Exhibit 10.01
CREDIT AGREEMENT,
dated as of May 6, 1999,
among
HILTON HEAD COMMUNICATIONS, L.P.,
UCA CORP.,
UCA LLC,
NATIONAL CABLE ACQUISITION ASSOCIATES, L.P.,
GRAND ISLAND CABLE, INC.,
SVHH CABLE ACQUISITION, L.P.,
TELE-MEDIA COMPANY OF HOPEWELL-PRINCE ▇▇▇▇▇▇,
and
CERTAIN OTHER PERSONS,
as the Borrowers,
VARIOUS FINANCIAL INSTITUTIONS,
as the Lenders,
FIRST UNION NATIONAL BANK,
as the Administrative Agent,
BANK OF MONTREAL,
as the Documentation Agent,
and
PNCBANK, NATIONAL ASSOCIATION, as the Syndication
Agent.
Arranging Agents and Joint Book Runners:
FIRST UNION NATIONAL BANK,
BANK OF MONTREAL
and
PNC BANK, NATIONAL ASSOCIATION
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of May 6, 1999, is among HILTON HEAD
COMMUNICATIONS, L.P., a Delaware limited partnership ("HHC"), UCA CORP., a
Delaware corporation, UCA LLC, a Delaware limited liability company, NATIONAL
CABLE ACQUISITION ASSOCIATES, L.P., a Delaware limited partnership ("NCAA"),
GRAND ISLAND CABLE, INC., a Delaware corporation ("GIC"), SVHH CABLE
ACQUISITION, L.P., a Delaware limited partnership ("SVHH"), TELE-MEDIA COMPANY
OF HOPEWELL-PRINCE ▇▇▇▇▇▇, a Virginia general partnership ("Tele-Media"), and
each of those Persons permitted or required pursuant to the terms of this
Agreement to become a Borrower hereunder (each such Person, together with HHC,
UCA Corp., UCA LLC, NCAA, GIC and SVHH, the "Borrowers"), the various financial
institutions as are or may become parties hereto as lenders (collectively, the
"Lenders"), FIRST UNION NATIONAL BANK ("First Union"), as administrative agent
(in such capacity, the "Administrative Agent"), BANK OF MONTREAL ("BMO"), as
documentation agent (in such capacity, the "Documentation Agent"), PNC BANK,
NATIONAL ASSOCIATION, ("PNC"), as syndication agent (in such capacity, the
"Syndication Agent") and each Arranging Agent and each Joint Book Runner listed
herein.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of this Agreement, the Borrowers desire
to obtain Commitments pursuant to which
(a) Revolving Loans will be made by the Revolving Loan Lenders
from time to time prior to the Revolving Loan Commitment Termination
Date;
(b) Letters of Credit will be issued for the accounts of the
Borrowers by the Issuer from time to time prior to the Revolving Loan
Commitment Termination Date; and
(c) Tranche B Term Loans will be made on the Effective Date by
the Tranche B Term Loan Lenders; and
WHEREAS, the Lenders and the Issuer are willing, on the terms and
subject to the conditions set forth in this Agreement, to extend such
Commitments and make such Loans and issue (or participate in) Letters of Credit;
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NOW, THEREFORE, the parties hereto agree as follows.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"ACC" means Adelphia Communications Corporation, a Delaware
corporation.
"Acquisition" means any transaction, or any series of related
transactions by which any Borrower or any of its Restricted Subsidiaries (i)
acquires any business (whether through the purchase of equity interests, merger
or otherwise) or all or substantially all of the assets of any Person or (ii)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
equity interests of a Person (other than a corporation) following which such
corporation or Person is consolidated with such Borrower or such Restricted
Subsidiary, as the case may be, in accordance with GAAP.
"Active Plant" means a coaxial or fiber optic television cable,
together with all amplifiers and electronics, which has been connected to a Head
End and has been energized and which is capable of carrying television signals
to subscribers with only the addition of a drop line from such television cable
to the Homes of such subscribers.
"Additional Borrower" means any Person that is permitted or required to
become a Borrower hereunder in accordance with Section 7.2.16.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 9.4 or the Lenders acting in such
capacity pursuant to Section 9.4.
"Administrative Agent's Fee Letter" means the confidential fee letter,
dated April 14, 1999, from First Union National Bank to the Borrowers and
acknowledged and agreed to by the Borrowers, as amended, supplemented, amended
and restated or otherwise modified from time to time.
"Affiliate" of any Person means any other Person which, directly or
indirectly, controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any
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committee with responsibility for administering, any Plan). A Person shall be
deemed to be "controlled by" any other Person if such other Person possesses,
directly or indirectly, power
(a) to vote 35% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors,
managing members or managing general partners; or
(b) to direct or cause the direction of the management and
policies of such Person whether through the ownership of voting
securities, by contract or otherwise.
"Affiliate Indebtedness" means (i) the unsecured Indebtedness which is
subordinated to the Obligations (excluding Intercompany Indebtedness) incurred
by any Borrower or a Restricted Subsidiary and payable to an Affiliate of any
Borrower or a Restricted Subsidiary in accordance with the terms of the
Intercompany Subordination Agreement, and (ii) the unsecured Management Fees
payable in accordance with the terms of the Manager Subordination Agreement,
subordinated (in each case) on (among others), the following terms:
(a) in the event of a Default under Section 8.1.9, the
Lenders, the Issuer and the Administrative Agent shall (i) have the
right to file a claim on behalf of the holders of such Affiliate
Indebtedness and collect and receive all such payments, (ii) be
irrevocably granted a power of attorney to act on behalf of such
holders of the Affiliate Indebtedness, and (iii) be granted a security
interest in any dividend or distribution resulting from a proceeding of
the type described in Section 8.1.9;
(b) if (prior to payment in full of the Obligations in cash),
any holder of the Affiliate Indebtedness receives any payment (other
than as permitted pursuant to Sections 7.2.6, 7.2.12 and 7.2.13) in
respect of such Affiliate Indebtedness or a Lien on (or security
interest in) any assets of any Obligor, such payment or security shall
be delivered to the Administrative Agent; and
(c) such Affiliate Indebtedness will not have the benefit of
any cross-defaults or cross-accelerations with any other Indebtedness.
"Aggregate Capital Contribution Amount" means the aggregate amount of
Capital Contributions made following the Effective Date to the Borrowers or
(without duplication) the Restricted Subsidiaries less, without duplication, the
sum of the aggregate amount of (i) any such Capital Contributions used by the
Borrowers or any of their Subsidiaries since the Effective Date, either directly
or indirectly, to pay Management Fees pursuant to clause (b) of Section 7.2.13,
(ii) as applicable, the Fair Market Value (determined as of the date of such
Conversion) of the assets of any Restricted Subsidiary that is Converted into an
Unrestricted Subsidiary pursuant to clause (b)(ii) of Section 7.2.14 and (iii)
Restricted Payments made on or subsequent to the Effective Date in accordance
with clauses (b)(i) or (b)(ii)(B) of Section 7.2.6.
"Aggregate Property Contribution Amount" means the aggregate Fair
Market Value of Property Contributions made following the Effective Date (giving
effect to any increase or
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decrease in the Fair Market Value of Contributed Property following the date on
which the applicable Property Contribution has occurred) to the Borrowers or
(without duplication) the Restricted Subsidiaries less, (without duplication),
the sum of the aggregate amount of (i) Restricted Payments made on or subsequent
to the Effective Date in accordance with clause (b)(ii)(A) of Section 7.2.6
(based upon the Fair Market Value of the property that is subject to the
Restricted Payment and determined on the date of such Restricted Payment) and
(ii) as applicable, the Fair Market Value (determined as of the date of such
Conversion) of the assets of any Restricted Subsidiary that is Converted into an
Unrestricted Subsidiary pursuant to clause (b)(ii) of Section 7.2.14.
"Agreement" means, on any date, this Credit Agreement as originally in
effect on the Effective Date and as thereafter from time to time further
amended, supplemented, amended and restated or otherwise modified and in effect
on such date.
"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum (rounded upwards, if
necessary, to the next highest 1/16th of 1%) equal to the higher of
(a) the Base Rate in effect on such day; and
(b) the Federal Funds Rate in effect on such day plus 1/2 of
1%.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the Borrowers
and the Lenders of changes in the Alternate Base Rate; provided that the failure
to give such notice shall not affect the Alternate Base Rate in effect after
such change.
"Annualized Operating Cash Flow" means, on any date and with respect to
the Borrowers and their Restricted Subsidiaries, the product of (i) the
aggregate Operating Cash Flow for the Borrowers and their Restricted
Subsidiaries for the most recently ended Fiscal Quarter multiplied by (ii) four.
"Applicable Commitment Fee Margin" means at all times during the
applicable periods set forth below with respect to the fee payable pursuant to
Section 3.3.1, the applicable percentage set forth below under the column
entitled "Applicable Commitment Fee Margin":
Leverage Applicable Commitment
Ratio Fee Margin
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Greater than or 0.375%
equal to 5.50:1
less than 5.50:1 0.250%
The Applicable Commitment Fee Margin from the Effective Date through (and
including) the date on which the Borrowers deliver the first Compliance
Certificate following the Effective Date shall be 0.375%, and thereafter the
Applicable Commitment Fee Margin shall be that set forth in the Compliance
Certificate most recently delivered by the Borrowers to the Administrative
Agent. Changes in the Applicable Commitment Fee Margin resulting from a change
in the Leverage Ratio shall become effective upon the second Business Day
occurring after the earlier of (i) the date that the Borrowers are required to
deliver or (ii) the date that the Borrowers actually deliver, in each case, a
Compliance Certificate pursuant to clause (c) of Section 7.1.1.
"Applicable Margin" means, with respect to (a) any Tranche B Term Loan,
1.25% in the case of any Base Rate Loan and 2.25% in the case of any LIBO Rate
Loan and (b) any Revolving Loan of any type, the margin set forth below opposite
the Leverage Ratio as in effect at the end of the immediately preceding Fiscal
Quarter and under the column designated for such Loan, as follows:
Applicable Margin
Base Rate LIBO Rate
Leverage Ratio Loans Loans
Greater than or equal to 0.750% 1.750%
6.25:1
Greater than or equal to 0.625% 1.625%
6.00:1 but less than
6.25:1
Greater than or equal to 0.375% 1.375%
5.75:1 but less than
6.00:1
Greater than or equal to 0.000% 1.000%
5.25:1 but less than
5.75:1
Greater than or equal to 0.000% 0.750%
4.75:1 but less than
5.25:1
Less than 4.75:1 0.000% 0.625%
The Applicable Margin for all Revolving Loans from the Effective Date through
(and including) the date on which the Borrowers deliver the first Compliance
Certificate following the Effective Date shall be the highest Applicable Margin
set forth above, and thereafter the Applicable Margin for all Revolving Loans
shall be the Leverage Ratio set forth in the Compliance
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Certificate most recently delivered by the Borrowers to the Administrative
Agent. Changes in the Applicable Margin resulting from a change in the Leverage
Ratio shall become effective upon the second Business Day occurring after the
earlier of (i) the date that the Borrowers are required to deliver or (ii) the
date that the Borrowers actually deliver, in each case, a Compliance Certificate
pursuant to clause (c) of Section 7.1.1.
"Approvals" is defined in Section 8.1.13.
"Approved Accounting Firm" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Deloitte & Touche
LLP, Ernst & Young LLP, Pricewaterhouse Coopers LLP or KPMG Peat Marwick LLP, or
any successor of any thereof.
"Arranging Agents" means, collectively, the Administrative Agent, the
Documentation Agent and the Syndication Agent.
"Arranging Agents' Fee Letter" means the confidential fee letter, dated
April 14, 1999, among First Union, BMO, PNC and the Borrowers, as amended,
supplemented, amended and restated or otherwise modified from time to time.
"Asset Swap" means any exchange of assets (including Cable Systems) of
any Borrower or any of its Restricted Subsidiaries, whether in a single
transaction or a series of related transactions, to any other Person (including
an Unrestricted Subsidiary) for assets which are similar in all material
respects.
"Assignee Lender" is defined in Section 10.11.1.
"Authorized Officer" means, relative to any Obligor, those of its
officers, managing member or general partners, as the case may be, whose
signatures and incumbency shall have been certified to the Administrative Agent
and the Lenders pursuant to Section 5.1.1 hereof.
"Base Rate" means, at any time, the rate of interest then most recently
established by the Administrative Agent in New York as its base rate for U.S.
dollars loaned in the United States. The Base Rate is not necessarily intended
to be the lowest rate of interest determined by the Administrative Agent in
connection with extensions of credit.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Basic Subscriber Fee" means the minimum standard monthly fees and
charges for "basic service" (as such term is commonly understood in the cable
television industry) charged to customers of any Cable System.
"Basic Subscribers" means, at any time, all subscribers subscribing to
any Cable System (excluding "second connects" as such term is commonly
understood in the cable television industry) (i) who pay the Basic Subscriber
Fee for service and (ii) whose accounts are not more
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than 60 days past due in payment. In the case of commercial buildings, such as
hotels or motels, or in the case of multiple residential dwellings, such as
apartment houses and multifamily homes, which do not obtain reduced bulk service
rates, each separate guest unit or dwelling unit receiving service shall be
counted as one subscriber. The number of subscribers in a commercial building or
in a multiple residential dwelling which obtains a reduced bulk service rate
shall be computed by dividing (x) the aggregate Dollar amount of monthly
subscriber's fees paid on account of such commercial building or multiple
residential dwelling for basic service by (y) the Basic Subscriber Fee.
"Borrowers" is defined in the preamble.
"Borrowing" means the Loans of the same type and, in the case of LIBO
Rate Loans, having the same Interest Period, made by all Lenders to one or more
Borrowers on the same Business Day and pursuant to the same Borrowing Request in
accordance with Section 2.3.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of any Borrower, substantially in the form of Exhibit
B-1 hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York, New York; and
(b) relative to the making, continuing, prepaying or repaying
of any LIBO Rate Loans, any day which is a Business Day described in
clause (a) above and which is also a day on which dealings in Dollars
are carried on in the interbank eurodollar market of the Administrative
Agent's LIBOR Office.
"Cable Systems" means the assets of any Person constituting a CATV
System or SMATV System (including all related FCC Licenses, Franchises and
permits issued under federal, state or local laws from time to time, and all
agreements with public utilities and microwave transmission companies, pole
attachment agreements, use agreements, access or rental agreements (including
Pole Agreements and Pole Rental Leases), utility easements and all other
property owned or used in connection with the entertainment, information and
data carriage, advertising or other services provided pursuant to, and all
interest of the holder thereof to receive revenues from, or pursuant to, said
FCC Licenses, Franchises and permits) and owned or operated by such Person in
connection with providing entertainment and other services to subscribers within
a geographical area covered by one or more Franchises from the same Head End
facility or by two or more related Head End facilities.
"Capital Contribution" means the aggregate amount of (a) any cash
capital contribution made in, and (b) the principal amount of any Affiliate
Indebtedness incurred by, any Borrower or any Restricted Subsidiary after the
Effective Date from, in either case, ACC, the Rigas Family, any Parent or any
Affiliate of a Borrower.
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"Capital Security" means
(a) any share, membership interest, partnership interest or
other percentage interest, unit of participation or limited liability
company interests in any Person or in each case other equivalent
(however designated) of a corporate equity security or other equity
interest in a Person; and
(b) any debt security or other evidence of Indebtedness which
is convertible into or exchangeable for, or any option, warrant or
other right to acquire, any Capital Security of any type referred to in
clause (a) of this definition.
"Capitalized Lease Liabilities" means all monetary obligations of any
Borrower or any of such Borrower's Restricted Subsidiaries under any leasing or
similar arrangement which have been (or, in accordance with GAAP, should be)
classified as capitalized leases, and for purposes of each Loan Document the
amount of such obligations shall be the capitalized amount thereof, determined
in accordance with GAAP, and the stated maturity thereof shall be the date of
the last payment of rent or any other amount due under such lease prior to the
first date upon which such lease may be terminated by the lessee without payment
of a premium or a penalty.
"Cash Equivalent Investment" means, at any time:
(a) any direct obligation of (or unconditionally guaranteed
by) the United States of America or a State thereof (or any agency or
political subdivision thereof, to the extent such obligations are
supported by the full faith and credit of the United States of America
or a State thereof) maturing not more than one year after such time;
(b) commercial paper maturing not more than 270 days from the
date of issue, which is issued by a corporation (other than an
Affiliate of any Obligor) organized under the laws of any State of the
United States or of the District of Columbia and rated A-1 or higher by
S&P or P-1 or higher by ▇▇▇▇▇'▇;
(c) any certificate of deposit maturing not more than one year
after its date of issuance, which is issued by either (i) any bank
which has a certificate of deposit rating equal to one of the two
highest ratings by ▇▇▇▇▇'▇ or S&P, or (ii) any Lender;
(d) any repurchase agreement having a term of 30 days or less
entered into with any Lender or any commercial banking institution
satisfying the criteria set forth in clause (c)(i) which (i) is secured
by a fully perfected security interest in any obligation of the type
described in clause (a), and (ii) has a market value at the time such
repurchase agreement is entered into of not less than 100% of the
repurchase obligation of such commercial banking institution
thereunder; or
(e) debt securities with a remaining maturity not exceeding
one year which are rated within the two highest rating categories by
S&P or ▇▇▇▇▇'▇.
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"CATV System" means any Cable System that is a community antenna
television system as such term is commonly understood in the cable television
industry.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"CERCLIS" means the Comprehensive Environmental Response Compensation
Liability Information System List.
"Change in Control" means
(a) the failure of ACC (or in the case of HHC, the Rigas
Family and/or ACC) to own, directly or indirectly, 51% or more (or in
the case of HHC, 100%) of the Capital Securities (of the type described
in clause (a) of the definition of Capital Security) of each Borrower
under ordinary circumstances (not dependent on any contingency) having
voting power;
(b) the failure of ACC or any of its Affiliates to be the only
managing general partner of NCAA, SVHH, Tele-Media and any other
partnership that becomes a Borrower following the Effective Date; or
(c) the failure of the Rigas Family to control, directly or
indirectly, more than 50% of the total number of votes that holders of
ACC's Capital Securities (of the type described in clause (a) of the
definition of Capital Security) are then entitled to vote (which, on
the Effective Date, consist of the Class "A" common stock and Class "B"
common stock of ACC).
"Closing Date Certificate" means the closing date certificate executed
and delivered by each Borrower pursuant to the terms of this Agreement,
substantially in the form of Exhibit F hereto.
"Closing Date Restricted Payment" is defined in clause (a) of
Section 7.1.9.
"Code" means the Internal Revenue Code of 1986, and the regulations
thereunder, in each case as amended, reformed or otherwise modified from time to
time.
"Commitment" means, as the context may require, a Tranche B Term Loan
Commitment, Revolving Loan Commitment or Letter of Credit Commitment.
"Commitment Amount" means, as the context may require, the Tranche B
Term Loan Commitment Amount, the Revolving Loan Commitment Amount or the Letter
of Credit Commitment Amount.
"Commitment Notice" is defined in Section 2.8.
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"Commitment Termination Date" means, as the context may require, the
Tranche B Term Loan Commitment Termination Date or the Revolving Loan Commitment
Termination Date.
"Commitment Termination Event" means
(a) the occurrence of any Event of Default with respect to any
Borrower described in clauses (a) through (d) of Section 8.1.9; or
(b) the occurrence and continuance of any other Event of
Default and either
(i) the declaration of all or any portion of the
Loans to be due and payable pursuant to Section 8.3, or
(ii) the giving of notice by the Administrative
Agent, acting at the direction of the Required Lenders, to the
Borrowers that the Commitments have been terminated.
"Compliance Certificate" means a certificate duly completed and
executed by an Authorized Officer of each Borrower, substantially in the form of
Exhibit E hereto, together with such changes thereto as the Administrative Agent
may from time to time request for the purpose of monitoring the Borrowers'
compliance with the financial covenants contained herein.
"Contingent Liability" means any agreement, undertaking or arrangement
by which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to, or otherwise to invest in, a
debtor, or otherwise to assure a creditor against loss) the Indebtedness of any
other Person (other than by endorsements of instruments in the course of
collection), or guarantees the payment of dividends or other distributions upon
the shares of any other Person. The amount of any Person's obligation under any
Contingent Liability shall (subject to any limitation set forth therein) be
deemed to be the outstanding principal amount of the debt, obligation or other
liability guaranteed thereby.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of the
applicable Borrower, substantially in the form of Exhibit C hereto.
"Contributed Property" means property which is contributed to a
Borrower or a Restricted Subsidiary as a Property Contribution after the
Effective Date.
"Controlled Group" means all members of a controlled group of
corporations and all members of a controlled group of trades or businesses
(whether or not incorporated) under common control which, together with any
Borrower, are treated as a single employer under Section 414(b) or 414(c) of the
Code or Section 4001 of ERISA.
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"Conversion" is defined in Section 7.2.14.
"Credit Extension" means, as the context may require,
(a) the making of a Loan by a Lender; or
(b) the issuance of any Letter of Credit, or the extension of
any Stated Expiry Date of any existing Letter of Credit, by the Issuer.
"Credit Extension Request" means, as the context may require, any
Borrowing Request or Issuance Request.
"Credit Party" means, collectively, the Lenders, the Issuer and the
Arranging Agents and, in each case, each of their respective successors,
transferees and assigns.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disbursement" is defined in Section 2.6.2.
"Disbursement Date" is defined in Section 2.6.2.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule I, as it may be amended, supplemented, amended and restated or
otherwise modified from time to time by the Borrowers with the written consent
of the Required Lenders.
"Disposition" (or correlative words such as "Dispose") means any sale,
transfer (including Asset Swaps and Restricted Payments permitted pursuant to
clause (b)(ii) of Section 7.2.6), lease, contribution or other conveyance
(including by way of Merger) of, or the granting of options, warrants or other
rights to, any of the Borrowers' or their Restricted Subsidiaries' assets
(including accounts receivables, Capital Securities of Restricted Subsidiaries,
Franchises and FCC Licenses), other than the Closing Date Restricted Payment, to
any other Person in a single transaction or series of related transactions.
"Documentation Agent" is defined in the preamble.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such Lender's "Domestic Office" set forth opposite its name
on Schedule II hereto or in a Lender Assignment Agreement, or such other office
of a Lender (or any successor or assign of such Lender) within the United States
as may be designated from time to time by notice from such Lender, as the case
may be, to each other Person party hereto.
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"Effective Date" means the date this Agreement becomes effective
pursuant to Section 10.8.
"Environmental Laws" means all applicable federal, state or local
statutes, laws, ordinances, codes, rules, regulations and guidelines (including
consent decrees and administrative orders) relating to the protection of public
health and safety with respect to Hazardous Materials and protection of the
environment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto of similar import, together with the
regulations thereunder, in each case as in effect from time to time. References
to sections of ERISA also refer to any successor sections thereto.
"Event of Default" is defined in Section 8.1.
"Excess Cash Balance" means, on any date of determination, the sum of
unencumbered cash and Cash Equivalent Investments then held in the name of any
Borrower or any of its Restricted Subsidiaries.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exemption Certificate" is defined in clause (e) of Section 4.6.
"Existing Assets" means assets (including Cable Systems) owned by the
Borrowers or their Restricted Subsidiaries on the Effective Date.
"Fair Market Value" means, in respect of any assets or group of assets,
fair market value for such assets as determined in good faith (using reasonable
methods) by the Borrowers.
"FCC" means the Federal Communications Commission or any successor
agency thereto.
"FCC License" means any license or permit issued by the FCC, including
licenses issued in connection with the operation of community antenna television
systems, community antenna relay systems, microwave systems, earth stations and
businesses and other two-way radios.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal
funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York; or
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(b) if such rate is not so published for any day which is a
Business Day, the average of the quotations for such day on such
transactions received by First Union from three federal funds brokers
of recognized standing selected by it.
