREEMENT
Dated as of June 26, 2001
TORONTO DOMINION (TEXAS), INC.
as Administrative Agent
TD SECURITIES (USA) INC.
BANC OF AMERICA SECURITIES LLC
as Co-Lead Arrangers and Co-Book Managers
BANK OF AMERICA, N.A.
as Syndication Agent
THE BANK OF NEW YORK
THE BANK OF NOVA SCOTIA
as Co-Documentation Agents and Arrangers
THE CHASE MANHATTAN BANK
as Co-Documentation Agent
FLEET NATIONAL BANK
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
MIZUHO FINANCIAL GROUP
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
as Arrangers
BANK OF MONTREAL
BARCLAYS BANK PLC
BNP PARIBAS
CREDIT LYONNAIS NEW YORK BRANCH
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES
FIRST UNION NATIONAL BANK
ROYAL BANK OF CANADA
as Managing Agents
SOCIETE GENERALE
SUNTRUST BANK
as Co-Agents
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SEVENTH AMENDED AND RESTATED CREDIT AGREEMENT dated as of June 26,
2001 among CSC HOLDINGS, INC. (formerly known as Cablevision Systems
Corporation), a Delaware corporation (the "COMPANY"), the Restricted
Subsidiaries (as defined below) which are parties hereto, the lenders which
are parties hereto, together with their respective successors and assigns
(the "BANKS"), TORONTO DOMINION (TEXAS), INC., as Administrative Agent, TD
SECURITIES (USA) INC. and BANC OF AMERICA SECURITIES LLC, as Co-Lead
Arrangers and Co-Book Managers, BANK OF AMERICA, N.A., as Syndication
Agent, THE BANK OF NEW YORK and THE BANK OF NOVA SCOTIA, as
Co-Documentation Agents and Arrangers, THE CHASE MANHATTAN BANK, as
Co-Documentation Agent, FLEET NATIONAL BANK, ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.,
MIZUHO FINANCIAL GROUP and ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC., as Arrangers, BANK OF
MONTREAL, BARCLAYS BANK PLC, BNP PARIBAS, CREDIT LYONNAIS NEW YORK BRANCH,
DRESDNER BANK AG, NEW YORK AND GRAND CAYMAN BRANCHES, FIRST UNION NATIONAL
BANK and ROYAL BANK OF CANADA, as Managing Agents and SOCIETE GENERALE and
SUNTRUST BANK, as Co-Agents.
WHEREAS, on May 28, 1998, the Company, certain of its subsidiaries
named therein, the several banks whose names are set forth on the signature
pages thereof, and Toronto Dominion (Texas), Inc., as arranging agent and as
administrative agent, The Bank of New York, The Bank of Nova Scotia, The
Canadian Imperial Bank of Commerce, Nationsbank, N.A. and The Chase Manhattan
Bank, as managing agents, Bank of Montreal, Chicago Branch, Barclays Bank, plc,
Fleet Bank, N.A. (now known as Fleet National Bank), and Royal Bank of Canada,
as agents, Banque Paribas, Credit Lyonnais, BankBoston, N.A., The First National
Bank of Chicago, Mellon Bank, N.A. and Societe Generale, New York Branch as
co-agents and The Canadian Imperial Bank of Commerce, The Chase Manhattan Bank
and NationsBank, N.A. as co-syndication agents, entered into that certain Sixth
Amended and Restated Credit Agreement (such Sixth Amended and Restated Credit
Agreement (as amended to but not including the date hereof) being referred to
herein as, the "1998 Agreement");
WHEREAS, the Company and the Restricted Subsidiaries are engaged in
the business of developing, constructing, owning, acquiring, altering,
repairing, financing, operating, maintaining, publishing, distributing,
promoting and otherwise exploiting cable television systems and related
businesses, including, without limitation, telecommunications services, data
transmission and telephony activities; and
WHEREAS, the Banks wish to extend, and certain of the Banks, pursuant
to the 1998 Agreement, have extended, credit to the Company by the making of
loans to the Company and the issuance of letters of credit for the account of
the Company; the Company and the Guarantors have requested that the 1998
Agreement be amended and restated in its entirety pursuant to this Agreement;
the proceeds of the extensions of credit hereunder are to be employed in
accordance with Section 2.09 hereof, and each of the Guarantors expects to
derive benefit, directly or indirectly, from such loans and letters of credit.
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
Section 1.01 CERTAIN DEFINED TERMS. As used herein, the following terms
shall have the following meanings (all terms defined in this Article I or in
other provisions of this Agreement in the singular to have the same meanings
when used in the plural and vice versa):
"1998 BANKS" shall mean the "Banks" as defined in the 1998 Agreement.
"ACCEPTING BANKS" shall have the meaning given to such term in Section
2.10 hereof.
"ACCUMULATED FUNDING DEFICIENCY" shall mean an accumulated funding
deficiency as defined in Section 302 of ERISA.
"ADDITIONAL BANKS" shall have the meaning given to such term in
Section 2.10 hereof. "Additional Costs" shall have the meaning given to such
term in Section 5.01 hereof.
"ADMINISTRATIVE AGENT" shall mean Toronto Dominion (Texas), Inc. in
its capacity as administrative agent for the Banks hereunder and its successors
in such capacity.
"AFFECTED LOANS" shall have the meaning given to such term in Section
5.04 hereof.
"AFFECTED TYPE" shall have the meaning given to such term in Section
5.04 hereof.
"AFFILIATE" shall mean, as to any Person, any other Person which
directly or indirectly controls, or is under common control with, or is
controlled by, such Person. As used in this definition, "CONTROL" (including,
with its correlative meanings, "CONTROLLED BY" and "UNDER COMMON CONTROL WITH")
shall mean possession, directly or indirectly, of the power to direct or cause
the direction of management or policies (whether through ownership of securities
or partnership or other ownership interests, by contract or otherwise), provided
that, in any event, any Person which owns directly or indirectly 10% or more of
the securities having ordinary voting power for the election of directors or
other governing body of a corporation or 10% or more of the partnership or other
ownership interests of any other Person (other than as a limited partner of such
other Person) will be deemed to control such corporation or other Person; and
provided further that no individual shall be an Affiliate of a corporation or
partnership solely by reason of his or her being an officer, director or partner
of such entity, except in the case of a partner if his or her interests in such
partnership shall qualify him or her as an Affiliate.
"AGREEMENT" shall mean this Seventh Amended and Restated Credit
Agreement, including all schedules and exhibits hereto, as the same may be
amended, supplemented or modified from time to time.
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"ANNUALIZED Operating Cash Flow" shall mean, as at any date, an amount
equal to Operating Cash Flow for the calendar quarter ending on or most recently
prior to such date, multiplied by four.
"APPLICABLE LENDING OFFICE" shall mean, with respect to each Bank, for
each type of Loan, the lending office of such Bank (or of an affiliate of such
Bank) designated for such type of Loan in SCHEDULE 2.07 hereto or such other
office of such Bank (or of an affiliate of such Bank) as such Bank may from time
to time specify to the Administrative Agent and the Company as the office by
which its Loans of such type are to be made and maintained.
"APPLICABLE MARGIN" shall mean:
(a) With respect to Base Rate Loans
(i) 0.750% at all times during any Applicable Period if the
Cash Flow Ratio as at the end of the immediately preceding Quarter was
greater than 6.00 to 1;
(ii) 0.500% at all times during any Applicable Period if the
Cash Flow Ratio as at the end of the immediately preceding Quarter was
less than or equal to 6.00 to 1 and greater than 5.50 to 1;
(iii) 0.375% at all times during any Applicable Period if
the Cash Flow Ratio as at the end of the immediately preceding Quarter
was less than or equal to 5.50 to 1 and greater than 5.00 to 1;
(iv) 0.250% at all times during any Applicable Period if the
Cash Flow Ratio as at the end of the immediately preceding Quarter was
less than or equal to 5.00 to 1 and greater than 4.50 to 1;
(v) 0.000% at all times during any Applicable Period if the
Cash Flow Ratio as at the end of the immediately preceding Quarter was
less than or equal to 4.50 to 1; and
(b) With respect to Eurodollar Loans
(i) 1.750% at all times during any Applicable Period if the
Cash Flow Ratio as at the end of the immediately preceding Quarter was
greater than 6.00 to 1;
(ii) 1.500% at all times during any Applicable Period if the
Cash Flow Ratio as at the end of the immediately preceding Quarter was
less than or equal to 6.00 to 1 and greater than 5.50 to 1;
(iii) 1.375% at all times during any Applicable Period if
the Cash Flow Ratio as at the end of the immediately preceding Quarter
was less than or equal to 5.50 to 1 and greater than 5.00 to 1;
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(iv) 1.250% at all times during any Applicable Period if the
Cash Flow Ratio as at the end of the immediately preceding Quarter was
less than or equal to 5.00 to 1 and greater than 4.50 to 1;
(v) 1.000% at all times during any Applicable Period if the
Cash Flow Ratio as at the end of the immediately preceding Quarter was
less than or equal to 4.50 to 1 and greater than 4.00 to 1;
(vi) 0.875% at all times during any Applicable Period if the
Cash Flow Ratio as at the end of the immediately preceding Quarter was
less than or equal to 4.00 to 1.
For purposes of this definition, the Cash Flow Ratio as at the end of any
Quarter (the "Subject Quarter") shall be determined based upon (i) for the
Quarter ended immediately prior to the Effective Date, the Compliance
Certificate delivered in accordance with Section 7.01, and (ii) for each Subject
Quarter commencing thereafter, (x) the Annualized Operating Cash Flow (as set
forth in the Compliance Certificate delivered pursuant to Section 9.01(d) with
respect to the third month of such Subject Quarter and (y) the aggregate
outstanding principal amount of Indebtedness of CSC and the Restricted
Subsidiaries (as calculated in accordance with the definition of Cash Flow
Ratio) as of the last day of such Subject Quarter (as certified by the Company
to the Administrative Agent at the time of the delivery of such Compliance
Certificate).
As used in this definition, "Applicable Period" shall mean the period from and
including (i)(a) in the case of the first Applicable Period, the Effective Date
and (b) in the case of each subsequent Applicable Period, the first day after
the immediately preceding Applicable Period to but excluding (ii) the fifth
Business Day of the next June, September, December or May (whichever occurs
first) to occur thereafter.
Notwithstanding anything in this Agreement to the contrary, in the case of the
first Applicable Period, the Cash Flow Ratio shall be determined based upon the
ratio of (i) the sum of the aggregate outstanding principal amount of all
Indebtedness of the Company and the Restricted Subsidiaries outstanding on the
Effective Date after giving effect to the Loans hereunder (determined on a
consolidated basis) plus (but without duplication of Indebtedness supported by
Syndicated Letters of Credit or Bank Letters of Credit) the aggregate undrawn
stated amount of all Syndicated Letters of Credit and Bank Letters of Credit
outstanding on the Effective Date to (ii) Annualized Operating Cash Flow
determined as at March 31, 2001 and set forth on the Compliance Certificate
delivered to the Banks pursuant to Section 7.01(g) hereof, a copy of which has
been delivered to the Administrative Agent.
"ASSIGNMENT AND ACCEPTANCE" shall have the meaning given to such term
in Section 5.07 hereof.
"BANK LETTERS OF CREDIT" shall have the meaning given such term in
Section 2.03(b) hereof.
"BANKS" shall have the meaning given to such term in the preamble to
this Agreement.
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"BASE RATE" shall mean, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum shall at
all times be equal to the higher of:
(a) the rate of interest adopted by The Toronto-Dominion Bank
(New York Branch), from time to time, as its reference rate for the
determination of interest rates on loans of varying maturities in Dollars
to United States residents of varying degrees of creditworthiness and being
quoted at such time by The Toronto-Dominion Bank (New York Branch) as its
"prime rate," which rate is not necessarily The Toronto-Dominion Bank's
lowest rate of interest; and
(b) the sum (adjusted to the nearest one-quarter of one percent
(1/4 of 1%) or, if there is no nearest one-quarter of one percent (1/4 of
1%), to the next higher one-quarter of one percent (1/4 of 1%)) of (i)
one-half of one percent (1/2 of 1%) per annum plus (ii) the Federal Funds
Rate.
"BASE RATE LOANS" shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of "Base Rate" in
this Section 1.01.
"BUSINESS DAY" shall mean any day on which commercial banks are not
authorized or required to close in New York City or London.
"CAPITAL LEASE OBLIGATIONS" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real and/or personal property, which
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under generally accepted accounting principles
(including Statement of Financial Accounting Standards No. 13 of the Financial
Accounting Standards Board) and, for purposes of this Agreement, the amount of
such obligations shall be the capitalized amount thereof, determined in
accordance with generally accepted accounting principles (including such
Statement No. 13).
"CAPITAL MAINTENANCE COSTS" shall mean, with respect to the Loans,
Syndicated Letters of Credit (or participations therein) or Bank Letters of
Credit of each Bank, any costs which such Bank determines are attributable to
the maintenance by such Bank or any of its affiliates, pursuant to any law or
regulation or any interpretation, directive or request (whether or not having
the force of law) of any court or governmental or monetary authority, whether in
effect on the Effective Date or thereafter, of capital in respect of its
maintaining Loans, Syndicated Letters of Credit or Bank Letters of Credit
hereunder or its commitment to make Loans or issue or participate in Syndicated
Letters of Credit or Bank Letters of Credit hereunder.
"CASH FLOW RATIO" shall mean, as at any date, the ratio of (i) the sum
of the aggregate outstanding principal amount of all Indebtedness of the Company
and the Restricted Subsidiaries outstanding on such date (determined on a
consolidated basis) plus (but without duplication of Indebtedness supported by
Syndicated Letters of Credit or Bank Letters of Credit) the aggregate undrawn
face amount of all Syndicated Letters of Credit and Bank Letters of Credit
outstanding on such date to (ii) Annualized Operating Cash Flow determined as at
the last day of the quarter covered by the then most recent Compliance
Certificate delivered to the Banks
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pursuant to Section 9.01(d) hereof, a copy of which has been delivered to the
Administrative Agent (and any change in such ratio as a result of a change in
the amount of Indebtedness or Syndicated Letters of Credit, or Bank Letters of
Credit shall be effective as of the date such change shall occur and any change
in such ratio as a result of a change in the amount of Annualized Operating Cash
Flow shall be effective as of the date of receipt by the Administrative Agent of
the Compliance Certificate reflecting such change). Notwithstanding the
foregoing, for purposes of calculating the Cash Flow Ratio, (i) there shall be
excluded from Indebtedness, to the extent otherwise included as Indebtedness,
(A) any deferred or contingent obligation of the Company to pay the
consideration for an Investment not prohibited by Section 9.15 hereof to the
extent such obligation can be satisfied with the delivery of common stock of the
Parent Corp. or other equity interests of the Parent and the Company covenants
and agrees in a notice to the Administrative Agent that such obligation shall be
satisfied solely by the delivery of such common stock or other equity interests;
(B) any deferred purchase price in connection with any acquisition not
prohibited by Section 9.14 to the extent that the Company's obligations in
respect of such deferred purchase price consist solely of an agreement to
deliver common stock of the Parent Corp. or other equity interests of the
Parent; (C) all obligations under any Interest Swap Agreement; and (D)(x) all
obligations under any Guarantee permitted under subparagraph (viii) of Section
9.11 hereof and (y) all obligations under any Guarantee not prohibited by
Section 9.11 hereof so long as the obligations under such Guarantees referred to
in this clause (y) are payable, solely at the option of the Company, in common
stock of the Parent Corp. or other equity interests of the Parent and the
Company covenants and agrees in a notice to the Administrative Agent that such
obligation shall be satisfied solely by the delivery of such common stock or
other equity interests; and (ii) if on the date of calculation there are no
Loans outstanding, there shall be deducted from Indebtedness the aggregate
amount of Cash On Hand of the Company and its Restricted Subsidiaries on the
date of calculation.
"CASH ON HAND" of any Person at any time shall mean all cash held by
such Person at such time and all Investments of such Person held at such time to
the extent such Investments are (i) bank accounts with, or banker's acceptances
or certificates of deposit of, a bank having a combined capital and surplus of
at least $100,000,000, and (ii) readily marketable securities issued or
guaranteed by the United States Government and commercial paper rated P-1 by the
National Credit Office of ▇▇▇▇▇'▇ Investors Service Inc. or bearing a similar
rating by another nationally recognized rating agency.
"CMFRI" shall mean Cablevision MFR, Inc., a Delaware corporation.
"CMFRI AGREEMENT" shall mean the First Amended and Restated Credit
Agreement, dated as of May 28, 1998, among CMFRI, the Company, the Guarantors
that are parties thereto, the Banks that are parties thereto, Toronto Dominion
(Texas), Inc., as Arranging Agent and as Administrative Agent, The Bank of New
York, The Bank of Nova Scotia, The Canadian Imperial Bank of Commerce,
NationsBank, N.A. and The Chase Manhattan Bank, as Managing Agents, Bank of
Montreal, Chicago Branch, Barclays Bank PLC, Fleet Bank, N.A. (now knows as
Fleet National Bank) and Royal Bank of Canada, as Agents, Banque Paribas, Credit
Lyonnais, BankBoston, N.A., The First National Bank of Chicago, Mellon Bank,
N.A. and Societe Generale, New York Branch, as Co-Agents, and The Bank of New
York and The Bank of Nova Scotia, as Co-Syndication Agents, as amended and/or
restated and in effect from time to time.
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"CMFRI ASSIGNMENT" shall mean the assignment to the Company by each
CMFRI Bank pursuant to Section 12.5(d) of the CMFRI Agreement of all of such
CMFRI Bank's rights and obligations under such CMFRI Bank's CMFRI Commitment.
"CMFRI BANKS" shall mean the "Banks" as defined in the CMFRI
Agreement.
"CMFRI COMMITMENT" shall mean, as to each CMFRI Bank, its "Commitment"
as such term is used in the CMFRI Agreement (as the same may be reduced or
otherwise adjusted from time to time as provided in the CMFRI Agreement).
"CMFRI LOANS" shall mean "Loans" as such term is used in the CMFRI
Agreement.
"CMFRI NOTE" shall mean the promissory note issued to the Company
pursuant to Section 2.05 of the CMFRI Agreement.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COLLATERAL AGENT" shall mean Toronto Dominion (Texas), Inc. in its
capacity as collateral agent for the Banks under the Pledge Agreement and its
successors in such capacity. "Commitment" shall mean, as to each Bank, the
amount set forth opposite its name on the signature pages hereto under the
heading
"COMMITMENT" or amount set forth on any Assignment and Acceptance (as
the same may be reduced or otherwise adjusted from time to time as provided in
this Agreement).
"COMMITMENT FEE" shall have the meaning given to such term in Section
2.05 hereof.
"COMMITMENT PERCENTAGE" shall mean, as to each Bank at any time, the
percentage obtained by dividing such Bank's Commitment by the Total Commitment.
"COMMITMENT TERMINATION DATE" shall mean the Quarterly Date falling on
or nearest to June 30, 2006.
"COMPANY" shall have the meaning given to such term in the preamble to
this Agreement.
"COMPLIANCE CERTIFICATE" shall mean a certificate of a senior
financial executive of the Company in substantially the form of EXHIBIT B
hereto.
"CONSOLIDATED CASH TAXES" shall mean, for any period, the sum of all
federal, state and local income and other taxes on operations paid during such
period in respect of the operating revenues of the Company and the Restricted
Subsidiaries and all tax consolidated Unrestricted Subsidiaries taken as a
whole, net of any actual reimbursements therefor received from any Unrestricted
Subsidiaries.
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"CONSUMER MODEM NOTE" means each promissory note issued in connection
with any Consumer Modem Subsidiary Loan which has been (i) pledged to the Banks
pursuant to the Pledge Agreement and (ii) guaranteed by each Subsidiary of such
Consumer Modem Subsidiary.
"CONSUMER MODEM SUBSIDIARY" shall mean (i) any direct or indirect
Subsidiary of the Parent Corp. which is engaged primarily in the consumer cable
modem business, each of which Subsidiaries the Company hereby represents is
listed on Schedule 9.15(a) hereto, and (ii) any direct or indirect Subsidiary of
the Parent Corp. created or acquired after the date hereof which is engaged
primarily in the consumer cable modem business.
"CONSUMER MODEM SUBSIDIARY LOAN" shall mean any advance, loan or other
extension of credit made by the Company to any Consumer Modem Subsidiary and
evidenced by a Consumer Modem Note.
"CONTROLLED GROUP" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Company, are treated as a single
employer under Section 414(b) or 414(c) of the Code.
"CSC TECHNOLOGY" shall mean CSC Technology, Inc., a Delaware
corporation.
"DEBENTURE DEBT" shall mean (i) all debt listed on Schedule 9.10
hereto under the heading "Subordinated Debentures" or "Senior Debentures" and
(ii) all Permitted Debt.
"DEBT INSTRUMENTS" shall mean, collectively, the respective notes and
debentures evidencing, and indentures and other agreements governing, any
Indebtedness.
"DEFAULT" shall mean an Event of Default or any other event which with
notice and/or passage of time would become an Event of Default.
"DIGITAL VIDEO NOTE" means each promissory note issued in connection
with any Digital Video Subsidiary Loan which has been (i) pledged to the Banks
pursuant to the Pledge Agreement and (ii) guaranteed by each Subsidiary of such
Digital Video Subsidiary.
"DIGITAL VIDEO SUBSIDIARY" shall mean (i) any direct or indirect
Subsidiary of the Parent Corp. which is engaged primarily in the digital video
services business, each of which Subsidiaries the Company hereby represents is
listed on Schedule 9.15(b) hereto, and (ii) any direct or indirect Subsidiary of
the Parent Corp. created or acquired after the date hereof which is engaged
primarily in the digital video services business.
"DIGITAL VIDEO SUBSIDIARY LOAN" shall mean any advance, loan or other
extension of credit made by the Company to any Digital Video Subsidiary and
evidenced by a Digital Video Note.
"▇▇▇▇▇" shall mean ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
"▇▇▇▇▇ FAMILY INTERESTS" shall mean (i) any ▇▇▇▇▇ Family Member, (ii)
any trusts for the benefit of any ▇▇▇▇▇ Family Members, (iii) any estate or
testamentary trust of any ▇▇▇▇▇ Family Member for the benefit of any ▇▇▇▇▇
Family Members, (iv) any executor, administrator,
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conservator or legal or personal representative of any Person or Persons
specified in clauses (i), (ii) and (iii) above to the extent acting in such
capacity on behalf of any ▇▇▇▇▇ Family Member or Members and not individually
and (v) any corporation, partnership, limited liability company or other similar
entity, in each case 80% of which is owned and controlled by any of the
foregoing or combination of the foregoing.
"▇▇▇▇▇ FAMILY MEMBERS" shall mean ▇▇▇▇▇, his spouse, his descendants
and any spouse of any of such descendants.
"DOLLARS" and "$" shall mean lawful money of the United States of
America.
"EFFECTIVE DATE" shall have the meaning given to such term in Section
12.09 hereof.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA AFFILIATE" shall mean, when used with respect to a Plan, ERISA,
the PBGC or a provision of the Code pertaining to employee benefit plans, any
Person that is a member of any group of organizations within the meaning of
Sections 414(b), (c), (m) or (o) of the Code of which the Company is a member.
"EURODOLLAR BASE RATE" shall mean, with respect to any Eurodollar
Loan, for any Interest Period, the rate per annum determined by the
Administrative Agent at approximately 11:00 a.m. (London time) on the second
Business Day prior to the first day of such Interest Period by reference to the
British Bankers' Association Interest Settlement Rates for deposits in Dollars
(as set forth by any service selected by the Administrative Agent that has been
nominated by the British Bankers' Association as an authorized information
vendor for the purpose of displaying such rates) for a period equal to such
Interest Period (rounded upward, if necessary, to the nearest 1/16 of 1%);
PROVIDED that, if, for any reason, the Administrative Agent cannot determine the
Eurodollar Base Rate for any Interest Period pursuant to the foregoing
provisions of this definition, the Administrative Agent shall determine the
Eurodollar Base Rate by using the offered rates of any three major banks active
in the London interbank market selected by the Administrative Agent, but in all
other respects in accordance with the foregoing provisions of this definition.
"EURODOLLAR LOANS" shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of "Eurodollar
Base Rate" in this Section 1.01.