"Fee Letter" means the Administrative Agent's Fee Letter and/or the
Arranging Agents' Fee Letter, as applicable.
"Fiscal Quarter" means a quarter ending on the last day of March, June,
September or December.
"Fiscal Year" means any period of twelve consecutive calendar months
ending on December 31; references to a Fiscal Year with a number corresponding
to any calendar year (e.g., the "1999 Fiscal Year") refer to the Fiscal Year
ending on December 31 of such calendar year.
"Franchise" means any franchise, permit, license or other authorization
granted by any governmental unit or authority, including all laws, regulations
and ordinances relating thereto, for the construction, operation or maintenance
of a system to receive or distribute, or both, by cable, satellite or other
technology, audio and visual signals within a geographic area, and shall
include, without limitation, all FCC Licenses and all certificates of compliance
and cable television registration statements which are required to be issued by
or filed with the FCC or any state, county, city, town, village or local
governmental authority in connection with the ongoing operation of business by
any Borrower and its Subsidiaries.
"Franchise Agreement" means all ordinances, agreements, contracts and
all other documents stating the terms and conditions of any Franchise, including
all exhibits and schedules thereto, all amendments thereto, all consents,
waivers and extensions issued in connection therewith, all documents
incorporated therein by reference and the application pursuant to which any
Franchise was granted.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" is defined in Section 1.4.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantees" means, collectively, the Subsidiary Guaranty and each
other guaranty delivered from time to time in respect of the Obligations.
"Guarantor" means, collectively, each Borrower and each Subsidiary
Guarantor.
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"Hazardous Material" means
(a) any "hazardous substance", as defined by CERCLA;
(b) any "hazardous waste", as defined by the Resource
Conservation and Recovery Act, as amended; or
(c) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance (including any petroleum product)
within the meaning of any other applicable federal, state or local law,
regulation, ordinance or requirement (including consent decrees and
administrative orders) relating to or imposing liability or standards
of conduct concerning any hazardous, toxic or dangerous waste,
substance or material, all as amended.
"Head End" means the site and related facilities and equipment used as
the head end for a Cable System, including the antenna site, the tower and the
antenna, the microwave communications equipment, the earth station and the head
end facilities.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under currency exchange agreements, interest rate
swap agreements, interest rate cap agreements and interest rate collar
agreements, and all other agreements or arrangements designed to protect such
Person against fluctuations in interest rates or currency exchange rates.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in this Agreement or any other Loan Document refer to this Agreement or such
other Loan Document, as the case may be, as a whole and not to any particular
Section, paragraph or provision of this Agreement or such other Loan Document.
"Home" means a single residential dwelling or commercial building which
can be connected by a single drop line. In the case of multiple residential
dwellings, such as apartment houses and multi-family homes, which do not obtain
reduced bulk service rates, each separate dwelling unit shall be counted as one
Home. The number of Homes in a multiple residential dwelling which does obtain a
reduced bulk service rate shall be the number of Basic Subscribers for such
multiple residential dwelling.
"Home Passed" means a Home which can be connected by a single drop line
from an Active Plant.
"Impermissible Qualification" means, relative to the opinion or
certification of any independent public accountant as to any financial statement
of the Borrowers and their Restricted Subsidiaries on a combined basis, any
qualification or exception to such opinion or certification
(a) which is of a "going concern" or similar nature;
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(b) which relates to the limited scope of examination of
matters relevant to such financial statement; or
(c) which relates to the treatment or classification of any
item in such financial statement and which, as a condition to its
removal, would require an adjustment to such item the effect of which
would be to cause the Borrowers to be in default of any of their
obligations under Section 7.2.4.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement and each
other Loan Document, the parties hereto agree that the rule of ejusdem generis
shall not be applicable to limit a general statement, which is followed by or
referable to an enumeration of specific matters, to matters similar to the
matters specifically mentioned.
"Incremental Facility" is defined in Section 2.8.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or
advances and all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and
banker's acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities of such Person;
(d) for purposes of Section 8.1.5 only, all other items which,
in accordance with GAAP, would be included as liabilities on the
liability side of the balance sheet of such Person as of the date at
which Indebtedness is to be determined;
(e) net liabilities of such Person under all Hedging
Obligations determined in accordance with GAAP;
(f) to the extent included as liabilities in accordance with
GAAP, all obligations of such Person to pay the deferred purchase price
of property or services excluding trade accounts payable in the
ordinary course of business which are not overdue for a period of more
than 90 days or, if overdue for more than 90 days, as to which a
dispute exists and adequate reserves in conformity with GAAP have been
established on the books of such Person, and indebtedness secured by
(or for which the holder of such indebtedness has an existing right,
contingent or otherwise, to be secured by) a Lien on property owned or
being acquired by such Person (including indebtedness arising under
conditional sales or other title retention agreements), whether or not
such indebtedness shall have been assumed by such Person or is limited
in recourse;
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(g) obligations arising under Synthetic Leases; and
(h) all Contingent Liabilities of such Person in respect of
any of the foregoing.
For all purposes of this Agreement, the Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Liabilities" is defined in Section 10.4.
"Indemnified Parties" is defined in Section 10.4.
"Intercompany Indebtedness" means unsecured Indebtedness permitted by
clause (g) of Section 7.2.2 subordinated pursuant to the Intercompany
Subordination Agreement.
"Intercompany Subordination Agreement" means the Intercompany
Subordination Agreement executed by each Borrower, each Restricted Subsidiary
and/or an Affiliate of any Borrower substantially in the form of Exhibit G-1
hereto, as amended, supplemented, amended and restated or otherwise modified
from time to time in accordance with its terms.
"Interest Coverage Ratio" means (as of the last day of any Fiscal
Quarter) the ratio of:
(a) Operating Cash Flow (for such Fiscal Quarter)
to
(b) Interest Expense (for such Fiscal Quarter).
"Interest Expense" means, for any Fiscal Quarter, the aggregate
interest expense accrued with respect to Senior Debt of the Borrowers and their
Restricted Subsidiaries, on a combined basis, for such Fiscal Quarter, as
determined in accordance with GAAP, including the portion of any payments made
in respect of Capitalized Lease Liabilities allocable to interest expense.
"Interest Period" means, relative to any LIBO Rate Loan, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or 2.4
and shall end on (but exclude) the day which numerically corresponds to such
date one, two, three, six or, if available to all Lenders, twelve months
thereafter (or, if such month has no numerically corresponding day, on the last
Business Day of such month), in either case as the applicable Borrower may
select in its relevant notice pursuant to Section 2.3 or 2.4; provided, however,
that
(a) the Borrowers shall not be permitted to select Interest
Periods to be in effect at any one time which have expiration dates
occurring on more than ten different dates;
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(b) if such Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the
first Business Day of a calendar month, in which case such Interest
Period shall end on the Business Day next preceding such numerically
corresponding day); and
(c) no Interest Period for any Loan may end later than the
Stated Maturity Date for such Loan.
"Investment" means, relative to any Person,
(a) any loan, advance or extension of credit made by such
Person (either directly or indirectly) to any other Person (either
directly or indirectly), including the purchase by such Person of any
bonds, notes, debentures or other debt securities of any other Person
(excluding commission, travel, ▇▇▇▇▇ cash and similar advances to
officers and employees made in the ordinary course of business);
(b) any Contingent Liability of such Person; and
(c) any Capital Security held by such Person (either directly
or indirectly) in any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon and shall, if made by
the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the Fair Market Value
of such property at the time of such Investment. "Investment" shall include
loans or advances made to, or accounts receivable owing from, a Person which are
not current assets (determined in accordance with GAAP) or which did not arise
from sales to such Person in the ordinary course of business.
"Investment Grade Senior Debt" means, with respect to any Person, that
such Person's long-term senior, unsecured debt for borrowed money (without third
party credit enhancement) is rated BBB- or above by S&P or Baa3 or above by
Moody's.
"ISP98 Rules" is defined in Section 10.9.
"Issuance Request" means a Letter of Credit request and certificate
duly executed by an Authorized Officer of the applicable Borrower, substantially
in the form of Exhibit B-2 hereto.
"Issuer" means First Union in its capacity as issuer of the Letters of
Credit.
"Joinder Agreement" means a Joinder Agreement, substantially in the
form of Exhibit L attached hereto, executed and delivered by each Person who is
required to become (or otherwise becomes, pursuant to the terms of this
Agreement) a Borrower in accordance with Section 7.2.16.
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"Joint Book Runners" means, collectively, the Administrative Agent, the
Documentation Agent and the Syndication Agent.
"Lender Assignment Agreement" means an assignment agreement
substantially in the form of Exhibit D hereto.
"Lenders" is defined in the preamble and, in addition, shall include
(a) any commercial bank or other financial institution that becomes a Lender
pursuant to Section 10.11.1 and (b) any Supplemental Lender which executes a
joinder agreement pursuant to Section 2.8.
"Lender's Environmental Liability" means any and all losses,
liabilities, obligations, penalties, claims, litigation, demands, defenses,
costs, judgments, suits, proceedings, damages (including consequential damages),
disbursements or expenses of any kind or nature whatsoever (including reasonable
attorneys' fees at trial and appellate levels and experts' fees and
disbursements and expenses incurred in investigating, defending against or
prosecuting any litigation, claim or proceeding) which may at any time be
imposed upon, incurred by or asserted or awarded against the Administrative
Agent, any Lender or the Issuer or any of such Person's Affiliates,
shareholders, directors, officers, employees, and agents in connection with or
arising from:
(a) any Hazardous Material on, in, under or affecting all or
any portion of any property of the Borrowers or any of their
Subsidiaries, the groundwater thereunder, or any surrounding areas
thereof to the extent caused by Releases from the Borrowers' or any of
their Subsidiaries' or any of their respective predecessors'
properties;
(b) any misrepresentation, inaccuracy or breach of any
warranty, contained or referred to in Section 6.12;
(c) any violation or claim of violation by the Borrowers or
any of their Subsidiaries of any Environmental Laws; or
(d) the imposition of any lien for damages caused by or the
recovery of any costs for the cleanup, release or threatened release of
Hazardous Material by the Borrowers or any of their Subsidiaries, or in
connection with any property owned or formerly owned by the Borrowers
or any of their Subsidiaries.
"Letter of Credit" is defined in Section 2.1.2.
"Letter of Credit Commitment" means, with respect to the Issuer, the
Issuer's obligation to issue Letters of Credit pursuant to Section 2.1.2 and,
with respect to each Revolving Loan Lender, the obligations of each such Lender
to participate in such Letters of Credit pursuant to Section 2.6.1.
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"Letter of Credit Commitment Amount" means, on any date, a maximum
amount of $75,000,000, as such amount may be permanently reduced from time to
time pursuant to Section 2.2.
"Letter of Credit Outstandings" means, on any date, an amount equal to
the sum of (a) the then aggregate amount which is undrawn and available under
all issued and outstanding Letters of Credit, plus (b) the then aggregate amount
of all unpaid and outstanding Reimbursement Obligations.
"Leverage Ratio" means, as of the last day of any Fiscal Quarter, the
ratio of
(a) Senior Debt outstanding on the last day of such Fiscal
Quarter
to
(b) Annualized Operating Cash Flow determined on the last day
of such Fiscal Quarter.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
the rate of interest equal to the average (rounded upwards, if necessary, to the
nearest 1/16 of 1%) of the rates per annum at which Dollar deposits in
immediately available funds are offered to the Administrative Agent's LIBOR
Office in the London interbank market as at or about 11:00 a.m. London, England
time two Business Days prior to the beginning of such Interest Period for
delivery on the first day of such Interest Period, and in an amount
approximately equal to the amount of the Administrative Agent's LIBO Rate Loan
and for a period approximately equal to such Interest Period.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a rate of interest determined by
reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be made,
continued or maintained as, or converted into, a LIBO Rate Loan for any Interest
Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of
1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans
will be determined by the Administrative Agent on the basis of the LIBOR Reserve
Percentage in effect two Business Days before the first day of such Interest
Period.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such Lender's "LIBOR Office" set forth opposite its name on
Schedule II hereto (as
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supplemented by any Supplemental Lender) or in a Lender Assignment Agreement, or
such other office of a Lender as designated from time to time by notice from
such Lender to the Borrowers and the Administrative Agent, whether or not
outside the United States, which shall be making or maintaining LIBO Rate Loans
of such Lender hereunder.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of or including
"Eurocurrency Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such Interest Period.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property, or other priority or preferential
arrangement of any kind or nature whatsoever, to secure payment of a debt or
performance of an obligation.
"Loan Documents" collectively means this Agreement, the Letters of
Credit, each Note, each Rate Protection Agreement, the Fee Letters, each Pledge
Agreement, each Guarantee, each Joinder Agreement, each agreement pursuant to
which the Administrative Agent is granted a Lien to secure the Obligations and
each other agreement, certificate, document or instrument delivered in
connection with this Agreement or such other Loan Documents, whether or not
specifically mentioned herein or therein.
"Loans" means, as the context may require, a Revolving Loan or a
Tranche B Term Loan, of any type.
"Management Agreements" means each agreement with respect to the
management of the Cable Systems of any Borrower or any Restricted Subsidiary
that is reasonably acceptable to the Administrative Agent.
"Management Fees" means any of the management fees payable by any
Borrower or any Restricted Subsidiary to any Manager pursuant to any Management
Agreement.
"Manager" means any manager party to a Management Agreement.
"Manager Subordination Agreements" means the Manager Subordination
Agreement, dated the date hereof, executed and delivered by each Manager
existing on the date hereof, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with its terms.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations, properties or assets, liabilities, condition (financial or
otherwise), results of operations or
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prospects of any Borrower and its Restricted Subsidiaries taken as a whole, (b)
the ability of any Borrower or Obligated Party to perform its Obligations under
the Loan Documents or (c) the validity or enforceability of this Agreement or
any other Loan Document or the rights or remedies of the Administrative Agent,
the Lenders or the Issuer hereunder or thereunder.
"Merge" is defined in Section 7.2.7.
"Minority Owner" means any Person that owns less than 51% of the
Capital Securities of any Borrower or any Restricted Subsidiary.
"Minority Owner Pledge Agreement" means a Pledge Agreement to be
executed and delivered by an Authorized Officer of a Minority Owner (or, if the
Minority Owner is an individual, then by such Person), in substantially the form
of the Obligor Pledge Agreement with such changes as the Administrative Agent
may reasonably request, as amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with its terms.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Disposition Proceeds" means, with respect to any Permitted
Disposition, the excess of
(a) the gross Permitted Consideration received as a result of
such Permitted Disposition
less
(b) all reasonable fees and expenses with respect to legal,
accounting and other professional fees, sales commissions and
disbursements actually incurred in connection with such Permitted
Disposition and all taxes actually paid in connection with such
Permitted Disposition;
provided, however, that Net Disposition Proceeds shall include the net amount
(determined as provided above) of any insurance proceeds or condemnation awards
received in connection with the damage, destruction or condemnation, as the case
may be, of property of any Borrower or any of its Restricted Subsidiaries, any
such proceeds or awards, as the case may be, to be treated as if resulting from
a Disposition of the type described in the definition of "Permitted
Disposition".
"Net Income" means, for any period, the aggregate of all amounts which,
in accordance with GAAP, would be included as net income on the combined
financial statements of the Borrowers and their Restricted Subsidiaries for such
period.
"Non-Excluded Taxes" means any Taxes other than net income and
franchise taxes imposed with respect to any Credit Party by a Governmental
Authority under the laws of which such Credit Party is organized or in which it
maintains its applicable lending office.
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"Non-U.S. Lender" means any Lender that is not a "United States
person", as defined under section 7701(a)(30) of the Code.
"Note" means, as the context may require, a Revolving Note or a
Tranche B Term Note.
"Obligated Party" means, collectively, each Borrower, each Restricted
Subsidiary and each Person (other than ACC and the TMIP Limited Partners) that
has granted a Lien in favor of the Secured Parties pursuant to any Loan
Document.
"Obligations" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured) of each Borrower and each other
Obligor arising under, or in connection with, this Agreement and each other Loan
Document.
"Obligor" means, as the context may require, (i) each Borrower, each
Restricted Subsidiary and each Parent and (ii) the Manager or any other Person
(other than ACC, the TMIP Limited Partners and a Secured Party) obligated under
any Loan Document (other than the Intercompany Subordination Agreement).
"Obligor Pledge Agreement" means the Pledge Agreement, executed and
delivered by each Obligor pursuant to the terms of this Agreement, substantially
in the form of Exhibit I hereto, as amended, supplemented, amended and restated
or otherwise modified from time to time in accordance with its terms.
"Olympus" means Olympus Communications, L.P., a Delaware limited
partnership.
"Operating Cash Flow" means, without duplication, during any period and
with respect to the Borrowers and their Restricted Subsidiaries, the sum during
such period of:
(a) Net Income;
plus
(b) to the extent deducted in determining such Net Income,
interest expense, depreciation, amortization and income taxes of the
Borrowers and their Restricted Subsidiaries;
provided, that (i) in calculating Operating Cash Flow, there shall be excluded
from such calculation all non-cash charges and non-cash expenses, non-cash
income and non-cash gains; and (ii) if any Borrower or any of its Restricted
Subsidiaries shall have made any Dispositions of Cable Systems, Permitted
Business Acquisitions or Asset Swaps during such period, Operating Cash Flow for
such period shall be adjusted on a pro forma basis to give effect to all such
Dispositions, Permitted Business Acquisitions or Asset Swaps as if they had
occurred at the beginning of such period.
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"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of partnership, partnership
agreement, certificate of formation, limited liability agreement and all
shareholder agreements, voting trusts and similar arrangements applicable to any
of such Obligor's shares of Capital Securities.
"Parent" means each person pledging the Capital Securities of a
Borrower pursuant to the Obligor Pledge Agreement that is not a Minority Owner.
"Participant" is defined in Section 10.11.2.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined in
Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
multiemployer plan as defined in Section 4001(a)(3) of ERISA), and to which any
Borrower or any corporation, trade or business that is, along with such
Borrower, a member of a Controlled Group, may have liability, including any
liability by reason of having been a substantial employer within the meaning of
Section 4063 of ERISA at any time during the preceding five years, or by reason
of being deemed to be a contributing sponsor under Section 4069 of ERISA.
"Percentage" means, as the context may require, any Lender's Revolving
Loan Percentage or Tranche B Term Loan Percentage.
"Permitted Business Acquisition" means any Acquisition (other than an
Asset Swap) made by any Borrower or any of its Restricted Subsidiaries of or in
(a) a Person that owns and operates a Cable System or business permitted by
Section 7.2.1 or (b) a Cable System or business permitted by Section 7.2.1, in
either case, only if (i) as a result of such Acquisition such Person becomes a
Restricted Subsidiary or a Borrower and, if such Person becomes a Borrower,
executes and delivers to the Administrative Agent a Joinder Agreement and
delivers a supplement (in form and substance satisfactory to the Administrative
Agent) to the Obligor Pledge Agreement pursuant to which it pledges (or causes
to be pledged) for the benefit of the Secured Parties all of the issued and
outstanding shares of Capital Securities of all of its Restricted Subsidiaries
owned directly or indirectly by it or (if assets are being purchased), such
purchase is made by a Borrower or a Restricted Subsidiary, (ii) no Default shall
have occurred and be continuing immediately before or after giving effect to
such Acquisition, (iii) the aggregate consideration paid (including any
assumption of Indebtedness and the Fair Market Value of any non-cash
consideration) to consummate each such Acquisition is (x) no more than the Fair
Market Value of the assets the subject of such Acquisition and (y) included as
an Acquisition in the Fiscal Quarter in which such Acquisition is to be
consummated for purposes of computing the limits prescribed by clause (d) of
Section 7.2.5 and (iv) prior to consummating any Acquisition with a purchase
price (based on both cash and non-cash consideration) in excess of $50,000,000,
the applicable Borrower or Restricted Subsidiary shall have delivered to the
Administrative Agent a pro forma Compliance Certificate for the most recently
reported Fiscal Quarter (prepared in good faith and in a manner and using such
methodology which is consistent
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with the most recent financial statements delivered pursuant to Section 7.1.1)
giving pro forma effect to the consummation of such acquisition and evidencing
compliance with the covenants set forth in Section 7.2.4.
"Permitted Consideration" means cash, Cash Equivalent Investments of
the type set forth in clauses (a), (b) or (c)(i) of that definition, common or
preferred Capital Securities (including debt securities) issued by a Person
which has Investment Grade Senior Debt, common or preferred Capital Securities
issued by a Person engaged as its primary business in owning and operating Cable
Systems whose long term senior, unsecured debt for borrowed money (without
credit enhancement) is rated BB or above by S&P or Ba2 or above by ▇▇▇▇▇'▇ or
such other non-cash proceeds acceptable to the Administrative Agent, in its sole
discretion. Any non-cash Permitted Consideration shall be valued at the Fair
Market Value of such assets as of the date of the applicable Disposition.
"Permitted Disposition" means any Disposition (other than as permitted
by Section 7.2.5, Section 7.2.6, clauses (a), (b), (c), (f) and (g) (in the case
of clause (c), if other than a Disposition of Existing Assets) of Section 7.2.7,
or clauses (a), (c), (d), (e) or (f) of Section 7.2.8) of assets (which shall
include Cable Systems) of any Borrower or its Restricted Subsidiaries, whether
in a single transaction or a series of related transactions, to any Person
(including Unrestricted Subsidiaries), but only if (i) no Default has occurred
and is continuing or would result therefrom, (ii) the consideration received for
such Disposition is Permitted Consideration and represents the Fair Market Value
(determined on the date such Permitted Disposition is consummated) for such
assets, and (iii) all Net Disposition Proceeds shall either be reinvested or
applied toward the prepayment of the Loans pursuant to Sections 3.1.1 and 3.1.2.
"Permitted Existing Asset Swap" means, in the case of Existing Assets
only, a Disposition (but if, and only if, it is accomplished by way of an Asset
Swap), whereby, unless otherwise agreed to by the Required Lenders (such consent
not to be unreasonably withheld), (i) the System Cash Flow Percentage of such
Existing Assets subject to such Asset Swap by the Borrowers and their Restricted
Subsidiaries in any single Asset Swap shall be 25% or less and (ii) the System
Cash Flow Percentage of all such Existing Assets Disposed of by the Borrowers
and their Restricted Subsidiaries as an Asset Swap subsequent to the Effective
Date shall not exceed, in the aggregate, 35%; provided, that if the Fair Market
Value (determined on the date such Asset Swap is consummated) of the Existing
Assets being Disposed of pursuant to an Asset Swap exceed $50,000,000, the
Borrowers shall, at least seven Business Days prior to effecting any such Asset
Swap, deliver to the Administrative Agent a Compliance Certificate (for the most
recently ended full Fiscal Quarter for which a Compliance Certificate was
delivered preceding such Asset Swap) executed by an Authorized Officer of the
Borrowers demonstrating to the satisfaction of the Administrative Agent pro
forma compliance with the covenants set forth in Section 7.2.4 after giving
effect to such Asset Swap.
"Permitted Existing Asset Transfer" means, in the case of Existing
Assets only, a Disposition (but if, and only if, it is accomplished by way of
Permitted Dispositions) whereby, unless otherwise agreed to by the Required
Lenders (such consent not to be unreasonably withheld), (i) the System Cash Flow
Percentage of such Existing Assets subject to such
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Permitted Disposition by the Borrowers and their Restricted Subsidiaries in any
single Permitted Disposition shall be 25% or less and (ii) the System Cash Flow
Percentage of all such Existing Assets Disposed of by the Borrowers and their
Restricted Subsidiaries by way of Permitted Dispositions subsequent to the date
of this Agreement shall not exceed, in the aggregate, 35%; provided, that if the
Fair Market Value (determined on the date such Permitted Disposition is
consummated) of the Existing Assets being the subject of a Permitted Disposition
exceeds $50,000,000, the Borrowers shall, at least seven Business Days prior to
effecting any such Permitted Disposition, deliver to the Administrative Agent a
Compliance Certificate (for the most recently ended full Fiscal Quarter for
which a Compliance Certificate was delivered preceding such Disposition)
executed by Authorized Officers of the Borrowers demonstrating to the
satisfaction of the Administrative Agent pro forma compliance with the covenants
set forth in Section 7.2.4 after giving effect to such Permitted Disposition.
"Person" means any natural person, corporation, limited liability
company, partnership, joint venture, association, trust or unincorporated
organization, Governmental Authority or any other legal entity, whether acting
in an individual, fiduciary or other capacity.
"Plan" means any Pension Plan or Welfare Plan.
"Pledge Agreements" means, collectively, the Obligor Pledge Agreement
and the Minority Owner Pledge Agreements.
"Pole Agreement" means any pole attachment agreement or underground
conduit use agreement which was entered into in connection with the operation of
any Cable System.
"Pole Rental Lease" means any lease under which any Borrower or any of
its Restricted Subsidiaries has the right to use telephone or utility poles,
conduits or trenches for the purpose of supporting or housing cables of any
Cable System owned or operated by such Borrower or any of its Subsidiaries.
"Premium Subscriptions" means all subscriptions to a motion picture or
other entertainment services subscribed to by any Basic Subscriber of any Cable
System (excluding any subscriptions to pay-per-view events) at an additional
charge in excess of the Basic Subscriber Fee, exclusive of all such
subscriptions as to which the payment of such additional charges is more than 60
days past due.
"Pro-Forma Balance Sheet" is defined in Section 5.1.15.
"Pro-Forma Debt Service" means, at any date of determination and with
respect to the Borrowers and their Restricted Subsidiaries, the sum, without
duplication, of all Pro-Forma Interest Expense, commitment fees, and "scheduled
principal payments" (including the current maturities thereof), due on any
Senior Debt of the Borrowers and their Restricted Subsidiaries (other than the
amount of the final scheduled amortization payment of the Tranche B Term Loans),
for the four Fiscal Quarters immediately succeeding such date of determination.
On any date of determination, "scheduled principal payments" under this
Agreement shall equal the sum
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of (i) the aggregate outstanding principal amount of the Revolving Loans plus
Letter of Credit Outstandings on such date of determination less the Revolving
Loan Commitment Amount that will be in effect at the end of such period (which
amount under this clause (i) shall be deemed to never be less than zero), and
(ii) the aggregate amount of Tranche B Term Loans scheduled to be repaid
pursuant to clause (d) of Section 3.1.1 during such period.
"Pro-Forma Interest Expense" means, at any date of determination
thereof, the Interest Expense (calculated using interest rates in effect on the
last day of the most recently ended Fiscal Quarter) of the Borrowers and their
Restricted Subsidiaries for the four Fiscal Quarters immediately succeeding such
date of determination.
"Property Contribution" means any capital contribution of Cable Systems
or (subject to Section 7.2.1), other valuable real or personal property
acceptable to the Administrative Agent made in any Borrower or (without
duplication) any Restricted Subsidiary after the Effective Date by ACC, the
Rigas Family or any Affiliate of a Borrower.
"Quarterly Payment Date" means the last day of March, June, September
and December, or, if any such day is not a Business Day, the next succeeding
Business Day.
"Rate Protection Agreement" means, collectively, any currency exchange
agreements, interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements, and all other agreements or arrangements
designed to protect against fluctuations in interest rates or currency exchange
rates entered into by any Borrower or any of its Restricted Subsidiaries under
which the counterparty to such agreement is (or at the time such agreement was
entered into, was) a Lender or an Affiliate of a Lender.
"Register" is defined in Section 2.7.
"Reimbursement Obligation" is defined in Section 2.6.3.
"Release" means a "release", as such term is defined in CERCLA.
"Release Certificate" means a Release Certificate, substantially in the
form of Exhibit K attached hereto, executed and delivered by a Borrower pursuant
to Section 7.2.15.
"Released Borrower" means any Borrower whose Capital Securities are
involved in an Asset Swap or Disposed of, or are the subject of a Restricted
Payment, in each case pursuant to the terms of this Agreement.
"Replacement Lender" is defined in clause (g) of Section 10.11.1.
"Required Lenders" means, at any time,
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(a) prior to the date of the making of the initial Credit
Extension hereunder, Lenders having at least 51% of the Tranche B Term
Loan Commitments and the Revolving Loan Commitments; and
(b) on and after the Effective Date, Lenders holding at least
51% of the Total Exposure Amount.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., as amended.
"Restricted Payment" means, in each case directly or indirectly,
whether in cash or property, obligations of any Borrower or any Restricted
Subsidiary or otherwise in respect of
(a) the declaration or payment of any dividend or distribution
on any class of Capital Security of any Borrower or any Restricted
Subsidiary (other than dividends or distributions made by a Restricted
Subsidiary (or a Borrower) to another Restricted Subsidiary or
Borrower, or made in Capital Securities (of the type set forth in
clause (a) of the definition thereof) of any Borrower or Restricted
Subsidiary which does not result in a Default) or any payment on
account of the purchase, redemption or other acquisition or retirement
of such Capital Securities or any warrants or options to purchase any
such Capital Securities, whether now or hereafter outstanding, or the
making of any repayment or prepayment or distribution on account of, or
setting apart assets for a sinking or other analogous fund for the
purchase, redemption, defeasance, retirement or other acquisition of
the principal amount of and/or interest (other than payment-in-kind
interest) or premium on Affiliate Indebtedness (other than Management
Fees) or the making of any other distribution in respect thereof made
by any Restricted Subsidiaries or any Borrower to any other Person
(other than, in each case, to a Borrower or a Restricted Subsidiary or;
and
(b) Investments (including redemptions of Capital Securities)
by any Borrower or any Restricted Subsidiary in an Unrestricted
Subsidiary.
"Restricted Subsidiary" means each Subsidiary (which shall be organized
or incorporated under the laws of the United States or a state thereof) that is
not an Unrestricted Subsidiary.
"Revolving Loan" is defined in Section 2.1.1.
"Revolving Loan Commitment" means, relative to any Lender, such
Lender's obligation (if any) to make Revolving Loans pursuant to Section 2.1.1.
"Revolving Loan Commitment Amount" means, on any date, $600,000,000, as
such amount may be reduced from time to time pursuant to Section 2.2.
"Revolving Loan Commitment Termination Date" means the earliest of
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(a) June 15, 1999 (if the initial Credit Extension has not
occurred on or prior to such date);
(b) September 30, 2007;
(c) the date on which the Revolving Loan Commitment Amount is
terminated in full or reduced to zero pursuant to the terms of this
Agreement; and
(d) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in the preceding clauses (c) or (d),
the Revolving Loan Commitments shall terminate automatically and without any
further action.
"Revolving Loan Lender" is defined in Section 2.1.1.
"Revolving Loan Percentage" means, relative to any Lender, its
percentage (if any) of the Revolving Loan Commitment Amount set forth opposite
its name on Schedule II hereto under the Revolving Loan Commitment column, as
such percentage may be adjusted from time to time pursuant to Lender Assignment
Agreement(s) executed by such Lender and its Assignee Lender(s) and delivered
pursuant to Section 10.11.1.
"Revolving Note" means a promissory note of the Borrowers payable to
any Revolving Loan Lender, in the form of Exhibit A-1 hereto (as such promissory
note may be amended, endorsed or otherwise modified from time to time),
evidencing the aggregate Indebtedness of the Borrowers to such Revolving Loan
Lender resulting from outstanding Revolving Loans, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Rigas Family" means ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, or any of their respective spouses, estates, or
lineal descendants, or any trust created for the direct and sole benefit of any
such Persons or, while and to the extent they are serving in such capacity, the
executors, administrators or personal representatives of such Persons.
"S&P" means Standard & Poor's Ratings Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies..
"SEC" means the Securities and Exchange Commission.
"Secured Parties" means, collectively, the Lenders, the Issuer, the
Administrative Agent, each counterparty to a Rate Protection Agreement and (in
each case), each of their respective successors, transferees and assigns.
"Senior Debt" means, on any date, the amount (in excess of zero) of (i)
the aggregate sum of the outstanding principal amount of all Indebtedness of the
Borrowers and their Restricted
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Subsidiaries of the type referred to in clause (a) (exclusive of Affiliate
Indebtedness and Intercompany Indebtedness), clause (b), clause (c), clause (f)
and clause (g), in each case of the definition of "Indebtedness" and (without
duplication) any Contingent Liability in respect of any of the foregoing minus
(ii) any Excess Cash Balance existing on such date.
"SMATV System" means any Cable System that is a satellite master
antenna television system as such term is commonly understood in the cable
television industry.
"Stated Amount" means, on any date and with respect to a particular
Letter of Credit, the total amount then available to be drawn under such Letter
of Credit regardless of whether conditions to drawing are then satisfied.
"Stated Expiry Date" is defined in Section 2.6.
"Stated Maturity Date" means September 30, 2007 (in the case of
Revolving Loans) and March 31, 2008 (in the case of Tranche B Term Loans).
"Subordination Agreements" means, collectively, the Intercompany
Subordination Agreement and each Manager Subordination Agreement.
"Subordination Provisions" is defined in Section 8.1.11.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership or other entity of which more than 50% of
the outstanding Capital Securities having ordinary voting power to elect the
board of directors, managers or other voting members of the governing body of
such corporation, limited liability company, partnership or other entity
(irrespective of whether at the time securities (or other ownership interest) of
any other class or classes of such corporation, limited liability company,
partnership or other entity shall or might have voting power upon the occurrence
of any contingency) is at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more other Subsidiaries of such Person,
or by one or more other Subsidiaries of such Person. Unless the context
otherwise specifically requires, the terms "Subsidiary", "Restricted Subsidiary"
and "Unrestricted Subsidiary" shall be references to a Subsidiary of a Borrower.
"Subsidiary Guarantor" means each Subsidiary that is required, pursuant
to Section 7.1.11, to execute and deliver a Subsidiary Guaranty, and
collectively means all such Persons.
"Subsidiary Guaranty" means the guaranty executed and delivered by each
Subsidiary Guarantor pursuant to the terms of this Agreement in substantially
the form of Exhibit H hereto, as amended, supplemented, amended and restated or
otherwise modified from time to time.
"Subsidiary Pledgor" means each Subsidiary of any Borrower that is
required, pursuant to the terms of this Agreement, to become a party to the
Obligor Pledge Agreement, and collectively means all such Persons.
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"Supplemental Lenders" is defined in Section 2.8.
"Synthetic Lease" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) (i) that is not a capital lease in accordance
with GAAP and (ii) in respect of which the lessee retains or obtains ownership
of the property so leased for federal income tax purposes, other than any such
lease under which that Person is the lessor.
"System Cash Flow Percentage" means, on any date of determination, as
to any Existing Assets (including Cable Systems) being Disposed of by means of a
Permitted Existing Asset Swap or a Permitted Existing Asset Transfer only, the
percentage of the total Annualized Operating Cash Flow (arising solely from the
Existing Assets), based on the most recent full Fiscal Quarter ended prior to
the date of such Permitted Existing Asset Swap or Permitted Existing Asset
Transfer contributed by such assets and/or Cable Systems (and subscribers
thereof of such Cable Systems).
"Taxes" means any and all income, stamp or other taxes, duties, levies,
imposts, charges, fees, deductions or withholdings, now or hereafter imposed,
levied, collected, withheld or assessed by any Governmental Authority, and all
interest, penalties or similar liabilities with respect thereto.
"Termination Date" means the date on which all Obligations (other than
in respect of the Rate Protection Agreements) shall have been paid in full in
cash, all Letters of Credit have been terminated or expired (or the
Administrative Agent shall have received immediately available funds in an
amount equal to all Letter of Credit Outstandings, deposited in a cash
collateral account with the Administrative Agent or its designee on terms
satisfactory to the Administrative Agent), all Rate Protection Agreements have
been terminated and all Commitments shall have terminated.
"TMIP" is defined in Section 7.1.13.
"TMIP Limited Partners" means, collectively, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. Best, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. Shock, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ and their successors, transferees and assignees.
"Total Exposure Amount" means, on any date of determination (and
without duplication), the outstanding principal amount of all Loans, the
aggregate amount of all Letter of Credit Outstandings and the unfunded amount of
the Commitments.
"Tranche B Term Loan" is defined in Section 2.1.3.
"Tranche B Term Loan Commitment" means, relative to any Lender, such
Lender's obligation (if any) to make Tranche B Term Loans pursuant to Section
2.1.3.
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"Tranche B Term Loan Commitment Amount" means, on any
date, $250,000,000.
"Tranche B Term Loan Commitment Termination Date" means the earlier of
(a) June 15, 1999 (if the initial Credit Extension has not
occurred on or prior to such date);
(b) the date the initial Credit Extensions are made
(immediately after the making of the Tranche B Term Loans on such
date); and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Tranche B
Term Loan Commitments shall terminate automatically and without any further
action.
"Tranche B Term Loan Lender" is defined in Section 2.1.3.
"Tranche B Term Loan Percentage" means, relative to any Lender, its
percentage (if any) of the Tranche B Term Loan Commitment Amount set forth
opposite its name on Schedule II hereto under the Tranche B Term Loan Commitment
column, as such percentage may be adjusted from time to time pursuant to Lender
Assignment Agreement(s) executed by such Lender and its Assignee Lender(s) and
delivered pursuant to Section 10.11.1.
"Tranche B Term Note" means a promissory note of the Borrowers payable
to any Lender, in the form of Exhibit A-2 hereto (as such promissory note may be
amended, endorsed or otherwise modified from time to time), evidencing the
aggregate Indebtedness of the Borrowers to such Lender resulting from
outstanding Tranche B Term Loans, and also means all other promissory notes
accepted from time to time in substitution therefor or renewal thereof.
"type" means, relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"U.C.C." means the Uniform Commercial Code as from time to time in
effect in the State of New York; provided, that if by reason of applicable law,
the perfection or the effect of perfection or non-perfection of the security
interests in any collateral securing the Obligations is governed by the Uniform
Commercial Code as in effect in a jurisdiction other than New York, then
"U.C.C." means the Uniform Commercial Code as in effect in such other
jurisdiction for purposes of the provisions hereof relating to such perfection
or effect of perfection or nonperfection.
"United States" or "U.S." means the United States of America, its fifty
states and the District of Columbia.
"Unrestricted Subsidiaries" shall mean Subsidiaries of any Borrower
(other than Subsidiaries which have executed and delivered a Subsidiary
Guaranty, unless released from
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such Guaranty in connection with a transaction permitted by this Agreement)
which are classified after the Effective Date by a resolution of the Board of
Directors of the applicable Borrower that is promptly delivered to the
Administrative Agent as an Unrestricted Subsidiary.
"U.S. Subsidiary" means any Subsidiary that is incorporated or
organized under the laws of the United States or a state thereof or the District
of Columbia.
"Voting Stock" means, with respect to any Person, Capital Securities of
any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Weighted Average Life to Maturity" means, relative to any Indebtedness
at any date, the number of years (rounded to the nearest one-twelfth) obtained
by dividing (a) the then outstanding principal amount of such Indebtedness into
(b) the total of the product obtained by multiplying (i) the amount of each then
remaining installment, sinking fund, serial maturity or other required payments
of principal, including payment of final maturity, in respect thereof, by (ii)
the number of years (calculated to the nearest one-twelfth) that will elapse
between such date and the making of such payment.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
"wholly-owned" means, with respect to any Person, any Subsidiary of
such Person all of the Capital Securities of the types set forth in clause (a)
of such definition (and all rights and options to purchase such Capital
Securities) of which, other than directors' qualifying shares, are owned,
beneficially and of record, by such Person and/or one or more wholly-owned
Subsidiaries of such Person, and the term "wholly-owned Subsidiary" shall mean a
Subsidiary of a Borrower that is also a wholly-owned Subsidiary of a Borrower.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each other Loan Document and the
Disclosure Schedule.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or Section are
references to such Article or Section of this Agreement or such other Loan
Document, as the case may be, and, unless otherwise specified, references in any
Article, Section or definition to any clause are references to such clause of
such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein or in any other Loan Document shall
be interpreted, and all accounting determinations and computations hereunder or
thereunder (including under Section 7.2.4) shall be made, in accordance with,
those generally accepted accounting principles ("GAAP") applied in the
preparation of the financial statements referred to Section 5.1.15. Unless
otherwise expressly provided, all financial covenants and defined financial
terms shall be
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computed on a combined basis for the Borrowers and their Restricted
Subsidiaries, in each case without duplication.
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES AND NOTES AND LETTERS OF CREDIT
SECTION 2.1. Commitments. On the terms and subject to the conditions
of this Agreement, the Lenders and the Issuer severally agree to make Credit
Extensions as set forth below.
SECTION 2.1.1. Revolving Loan Commitment. From time to time on any
Business Day occurring from and after the Effective Date but prior to the
Revolving Loan Commitment Termination Date, each Lender with a Revolving Loan
Percentage in excess of zero (referred to as a "Revolving Loan Lender"), will
make loans (relative to such Lender, its "Revolving Loans") to the applicable
Borrower equal to such Lender's Revolving Loan Percentage of the aggregate
amount of each Borrowing of the Revolving Loans requested by such Borrower to be
made on such day. On the terms and subject to the conditions hereof, each
Borrower may from time to time borrow, prepay and reborrow Revolving Loans.
SECTION 2.1.2. Letter of Credit Commitment. From time to time on any
Business Day occurring from and after the Effective Date but no later than five
Business Days prior to the Revolving Loan Commitment Termination Date, the
Issuer will
(a) issue one or more standby letters of credit (relative to
the Issuer, its "Letter of Credit") for the account of the applicable
Borrower or any Subsidiary Guarantor in the Stated Amount requested by
such Borrower on such day; or
(b) extend the Stated Expiry Date of an existing standby
Letter of Credit previously issued hereunder to a date not later than
the earlier of (x) five Business Days prior to the Revolving Loan
Commitment Termination Date and (y) unless otherwise agreed to by the
Issuer in its sole discretion, one year from the date of such
extension.
SECTION 2.1.3. Tranche B Term Loan Commitment. In a single Borrowing
(which shall be on a Business Day) occurring on the Effective Date, each Lender
with a Tranche B Term Loan Percentage in excess of zero (referred to as a
"Tranche B Term Loan Lender") will make loans (relative to such Lender, its
"Tranche B Term Loans") to the applicable Borrower equal to such Lender's
Tranche B Term Loan Percentage of the aggregate amount of the Borrowing of
Tranche B Term Loans requested by such Borrower to be made on such day (with the
commitment of each such Lender described in this clause herein referred to as
its "Tranche B Term Loan Commitment").
No amounts paid or prepaid with respect to Tranche B Term Loans may be
reborrowed.
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SECTION 2.1.4. Lenders Not Permitted or Required to Make Loans. No
Lender shall be permitted or required to make any Loan if, after giving effect
thereto, the aggregate outstanding principal amount of
(a) (i) all Revolving Loans of all Revolving Loan Lenders,
together with the aggregate amount of all Letter of Credit
Outstandings, would exceed the then existing Revolving Loan Commitment
Amount; or (ii) the Revolving Loans of such Revolving Loan Lender,
together with such Lender's Revolving Loan Percentage of the aggregate
amount of all Letter of Credit Outstandings, would exceed such Lender's
Revolving Loan Percentage of the then existing Revolving Loan
Commitment Amount; and
(b) (i) all Tranche B Term Loans of all Tranche B Term Loan
Lenders made on the Effective Date would exceed the Tranche B Term Loan
Commitment Amount; or (ii) the Tranche B Term Loans of such Tranche B
Term Loan Lender would exceed such Tranche B Term Loan Lender's Tranche
B Term Loan Percentage.
SECTION 2.1.5. Issuer Not Permitted or Required to Issue Letters of
Credit. The Issuer shall not be permitted or required to issue any Letter of
Credit if, after giving effect thereto, (a) the aggregate amount of all Letter
of Credit Outstandings would exceed the Letter of Credit Commitment Amount; or
(b) the sum of the aggregate amount of all Letter of Credit Outstandings plus
the aggregate principal amount of all Revolving Loans then outstanding would
exceed the Revolving Loan Commitment Amount then in effect.
SECTION 2.2. Reduction of the Commitment Amounts. The Commitment
Amounts are subject to reduction from time to time pursuant to this Section 2.2.
SECTION 2.2.1. Optional. The Borrowers may, from time to time on any
Business Day occurring after the Effective Date, voluntarily reduce the amount
of the Revolving Loan Commitment Amount or the Letter of Credit Commitment
Amount on the Business Day so specified by the Borrowers; provided, however,
that all such reductions shall require at least three but no more than five
Business Day's prior notice to the Administrative Agent and be permanent, and
any partial reduction of any Commitment Amount shall be in a minimum amount of
$5,000,000 and in an integral multiple of $1,000,000. Any optional or mandatory
reduction of the Revolving Loan Commitment Amount pursuant to the terms of this
Agreement which reduces the Revolving Loan Commitment Amount below the Letter of
Credit Commitment Amount shall result in an automatic and corresponding
reduction of the Letter of Credit Commitment Amount (as directed by the
Borrowers in a notice to the Administrative Agent delivered together with the
notice of such voluntary reduction in the Revolving Loan Commitment Amount) to
an aggregate amount not in excess of the Revolving Loan Commitment Amount, as so
reduced, without any further action on the part of the Issuer.
SECTION 2.2.2. Mandatory Reduction of Revolving Loan Commitment
Amount. Prior to the Revolving Loan Commitment Termination Date, the Revolving
Loan Commitment Amount shall also be permanently reduced as follows:
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(a) Commencing on March 31, 2002, and on each subsequent
Quarterly Payment Date occurring during each period set forth below,
the Revolving Loan Commitment Amount will be reduced in an amount
corresponding to the percentage of the Revolving Loan Commitment Amount
existing on the Effective Date set forth opposite such period:
Amount Of
Period Reduction
01/01/02 through (and
including) 03/31/03 3.00%
04/01/03 through (and
including) 03/31/06 4.25%
04/01/06 through (and
including) 06/30/07 5.50%
07/01/07 through (and
including) 09/30/07 6.50%.
(b) The Revolving Loan Commitment Amount will be permanently
reduced in an amount equal to the Net Disposition Proceeds that the
Borrowers have allocated thereto pursuant to clause (b) of Section
3.1.2, with the commitment reduction applied against future scheduled
reductions in the Revolving Loan Commitment Amount (as set forth in
clause (a) above), ratably in accordance with the then remaining
scheduled reductions in the Revolving Loan Commitment Amount.