"EURODOLLAR RATE" shall mean, for any Eurodollar Loans for any
Interest Period therefor, a rate per annum (rounded upwards, if necessary, to
the nearest 1/16 of 1%) determined by the Administrative Agent to be equal to
the Eurodollar Base Rate for such Loans for such Interest Period divided by 1
MINUS the Reserve Requirement for such Loans for such Interest Period.
"EVENT OF DEFAULT" shall mean any of the events described in Article X
hereof.
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"EXCLUDED INDEBTEDNESS" shall have the meaning given to such term in
Section 10.01(e) hereto.
"FEDERAL FUNDS RATE" shall mean, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (i) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (ii) if such rate is not so published for any day, the Federal Funds Rate
for such day shall be the average rate quoted to The Toronto-Dominion Bank (New
York Branch) on such day on such transactions with Federal funds brokers of
recognized standing as may be determined by the Administrative Agent.
"FRANCHISE" shall mean a franchise, license or other authorization or
right to construct, own, operate, promote and/or otherwise exploit any cable
television system granted by the Federal Communications Commission (or any
successor agency of the Federal government) or any state, county, city, town,
village or other local governmental authority.
"FRANCHISE HOLDING COMPANIES" shall mean the Persons set forth on
SCHEDULE 1.01(i) hereto and each other corporation which holds a Franchise as
nominee of the Company or a Restricted Subsidiary.
"FUNDING COSTS" for any Bank shall mean, with respect to any
Eurodollar Loan, an amount equal to the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount paid, prepaid or
converted or not borrowed or converted for the period from the date of such
payment, prepayment or conversion or failure to borrow or convert to the last
day of the Interest Period for such Loan (or, in the case of a failure to borrow
or convert, the Interest Period for such Loan which would have commenced on the
date of such failure to borrow or convert) had such principal amount borne
interest at the Eurodollar Rate applicable to such Loan over (ii) the interest
component of the amount such Bank would have bid in the London interbank market
for Dollar deposits of leading banks in amounts comparable to such principal
amount and with maturities comparable to such period (as reasonably determined
by such Bank).
"GUARANTEE" shall have the meaning given to such term in Section 9.11
hereof.
"GUARANTORS" shall mean the Persons set forth on SCHEDULE 1.01(ii)
hereto and each New Restricted Subsidiary required to become a Guarantor
pursuant to Section 9.08 hereof.
"INCREASED COMMITMENT DATE" shall have the meaning given to such term
in Section 2.10 hereof.
"INCREASE REQUEST NOTICE" shall have the meaning given to such term in
Section 2.10 hereof.
"INCREMENTAL TRANCHE" shall have the meaning given to such term in
Section 2.10 hereof.
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"INDEBTEDNESS" shall mean, as to any Person, Capital Lease Obligations
of such Person and other indebtedness of such Person for borrowed money (whether
by loan or the issuance and sale of debt securities) or for the deferred
purchase or acquisition price of property or services (and including, without
limitation, obligations of such Person for property taxes and judgments and
other awards giving rise to Permitted Liens described in clauses (ii) and (iii)
of the definition of "Permitted Liens" in this Section 1.01) other than accounts
payable (other than for borrowed money) incurred in the ordinary course of
business of such Person. Without limiting the generality of the foregoing, such
term shall include (a) when applied to the Company and/or any Restricted
Subsidiary, all obligations of the Company and/or any Restricted Subsidiary
under Interest Swap Agreements and (b) when applied to the Company or any other
Person, all Indebtedness of others Guaranteed by such Person.
"INTEREST PERIOD" shall mean:
(a) With respect to any Eurodollar Loans, the period commencing
on the date such Eurodollar Loans are made and ending on the same day in
the first, second, third, sixth or, subject to availability from each Bank,
twelfth calendar month thereafter, as the Company may select as provided in
Section 2.02 hereof; and
(b) With respect to any Base Rate Loans, the period commencing on
the date such Base Rate Loans are made and ending on the next Quarterly
Date thereafter.
Notwithstanding the foregoing: (i) no Interest Period with respect to any Loan
may end after the Commitment Termination Date; (ii) each Interest Period which
would otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, in the case of an Interest Period for Eurodollar
Loans, if such next succeeding Business Day falls in the next succeeding
calendar month, on the next preceding Business Day); (iii) any Interest Period
for a Eurodollar Loan that begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in the calendar
month in which such Interest Period ends) shall, subject to clause (i) above,
end on the last Business Day of a calendar month; and (iv) no more than 24
Interest Periods for all Eurodollar Loans hereunder shall be in effect at the
same time and, if the number of Interest Periods for Eurodollar Loans would
otherwise be in excess of 24, additional Eurodollar Loans shall not be available
hereunder.
"INTEREST SWAP AGREEMENT" shall mean an interest rate swap, cap or
collar agreement or similar arrangement among the Company and/or any Restricted
Subsidiary and one or more banks or financial institutions providing for
protection against fluctuations in interest rates or the exchange of nominal
interest obligations among the Company and/or such Restricted Subsidiary and
such banks or financial institutions, either generally or under specific
contingencies, as said agreement or arrangement shall be modified and
supplemented and in effect from time to time.
"INVESTMENTS" shall have the meaning given to such term in Section
9.15 hereof.
"ISP" shall mean the International Standby Practices (ISP98)
International Chamber of Commerce Publication No. 590, as the same may be
amended and as in effect from time to time.
11
"LEASES" shall mean leases and subleases (excluding Capital Lease
Obligations), licenses to use real and/or tangible personal property, easements
and pole attachments and conduit or trench agreements and other rights to use
telephone or utility poles, conduits or trenches.
"LETTER OF CREDIT LIABILITIES" shall mean, at any time, the sum of (i)
the aggregate undrawn stated amount of all Syndicated Letters of Credit
outstanding at such time and (ii) the aggregate unpaid amount of all
Reimbursement Obligations at the time due and payable in respect of previous
drawings made under all Syndicated Letters of Credit.
"LIENS" shall have the meaning given to such term in Section 9.12
hereof.
"LOAN DOCUMENTS" shall mean (a) this Agreement, the Notes and the
Pledge Agreement and (b) all other agreements, documents and instruments related
to or arising out of (x) any agreement, document or instrument referred to in
clause (a) or this clause (b), or (y) any transaction contemplated by any
agreement, document and instrument referred to in clause (a) or this clause (b).
"LOANS" shall mean Base Rate Loans and Eurodollar Loans made pursuant
to Section 2.01 hereof.
"MAJORITY BANKS" shall mean at any time, Banks having Commitments
aggregating more than 50% of the amount of the Total Commitment.
"MARGIN STOCK" shall mean "margin stock" as defined in Regulation U.
"MATERIALLY ADVERSE EFFECT" shall mean a materially adverse effect
upon (i) the business, assets, financial condition or results of operations of
the Company and the Restricted Subsidiaries taken as a whole on a combined basis
in accordance with generally accepted accounting principles, (ii) the ability of
the Company and the Restricted Subsidiaries taken as a whole to perform the
Obligations hereunder or (iii) the legality, validity, binding nature or
enforceability of this Agreement or any other Loan Document or the validity,
perfection, priority or enforceability of the security interest created, or
purported to be created, by the Pledge Agreement.
"MONETIZATION INDEBTEDNESS" shall mean Indebtedness of the Company or
a Restricted Subsidiary, the terms and conditions of which provide, inter alia,
that such Indebtedness, at the Company's or such Restricted Subsidiary's option,
shall either (i) require delivery of, or be payable in an aggregate amount
determined by reference to the fair market value of, a specified amount of the
capital stock of (A) Charter Communications, Inc., Adelphia Communications
Corporation or AT&T Corp. received by the Company or such Restricted Subsidiary
as consideration for any disposition permitted by this Agreement or (B) At Home
Corporation held by the Company or a Restricted Subsidiary on July 26, 2000 (any
such capital stock being referred to herein as the "Monetized Stock"), or (ii)
be convertible into a specified amount of such Monetized Stock.
"MULTIEMPLOYER PLAN" shall mean a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
12
"NET CASH PROCEEDS" shall mean proceeds received by the Company or any
of the Restricted Subsidiaries in cash from (x) the incurrence, issuance or sale
of Indebtedness or capital stock of the Company or any of the Restricted
Subsidiaries, in each case after deduction of the costs of, and any income,
franchise, transfer or other tax liability arising from, such sale, disposition,
incurrence or issuance or (y) a capital contribution in respect of the common
stock of any class of the Company to the Company by the holder thereof. If any
amount payable to the Company or any such Restricted Subsidiary in respect of
any such incurrence or issuance shall be or become evidenced by any promissory
note or other negotiable or non-negotiable instrument, the cash proceeds
received on any such note or instrument shall constitute Net Cash Proceeds.
"NEW BANK" shall have the meaning given to such term in Section 2.10
hereof.
"NEW COMMON STOCK" shall mean (x) any common stock of any class of the
Company issued after the Effective Date or (y) any capital contribution to the
Company in respect of the common stock of any class of the Company to the
Company by the holder thereof made after the Effective Date.
"NEW PREFERRED STOCK" shall mean any preferred stock of the Company
issued after the Effective Date, PROVIDED that pursuant to the terms thereof and
of any provision of the Company's charter in respect thereof, such preferred
stock is neither (i) redeemable, payable or required to be purchased or
otherwise retired or extinguished in whole or in part (other than with common
stock or other New Preferred Stock of the Company), or convertible into any
Indebtedness of the Company, at a fixed or determinable date (whether by
operation of a sinking fund or otherwise), at the option of any Person other
than the Company or upon the occurrence of a condition not solely within the
control of the Company (such as a redemption required to be made out of future
earnings) nor (ii) convertible into preferred stock of the Company that may be
so retired, extinguished or converted, in the case of clause (i) or (ii) above,
at any time before the date that is two years after the Commitment Termination
Date as in effect at the time of the issuance of such preferred stock.
"NEW RESTRICTED SUBSIDIARY" shall mean any New Subsidiary designated
as a Restricted Subsidiary pursuant to Section 9.08(b) and any Unrestricted
Subsidiary redesignated as a Restricted Subsidiary pursuant to Section 9.08(c).
"NEW SUBSIDIARY" shall mean any Person which becomes a Subsidiary of
the Company after the Effective Date.
"NEW UNRESTRICTED SUBSIDIARY" shall mean any New Subsidiary deemed an
Unrestricted Subsidiary pursuant to Section 9.08(a).
"NON-US BANK" means a Person that is not a United States Person and
that is not described in Section 881(c)(3) of the Code.
"NOTES" shall mean the promissory notes provided for by Section
2.06(a) hereof evidencing the Loans.
13
"OBLIGATIONS" shall mean, collectively, the obligations of the Company
hereunder in respect of the principal of and interest on the Loans and in
respect of Bank Letters of Credit, Letter of Credit Liabilities, and all
obligations in respect of fees and other amounts payable by the Company
hereunder.
"OPERATING CASH FLOW" shall mean, for any period, the following for
the Company and the Restricted Subsidiaries for such period, determined on a
consolidated basis in accordance with generally accepted accounting principles:
(i) aggregate operating revenues minus (ii) aggregate operating expenses
(including technical, programming, sales, selling, general administrative
expenses and salaries and other compensation, in each case net of amounts
allocated to Affiliates, paid to any general partner, director, officer or
employee of the Company or any Restricted Subsidiary , but excluding interest,
depreciation and amortization and compensation in respect of the Company's
employee incentive stock programs (not to exceed in the aggregate for any
calendar year 7% of the Operating Cash Flow for the Company and the Restricted
Subsidiaries for the previous calendar year) and, to the extent otherwise
included in operating expenses, any losses resulting from a write-off or
writedown of Investments by the Company or any Restricted Subsidiary in
Affiliates); provided, however, that for purposes of determining Operating Cash
Flow for any period (A) there shall be excluded (x) all management fees paid to
the Company or any Restricted Subsidiary during such period by any Unrestricted
Subsidiary other than any such fees paid in cash to the extent not in excess of
3% of Operating Cash Flow for the Company and the Restricted Subsidiaries as
determined without including any such fees and (y) the amortization of deferred
installation income and (B) Operating Cash Flow for such period shall be
increased or reduced, as the case may be, by the Operating Cash Flow of assets
acquired or disposed of (including by means of any redesignation of any
Subsidiary pursuant to Section 9.08(c)) by the Company or any Restricted
Subsidiary on or after the first day of such period, determined on a pro forma
basis reasonably satisfactory to the Administrative Agent (it being agreed that
it shall be satisfactory to the Administrative Agent that such pro forma
calculations may be based upon generally accepted accounting principles as
applied in the preparation of the financial statements for the Company,
delivered in accordance with Section 9.01 hereof rather than as applied in the
financial statements of the company whose assets were acquired and may include,
in the Company's discretion, a reasonable estimate of savings under existing
contracts resulting from any such acquisitions), as though the Company or such
Restricted Subsidiary acquired or disposed of such assets on the first day of
such period.
"PARENT CORP." shall mean Cablevision Systems Corp., a Delaware
corporation.
"PARTICIPATION AGREEMENT" shall have the meaning given to such term in
Section 12.06(c) hereof.
"PAYOR" shall have the meaning given to such term in Section 4.04
hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"PERMITTED DEBT" shall mean any Indebtedness incurred, issued or sold
by the Company after the Effective Date, PROVIDED that:
14
(i) such Indebtedness (A) shall be unsecured, (B) shall have a
commercially reasonable interest rate (which rate shall be deemed
commercially reasonable if such Indebtedness is sold by a member of the
National Association of Securities Dealers, Inc. in an underwritten
offering or on a 'best efforts' basis), (C) shall be neither (1)
redeemable, payable or required to be purchased or otherwise retired or
extinguished in whole or in part at a fixed or determinable date (whether
by operation of a sinking fund or otherwise), at the option of any Person
other than the Company or upon the occurrence of a condition not solely
within the control of the Company (such as a redemption required to be made
out of future earnings) nor (2) convertible into any other Indebtedness or
capital stock of the Company that may be so retired, extinguished or
converted, in the case of clause (1) or (2) above, at any time before the
date that is one year after the Commitment Termination Date as in effect at
the time of the incurrence, issuance or sale of such Indebtedness and (D)
shall have terms and conditions no more restrictive or burdensome than the
terms and conditions of the Company's Senior Debentures due 2009 in an
aggregate principal amount of $400,000,000 issued on or about August 21,
1997; and
(ii) at the time of and immediately after giving effect to the
incurrence, issuance or sale of such Indebtedness, no Default shall have
occurred and be continuing, and the Company shall have so certified to the
Administrative Agent;
and PROVIDED FURTHER, that the Company shall (i) prior to the issuance of any
such Indebtedness, provide notice to the Administrative Agent of the proposed
issuance thereof and of the use of the proceeds thereof and (ii) as soon as
available, provide to the Administrative Agent copies of the Debt Instruments
governing such Indebtedness.
"PERMITTED LIENS" shall mean, with respect to any Person: (i) pledges
or deposits by such Person under workers' compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in connection with
bids, tenders, contracts (other than for the payment of Indebtedness) or Leases
to which such Person is a party, or deposits to secure public or statutory
obligations of such Person or deposits of cash or U.S. Government bonds to
secure surety or appeal bonds to which such Person is a party, or deposits as
security for contested taxes or import duties or for the payment of rent; (ii)
Liens imposed by law, such as carriers', warehousemen's and mechanics' Liens or
other Liens arising out of judgments or awards against such Person with respect
to which such Person shall then be prosecuting appeal or other proceedings for
review (and as to which all foreclosures and other enforcement proceedings shall
have been fully bonded or otherwise effectively stayed); (iii) Liens for
property taxes not yet subject to penalties for non-payment or which are being
contested in good faith and by appropriate proceedings (and as to which all
foreclosures and other enforcement proceedings shall have been fully bonded or
otherwise effectively stayed); (iv) Liens in favor of issuers of performance
bonds issued pursuant to the request of and for the account of such Person in
the ordinary course of its business; (v) minor survey exceptions, minor
encumbrances, easements or reservations of, or rights of others for rights of
way, sewers, electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real properties or
Liens incidental to the conduct of the business of such Person or to the
ownership of its properties which were not incurred in connection with
Indebtedness or other extensions of credit and which do not in the aggregate
materially detract from the value of said properties or
15
materially impair their use in the operation of the business of such Person; or
(vi) any Lien on any Margin Stock.
"PERMITTED RESTRICTED SUBSIDIARY TRANSACTION" shall mean any
transaction by which any Restricted Subsidiary shall (i) pay dividends or make
any distribution on its capital stock or other equity securities or pay any of
its Indebtedness owed to any other Restricted Subsidiaries, (ii) make any loans
or advances to any other Restricted Subsidiaries or (iii) transfer any of its
properties or assets to, or merge or consolidate with or into, any other
Restricted Subsidiaries.
"PERSON" shall mean an individual, a corporation, a partnership, a
limited liability company, a joint venture or adventure, a trust or estate or
unincorporated organization, a joint stock company or other similar
organization, a government or any political subdivision thereof, or any other
legal entity.
"PLAN" shall mean, at any time, an employee pension benefit plan which
is covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and is either (i) maintained by the Company or an
ERISA Affiliate or (ii) maintained pursuant to a collective bargaining agreement
or any other arrangement under which more than one employer makes contributions
and to which the Company or an ERISA Affiliate is then making or accruing an
obligation to make contributions or has within the preceding six plan years made
contributions.
"PLEDGE AGREEMENT" shall mean that certain Pledge Agreement, dated as
of the date hereof, between the Company and the Administrative Agent, as the
same may be amended, supplemented or modified from time to time.
"POLE RENTAL LEASES" shall mean Leases under which the Company and the
Restricted Subsidiaries have the right to use telephone or utility poles,
conduits or trenches for the purpose of supporting or housing cables of the
respective systems.
"POST-DEFAULT RATE" shall mean, in respect of any principal of any
Loan or any other amount payable by the Company under this Agreement which is
not paid when due (whether at stated maturity, by acceleration or otherwise), a
rate per annum during the period commencing on the due date until such amount is
paid in full equal to 2% above the Base Rate as in effect from time to time plus
the Applicable Margin for Base Rate Loans; provided that, if such amount in
default is principal of a Eurodollar Loan and the due date is a day other than
the last day of an Interest Period therefor, the "Post-Default Rate" for such
principal shall be, for the period commencing on the due date and ending on the
last day of the Interest Period therefor, 2% above the interest rate for such
Loan for such Interest Period as provided in Section 3.03 hereof, and thereafter
the rate provided for above in this definition and; provided further, that if
such amount in default is any Reimbursement Obligation, the "Post-Default Rate"
for such Reimbursement Obligation shall be a rate per annum equal to 2 and 3/4%
above the Base Rate as in effect from time to time.
16
"PROGRAMMING COMPANIES" shall mean, collectively, the Persons set
forth on Schedule 1.01(iii) hereto, and any New Unrestricted Subsidiary
designated as a Programming Company.
"PROHIBITED TRANSACTION" shall mean a transaction that is prohibited
under Section 4975 of the Code or Section 406 of ERISA and not exempt under
Section 4975 of the Code or Section 408 of ERISA.
"PROPOSED BANK" shall have the meaning given to such term in Section
12.06(h) hereof.
"QUARTER" shall mean a fiscal quarterly period of the Company.
"QUARTERLY DATES" shall mean the last day of each March, June,
September and December, the first of which shall be on June 30, 2001, provided
that, if any such day is not a Business Day, the relevant Quarterly Date shall
be the next succeeding Business Day.
"REFUNDING PROCEEDS" shall mean, on any date, an amount equal to the
aggregate Net Cash Proceeds of all Permitted Debt, New Preferred Stock and New
Common Stock of the Company received by the Company during the 12 month period
ending on such date to the extent not allocated by the Company to any payment
made for the purchase, acquisition, redemption, retirement, payment or
prepayment of Debenture Debt or preferred stock of the Company during such 12
month period.
"REGULATION D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as the same may be amended or supplemented from time
to time.
"REGULATION U" shall mean Regulation U of the Board of Governors of
the Federal Reserve System as the same may be amended or supplemented from time
to time.
"REGULATORY CHANGE" shall mean, with respect to any Bank, any change
on or after the Effective Date in United States Federal, state or foreign laws
or regulations (including Regulation D) or the adoption or making on or after
such date of any interpretations, directives or requests applying to a class of
banks including such Bank of or under any United States Federal or state, or any
foreign, laws or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"REIMBURSEMENT OBLIGATIONS" shall mean the obligations of the Company
then outstanding to reimburse the Banks for the amount paid by the Banks in
respect of any drawing under a Syndicated Letter of Credit.
"REPORTABLE EVENT" shall mean (i) any of the events set forth in
Section 4043(b) (other than a Reportable Event as to which the provision of 30
days' notice to the PBGC is waived under applicable regulations), 4068(f) or
4063(a) of ERISA or the regulations thereunder, (ii) an event requiring the
Company or any ERISA Affiliate to provide security to a Plan under Section
401(a)(29) of the Code and (iii) any failure to make payments required by
Section
17
412(m) of the Code if such failure continues for 30 days following the due
date for any required installment.
"REQUIRED PAYMENT" shall have the meaning given to such term in
Section 4.04 hereof.
"RESERVE REQUIREMENT" shall mean, for any Eurodollar Loans of any Bank
for any Interest Period, the rate at which such Bank actually is required to
maintain reserves (including any marginal, supplemental or emergency reserves)
during such Interest Period under Regulation D against "Eurocurrency
liabilities" (as such term is used in Regulation D). Without limiting the effect
of the foregoing, the Reserve Requirement shall reflect any other reserves
actually required to be maintained by such Bank by reason of any Regulatory
Change against (A) any category of liabilities which includes deposits by
reference to which the Eurodollar Base Rate for such Eurodollar Loans is to be
determined as provided in the definition of "Eurodollar Base Rate" in this
Section 1.01 or (B) any category of extensions of credit or other assets which
include Eurodollar Loans.
"RESTRICTED PAYMENTS" shall mean direct or indirect distributions,
dividends or other payments by the Company or any Restricted Subsidiary on
account of (including, without limitation, sinking fund or other payments on
account of the redemption, retirement, purchase or acquisition of) any general
or limited partnership or joint venture interest in, or any capital stock of,
the Company or such Restricted Subsidiary, as the case may be (whether made in
cash, property or other obligations), other than (i) any such distributions,
dividends and other payments made by a Restricted Subsidiary to the Company or
another Restricted Subsidiary in respect of such interest in or stock of the
former held by the latter, (ii) distributions of any or all of the stock of RMHI
or (iii) dividends, distributions and other payments made by Cablevision of
Brookline Limited Partnership to all of the partners thereof pro rata in respect
of their interests therein, provided that no change (other than a change
resulting from the redemption of ▇▇▇▇▇'▇ interests therein) in (A) the ownership
by such partners of Cablevision of Brookline Limited Partnership or (B) the
rights of such partners to receive such payments shall have occurred since the
Effective Date.
"RESTRICTED SUBSIDIARIES" shall mean the Persons set forth on SCHEDULE
1.01(iv) hereto and any New Restricted Subsidiary, provided that any Restricted
Subsidiary redesignated as an Unrestricted Subsidiary pursuant to and in
compliance with Section 9.08(c) shall cease to be a Restricted Subsidiary.
"RMHI" shall mean Rainbow Media Holdings, Inc., a Delaware
corporation.
"SEC REPORTS" shall mean the Form 10-K Annual Report of the Company
for the fiscal year ended December 31, 2000 and the Form 10-Q Quarterly Report
of the Company for the period ended March 31, 2001.
"SUBSIDIARY" shall mean, with respect to any Person, any corporation,
partnership, joint venture or adventure, limited liability company, trust or
estate:
(a) in the case of a corporation, of which a majority of the
outstanding capital stock having ordinary voting power to elect a majority
of the Board of Directors
18
of such corporation (irrespective of whether or not at the time capital stock of
any other class or classes of such corporation shall or might have voting power
upon the occurrence of any contingency);
(b) in the case of a partnership or joint venture, in which such
Person is a general partner or joint venturer or of which a majority of the
partnership or other ownership interests;
(c) in the case of a limited liability company, of which a
majority of the ownership interests; or
(d) in the case of a trust or estate, the beneficial interest of
which is at the time directly or indirectly owned by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"SYNDICATED LETTERS OF CREDIT" shall have the meaning given to such
term in Section 2.03(a) hereof.
"SYNDICATED LETTERS OF CREDIT COMMITMENT" shall have the meaning given
to such term in Section 2.03(a)(i) hereof.