SECTION 2.3. Borrowing Procedure. By delivering a Borrowing Request to
the Administrative Agent on or before 10:00 a.m., New York time (in the case of
Base Rate Loan) or 12:00 noon (in the case of a LIBO Rate Loan), on a Business
Day, each Borrower may from time to time irrevocably request on such Business
Day in the case of Base Rate Loans, or three Business Days' notice in the case
of LIBO Rate Loans, and in either case not more than five Business Days' notice,
that a Borrowing be made, in the case of LIBO Rate Loans, in a minimum amount of
$5,000,000 and an integral multiple of $1,000,000, in the case of Base Rate
Loans, in a minimum amount of $3,000,000 and an integral multiple of $1,000,000
or, in either case, in the unused amount of the applicable Commitment. On the
terms and subject to the conditions of this Agreement, each Borrowing shall be
comprised of the type of Loans, and shall be made on the Business Day, specified
in such Borrowing Request. On or before 12:00 noon, New York time (or, if later,
two hours following the Administrative Agent's providing of notice to such
Lender of such Borrowing Request), on such Business Day each Lender that has a
Commitment to make the Loans being requested shall deposit with the
Administrative Agent same day funds in an amount equal to such Lender's
Percentage of the requested Borrowing. Such deposit will be made to an account
which the Administrative Agent shall specify from time to time by notice to the
Lenders. To the extent funds are received from the Lenders, the Administrative
Agent shall
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make such funds available to the applicable Borrower by wire transfer to the
accounts such Borrower shall have specified in its Borrowing Request. No
Lender's obligation to make any Loan shall be affected by any other Lender's
failure to make any Loan.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/ Conversion Notice to the Administrative Agent on or before 12:00
noon, New York time, on a Business Day, the applicable Borrower may from time to
time irrevocably elect, on not less than one Business Day's notice in the case
of Base Rate Loans, or three Business Days' notice in the case of LIBO Rate
Loans, and in either case not more than five Business Days' notice, that all, or
any portion in an aggregate minimum amount of $5,000,000 and an integral
multiple of $1,000,000 be, in the case of Base Rate Loans, converted into LIBO
Rate Loans or be, in the case of LIBO Rate Loans, converted into Base Rate Loans
or continued as LIBO Rate Loans (in the absence of delivery of a
Continuation/Conversion Notice with respect to any LIBO Rate Loan at least three
Business Days (but not more than five Business Days) before the last day of the
then current Interest Period with respect thereto, such LIBO Rate Loan shall, on
such last day, automatically convert to a Base Rate Loan); provided, however,
that (x) each such conversion or continuation shall be pro rated among the
applicable outstanding Loans of all Lenders that have made such Loans, and (y)
no portion of the outstanding principal amount of any Loans may be continued as,
or be converted into, LIBO Rate Loans when any Default has occurred and is
continuing. The Administrative Agent will promptly notify the Lenders of each
such Continuation/Conversion Notice and the contents thereof.
SECTION 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to make, continue or convert LIBO Rate Loans hereunder by causing one
of its foreign branches or Affiliates (or an international banking facility
created by such Lender) to make or maintain such LIBO Rate Loan; provided,
however, that such LIBO Rate Loan shall nonetheless be deemed to have been made
and to be held by such Lender, and the obligation of the Borrowers to repay such
LIBO Rate Loan shall nevertheless be to such Lender for the account of such
foreign branch, Affiliate or international banking facility. In addition, each
Borrower hereby consents and agrees that, for purposes of any determination to
be made for purposes of Section 4.1, 4.2, 4.3 or 4.4, it shall be conclusively
assumed that each Lender elected to fund all LIBO Rate Loans by purchasing
Dollar deposits in its LIBOR Office's interbank eurodollar market.
SECTION 2.6. Issuance Procedures. By delivering to the Administrative
Agent and the Issuer an Issuance Request on or before 12:00 noon., New York
time, on a Business Day, any Borrower may from time to time irrevocably request
on not less than three nor more than ten Business Days' notice, in the case of
an initial issuance of a Letter of Credit and not less than three Business Days'
prior notice, in the case of a request for the extension of the Stated Expiry
Date of a standby Letter of Credit, that the Issuer issue, or extend the Stated
Expiry Date of, as the case may be, an irrevocable Letter of Credit in such form
as may be requested by such Borrower and approved by the Issuer, solely for the
purposes described in Section 7.1.9. Each Letter of Credit shall by its terms be
stated to expire on a date (its "Stated Expiry Date") no later than the earlier
to occur of (i) five Business Days prior to the Revolving Loan Commitment
Termination Date or (ii) (unless otherwise agreed to by the Issuer, in its sole
discretion) one year
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from the date of its issuance. The Issuer will make available to the beneficiary
thereof the original of the Letter of Credit which it issues hereunder.
SECTION 2.6.1. Other Lenders' Participation. Upon the issuance of each
Letter of Credit issued by the Issuer pursuant hereto, and without further
action, each Revolving Loan Lender (other than the Issuer) shall be deemed to
have irrevocably purchased, to the extent of its Revolving Loan Percentage, a
participation interest in such Letter of Credit (including the Contingent
Liability and any Reimbursement Obligation with respect thereto), and such
Revolving Loan Lender shall, to the extent of its Percentage to make Revolving
Loans, be responsible for reimbursing promptly (and in any event within one
Business Day) the Issuer for Reimbursement Obligations which have not been
reimbursed by the Borrowers in accordance with Section 2.6.3. In addition, such
Revolving Loan Lender shall, to the extent of its Revolving Loan Percentage, be
entitled to receive a ratable portion of the Letter of Credit fees payable
pursuant to Section 3.3.3 with respect to each Letter of Credit (other than the
issuance fees payable to the Issuer of such Letter of Credit pursuant to the
last sentence of Section 3.3.3) and of interest payable pursuant to Section 3.2
with respect to any Reimbursement Obligation. To the extent that any Revolving
Loan Lender has reimbursed the Issuer for a Disbursement, such Lender shall be
entitled to receive its ratable portion of any amounts subsequently received
(from the Borrowers or otherwise) in respect of such Disbursement.
SECTION 2.6.2. Disbursements. The Issuer will notify the Borrowers and
the Administrative Agent promptly of the presentment for payment of any Letter
of Credit issued by the Issuer, together with notice of the date (the
"Disbursement Date") such payment shall be made (each such payment, a
"Disbursement"). Subject to the terms and provisions of such Letter of Credit
and this Agreement, the Issuer shall make such payment to the beneficiary (or
its designee) of such Letter of Credit. Prior to 12:00 noon, New York time, on
the Disbursement Date, the Borrowers agree to jointly and severally reimburse
the Administrative Agent, for the account of the Issuer, for all amounts which
the Issuer has disbursed under such Letter of Credit, together with interest
thereon at a rate per annum equal to the rate per annum then in effect for Base
Rate Loans (with the then Applicable Margin for Revolving Loans accruing on such
amount) pursuant to Section 3.2 for the period from the Disbursement Date
through the date of such reimbursement. Without limiting in any way the
foregoing and notwithstanding anything to the contrary contained herein or in
any separate application for any Letter of Credit, each Borrower hereby
acknowledges and agrees that it shall be jointly and severally obligated to
reimburse the Issuer upon each Disbursement of a Letter of Credit, and it shall
be deemed to be the obligor for purposes of each such Letter of Credit issued
hereunder (whether the account party on such Letter of Credit is a Borrower or a
Restricted Subsidiary).
SECTION 2.6.3. Reimbursement. The joint and several obligation (a
"Reimbursement Obligation") of the Borrowers under Section 2.6.2 to reimburse
the Issuer with respect to each Disbursement (including interest thereon), and,
upon the failure of the Borrowers to reimburse the Issuer, each Revolving Loan
Lender's obligation under Section 2.6.1 to reimburse the Issuer, shall be
absolute and unconditional under any and all circumstances and irrespective of
any setoff, counterclaim or defense to payment which the Borrowers or such
Revolving Loan Lender, as the case may be, may have or have had against the
Issuer or any Lender, including any defense
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based upon the failure of any Disbursement to conform to the terms of the
applicable Letter of Credit (if, in the Issuer's good faith opinion, such
Disbursement is determined to be appropriate) or any non-application or
misapplication by the beneficiary of the proceeds of such Letter of Credit;
provided, however, that after paying in full its Reimbursement Obligation
hereunder, nothing herein shall adversely affect the right of any Borrower or
such Lender, as the case may be, to commence any proceeding against the Issuer
for any wrongful Disbursement made by the Issuer under a Letter of Credit as a
result of acts or omissions constituting gross negligence or wilful misconduct
on the part of the Issuer.
SECTION 2.6.4. Deemed Disbursements. Upon the occurrence and during the
continuation of any Default under Section 8.1.9 or upon notification by the
Administrative Agent (acting at the direction of the Required Lenders) to any
Borrower of its obligations under this Section, following the occurrence and
during the continuation of any other Event of Default,
(a) the aggregate Stated Amount of all Letters of Credit
shall, without demand upon or notice to any Borrower or any other
Person, be deemed to have been paid or disbursed by the Issuer of such
Letters of Credit (notwithstanding that such amount may not in fact
have been paid or disbursed); and
(b) each Borrower shall be immediately obligated to reimburse
the Issuer for the amount deemed to have been so paid or disbursed by
the Issuer.
Amounts payable by the Borrowers pursuant to this Section shall be deposited in
immediately available funds with the Administrative Agent and held as collateral
security for the Reimbursement Obligations. When all Defaults giving rise to the
deemed disbursements under this Section have been cured or waived the
Administrative Agent shall return to the applicable Borrowers all amounts then
on deposit with the Administrative Agent pursuant to this Section which have not
been applied to the satisfaction of the Reimbursement Obligations.
SECTION 2.6.5. Nature of Reimbursement Obligations. Each Borrower, each
other Obligated Party and, to the extent set forth in Section 2.6.1, each
Revolving Loan Lender shall assume all risks of the acts, omissions or misuse of
any Letter of Credit by the beneficiary thereof. The Issuer (except to the
extent of its own gross negligence or wilful misconduct) shall not be
responsible for:
(a) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any Letter of Credit or any document submitted by any
party in connection with the application for and issuance of a Letter
of Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(b) the form, validity, sufficiency, accuracy, genuineness or
legal effect of any instrument transferring or assigning or purporting
to transfer or assign a Letter of Credit or the rights or benefits
thereunder or the proceeds thereof in whole or in part, which may prove
to be invalid or ineffective for any reason;
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(c) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
(d) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise; or
(e) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a
Letter of Credit.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Issuer or any Revolving Loan Lender hereunder.
In furtherance and not in limitation or derogation of any of the foregoing, any
action taken or omitted to be taken by the Issuer in good faith (and not
constituting gross negligence or willful misconduct) shall be binding upon each
Obligated Party and each such Secured Party, and shall not put the Issuer under
any resulting liability to any Obligated Party or any Secured Party, as the case
may be.
SECTION 2.7. Register; Notes.
(a) Each Lender may maintain in accordance with its usual practice an
account or accounts evidencing the Indebtedness of the Borrowers to such Lender
resulting from each Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder. In the
case of a Lender that does not request, pursuant to clause (b)(ii) below,
execution and delivery of a Note evidencing the Loans made by such Lender to the
Borrowers, such account or accounts shall, to the extent not inconsistent with
the notations made by the Administrative Agent in the Register, be conclusive
and binding on the Borrowers absent manifest error; provided, however, that the
failure of any Lender to maintain such account or accounts and/or any
inconsistency with the Register shall not limit or otherwise affect any
Obligations of the Borrowers or any other Obligor.
(b)(i) The Borrowers hereby designate the Administrative Agent to serve
as the Borrowers' agent, solely for the purpose of this clause (b), to maintain
a register (the "Register") on which the Administrative Agent will record each
Lender's Commitment, the Loans made by each Lender and each repayment in respect
of the principal amount of the Loans of each Lender and annexed to which the
Administrative Agent shall retain a copy of each Lender Assignment Agreement
delivered to the Administrative Agent pursuant to Section 10.11.1. Failure to
make any recordation, or any error in such recordation, shall not affect any
Borrower's obligation in respect of such Loans. The entries in the Register
shall be conclusive, in the absence of manifest error, and the Borrowers, the
Administrative Agent and the Lenders shall treat each Person in whose name a
Loan is registered (or the holder of any Note evidencing such Loan) as the owner
thereof for all purposes of this Agreement, notwithstanding notice or any
provision herein to the contrary. A Lender's Commitment and the Loans made
pursuant thereto may be assigned or otherwise transferred in whole or in part
only by registration of such assignment or transfer in the Register. Any
assignment or transfer of a Lender's Commitment or the Loans made pursuant
thereto shall be registered in the Register only upon delivery to the
Administrative Agent of a Lender Assignment Agreement duly executed by the
assignor thereof and the compliance by the
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parties thereto with the other requirements of Section 10.11.1. No assignment or
transfer of a Lender's Commitment or the Loans made pursuant thereto shall be
effective unless such assignment or transfer shall have been recorded in the
Register by the Administrative Agent as provided in this Section; provided,
however, that, notwithstanding anything to the contrary contained herein, any
Lender may, without any such recordation in the Register, at any time assign all
or any portion of its rights under this Agreement and its Notes, if any, to a
Federal Reserve Bank but no such assignment shall release such Lender from its
obligations under this Agreement.
(ii) The Borrowers agree that, upon the request to the Administrative
Agent by any Lender, the Borrowers will execute and deliver to such Lender, as
applicable, a Note evidencing the Loans made by such Lender. The Borrowers
hereby irrevocably authorize each Lender to make (or cause to be made)
appropriate notations on the grid attached to such Lender's Notes (or on any
continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal amount of, and the interest rate
and Interest Period applicable to the Loans evidenced thereby. Such notations
shall, to the extent not inconsistent with the notations made by the
Administrative Agent in the Register, be conclusive and binding on the Borrowers
absent manifest error; provided, however, that the failure of any Lender to make
any such notations shall not limit or otherwise affect any Obligations of the
Borrowers or any other Obligor.
SECTION 2.8. Incremental Facility. (a) Subject to the terms of this
Agreement and so long as no Default has occurred and is continuing, the
Borrowers may request, by written notice to the Administrative Agent delivered
not more than twice over the term of this Agreement, that a revolving credit
and/or term loan facility (the "Incremental Facility") in a specified principal
amount which (when aggregated with the outstanding principal amount of Loans and
unused amount of commitments under all other Incremental Facilities provided
pursuant to this Section) shall not exceed $100,000,000 pursuant to which
revolving loans and/or term loans will be made to the Borrowers pursuant to this
Agreement. Revolving loans under the Incremental Facility will be instituted as
an increase to the then existing Revolving Loan Commitment Amount (and having a
maturity date the same as the Stated Maturity Date), and loans made thereunder
being "Revolving Loans" hereunder and otherwise treated pari passu (including as
to repayments, prepayments, interest rate, commitment fees, mandatory commitment
reductions, risk participations in Letters of Credit and collateral) pro rata
with all other Revolving Loans. Term loans under the Incremental Facility will
be instituted as an increase to the aggregate outstanding principal amount of
the Tranche B Term Loans (and having a maturity date the same as the Stated
Maturity Date), and loans made thereunder being "Tranche B Term Loans" hereunder
and otherwise treated pari passu (as to repayments, prepayments, mandatory
commitment reductions and collateral) pro rata with all other Tranche B Term
Loans, provided that the Weighted Average Life to Maturity of such Incremental
Facility term loans shall in no event be shorter than the Weighted Average Life
to Maturity of the then outstanding Tranche B Term Loans.
(b) Upon receipt of such request, the Administrative Agent will
promptly notify, and deliver a copy of such request and related materials to,
each Lender (by telephone or otherwise). Within 15 Business Days after receipt
by the Lenders of such request, each Lender interested in
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participating in the requested Incremental Facility shall notify the
Administrative Agent and the Borrowers of its election to participate and the
maximum amount of its proposed Commitment with respect to such Incremental
Facility (a "Commitment Notice"); provided, however, that each Lender may elect
to participate or not participate in the Incremental Facility in its sole
discretion, and unless a Lender shall so elect to participate, no such Lender
shall be deemed to have committed to participate in any Incremental Facility as
a result of being a signatory to this Agreement prior to the effectiveness of
the Incremental Facility, nor shall any Lender have any obligation to
participate in any Incremental Facility unless and until it commits to do so as
provided in this Section. Following receipt of such Commitment Notices, the
Borrowers (i) shall allocate the Incremental Facility, which allocations may be
made, at the Borrowers' option, in whole or in part to one or more of the
Lenders or other lenders (such Lenders or other lenders, the "Supplemental
Lenders") selected by the Borrowers with, as to any Supplemental Lender which is
not a Lender hereunder, the consent of the Administrative Agent and the Issuer
(such consent not to be unreasonably withheld), (ii) shall advise each Lender of
the amount of such Lender's commitment with respect to the Incremental Facility;
provided, however, that the existing Lenders providing a Commitment Notice with
respect to such Incremental Facility shall be entitled to participate in the
Incremental Facility on the same terms and conditions applicable to the
Supplemental Lenders with respect to such Incremental Facility (subject,
however, to the allocations made by the Borrowers pursuant to clause (i) above).
(c) Each Lender hereby authorizes the Arranging Agents, without the
requirement to obtain any further consents of the Lenders or the Issuer (but
subject to the provisions of clauses (a) through (e) of Section 10.1), to enter
into any amendments or supplements (including an amendment and restatement of
the Agreement) with the Borrowers to this and any other Loan Document to the
extent necessary to implement the foregoing and include the Incremental Facility
hereunder. By way of example, and not in limitation, the following items and
sections hereof would be revised in order to implement the Incremental Facility:
(a) the definitions of the terms "Commitment", "Commitment Amount", "Commitment
Termination Date", "Loans", "Note", "Percentage", "Revolving Loan Commitment
Amount","Tranche B Term Loan Commitment Amount" and "Termination Date"; (b)
Sections 2.1.1, 2.1.3, 2.1.4, 2.2, 2.6.1, 3.1.1, and 3.1.2; and (c) Supplemental
Lenders not otherwise Lenders hereunder shall become Lenders hereunder pursuant
to a joinder agreement reasonably satisfactory to the Administrative Agent and
the Borrowers. Prior to the making of any Loans under the Incremental Facility,
the Borrowers will satisfy conditions and provide to the Arranging Agents (with
counterparts for each Lender) similar documents as those executed and provided
on the Effective Date including satisfaction of conditions similar to those
contained in Sections 5.1.1, 5.1.2, 5.1.3, 5.1.5, 5.1.6, 5.1.7, 5.1.8, 5.1.9,
5.1.10, 5.1.11, 5.1.12, 5.1.13, 5.1.14, 5.1.15, 5.1.16, 5.1.17 and 5.2, and such
others as reasonably requested by the Arranging Agents.
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ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments; Application. The Borrowers
jointly and severally agree that the Loans shall be repaid and prepaid pursuant
to the following terms.
SECTION 3.1.1. Repayments and Prepayments. The Borrowers jointly and
severally agree to repay in full the unpaid principal amount of each Loan upon
the applicable Stated Maturity Date therefor. Prior thereto, payments and
prepayments of Loans shall or may be made as set forth below.
(a) From time to time on any Business Day, any Borrower may
make a voluntary prepayment, in whole or in part, of the outstanding
principal amount of any Loans to be applied as such Borrower may
direct; provided, however, that
(i) any such prepayment of the Tranche B Term Loans
shall be made pro rata among Tranche B Term Loans of the same
type and, if applicable, having the same Interest Period of
all Lenders that have made such Tranche B Term Loans and any
such prepayment of Revolving Loans shall be made pro rata
among the Revolving Loans of the same type and, if applicable,
having the same Interest Period of all Lenders that have made
such Revolving Loans;
(ii) all such voluntary prepayments (other than those
made on the date of the initial credit extension) shall
require at least three but no more than five Business Days'
prior written notice to the Administrative Agent; and
(iii) all such voluntary partial prepayments shall
be, in the case of LIBO Rate Loans, in an aggregate minimum
amount of $5,000,000 and an integral multiple of $1,000,000
and, in the case of Base Rate Loans, in an aggregate minimum
amount of $3,000,000 and an integral multiple of $1,000,000.
(b) On each date when the sum of (i) the aggregate outstanding
principal amount of all Revolving Loans and (ii) the aggregate amount
of all Letter of Credit Outstandings exceeds the then existing
Revolving Loan Commitment Amount, the Borrowers jointly and severally
agree to make a mandatory prepayment of Revolving Loans and/or deposit
cash collateral with the Administrative Agent or its designee pursuant
to an agreement satisfactory to the Administrative Agent to
collateralize Letter of Credit Outstandings, in an aggregate amount
equal to such excess.
(c) Within 365 days following the date of any Permitted
Disposition, the Borrowers jointly and severally agree (subject to the
following proviso) to make a mandatory prepayment of the Loans (and, if
applicable, reduce the Revolving Loan Commitment Amount) in an amount
equal to 100% of the Net Disposition Proceeds received in cash or Cash
Equivalent Investments and 50% of such Net Disposition
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Proceeds received as Permitted Consideration (valued at the Fair Market
Value of such Permitted Consideration as of the date on which the
Permitted Disposition occurred) in the form of other than cash or Cash
Equivalent Investments, to be applied as set forth in Section 3.1.2;
provided, however, that if no Event of Default has occurred and is
continuing, the Borrowers may at any time during such 365-day period
apply such Net Disposition Proceeds to purchase one or more Cable
Systems in lieu of the foregoing mandatory prepayment requirement (to
the extent that such Net Disposition Proceeds were so applied).
(d) On the Stated Maturity Date and on each Quarterly Payment
Date occurring during any period set forth below, the Borrowers jointly
and severally agree to make a scheduled repayment of the aggregate
outstanding principal amount, if any, of all Tranche B Term Loans in an
amount equal to the percentage (of $250,000,000, as such amount may be
increased pursuant to Section 2.8) set forth below opposite the Stated
Maturity Date or such Quarterly Payment Date, as applicable:
Amount of Required
Period Principal Repayment
01/01/02 through (and
including) 12/31/07 .25%
The Stated Maturity Date 94%, or the then outstanding
principal amount of all
Tranche B Term Loans, if
different.
(e) Immediately upon any acceleration of the Stated Maturity
Date of any Loans pursuant to Section 8.2 or Section 8.3, the Borrowers
shall, jointly and severally, repay all the Loans, unless, pursuant to
Section 8.3, only a portion of all the Loans is so accelerated (in
which case the portion so accelerated shall be so repaid).
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 4.4. No prepayment of
principal of any Revolving Loans pursuant to clause (a) or (b) shall cause a
reduction in the Revolving Loan Commitment Amount.
SECTION 3.1.2. Application. Amounts prepaid pursuant to Section 3.1.1
shall be applied as set forth in this Section.
(a) Subject to clause (b), each prepayment or repayment of the
principal of the Loans shall be applied, to the extent of such
prepayment or repayment, first, to the principal amount thereof being
maintained as Base Rate Loans, and second, subject to the terms of
Section 4.4, to the principal amount thereof being maintained as LIBO
Rate Loans. For the purposes of this Section only, any LIBO Rate Loans
converted to or made
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as Base Rate Loans pursuant to Section 4.1 shall be treated as if they
were LIBO Rate Loans.
(b) Each prepayment of Loans made pursuant to clause (c) of
Section 3.1.1 shall be allocated on the date of any required prepayment
between the Tranche B Term Loans and a reduction in the Revolving Loan
Commitment Amount and payment of the Revolving Loans as the Borrowers
may direct; provided that (i) each such prepayment of the Tranche B
Term Loans shall be applied on the date of any required prepayment to
the remaining Tranche B Term Loan amortization payments, pro rata in
accordance with the amount of each such remaining Tranche B Term Loan
amortization payment, and (ii) the amount of Net Disposition Proceeds
applied to the Revolving Loans shall be applied on the date of any
required prepayment to a pro rata reduction in the Revolving Loan
Commitment Amount reductions otherwise scheduled to occur pursuant to
clause (a) of Section 2.2.2, in addition, on the date of any required
prepayment, to the repayment of any outstanding Revolving Loans in the
requisite amount of Net Disposition Proceeds.
SECTION 3.2. Interest Provisions. Interest on the outstanding
principal amount of Loans shall accrue and be payable in accordance with this
Section 3.2.
SECTION 3.2.1. Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the applicable Borrower may
elect that Loans comprising a Borrowing accrue interest at a rate per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to
time in effect plus the Applicable Margin; and
(b) on that portion maintained as a LIBO Rate Loan, during
each Interest Period applicable thereto, equal to the sum of the LIBO
Rate (Reserve Adjusted) for such Interest Period plus the Applicable
Margin.
All LIBO Rate Loans shall bear interest from and including the first
day of the applicable Interest Period to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such LIBO
Rate Loan.