"TAX" means any Federal, State or foreign tax, assessment or other
governmental charge (including any withholding tax) upon a Person or upon its
assets, revenues, income or profits.
"TD" shall mean The Toronto-Dominion Bank.
"TERMINATION EVENT" shall mean (i) a Reportable Event, (ii) the
termination of a Plan, or the filing of a notice of intent to terminate a Plan,
or the treatment of a Plan amendment as a termination under Section 4041(c) of
ERISA, (iii) the institution of proceedings to terminate a Plan under Section
4042 of ERISA or (iv) the appointment of a trustee to administer any Plan under
Section 4042 of ERISA.
"TOTAL COMMITMENT" shall mean at any time the aggregate amount of the
Commitments of all the Banks (as the same may be reduced or otherwise adjusted
from time to time as provided in this Agreement).
"TOTAL COMMITMENT INCREASE" shall have the meaning given to such term
in Section 2.10 hereof.
"TOTAL DEBT EXPENSE" shall mean, for any period, (A) Total Interest
Expense for such period PLUS (B) an amount equal to the aggregate amount of all
scheduled payments of principal on Indebtedness of the Company and the
Restricted Subsidiaries (on a consolidated basis) during such period (including,
but not limited to, the principal portion paid with respect to Capital Lease
Obligations, but excluding (i) scheduled payments of principal on Debenture Debt
to the extent such payments are made with Refunding Proceeds, (ii) all
obligations under any Guarantee permitted under subparagraph (viii) of Section
9.11 hereof, and (iii) all obligations
19
under any Guarantee permitted under subparagraph (x) of Section 9.11 hereof to
the extent the obligation under any such Guarantee was paid in common stock of
the Parent Corp.) PLUS (C) (i) all dividends and other distributions in respect
of preferred stock of the Company during such period (other than to the extent
any such dividends and distributions are paid in New Common Stock or New
Preferred Stock) and (ii) all payments on account of the scheduled redemption,
retirement or extinguishment in whole or in part (whether by operation of a
sinking fund or otherwise) of any preferred stock of the Company, excluding any
such payments to the extent made with Refunding Proceeds and any such payments
made in respect of the Company's Series H Preferred Stock or Series M Preferred
Stock to the extent not prohibited by Section 9.16 hereof; PROVIDED that, for
purposes of determining Total Debt Expense for any period, there shall be
included or excluded, as the case may be, all scheduled payments of principal
during such period on Indebtedness of the Company or any Restricted Subsidiary
in respect of assets acquired or disposed of (including by means of any
redesignation of any Subsidiary pursuant to Section 9.08(c)) by the Company or
such Restricted Subsidiary on or after the first day of such period, determined
on a pro forma basis reasonably satisfactory to the Administrative Agent (it
being agreed that it shall be satisfactory to the Administrative Agent that such
pro forma calculations may be based upon generally accepted accounting
principles as applied in the preparation of the financial statements for the
Company, delivered in accordance with Section 9.01 hereof rather than as applied
in the financial statements of the company whose assets were acquired and may
include, in the Company's discretion, a reasonable estimate of savings under
existing contracts resulting from any such acquisitions), as though the Company
or such Restricted Subsidiary acquired or disposed of such assets on the first
day of such period.
"TOTAL INTEREST EXPENSE" shall mean, for any period, the sum of (i)
the aggregate amount of interest accrued during such period in respect of
Indebtedness (including the interest component of rentals in respect of Capital
Lease Obligations and including, without duplication, discount in respect of
Permitted Debt) of the Company and the Restricted Subsidiaries (determined on a
consolidated basis), other than (x) obligations under any Guarantee permitted
under subparagraph (viii) of Section 9.11 hereof, and (y) obligations under any
Guarantee permitted under subparagraph (x) of Section 9.11 hereof to the extent
that such obligation was paid in common stock of the Parent Corp., (ii) the
aggregate amount of fees accrued in respect of the Syndicated Letters of Credit
and Bank Letters of Credit hereunder during such period and (iii) the aggregate
amount of Commitment Fees accrued hereunder during such period. For purposes
hereof, the amount of interest accrued in respect of Indebtedness for any period
(A) shall be increased (to the extent not already treated as interest expense or
income, as the case may be) by the excess, if any, of amounts payable by the
Company and/or any Restricted Subsidiary arising under any Interest Swap
Agreements during such period over amounts receivable by the Company and/or any
Restricted Subsidiary thereunder (or reduced by the excess, if any, of such
amounts receivable over such amounts payable) and interest on a Capital Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined
by the Company to be the rate of interest implicit in such Capital Lease
Obligation in accordance with generally accepted accounting principles
(including Statement of Financial Accounting Standards No. 13) and (B) shall be
increased or reduced, as the case may be, by the amount of interest accrued
during such period in respect of Indebtedness of the Company or any Restricted
Subsidiary in respect of assets acquired or disposed of (including by means of
any redesignation of any Subsidiary pursuant to Section 9.08(c)) by the Company
or such Restricted Subsidiary on or after the first day of such period,
determined on a pro forma basis reasonably satisfactory to
20
the Administrative Agent (it being agreed that it shall be satisfactory to the
Administrative Agent that such pro forma calculations may be based upon
generally accepted accounting principles as applied in the preparation of the
financial statements for the Company, delivered in accordance with Section 9.01
hereof rather than as applied in the financial statements of the company whose
assets were acquired and may include, in the Company's discretion, a reasonable
estimate of savings under existing contracts resulting from any such
acquisitions), as though the Company or such Restricted Subsidiary acquired or
disposed of such assets on the first day of such period.
"TOTAL UTILIZED COMMITMENT" shall mean, on any date, the amount (if
any) equal to the sum of (i) the outstanding aggregate principal amount of all
Loans outstanding on such date and (ii) the Letter of Credit Liabilities on such
date.
"UCP" shall mean the Uniform Customs and Practice for Documentary
Credits, 1993 revision, International Chamber of Commerce Publication No. 500,
as the same may be amended and in effect from time to time.
"UNITED STATES PERSON" shall mean a corporation, partnership or other
entity created, organized or incorporated under the laws of the United States of
America or a State thereof (including the District of Columbia).
"UNRESTRICTED SUBSIDIARIES" shall mean the Persons set forth on
SCHEDULE 1.01(v) hereto and any New Unrestricted Subsidiaries, PROVIDED that any
Unrestricted Subsidiary redesignated by the Company as a Restricted Subsidiary
pursuant to and in compliance with Section 9.08(c) shall cease to be an
Unrestricted Subsidiary.
Section 1.02 ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall be made, and
all financial statements and certificates and reports as to financial matters
required to be delivered hereunder shall be prepared, in accordance with
generally accepted accounting principles as in effect on December 31, 2000,
applied on a consolidated basis consistent with the audited financial statements
of the Company referred to in Section 8.04 hereof. To enable the ready
determination of compliance by the Company and the Restricted Subsidiaries with
the various covenants set forth in Article IX hereof, the Company agrees to
cause the fiscal year of itself, each Restricted Subsidiary to end each year on
December 31 and the first three Quarters for each such Person in each year to
end on March 31, June 30 and September 30, respectively.
ARTICLE II
LOANS AND LETTERS OF CREDIT
Section 2.01 LOANS. Each Bank severally agrees, on the terms and conditions
set forth in this Agreement:
(a)THE LOANS. On or after the Effective Date, to make one or more
Loans to the Company from time to time on any Business Day prior to the
Commitment Termination Date in an aggregate principal amount not to exceed at
any time outstanding such Bank's Commitment,
21
provided that at no time shall the aggregate outstanding principal amount of all
Loans, together with the aggregate outstanding principal amount of the Letter of
Credit Liabilities, exceed the Total Commitment.
(b) TYPES OF LOANS. The Loans, at the option of the Company, may be
made as, and from time to time continued as or converted into, Base Rate Loans
or Eurodollar Loans of any permitted type, or any combination thereof; PROVIDED,
HOWEVER, that each borrowing of Loans shall be in an aggregate amount equal to
$500,000 or an integral multiple of $250,000 in excess thereof.
Section 2.02 MANNER OF BORROWING; CONVERSION AND CONTINUATION. (a) NOTICE
OF BORROWING. The Company shall give the Administrative Agent (which shall
promptly notify the Banks) notice of each borrowing of Loans hereunder
substantially in the form of SCHEDULE 2.02(a) hereto, which notices shall be
irrevocable and effective only upon receipt by the Administrative Agent, shall
specify the aggregate amount, the type or types and date of the Loans to be
borrowed and (in the case of Eurodollar Loans) the duration of the Interest
Period therefor and shall be given not later than 11:00 a.m. New York time on
the day which is not less than the number of Business Days prior to the date of
such borrowing specified below:
TYPE NUMBER OF BUSINESS DAYS
---- -----------------------
Base Rate Loan 0
Eurodollar Loan 3
Notwithstanding the foregoing, any notice given by the Company to the
Administrative Agent under this Section 2.02(a) may be given orally by telephone
and confirmed in writing within one Business Day. In the case of any
discrepancies between oral and written notices received by the Administrative
Agent, the oral notice shall be effective as understood in good faith by the
Administrative Agent.
(b) FUNDING. Not later than 1:00 p.m. New York time on the date
specified for each borrowing hereunder, each Bank shall make available the
amount of the Loan to be made by it on such date to the Administrative Agent in
immediately available funds, for the account of the Company. The amount so
received by the Administrative Agent shall, subject to the terms and conditions
of this Agreement, be made available to the Company by depositing the same, in
immediately available funds, in an account of the Company designated by the
Company or by wiring the same, in immediately available funds, to any account
specified by the Company in its notice of borrowing.
(c) CONVERSION AND CONTINUATION. (i) All or any part of the principal
amount of any Loan may, on any Business Day, be converted into another type or
types of Loan, except that Eurodollar Loans may be converted only on the last
day of the applicable Interest Period.
(ii) Base Rate Loans shall continue as Base Rate Loans unless and
until such Loans are converted into Eurodollar Loans of any type. Each
Eurodollar Loan shall continue as a Eurodollar Loan until the end of the then
current Interest Period therefor, at which time it shall be automatically
converted into a Base Rate Loan unless the Company shall have
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given the Administrative Agent notice in accordance with Section 2.02(c)(iv)
hereof requesting either that such Eurodollar Loan continue as a Eurodollar Loan
of such type for another Interest Period or that such Eurodollar Loan be
converted into a Eurodollar Loan of another type at the end of such Interest
Period.
(iii) Notwithstanding anything to the contrary contained in
Section 2.02(c)(i) or (ii) hereof, during an Event of Default, the
Administrative Agent shall, at the direction of the Majority Banks, notify the
Company that Loans may only be converted into or continued as Loans of certain
specified types and, thereafter, until no Event of Default shall continue to
exist, Loans may not be converted into or continued as Loans of any type other
than one or more of such specified types.
(iv) The Company shall give the Administrative Agent (which shall
promptly notify the Banks) notice of each conversion or continuation of Loans
hereunder substantially in the form of SCHEDULE 2.02(c) hereto, which notices
shall be irrevocable and effective only upon receipt by the Administrative
Agent, shall specify (x) the aggregate amount and the type of the Loans to be
converted or continued and (in the case of Eurodollar Loans) the duration of the
Interest Period therefor, (y) the requested date of such conversion or
continuation and (z) the amount and type or types of Loans into which such Loans
are to be converted or as which such Loans are to be continued, and shall be
given not later than 11:00 a.m. New York time on the day which is not less than
the number of Business Days prior to the date of such conversion or continuation
into or as the type of Loans specified below:
TYPE NUMBER OF BUSINESS DAYS
---- -----------------------
Base Rate Loan 0
Eurodollar Loan 3
Notwithstanding the foregoing, any notice given by the Company to the
Administrative Agent under this Section 2.02(c)(iv) may be given orally by
telephone and confirmed in writing within one Business Day. In the case of any
discrepancies between oral and written notices received by the Administrative
Agent, the oral notice shall be effective as understood in good faith by the
Administrative Agent.
Section 2.03 LETTERS OF CREDIT. (a) SYNDICATED LETTERS OF CREDIT. Subject
to the terms and conditions hereof, TD shall issue for the account of the
Company one or more letters of credit (the "Syndicated Letters of Credit"). The
following provisions shall apply to the Syndicated Letters of Credit:
(i) The Syndicated Letters of Credit Commitment shall be an
amount equal to the lesser of (x) $100,000,000 less the aggregate amount of
Reimbursement Obligations then outstanding and (y) the Total Commitment
less the aggregate principal amount of the Loans and Reimbursement
Obligations then outstanding.
(ii) The Syndicated Letters of Credit (A) shall each have a
minimum face amount at least equal to $25,000, (B) shall have an aggregate
undrawn stated amount not in excess of the Syndicated Letters of Credit
Commitment, (C) shall each have a term not
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in excess of one year, (D) may, at the sole option of TD, be renewable, (E)
shall not extend beyond the Commitment Termination Date and (F) shall be
utilized for general business purposes.
(iii) The Company shall give the Administrative Agent at least
five Business Days' prior notice (effective upon receipt) specifying the
date each Syndicated Letter of Credit is to be issued and attaching a
completed form of such Syndicated Letter of Credit and a description of the
nature of the transactions proposed to be supported thereby. Upon the
issuance of each Syndicated Letter of Credit, the Administrative Agent
shall notify each Bank of the contents thereof.
(iv) Upon the date of issuance of each Syndicated Letter of
Credit, TD shall be deemed, without further action by any party hereto, to
have sold to each Bank, and each Bank shall be deemed, without further
action by any party hereto, to have purchased from TD an undivided and
continuing participation, to the extent of such Bank's Commitment
Percentage, in such Syndicated Letter of Credit.
(v) Upon receipt from the beneficiary of any Syndicated Letter of
Credit of any demand for payment under such Syndicated Letter of Credit, TD
shall promptly notify the Company as to the amount to be paid as a result
of such demand and the respective payment date.
(vi) Each Bank shall promptly, upon demand by TD, remit to TD,
through the Administrative Agent, its pro rata share of the payment made by
TD together with interest thereon for each day from the day of demand
through the day of payment at a rate equal to the Federal Funds Rate. TD
shall promptly remit to each Bank, through the Administrative Agent, such
Bank's pro rata share of any payment received by TD to the extent that such
Bank has reimbursed TD in accordance with this clause (vi).
(vii) The Company shall not later than noon New York time on the
date of payment of each drawing, reimburse TD, through the Administrative
Agent, for any amounts paid by TD under any Syndicated Letter of Credit.
(viii) The Company will pay to the Administrative Agent for the
account of each Bank a letter of credit fee on such Bank's Commitment
Percentage of the daily average undrawn stated amount of each Syndicated
Letter of Credit for the period from and including the date of issuance
thereof to and including the date of expiration or termination thereof at a
rate per annum equal to the Applicable Margin which would then be in effect
for Eurodollar Loans, such fee to be paid quarterly in arrears on each
Quarterly Date.
(ix) On each day during the period commencing with the issuance
by TD of any Syndicated Letter of Credit and until such Syndicated Letter
of Credit shall have expired or been terminated, the Commitment of each
Bank shall be deemed to be utilized for all purposes hereof in an amount
equal to such Bank's Commitment Percentage of the then undrawn stated
amount of such Syndicated Letter of Credit.
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(x) The issuance by TD of each Syndicated Letter of Credit shall,
in addition to the conditions precedent set forth in Sections 7.01 and 7.02
hereof, be subject to the conditions precedent that such Syndicated Letter
of Credit shall be completed in such form as shall be satisfactory to TD in
its sole discretion and that the Company shall have executed and delivered
such other instruments and agreements relating to such Syndicated Letter of
Credit as TD shall have requested.
(xi) Each of the parties hereto hereby agrees that the Syndicated
Letters of Credit (as defined in the 1998 Agreement) issued by TD under the
1998 Agreement prior to the Effective Date, including any renewals thereof
and extensions thereto, shall constitute Syndicated Letters of Credit for
all purposes of this Agreement.
(b) BANK LETTERS OF CREDIT. Subject to the terms and conditions
hereof, any Bank may from time to time in its sole discretion, upon the request
of the Company, elect to issue for the account of the Company one or more
letters of credit (the "Bank Letters of Credit"). The following provisions shall
apply to the Bank Letters of Credit:
(i) The Bank Letters of Credit (A) shall have an aggregate face
amount not in excess of $10,000,000 and (B) shall not extend beyond the
Commitment Termination Date.
(ii) Upon receipt from the beneficiary of any Bank Letter of
Credit of any demand for payment under such Bank Letter of Credit, such
Bank shall promptly notify the Company as to the amount to be paid as a
result of such demand and the respective payment date.
(iii) The Company shall immediately upon such drawing reimburse
each Bank issuing a Bank Letter of Credit for any amounts paid by such Bank
upon any drawing under any Bank Letter of Credit.
(iv) The issuance by any Bank of each Bank Letter of Credit
shall, in addition to the conditions precedent set forth in Sections 7.01
and 7.02 hereof, be subject to the conditions precedent that such Bank
Letter of Credit be in such form, contain such terms and support such
transactions as shall be satisfactory to such Bank and that the Company
shall have executed and delivered such other instruments and agreements
relating to such Bank Letter of Credit as such Bank shall have requested.
(c) REIMBURSEMENT OF COSTS AND EXPENSES. The Company agrees to
reimburse the Administrative Agent, the Banks and TD for any costs and expenses
incurred by such parties in connection with the preparation of any Syndicated
Letter of Credit or Bank Letter of Credit pursuant to a notice from the Company
which notice was revoked.
Section 2.04 REDUCTIONS AND CHANGES OF COMMITMENTS. (a) REDUCTION OF TOTAL
COMMITMENT ON THE COMMITMENT TERMINATION DATE. The Total Commitment shall be
reduced to zero on the Commitment Termination Date.
(b) OPTIONAL REDUCTIONS AND TERMINATIONS. The Company shall have the
right to terminate or reduce the Total Commitment at any time or from time to
time, provided that (A)
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the Company shall give notice of each such termination or reduction to the
Administrative Agent at least two Business Days prior thereto, (B) each partial
reduction thereof shall be in an aggregate amount at least equal to $5,000,000
and (C) the Total Commitment may not be reduced at any time to an amount less
than the aggregate principal amount of the Loans and the Letter of Credit
Liabilities outstanding at such time.
(c) NO REINSTATEMENT. The Total Commitment once terminated or reduced
may not be reinstated.
(d) PRO RATA TREATMENT. Except to the extent otherwise provided
herein, each reduction of the Total Commitment shall be applied to the
Commitments of the Banks pro rata in accordance with their respective Commitment
Percentages.
Section 2.05 COMMITMENT FEES. The Company shall pay to the Administrative
Agent for the account of each Bank a fee (the "Commitment Fee") on the average
daily unutilized amount of such Bank's Commitment for each day from and
including the Effective Date to but excluding the earlier of (x) the date such
Bank's Commitment is terminated and (y) the Commitment Termination Date, at the
rate equal to, (i) on any day on which the Total Utilized Commitment is less
than the product of one-third (1/3) TIMES the Total Commitment, 0.750% per
annum, (ii) on any day on which the Total Utilized Commitment is less than the
product of two-thirds (2/3) but greater than or equal to one-third (1/3) TIMES
the Total Commitment, 0.500%, and (iii) on any day on which the Total Utilized
Commitment is greater than or equal to the product of two-thirds (2/3) TIMES the
Total Commitment, 0.375%. For purposes of calculating the Commitment Fee, the
Commitment of each Bank shall be deemed to be utilized in an amount equal to (i)
the aggregate outstanding principal amount of such Bank's Loans PLUS (ii) such
Bank's Commitment Percentage multiplied by the aggregate amount of Letter of
Credit Liabilities. Accrued Commitment Fees under this Section 2.05 shall be
payable in arrears on each Quarterly Date.
Section 2.06 NOTES. (a) FORM OF NOTES. The Loans made by each Bank shall be
evidenced by a single Note of the Company, in substantially the form of EXHIBIT
A hereto, dated the Effective Date and payable to the order of such Bank in a
principal amount equal to its Commitment, as originally in effect, and otherwise
duly completed. Each Bank that is a 1998 Bank shall deliver its Notes (as
defined in the 1998 Agreement), marked "cancelled," to the Company on or
promptly after the Effective Date.
(b) ENDORSEMENTS. Each Bank is hereby authorized by the Company to
endorse on a schedule attached to the Note of such Bank (or any continuation
thereof) the amount and date of each Loan made by such Bank to the Company
hereunder, and the amount of each payment on account of principal of such Loan
received by such Bank, provided that any failure by such Bank to make any such
endorsement shall not affect the obligations of the Company under such Note or
hereunder in respect of such Loans.
Section 2.07 LENDING OFFICES. The Loans of each type made by each Bank
shall be made and maintained at such Bank's Applicable Lending Office set forth
on Schedule 2.07 for Loans of such type.
26
Section 2.08 SEVERAL OBLIGATIONS; REMEDIES INDEPENDENT. The failure of any
Bank to make any Loan to be made by it on the date specified therefor shall not
relieve any other Bank of its obligation to make its Loan on such date, but
neither the Administrative Agent nor any Bank shall be responsible for the
failure of any other Bank to make a Loan to be made by such other Bank. The
amounts payable by the Company at any time hereunder and under the Notes to each
Bank shall be a separate and independent debt and each Bank shall, subject to
Section 10.01 hereof, be entitled to protect and enforce its rights arising out
of this Agreement and the Notes, and it shall not be necessary for any other
Bank or the Administrative Agent to consent to, or be joined as an additional
party in, any proceedings for such purposes.
Section 2.09 USE OF PROCEEDS. The proceeds of the Loans made hereunder
shall be used only for the purposes of (i) effecting the CMFRI Assignment and
(ii) other general business purposes of the Company and the Restricted
Subsidiaries and for any transaction or activity in which the Company and the
Restricted Subsidiaries are permitted to engage under the provisions of this
Agreement. The proceeds of any extension of credit hereunder shall not be used
in violation of the provisions of Section 8.07 hereof.
Section 2.10 INCREASE IN COMMITMENTS. On no more than two dates (each, an
"Increased Commitment Date") occurring on or before the second anniversary of
the Effective Date, and so long as no Default shall have occurred and be
continuing both before and after giving effect to an increase in the Total
Commitment described in this Section 2.10, the Total Commitment may, upon the
request of the Company and subject to the terms and conditions of this Section
2.10, be increased either by one or more new banks establishing Commitments or
by one or more then-existing Banks increasing their Commitments (such increase
by either means, a "Total Commitment Increase"); PROVIDED, THAT, (i) the Company
shall give a written notice (the "Increase Request Notice") to the
Administrative Agent specifying the total amount of the increase being requested
on such Increased Commitment Date (which, together with any previous increase
pursuant to this Section 2.10, shall not be in excess of $500,000,000) and the
terms and conditions that will be applicable thereto, whether the same or
different than the terms and conditions applicable to then-existing Commitments
and Loans made thereunder, (ii) promptly after receipt of the Increase Request
Notice, the Administrative Agent shall notify each Bank of the contents thereof,
(iii) each Bank shall (within the time frame to be agreed upon by the
Administrative Agent and the Company) notify the Administrative Agent in writing
of its willingness, if any, to accept a participation in the requested increase
on the terms specified by the Company and the maximum amount, if any, of the
requested Total Commitment Increase in which it is willing to participate (with
any Bank so accepting, an "Accepting Bank"), (iv) upon receipt of each response
from the Banks (with any Bank failing to so respond within the time specified
being deemed to have declined to accept any participation in the requested
increase), the Administrative Agent shall notify the Company thereof and such
Total Commitment Increase shall be allocated, at the discretion of the
Administrative Agent after consultation with the Company, to each Accepting Bank
and to one or more new lenders (each, a "New Bank", and with the Accepting
Banks, the "Additional Banks"), as designated by the Company with the consent of
the Administrative Agent and (v) except to the extent that the final sentence of
this Section 2.10 is applicable, upon the Increased Commitment Date, each
Accepting Bank's Commitment shall be increased in accordance with the foregoing,
each New Bank shall be deemed a Bank for all purposes hereof with a Commitment
established in accordance with the foregoing and the Commitment Percentage of
all Banks, including the Accepting Banks and New
27
Banks, shall automatically be deemed adjusted to reflect the new Commitment
levels of each Bank. The loans incurred by the Company pursuant to the Total
Commitment Increase shall bear interest at market rates of interest as agreed by
the Company, the Additional Banks and the Administrative Agent and shall have a
final maturity no earlier than the Commitment Termination Date. Notwithstanding
the foregoing, at the option of the Company, the Additional Banks and the
Administrative Agent, the Total Commitment Increase, and the Commitments and
Loans to be established and made thereunder, may be structured as a separate
tranche of commitments and loans under this Agreement (the "INCREMENTAL
TRANCHE"), whereupon the Banks agree that the Company, the Administrative Agent
and the Additional Banks may enter into an amendment to this Agreement without
the consent of any other Bank to the extent, but solely to the extent,
reasonably deemed necessary by the Administrative Agent to establish the terms
and conditions relating to the interest rate, fee pricing, term, repayment and
prepayment provisions with respect to such Incremental Tranche under this
Agreement, PROVIDED, THAT, in any event such Incremental Tranche shall not have
a final maturity earlier than the Commitment Termination Date and shall not have
any required amortization prior to the Commitment Termination Date in effect
immediately prior to the Increased Commitment Date unless the average weighted
life to maturity of such Incremental Tranche is equal to or greater than the
average weighted life to maturity of the Loans immediately prior to the
Increased Commitment Date.