SECTION 3.2.2. Post-Maturity Rates. After the date any principal amount
of any Loan or Reimbursement Obligation is due and payable (whether on the
Stated Maturity Date, upon acceleration or otherwise), or after any other
monetary Obligation of the Borrowers shall have become due and payable, the
Borrowers jointly and severally agree to pay, but only to the extent permitted
by law, interest (after as well as before judgment) on such amounts at a rate
per annum equal to the sum of the LIBO Rate (Reserve Adjusted) then in effect
with respect to LIBO Rate Loans with an Interest Period of three months
(including any Applicable Margin) plus 2%.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
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(a) on the Stated Maturity Date;
(b) on the date of any payment or prepayment, in whole or in
part, of principal outstanding on such Loan on the principal amount so
paid or prepaid;
(c) with respect to Base Rate Loans, on each Quarterly Payment
Date occurring after the Effective Date;
(d) with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period (and, if such Interest Period shall exceed
three months, on the date occurring on each three-month interval
occurring after the first day of such Interest Period); and
(e) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 8.2 or Section 8.3,
immediately upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.3. Fees. The Borrowers jointly and severally agree to pay
the fees set forth in this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Commitment Fee. The Borrowers jointly and severally
agree to pay to the Administrative Agent for the account of each Lender, for the
period (including any portion thereof when any of its Commitments are suspended
by reason of any Borrower's inability to satisfy any condition of Article V)
commencing on the Effective Date and continuing through the Revolving Loan
Commitment Termination Date, a commitment fee in an amount equal to the
Applicable Commitment Fee Margin, in each case on such Lender's Revolving Loan
Percentage of the sum of the average daily unused portion of the Revolving Loan
Commitment Amount (net of Letter of Credit Outstandings). All commitment fees
payable pursuant to this Section shall be calculated on a year comprised of 365
days and payable by the Borrowers in arrears on each Quarterly Payment Date,
commencing with the first Quarterly Payment Date following the Effective Date,
and on the Revolving Loan Commitment Termination Date.
SECTION 3.3.2. Agent's Fee. The Borrowers jointly and severally agree
to pay to the Administrative Agent, for its own account, the fees in the amounts
and on the dates set forth in the Administrative Agent's Fee Letter. The
Borrowers jointly and severally agree to pay to the applicable party the fees in
the amounts and on the dates set forth in the Arranging Agents' Fee Letter.
SECTION 3.3.3. Letter of Credit Fee. The Borrowers jointly and
severally agree to pay to the Administrative Agent, for the pro rata account of
each Revolving Loan Lender, a Letter of Credit fee in an amount equal to the
then effective Applicable Margin for LIBO Rate Loans in respect of Revolving
Loans, multiplied by the Stated Amount of each such Letter of Credit, such fees
being payable quarterly in arrears on each Quarterly Payment Date following the
date of
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issuance of each Letter of Credit and on the Revolving Loan Commitment
Termination Date. The Borrowers jointly and severally further agree to pay to
the Issuer for its own account quarterly in arrears on each Quarterly Payment
Date following the date of issuance of a Letter of Credit and on the Revolving
Loan Commitment Termination Date a fronting fee as specified in the Arranging
Agents' Fee Letter.
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 4.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the Borrowers and the
Administrative Agent, be conclusive and binding on each Borrower) that the
introduction of or any change in or in the interpretation of any law makes it
unlawful, or any Governmental Authority asserts that it is unlawful, for such
Lender to make or continue any Loan as, or to convert any Loan into, a LIBO Rate
Loan, the obligations of such Lender to make, continue or convert any such LIBO
Rate Loan shall, upon such determination, forthwith be suspended until such
Lender shall notify the Administrative Agent that the circumstances causing such
suspension no longer exist, and all outstanding LIBO Rate Loans payable to such
Lender shall automatically convert into Base Rate Loans at the end of the then
current Interest Periods with respect thereto or sooner, if required by such law
or assertion.
SECTION 4.2. Deposits Unavailable. If the Administrative Agent shall
have determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to it in its relevant
market; or
(b) by reason of circumstances affecting it's relevant market,
adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans;
then, upon notice from the Administrative Agent to the Borrowers and the
Lenders, the obligations of all Lenders under Section 2.3 and Section 2.4 to
make or continue any Loans as, or to convert any Loans into, LIBO Rate Loans
shall forthwith be suspended until the Administrative Agent shall notify the
Borrowers and the Lenders that the circumstances causing such suspension no
longer exist.
SECTION 4.3. Increased LIBO Rate Loan Costs, etc. Each Borrower jointly
and severally agrees to reimburse each Lender and Issuer for any increase in the
cost to such Lender or Issuer of, or any reduction in the amount of any sum
receivable by such Lender or Issuer in respect of, such Lender's or Issuer's
Commitments and the making of Credit Extensions hereunder (including the making,
continuing or maintaining (or of its obligation to make, continue or maintain)
any Loans as, or of converting (or of its obligation to convert) any Loans into,
LIBO Rate Loans) that arise in connection with any change in, or the
introduction, adoption,
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effectiveness, interpretation, reinterpretation or phase-in after the date
hereof of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority, except
for such changes with respect to increased capital costs and Taxes which are
governed by Sections 4.5 and 4.6, respectively. Each affected Lender or Issuer
shall promptly notify the Administrative Agent and the Borrowers in writing of
the occurrence of any such event, such notice to state the reasons therefor and
the additional amount required fully to compensate such Lender or Issuer for
such increased cost or reduced amount. Such additional amounts shall be payable
by the Borrowers directly to such Lender or Issuer within five days of its
receipt of such notice, and such notice shall, in the absence of manifest error,
be conclusive and binding on the Borrowers.
SECTION 4.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make or continue any portion of the principal amount of any Loan as, or to
convert any portion of the principal amount of any Loan into, a LIBO Rate Loan)
as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loan on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
Article III or otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/Conversion Notice
therefor;
then, upon the written notice of such Lender to the Borrowers (with a copy to
the Administrative Agent), the Borrowers jointly and severally agree to, within
five days of their receipt thereof, pay directly to such Lender in each case at
the applicable rate of interest for such Loans provided for in this Agreement
over the amount of interest (as reasonably determined by such Lender) which
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the London interbank
market. Such written notice shall, in the absence of manifest error, be
conclusive and binding on the Borrowers.
SECTION 4.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any Governmental Authority affects
or would affect the amount of capital required or expected to be maintained by
any Lender or Issuer or any Person controlling such Lender or Issuer, and such
Lender or Issuer determines (in good faith but in its sole and absolute
discretion) that the rate of return on its or such controlling Person's capital
as a consequence of the Commitments or the Credit Extensions made, or the
Letters of Credit participated in, by such Lender or Issuer is reduced to a
level below that which such Lender or Issuer or such controlling Person could
have achieved but for the occurrence of any such circumstance, then, in any such
case upon notice from time to time by
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such Lender or Issuer to the Borrowers, the Borrowers jointly and severally
agree to, within five days following receipt of such notice, pay directly to
such Lender or Issuer additional amounts sufficient to compensate such Lender or
Issuer or such controlling Person for such reduction in rate of return. A
statement of such Lender or Issuer as to any such additional amount or amounts
shall, in the absence of manifest error, be conclusive and binding on the
Borrowers. In determining such amount, such Lender or Issuer may use any method
of averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable.
SECTION 4.6. Taxes. Each Borrower covenants and agrees as follows
with respect to Taxes.
(a) Any and all payments by any Borrower under this Agreement
and each other Loan Document shall be made without setoff, counterclaim
or other defense, and free and clear of, and without deduction or
withholding for or on account of, any Taxes. In the event that any
Taxes are required by law to be deducted or withheld from any payment
required to be made by a Borrower to or on behalf of any Credit Party
under any Loan Document, then (i) subject to clause (f), if such Taxes
are Non-Excluded Taxes, the amount of such payment shall be increased
as may be necessary such that such payment is made, after withholding
or deduction for or on account of such Taxes, in an amount that is not
less than the amount provided for herein or in such other Loan
Document; and (ii) such Borrower shall withhold the full amount of such
Taxes from such payment (as increased pursuant to clause (a) (i)) and
shall pay such amount to the Governmental Authority imposing such Taxes
in accordance with applicable law.
(b) In addition, the Borrowers jointly and severally agree to
pay any and all Other Taxes imposed to the relevant Governmental
Authority imposing such Other Taxes in accordance with applicable law.
(c) As promptly as practicable after the payment of any Taxes
or Other Taxes, and in any event within 45 days of any such payment
being due, the Borrowers shall furnish to the Administrative Agent a
copy of an official receipt (or a certified copy thereof) evidencing
the payment of such Taxes or Other Taxes. The Administrative Agent
shall make copies thereof available to any Lender upon request
therefor.
(d) Subject to clause (f), the Borrowers jointly and severally
agree to indemnify each Credit Party for any Non-Excluded Taxes and
Other Taxes levied, imposed or assessed on (and whether or not paid
directly by) such Credit Party (whether or not such Non-Excluded Taxes
or Other Taxes are correctly or legally asserted by the relevant
Governmental Authority). Promptly upon having knowledge that any such
Non-Excluded Taxes or Other Taxes have been levied, imposed or
assessed, and promptly upon notice thereof by any Credit Party, the
Borrowers jointly and severally agree to pay such Non-Excluded Taxes or
Other Taxes directly to the relevant Governmental Authority (provided,
however, that no Credit Party shall be under any obligation to provide
any such notice to such Borrower). In addition, the Borrowers jointly
and severally agree to indemnify each Credit Party for any incremental
Taxes that may become payable by such
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Credit Party as a result of any failure of any Borrower to pay any
Taxes when due to the appropriate Governmental Authority or to deliver
to the Administrative Agent, pursuant to clause (c), documentation
evidencing the payment of Taxes or Other Taxes. With respect to
indemnification for Non-Excluded Taxes and Other Taxes actually paid by
any Credit Party or the indemnification provided in the immediately
preceding sentence, such indemnification shall be made within 30 days
after the date such Credit Party makes written demand therefor. Each
Borrower acknowledges that any payment made to any Credit Party or to
any Governmental Authority in respect of the indemnification
obligations of the Borrowers provided in this clause shall constitute a
payment in respect of which the provisions of clause (a) and this
clause shall apply.
(e) Each Non-U.S. Lender, on or prior to the date on which
such non-U.S. Lender becomes a Lender hereunder (and from time to time
thereafter upon the request of any Borrower or the Administrative
Agent, but only for so long as such non-U.S. Lender is legally entitled
to do so), shall deliver to the Borrowers and the Administrative Agent
either
(i) (x) two duly completed copies of either (A)
Internal Revenue Service Form 1001 or (B) Internal Revenue
Service Form 4224, or in either case an applicable successor
form, and (y) a duly completed copy of Internal Revenue
Service Form W-8 or W-9 or applicable successor form; or
(ii) in the case of a Non-U.S. Lender that is not
legally entitled to deliver either form listed in clause
(e)(i)(x), (x) a certificate of a duly authorized officer of
such Non-U.S. Lender to the effect that such Non-U.S. Lender
is not (A) a "bank" within the meaning of Section 881(c)(3)(A)
of the Code, (B) a "10 percent shareholder" of any Borrower
within the meaning of Section 881(c)(3)(B) of the Code, or (C)
a controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of
the Code (such certificate, an "Exemption Certificate") and
(y) two duly completed copies of Internal Revenue Service Form
W-8 or applicable successor form.
(f) No Borrower shall be obligated to gross up any payments to
any Lender pursuant to clause (a)(i), or to indemnify any Lender
pursuant to clause (d), in respect of United States federal withholding
taxes to the extent imposed as a result of (i) the failure of such
Lender to deliver to such Borrower the form or forms and/or an
Exemption Certificate, as applicable to such Lender, pursuant to clause
(e), (ii) such form or forms and/or Exemption Certificate not
establishing a complete exemption from U.S. federal withholding tax or
the information or certifications made therein by the Lender being
untrue or inaccurate on the date delivered in any material respect, or
(iii) the Lender designating a successor lending office at which it
maintains its Loans which has the effect of causing such Lender to
become obligated for tax payments in excess of those in effect
immediately prior to such designation; provided, however, that the
Borrowers shall be obligated to gross up any payments to any such
Lender pursuant to clause (a)(i), and to indemnify any such Lender
pursuant to clause (d), in respect of United States federal
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withholding taxes if (i) any such failure to deliver a form or forms or
an Exemption Certificate or the failure of such form or forms or
Exemption Certificate to establish a complete exemption from U.S.
federal withholding tax or inaccuracy or untruth contained therein
resulted from a change in any applicable statute, treaty, regulation or
other applicable law or any interpretation of any of the foregoing
occurring after the date hereof, which change rendered such Lender no
longer legally entitled to deliver such form or forms or Exemption
Certificate or otherwise ineligible for a complete exemption from U.S.
federal withholding tax, or rendered the information or certifications
made in such form or forms or Exemption Certificate untrue or
inaccurate in a material respect, (ii) the redesignation of the
Lender's lending office was made at the request of a Borrower or (iii)
the obligation to gross up payments to any such Lender pursuant to
clause (a)(i) or to indemnify any such Lender pursuant to clause (d) is
with respect to an Assignee Lender that becomes an Assignee Lender as a
result of an assignment made at the request of a Borrower.
SECTION 4.7. Payments, Computations, etc. Unless otherwise expressly
provided in a Loan Document, all payments by the Borrowers pursuant to this
Agreement or any other Loan Document shall be made by the applicable Borrower to
the Administrative Agent for the pro rata account of the Credit Parties entitled
to receive such payment. All such payments required to be made to the
Administrative Agent shall be made, without setoff, deduction or counterclaim,
not later than 2:00 p.m., New York time, on the date due, in same day or
immediately available funds, to such account as the Administrative Agent shall
specify from time to time by notice to the Borrowers. Funds received after that
time shall be deemed to have been received by the Administrative Agent on the
next succeeding Business Day. The Administrative Agent shall promptly remit in
same day funds to each Credit Party its share, if any, of such payments received
by the Administrative Agent for the account of such Credit Party. All interest
and fees based upon the LIBO Rate (Reserve Adjusted) shall be computed on the
basis of the actual number of days (including the first day but excluding the
last day) occurring during the period for which such interest or fee is payable
over a year comprised of 360 days and all other interest and fees shall be
computed in the same manner, however such calculations will be based upon a year
comprised of 365 days or, if appropriate, 366 days. Whenever any payment to be
made shall otherwise be due on a day which is not a Business Day, such payment
shall (except as otherwise required by clause (c) of the definition of the term
"Interest Period") be made on the next succeeding Business Day and such
extension of time shall be included in computing interest and fees, if any, in
connection with such payment.
SECTION 4.8. Sharing of Payments. If any Credit Party shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Credit Extension or Reimbursement
Obligation (other than pursuant to the terms of Section 4.3, 4.4, 4.5 or 4.6) in
excess of its pro rata share of payments obtained by all Credit Parties entitled
to receive a portion of such payments, such Credit Party shall purchase from the
other Credit Parties entitled to such payments such participations in Credit
Extensions made by them as shall be necessary to cause such purchasing Credit
Party to share the excess payment or other recovery ratably (to the extent such
other Credit Parties were entitled to receive a portion of such payment or
recovery) with each of them; provided, however, that if all or any portion of
the
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excess payment or other recovery is thereafter recovered from such purchasing
Credit Party, the purchase shall be rescinded and each Credit Party which has
sold a participation to the purchasing Credit Party shall repay to the
purchasing Credit Party the purchase price to the ratable extent of such
recovery together with an amount equal to such selling Credit Party's ratable
share (according to the proportion of
(a) the amount of such selling Credit Party's required
repayment to the purchasing Credit Party
to
(b) total amount so recovered from the purchasing Credit
Party)
of any interest or other amount paid or payable by the purchasing Credit Party
in respect of the total amount so recovered. The Borrowers agree that any Credit
Party so purchasing a participation from another Credit Party pursuant to this
Section may, to the fullest extent permitted by law, exercise all its rights of
payment (including pursuant to Section 4.9) with respect to such participation
as fully as if such Credit Party were the direct creditor of the Borrowers in
the amount of such participation. If under any applicable bankruptcy, insolvency
or other similar law, any Credit Party receives a secured claim in lieu of a
setoff to which this Section applies, such Credit Party shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Credit Parties entitled under this Section to
share in the benefits of any recovery on such secured claim.
SECTION 4.9. Setoff. Each Credit Party shall, upon the occurrence and
during the continuance of any Default described in clauses (a) through (d) of
Section 8.1.9 or, with the consent of the Required Lenders, upon the occurrence
and during the continuance of any other Event of Default, have the right to
appropriate and apply to the payment of the Obligations owing to it (whether or
not then due), and (as security for such Obligations) each Borrower hereby
grants to each Credit Party a continuing security interest in, any and all
balances, credits, deposits, accounts or moneys of each Borrower then or
thereafter maintained with such Credit Party; provided, however, that any such
appropriation and application shall be subject to the provisions of Section 4.8.
Each Credit Party agrees promptly to notify the applicable Borrower and the
Administrative Agent after any such setoff and application made by such Credit
Party; provided, however, that the failure to give such notice shall not affect
the validity of such setoff and application. The rights of each Credit Party
under this Section are in addition to other rights and remedies (including other
rights of setoff under applicable law or otherwise) which such Credit Party may
have.
SECTION 4.10. Guaranty Provisions. Each Borrower acknowledges and
agrees that, whether or not specifically indicated as such in a Loan Document,
all Obligations shall be joint and several Obligations of each individual
Borrower, and in furtherance of such joint and several Obligations, each
Borrower hereby irrevocably guarantees the payment of all Obligations of each
other Borrower as set forth below.
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SECTION 4.10.1. Guaranty. Each Borrower hereby jointly and severally,
absolutely, unconditionally and irrevocably guarantees the full and punctual
payment when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise, of all Obligations; provided,
however, that each Borrower shall only be liable under this Agreement for the
maximum amount of such liability that can be hereby incurred without rendering
this Agreement, as it relates to such Borrower, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer, and not for any
greater amount. This guaranty constitutes a guaranty of payment when due and not
of collection, and each Borrower specifically agrees that it shall not be
necessary or required that any Secured Party exercise any right, assert any
claim or demand or enforce any remedy whatsoever against any Obligor or any
other Person before or as a condition to the obligations of such Borrower
hereunder.
SECTION 4.10.2. Guaranty Absolute, etc. The guaranty agreed to above
shall in all respects be a continuing, absolute, unconditional and irrevocable
guaranty of payment, and shall remain in full force and effect until the
Termination Date. Each Borrower jointly and severally guarantees that the
Obligations will be paid strictly in accordance with the terms of each Loan
Document under which such Obligations arise, regardless of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Secured Party with respect thereto. The liability of
each Borrower under this Agreement shall be joint and several, absolute,
unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of any
Loan Document;
(b) the failure of any Secured Party (i) to assert any claim
or demand or to enforce any right or remedy against any Obligor or any
other Person (including any other guarantor) under the provisions of
any Loan Document or otherwise, or (ii) to exercise any right or remedy
against any other guarantor (including any Obligor) of, or collateral
securing, any Obligations;
(c) any change in the time, manner or place of payment of, or
in any other term of, all or any part of the Obligations, or any other
extension, compromise or renewal of any Obligation;
(d) any reduction, limitation, impairment or termination of
any Obligations for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and
each Borrower hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Obligations or
otherwise;
(e) any amendment to, rescission, waiver, or other
modification of, or any consent to or departure from, any of the terms
of any Loan Document;
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(f) any addition, exchange, release, surrender or
non-perfection of any collateral, or any amendment to or waiver or
release or addition of, or consent to or departure from, any other
guaranty held by any Secured Party securing any of the Obligations; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, any
Obligor, any surety or any guarantor.
SECTION 4.10.3. Reinstatement, etc. Each Borrower agrees that its
guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any Secured Party, upon the
insolvency, bankruptcy or reorganization of any other Borrower, any other
Obligor or otherwise, all as though such payment had not been made.
SECTION 4.10.4. Waiver, etc. Each Borrower hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations and this Agreement and any requirement that any Secured Party
protect, secure, perfect or insure any Lien, or any property subject thereto, or
exhaust any right or take any action against any other Obligor or any other
Person (including any other guarantor) or entity or any collateral securing the
Obligations, as the case may be.
SECTION 4.10.5. Postponement of Subrogation, etc. Each Borrower agrees
that it will not exercise any rights which it may acquire by way of rights of
subrogation under any Loan Document to which it is a party, nor shall any
Borrower seek or be entitled to seek any contribution or reimbursement from any
Obligor, in respect of any payment made hereunder, under any other Loan Document
or otherwise, until following the Termination Date. Any amount paid to any
Borrower on account of any such subrogation rights prior to the Termination Date
shall be held in trust for the benefit of the Secured Parties and shall
immediately be paid and turned over to the Administrative Agent for the benefit
of the Secured Parties in the exact form received by such Borrower (duly
endorsed in favor of the Administrative Agent, if required), to be credited and
applied against the Obligations, whether matured or unmatured, in accordance
with Section 4.7; provided, however, that if
(a) any Borrower has made payment to the Secured Parties of
all or any part of the Obligations; and
(b) the Termination Date has occurred;
then at such Borrower's request, the Administrative Agent, (on behalf of the
Secured Parties) will, at the expense of such Borrower, execute and deliver to
such Borrower appropriate documents (without recourse and without representation
or warranty) necessary to evidence the transfer by subrogation to such Borrower
of an interest in the Obligations resulting from such payment. In furtherance of
the foregoing, at all times prior to the Termination Date each Borrower shall
refrain from taking any action or commencing any proceeding against the any
Obligor (or its successors or assigns, whether in connection with a bankruptcy
proceeding or
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otherwise) to recover any amounts in the respect of payments made under any Loan
Document to any Secured Party.
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
SECTION 5.1. Initial Credit Extension. The obligations of the Lenders
and, if applicable, the Issuer to fund the initial Credit Extension shall be
subject to the prior or concurrent satisfaction of each of the conditions
precedent set forth in this Section 5.1.
SECTION 5.1.1. Resolutions, etc. The Administrative Agent shall have
received from each Borrower, each Parent, each Minority Owner party to the
Obligor Pledge Agreement and each Manager, as applicable, (i) a copy of a good
standing certificate, dated a date reasonably close to the Effective Date, for
each such Person and (ii) a certificate, dated the Effective Date and with
counterparts for each Lender, duly executed and delivered by such Person's
Secretary or Assistant Secretary, managing member or general partner, as
applicable, as to
(a) resolutions of each such Person's Board of Directors (or
other managing body, in the case of other than a corporation) then in
full force and effect authorizing, to the extent relevant, delivery and
performance of this Agreement, each other Loan Document to be executed
by such Person and the transactions contemplated hereby and thereby;
(b) the incumbency and signatures of those of its Authorized
Officers, as applicable, authorized to act with respect to this
Agreement and each other Loan Document to be executed by such Person;
and
(c) the full force and validity of each Organic Document of
such Person and copies thereof;
upon which certificates each Secured Party may conclusively rely until it shall
have received a further certificate of the Secretary, Assistant Secretary,
managing member or general partner, as applicable, of any such Person canceling
or amending the prior certificate of such Person.
SECTION 5.1.2. Delivery of Notes. The Administrative Agent shall have
received, for the account of each Lender that has requested a Note, such
Lender's Notes duly executed and delivered by an Authorized Officer of each
Borrower.
SECTION 5.1.3. Payment of Outstanding Indebtedness, etc. All
Indebtedness identified in Item 7.2.2(b) of the Disclosure Schedule, together
with all interest, all prepayment premiums and other amounts due and payable
with respect thereto, shall have been paid in full from the proceeds of the
initial Credit Extension and the commitments in respect of such Indebtedness
shall have been terminated, and all Liens securing payment of any such
Indebtedness have been released and the Administrative Agent shall have received
all Uniform Commercial Code Form
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U.C.C.-3 termination statements or other instruments as may be suitable or
appropriate in connection therewith.
SECTION 5.1.4. Due Diligence. Each of the Arranging Agents shall have
completed and be satisfied in all respects with its review of (a) the unaudited
financial statements of the Borrowers for the Fiscal Quarter ended September 30,
1998 and (b) the properties of the Borrowers and their Restricted Subsidiaries.
SECTION 5.1.5. Obligor Pledge Agreement. The Administrative Agent shall
have received, with counterparts for each Lender, the Obligor Pledge Agreement,
dated as of the date hereof, duly executed and delivered by an Authorized
Officer of each Parent, each Minority Owner (other than the TMIP Limited
Partners), each Borrower that has Restricted Subsidiaries and each Restricted
Subsidiary that has Restricted Subsidiaries, as applicable, together with
confirmation and evidence satisfactory to the Administrative Agent that the
security interest in the Capital Securities of each Borrower and each Restricted
Subsidiary has been transferred to and perfected by the Administrative Agent for
the benefit of the Secured Parties in accordance with Articles 8 and 9 of the
U.C.C. and all laws otherwise applicable to the perfection of the pledge of such
shares. The Administrative Agent and its counsel shall be satisfied that (i) the
Lien granted to the Administrative Agent, for the benefit of the Secured Parties
in the collateral described above is a first priority security interest; and
(ii) no Lien exists on any of the collateral described above other than the Lien
created in favor of the Administrative Agent, for the benefit of the Secured
Parties, pursuant to a Loan Document.
SECTION 5.1.6. Guarantee. The Administrative Agent shall have received,
with counterparts for each Lender, the Subsidiary Guaranty dated as of the date
hereof, duly executed and delivered by an Authorized Officer of each Subsidiary
Guarantor, as applicable, in form and substance satisfactory to the
Administrative Agent.
SECTION 5.1.7. Solvency, etc. The Administrative Agent shall have
received, with counterparts for each Lender, a certificate duly executed and
delivered by the chief financial or accounting Authorized Officer of each
Borrower, dated as of the Effective Date, in the form of Exhibit J attached
hereto.
SECTION 5.1.8. Subordination Agreements. The Administrative Agent shall
have received, with counterparts for each Lender, (a) the Manager Subordination
Agreement duly executed and delivered by an Authorized Officer of each Manager
and each Borrower, and (b) the Intercompany Subordination Agreement, duly
executed and delivered by an Authorized Officer of each Borrower and each other
Affiliate of the Borrowers which may from time to time be the payee of any
Affiliate Indebtedness.
SECTION 5.1.9. Insurance. The Administrative Agent shall have received,
with copies for each Lender, certificates from one or more insurance companies
satisfactory to the Administrative Agent, evidencing coverage required to be
maintained pursuant hereto and each Loan Document.
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SECTION 5.1.10. Closing Fees, Expenses, etc. The Administrative Agent
shall have received for its own account, or for the account of each Lender, as
the case may be, all fees, costs and expenses due and payable pursuant to
Sections 3.3 and 10.3, if then invoiced.
SECTION 5.1.11. Approvals. The Administrative Agent shall have received
evidence satisfactory to it that each Obligor possesses all governmental
authorizations, consents and approvals (if any) necessary for the execution,
delivery and performance of this Agreement and each other Loan Document to be
executed by such Obligor.
SECTION 5.1.12. Management Agreements. The Administrative Agent shall
have received, with copies for each Lender, each Management Agreement in effect
on the Effective Date, in each case, together with all amendments, waivers and
other modifications made thereto and a part thereof, certified in the Closing
Date Certificate as being true and correct and in full force and effect and such
Management Agreements shall be in form and substance (including terms regarding
the subordination to the Obligations of all Management Fees payable thereunder)
satisfactory to the Lenders.
SECTION 5.1.13. Opinions of Counsel. The Administrative Agent shall
have received opinions, dated the Effective Date and addressed to the Arranging
Agents and all Lenders, from
(a) ▇▇▇▇▇ ▇▇▇▇▇▇, Deputy General Counsel to the Borrowers and
each other Obligor, in form and substance satisfactory to the Arranging
Agents;
(b) ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, FCC counsel to the Borrowers, in
form and substance satisfactory to the Arranging Agents; and
(c) ▇▇▇▇▇▇▇▇ Ingersoll, a Professional Corporation, special
Pennsylvania and New York counsel to the Borrowers and each other
Obligor, in form and substance satisfactory to the Arranging Agents.
SECTION 5.1.14. Franchise Agreements and FCC Licenses. The Borrowers
shall certify that they and their Restricted Subsidiaries possess all FCC
Licenses, material permits and other rights, including, all Franchises that are
necessary to own and operate their respective properties and Cable Systems and
to carry on their respective businesses as conducted on the Effective Date, and
that all such instruments are in the name of such Person.
SECTION 5.1.15. Financial Information, etc. The Administrative Agent
shall have received, with counterparts for each Lender, a pro forma combined
balance sheet of the Borrowers and their Restricted Subsidiaries, as of the
Effective Date (the "Pro-Forma Balance Sheet"), certified by the chief financial
or accounting Authorized Officer of each Borrower, giving effect to all the
transactions contemplated by this Agreement and reflecting the proposed capital
structure of each Borrower, which shall be satisfactory to the Arranging Agents.
SECTION 5.1.16. Compliance Certificate. The Administrative Agent
shall have received, with counterparts for each Lender, an initial Compliance
Certificate on a pro forma
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basis as if the initial Credit Extension had been made as of December 31, 1998
and as to such items therein as the Administrative Agent reasonably requests,
dated the Effective Date, duly executed (and with all schedules thereto duly
completed) and delivered by the chief executive, financial or accounting
Authorized Officer of each Borrower.
SECTION 5.1.17. Closing Date Certificate. The Administrative Agent
shall have received, with counterparts for each Lender, a Closing Date
Certificate, dated the Effective Date and duly executed and delivered by an
Authorized Officer of each Borrower, in which certificate each such Borrower
shall agree and acknowledge that the statements made therein shall be deemed to
be true and correct representations and warranties of such Borrower as of such
date, and, at the time each such certificate is delivered, such statements shall
in fact be true and correct. All documents and agreements required to be
appended to the Closing Date Certificate shall be in form and substance
satisfactory to the Arranging Agents.
SECTION 5.2. All Credit Extensions. The obligation of each Lender and
the Issuer to make any Credit Extension (including the initial Credit Extension)
shall be subject to the satisfaction of each of the conditions precedent set
forth below.
SECTION 5.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension (but, if any Default of the
nature referred to in Section 8.1.5 shall have occurred with respect to any
other Indebtedness, without giving effect to the application, directly or
indirectly, of the proceeds thereof) the following statements shall be true and
correct:
(a) the representations and warranties set forth in Article VI
and in each other Loan Document shall, in each case, be true and
correct with the same effect as if then made (unless stated to relate
solely to an earlier date, in which case such representations and
warranties shall be true and correct in all material respects as of
such earlier date); and
(b) no Default shall have then occurred and be continuing.
SECTION 5.2.2. Credit Extension Request, etc. The Administrative Agent
shall have received a Borrowing Request if Loans are being requested, or an
Issuance Request if a Letter of Credit is being requested or extended. Each of
the delivery of a Borrowing Request or Issuance Request and the acceptance by
the applicable Borrower making such request of the proceeds of such Credit
Extension shall constitute a representation and warranty by such Borrower that
on the date of such Credit Extension (both immediately before and after giving
effect to such Credit Extension and the application of the proceeds thereof) the
statements made in Section 5.2.1 are true and correct in all material respects.
SECTION 5.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of any Borrower or any other Obligor
shall be reasonably satisfactory in form and substance to the Administrative
Agent and its counsel, and the
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Administrative Agent and its counsel shall have received all information,
approvals, opinions, documents or instruments as the Administrative Agent or its
counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce each Arranging Agent, the Issuer and each Lender to
enter into this Agreement and to make Credit Extensions hereunder, each Borrower
represents and warrants to each Arranging Agent, the Issuer and each Lender as
set forth in this Article.
SECTION 6.1. Organization, etc. (a) Each Borrower, each of its
Restricted Subsidiaries and each other Obligor is validly organized and existing
and in good standing under the laws of the state or jurisdiction of its
incorporation or organization, is duly qualified to do business and is in good
standing as a foreign entity in each jurisdiction where the nature of its
business requires such qualification, and has full power and authority and holds
all requisite governmental licenses, permits and other approvals to enter into
and perform its Obligations under this Agreement and each other Loan Document to
which it is a party and to own and hold under lease its property and to conduct
its business substantially as currently conducted by it.
(b) Set forth on Schedule III hereto is the ownership structure of each
of the Borrowers and their Restricted Subsidiaries as of the Effective Date.
SECTION 6.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by each Borrower of this Agreement and each other Loan
Document executed or to be executed by it and the execution, delivery and
performance by each other Obligor of each Loan Document executed or to be
executed by it, have been duly authorized by all necessary action, and do not
(a) contravene any such Person's Organic Documents;
(b) contravene any contractual restriction, any law or
governmental regulation, or any court decree or order binding on or
affecting any such Person; or
(c) result in, or require the creation or imposition of, any
Lien on any of such Person's properties other than those contemplated
by the Loan Documents.
SECTION 6.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person (other than those that have been,
or on the Effective Date will be, duly obtained or made and which are, or on the
Effective Date will be, in full force and effect) is required for the due
execution, delivery or performance by any Borrower or any other Obligor of this
Agreement or any other Loan Document to which it is a party, in each case by the
parties thereto. None of the Borrowers nor any of their respective Subsidiaries
is an "investment company" within the
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meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 6.4. Validity, etc. This Agreement constitutes and each other
Loan Document executed by the Borrowers will, on the due execution and delivery
thereof, constitute, the legal, valid and binding obligations of the Borrowers,
enforceable against the Borrowers in accordance with their respective terms; and
each other Loan Document executed by each other Obligor will, on the due
execution and delivery thereof by such Obligor, constitute the legal, valid and
binding obligation of such Obligor enforceable against such Obligor in
accordance with its terms. The Franchise Agreements constitute the legal, valid
and binding obligations of the parties thereto, enforceable in accordance with
their respective terms.
SECTION 6.5. Financial Information. The financial statements of the
Borrowers and their Restricted Subsidiaries furnished to the Administrative
Agent and each Lender pursuant to Section 5.1.15 have been prepared in
accordance with GAAP consistently applied, and present fairly the combined
financial condition of the Persons covered thereby as at the dates thereof and
the results of their operations for the periods then ended. All balance sheets,
all statements of operations, shareholders' equity and cash flow and all other
financial information of the Borrowers and their Restricted Subsidiaries
furnished pursuant to Section 7.1.1 have been and will for periods following the
Effective Date be prepared in accordance with GAAP consistently applied, and do
or will present fairly the combined financial condition of the Persons covered
thereby as at the dates thereof and the results of their operations for the
periods then ended.
SECTION 6.6. No Material Adverse Change. There has been no material
adverse change in the financial condition, results of operations, assets,
business, properties or prospects of any Borrower and its Subsidiaries, taken as
a whole, since December 31, 1998.
SECTION 6.7. Litigation, Labor Controversies, etc. There is no
pending or, to the knowledge of the Borrowers, any of their Subsidiaries or any
Parent, threatened litigation, action, proceeding, or labor controversy
(a) except as disclosed in Item 6.7 of the Disclosure
Schedule, affecting the Borrowers, or any other Obligated Party or ACC,
or any of their respective properties, businesses, assets or revenues,
which could reasonably be expected to have a Material Adverse Effect,
and no development has occurred in any labor controversy, litigation,
arbitration or governmental investigation or proceeding disclosed in
Item 6.7 which could reasonably be expected to have a Material Adverse
Effect; or
(b) which purports to affect the legality, validity or
enforceability of this Agreement, any other Loan Document, any
Management Agreement, the Organic Documents of any Obligor or any
Franchise Agreement to which any Borrower or any other Obligated Party
is a party.
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SECTION 6.8. Subsidiaries. The Borrowers have no Subsidiaries, except
those Subsidiaries
(a) which are identified in Item 6.8 of the Disclosure
Schedule; or
(b) which are permitted to have been organized or acquired in
accordance with Sections 7.2.5, 7.2.7, 7.2.8 or 7.2.16.
SECTION 6.9. Ownership of Properties. The Borrowers and each of their
Restricted Subsidiaries own (i) in the case of owned real property, good and
marketable fee title to, and (ii) in the case of owned personal property, good
and valid title to, or, in the case of leased real or personal property, valid
and enforceable leasehold interests (as the case may be) in, all of its
properties and assets, real and personal, tangible and intangible, of any nature
whatsoever, free and clear in each case of all Liens or claims, except for Liens
permitted pursuant to Section 7.2.3. All Indebtedness which was secured by the
filings identified in Item 6.9 of the Disclosure Schedule has been repaid in
full and the Borrowers have terminated all commitments and agreements relating
to such Indebtedness.
SECTION 6.10. Taxes. The Borrowers and each of their Subsidiaries have
filed all tax returns and reports required by law to have been filed by it and
has paid all taxes and governmental charges thereby shown to be due and owing,
except any such taxes or charges which are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
SECTION 6.11. Pension and Welfare Plans. During the
twelve-consecutive-month period prior to the date of the execution and delivery
of this Agreement and prior to the date of any Credit Extension hereunder, no
steps have been taken to terminate any Pension Plan, and no contribution failure
has occurred with respect to any Pension Plan sufficient to give rise to a Lien
under section 302(f) of ERISA. No condition exists or event or transaction has
occurred with respect to any Pension Plan which might reasonably be expected to
result in the incurrence by any Borrower or any member of the Controlled Group
of any material liability, fine or penalty. Except as disclosed in Item 6.11 of
the Disclosure Schedule, none of the Borrowers nor any member of the Controlled
Group has any contingent liability with respect to any post-retirement benefit
under a Welfare Plan, other than liability for continuation coverage described
in Part 6 of Title I of ERISA.
SECTION 6.12. Environmental Warranties. Each Borrower and its
Subsidiaries are in material compliance with all Environmental Laws applicable
to the operation of their respective businesses in all jurisdictions in which
they are presently doing business, such that they will not incur or be subject
to any liability or penalty thereunder which is reasonably likely to result in a
Material Adverse Effect. None of the Borrowers nor any of their respective
Subsidiaries manages any Hazardous Materials in material violation of any
Environmental Law, and there are no known conditions or previously owned or
leased properties or operations of any Borrower or any of its Subsidiaries or
tenants of any Borrower or such Subsidiaries which may give rise to
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any liabilities and costs under any Environmental Law which are reasonably
likely to result in a Material Adverse Effect.
SECTION 6.13. Regulations U and X. None of the Borrowers nor any of
their respective Subsidiaries are engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock, and no proceeds of any
Credit Extensions will be used to purchase or carry margin stock or otherwise
for a purpose which violates, or would be inconsistent with, F.R.S. Board
Regulation U or Regulation X. Terms for which meanings are provided in F.R.S.
Board Regulation U or Regulation X or any regulations substituted therefor, as
from time to time in effect, are used in this Section with such meanings.
SECTION 6.14. The Franchises. Each Franchise of the Borrowers and each
of their Restricted Subsidiaries is in full force and effect pursuant to each
agreement set forth in Item 6.14 of the Disclosure Schedule, was lawfully issued
pursuant to the rules and regulations of each jurisdiction set forth in Item
6.14 of the Disclosure Schedule and authorizes such Borrower and each such
Restricted Subsidiary to operate such Franchise until the dates set forth in
Item 6.14 of the Disclosure Schedule, and no other or further approval, filing
or other action of any Governmental Authority is or will be necessary or
advisable in order to permit such Borrower's or any of its Restricted
Subsidiaries' operation of its Cable Systems in accordance with the terms
thereof. Item 6.14 of the Disclosure Schedule correctly identifies each
franchisee. Each Borrower and its Restricted Subsidiaries are in compliance with
all material terms and conditions of each of their respective Franchises and FCC
Licenses and no event has occurred or exists which permits or, after the giving
of notice or the lapse of time or both, would permit the revocation or
termination of any such Franchise or FCC License. No Unrestricted Subsidiary
owns or has rights to any FCC License or Franchise necessary for the ongoing
operations of any Borrower and its Restricted Subsidiaries or their respective
Cable Systems.
SECTION 6.15. Patents, Copyrights, FCC Licenses, etc. Each Borrower and
each of its Restricted Subsidiaries owns, possesses and has the right to use all
licenses, permits and other rights, including all material agreements with
public utilities and microwave transmission companies, pole use access or rental
agreements (including Pole Agreements and Pole Rental Leases) and all other
utility easements, necessary to own and operate its properties and its Cable
Systems and to carry on its business as presently conducted or as presently
planned to be conducted. Each of the foregoing is in full force and effect and
each Borrower and each of its Restricted Subsidiaries is in compliance in all
material respects with all the terms and conditions of each thereof, with no
known conflict with the rights of others.
SECTION 6.16. Partnership Agreements; Operating Agreements; Management
Agreement. The partnership agreement of the Borrowers that are partnerships, the
operating agreements of the Borrowers that are limited liability companies, the
partnership agreements of their Restricted Subsidiaries that are partnerships,
the operating agreements of their Restricted Subsidiaries that are limited
liability companies and each Management Agreement are in full force and effect
and no default or event which, with the passage of time or notice or both, would
constitute a default, has occurred and is continuing under each such Management
Agreement,
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operating agreement or partnership agreement. Each Manager has signed a Manager
Subordination Agreement.
SECTION 6.17. Issuance of Affiliate Indebtedness and Intercompany
Indebtedness; Status of Obligations as Senior Indebtedness, etc. Each Borrower
has the power and authority to incur and perform its obligations with respect to
the Affiliate Indebtedness and Intercompany Indebtedness as provided for under
the documents applicable thereto and has duly authorized, executed and delivered
the documents applicable to such Affiliate Indebtedness and Intercompany
Indebtedness. Each Borrower has issued, pursuant to due authorization, the
Affiliate Indebtedness and Intercompany Indebtedness under the applicable
documents, and such documents constitute the legal, valid and binding
obligations of such Borrower enforceable against such Borrower in accordance
with its terms (except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and by principles of equity). The subordination provisions of
the Affiliate Indebtedness and Intercompany Indebtedness contained in the
documents relating thereto are enforceable against the holders of the Affiliate
Indebtedness and Intercompany Indebtedness by the holder of any "Senior
Indebtedness" or similar term referring to the Obligations (as defined in such
documents). All Obligations, including those to pay principal of and interest
(including post-petition interest, whether or not allowed as a claim under
bankruptcy or similar laws) on the Loans and Reimbursement Obligations, and fees
and expenses in connection therewith, constitute "Senior Indebtedness" or
similar term relating to the Obligations (as defined in the applicable
documents) and all such Obligations are entitled to the benefits of the
subordination by such documents. Each Borrower acknowledges that each Arranging
Agent, each Lender and the Issuer is entering into this Agreement and is
extending its Commitments in reliance upon the subordination provisions of the
Intercompany Subordination Agreement and the Manager Subordination Agreements.
SECTION 6.18. Accuracy of Information. None of the factual information
heretofore or contemporaneously furnished in writing to any Credit Party by or
on behalf of any Borrower or any other Obligor for purposes of or in connection
with this Agreement or any transaction contemplated hereby (true and complete
copies of which were furnished to the Credit Parties in connection with its
execution and delivery hereof), contains any untrue statement of a material
fact, and no other factual information hereafter furnished in connection with
this Agreement or any other Loan Document by any Borrower or any other Obligor
to any Credit Party will contain any untrue statement of a material fact on the
date as of which such information is dated or certified and, as of the Effective
Date, the information delivered prior to the Effective Date, (unless such
information specifically relates to a prior date) does not, and the factual
information hereafter furnished shall not on the date as of which such
information is dated or certified, omit to state any material fact necessary to
make any information not misleading.
SECTION 6.19. Solvency. Both before and immediately after giving
effect to any Credit Extension requested hereunder:
(a) the aggregate combined fair value of the assets of each
Borrower and its Subsidiaries on a consolidated basis will exceed the
total aggregate amount of liabilities
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(including contingent, subordinated, unmatured and unliquidated
liabilities) of each such Borrower and its Subsidiaries on a
consolidated basis, on a going-concern basis;
(b) the aggregate combined present fair salable value (as
defined below) of the assets of each Borrower and its Subsidiaries on a
consolidated basis will exceed the aggregate probable total liabilities
(including contingent, subordinated, unmatured and unliquidated
liabilities) of such Borrower and its Subsidiaries on a consolidated
basis as they become absolute and matured;
(c) the Borrowers and their respective Subsidiaries on a
combined basis will be able to pay their debts, including contingent
liabilities, as they mature and become due;
(d) each Borrower and its Subsidiaries on a consolidated basis
are not, and will not be, engaged in a business for which their
consolidated capital is, or would be, unreasonably small for such
Borrower's consolidated business; and
(e) the Borrowers and their respective Subsidiaries on a
combined basis have not incurred (by way of assumption or otherwise)
any obligations or liabilities (contingent or otherwise) under this
Agreement or any other Loan Document, nor have they made any conveyance
pursuant to or in connection therewith, with actual intent to hinder,
delay or defraud either present or future creditors of the Borrowers or
any of their respective Subsidiaries.
For purposes of this Section, the "fair salable value" of the Borrowers' and
their respective Subsidiaries' assets means the amount which may be realized
within a reasonable time, either through collection or sale of such assets on an
"arm's-length" basis at the fair market value, based upon the amount which could
be obtained for such assets within such period by a capable and diligent seller
from an interested buyer who is willing (but is under no compulsion) to purchase
under ordinary selling conditions.
SECTION 6.20. Compliance with Laws. The Borrowers and their respective
Subsidiaries and the Cable Systems owned or to be owned by them are in
compliance in all material respects with all applicable federal, state and local
laws, rules and regulations.
SECTION 6.21. Year 2000 Compliance. Each Borrower and each other
Obligated Party has reviewed the areas within its business and operations
(including those affected by suppliers and vendors) which could be adversely
affected by, and has developed or is developing a program to address on a timely
basis, the "Year 2000 Problem" (that is, the risk that computer applications
used by such Person (or suppliers and vendors) may be unable to recognize and
properly perform date-sensitive functions involving certain dates prior to, on
and any date after December 31, 1999). Based on such review and program, the
Year 2000 Problem could not reasonably be expected to have a Material Adverse
Effect.
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ARTICLE VII
COVENANTS
SECTION 7.1. Affirmative Covenants. Each Borrower agrees with each
Lender, the Issuer and each Arranging Agent that until the Termination Date has
occurred, each Borrower will, and will cause its Subsidiaries to, perform or
cause to be performed the obligations set forth below.