ARTICLE III
PAYMENTS OF PRINCIPAL AND INTEREST
Section 3.01 PREPAYMENTS. (a) OPTIONAL PREPAYMENTS. The Company may, at any
time and from time to time (subject, in the case of Eurodollar Loans, to Section
5.05 hereof), prepay Base Rate Loans on any Business Day if prior notice is
given to the Administrative Agent before 11:00 a.m. New York time on such day
(and if such notice is received by the Administrative Agent after 11:00 a.m. New
York time, on the next succeeding Business Day), and Eurodollar Loans upon not
less than three Business Days' prior notice to the Administrative Agent (and the
Administrative Agent shall promptly notify the Banks in each case of such
notice), which notice shall specify the prepayment date (which shall be a
Business Day) and the amount of the prepayment (which shall be not less than
$5,000,000), and shall be irrevocable and effective only upon receipt by the
Administrative Agent, provided that, in the case of Eurodollar Loans, interest
on the principal prepaid, accrued to the prepayment date, shall be paid on the
prepayment date.
(b) MANDATORY PREPAYMENTS. The Company shall, in the event of any
reduction of the Total Commitment that reduces the Total Commitment to an amount
less than the outstanding undrawn face amount of the Syndicated Letters of
Credit, cause the respective beneficiaries of such Syndicated Letters of Credit
to reduce such undrawn face amount to an amount not greater than the amount of
the Total Commitment as so reduced. If such reduction is not promptly effected,
the Company shall upon demand by the Majority Banks pay to the Administrative
Agent an amount in immediately available funds equal in the aggregate to the
undrawn face amount of the Syndicated Letters of Credit in excess of the Total
Commitment as so reduced to be held by the Administrative Agent in a cash
collateral account as collateral for
28
the prompt payment and performance when due of the Company's Obligations under
such Syndicated Letters of Credit.
Section 3.02 REPAYMENT OF LOANS. On the Commitment Termination Date, the
Company shall pay to the Administrative Agent for the account of the Banks the
aggregate principal amount of the Loans, together with all Unreimbursed
Drawings, outstanding on such date, together with all unpaid interest accrued
thereon.
Section 3.03 INTEREST. (a) The Company hereby promises to pay to the
Administrative Agent for the account of each Bank interest on the unpaid
principal amount of each Loan made by such Bank for the period commencing on the
date of such Loan to but excluding the date such Loan shall be paid in full, at
the following rates per annum:
(i) if such Loan is a Base Rate Loan, the Base Rate PLUS the
Applicable Margin; and
(ii) if such Loan is a Eurodollar Loan, the Eurodollar Rate for
such Loan for the Interest Period therefor plus the Applicable Margin.
Notwithstanding the foregoing, the Company hereby promises to pay to the
Administrative Agent for the account of each Bank interest at the applicable
Post-Default Rate on any principal of any Loan made by such Bank, and on any
other amount (including, without limitation, any Reimbursement Obligation and
any obligation of the Company in respect of any Bank Letter of Credit) payable
by the Company hereunder to or for the account of such Bank (but, if such amount
is interest, only to the extent legally enforceable), which shall not be paid in
full when due (whether at stated maturity, by acceleration or otherwise), for
the period commencing on the due date thereof until the same is paid in full.
(b) Accrued interest on each Loan shall be payable (i) on the last day
of each Interest Period for such Loan (and, if such Interest Period is longer
than three months (in the case of a Eurodollar Loan), on each three-month
anniversary of the first day of such Interest Period), (ii) in the case of a
Eurodollar Loan, when such Loan shall be converted or be due by reason of
prepayment and (iii) when such Loan shall be due at maturity or by reason of
acceleration or otherwise (other than by reason of prepayment), except that
interest payable at the Post-Default Rate shall be payable from time to time on
demand of the Administrative Agent, the Majority Banks or any Bank in respect of
its Bank Letter of Credit. Promptly after the determination of any interest rate
provided for herein or any change therein, the Administrative Agent shall notify
the Banks and the Company thereof.
ARTICLE IV
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
Section 4.01 PAYMENTS. Except to the extent otherwise provided herein,
all payments of principal, interest and other amounts to be made by the Company
hereunder and under the Notes shall be made in Dollars, in immediately available
funds, to the Administrative Agent not later than 11:00 a.m. New York time on
the date on which such payment shall become due (each
29
such payment made after such time on such due date to be deemed to have been
made on the next succeeding Business Day). The Administrative Agent, or any Bank
for whose account any such payment is made, may (but shall not be obligated to)
debit the amount of any such payment which is not made by such time to any
ordinary deposit account of the Company with the Administrative Agent or such
Bank, as the case may be. The Company shall, at the time of making each payment
hereunder or under any Note, specify to the Administrative Agent the Loans or
other amounts payable by the Company hereunder to which such payment is to be
applied (but in the event that the Company fails to so specify, or if an Event
of Default has occurred and is continuing, the Administrative Agent may apply
such payment as it may elect in its sole discretion, but subject to Section 4.02
hereof). Each payment received by the Administrative Agent hereunder or under
any Note for the account of a Bank shall be paid promptly to such Bank, in
immediately available funds, for the account of such Bank's Applicable Lending
Office for the Loan in respect of which such payment is made.
Section 4.02 PRO RATA TREATMENT. Except to the extent otherwise provided
herein: (a) subsequent to the initial borrowing hereunder, the Loans shall be
made by the Banks pro rata according to their respective Commitment Percentages;
(b) each payment by the Company of principal of the Loans shall be made to the
Administrative Agent for the account of the Banks pro rata in accordance with
the respective unpaid principal amounts of such Loans held by the Banks plus
such Banks' respective Commitment Percentages of outstanding Letter of Credit
Liabilities; (c) each payment by the Company of interest on the Loans of a
particular type shall be made to the Administrative Agent for the account of the
Banks holding Loans of such type pro rata in accordance with the respective
unpaid principal amounts of such Loans held by such Banks; and (d) each payment
of the Commitment Fee shall be made for the account of the Banks pro rata in
accordance with their respective Commitment Percentages. In no event shall the
Company at any time be entitled to request or receive any Loans or Syndicated
Letters of Credit if, after giving effect to the making or issuance thereof and
the application of the proceeds thereof, the amount of any Bank's Loans PLUS its
Letter of Credit Liabilities would exceed such Bank's Commitment Percentage of
the aggregate amount of Loans PLUS Letter of Credit Liabilities of all Banks
outstanding at such time.
Section 4.03 COMPUTATIONS. Interest on Eurodollar Loans, the Commitment Fee
and fees in respect of Syndicated Letters of Credit shall be computed on the
basis of a year of 360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable, and interest
on Base Rate Loans shall be computed on the basis of a year of 365 or 366 days,
as the case may be, and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable, except that
all interest determined on the basis of the Post-Default Rate shall be computed
on the basis of a year of 360 days and actual days elapsed (including the first
day but excluding the last day).
Section 4.04 NON-RECEIPT OF FUNDS BY ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have been notified by a Bank or the Company (the
"PAYOR") prior to the date on which such Bank is to make payment to the
Administrative Agent of the proceeds of a Loan to be made by it hereunder (or
the purchase of a participation by such Bank in a Syndicated Letter of Credit)
or the Company is to make a payment to the Administrative Agent for the account
of one or more of the Banks, as the case may be (such payment being herein
called the "REQUIRED PAYMENT"), which notice shall be effective upon receipt,
that the Payor does
30
not intend to make the Required Payment to the Administrative Agent, the
Administrative Agent may assume that the Required Payment has been made and may,
in reliance upon such assumption (but shall not be required to), make the amount
thereof available to the intended recipient on such date and, if the Payor has
not in fact made the Required Payment to the Administrative Agent, the recipient
of such payment if the Company or a Bank (and, if such recipient is the Company
or the beneficiary of a Syndicated Letter of Credit and the Company fails to pay
the amount thereof to the Administrative Agent forthwith upon such demand, the
Payor) shall, on demand, pay to the Administrative Agent the amount made
available to it together with interest thereon in respect of the period
commencing on the date such amount was so made available by the Administrative
Agent until the date the Administrative Agent recovers such amount at the
Federal Funds Rate.
Section 4.05 SHARING OF PAYMENTS, Etc. Each of the Company and the
Guarantors agrees that, in addition to (and without limitation of) any right of
set-off, banker's lien or counterclaim a Bank may otherwise have, each Bank
shall be entitled, at its option, to offset balances held by it for account of
the Company or any Restricted Subsidiary at any of its offices, in Dollars or in
any other currency, against any principal of or interest on any of such Bank's
Loans hereunder, or any Reimbursement Obligation or obligations then outstanding
in respect of Bank Letters of Credit held by such Bank hereunder, which is not
paid when due (regardless of whether such balances are then due to the Company
or such Guarantor), in which case it shall promptly notify the Company and the
Administrative Agent thereof, provided that such Bank's failure to give such
notice shall not affect the validity thereof. If a Bank shall obtain payment of
any principal of or interest on any Loan made by it to the Company under this
Agreement, or on any Reimbursement Obligation or obligations then outstanding in
respect of Bank Letters of Credit held by such Bank hereunder, through the
exercise of any right of set-off, banker's lien, counterclaim or similar right,
or otherwise, and, as a result of such payment, such Bank shall have received a
greater percentage of the amounts then due hereunder by the Company to such Bank
than the percentage received by other Banks, it shall promptly purchase from
such other Banks participations in the Loans made, or Reimbursement Obligations
or obligations then outstanding in respect of Bank Letters of Credit held, by
such other Banks in such amounts, and make such other adjustments from time to
time as shall be equitable to the end that all the Banks shall share the benefit
of such excess payment (net of any expense which may be incurred by such Bank in
obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal and interest on the Loans and Reimbursement Obligations or
obligations then outstanding in respect of Bank Letters of Credit held by each
of the Banks. To such end all the Banks shall make appropriate adjustments among
themselves (by the resale of participations sold or otherwise) if such payment
is rescinded or must otherwise be restored. Each of the Company and the
Guarantors agrees that any Bank so purchasing a participation in the Loans made,
or Reimbursement Obligations or obligations then outstanding in respect of Bank
Letters of Credit held, by other Banks may exercise all rights of set-off,
banker's lien, counterclaim or similar rights with respect to such participation
as fully as if such Bank were a direct holder of Loans in the amount of such
participation. Nothing contained herein shall require any Bank to exercise any
such right or shall affect the right of any Bank to exercise, and retain the
benefits of exercising, any such right with respect to any other indebtedness or
obligation of the Company or any other Guarantor. If under any applicable
bankruptcy, insolvency or other similar law, any Bank receives a secured claim
in lieu of a set-off to which this Section 4.05 applies, such Bank shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner
31
consistent with the rights of the Banks entitled under this Section 4.05 to
share in the benefits of any recovery on such secured claim.
Section 4.06 COMMERCIAL PRACTICES IN RESPECT OF LETTERS OF CREDIT. Without
affecting any rights the Banks may have under applicable law (including under
the ISP or the UCP), the Company agrees that none of the Banks, the
Administrative Agent, nor any of their respective officers or directors shall be
liable or responsible for, and the obligations of the Company to the Banks, and
the Administrative Agent hereunder shall not in any manner be affected by: (i)
the use which may be made of any Syndicated Letter of Credit or Bank Letter of
Credit or the proceeds thereof by the beneficiary thereof or any other Person;
(ii) the validity, sufficiency or genuineness of documents other than the
Syndicated Letters of Credit or Bank Letters of Credit, or of any endorsement(s)
thereon, even if such documents should, in fact, prove to be in any or all
respects, invalid, insufficient, fraudulent or forged; or (iii) any other
circumstances whatsoever in making or failing to make payment under any
Syndicated Letter of Credit or Bank Letter of Credit, except that the Company
shall have a claim against a Bank, and such Bank shall be liable to the Company,
to the extent, but only to the extent, of any direct, as opposed to
consequential, damages suffered by the Company which are caused by such Bank's
willful misconduct or gross negligence in determining whether documents
presented under any Syndicated Letter of Credit or Bank Letter of Credit
complied with the terms of such Syndicated Letter of Credit or Bank Letter of
Credit or such Bank's willful failure to pay under such Syndicated Letter of
Credit or Bank Letter of Credit after the presentation to it of documents
strictly complying with the terms and conditions of such Syndicated Letter of
Credit or Bank Letter of Credit. In furtherance and not in limitation of the
foregoing, any Bank may accept documents that appear on their face to be in
order without responsibility for further investigation, regardless of any notice
or information to the contrary.
Section 4.07 NO REDUCTIONS. All payments due to the Administrative Agent or
any Bank under this Agreement shall be made by the Company without any reduction
or deduction whatsoever, including any reduction or deduction for any set-off,
recoupment, counterclaim or Tax, except, subject to Section 4.08, for any
withholding or deduction for Taxes required to be withheld or deducted under
applicable law.
Section 4.08 TAXES. (a) TAXES PAYABLE BY THE COMPANY. If under applicable
law any Tax is required to be withheld or deducted from, or is otherwise payable
by the Company in connection with, any payment to the Administrative Agent or
any Bank under this Agreement, the Company shall, subject to Section 4.08(b),
pay to the Administrative Agent or such Bank, as applicable, such additional
amounts as may be necessary so that the net amount received by the
Administrative Agent or such Bank with respect to such payment, after
withholding or deducting all Taxes required to be withheld or deducted, is equal
to the full amount payable under this Agreement.
(b) LIMITATIONS. Notwithstanding anything to the contrary contained
herein, the Company shall not be required to pay any additional amount in
respect of withholding of United States Federal income taxes pursuant to this
Section 4.08 to any Bank except to the extent (A) such Taxes are required to be
withheld solely as a result of (1) in the case of a person that is a Bank on the
Effective Date, a Regulatory Change enacted after the Effective Date and (2) in
the case of a Person that becomes a Bank after the Effective Date, a Regulatory
Change enacted after
32
such Person becomes a Bank, and (B) such Bank has not failed to submit any form
or certificate that it is entitled to so submit under applicable law.
(c) EXEMPTION FROM U.S. WITHHOLDING TAXES. There shall be submitted to
the Company and the Administrative Agent, (A) on or before the first date that
interest or fees are payable to such Bank under this Agreement, (1) if at the
time the same are applicable, (aa) by each Bank that is not a United States
Person, two duly completed and signed copies of Internal Revenue Service Form
W-8BEN or W-8ECI (or any successor form to the applicable form), in either case
entitling such Bank to a complete exemption from withholding of any United
States federal income taxes on all amounts to be received by such Bank under
this Agreement, or (bb) by each Bank that is a Non-US Bank, (x) a duly completed
Internal Revenue Service Form W-8BEN (or any successor form to such form) and
(y) a certification in the form of SCHEDULE 4.08(c) that such Bank is a Non-US
Bank or (2) if at the time any of the foregoing are inapplicable, duly completed
and signed copies of such form, if any, as entitles such Bank to exemption from
withholding of United States federal income taxes to the maximum extent to which
such Bank is then entitled under applicable law, and (B) from time to time
thereafter, prior to the expiration or obsolescence of any previously delivered
form or upon any previously delivered form becoming inaccurate or inapplicable,
such further duly completed and signed copies of such form, if any, as entitles
such Bank to exemption from withholding of United States federal income taxes to
the maximum extent to which such Bank is then entitled under applicable law.
Each Bank shall promptly notify the Company and the Administrative Agent if (A)
it is required to withdraw or cancel any form or certificate previously
submitted by it or any such form or certificate has otherwise become ineffective
or inaccurate or (B) payments to it are or will be subject to withholding of
United States federal income taxes to a greater extent than the extent to which
payments to it were previously subject. Upon the request of the Company or the
Administrative Agent, each Bank that is a United States Person shall from time
to time submit to the Company and the Administrative Agent a certificate to the
effect that it is such a United States Person and a duly completed Internal
Revenue Service Form W-9 (or a successor form to such form).
ARTICLE V
YIELD PROTECTION AND ILLEGALITY
Section 5.01 ADDITIONAL COSTS IN RESPECT OF LOANS. (a) The Company shall
pay to the Administrative Agent for the account of each Bank from time to time
such amounts as such Bank may determine to be necessary to compensate it for any
costs incurred by such Bank which such Bank determines are attributable to its
making or maintaining any Eurodollar Loans hereunder or its commitment to make
such Eurodollar Loans hereunder, or any reduction in any amount receivable by
such Bank hereunder in respect of such Eurodollar Loans or such obligation (such
increases in costs and reductions in amounts receivable being herein called
"ADDITIONAL COSTS"), resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable to such Bank
under this Agreement or its Note in respect of such Eurodollar Loans (other
than taxes imposed on the overall net income of such Bank or of its
Applicable Lending Office for such
33
Eurodollar Loans by the jurisdiction in which such Bank has its principal
office or such Applicable Lending Office); or
(ii) imposes or modifies any reserve, special deposit, minimum
capital, capital ratio or similar requirements relating to any extensions
of credit or other assets of, or any deposits with or other liabilities of,
such Bank (including such Eurodollar Loans or any deposits referred to in
the definition of "Eurodollar Base Rate" in Section 1.01 hereof), or any
commitments of such Bank; or
(iii) imposes any other condition affecting this Agreement or the
Commitment of such Bank (or any of such extensions of credit or
liabilities).
Each Bank will notify the Company through the Administrative Agent of any event
which will entitle such Bank to compensation pursuant to this Section 5.01(a) as
promptly as practicable after it obtains knowledge thereof and determines to
request such compensation, and (if so requested by the Company through the
Administrative Agent) will designate a different Applicable Lending Office for
the Loans of such Bank affected by such event if such designation will avoid the
need for, or reduce the amount of, such compensation and will not, in the sole
opinion of such Bank, be disadvantageous to such Bank, provided that the Company
shall not be obligated to compensate any Bank under this Section 5.01(a) for any
Additional Costs incurred more than six months prior to the date the respective
Bank requests the Company for such compensation, except for periods preceding
such date but which are after the date such Bank notified the Company of the
possibility that such Additional Costs might be incurred as a result of the
respective Regulatory Change. Each Bank will furnish the Company with a
statement setting forth the basis and amount of each request by such Bank for
compensation under this Section 5.01(a). If any Bank requests compensation from
the Company under this Section 5.01(a), the Company may, by notice to such Bank
through the Administrative Agent, require that such Bank's Loans of the type
with respect to which such compensation is requested be converted into Base Rate
Loans in accordance with Section 5.04 hereof.
(b) Without limiting the effect of the foregoing provisions of this
Section 5.01, in the event that, by reason of any Regulatory Change, any Bank
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Bank which includes deposits by reference to which the interest rate on any
Eurodollar Loans is determined as provided in this Agreement or a category of
extensions of credit or other assets of such Bank which includes any Eurodollar
Loans or (ii) becomes subject to restrictions on the amount of such a category
of liabilities or assets which it may hold, then, if such Bank so elects by
notice to the Company (with a copy to the Administrative Agent), the obligation
of such Bank to make, and to convert Loans of any other type into, Loans of such
type hereunder shall be suspended until the date such Regulatory Change ceases
to be in effect.
(c) Without limiting the effect of the foregoing provisions of this
Section 5.01 (but without duplication), the Company shall pay directly to each
Bank from time to time on request such amounts as such Bank may determine to be
necessary to compensate such Bank for Capital Maintenance Costs with respect to
its Loans or Commitment (such compensation to include, without limitation, an
amount equal to any reduction of the rate of return on assets or
34
equity of such Bank to a level below that which such Bank could have achieved
but for such law, regulation, interpretation, directive or request). Each Bank
will notify the Company that it is entitled to compensation pursuant to this
Section 5.01(c) as promptly as practicable after it determines to request such
compensation, provided that the Company shall not be obligated to compensate any
Bank under this Section 5.01(c) for any such costs incurred more than six months
prior to the date the respective Bank requests the Company for such
compensation, except for periods preceding such date but which are after the
date such Bank notified the Company of the possibility that such costs might be
incurred.
(d) Determinations by any Bank for purposes of this Section 5.01 of
the effect of any Regulatory Change on its costs of making or maintaining Loans
or maintaining its Commitment or on amounts receivable by it in respect of Loans
or its Commitment, and of the additional amounts required to compensate such
Bank in respect of any Additional Costs, shall be conclusive, provided that such
determinations are made on a reasonable basis.
Section 5.02 LIMITATION ON TYPES OF LOANS. Anything herein to the contrary
notwithstanding, if, with respect to any Eurodollar Loans:
(a) the Administrative Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits
referred to in the definition of "Eurodollar Base Rate" in Section 1.01
hereof are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining the rate of interest for such Loans
as provided in this Agreement; or
(b) the Majority Banks determine (which determination shall be
conclusive) and notify the Administrative Agent that the relevant rates of
interest referred to in the definition of "Eurodollar Base Rate" in
Section 1.01 hereof upon the basis of which the rates of interest for such
Eurodollar Loans are to be determined do not adequately cover the cost to
such Banks of making or maintaining such Loans; pr
(c) the Majority Banks determine (which determination shall be
conclusive) and notify the Administrative Agent that funds are not
available in the eurodollar market in an amount sufficient to fund the
Eurodollar Loans requested;
then the Administrative Agent shall promptly notify the Company and each Bank
thereof, and so long as such condition remains in effect, the Banks shall be
under no obligation to make Eurodollar Loans of the affected type.
Section 5.03 ILLEGALITY. Notwithstanding any other provision of this
Agreement to the contrary, in the event that it becomes unlawful for any Bank or
its Applicable Lending Office to (a) honor its obligation to make Eurodollar
Loans hereunder, or (b) maintain Eurodollar Loans hereunder, then such Bank
shall promptly notify the Company thereof through the Administrative Agent
(which notice shall include a statement explaining the nature of such
unlawfulness) and such Bank's obligation to make Eurodollar Loans shall be
suspended until such time as such Bank may again make and maintain Eurodollar
Loans and such Bank's outstanding Eurodollar Loans shall be converted into Base
Rate Loans in accordance with Section 5.04 hereof.
35
Section 5.04 CERTAIN CONVERSIONS OF LOANS PURSUANT TO SECTION 5.01 OR 5.03.
If the obligation of any Bank to make any type of Eurodollar Loans shall be
suspended pursuant to Section 5.01 or 5.03 hereof (Loans of such type being
herein called "AFFECTED LOANS" and such type being herein called the "AFFECTED
TYPE"), all Loans which would otherwise be made by such Bank as Loans of the
Affected Type shall be made instead as Base Rate Loans (and, if an event
referred to in Section 5.01 or 5.03 hereof has occurred and such Bank determines
that it is required to convert such Loans, then, by notice to the Company with a
copy to the Administrative Agent, all Affected Loans of such Bank then
outstanding shall be automatically converted into Base Rate Loans on the date
specified by such Bank in such notice) and, to the extent that Affected Loans
are so made as (or converted into) Base Rate Loans, all payments of principal
which would otherwise be applied to such Bank's Affected Loans shall be applied
instead to its Base Rate Loans.
Section 5.05 COMPENSATION. (a) The Company shall pay to the Administrative
Agent for the account of each Bank, upon the request of such Bank through the
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Bank) to compensate it for any loss, costs or expense
incurred by it as a result of:
(i) any payment, prepayment or conversion of a Eurodollar Loan
made by such Bank for any reason (including, without limitation, the
acceleration of the Loans pursuant to Article X hereof) on a date other
than the last day of an Interest Period for such Loan; or
(ii) any failure by the Company for any reason (including,
without limitation, the failure of any of the conditions precedent
specified in Article VII hereof to be satisfied) to borrow or convert a
Eurodollar Loan to be made by such Bank on the date for such borrowing
specified in the relevant notice of borrowing under Section 2.02 hereof.
(b) Such compensation shall include Funding Costs in the case of any
payment, prepayment or conversion of, or failure to borrow or convert, any Loan
made or to be made as a Eurodollar Loan.
Section 5.06 ADDITIONAL COSTS IN RESPECT OF LETTERS OF CREDIT. If as a
result of any Regulatory Change there shall be imposed, modified or deemed
applicable any Tax, reserve, special deposit, Capital Maintenance Costs or other
requirements against or with respect to or measured by reference to Syndicated
Letters of Credit or Bank Letters of Credit issued or to be issued by any Bank
hereunder or participated in by a Bank party to this Agreement on the Effective
Date, and the result shall be to increase the cost to such Bank of issuing or
maintaining any Syndicated Letters of Credit or Bank Letters of Credit hereunder
or to such Bank party to this Agreement on the Effective Date participating
therein, or reduce any amount receivable by such Bank hereunder in respect of
any Syndicated Letters of Credit or Bank Letters of Credit (which increase in
cost, or reduction in amount receivable, shall be the result of such Bank's
reasonable allocation of the aggregate of such increases or reductions resulting
from such event), then, upon demand by such Bank, the Company agrees to pay
immediately to such Bank, such additional amounts as such Bank from time to time
specifies as necessary to compensate such Bank for such increased costs or
reductions in the amounts incurred by such Bank, all as set forth
36
in a statement submitted to the Company, which statement shall be conclusive
provided that such costs or reductions are determined on a reasonable basis; any
such statement shall set forth the basis for the respective calculation.
Section 5.07 REPLACEMENT OF BANKS. If any Bank requests compensation
pursuant to Section 5.01 or 5.06, or such Bank's obligation to make or continue,
or to convert Loans of any other type into, any type of Eurodollar Loan shall be
suspended pursuant to Section 5.02 or 5.03, or if an event occurs that entitles
such Bank to make a claim pursuant to Section 4.08, the Company, upon three
Business Days' notice to the Administrative Agent and such Bank, may require
that such Bank transfer all of its right, title and interest under this
Agreement and such Bank's Note issued hereunder to any bank or financial
institution identified by the Company with the consent of the Administrative
Agent (which consent shall not be unreasonably withheld), such assignment to be
made pursuant to an Assignment and Acceptance Agreement substantially in the
form of EXHIBIT G hereto (an "Assignment and Acceptance") (a) if such proposed
transferee agrees to assume all of the obligations of such Bank hereunder for
consideration equal to the aggregate outstanding principal amount of such Bank's
Loans, together with interest thereon to the date of such transfer, and
satisfactory arrangements are made for payment to such Bank of all other amounts
payable hereunder to such Bank on or prior to the date of such transfer
(including the amounts so requested pursuant to Section 5.01 or 5.06 or so
entitled to be claimed pursuant to Section 4.08, any fees accrued hereunder and
any amounts that would be payable under Section 5.05 as if all of such Bank's
Loans were being prepaid in full on such date) and (b) if such Bank being
replaced has requested compensation pursuant to Section 5.01 or 5.06 or is
entitled to make a claim pursuant to Section 4.08, such proposed transferee's
aggregate requested compensation, if any, pursuant to Section 5.01 or 5.06, or
the amounts, if any, entitled to be claimed by such proposed transferee pursuant
to Section 4.08, with respect to such replaced Bank's Loans would be lower than
that of the Bank replaced. Without prejudice to the survival of any other
agreement of the Company hereunder, the agreements of the Company contained in
Sections 4.08, 5.01, 5.06, 12.03 and 12.04 (without duplication of any payments
made to such Bank by the Company or the proposed transferee) shall survive for
the benefit of any Bank replaced under this Section 5.07 with respect to the
time prior to such replacement.
ARTICLE VI
GUARANTEE
(a) Each of the Guarantors hereby, jointly and severally,
unconditionally guarantees to the Banks and the Administrative Agent and their
respective successors and assigns and the subsequent holders of the Notes,
irrespective of the validity and enforceability of this Agreement or the Notes
or the obligations of the Company or any of the other Guarantors hereunder or
thereunder or any other circumstance that might otherwise affect the liability
of a guarantor, that: (i) the principal of and interest on the Loans, the Notes,
the Reimbursement Obligations and the obligations of the Company in respect of
Bank Letters of Credit and all other obligations of the Company and the other
Guarantors to the Banks or the Administrative Agent under this Agreement and the
Notes will be promptly paid in full when due, whether at stated maturity, by
acceleration or otherwise, in accordance with the terms hereof and thereof; and
(ii)
37
in case of any extension of time of payment or renewal of any Notes or any of
such other obligations, the same will be promptly paid in full when due in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise. Failing payment when due of any amount
so guaranteed for whatever reason, the Guarantors will be obligated, jointly and
severally, to pay the same immediately.
(b) Each of the Guarantors hereby waives notice of, and consents to,
any extensions of time of payment, renewals, releases of or delays in obtaining
or realizing upon or failures to obtain or realize upon any collateral for the
obligations of the Company or the other Guarantors under this Agreement, or
other indulgence from time to time granted by any of the Banks or the
Administrative Agent in respect of the Notes or this Agreement. Each of the
Guarantors hereby releases the Company from all, and agrees not to assert or
enforce (whether by or in a legal or equitable proceeding or otherwise) any,
"claims" (as defined in section 101(5) of the Bankruptcy Code) against the
Company, whether arising under applicable law or otherwise, to which such
Guarantors are or would be entitled by virtue of their obligations hereunder,
any payment made pursuant hereto, or the exercise by the Administrative Agent or
the Banks of their rights with respect to any collateral for the obligations of
the Company or the other Guarantors under this Agreement, including any such
claims to which such Guarantors may be entitled as a result of any right of
subrogation, exoneration or reimbursement in each case to the extent, but only
to the extent, that such Guarantor would be deemed a "creditor" of the Company
for purposes of Section 547 of the Bankruptcy Code solely by reason of such
Guarantor's holding or asserting such claim. To the extent not released by the
Guarantors under this Article VI, each of the Guarantors agrees that it shall
not be entitled to any right of subrogation, exoneration, reimbursement or
contribution in respect of any obligations guaranteed hereby until payment in
full of all the Obligations. With respect to the Notes and this Agreement, each
of the Guarantors hereby waives presentment, protest, demand of payment, notice
of dishonor and all other notices and demands whatsoever. Each of the Guarantors
further agrees that, as between such Guarantor, on the one hand, and the
Administrative Agent and the Banks, on the other hand, (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section 10.01
hereof for the purposes of this guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (ii) in the event of any declaration of acceleration of
such obligations as provided in Section 10.01 hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by each of the
Guarantors for the purpose of this guarantee. The obligations of each of the
Guarantors under this Article VI shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of the Company is
rescinded or must be otherwise restored by any holder of any of the obligations
guaranteed hereunder, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise and each of the Guarantors agrees that it will
indemnify the Banks and the Administrative Agent on demand for reasonable costs
and expenses (including, without limitation, fees of counsel) incurred by the
Banks or the Administrative Agent in connection with such rescission or
restoration.
(c) It is the intention of the Guarantors, the Banks and the Company
that the obligations of each Guarantor hereunder shall be in, but not in excess
of, the maximum amount permitted by applicable law. To that end, but only to the
extent such obligations would otherwise be avoidable, the obligations of each
Guarantor hereunder shall be limited to the
38
maximum amount that, after giving effect to the incurrence thereof, would not
render such Guarantor insolvent or unable to make payments in respect of any of
its indebtedness as such indebtedness matures or leave such Guarantor with an
unreasonably small capital. The need for any such limitation shall be
determined, and any such needed limitation shall be effective, at the time or
times that such Guarantor is deemed, under applicable law, to incur the
Obligations hereunder. Any such limitation shall be apportioned amongst the
Obligations pro rata in accordance with the respective amounts thereof. This
paragraph is intended solely to preserve the rights of the Banks under this
Agreement to the maximum extent permitted by applicable law, and neither the
Guarantors, the Company nor any other Person shall have any right under this
paragraph that it would not otherwise have under applicable law. The Company and
each Guarantor agree not to commence any proceeding or action seeking to limit
the amount of the obligation of such Guarantor under this Article VI by reason
of this paragraph. For the purposes of this paragraph, "insolvency",
"unreasonably small capital" and "unable to make payments in respect of any of
its indebtedness as such indebtedness matures" shall be determined in accordance
with applicable law.
ARTICLE VII
CONDITIONS PRECEDENT
Section 7.01 INITIAL LOAN OR SYNDICATED LETTER OF CREDIT. The obligation of
each Bank to make the initial extension of credit hereunder is subject to the
satisfaction of the following conditions precedent on or prior to the date of
such initial extension of credit but in any event no later than June 30, 2001:
(a) EXECUTION OF LOAN DOCUMENTS AND NOTES. (i) This Agreement
shall have been duly executed and delivered by each of the Company, the
Guarantors, the Banks and the Administrative Agent, (ii) the Company shall
have executed and delivered to each Bank its respective Note evidencing the
Loans to be made by such Bank hereunder, (iii) the Pledge Agreement shall
have been duly executed and delivered by the Company and the Administrative
Agent, (iv) the Consumer Modem Note, the Digital Video Note and the MFR
Note shall have been duly executed, in each case, in form and substance
satisfactory to the Co-Lead Arrangers and (v) the Company shall have
executed and delivered to the Administrative Agent such UCC-1 financing
statements and other documents as the Administrative Agent may request, the
filing of which are necessary or appropriate in the Administrative Agent's
determination to create or perfect the security interest created pursuant
to the Pledge Agreement.
(b) SIGNATURES. Each of the Company and the Restricted
Subsidiaries shall have certified to the Administrative Agent (with copies
to be provided for each Bank) the name and signature of each of the persons
authorized (i) to sign on its respective behalf this Agreement and, in the
case of the Company, the Notes and (ii) in the case of the Company, to
borrow under this Agreement. The Banks may conclusively rely on such
certifications until they receive notice in writing from the Company or
such Restricted Subsidiary, as the case may be, to the contrary.
39
(c) PROOF OF ACTION. The Administrative Agent shall have received
certified copies of all necessary action taken by each of the Company and
the Restricted Subsidiaries to authorize the execution, delivery and
performance of this Agreement and, in the case of the Company, the Notes
and the Pledge Agreement.
(d) OPINIONS OF COUNSEL TO THE COMPANY AND THE RESTRICTED
SUBSIDIARIES. The Administrative Agent shall have received opinions of:
(i) ▇▇▇▇▇▇ ▇▇▇▇▇, Esq., General Counsel to the Company and
the Restricted Subsidiaries, substantially in the form of EXHIBIT D
hereto;
(ii) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, special New York counsel to the
Company and the Restricted Subsidiaries, substantially in the form of
EXHIBIT E(1) hereto;
(iii) Schenk, Price, ▇▇▇▇▇ & King, special New Jersey
counsel to the Company and the Restricted Subsidiaries, substantially
in the form of EXHIBIT E(2) hereto; and
(iv) ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, special FCC counsel
to the Company and the Restricted Subsidiaries, substantially in the
form of EXHIBIT E(3) hereto;
and covering such other matters as any Bank or Banks or special New York
counsel to the Administrative Agent, Pillsbury Winthrop LLP, may reasonably
request (and for purposes of such opinions such counsel may rely upon
opinions of counsel in other jurisdictions, provided that such other
counsel are satisfactory to special counsel to the Administrative Agent and
such other opinions state that the Banks are entitled to rely thereon).
(e) OPINION OF BANKS' COUNSEL. Each Bank shall have received an
opinion of Pillsbury Winthrop LLP, special New York counsel to the
Administrative Agent, substantially in the form of Exhibit F hereto and
covering such other matters as any Bank or Banks may reasonably request.
(f) FUNDING ADJUSTMENT; CMFRI AGREEMENT. (i) The Company shall
have made arrangements satisfactory to the Administrative Agent such that,
after giving effect to the initial extension of credit hereunder, (A) the
outstanding Loans hereunder shall be made by the Banks pro rata in
accordance with their respective Commitment Percentages and (B) the Loans
(as defined in the 1998 Agreement) and all other amounts owing under the
1998 Agreement to any Bank (as defined in the 1998 Agreement) which is not
a Bank hereunder shall have been repaid in full, and (ii) the
Administrative Agent shall be satisfied that on or prior to the date of the
initial extension of credit hereunder, (A) the CMFRI Assignment has been
consummated, and (B) the Company has pledged the CMFRI Note to the
Administrative Agent for the benefit of the Banks.
(g) COMPLIANCE CERTIFICATE. The Banks shall have received a
Compliance Certificate showing that, after giving effect to this Agreement,
the Company is in
40
compliance with the provisions of this Agreement on a pro forma basis as of
the Effective Date.
(h) OTHER DOCUMENTS. Such other documents, filings, instruments
and papers relating to the documents referred to herein and the
transactions contemplated hereby as any Bank or special counsel to the
Administrative Agent shall reasonably require shall have been received by
the Administrative Agent.
(i) CERTAIN FEES. The Company shall have paid the Administrative
Agent, for its own account, fees calculated as specified in a letter dated
the date hereof.
(j) OTHER FEES. The Company shall have paid such other fees as
may have been agreed by the parties hereto.
(k) REGULATORY APPROVALS. The Company shall have obtained the
approvals of any regulatory authority set forth on Schedule 8.03 hereto
required with respect to this Agreement.
(l) FINANCIAL STATEMENTS. The Banks shall have received the
unaudited consolidated balance sheet of the Company and its Restricted
Subsidiaries as at March 31, 2001, and the related consolidated statements
of operations and stockholders' equity (deficiency) for the three month
period ended on said date.
Section 7.02 EACH LOAN AND SYNDICATED LETTER OF CREDIT. The obligation of
each Bank to make each extension of credit hereunder (which shall not include
any conversion or continuation of any outstanding Loan) is subject to the
additional conditions precedent that: (i) no Default or Event of Default shall
have occurred and be continuing; (ii) the representations and warranties in
Article VIII hereof shall be true on and as of the date of the making of, and
after giving effect to, such extension of credit with the same force and effect
as if made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date; and (iii) to
the extent requested by the Administrative Agent or any Bank, a senior executive
of the Company shall have certified compliance with clauses (i) and (ii) above
to the Administrative Agent.
The Company shall be deemed to have made a representation and warranty
hereunder as of the time of each extension of credit hereunder that the
conditions specified in such clauses have been fulfilled as of such time.
ARTICLE VIII
REPRESENTATIONS
Each of the Company and the other parties hereto (other than the Banks
and the Administrative Agent) represents, warrants and covenants as follows:
Section 8.01 EXISTENCE AND POWER. Each of the Company and the Restricted
Subsidiaries is a limited or general partnership or corporation duly organized,
validly existing
41
and in good standing under the laws of its jurisdiction of organization and is
duly qualified to transact business and is in good standing in all jurisdictions
in which such qualification is necessary in view of the properties and assets
owned and presently intended to be owned and the business transacted and
presently intended to be transacted by it except for qualifications the lack of
which, singly or in the aggregate, have not had and are not likely to have a
Materially Adverse Effect, and each of the Company and the Restricted
Subsidiaries has full power, authority and legal right to make and perform such
of this Agreement and the Notes to which it is a party.
Section 8.02 SUBSIDIARIES AND AFFILIATES. SCHEDULES 1.01(iv) AND 1.01(v)
contain a complete and correct list, as at the date hereof and the date of the
initial extension of credit hereunder, of all Subsidiaries of the Company and a
description of the legal nature of such Subsidiaries, the nature of the
ownership interests (shares of stock or general or limited partnership or other
interests) in such Subsidiaries and the holders of such interests and, except as
disclosed to the Banks in writing prior to the Effective Date, the Company and
each of its Subsidiaries owns all of the ownership interests of its Subsidiaries
indicated in such Schedules as being owned by the Company or such Subsidiary, as
the case may be, and all such ownership interests are validly issued and, in the
case of shares of stock, fully paid and non-assessable. SCHEDULE 8.02 hereto
contains a complete and correct list, as at the date hereof and the date of the
initial extension of credit hereunder, of all Affiliates of the Company which
are not Subsidiaries of the Company, the nature of the respective ownership
interests in each such Affiliate, and the holder of each such interest.
Section 8.03 AUTHORITY; NO CONFLICT. The making and performance by each of
the Company and the Restricted Subsidiaries of such of this Agreement and the
Notes to which it is a party, and each extension of credit hereunder, have been
duly authorized by all necessary action and do not and will not: (i) subject to
the consummation of the action described in Section 8.12 hereof, violate any
provision of any laws, orders, rules or regulations presently in effect (other
than violations that, singly or in the aggregate, have not had and are not
likely to have a Materially Adverse Effect), or any provision of any of the
Company's or the Restricted Subsidiaries' respective partnership agreements,
charters or by-laws presently in effect; or (ii) result in the breach of, or
constitute a default or require any consent (except for the consents described
on SCHEDULE 8.03 hereto, each of which has been duly obtained) under, any
existing indenture or other agreement or instrument to which the Company or any
of the Restricted Subsidiaries is a party or their respective properties may be
bound or affected (other than any breach, default or required consent that,
singly or in the aggregate, have not had and are not likely to have a Materially
Adverse Effect); or (iii) result in, or require, the creation or imposition of
any Lien upon or with respect to any of the properties or assets now owned or
hereafter acquired by the Company or any of the Restricted Subsidiaries.
Section 8.04 FINANCIAL CONDITION. The Company has furnished to each Bank:
(a) The consolidated balance sheet of the Company and its
consolidated Subsidiaries as at December 31, 2000, and the related
consolidated statements of operations and stockholders' equity (deficiency)
for the fiscal year ended on said date, said financial statements having
been certified by KPMG Peat Marwick; and
42
(b) The unaudited consolidated balance sheets of the Company and its
consolidated Restricted Subsidiaries as at March 31, 2001, and the related
consolidated statements of operations and stockholders' equity (deficiency)
for the fiscal quarter ended on said date.
All financial statements referred to above are complete and correct in all
material respects (subject, in the case of the unaudited financial statements
referred to above, to year-end and audit adjustments) and fairly present the
financial condition of the respective entity or groups of entities which is or
are the subject of such financial statements (as stated above), on a
consolidated basis, as at the respective dates of the balance sheets included in
such financial statements and the results of operations of such entity or groups
of entities for the respective periods ended on said dates. None of the Company
and its Restricted Subsidiaries had on any of said dates any material contingent
liabilities, liabilities for Taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments or operations
which are substantial in amount, except as referred to or reflected or provided
for in said financial statements as at said respective dates or as disclosed to
the Banks in writing prior to the date hereof. Except as disclosed to the Banks
in writing prior to the date hereof, since December 31, 2000 there has been no
material adverse change in the financial condition (from that shown by the
respective balance sheets as at December 31, 2000 included in said financial
statements) or the businesses or operations of the Company and the Restricted
Subsidiaries taken as a whole on a pro forma combined basis.
Section 8.05 LITIGATION, ETC. Except as disclosed to the Banks on
SCHEDULE 8.05, there are no lawsuits or other proceedings pending, or to the
knowledge of the Company or any Restricted Subsidiary threatened, against the
Company or any Restricted Subsidiary or any of their respective properties or
assets, before any court or arbitrator or by or before any governmental
commission, bureau or other regulatory authority that, singly or in the
aggregate, could reasonably be expected to have a Materially Adverse Effect.
Neither the Company nor any Restricted Subsidiary is in default under or in
violation of or with respect to any laws or orders, or any material provision of
any rules or regulations, or any writ, injunction or decree of any court,
arbitrator, governmental commission, bureau or other regulatory authority, or
any Franchise, except for minor defaults which, if continued unremedied, are not
likely to have a Materially Adverse Effect.
Section 8.06 TITLES AND LIENS. Except as set forth on SCHEDULE 9.12, each
of the Company and the Restricted Subsidiaries has good title to its properties
and assets, free and clear of all Liens except those permitted by Section 9.12
hereof.
Section 8.07 REGULATION U. None of the proceeds of any of the Loans,
Syndicated Letters of Credit or Bank Letters of Credit shall be used to purchase
or carry, or to reduce or retire or refinance any credit incurred to purchase or
carry, any Margin Stock or to extend credit to others for the purpose of
purchasing or carrying any Margin Stock, except that up to $10,000,000 in the
aggregate of such proceeds may be used for such purposes provided that both at
the time of such use and thereafter compliance with Regulation U is maintained.
If requested by any Bank, the Company will furnish to the Banks statements in
conformity with the requirements of Regulation U.
43
Section 8.08 TAXES. Each of the Company and the Restricted Subsidiaries has
filed all material tax returns which are required to be filed under any law
applicable thereto except such returns as to which the failure to file, singly
or in the aggregate, has not had and will not have a Materially Adverse Effect,
and has paid, or made provision for the payment of, all Taxes shown to be due
pursuant to said returns or pursuant to any assessment received by the Company
or any of the Restricted Subsidiaries, except such Taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided or
as to which the failure to pay, singly or in the aggregate, has not had and is
not likely to have a Materially Adverse Effect.
Section 8.09 OTHER
CREDIT AGREEMENTS. SCHEDULE 9.10 (Existing
Indebtedness), SCHEDULE 9.11 (Existing Guarantees) and SCHEDULE 9.12 (Existing
Liens) contain complete and correct lists, as at the date hereof and the date of
the initial extension of credit hereunder, of all
credit agreements, indentures,
purchase agreements, obligations in respect of letters of credit, guarantees and
other instruments presently in effect (including Capital Lease Obligations)
providing for, evidencing, securing or otherwise relating to any Indebtedness of
the Company and the Restricted Subsidiaries in a principal or face amount equal
to $1,000,000 or more and such lists correctly set forth the names of the debtor
or lessee and creditor or lessor with respect to the Indebtedness outstanding or
to be outstanding thereunder, the rate of interest or rentals, a description of
any security given or to be given therefor, and the maturity or maturities or
expiration date or dates thereof.
Section 8.10 FULL DISCLOSURE. None of the financial statements referred to
in Section 8.04 hereof, the SEC Reports or any written statements delivered
pursuant to Section 8.02, 8.04 or 8.15 hereof (each of which has heretofore been
furnished to each Bank) contains, as at the date hereof or the date of the
initial extension of credit hereunder, any untrue statement of a material fact
nor do such financial statements, the SEC Reports and such written statements,
taken as a whole, omit to state a material fact necessary to make the statements
contained therein not misleading.
Section 8.11 NO DEFAULT. None of the Company and the Restricted
Subsidiaries is in default in the payment or performance or observance of any
contract, agreement or other instrument to which it is a party or by which it or
its properties or assets may be affected or bound, which default, either alone
or in conjunction with all other such defaults, has had or is likely to have a
Materially Adverse Effect.
Section 8.12 APPROVAL OF REGULATORY AUTHORITIES. Except as set forth on
SCHEDULE 8.03 hereto, no approval or consent of, or filing or registration with,
any Federal, state or local commission or other regulatory authority is required
in connection with the execution, delivery and performance by the Company or any
of the Restricted Subsidiaries of such of this Agreement and the Notes to which
it is a party. All such described action required to be taken as a condition to
the execution and delivery of such of this Agreement and the Notes to which the
Company or any of the Restricted Subsidiaries is a party has been duly taken by
all such commissions and authorities or other Persons, as the case may be, and
all such action required to be taken as a condition to the initial extension of
credit hereunder has been or will be duly taken prior to such initial extension
of credit.
44
Section 8.13 BINDING AGREEMENTS. This Agreement constitutes, and the Notes
when executed and delivered will constitute, the legal, valid and binding
Iobligations of each of the Company and the Restricted Subsidiaries which is a
party thereto, enforceable in accordance with their respective terms (except for
limitations on enforceability under bankruptcy, reorganization, insolvency and
other similar laws affecting creditors' rights generally and limitations on the
availability of the remedy of specific performance imposed by the application of
general equitable principles).
Section 8.14 FRANCHISES. SCHEDULE 8.14 hereto contains a complete and
correct list, as of the date hereof and the date of the initial extension of
credit hereunder, of all of the Franchises granted to the Company and the
Restricted Subsidiaries, in each case together with the expiration date thereof,
or for which applications have been made, or are planned to be made, by the
Company or any Restricted Subsidiary.