SECTION 7.1.1. Financial Information, Reports, Notices, etc. Each
Borrower will furnish or cause to be furnished to the Administrative Agent (with
sufficient copies for each Lender) copies of the following financial statements,
reports, notices and information:
(a) as soon as available and in any event within 90 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year,
an unaudited combined balance sheet of the Borrowers and their
Restricted Subsidiaries as of the end of such Fiscal Quarter and
combined statements of income and cash flow of the Borrowers and their
Restricted Subsidiaries for such Fiscal Quarter and for the period
commencing at the end of the previous Fiscal Year and ending with the
end of such Fiscal Quarter, including (in each case), in comparative
form to the figures for the corresponding Fiscal Quarter in the
immediately preceding Fiscal Year (in each case as to assets owned by
the Borrowers and their Restricted Subsidiaries during the period in
question), certified as complete and correct by any financial or
accounting Authorized Officer of each Borrower;
(b) as soon as available and in any event within 120 days
after the end of each Fiscal Year, a copy of the combined balance sheet
of the Borrowers and their Restricted Subsidiaries, and the related
combined statements of income and cash flow of the Borrowers and their
Restricted Subsidiaries for such Fiscal Year, and setting forth in
comparative form the figures for the immediately preceding Fiscal Year
(in each case as to assets owned by the Borrowers and their Restricted
Subsidiaries during the period in question), audited (without any
Impermissible Qualification) by an Approved Accounting Firm or another
independent public accounting firm reasonably acceptable to the
Administrative Agent stating that, in performing the examination
necessary to deliver the audited financial statements of the Borrowers,
no knowledge was obtained of any Default;
(c) concurrently with the delivery of the financial
information pursuant to clauses (a) and (b), a Compliance Certificate,
executed by any financial or accounting Authorized Officer of each
Borrower, (i) showing (in reasonable detail and with appropriate
calculations and computations in all respects satisfactory to the
Administrative Agent) compliance with the financial covenants set forth
in Section 7.2.4, (ii) stating that no Default has occurred and is
continuing and (iii) giving notice, if applicable, of (A) the
incurrence of Indebtedness of the types described in clause (c) of
Section 7.2.2, (B) any Investments made, as permitted pursuant to
clauses (d) and (f) of Section 7.2.5, (C) any payment of Restricted
Payments, as permitted pursuant to Section 7.2.6, (D) the
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occurrence of any liquidations, dissolutions or Mergers, as permitted
pursuant to Section 7.2.7, (E) the occurrence of any Permitted Asset
Swap, Permitted Business Acquisition or Permitted Disposition, (F) any
(i) voluntary liquidation or dissolution by any Subsidiary of any
Borrower into another Borrower or another Subsidiary of another
Borrower, (ii) merger by any Subsidiary of any Borrower with and into
another Borrower or another Subsidiary of a Borrower, or (iii) the
purchase by any Borrower or any of its Subsidiaries of any Capital
Securities of another Borrower or any other Subsidiary of another
Borrower, during the preceding Fiscal Quarter, (G) any Capital
Contribution or Property Contribution made to any Borrower, (H) the
sale or distribution of any ownership interest in any Borrower, (I) the
conversion of any Restricted Subsidiary into an Unrestricted
Subsidiary, and, if applicable, the Fair Market Value of its assets as
of the date of such conversion and the Fair Market Value amount
attributed to the applicable baskets in this Agreement that will be
reduced as a result of such conversion (together with the amount of
such reductions) and (J) the occurrence of any Default and specifying
the details of such Default and the action that such Borrower or such
Obligor has taken or proposes to take with respect thereto;
(d) as soon as possible and in any event within five days
after any Borrower or any other Obligated Party obtains knowledge of
the occurrence of a Default, a statement of an Authorized Officer of
such Borrower setting forth details of such Default and the action
which such Borrower or such Obligated Party has taken and proposes to
take with respect thereto;
(e) as soon as possible and in any event within five days
after any Borrower or any other Obligated Party obtains knowledge of
(i) the occurrence of any material adverse development with respect to
any litigation, action, proceeding or labor controversy described in
Item 6.7 of the Disclosure Schedule or (ii) the commencement of any
litigation, action, proceeding or labor controversy of the type and
materiality described in Section 6.7, notice thereof and, to the extent
the Administrative Agent requests, copies of all documentation relating
thereto;
(f) concurrently with the delivery of the financial
information pursuant to clauses (a) and (b), (x) a subscriber's report
of each Borrower as of the end of such Fiscal Quarter setting forth (i)
the number of Basic Subscribers of such Borrower and its Subsidiaries,
(ii) the number of Premium Subscriptions of such Borrower and its
Subsidiaries and (iii) the number of Homes Passed of such Borrower and
its Subsidiaries and (y) a subscriber's report of the Borrowers as of
the end of such Fiscal Quarter setting forth (i) the aggregate number
of Basic Subscribers of the Borrowers and their Subsidiaries, (ii) the
aggregate number of Premium Subscriptions of the Borrowers and their
Subsidiaries and (iii) the aggregate number of Homes Passed of the
Borrowers and their Subsidiaries;
(g) promptly after the sending or filing thereof, copies of
all reports, notices, prospectuses and registration statements which
any Borrower, any Subsidiary, Olympus
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or ACC files with the SEC or any national securities exchange
(including, copies of Form 10-K and Form 10-Q);
(h) immediately upon becoming aware of (i) the institution of
any steps by any Person to terminate any Pension Plan, (ii) the failure
to make a required contribution to any Pension Plan if such failure is
sufficient to give rise to a Lien under Section 302(f) of ERISA, (iii)
the taking of any action with respect to a Pension Plan which could
result in the requirement that any Obligated Party furnish a bond or
other security to the PBGC or such Pension Plan, or (iv) the occurrence
of any event with respect to any Pension Plan which could result in the
incurrence by any Obligated Party of any material liability, fine or
penalty, notice thereof and copies of all documentation relating
thereto;
(i) promptly upon receipt thereof, copies of all "management
letters" submitted to any Borrower or any other Obligated Party by the
Approved Accounting Firm or other independent public accountants
referred to in clause (b) in connection with each audit made by such
accountants;
(j) promptly after the occurrence of (i) any lapse or other
termination of any FCC License, permit, Franchise or other
authorization issued to any Borrower or any of its Restricted
Subsidiaries by any Governmental Authority or (ii) any refusal by any
Governmental Authority to renew or extend any such FCC License, permit,
Franchise or other authorization, in either case to the extent that any
such event could reasonably be expected to result in a Material Adverse
Effect, notice thereof;
(k) promptly upon their becoming available to any Borrower,
copies of (i) any periodic or special report filed by any Borrower or
any of its Restricted Subsidiaries with the FCC or any other
Governmental Authority regulating any of their respective Cable Systems
if (A) such report indicates any material changes in the business,
operations, assets, properties or financial condition of any Borrower
and its Subsidiaries, taken as a whole, or (B) a copy thereof is
requested by any Lender and (ii) any notice or other communication from
the FCC or from any state or local authority regulating cable systems
which specifically relates to the operation of any Cable System of any
Borrower or any of its Restricted Subsidiaries, or which relates to
matters which, in each case, if unremedied, could reasonably be
expected to have a Material Adverse Effect; and
(l) such other financial and other information regarding any
Obligor as any Lender or Issuer through the Administrative Agent may
from time to time reasonably request (including information and reports
in such detail as the Administrative Agent may request with respect to
the terms of and information provided pursuant to the Compliance
Certificate).
SECTION 7.1.2. Maintenance of Existence; Compliance with Laws, etc.
Each Borrower will, and will cause each of its Subsidiaries to,
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(a) except as otherwise permitted by clause (d) of Section
7.2.5, Section 7.2.6, Section 7.2.7, Section 7.2.8 or Section 7.2.14,
preserve and maintain its legal existence;
(b) comply in all material respects with all applicable laws,
rules, regulations and orders, including the payment (before the same
become delinquent), of all taxes, assessments and governmental charges
imposed upon such Borrower or its Subsidiaries or upon their property
except to the extent being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP have been set aside on the books of such Borrower or its
Subsidiaries, as applicable; and
(c) maintain in full force and effect all material
authorizations, consents, approvals, licenses, exemptions and other
actions by, and all registrations, qualifications, designations and
declarations and other filings with, each Governmental Authority
necessary or advisable in connection with the execution and delivery of
each Loan Document and the ownership and operation of each of their
respective Cable Systems.
SECTION 7.1.3. Maintenance of Properties. Each Borrower will, and will
cause each of its Subsidiaries to, maintain, preserve, protect and keep its and
their respective properties in good repair, working order and condition
(ordinary wear and tear excepted), and make necessary repairs, renewals and
replacements so that the business carried on by the Borrowers and their
Subsidiaries may be properly conducted at all times, unless the Borrowers or
their respective Subsidiaries determine in good faith that the continued
maintenance of such property is no longer economically desirable.
SECTION 7.1.4. Insurance. The Borrowers will, and will cause each of
their Restricted Subsidiaries to maintain:
(a) insurance on their property with financially sound and
reputable insurance companies against loss and damage in at least the
amounts (and with only those deductibles) customarily maintained, and
against such risks as are typically insured against in the same general
area, by Persons of comparable size engaged in the same or similar
business as the Borrowers and their Restricted Subsidiaries; and
(b) all worker's compensation, employer's liability insurance
or similar insurance as may be required under the laws of any state or
jurisdiction in which it may be engaged in business.
SECTION 7.1.5. Books and Records. The Borrowers will, and will cause
each of their Restricted Subsidiaries to, keep books and records in accordance
with GAAP which accurately reflect all of their business affairs and
transactions and permit each Credit Party or any of their respective
representatives, at reasonable times and intervals upon reasonable notice to the
Borrowers, to visit each Borrower's and its Restricted Subsidiaries' respective
offices, to discuss such Person's financial matters with its officers and
employees, and its independent public accountants (and each Borrower hereby
authorizes such independent public accountant to discuss each Borrower's and its
Restricted Subsidiaries' financial matters with each Credit Party or their
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representatives if a representative of such Borrower or such Subsidiary is
present) and to examine (and photocopy extracts from) any of its books and
records. The Borrowers jointly and severally agree to pay any fees of such
independent public accountant incurred in connection with any Credit Party's
exercise of its rights pursuant to this Section.
SECTION 7.1.6. Environmental Law Covenant. The Borrowers will, and
will cause each of their Subsidiaries to,
(a) use and operate all of their facilities and properties in
material compliance with all Environmental Laws, keep all necessary
permits, approvals, certificates, licenses and other authorizations
relating to environmental matters in effect and remain in material
compliance therewith, and handle all Hazardous Materials in material
compliance with all applicable Environmental Laws; and
(b) promptly notify the Administrative Agent and provide
copies upon receipt of all written claims, complaints, notices or
inquiries relating to the condition of its facilities and properties in
respect of, or as to compliance with, Environmental Laws, and shall
promptly resolve any material non-compliance with Environmental Laws
and keep their property free of any Lien imposed by any Environmental
Law.
SECTION 7.1.7. Rate Protection. On or prior to the 180th day following
the Effective Date, the Borrowers will enter into one or more Rate Protection
Agreements having expiration dates occurring no earlier than the third
anniversary of the Effective Date, in substance reasonably satisfactory to the
Administrative Agent, on an aggregate notional principal amount equal to at
least 35% of the average principal amount of the Loans outstanding from the
Effective Date (after the making of the initial Loans) through and including the
180th day following the Effective Date. Notwithstanding the foregoing, however,
the Borrowers may obtain up to 50% of their interest rate protection required
pursuant to this Section 7.1.7 from one or more of their Affiliates (to be on
terms acceptable to the Administrative Agent). All such interest rate protection
agreements which are not Rate Protection Agreements shall be unsecured and all
Rate Protection Agreements shall be secured, on a pari passu basis, with the
security interests granted by the Borrowers to the Administrative Agent on
behalf of the Secured Parties in connection with this Agreement.
SECTION 7.1.8. Subordination. The Borrowers will take all action
necessary to ensure that the payment or repayment of the Affiliate Indebtedness
and the Intercompany Indebtedness is subject to the terms and conditions of the
Subordination Agreements at all times.
SECTION 7.1.9. Use of Proceeds. The proceeds of the Credit Extensions
will be applied as follows:
(a) the proceeds of the Loans in an amount not to exceed
$620,000,000 made on the Effective Date will be used by the Borrowers
(either directly or by way of a distribution to Affiliates of the
Borrowers to be contemporaneously applied) to repay in full the
Indebtedness identified in Item 7.2.2(b) of the Disclosure Schedule, to
make
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distributions in an amount not to exceed $510,000,000 (the "Closing
Date Restricted Payment") and to pay fees and expenses to Persons other
than any Affiliates of any Borrower arising in connection with this
Agreement or the transactions contemplated hereby; and
(b) the proceeds of Loans made or Letters of Credit issued on
or subsequent to the Effective Date will be used for the ongoing
working capital and general corporate, limited liability company and
partnership purposes, as the case may be, of the Borrowers and their
Restricted Subsidiaries.
The Borrowers agree that the Borrowers shall not request and the Lenders shall
not be obligated to make Credit Extensions in excess of $620,000,000 on the
Effective Date.
SECTION 7.1.10. Additional Collateral. Each Borrower shall, and shall
cause each of its Restricted Subsidiaries, each Parent and each Minority Owner
to, cause the Secured Parties to have at all times a first priority perfected
security interest in all of the issued and outstanding Capital Securities of the
Borrowers and the Restricted Subsidiaries, whether now existing or hereafter
acquired or organized. Without limiting the generality of the foregoing, each
Borrower shall, and shall cause each of its Restricted Subsidiaries, each Parent
and each Minority Owner to, deliver or cause to be delivered to the
Administrative Agent all Capital Securities, appropriately endorsed for
transfer, with stock powers attached, if applicable of each Borrower and the
after-acquired Restricted Subsidiaries for which possession by the
Administrative Agent is required and other types of property including, in the
case of uncertificated securities or any security entitlement, take all actions
necessary to perfect a security interest under Articles 8 and 9 of the U.C.C. in
each case for perfection of such security interest, and shall, and shall cause
each owner of Capital Securities in a Borrower or a Restricted Subsidiary, to
execute, deliver and/or file (as applicable), or cause to be executed, delivered
and/or filed (as applicable), each Pledge Agreement, U.C.C. financing statement,
U.C.C. termination statement and other documentation necessary to grant and
perfect such security interest, in each case in form and substance reasonably
satisfactory to the Administrative Agent.
SECTION 7.1.11. Future Subsidiaries. Upon any Person becoming a
Restricted Subsidiary or upon any Borrower, Restricted Subsidiary or Minority
Owner acquiring any Capital Securities of any Borrower or any Restricted
Subsidiary, the Borrowers shall, or shall cause such Restricted Subsidiary or
such Minority Owner, as the case may be, to promptly notify the Administrative
Agent of such event, and
(a) such Borrowers will, and will cause any Subsidiary or
Minority Owner that owns Capital Securities in any Restricted
Subsidiary to, (i) as applicable, enter into, or deliver a supplement
to, the appropriate Pledge Agreement, in order to pledge to the
Administrative Agent such Person's ownership interest in such Capital
Securities in a manner satisfactory to the Administrative Agent;
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(b) such Restricted Subsidiary shall become a party to the
Obligor Pledge Agreement and the Subsidiary Guaranty, if not already a
party thereto, in a manner satisfactory to the Administrative Agent;
and
(c) such Restricted Subsidiary, if it is party to a Management
Agreement, shall become a party to a Manager Subordination Agreement,
if not already a party thereto, in a manner satisfactory to the
Administrative Agent;
together, in each case, with such opinions, addressed to the Arranging Agents
and the Lenders, in form and substance satisfactory to the Administrative Agent,
as the Administrative Agent may reasonably require. No Borrower nor any
Restricted Subsidiary shall acquire or otherwise establish or own any interest
in any Restricted Subsidiary unless all the Capital Securities of such Person
are owned by one or more Borrowers, one or more Restricted Subsidiaries and/or
(if applicable) one or more Minority Owners, in each case free and clear of all
Liens (except for Liens in favor of the Secured Parties to secure the
Obligations).
SECTION 7.1.12. Year 2000 Compliance. The Borrowers will promptly
notify the Administrative Agent in the event any Borrower or any Restricted
Subsidiary discovers or determines that any computer application (including
those of its suppliers or vendors) that is material to its or any of its
Subsidiaries' business and operations will not be able to perform properly
date-sensitive functions for all dates before, on and after January 1, 2000,
except to the extent that such failure could not reasonably be expected to have
a Material Adverse Effect.
SECTION 7.1.13. Minority Owner Pledge Agreement. The Borrowers agree
that they will cause to be delivered to the Administrative Agent within 30 days
following the Effective Date (with counterparts for each Lender) Minority Owner
Pledge Agreements, duly executed and delivered by an Authorized Officer of each
TMIP Limited Partner (or, in the case of any TMIP Limited Partner that is an
individual, then by such Person), together with confirmation and evidence
satisfactory to the Administrative Agent that the security interest in the
Capital Securities of Tele-Media Investment Partnership, L.P. ("TMIP") owned by
the TMIP Limited Partners has been transferred to and perfected by the
Administrative Agent for the benefit of the Secured Parties in accordance with
Articles 8 and 9 of the U.C.C. and all laws otherwise applicable to the
perfection of the pledge of or grant of a security interest in such Capital
Securities, and the Administrative Agent shall be satisfied that it has pledged
to it under the Pledge Agreements 100% of the issued and outstanding Capital
Securities of TMIP.
SECTION 7.2. Negative Covenants. Each Borrower covenants and agrees
with each Lender, the Issuer and each Arranging Agent that until the Termination
Date has occurred, each Borrower will, and will cause its Restricted
Subsidiaries to, perform or cause to be performed the obligations set forth
below.
SECTION 7.2.1. Business Activities. No Borrower will, nor will any
Borrower permit any of its Restricted Subsidiaries to, engage in any business
activity except owning, operating, managing and investing in Cable Systems and
activities reasonably incidental or related thereto.
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SECTION 7.2.2. Indebtedness. No Borrower will, nor will any Borrower
permit any of its Restricted Subsidiaries to, create, incur, assume or permit to
exist any Indebtedness, other than:
(a) Indebtedness in respect of the Obligations;
(b) until the date of the initial Credit Extensions,
Indebtedness that is to be repaid in full as further identified in Item
7.2.2(b) of the Disclosure Schedule;
(c) unsecured Affiliate Indebtedness (excluding Management
Fees);
(d) deferred Management Fees owing to a Manager that has
executed and delivered a Manager Subordination Agreement;
(e) Indebtedness in an aggregate principal amount not to
exceed $35,000,000 at any time outstanding which is incurred in respect
of purchase money obligations or Capitalized Lease Liabilities;
(f) unsecured Indebtedness (i) incurred in the ordinary course
of business of the Borrowers and their Restricted Subsidiaries
(including open accounts extended by suppliers on normal trade terms in
connection with purchases of goods and services which are not overdue
for a period of more than 90 days or, if overdue for more than 90 days,
as to which a dispute exists and adequate reserves in conformity with
GAAP have been established on the books of such Borrower or such
Restricted Subsidiary) and (ii) in respect of performance, surety or
appeal bonds provided in the ordinary course of business, but excluding
(in each case), Indebtedness incurred through the borrowing of money or
Contingent Liabilities in respect thereof; and
(g) unsecured Indebtedness of (i) the Borrowers owing to
Restricted Subsidiaries that have executed and delivered the
Intercompany Subordination Agreement and (ii) the Borrowers' Restricted
Subsidiaries owing to a Borrower or to another Restricted Subsidiary
which shall not be forgiven or otherwise discharged for any
consideration other than payment Dollar for Dollar in cash, unless the
Arranging Agents otherwise consent;
provided, however, that no Indebtedness otherwise permitted by clause (c), or
(g)(ii) shall be assumed or otherwise incurred if a Default has occurred and is
then continuing or would result therefrom.
SECTION 7.2.3. Liens. No Borrower will, nor will any Borrower permit
any of its Restricted Subsidiaries to, create, incur, assume or permit to exist
any Lien upon any of its property (including Capital Securities of any Person),
revenues or assets, whether now owned or hereafter acquired, except:
(a) Liens securing payment of the Obligations;
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(b) until the date of the initial Credit Extensions, Liens
securing payment of Indebtedness of the type described in clause (b) of
Section 7.2.2;
(c) Liens securing Indebtedness permitted pursuant to clause
(e) of Section 7.2.2; provided, that such Lien does not (i) secure
Indebtedness in excess of the amount of Indebtedness incurred with
respect to such purchase money obligations or Capitalized Lease
Liability or the property acquired and (ii) attach to any assets or
property of any Borrower or any of its Restricted Subsidiaries beyond
the assets or property leased or acquired as a result of the incurrence
of such Indebtedness;
(d) Liens of utilities incurred in the ordinary course of
business on cables and other property affixed to transmission poles
pursuant to Pole Agreements or Pole Rental Leases;
(e) Liens in favor of carriers, warehousemen, mechanics,
materialmen and landlords granted in the ordinary course of business
for amounts not overdue or being diligently contested in good faith by
appropriate proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books;
(f) Liens incurred or deposits made in the ordinary course of
business in connection with workmen's compensation, unemployment
insurance or other forms of governmental insurance or benefits, or to
secure performance of tenders, statutory obligations, bids, leases or
other similar obligations (other than for borrowed money) entered into
in the ordinary course of business or to secure obligations on surety
and appeal bonds or performance bonds;
(g) judgment Liens in existence for less than 45 days after
the entry thereof or with respect to which execution has been stayed or
the payment of which is (i) covered in full (subject to a customary
deductible) by insurance maintained with responsible insurance
companies, (ii) adequately bonded (as reasonably determined by the
Administrative Agent) or (iii) covered by adequate reserves in
conformity with GAAP which have been established on the books of such
Person;
(h) easements, rights-of-way, zoning restrictions, minor
defects or irregularities in title and other similar encumbrances not
interfering in any material respect with the value or use of the
property to which such Lien is attached;
(i) Liens for taxes, assessments or other governmental charges
or levies not at the time delinquent or thereafter payable without
penalty or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP
shall have been set aside on its books; and
(j) Liens on the Capital Securities of Unrestricted
Subsidiaries.
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SECTION 7.2.4. Financial Condition and Operations. The Borrowers will
not permit to occur any of the events set forth below.
(a) Leverage Ratio. The Borrowers will not permit the Leverage
Ratio on the last day of any Fiscal Quarter occurring during any period
set forth below to be greater than the ratio set forth opposite such
period:
Period Ratio
Effective Date through (and including) 6.50:1
06/30/00
07/01/00 through (and including) 6.25:1
12/31/00
01/01/01 through (and including) 6.00:1
06/30/01
07/01/01 through (and including 5.75:1
12/31/01
01/01/02 through (and including) 5.50:1
06/30/02
Each Fiscal Quarter thereafter 4.50:1
(b) Interest Coverage. The Borrowers will not permit the
Interest Coverage Ratio on the last day of any Fiscal Quarter to be
less than 1.6:1.
(c) Pro-Forma Debt Service Coverage. The Borrowers will not
permit the ratio of Annualized Operating Cash Flow to Pro-Forma Debt
Service on the last day of any Fiscal Quarter to be less than 1.10:1;
provided, however, that this covenant shall not apply for any Fiscal
Quarter in which the Leverage Ratio is less than 3.5:1.
SECTION 7.2.5. Investments. No Borrower will, nor will any Borrower
permit any of its Restricted Subsidiaries to, purchase, make, incur, assume or
permit to exist any Investment in any other Person, except:
(a) Investments existing on the Effective Date and identified
in Item 7.2.5(a) of the Disclosure Schedule;
(b) Cash Equivalent Investments;
(c) without duplication, Investments permitted as Indebtedness
pursuant to Section 7.2.2;
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(d) without duplication, Permitted Business Acquisitions made
by any Borrower or any of its Restricted Subsidiaries in an aggregate
amount not to exceed (individually or in the aggregate over the term of
this Agreement) at any time $150,000,000 plus the amount of any Net
Disposition Proceeds not theretofore utilized pursuant to this clause
or applied to a repayment of the Loans pursuant to the terms of this
Agreement; provided, that upon making such Investments, the provisions
of Section 7.1.11 are complied with;
(e) Investments constituting (i) accounts receivable arising,
(ii) trade debt granted, or (iii) deposits made in connection with the
purchase price of goods or services, in each case in the ordinary
course of business;
(f) Investments received (i) in consideration for Restricted
Payments permitted under Section 7.2.6 or (ii) (without duplication) as
non-cash Permitted Consideration;
(g) Investments made by any Borrower or any Restricted
Subsidiary in other Restricted Subsidiaries;
(h) Investments made in accordance with clause (a) of Section
7.2.8; and
(i) Investments consisting of Contributed Property;
provided, however, that
(j) any Investment which when made complies with the
requirements of the definition of the term "Cash Equivalent Investment"
may continue to be held (but not renewed) and non-cash Permitted
Consideration may continue to be held, in each case notwithstanding
that such Investment if made thereafter would not comply with such
requirements; and
(k) no Investment otherwise permitted by clauses (d), (f) and
(h) shall be permitted to be made if, immediately before or after
giving effect thereto, any Default (including under Section 7.2.4)
shall have occurred and be continuing or would result therefrom.