Section 8.15 COLLECTIVE BARGAINING AGREEMENTS. Except as disclosed to the
Banks in writing prior to the Effective Date, there are no collective bargaining
agreements between the Company or the Restricted Subsidiaries and any trade or
labor union or other employee collective bargaining agent.
Section 8.16 INVESTMENTS. SCHEDULE 8.16 hereto contains a complete and
correct list, as at the date hereof, of all Investments of the Company and the
Restricted Subsidiaries (other than any Investments in other Restricted
Subsidiaries) in excess of $50,000,000, showing the respective amounts of each
such Investment and the respective entity (or group thereof) in which each such
Investment has been made.
ARTICLE IX
PARTICULAR COVENANTS OF THE
COMPANY AND THE RESTRICTED SUBSIDIARIES
From the Effective Date and so long as the Commitments of the Banks
shall be in effect and until the payment in full of all Obligations hereunder,
the expiration or termination of all Syndicated Letters of Credit and Bank
Letters of Credit and the performance of all other obligations of the Company
under this Agreement, each of the Company and the Restricted Subsidiaries agrees
that, unless the Majority Banks shall otherwise consent in writing:
A. Informational Covenants:
Section 9.01 FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company will
deliver to each Bank:
(a) As soon as available and in any event within 60 days after the end
of each of the first three Quarters of each fiscal year of the Company: (A)
consolidated statements of operations and stockholders' equity (deficiency) of
the Company and its consolidated Subsidiaries, taken together, and of the
Company and the Restricted Subsidiaries, taken together, for such Quarter and
for the period from the beginning of such fiscal year to the end of such Quarter
and (B) the related consolidated balance sheets of the Company and its
consolidated
45
Subsidiaries, taken together, and of the Company and the Restricted
Subsidiaries, taken together, as at the end of such Quarter (which financial
statements shall set forth in comparative form the corresponding figures as at
the end of and for the corresponding Quarter in the preceding fiscal year) all
in reasonable detail and accompanied by a certificate in the form of EXHIBIT
C(1) hereto of a senior financial executive of the Company certifying such
financial statements, subject, however, to year-end and audit adjustments, which
certificate shall include a statement that the senior financial executive
signing the same has no knowledge, except as specifically stated, that any
Default has occurred and is continuing.
(b) As soon as available and in any event within 120 days after the
end of each fiscal year of the Company: (A) consolidated statements of
operations and stockholders' equity (deficiency) of the Company and its
consolidated Subsidiaries, taken together, and of the Company and the Restricted
Subsidiaries, taken together, for such fiscal year and (B) the related
consolidated balance sheets of the Company and its consolidated Subsidiaries,
taken together, and of the Company and the Restricted Subsidiaries, taken
together, as at the end of such fiscal year (which financial statements shall
set forth in comparative form the corresponding figures as at the end of and for
the preceding fiscal year), all in reasonable detail and accompanied by (x) an
opinion of KPMG Peat Marwick or other independent certified public accountants
of recognized standing selected by the Company and reasonably acceptable to the
Majority Banks as to said consolidated financial statements and a certificate of
such accountants stating that, in making the examination necessary for said
opinion, they obtained no knowledge, except as specifically stated, of any
failure by the Company or any Restricted Subsidiaries to perform or observe any
of its covenants relating to financial matters in this Agreement and (y) a
certificate in the form of EXHIBIT C(2) hereto of a senior financial executive
of the Company stating that such financial statements are correct and complete
and fairly present the financial condition and results of operations of the
respective entities covered thereby as at the end of and for such fiscal year
and that the executive signing the same has no knowledge, except as specifically
stated, that any Default has occurred and is continuing.
(c) Promptly after their becoming available, copies of all financial
statements and reports which the Parent Corp., the Company or any Restricted
Subsidiary shall have sent its shareholders generally (other than tax returns
unless specifically requested under clause (h) of this Section 9.01), copies of
financial statements and reports which the Company shall have sent to the
holders of any Permitted Debt or any Indebtedness specified in SCHEDULE 9.10, to
the extent such statements and reports contain information relating to the
designation of the Company's Subsidiaries as "restricted subsidiaries" under the
Debt Instruments governing any such Indebtedness, and to the calculation of
financial ratios thereunder and copies of all regular and periodic reports, if
any, which the Parent Corp., the Company or any Restricted Subsidiary shall have
filed with the Securities and Exchange Commission, or any governmental agency
substituted therefor, or with any national securities exchange, or with the
Federal Communications Commission, or any governmental agency substituted
therefor.
(d) Within 60 days after the end of each of the first three Quarters
of each year, and within 120 days after the end of each fiscal year of the
Company, a Compliance Certificate, duly completed (including the subscriber
information required to be set forth therein) with respect to such Quarter or
fiscal year, as the case may be.
46
(e) Promptly, notice of the termination, cancellation, nonrenewal or
other loss of any Franchise for a cable television system or systems that has
had or is likely to have, either alone or in conjunction with all other such
losses, a Materially Adverse Effect, the filing of a competing application in
connection with any proceeding for renewal of any such Franchise and of any
proceeding which involves a material risk of the termination, cancellation,
nonrenewal or other loss of any such Franchise.
(f) As soon as possible and in any event within ten days after any
senior executive of the Company or any Restricted Subsidiary or of any general
partner of any Restricted Subsidiary shall have obtained knowledge of the
occurrence of a Default, a statement describing such Default and the action
which is proposed to be taken with respect thereto.
(g) From time to time, with reasonable promptness, such further
information regarding the business, affairs and financial condition of the
Company or any of the Restricted Subsidiaries or any of their respective
Affiliates or other affiliates as any Bank may reasonably request.
B. Affirmative Covenants:
Section 9.02 TAXES AND CLAIMS. Each of the Company and the Restricted
Subsidiaries will pay and discharge all Taxes imposed upon it or upon its income
or profits, or upon any properties or assets belonging to it, and all fees or
other charges for Franchises, prior to the date on which penalties attach
thereto, and all other lawful claims which, if unpaid, might become a Lien
(other than Permitted Liens) upon the property of the Company or any of the
Restricted Subsidiaries or result in the loss of a Franchise, provided that none
of the Company and the Restricted Subsidiaries shall be required to pay any such
Tax, fee or other claim the payment of which is being contested in good faith
and by proper proceedings if it maintains adequate reserves in accordance with
generally accepted accounting principles with respect thereto.
Section 9.03 INSURANCE. Each of the Company and the Restricted Subsidiaries
will maintain insurance issued by responsible companies in such amounts and
against such risks as is usually carried by owners of similar businesses and
properties in the same general areas in which the Company or such Restricted
Subsidiary operates. The Company will furnish to any Bank, upon the request of
such Bank from time to time, full information as to the insurance maintained in
accordance with this Section 9.03.
Section 9.04 MAINTENANCE OF EXISTENCE; CONDUCT OF BUSINESS. Each of the
Company and the Restricted Subsidiaries will preserve and maintain its legal
existence and all of its rights, privileges and franchises (including
Franchises), except (i) where a failure to do so, singly or in the aggregate, is
not likely to have a Materially Adverse Effect or (ii) pursuant to a Permitted
Restricted Subsidiary Transaction.
Section 9.05 MAINTENANCE OF AND ACCESS TO PROPERTIES. Each of the Company
and the Restricted Subsidiaries will keep all of its properties and assets
necessary in its business in good working order and condition, ordinary wear and
tear excepted, and will permit representatives of the respective Banks to
inspect such properties, and to examine and make extracts from its books and
records, during normal business hours.
47
Section 9.06 COMPLIANCE WITH APPLICABLE LAWS. Each of the Company and the
Restricted Subsidiaries will comply with the requirements of all applicable,
including but not limited to environmental, laws, rules, regulations and orders
of any governmental body or regulatory authority a breach of which is likely to
have, singly or in the aggregate, a Materially Adverse Effect, except where
contested in good faith and by proper proceedings if it maintains adequate
reserves in accordance with generally accepted accounting principles with
respect thereto.
Section 9.07 LITIGATION. Each of the Company and the Restricted
Subsidiaries will promptly give to the Administrative Agent notice in writing
(and the Administrative Agent will notify each Bank) of all litigation and of
all proceedings before any courts, arbitrators or governmental or regulatory
agencies against it or, to its knowledge, otherwise affecting it or any of its
respective properties or assets, except litigation or proceedings which, if
adversely determined, is not likely to, singly or in the aggregate, have a
Materially Adverse Effect. Following the initial notice of each such litigation
or proceeding, supplementary notices of all material developments in respect
thereof shall be given from time to time in like manner.
Section 9.08 SUBSIDIARIES. (a) Unless Section 9.08(b) is applicable, any
New Subsidiary acquired or formed by the Company shall be deemed an Unrestricted
Subsidiary. The Company may designate any such New Unrestricted Subsidiary as a
Programming Company by giving a notice captioned "Designation of Unrestricted
Subsidiary as Programming Company" to the Administrative Agent promptly upon the
acquisition or formation of such New Unrestricted Subsidiary, such notice to
specify whether such New Unrestricted Subsidiary has been designated as a
"restricted subsidiary" for purposes of any Debt Instruments governing any
Permitted Debt or any Indebtedness specified in SCHEDULE 9.10.
(b) The Company may designate, so long as no Default shall have
occurred and be continuing both before and after giving effect to such
designation, any New Subsidiary as a Restricted Subsidiary by giving a notice
captioned "Designation of Restricted Subsidiary" to the Administrative Agent
promptly upon the acquisition or formation of such New Subsidiary, such notice
to specify whether such New Subsidiary has been designated as a "restricted
subsidiary" for purposes of any Debt Instruments governing any Permitted Debt or
any Indebtedness specified in SCHEDULE 9.10. Promptly upon such designation, the
Company will cause (by documentation satisfactory to the Majority Banks) such
New Restricted Subsidiary to undertake all of the obligations of a "Restricted
Subsidiary" and, except in the case of any New Subsidiary that is a Subsidiary
of CMFRI, a "Guarantor" under this Agreement. Each such New Restricted
Subsidiary shall thereafter be a "Restricted Subsidiary" and, if applicable, a
"Guarantor" for all purposes of this Agreement.
(c)(i) The Company may redesignate, so long as no Default shall have
occurred and be continuing both before and after giving effect to such
redesignation, any Restricted Subsidiary as an Unrestricted Subsidiary or any
Unrestricted Subsidiary as a Restricted Subsidiary by giving a notice to the
Administrative Agent captioned "Redesignation of Restricted Subsidiary" or
"Redesignation of Unrestricted Subsidiary", as the case may be. In the case of
any redesignation of any Unrestricted Subsidiary as a Restricted Subsidiary,
promptly upon such redesignation, the Company will cause (by documentation
satisfactory to the Majority Banks) such New Restricted Subsidiary to undertake
all of the obligations of a "Restricted
48
Subsidiary" and, except in the case of CMFRI or any Subsidiary of CMFRI, a
"Guarantor" under this Agreement. Each such New Restricted Subsidiary shall
thereafter be a "Restricted Subsidiary" and, if applicable, a "Guarantor" for
all purposes of this Agreement.
(ii) Notwithstanding anything to the contrary in this Agreement, each
redesignation of any Restricted Subsidiary as an Unrestricted Subsidiary or of
any Unrestricted Subsidiary as a Restricted Subsidiary pursuant to subparagraph
(i) above shall be deemed a disposition or acquisition of assets, as the case
may be, which will be subject to Section 9.14.
Section 9.09 FRANCHISES. The Restricted Subsidiaries will comply with all
of their obligations under their respective Franchises, except for failures to
comply which, singly or in the aggregate, are not likely to have a Materially
Adverse Effect.
C. Negative Covenants:
Section 9.10 INDEBTEDNESS. Neither the Company nor any Restricted
Subsidiary will create, incur or suffer to exist any Indebtedness except:
(i) Indebtedness hereunder and under the CMFRI Agreement;
(ii) short-term Indebtedness incurred for working capital
purposes up to but not exceeding $30,000,000 in aggregate principal amount
at any one time outstanding PROVIDED, HOWEVER, that no more than
$10,000,000 of such short-term Indebtedness may be incurred from any Person
that is not a Bank;
(iii) Permitted Debt;
(iv) obligations under or in respect of Interest Swap Agreements
up to an aggregate notional principal amount not to exceed at any time an
amount equal to the Commitments of all the Banks in the aggregate at such
time;
(v) Guarantees and letters of credit permitted by Section 9.11
hereof;
(vi) Indebtedness to Restricted Subsidiaries or the Company;
(vii) Capital Lease Obligations (other than those permitted by
clause (x) of this Section 9.10), so long as the aggregate principal amount
of all such Indebtedness outstanding at any one time shall not exceed the
sum of $250,000,000;
(viii) Indebtedness issued and outstanding on the date hereof to
the extent set forth on SCHEDULE 9.10 hereto and any renewals, extensions
or refundings thereof in a principal amount not to exceed the amount so
renewed, extended or refunded;
(ix) Indebtedness incurred as consideration for any acquisition
permitted hereunder and consisting solely of a deferred or contingent
obligation to deliver common stock of the Parent Corp.;
49
(x) Capital Lease Obligations in respect of any lease of (or
other agreement conveying the right to use) digital set top boxes, provided
that the aggregate capitalized amount of such Capital Lease Obligations
(together with all such Capital Lease Obligations of each Digital Video
Subsidiary) at any one time outstanding shall not exceed $1,250,000,000;
and
(xi) Monetization Indebtedness; PROVIDED that, the Company shall
provide to the Administrative Agent prompt written notice of any such
Monetization Indebtedness incurred by the Company or a Restricted
Subsidiary together with a brief description of the terms thereof.
Section 9.11 CONTINGENT LIABILITIES. Neither the Company nor any Restricted
Subsidiary will, directly or indirectly (including, without limitation, by means
of causing a bank to open a letter of credit), guarantee, endorse, contingently
agree to purchase or to furnish funds for the payment or maintenance of, or
otherwise be or become contingently liable upon or with respect to, the
Indebtedness, other obligations, net worth, working capital or earnings of any
Person, or guarantee the payment of dividends or other distributions upon the
stock or other ownership interests of any Person, or agree to purchase, sell or
lease (as lessee or lessor) property, products, materials, supplies or services
primarily for the purpose of enabling a debtor to make payment of its
obligations or to assure a creditor against loss (all such transactions being
herein called "GUARANTEES"), except:
(i) the Guarantees in Article VI hereof;
(ii) endorsements of negotiable instruments for deposit or
collection in the ordinary course of business;
(iii) the Guarantees described in SCHEDULE 9.11;
(iv) Guarantees by the Company or one or more of the Restricted
Subsidiaries of Indebtedness of, and other obligations (incurred in the
ordinary course of business) of, another Restricted Subsidiary, but only if
such Indebtedness or obligations are permitted by this Agreement;
(v) other Guarantees, including, but not limited to, without
duplication, surety bonds, by the Company, provided that the outstanding
aggregate amount of the obligations guaranteed does not exceed $150,000,000
at any time;
(vi) Capital Lease Obligations to the extent they constitute
Guarantees by reason of having been assigned by the lessor to a lender to
such lessor (provided that the obligors in respect of such Capital Lease
Obligations do not increase their liability by reason of such assignment);
(vii) the Syndicated Letters of Credit or Bank Letters of Credit;
and
(viii) any Guarantee by the Company of the obligations of any
Unrestricted Subsidiary so long as (A) recourse to the Company thereunder
is limited solely to shares of capital stock of such Unrestricted
Subsidiary or its Subsidiaries and to no other assets
50
of the Company or the Restricted Subsidiaries and (B) neither the Company
nor any Restricted Subsidiary agrees, in connection therewith, to any
limitation on the amount of Indebtedness which may be incurred by them, to
the granting of any Liens on assets of the Company or any of the Restricted
Subsidiaries (other than shares of stock of such Unrestricted Subsidiary or
its Subsidiaries), to any acquisition or disposition of any assets of the
Company or the Restricted Subsidiaries (other than shares of capital stock
of such Unrestricted Subsidiary or its Subsidiaries) or to any modification
or supplement of this Agreement or any agreement entered into by the
Company or any of the Restricted Subsidiaries refinancing any substantial
portion of the Indebtedness outstanding under this Agreement;
(ix) Guarantees which would constitute Investments which are not
prohibited by Section 9.15 hereof; and
(x) any Guarantee by the Company of any obligation to the extent
such obligation can be satisfied (at the option of the Company) by the
delivery of common stock of the Parent Corp.
Section 9.12 LIENS. Neither the Company nor any Restricted Subsidiary will
create or suffer to exist, or permit any Consumer Modem Subsidiary or Digital
Video Subsidiary to create or suffer to exist, any mortgage, pledge, security
interest, conditional sale or other title retention agreement, lien, charge or
encumbrance upon any of its assets, now owned or hereafter acquired, securing
any Indebtedness or other obligation (all such security being herein called
"LIENS"), except:
(i) Liens on tangible personal property securing Indebtedness
owed to the Company;
(ii) Liens securing Indebtedness permitted by Sections 9.10(vii)
and (x) hereof to the extent such Liens attach solely to the assets subject
to Capital Leases constituting such Indebtedness;
(iii) Liens securing the obligations of the Company and the
Restricted Subsidiaries hereunder;
(iv) Permitted Liens;
(v) other Liens on tangible personal property in effect on the
date hereof to the extent set forth on SCHEDULE 9.12 hereto;
(vi) Liens on shares of the capital stock of, or partnership
interest in, any Unrestricted Subsidiary (other than Liens on shares of the
capital stock of any Consumer Modem Subsidiary or Digital Video
Subsidiary); and
(vii) Liens on any share of Monetized Stock to the extent such
liens secure Monetization Indebtedness related to such Monetized Stock.
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In addition, neither the Company nor any Restricted Subsidiary will enter into
or permit to exist any undertaking by it or affecting any of its properties
whereby the Company or such Restricted Subsidiary shall agree with any Person
(other than the Banks or the Administrative Agent) not to create or suffer to
exist any Liens in favor of any other Person, PROVIDED that the foregoing
restriction shall not apply to any such undertaking contained in any indenture
or other agreement governing any Permitted Debt.
Section 9.13 LEASES. Neither the Company nor any Restricted Subsidiary will
incur, assume or have outstanding any obligation to pay rent under Leases (as
lessee, guarantor or otherwise) except:
(i) Pole Rental Leases and Leases of microwave transmission
and/or reception rights related to the operation of the Company and the
Restricted Subsidiaries;
(ii) obligations under Leases by one Restricted Subsidiary to
another Restricted Subsidiary; and
(iii) obligations under Leases of equipment and other real or
personal property for use in the ordinary course of its business or the
business of a Programming Company or CSC Technology.
Section 9.14 MERGERS, ACQUISITIONS AND DISPOSITIONS, ETC. Neither the
Company nor any Restricted Subsidiary will consolidate or merge with any Person,
or sell, lease, license, assign, transfer or otherwise dispose of any part of
its business, assets or rights (including by means of any redesignation of
any Restricted Subsidiary as an Unrestricted Subsidiary pursuant to
Section 9.08(c)), provided however, that such restriction shall not apply so
long as no Default shall have occurred and be continuing both before and after
giving effect to each such consolidation, merger, sale, lease, license,
assignment, transfer or other disposition.
Section 9.15 INVESTMENTS. (a) Neither the Company nor any Restricted
Subsidiary will, directly or indirectly, make or permit to remain outstanding
any advances, loans, accounts receivable (other than (x) accounts receivable
arising in the ordinary course of business of the Company or such Restricted
Subsidiary and (y) accounts receivable owing to the Company from any
Unrestricted Subsidiary for management services (other than such accounts
receivable that constitute direct charges or out-of-pocket expenses relating to
such services) provided by the Company to such Unrestricted Subsidiary) or other
extensions of credit (excluding, however, accrued and unpaid interest in respect
of any advance, loan or other extension of credit) or capital contributions to
(by means of transfers of property to others, or payments for property or
services for the account or use of others, or otherwise), or purchase or own any
stocks, bonds, notes, debentures or other securities (including, without
limitation, any interests in any partnership, joint venture or joint adventure)
of, or any bank accounts with, or Guarantee any Indebtedness or other
obligations of, any Person (all such transactions being herein called
"INVESTMENTS"), provided however, that such restriction shall not apply so long
as no Default shall have occurred and be continuing both before and after giving
effect to each such Investment.
52
(b) Notwithstanding anything to the contrary contained herein, neither
the Company nor any Restricted Subsidiary shall make any Investment in (i) CMFRI
and CMFRI's Restricted Subsidiaries other than pursuant to one or more CMFRI
Loans, provided that the restriction set forth in this clause (i) shall not
apply at any time the aggregate outstanding principal amount of the CMFRI Loans
is at least $1,200,000,000, (ii) any Digital Video Subsidiary which is not a
Restricted Subsidiary other than pursuant to one or more Digital Video
Subsidiary Loans, and (iii) any Consumer Modem Subsidiary which is not a
Restricted Subsidiary other than pursuant to one or more Consumer Modem
Subsidiary Loans.
Section 9.16 RESTRICTED PAYMENTS. Neither the Company nor any Restricted
Subsidiary will, directly or indirectly, make or declare any Restricted Payment
(other than any Restricted Payment payable (and paid) in common stock of the
Parent Corp.) at any time, provided however, that such restriction shall not
apply so long as no Default shall have occurred and be continuing at the time
such Restricted Payment is made or would result from the making or declaration
of such Restricted Payment.
Section 9.17 BUSINESS. The Company and the Restricted Subsidiaries shall
not permit the portion of consolidated gross revenues of the Company and the
Restricted Subsidiaries derived from the business of developing, constructing,
owning, acquiring, altering, repairing, financing, operating, maintaining,
publishing, distributing, promoting and otherwise exploiting cable television
systems and related businesses, including, without limitation,
telecommunications services, data transmission and telephony activities, for any
Quarter to be less than 90% of the total consolidated gross revenues of the
Company and the Restricted Subsidiaries for such Quarter. None of the Franchise
Holding Companies will engage in any business other than acting as a nominee for
the Company or Restricted Subsidiary for which it holds a Franchise or
Franchises and will not own or hold any property other than such Franchise or
Franchises, pole attachment agreements, insurance contracts and related bonds,
and stock of other Franchise Holding Companies, or incur or be liable for any
Indebtedness or other obligations other than obligations (except for borrowed
money) arising out of the ownership or leasing as lessee of any such property
which such Franchise Holding Company is permitted to own or hold by this
Section 9.17 (provided that each such obligation would not be prohibited by any
provision of this Agreement were it incurred by the Company or the Restricted
Subsidiary for which such Franchise Holding Company acts as nominee and all such
obligations which, under generally accepted accounting principles, are required
to be reflected on a balance sheet of such Franchise Holding Company are
reflected in the balance sheets of the Company or the Restricted Subsidiary for
which such Franchise Holding Company acts as nominee required to be furnished to
the Banks hereunder).
Section 9.18 TRANSACTIONS WITH AFFILIATES. Other than as set forth on
Schedule 9.18, neither the Company nor any Restricted Subsidiary will effect any
transaction with any of its Affiliates that is not a Restricted Subsidiary on a
basis less favorable to the Company or such Restricted Subsidiary than would at
the time be obtainable for a comparable transaction in arms-length dealing with
an unrelated third party.
Section 9.19 AMENDMENTS OF CERTAIN INSTRUMENTS. (a) Neither the Company nor
any Restricted Subsidiary will modify or supplement, or consent to any waiver of
any of the provisions of, any Debt Instrument governing any Permitted Debt or
any Indebtedness specified
53
in SCHEDULE 9.10. In addition, the Company will not amend, modify or supplement
any of the provisions of its charter in respect of preferred stock of the
Company, except that the Company may (i) file any amendment or modification
thereto or supplement thereof to permit the issuance of New Preferred Stock of
the Company and (ii) file a certificate of retirement thereto in respect of (A)
the Series A Cumulative Convertible Preferred Stock and the Series B Cumulative
Convertible Preferred Stock of the Company and (B) any other series of preferred
stock of the Company the purchase, acquisition, redemption or retirement of
which is permitted by this Agreement.
(b) Neither the Company nor any Restricted Subsidiary will modify or
supplement, or consent to any waiver of any of the provisions of, or permit any
Consumer Modem Subsidiary or Digital Video Subsidiary to modify or supplement,
or consent to any waiver of, Section 10.01(l) of the CMFRI Agreement,
Section 3(e) of the Consumer Modem Note or Section 3(e) of the Digital Video
Note or any other provision of the CMFRI Agreement, the Consumer Modem Note or
the Digital Video Note to the extent the effect thereof would be to (i)
materially impair the rights of the Secured Party (as defined in the Pledge
Agreement) to exercise the remedies set forth in the CMFRI Agreement, the
Consumer Modem Note or the Digital Video Note (in each case, as in effect on the
date hereof), as the case may be, as a result of the occurrence of the
circumstances described in such Section 10.01(l), Section 3(e) or Section 3(e),
respectively, or (ii) forgive all or any portion of the Indebtedness outstanding
under the CMFRI Agreement, the Consumer Modem Note or the Digital Video Note.
Section 9.20 ISSUANCE OF STOCK. The Company will not permit any Restricted
Subsidiary to issue any shares of stock or other ownership interests in such
Restricted Subsidiary if, after giving effect thereto, the percentage of the
ownership interests in such Restricted Subsidiary held by the Company and the
Restricted Subsidiaries immediately prior to such issuance would be decreased.
D. Financial Covenants:
Section 9.21 OPERATING CASH FLOW. (a) OPERATING CASH FLOW TO TOTAL INTEREST
EXPENSE. The Company and the Restricted Subsidiaries will cause, for each
Quarter, the ratio of Operating Cash Flow for the period of four Quarters ending
with such Quarter to Total Interest Expense for such period of four Quarters
ending with such Quarter to be at least the following respective amounts at any
time during the following respective periods:
54
PERIOD RATIO
------ -----
from and including July 1, 2001 to and
including the Quarter ended March
31, 2002 1.50 to 1
from and including April 1, 2002 to and
including the Quarter ended March
31, 2004 1.75 to 1
on and after April 1, 2004 2.00 to 1
(b) OPERATING CASH FLOW LESS CONSOLIDATED CASH TAXES TO TOTAL DEBT
EXPENSE. The Company and the Restricted Subsidiaries will cause, for each
Quarter, the ratio of (i) Operating Cash Flow for the period of four Quarters
ending with such Quarter less Consolidated Cash Taxes paid during such period of
four Quarters to (ii) Total Debt Expense for such period of four Quarters ending
with such Quarter to be at least the following respective amounts at any time
during the following respective periods:
PERIOD RATIO
------ -----
from and including July 1, 2001 through
and including March 31, 2003 1.20 to 1
on and after April 1, 2003 1.50 to 1
Section 9.22 CASH FLOW RATIO. The Company and the Guarantors will not
permit the Cash Flow Ratio to exceed the following respective amounts at any
time during the following respective periods:
PERIOD RATIO
------ -----
from and including the Effective Date to
and including September 30, 2001 6.25 to 1
from and including October 1, 2001 to and
including June 30, 2003 6.00 to 1
from and including July 1, 2003 to and
including March 31, 2004 5.75 to 1
from and including April 1, 2004 to and
including March 31, 2005 5.25 to 1
on and after April 1, 2005 4.50 to 1
Section 9.23 CERTAIN SUBSIDIARIES. The Company will cause each of CMFRI and
its Subsidiaries to comply with each covenant hereunder applicable to it.
55
Section 9.24 PERMITTED RESTRICTED SUBSIDIARY TRANSACTIONS. In the event of
any Permitted Restricted Subsidiary Transaction by CMFRI or any of its
Subsidiaries to any other Restricted Subsidiary, the Company shall cause such
Restricted Subsidiary to, and such Restricted Subsidiary shall, no later than
two Business Days prior to such event, undertake (by documentation satisfactory
to the Majority Banks) all of the obligations of CMFRI under the CMFRI
Agreement, whereupon such Restricted Subsidiary shall be obligated to pay all
amounts thereunder in accordance with the terms thereof.
ARTICLE X
DEFAULTS
Section 10.01 EVENTS OF DEFAULT. If any one of the following "EVENTS OF
DEFAULT" shall occur and be continuing, namely:
(a) Any representation or warranty in this Agreement or any other Loan
Document or in any certificate, statement or other document furnished to the
Banks or the Administrative Agent pursuant hereto (including, without
limitation, any amendment thereto), or any certification made or deemed to have
been made by the Company to any Bank hereunder, shall prove to have been
incorrect, or shall be breached, in any material respect when made or deemed
made; or
(b) Default in the payment when due of any principal on any Note or
any Reimbursement Obligation or default in the payment when due of interest on
any Note or any other amount payable to any Bank or the Administrative Agent
hereunder, and the failure to pay such interest or such other amount by 11:00
a.m. on the second next following Business Day; or
(c) Default by the Company or any of the Restricted Subsidiaries in
the performance or observance of any of its agreements in Article IX hereof
(other than Sections 9.01, 9.02, 9.03, 9.05, 9.06, 9.07 and 9.15 hereof but
including Section 9.01(f) hereof); or
(d) Default by the Company or any of the Restricted Subsidiaries in
the performance or observance of any of its other agreements herein or in any
other Loan Document which shall remain unremedied for 30 days after notice
thereof shall have been given to the Company by any Bank (provided that such
period shall be five days and no such notice shall be required in the case of a
default under Section 9.15 hereof and provided further that such period shall be
fifteen days and no such notice shall be required in the case of a default under
Section 9.01(d) hereof); or
(e) Any Indebtedness of the Company or any of the Restricted
Subsidiaries in an aggregate principal amount of $10,000,000 or more, excluding
any Indebtedness for the deferred purchase price of property or services owed to
the Person providing such property or services as to which the Company or such
Restricted Subsidiary is contesting its obligation to pay the same in good faith
and by proper proceedings and for which the Company or such Restricted
Subsidiary has established appropriate reserves (herein called "EXCLUDED
INDEBTEDNESS"), shall (i) become due before stated maturity by the acceleration
of the maturity thereof by reason of default or (ii) become due by its terms and
shall not be promptly paid or extended; or
56
(f) Any default under any indenture,
credit agreement or loan
agreement or other agreement or instrument under which Indebtedness of the
Company or any of the Restricted Subsidiaries constituting indebtedness for
borrowed money in an aggregate principal amount of $2,000,000 or more is
outstanding (other than Excluded Indebtedness), or by which any such
Indebtedness is evidenced, shall have occurred and shall continue for a period
of time sufficient to permit the holder or holders of any such Indebtedness (or
a trustee or agent on its or their behalf) to accelerate the maturity thereof or
to enforce any Lien provided for by any such indenture, agreement or instrument,
as the case may be, unless such default shall have been permanently waived by
the respective holder of such Indebtedness; or
(g) The Company or any of the Restricted Subsidiaries shall (i) apply
for or consent to the appointment of, or the taking of possession by, a
receiver, custodian, trustee or liquidator of itself or of all or a substantial
part of its property, (ii) admit in writing its inability, or be generally
unable, to pay its debts as they become due, (iii) make a general assignment for
the benefit of creditors, (iv) be adjudicated a bankrupt or insolvent, (v)
commence a voluntary case under the Federal bankruptcy laws (as now or hereafter
in effect), (vi) file a petition seeking to take advantage of any law relating
to bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, (vii) acquiesce in writing to, or fail to controvert in a
timely and appropriate manner, any petition filed against the Company or any
Restricted Subsidiary in any involuntary case under such bankruptcy laws, or
(viii) take any action for the purpose of effecting any of the foregoing; or
(h) A case or other proceeding shall be commenced, without the
application, approval or consent of the Company or any of the Restricted
Subsidiaries, in any court of competent jurisdiction, seeking the liquidation,
reorganization, dissolution, winding up, or composition or readjustment or debts
of the Company or any Restricted Subsidiary, the appointment of a trustee,
receiver, custodian, liquidator or the like of the Company or such Restricted
Subsidiary or of all or any substantial part of its assets, or any other similar
action with respect to the Company or such Restricted Subsidiary under the laws
of bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, and such case or proceeding shall continue undismissed, or
unstayed and in effect, for any period of 30 consecutive days, or an order for
relief against the Company or any Restricted Subsidiary shall be entered in an
involuntary case under the Federal bankruptcy laws (as now or hereafter in
effect); or
(i) A judgment for the payment of money in excess of $1,000,000 shall
be rendered against the Company or any Restricted Subsidiary and such judgment
shall remain unsatisfied and in effect for any period of 30 consecutive days
without a stay of execution or (if a stay is not provided for by applicable law)
without having been fully bonded; or
(j) Any Franchise issued to the Company or any Restricted Subsidiary
shall be revoked or canceled or expire by its terms and not be renewed, or shall
be modified in a manner adverse to the Company or the Restricted Subsidiary
utilizing such Franchise, if such action is likely to have a Materially Adverse
Effect; or
(k) (i) Any Termination Event shall occur; (ii) any Accumulated
Funding Deficiency, whether or not waived, shall exist with respect to any Plan;
(iii) any Person shall
57
engage in any Prohibited Transaction involving any Plan; (iv) the Company or any
ERISA Affiliate is in "default" (as defined in Section 4219(c)(5) of ERISA) with
respect to payments to a Multiemployer Plan resulting from the Company's or any
ERISA Affiliate's complete or partial withdrawal (as described in Section 4203
or 4205 of ERISA) from such Plan; (v) the Company or any ERISA Affiliate shall
fail to pay when due an amount which is payable by it to the PBGC or to a Plan
under Title IV of ERISA and which, when aggregated with all other such amounts
with respect to the payment of which the Company and its ERISA Affiliates are at
the time in default, exceeds $500,000; (vi) a proceeding shall be instituted by
a fiduciary of any Plan against the Company or any ERISA Affiliate to enforce
Section 515 of ERISA and such proceeding shall not have been dismissed within 30
days thereafter; and by reason of any or all of such events described in clauses
(i) through (vi) as applicable there shall or could result in actual or
potential liability of the Company and any ERISA Affiliate in excess of $500,000
in the aggregate; or
(l) (i) ▇▇▇▇▇ Family Interests shall cease at any time to have
beneficial ownership (within the meaning of Rule 13d-3 (as in effect on the date
hereof) promulgated under the Securities and Exchange Act of 1934, as amended)
of shares of the capital stock of Parent Corp. having sufficient votes to elect
(or otherwise designate) at such time a majority of the members of the Board of
Directors of Parent Corp., (ii) Parent Corp. shall cease to own (free and clear
of all Liens) directly 100% of the common stock of the Company, or any Person
(other than Parent Corp.) shall obtain the legal or contractual right to own, or
to cause the transfer of the ownership of, any of the common stock of the
Company, without regard to any required approval of any other Person, or (iii)
the Company shall cease to own directly 100% of the common stock of CMFRI, or
any Person (other than the Company) shall obtain the legal or contractual right
to own, or to cause the transfer of the ownership of, any of the common stock of
CMFRI, without regard to any required approval of any other Person;
(m) Any Event of Default under (and as defined in) the CMFRI Agreement
shall have occurred and be continuing; or
(n) The Company or any Restricted Subsidiary asserts or any Affiliate
institutes any proceedings seeking to establish or any Person obtains a judgment
establishing that (i) any provision of the Loan Documents is invalid, not
binding or unenforceable or (ii) the Lien created, or purported to be created,
by the Loan Documents is not a valid and perfected first priority security
interest in the property in which such Lien is created, or purported to be
created, pursuant to the Loan Documents.
THEREUPON, the Administrative Agent may (and, if directed by the Majority Banks,
shall) by notice to the Company terminate the Commitments of the Banks hereunder
(if then outstanding) and the obligation to issue any Syndicated Letter of
Credit hereunder, and/or terminate any Syndicated Letter of Credit and/or any
Bank Letter of Credit by sending the notice of termination as provided therein
and/or declare the unpaid principal of and accrued interest on the Notes, and
all other amounts owing hereunder, to be forthwith due and payable, whereupon
the same shall be and become forthwith due and payable, without presentment or
demand for payment, notice of nonpayment, protest or further notice or demand of
any kind, all of which are hereby expressly waived by the Company (provided that
the Banks' Commitments hereunder, and the obligation to issue Syndicated Letters
of Credit hereunder, shall forthwith terminate and the
58
unpaid principal of and accrued interest on the Notes, and all other amounts
owing hereunder, shall automatically become and be forthwith due and payable
upon the occurrence of any event specified in clause (g) or (h) above without
any such notice or other action, all of which are hereby expressly waived by the
Company).
Section 10.02 CASH COLLATERAL ACCOUNT. The Company hereby agrees, in
addition to the provisions of Section 10.01 hereof, that upon the occurrence and
during the continuance of any Event of Default, it shall, upon demand by the
Majority Banks (and, in the case of any Event of Default specified in clause (g)
or (h) of Section 10.01 hereof, forthwith, without any demand or the taking of
any other action by the Banks) pay to the Administrative Agent an amount in
immediately available funds equal to the then aggregate undrawn face amount of
the Syndicated Letters of Credit and Bank Letters of Credit and that any amounts
received by the Administrative Agent pursuant to this Section 10.02 (and all
investments of such amounts and earnings and proceeds of such investments) shall
be held by the Administrative Agent in a cash collateral account in the name of
the Administrative Agent entitled "CSC Holdings, Inc. Letter of Credit Cash
Collateral Account" as collateral for the prompt payment and performance when
due of the Company's Obligations to the Banks, as the case may be, in respect of
all then outstanding Syndicated Letters of Credit and Bank Letters of Credit,
and upon satisfaction of the Reimbursement Obligations and the obligations then
outstanding of the Company in respect of the Bank Letters of Credit, as
collateral for all other Obligations. The balance in such collateral account
from time to time (including all earnings thereon) shall be invested and
reinvested by the Administrative Agent in such interest-bearing obligations of
the type described in clauses (i) and (ii) of the definition of "Cash on Hand"
as the Administrative Agent shall from time to time select, and the Company
hereby authorizes and directs the Administrative Agent to collect and receive
any earnings and proceeds of any such Investments and to credit the net amount
of all such receipts to such cash collateral account.
Section 10.03 DISPOSITION OF CERTAIN ASSETS. The Company further agrees, in
addition to the provisions of Sections 10.01 and 10.02 hereof, that upon the
occurrence and during the continuance of an Event of Default, it shall, upon
demand by the Majority Banks, take all necessary action to transfer the
ownership of the common stock of CMFRI to a purchaser pursuant to a sale of such
stock effected on such terms and conditions as reasonably acceptable to the
Majority Banks.
ARTICLE XI
THE ADMINISTRATIVE AGENT
Section 11.01 APPOINTMENT, POWERS AND IMMUNITIES. Each Bank hereby appoints
and authorizes the Administrative Agent to act as its agent for, and
representative (within the meaning of Section 9-105(m) of the Uniform Commercial
Code, as in effect in the State of New York) of, such Bank under the Loan
Documents, with such powers as are specifically delegated to the Administrative
Agent and the Collateral Agent by the terms of the Loan Documents, together with
such other powers as are reasonably incidental thereto, and each Bank authorizes
the Administrative Agent, in its capacity as Collateral Agent, to execute the
Pledge Agreement on behalf of each Bank. Each Bank further authorizes the
Administrative Agent to execute any amendment, waiver or modification of the
Pledge Agreement on behalf of the Banks, PROVIDED
59
that the Administrative Agent shall have received the consent thereto from the
Majority Banks or, if such amendment, waiver or modification would have the
effect of releasing all or a significant portion of the Collateral for the
Obligations, all of the Banks. The Administrative Agent shall not have any
duties or responsibilities except those expressly set forth in the Loan
Documents and shall not by reason of the Loan Documents be a trustee for any
Bank. The Administrative Agent shall not be responsible to any of the Banks for
any recitals, statements, representations or warranties contained in the Loan
Documents or in any certificate or other document referred to or provided for
in, or received by any of the Banks under, the Loan Documents, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of the Loan
Documents or any other document referred to or provided for herein or for any
failure by the Company to perform any of its obligations hereunder. The
Administrative Agent may employ agents and attorneys-in-fact and shall not be
responsible, except as to money or securities received by it or its authorized
agents, for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Neither the Administrative Agent nor any of
its directors, officers, employees or agents shall be liable or responsible for
any action taken or omitted to be taken by it or them hereunder or in connection
herewith or therewith, except for its or their own gross negligence or willful
misconduct.
Section 11.02 RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof received by telephone, telex, telegram or cable) believed
by it to be genuine and correct and to have been signed or sent by or on behalf
of the proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by the
Administrative Agent. As to any matters not expressly provided for by the Loan
Documents, the Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder or thereunder in accordance with
instructions signed by the Majority Banks, and such instructions of the Majority
Banks and any action taken or failure to act pursuant thereto shall be binding
on all of the Banks.
Section 11.03 DEFAULTS. The Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default (other than the non-payment of
principal of or interest on the Obligations) unless the Administrative Agent has
received notice from a Bank or the Company specifying such Default and stating
that such notice is a "Notice of Default". In the event that the Administrative
Agent receives such a notice of the occurrence of a Default, the Administrative
Agent shall give prompt notice thereof to the Banks (and shall give each Bank
prompt notice of each such non-payment). The Administrative Agent shall (subject
to Section 11.07 hereof) take such action with respect to such Default as shall
be reasonably directed by the Majority Banks, provided that, unless and until
the Administrative Agent shall have received such directions, the Administrative
Agent may take such action, or refrain from taking such action, with respect to
such Default as it shall deem advisable in the best interest of the Banks.
Section 11.04 RIGHTS AS A BANK. With respect to its Commitment and the
Loans made by it, the Administrative Agent in its capacity as a Bank hereunder
shall have the same rights and powers hereunder as any other Bank and may
exercise the same as though it were not acting as Administrative Agent, and the
term "Bank" or "Banks" shall, unless the context otherwise indicates, include
the Administrative Agent in its individual capacity. The Administrative Agent
and its affiliates may (without having to account therefor to any Bank) accept
deposits from, lend
60
money to and generally engage in any kind of banking, trust or other business
with the Company, the Restricted Subsidiaries and any of their affiliates as if
it were not acting as Administrative Agent, and the Administrative Agent and its
affiliates may accept fees and other consideration from the Company, the
Restricted Subsidiaries and any of their affiliates for services in connection
with the Loan Documents or otherwise without having to account for the same to
the Banks.
Section 11.05 INDEMNIFICATION. The Banks agree to indemnify the
Administrative Agent (to the extent not reimbursed under Sections 12.03 and
12.04 hereof, but without limiting the obligations of the Company under said
Sections 12.03 and 12.04), ratably in accordance with the aggregate principal
amount of the Obligations held by the Banks (or, if no Loans are at the time
outstanding, ratably in accordance with their respective Commitments), for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of any Loan Document
or any other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (including, without limitation, the
costs and expenses which the Company is obligated to pay under Sections 12.03
and 12.04 hereof but excluding, unless a Default has occurred and is continuing,
normal administrative costs and expenses incident to the performance of its
agency duties hereunder) or the enforcement of any of the terms hereof or of any
such other documents, provided that no Bank shall be liable for any of the
foregoing to the extent they arise from the gross negligence or willful
misconduct of the Person to be indemnified.
Section 11.06 NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER BANKS. Each
Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Company and the Restricted Subsidiaries and decision to enter into this
Agreement and that it will, independently and without reliance upon the
Administrative Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or
any other document contemplated by or referred to herein. The Administrative
Agent shall not be required to keep itself informed as to the performance or
observance by the Company and the Restricted Subsidiaries of any Loan Document
or to inspect the properties or books of the Company and the Restricted
Subsidiaries. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Administrative Agent
hereunder, the Administrative Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the affairs,
financial condition or business of the Company and the Restricted Subsidiaries
(or any of their Affiliates) which may come into the possession of the
Administrative Agent or any of its affiliates.
Section 11.07 FAILURE TO ACT. Except for action expressly required of the
Administrative Agent hereunder, the Administrative Agent shall in all cases be
fully justified in failing or refusing to act hereunder unless it shall be
indemnified to its satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to take
any such action.
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Section 11.08 RESIGNATION OR REMOVAL OF ADMINISTRATIVE AGENT. Subject to
the appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by giving notice thereof
to the Banks and the Company and the Administrative Agent may be removed at any
time with or without cause by the Majority Banks. Upon any such resignation or
removal, the Majority Banks shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Majority Banks and shall have accepted such appointment within
30 days after the retiring Administrative Agent's giving of notice of
resignation or the Majority Banks' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent, which shall be a bank organized or licensed
under the laws of the United States of America or any State having an office (or
an affiliate with an office) in New York, New York and a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. After the retiring Administrative Agent's resignation
or removal hereunder as Administrative Agent, the provisions of this Article XI
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative Agent.
Section 11.09 AGENCY FEE. So long as the Commitments are outstanding and
until payment in full of all Obligations hereunder and the expiration or
termination of all Syndicated Letters of Credit and Bank Letters of Credit, the
Company will pay to the Administrative Agent such fees as may have been agreed
to by the Company and the Administrative Agent. Such fees, once paid, shall be
non-refundable.
Section 11.10 OTHER AGENTS. None of the Banks or other Persons identified
on the facing page, recitals or signature pages of this Agreement as a
"syndication agent," "documentation agent," "co-agent," "co-lead arranger,"
"co-book manager" or "arranger," shall have any right, power, obligation,
liability, responsibility or duty under this Agreement or any other Loan
Document other than those applicable to all Banks as such. Without limiting the
foregoing, none of the Banks so identified shall have or be deemed to have any
fiduciary relationship with any Bank. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks so identified in deciding to
enter into this Agreement or any other Loan Document or in taking or not taking
action hereunder or thereunder.
ARTICLE XII
MISCELLANEOUS
Section 12.01 NO WAIVER. No failure on the part of the Administrative Agent
or any Bank to exercise and no delay in exercising, and no course of dealing
with respect to, any right, power or privilege under this Agreement or any other
Loan Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege under this Agreement or any other Loan
Document preclude any other or further exercise thereof or the
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exercise of any other right, power or privilege. The remedies provided herein
are cumulative and not exclusive of any remedies provided by law.
Section 12.02 NOTICES. All notices and other communications provided for
herein or in any other Loan Document shall, unless otherwise specified, be by
telegraph, cable or in writing and telecopied, telegraphed, cabled, mailed or
delivered to the intended recipient at the "Address for Notices" specified in
SCHEDULE 12.02 hereto or, as to any party, at such other address as shall be
designated by such party in a notice to each other party. Except as otherwise
provided in Section 2.02 hereof, all notices and other communications hereunder
shall be deemed to have been duly given when transmitted by telecopier,
delivered to the telegraph or cable office or personally delivered or, in the
case of a mailed notice, four Business Days after the date deposited in the
mails, airmail postage prepaid, in each case given or addressed as aforesaid.
Section 12.03 EXPENSES, Etc. The Company shall pay or reimburse each of the
Banks and the Administrative Agent (including, without limitation, in its
capacity as Collateral Agent) for: (a) the reasonable fees and expenses of
Pillsbury Winthrop LLP, special New York counsel to the Administrative Agent, in
connection with (i) the negotiation, preparation, execution and delivery of this
Agreement, the Notes and the other Loan Documents, the making of the Loans and
the issuance of Syndicated Letters of Credit or Bank Letters of Credit hereunder
and (ii) any amendment, modification or waiver of any of the terms of this
Agreement, the Notes or any of such Loan Documents; (b) all reasonable costs and
expenses of the Banks and the Administrative Agent (including reasonable
counsels' fees and expenses) in connection with the enforcement, protection,
preservation or exercise of any of their rights under this Agreement, the Notes
and the other Loan Documents; and (c) all transfer, stamp, documentary or other
similar taxes, assessments or charges levied by any governmental or revenue
authority in respect of this Agreement, any of the Notes or any other Loan
Document. The Company shall (to the fullest extent permitted by applicable law)
indemnify the Administrative Agent, the Banks and each affiliate thereof and
their respective directors, officers, employees and agents from, and hold each
of them harmless against, any and all losses, liabilities, claims or damages to
which any of them may become subject, insofar as such losses, liabilities,
claims or damages arise out of or in any way relate to or result from any actual
or proposed use by the Company of the proceeds of any of the extensions of
credit (whether a Loan, a Syndicated Letter of Credit or a participation
therein, or a Bank Letter of Credit) hereunder and/or the negotiation,
execution, delivery or performance of this Agreement, the Notes or any other
Loan Document or any extensions of credit (whether a Loan, a Syndicated Letter
of Credit or a participation therein, or a Bank Letter of Credit) made or to be
made hereunder or from any investigation, litigation or other proceeding
(including any threatened investigation or proceeding) relating to the
foregoing, and the Company shall reimburse the Administrative Agent and each
Bank, and each affiliate thereof and their respective directors, officers,
employees and agents, upon demand, for any expenses (including legal fees)
incurred in connection with any such investigation or proceeding (but excluding
any such losses, liabilities, claims, damages, or expenses to the extent, but
only to the extent, caused by action taken which constitutes the gross
negligence or willful misconduct of the Person to be indemnified). If and to the
extent that the obligations of the Company under the preceding sentence may be
unenforceable for any reason, the Company shall make the maximum contribution to
the payment and satisfaction of each of the losses, liabilities, claims, damages
and expenses referred to above as may be permitted by applicable law.
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Section 12.04 LETTER OF CREDIT INDEMNIFICATION. The Company hereby
indemnifies and holds harmless each Bank and the Administrative Agent from and
against any and all claims and damages, losses, liabilities, costs or expenses
which such Bank or the Administrative Agent may incur (or which may be claimed
against such Bank or the Administrative Agent by any Person whatsoever) by
reason of or in connection with the execution and delivery or transfer of or
payment or failure to pay under any Syndicated Letter of Credit or Bank Letter
of Credit; provided that the Company shall not be required to indemnify any Bank
or the Administrative Agent for any claims, damages, losses, liabilities, costs
or expenses to the extent, but only to the extent, caused by (i) the willful
misconduct or gross negligence of such Bank or the Administrative Agent in
determining whether a request presented under any Syndicated Letter of Credit or
Bank Letter of Credit complied with the terms of such Syndicated Letter of
Credit or Bank Letter of Credit or (ii) such Bank's failure to pay under any
Syndicated Letter of Credit or Bank Letter of Credit after the presentation to
it of a request strictly complying with the terms and conditions of the
Syndicated Letter of Credit or Bank Letter of Credit. Nothing in this
Section 12.04 is intended to limit the obligations of the Company hereunder.
Section 12.05 AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement or the Notes, nor any consent to any departure by the Company
therefrom, shall in any event be effective unless the same shall be agreed or
consented to by the Majority Banks, and each such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; PROVIDED that no amendment, waiver or consent shall, unless in writing
and signed by all the Banks, do any of the following: (a) increase the
Commitment of any of the Banks, extend the Commitment Termination Date or any
date on which the Commitments are scheduled to reduce hereunder, or subject the
Banks to any additional obligations; (b) reduce the principal of, or interest
on, or fees with respect to, the Obligations or the amount of any scheduled
payments thereof; (c) postpone any date fixed for payment of principal of, or
interest on, or fees with respect to, the Obligations or the Notes; (d) change
the percentage of the Commitments or of the aggregate unpaid principal amount of
the Obligations, or the number of Banks which shall be required for the Banks or
any of them to take any action under this Agreement; (e) release all or a
significant portion of any collateral for the Obligations; (f) change any
provision contained in Section 4.05, Articles V, VI, VII, Section 12.03 hereof
or this Section 12.05; and (g) release or remove any Guarantor from its
obligations hereunder other than any such release or removal resulting from a
transaction permitted by Section 9.14 hereof. Anything in this Section 12.05 to
the contrary, no amendment, waiver or consent shall be made with respect to the
matters set forth in the proviso to the previous sentence and the Administrative
Agent shall not release any balance in the cash collateral account described in
Section 10.02 hereof without the prior written consent of each Bank.
Section 12.06 SUCCESSORS AND ASSIGNS. (a) This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
(b) Neither the Company nor any Guarantor may sell or assign its
rights or obligations hereunder or under the Notes without the prior consent of
all of the Banks and the Administrative Agent.
(c) At any time after the Effective Date, a Bank may sell a
participation of all or part of its rights and obligations under such Bank's
Commitment under this Agreement and the
64
Notes to one or more commercial banks, investment companies or other financial
institutions (each, a "participant"), such participant's rights against such
Bank to be set forth in a participation agreement (a "Participation Agreement");
PROVIDED, HOWEVER, that (i) such Bank shall have submitted in writing to the
Company and to the Administrative Agent a request that each of the Company and
the Administrative Agent consent to the choice of such participant, (ii) the
Administrative Agent and, unless an Event of Default has occurred and is
continuing, the Company shall have consented in writing to the choice of such
participant prior to the time of effectiveness of such participation, such
consent not to be unreasonably withheld or delayed, and (iii) in the event such
Bank was party to this Agreement on the Effective Date, after giving effect to
such participation such Bank's Commitment not so participated if any shall be at
least $10,000,000. All amounts payable by the Company to any Bank under Article
V hereof shall be determined as if such Bank had not sold any such participation
and as if such Bank were funding all of its Commitment and Loans in the same way
that it is funding the Commitment and Loans in which no participations have been
sold. In no event shall a Bank that sells a participation be obligated to the
participant under its Participation Agreement to refrain from taking any action
hereunder or under such Bank's Note except that such Bank may agree in such
Participation Agreement that it will not, without the consent of such
participant, agree to (A) extend the Commitment Termination Date or any date on
which any Commitments are scheduled to reduce hereunder, (B) reduce the
principal of, or interest on, the Obligations or under the Notes or any
Commitment Fee, (C) postpone any date fixed for payment of the principal of, or
interest on, the Obligations or under the Notes, (D) consent to any release of
all or a significant portion of any collateral for the Obligations or (E) change
any provision contained in Article VI hereof. Any Bank selling a participation
hereunder shall promptly notify the Company of the effectiveness thereof.
(d) At any time after the Effective Date, a Bank may assign all or
part of its rights and obligations under such Bank's Commitment under this
Agreement and the Notes to one or more commercial banks, investment companies or
other financial institution (each, an "assignee") pursuant to an Assignment and
Acceptance; provided, that (i) such Bank shall have submitted in writing to the
Company and the Administrative Agent a request that each of the Company and the
Administrative Agent consent to the choice of such assignee, (ii) the
Administrative Agent and, unless an Event of Default has occurred and is
continuing, the Company shall have consented in writing to the choice of such
assignee prior to the time of effectiveness of such assignment, such consent not
to be unreasonably withheld or delayed, (iii) such assignment must be in an
aggregate amount not less than $10,000,000, (iv) the parties to each assignment
shall execute and deliver to the Administrative Agent, for its approval,
acceptance and recording in the books and records maintained pursuant to
Section 12.06(f) hereof an Assignment and Acceptance, together with a processing
and recordation fee of $3,500 and (v) in the event such Bank was party to this
Agreement on the Effective Date, after giving effect to such assignment, such
Bank's Commitment shall not be less than $10,000,000. Upon such execution,
delivery, approval, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder shall
be a party hereto, and to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, have the rights
and obligations of a Bank hereunder and under the Notes and (y) the Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations hereunder and under the
65
Notes. Any Bank making an assignment hereunder shall promptly notify the Company
of the effectiveness thereof. In the event of any such assignment, the Company
shall, against receipt of the existing Note of the Bank assignor, issue a new
Note to the Bank assignee and, in the case of a partial assignment, to such Bank
assignor, in either case appropriately reflecting such assignment.
(e) By executing and delivering an Assignment and Acceptance, the Bank
assignor thereunder and the assignee thereunder shall confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Bank 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 or any other instrument or document furnished pursuant
hereto; (ii) such assigning Bank makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Company or its
Subsidiaries or the performance or observance by the Company or its Subsidiaries
of any of its obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Sections 8.04 and 9.01 hereof 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; (iv) such assignee will,
independently and without reliance upon the Administrative Agent, such assigning
Bank or any other Bank 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; (v) such assignee appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under this Agreement as are delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers
as are reasonably incidental thereto; and (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Bank.
(f) The Administrative Agent shall maintain books and records in which
shall be recorded (i) the names and addresses of the Banks and the Commitments
of, and principal amount of Obligations, including the Letter of Credit
Liabilities, owing to, each Bank from time to time; (ii) all other appropriate
debits and credits as provided in this Agreement, including, without limitation,
all interest, fees (including attorneys' fees and disbursements to the extent
reimbursable hereunder), expenses, charges and other Obligations; and (iii) all
payments of Obligations made by the Company or for the Company's account. All
entries in such books and records shall be made in accordance with the
Administrative Agent's customary accounting practices as in effect from time to
time. The Administrative Agent will render a quarterly statement to the Company
detailing all relevant transactions for billing purposes. Each and every such
statement shall be deemed final, binding and conclusive upon the Company in all
respects as to all matters reflected therein (absent manifest error), unless the
Company, within 15 days after the date such statement is rendered, delivers to
the Administrative Agent written notice of any objections which the Company may
have to any such statement. In that event, only those items expressly objected
to in such notice shall be deemed to be disputed by the Company. Notwithstanding
the foregoing, the Administrative Agent's entries in the books and records
evidencing Loans and other financial accommodations made from time to time shall
be final,
66
binding and conclusive upon the Company (absent manifest error) as to the
existence and amount of the Obligations recorded in such books and records.
(g) The Administrative Agent shall maintain at the applicable address
for notices as determined in accordance with Section 12.02 hereof a copy of each
Assignment and Acceptance delivered to and accepted by it and shall record in
such books and records the names and addresses of each Bank and the Commitment
of, and principal amount of the Loans owing to, such Bank from time to time. The
Company, the Administrative Agent and the Banks may treat each Person whose name
is so recorded as a Bank hereunder for all purposes of this Agreement.
(h) If any Bank (or, if such Bank has participated any part of its
Loans or Commitment, any of such Bank's participants) does not agree with a
proposal of the Company for an amendment, waiver or consent in respect of an
issue described in the penultimate sentence of Section 12.06(c) hereof, the
Company may require that such Bank (and each of its participants, if any)
transfer all of its right, title and interest under this Agreement to any Person
(a "Proposed Bank") identified by the Company who agrees to assume the
obligations of such Bank for a consideration equal to the outstanding principal
amount of such Bank's Loans, together with interest thereon to the date of such
transfer and all other amounts payable hereunder to such Bank on or prior to the
date of such transfer (including any fees accrued hereunder and any amounts
which would be payable under Section 5.05 hereof) as if all of such Bank's Loans
were being prepaid in full on such date. Subject to the execution and delivery
of such instruments and agreements relating to such transfer as the Banks
(including the Proposed Bank and such Bank) shall request, such Proposed Bank
shall be a "Bank" for all purposes hereunder.
(i) A Bank may furnish any information concerning the Company or any
of its Subsidiaries in the possession of such Bank from time to time to
assignees and participants (including prospective assignees and participants).
(j) Notwithstanding anything in the foregoing to the contrary, (x)
each Bank may, without complying with any restrictions, or paying any processing
or recordation fee, set forth in this Section 12.06, sell participations in or
assign all or any part of its rights and obligations under such Bank's
Commitment under this Agreement and the Notes to any affiliate of such Bank,
PROVIDED that so long as no Event of Default has occurred and is continuing the
Company shall consent to the choice of such affiliate, such consent not to be
unreasonably withheld or delayed, and (y) each Bank may at any time, without
complying with any restrictions set forth in this Section 12.06, assign all or
any portion of its rights under this Agreement and the Notes to a Federal
Reserve Bank, provided that such assignment shall not release the Bank assignor
from its obligations under this Agreement.
Section 12.07 SURVIVAL. The obligations of the Company under Sections 5.01,
5.05, 5.06, 12.03 and 12.04 hereof shall survive the repayment of the Loans, the
Reimbursement Obligations and the obligations of the Company in respect of Bank
Letters of Credit and the expiration and termination of the Syndicated Letters
of Credit and Bank Letters of Credit.
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Section 12.08 SENIOR INDEBTEDNESS. The Obligations (including, without
limitation, the obligations of the Company and the Guarantors to pay, when due
(whether at stated maturity, by acceleration or otherwise) the principal of and
interest on the Loans to be made by the Banks to the Company pursuant to
Section 2.01 hereof and the Obligations in respect of Syndicated Letters of
Credit and Bank Letters of Credit issued pursuant to Section 2.03 hereof) and
the obligations of the Company and the Restricted Subsidiaries with respect to
Interest Swap Agreements shall constitute "Senior Indebtedness" as such term is
defined in all documents to which the Company or any Restricted Subsidiary is a
party.
Section 12.09 CONDITIONS TO EFFECTIVENESS; ASSIGNMENT. (a) This Agreement
shall become effective on the date hereof (the "Effective Date"), provided that
(i) this Agreement shall have been duly executed by the parties hereto and (ii)
the conditions precedent to the initial extension of credit under Article VII
hereof shall have been satisfied, at which time the 1998 Agreement shall be
amended and restated by this Agreement. If no Effective Date shall occur, the
1998 Agreement shall remain in full force and effect.
(b) Upon the Effective Date, each 1998 Bank shall be released from all
duties and obligations under the 1998 Agreement and, except in the case of any
Bank, shall have no further duties or obligations under this Agreement.
Section 12.10 LIABILITY OF GENERAL PARTNERS AND OTHER PERSONS. No general
partner of any Restricted Subsidiary that is a partnership, joint venture or
joint adventure shall have any personal liability in respect of such Restricted
Subsidiary's obligation under this Agreement or the Notes by reason of his, her
or its status as such general partner. In addition, no limited partner, officer,
employee, director, stockholder or other holder of an ownership interest of or
in the Company or any Restricted Subsidiary or any partnership, corporation or
other entity which is a stockholder or other holder of an ownership interest of
or in the Company or any Restricted Subsidiary shall have any personal liability
in respect of such obligations by reason of his, her or its status as such
limited partner, officer, employee, director, stockholder or holder.
Section 12.11 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
Section 12.12 WAIVER. THE COMPANY, THE RESTRICTED SUBSIDIARIES, THE
ADMINISTRATIVE AGENT AND THE BANKS HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING TO WHICH ANY OF THEM IS A PARTY INVOLVING, DIRECTLY OR INDIRECTLY,
ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT, THE NOTES OR THE
RELATIONSHIP ESTABLISHED HEREUNDER.
Section 12.13 ENTIRE AGREEMENT. This Agreement, the Notes and the letter
referred to in Section 7.01(i) hereof embody the entire agreement among the
Company, the Restricted Subsidiaries and the Banks and supersede all prior
agreements, representations and understandings, if any, relating to the subject
matter hereof.
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Section 12.14 GOVERNING LAW; SUBMISSION TO JURSDICTION. This Agreement and
the Notes shall be governed by, and construed in accordance with, the law of the
State of New York. Any judicial proceeding brought against the Company with
respect to any claim or dispute in any way arising out of, related to, or
connected with, the Loan Documents may be brought in any court of competent
jurisdiction in the County of New York, and, by execution and delivery of this
Agreement, the Company (a) accepts, generally and unconditionally, the
nonexclusive jurisdiction of such courts and any related appellate court and
irrevocably agrees to be bound by any judgment rendered thereby in connection
with any such claim or dispute and (b) irrevocably waives any objection it may
now or hereafter have as to the venue of any such proceeding brought in such a
court or that such a court is an inconvenient forum. Nothing herein shall affect
the right of the Administrative Agent or any Bank to serve process in any other
manner permitted by law or shall limit the right of the Administrative Agent or
any Bank to bring proceedings against the Company in the courts of any other
jurisdiction. Any judicial proceeding by the Company against the Administrative
Agent or any Bank involving any claim or dispute in any way arising out of,
related to, or connected with, the Loan Documents shall be brought only in a
court located in, in the case of the Administrative Agent, the County and State
of New York and, in the case of a Bank, the jurisdiction in which such Bank's
principal United States office is located.
Section 12.15 CAPTIONS, ETC. Captions, section headings and the table of
contents appearing herein are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
Section 12.16 ACCEPTANCE OF RELEASE OF RIGHTS OF GUARANTORS. The Company
hereby accepts the release effected by Article VI and agrees not to restore or
attempt to restore any of the rights thereby released.
Section 12.17 AUTHORIZATION OF THIRD PARTIES TO DELIVER INFORMATION AND
DISCUSS AFFAIRS. The Company hereby confirms that it has authorized and directed
each Person whose preparation or delivery to the Administrative Agent or the
Banks of any opinion, report or other information is a condition or covenant
under this Agreement (including under Article VII and Article IX) to so prepare
or deliver such opinions, reports or other information for the benefit of the
Administrative Agent and the Banks. The Company agrees to confirm such
authorizations and directions provided for in this Section 12.17 from time to
time as may be requested by the Administrative Agent.
Section 12.18 ACKNOWLEDGEMENT. The Company hereby acknowledges that neither
the Administrative Agent nor any Bank has any fiduciary relationship with or
fiduciary duty to the Company arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship between the
Administrative Agent and the Banks, on the one hand, and the Company, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
CSC HOLDINGS, INC.
By /s/ ▇▇▇▇ ▇▇▇▇
----------------------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Authorized Signatory
CABLEVISION OF CONNECTICUT CORPORATION
CABLEVISION AREA 9 CORPORATION
CABLEVISION FAIRFIELD CORPORATION
COMMUNICATIONS DEVELOPMENT CORPORATION
CABLEVISION SYSTEMS DUTCHESS CORPORATION
CABLEVISION SYSTEMS EAST HAMPTON CORPORATION
CABLEVISION SYSTEMS GREAT NECK CORPORATION
CABLEVISION SYSTEMS HUNTINGTON CORPORATION
CABLEVISION SYSTEMS ISLIP CORPORATION
CABLEVISION SYSTEMS LONG ISLAND CORPORATION
CABLEVISION SYSTEMS SUFFOLK CORPORATION
CABLEVISION SYSTEMS WESTCHESTER CORPORATION
Credit Agreement
CABLEVISION OF CLEVELAND G.P., INC.
CABLEVISION OF CLEVELAND L.P., INC.
TELERAMA, INC.
CABLEVISION OF THE MIDWEST HOLDING CO., INC.
CSC ACQUISITION CORPORATION
CSC ACQUISITION - NY, INC.
CSC ACQUISITION - MA, INC.
A-R CABLE SERVICES - NY, INC.
CABLEVISION LIGHTPATH, INC.
CABLEVISION OF BROOKLINE, INC.
CABLEVISION SYSTEMS BROOKLINE CORPORATION
ARSENAL MSUB 2, INC.
PETRA CABLEVISION CORPORATION
SUFFOLK CABLE CORPORATION
SAMSON CABLEVISION CORP.
SUFFOLK CABLE OF SMITHTOWN, INC.
SUFFOLK CABLE OF SHELTER ISLAND, INC.
CABLEVISION SYSTEMS NEW YORK CITY CORPORATION
CABLEVISION OF WAPPINGERS FALLS, INC.
Credit Agreement
CABLEVISION OF BROOKHAVEN, INC.
CABLEVISION OF SOUTHERN WESTCHESTER, INC.
CABLEVISION OF OAKLAND, INC.
CABLEVISION OF PATERSON, INC.
CABLEVISION OF ROCKLAND/RAMAPO, INC.
CABLEVISION OF WARWICK, INC.
MONTAGUE CABLE COMPANY, INC.
CSC TKR, INC.
CSC TKR I, INC.
CABLEVISION MFR, INC.
CABLEVISION OF MONMOUTH, INC.
CABLEVISION OF ▇▇▇▇▇▇ COUNTY, INC.
CABLEVISION OF NEW JERSEY, INC.
CSC GATEWAY CORPORATION
CABLEVISION OF LITCHFIELD, INC.
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ CORPORATION
By /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: Authorized Signatory
of each of the above-named corporations
CSC GATEWAY CORPORATION
CABLEVISION OF NEW JERSEY, INC.,
Credit Agreement
each a General Partner of Cablevision of Newark
CABLEVISION OF NEW JERSEY, INC.
CSC GATWEWAY CORPORATION
each a General Partner of Cablevision of Newark
CABLEVISION SYSTEMS BROOKLINE
CORPORATION
Managing General Partner of Cablevision of Ossining, L.P.
CABLEVISION AREA 9 CORPORATION,
General Partner of Cablevision of
Connecticut, L.P.
CABLEVISION OF CLEVELAND G.P., INC.,
General Partner of Cablevision of Cleveland, L.P.
CABLEVISION FAIRFIELD CORPORATION,
General Partner of Cablevision Systems of Southern
Connecticut,L.P.
CSC TKR, INC.,
General Partner of KRC/CCC Investment Partnership
By: /s/ ▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇
Title: Authorized Signatory
of each of the above corporate general partners
Credit Agreement
COMMITMENT
$200,750,000 TORONTO DOMINION (TEXAS), INC., as
Administrative Agent and a Bank
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
TD SECURITIES (USA) INC., as
Co-Lead Arranger and Co-Book Manager
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Managing Director
BANC OF AMERICA SECURITIES LLC,
as Co-Lead Arranger and Co-Book Manager
By /s/ ▇▇▇▇▇▇▇ ▇.Jorgenser
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Name: ▇▇▇▇▇▇▇ ▇.Jorgenser
Title: Managing Director
$200,750,000 BANK OF AMERICA, N.A., as Syndication Agent and a
Bank
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
$147,000,000 THE BANK OF NEW YORK,
as a Bank, Arranger and Co-Documentation Agent
By /s/ ▇▇▇▇▇▇ ▇.▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇.▇▇▇▇▇
Title: Senior Vice President
Credit Agreement
$147,000,000 THE BANK OF NOVA SCOTIA, as a Bank,
Arranger and Co-Documentation Agent
By /s/ P.A.▇▇▇▇▇▇▇▇▇▇▇▇▇
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Name: P.A.▇▇▇▇▇▇▇▇▇▇▇▇▇
Title: AUTHORIZED SIGNATORY
$147,000,000 THE CHASE MANHATTAN BANK, as a Bank and Co-
Documentation Agent
By /s/ ▇▇▇▇ ▇. Fitzgibbor
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Name: ▇▇▇▇ ▇. Fitzgibbor
Title: Managing Director
$147,000,000 FLEET NATIONAL BANK, as a Bank and Arranger
By /s/ ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇.▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC., as Arranger
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
$147,000,000 CITIBANK, N.A., as a Bank
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Credit Agreement
$73,500,000 THE DAI-ICHI KANGYO BANK, LTD
(d/b/a MIZUHO FINANCIAL GROUP)
as a Bank and Arranger
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
THE FUJI BANK, LTD
(d/b/a MIZUHO FINANCIAL GROUP)
as a Bank and Arranger
By
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Name:
Title:
$110,000,000 BANK OF MONTREAL, as a Bank and a Managing Agent
By /s/ ▇▇▇▇▇ ▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇
Title: Director
$110,000,000 BARCLAYS BANK PLC, as a Bank and a Managing Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Director
$110,000,000 BNP PARIBAS, as a Bank and a Managing Agent
By /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Director
Media & Telecom Finance
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Media & Telecom Finance
Credit Agreement
$110,000,000 CREDIT LYONNAIS NEW YORK BRANCH, as a Bank
and a Managing Agent
By /s/ [ILLEGIBLE]
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Name: [ILLEGIBLE]
Title: FUP
$110,000,000 DRESDNER BANK AG, NEW YORK AND GRAND
CAYMAN BRANCHES, as a Bank and a Managing Agent
By /s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Associate
$110,000,000 FIRST UNION NATIONAL BANK, as a Bank and a
Managing Agent
By /s/ C. Brand ▇▇▇▇▇▇▇
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Name: C. Brand ▇▇▇▇▇▇▇
Title: Vice President
$110,000,000 ROYAL BANK OF CANADA, as a Bank and a Managing Agent
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Senior Manager
Credit Agreement
$70,000,000 SOCIETE GENERALE, as a Bank and Co-Agent
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: DIRECTOR
$70,000,000 SUNTRUST BANK, as a Bank and Co-Agent
By /s/ W. ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: W. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
$40,000,000 BANK ONE, NA, as a Bank
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Corporate Banking Officer
$40,000,000 BEAR ▇▇▇▇▇▇▇ CORPORATE LENDING INC., as a Bank
By /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
$40,000,000 GENERAL ELECTRIC CAPITAL CORPORATION, as a Bank
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Duly Authorized Signatory
$40,000,000 MELLON BANK, N.A., as a Bank
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Credit Agreement
$40,000,000 ▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL CORPORATION, as a Bank
By /s/ ▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇
Title: V.P
$40,000,000 PNC BANK, N.A., as a Bank
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
$40,000,000 UNION BANK OF CALIFORNIA, N.A., as a Bank
By /s/ [ILLEGIBLE]
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Name:
Title:
-----------------
$2,400,000,000.00
Credit Agreement
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., as Arranger
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director
Credit Agreement