SECTION 7.2.6. Restricted Payments, etc. (a) No Borrower will, nor will
any Borrower permit any of its Restricted Subsidiaries to, declare or make a
Restricted Payment, or make any deposit for any Restricted Payment, unless (x)
no Default exists immediately before and after giving effect to the making of
such Restricted Payment and (y) the Leverage Ratio has been less than 5:1 for
the most recently ended Fiscal Quarter for which a Compliance Certificate was
delivered immediately preceding the date of such Restricted Payment, and shall
continue to be less than 5:1 on a pro forma basis after giving effect thereto.
(b) Notwithstanding the foregoing, however, any Borrower or any of its
Restricted Subsidiaries may declare and make Restricted Payments
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(i) of cash or Cash Equivalent Investments with the amount of
Capital Contributions made into the Borrowers and (without duplication)
their Restricted Subsidiaries after the Effective Date; provided that
(A) no Default exists immediately before and (on a pro forma basis)
after giving effect to the making of such Restricted Payment and (B)
after giving effect thereto, the Aggregate Capital Contribution Amount
is greater than $1.00; or
(ii) of property (other than cash or Cash Equivalent
Investments), so long as no Default exists immediately before and (on a
pro forma basis) after giving effect to the making of such Restricted
Payment; provided, that (A) if such Restricted Payment is required to
be deducted from the Aggregate Property Contribution Amount pursuant to
the terms of this Agreement, then such property is similar in all
material respects (as reasonably determined by the Arranging Agents) to
the Contributed Property (it being agreed that all Cable Systems are
deemed to be similar to each other) and has a Fair Market Value
(determined as of the date such Restricted Payment is made) no greater
than the Aggregate Property Contribution Amount then in effect or (B)
if such Restricted Payment is required to be deducted from the
Aggregate Capital Contribution Amount pursuant to the terms of this
Agreement, after giving effect thereto, the Aggregate Capital
Contribution Amount is greater than $1.00.
In either case, the Borrowers shall deliver notice to the Administrative Agent
setting forth as between clause (b)(i) and clause (b)(ii) where such Restricted
Payment was deducted.
(c) The Borrowers and their Restricted Subsidiaries may declare and
make the Closing Date Restricted Payment (and such Closing Date Restricted
Payment shall not be included in any of the calculations set forth above).
SECTION 7.2.7. Consolidation, Merger, etc. No Borrower will, nor will
any Borrower permit any of its Restricted Subsidiaries to, liquidate or
dissolve, consolidate with, or merge into or with, any other Person (including
to any Unrestricted Subsidiary) (collectively, to "Merge"), or purchase or
otherwise consummate an Acquisition except:
(a) any Restricted Subsidiary may Merge with and into any
Borrower (with such Borrower being the surviving Person) or any other
Restricted Subsidiary, and the assets or Capital Securities of any
Restricted Subsidiary may be purchased, transferred or otherwise
acquired by any Borrower or any other Restricted Subsidiary;
(b)Permitted Business Acquisitions permitted by Section 7.2.5;
(c) any Borrower or Restricted Subsidiary may Merge with a
Person other than a Borrower or another Restricted Subsidiary so long
as (i) no Default has occurred and is continuing or would result
therefrom, (ii) if applicable, the requirements contained in the
Permitted Existing Asset Transfer definition are satisfied, and (iii)
if such Borrower or Restricted Subsidiary owns assets other than
Existing Assets, then the Fair Market Value (determined as of the date
of the Merger) of such other assets shall be Disposed of
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pursuant to the terms of this Agreement and, if such assets are
Disposed of pursuant to clause (b) of Section 7.2.6, shall cause a
commensurate reduction (in an amount equal to such Fair Market Value)
to the applicable basket elected by the Borrowers under which such
assets were Disposed;
(d) Acquisitions to the extent permitted by Section 7.2.6;
(e) Asset Swaps permitted by clause (a) of Section 7.2.8;
(f) any Borrower may Merge with and into another Borrower; and
(g) any Borrower may liquidate or dissolve, so long as (i)
both before and after giving effect thereto, no Default has occurred
and is continuing or would result therefrom, (ii) after giving effect
thereto, at least one Borrower remains in existence and is a party to
this Agreement and (iii) the assets of such Borrower have been (A)
transferred to another Borrower or to a Restricted Subsidiary or (B)
otherwise Disposed of pursuant to the terms of this Agreement, which
Disposition, in the case of any such assets disposed of pursuant to
clause (b) of Section 7.2.6, shall cause a commensurate reduction (by
the amount of the Fair Market Value of such assets determined on the
date of liquidation or dissolution) to the applicable basket elected by
the Borrowers under which such assets were Disposed.
SECTION 7.2.8. Asset Swaps, Dispositions, etc. No Borrower will, nor
will any Borrower permit any of its Restricted Subsidiaries to, Dispose of any
of their respective assets to any Person (including to any Unrestricted
Subsidiary) in one transaction or series of transactions except:
(a) Asset Swaps; provided, that (i) both before and after
giving effect thereto, no Default shall have occurred and be continuing
or would result from such Asset Swap; and (ii) in the case of Existing
Assets only, such Asset Swap satisfies the requirements of a Permitted
Existing Asset Swap;
(b) Permitted Dispositions; provided, that any Permitted
Disposition of Existing Assets satisfies the requirements of a
Permitted Existing Asset Transfer;
(c) Dispositions (i) from any Borrower to any Restricted
Subsidiary, (ii) from a Restricted Subsidiary to any Borrower, (iii)
from a Restricted Subsidiary to another Restricted Subsidiary or (iv)
from any Borrower to another Borrower;
(d) the Disposition of obsolete or worn out equipment or
equipment no longer used or useful in the business of any Borrower or
any Restricted Subsidiary, in each case, in the ordinary course of
business;
(e) the sale of inventory in the ordinary course of business;
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(f) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in connection
with the compromise or collection thereof (which in any event will not
include a "securitization" or similar receivables sale program);
(g) Dispositions permitted by Section 7.2.5 and by Section
7.2.7; and
(h) all Restricted Payments permitted under Section 7.2.6.
SECTION 7.2.9. Modification of Certain Agreements. No Borrower will,
nor will any Borrower permit any of its Restricted Subsidiaries to, consent to
any amendment, supplement, waiver or other modification of, or enter into any
forbearance from exercising any rights with respect to, any of the terms or
provisions contained in, or applicable to, any Management Agreement, any Organic
Documents of any Borrower or of any Restricted Subsidiary if the effect of such
consent, supplement or modification is to impair or is in any manner adverse to,
the rights or interests of any Lender under this Agreement or any Loan Document,
without the prior written consent of the Administrative Agent and the Required
Lenders.
SECTION 7.2.10. Transactions with Affiliates. Except for the Affiliate
Indebtedness and the Intercompany Indebtedness payable in accordance with the
terms of the Subordination Agreements, no Borrower will, nor will any Borrower
permit any of its Restricted Subsidiaries to, enter into or cause or permit to
exist any arrangement or contract (including for the purchase, lease or exchange
of property or the rendering of services) with any of its other Affiliates,
unless such arrangement or contract (i) is on fair and reasonable terms no less
favorable to such Borrower or such Restricted Subsidiary than it could obtain in
an arm's-length transaction with a Person that is not an Affiliate and (ii) is
of the kind which would be entered into by a prudent Person in the position of
such Borrower or such Restricted Subsidiary with a Person that is not one of its
Affiliates; provided, however, that the Management Agreements and Management
Fees accrued or paid in accordance with Section 7.2.12 or Section 7.2.13 shall
not violate this Section.
SECTION 7.2.11. Restrictive Agreements, etc. No Borrower will, nor
will any Borrower permit any of its Restrictive Subsidiaries to, enter into any
agreement prohibiting
(a) the creation or assumption of any Lien upon any assets,
whether now owned or hereafter acquired, that are, or are required to
be, delivered in pledge pursuant to the terms of this Agreement or a
Loan Document;
(b) the ability of any Obligor to amend or otherwise modify
this Agreement or any other Loan Document; or
(c) the ability of any Restricted Subsidiary to make any
payments, directly or indirectly, to any Borrower, including by way of
dividends, advances, repayments of loans, reimbursements of management
and other intercompany charges, expenses and accruals or other returns
on investments.
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The foregoing prohibitions shall not apply to restrictions contained in this
Agreement and any other Loan Document.
SECTION 7.2.12. Management Fees. No Borrower will, nor will any
Borrower permit its Restricted Subsidiaries to, permit the Management Fees
(including any interest thereon) payable to accrue at a rate such that, during
any Fiscal Quarter the total amount of such accrued fees exceeds 5% of the gross
revenue (which, when used in this Agreement and the Loan Documents, shall be
determined in accordance with GAAP), of the Borrowers and their Restricted
Subsidiaries for the immediately preceding Fiscal Quarter.
SECTION 7.2.13. Payment of Management Fees. (a) No Borrower will, nor
will any Borrower permit any of its Restricted Subsidiaries to, pay any
Management Fees during any Fiscal Quarter in excess of 5% of the gross revenues
of the Borrowers and their Restricted Subsidiaries for the immediately preceding
Fiscal Quarter. In addition, and without limiting the foregoing, no Borrower
will, nor will any Borrower permit any of its Restricted Subsidiaries to, make
any payments of such Management Fees (or make any payments of Management Fees of
such Borrower or any of its Restricted Subsidiaries that have accrued prior to
or during the Fiscal Quarter immediately last ended for which a Compliance
Certificate was delivered but remain unpaid), at any time when any Default has
occurred and is continuing or would result therefrom.
(b) Notwithstanding the foregoing, however, each Borrower may, and may
permit any of its Restricted Subsidiaries to, make payments of such Management
Fees (or make payments of Management Fees of such Borrower or any of its
Restricted Subsidiaries that have accrued prior to or during the Fiscal Quarter
immediately last ended for which a Compliance Certificate was delivered but
remain unpaid) out of the proceeds of a Capital Contribution received in cash by
the Borrowers or (without duplication) the Restricted Subsidiaries after the
occurrence of a Default which was made for the purpose of funding such
Management Fee payments; provided, that after giving effect thereto, the
Aggregate Capital Contribution Amount is greater than $1.00. Other than the
payment of Management Fees from the proceeds of Capital Contributions,
Management Fees shall be Affiliate Indebtedness.
SECTION 7.2.14. Conversion of Restricted Subsidiary to an Unrestricted
Subsidiary. No Borrower will, nor will any Borrower permit any of its Restricted
Subsidiaries to, designate a Restricted Subsidiary as an Unrestricted Subsidiary
(referred to as a "Conversion") unless the following conditions are satisfied:
(a) no Default shall have occurred and be continuing
immediately before or after giving effect to such Conversion; and
(b) the Borrowers would have been able to make a Disposition
of such Restricted Subsidiary pursuant to (i) clause (a) of Section
7.2.6 or (ii) clause (b)(ii) of Section 7.2.6, and (if made pursuant to
clause (b)(ii) of this Section 7.2.14), the Fair Market Value of the
assets of such Restricted Subsidiary (determined as of the date of such
Conversion) shall reduce the Aggregate Property Contribution Amount
and/or the Aggregate Capital
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Contribution Amount, as applicable (as notified to the Lenders pursuant
to clause (c) of Section 7.1.1).
The Borrowers agree that once a Restricted Subsidiary has been designated as an
Unrestricted Subsidiary, such Unrestricted Subsidiary (and its successors,
including by way of Merger with any other Person) cannot thereafter be
designated as a Restricted Subsidiary.
SECTION 7.2.15. Conditions to Release of a Borrower, etc..
Notwithstanding any other term of this Agreement to the contrary, the
consummation of an Asset Swap or Disposition of, or the making of a Restricted
Payment of, the Capital Securities of a Borrower shall be subject to the
following conditions:
(a) the Released Borrower shall (i) if it is HHC or any of its
successors (including by way of a Merger), repay in full the entire
unpaid principal amount of its outstanding Loans, if any, (ii) cash
collateralize (on terms reasonably satisfactory to the Administrative
Agent) all Letters of Credit issued for its account or the account of
any of its Subsidiaries, (iii) pay in full all reasonable costs and
expenses (including attorneys' fees as well as those costs and expenses
set forth in Section 4.4) incurred in connection with its release
hereunder, (iv) pursuant to Section 10.5, acknowledge and confirm that
certain of the provisions of this Agreement shall, notwithstanding the
Released Borrower's release hereunder, be continuing obligations and
shall survive such release, and deliver a Release Certificate to the
Administrative Agent;
(b) such Asset Swap, Disposition or Restricted Payment shall
be permitted only if it includes all of the Capital Securities of such
Borrower and all of its Subsidiaries, and thereafter such Borrower and
its Subsidiaries shall no longer have rights under this Agreement and
the Loan Documents, nor will the Operating Cash Flow or Assets of such
Persons be included in the calculation of any financial (or other)
covenants under any Loan Document; and
(c) in the case of an Asset Swap, the Person whose Capital
Securities have been exchanged for the Capital Securities of the
existing Borrower in an Asset Swap shall be organized or incorporated
under the laws of the Unites States or a state thereof, become an
Additional Borrower hereunder and shall on the date of such Asset Swap
execute and deliver, to the Administrative Agent a Joinder Agreement,
and upon compliance with this clause, such Additional Borrower shall
assume all of the Obligations of the Released Borrower and shall in
turn become a Borrower under this Agreement.
SECTION 7.2.16. Conditions to Formation of an Additional Borrower. The
Secured Parties agree that the Borrowers may from time to time designate a
Person to become an Additional Borrower hereunder on the following terms and
conditions:
(a) no Default shall have occurred and be continuing
immediately before or after giving effect to such designation;
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(b) the Additional Borrower shall be organized or incorporated
under the laws of the Unites States or a state thereof;
(c) the Additional Borrower shall execute and deliver to the
Administrative Agent a Joinder Agreement;
(d) the owner(s) of the Additional Borrower's Capital
Securities shall, and the Additional Borrower shall, pledge (or caused
to be pledged) to the Administrative Agent for the benefit of the
Secured Parties pursuant to a Pledge Agreement all of the issued and
outstanding Capital Securities of such Additional Borrower and of each
of its direct and indirect Restricted Subsidiaries, and the
Administrative Agent shall have received, with counterparts for each
Lender, the applicable Pledge Agreement, duly executed and delivered by
an Authorized Officer of such Additional Borrower, each Minority Owner
and each Restricted Subsidiary that has Restricted Subsidiaries, as
applicable, together with confirmation and evidence satisfactory to the
Administrative Agent that the security interest in the Capital
Securities of the Additional Borrower and each of its Restricted
Subsidiaries has been transferred to and perfected by the
Administrative Agent for the benefit of the Secured Parties in
accordance with Articles 8 and 9 of the U.C.C. and all laws otherwise
applicable to the perfection of the pledge of such Capital Securities,
and the Administrative Agent and its counsel shall be satisfied that
(i) the Lien granted to the Administrative Agent, for the benefit of
the Secured Parties in the collateral described above is a first
priority security interest; and (ii) no Lien exists on any of the
collateral described above other than the Lien created in favor of the
Administrative Agent, for the benefit of the Secured Parties, pursuant
to a Loan Document;
(d) the Additional Borrower shall cause each of its Restricted
Subsidiaries to execute and deliver to the Administrative Agent a
supplement to the Subsidiary Guaranty in form and substance
satisfactory to the Administrative Agent;
(e) the Administrative Agent shall have received copies of the
type of documentation required in Section 5.1.1 as it relates to the
Additional Borrower and its Restricted Subsidiaries; and
(f) the Administrative Agent shall have received a certificate
in form and substance satisfactory to the Administrative Agent pursuant
to which the Additional Borrower will certify to the Secured Parties,
among other things, that the representations set forth in Article VI
are true and correct in all material respects for the Additional
Borrower and its Subsidiaries.
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ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1. Listing of Events of Default. Each of the following
events or occurrences described in this Article shall constitute an "Event of
Default".
SECTION 8.1.1. Non-Payment of Obligations. The Borrowers shall
default in the payment or prepayment when due of
(a) any principal of or interest (which default, as to
interest only, shall continue for a period of three Business Days) on
any Loan, or any Reimbursement Obligation or any deposit of cash for
collateral purposes pursuant to Section 2.6.4; or
(b) any fee described in Article III or any other monetary
Obligation, and such default shall continue unremedied for a period of
three days after such amount was due.
SECTION 8.1.2. Breach of Warranty. Any representation or warranty of
any Obligor made or deemed to be made in any Loan Document (including any
certificates delivered pursuant to Article V) is or shall be incorrect when made
or deemed to have been made in any material respect.
SECTION 8.1.3. Non-Performance of Certain Covenants and Obligations.
The Borrowers shall default in the due performance or observance of any of their
obligations under Section 7.1.1, Section 7.1.9 or Section 7.2 or any Obligor
shall default in the due performance or observance of its obligations under
Article III or Article IV of a Pledge Agreement or under Article IV of a
Guaranty.
SECTION 8.1.4. Non-Performance of Other Covenants and Obligations. Any
Obligor shall default in the due performance and observance of any other
obligations contained herein or in any other Loan Document executed by it, and
such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrowers by the Administrative Agent or
any Lender.
SECTION 8.1.5. Default on Other Indebtedness. A default shall occur in
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in Section 8.1.1) of any Borrower or any other Obligated Party having
a principal amount, individually or in the aggregate, in excess of $10,000,000
(in the case of any Borrower and its Restricted Subsidiaries) or $25,000,000 (in
the case of other Obligated Parties), or a default shall occur in the
performance or observance of any obligation or condition with respect to such
Indebtedness if the effect of such default is to accelerate the maturity of any
such Indebtedness or to cause or declare such Indebtedness to become due and
payable or to require such Indebtedness to be prepaid, redeemed, purchased or
defeased, or require an offer to purchase or defease such Indebtedness to be
made, prior to its expressed maturity, or (only in the case of any Borrower or
any Restricted Subsidiary) such
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default shall continue unremedied for any applicable period of time sufficient
to permit the holder or holders of such Indebtedness, or any trustee or agent
for such holders, to take the foregoing actions.
SECTION 8.1.6. Judgments. Any judgment or order for the payment of
money in excess of $10,000,000 (exclusive of any amounts fully covered by
insurance (less any applicable deductible) and as to which the insurer has
acknowledged its responsibility to cover such judgment or order) shall be
rendered against any Borrower or any Restricted Subsidiary and such judgment
shall not have been vacated or discharged or stayed or bonded pending appeal
within 30 days after the entry thereof.
SECTION 8.1.7. Pension Plans. Any of the following events shall occur
with respect to any Pension Plan
(a) the institution of any steps by any Borrower, any member
of its Controlled Group or any other Person to terminate a Pension Plan
if, as a result of such termination, any Borrower or any such member
could be required to make a contribution to such Pension Plan, or could
reasonably expect to incur a liability or obligation to such Pension
Plan, in excess of $1,000,000; or
(b) a contribution failure occurs with respect to any Pension
Plan sufficient to give rise to a Lien under section 302(f) of ERISA.
SECTION 8.1.8. Change in Control. Any Change in Control shall occur.
SECTION 8.1.9. Bankruptcy, Insolvency, etc. Any Borrower, any of
their respective Restricted Subsidiaries or any other Obligated Party shall
(a) become insolvent or generally fail to pay, or admit in
writing its inability or unwillingness to generally pay, debts as they
become due;
(b) apply for, consent to, or acquiesce in, the appointment of
a trustee, receiver, sequestrator or other custodian for any such
Person, or any substantial part of the property of any thereof, or make
a general assignment for the benefit of creditors;
(c) in the absence of such application, consent or
acquiescence in or permit or suffer to exist the appointment of a
trustee, receiver, sequestrator or other custodian for any such Person
or for a substantial part of the property of any thereof, and such
trustee, receiver, sequestrator or other custodian shall not be
discharged within 60 days; provided, however, that each such Person
hereby expressly authorizes each Secured Party to appear in any court
conducting any relevant proceeding during such 60-day period to
preserve, protect and defend their rights under the Loan Documents;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or
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insolvency law, or any dissolution, winding up or liquidation
proceeding, in respect of any such Person, and, if any such case or
proceeding is not commenced by any such Person, such case or proceeding
shall be consented to or acquiesced in by any such Person, as the case
may be, or shall result in the entry of an order for relief or shall
remain for 60 days undismissed; provided, however, that each such
Person hereby expressly authorizes each Secured Party to appear in any
court conducting any such case or proceeding during such 60-day period
to preserve, protect and defend their rights under the Loan Documents;
or
(e) take any action authorizing, or in furtherance of, any of
the foregoing.
SECTION 8.1.10. Impairment of Security, etc. Any Loan Document or any
Lien granted thereunder shall (except in accordance with its terms), in whole or
in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of any Obligor party thereto; any Obligor or
any other party shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability; or, except as
permitted under any Loan Document, any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien.
SECTION 8.1.11. Failure of Subordination. Any Borrower or any of its
Subsidiaries shall, directly or indirectly, disavow or contest in any manner (i)
the effectiveness, validity or enforceability of any of the subordination
provisions set forth in any Subordination Agreement (the "Subordination
Provisions"), (ii) that the Subordination Provisions exist for the benefit of
the Administrative Agent, the Lenders and the Issuer or (iii) that all payments
of principal of or premium and interest on the Affiliate Indebtedness or
Intercompany Indebtedness, or realized from the liquidation of any property of
any Obligor, shall be subject to any of such Subordination Provisions.
SECTION 8.1.12. Failure to Obtain or Cessation of Authorization, etc.
Any authorization, consent, approval, license, exemption, registration,
qualification, designation, declaration, filing or other action or undertaking
now or hereafter made by or with any Governmental Authority in connection with
this Agreement (other than matters referred to in Section 8.1.13 hereof) or the
other Loan Documents or any such action or undertaking now or hereafter
necessary or advisable to make this Agreement or the other Loan Documents legal,
valid and enforceable against any Obligor party thereto in accordance with their
respective terms is not obtained or shall have ceased to be in full force and
effect or shall have been modified or amended or shall have been held to be
illegal or invalid.
SECTION 8.1.13. Cancellation of Any Franchise Agreement. Any Franchise,
Franchise Agreement or any other license, permit, lease, easement, conduit
occupancy right, pole attachment, use, access or rental agreement, certificate,
consent, approval, authorization or agreement (collectively, for purposes of
this Section, the "Approvals") granted by the FCC or by any other Governmental
Authority with jurisdiction over any Cable System or by any public utility or
third party lessors, whether presently existing or hereafter granted to or
obtained by any Borrower or any of its Restricted Subsidiaries, the cancellation
or termination of which could
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reasonably be expected to have a Material Adverse Effect, or which could
reasonably be expected to materially impair the continued operation of any of
their respective Cable Systems, shall expire without renewal or shall be
suspended or revoked, and shall not be replaced, or any Borrower or any of its
Restricted Subsidiaries shall become subject to any injunction or other order
with respect to its respective Franchise or Franchise Agreement or the Approvals
which could reasonably be expected to have a Material Adverse Effect (in the
reasonable judgment of the Arranging Agents).
SECTION 8.2. Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.9 shall occur with respect to any
Borrower, the Commitments (if not theretofore terminated) shall automatically
terminate and the outstanding principal amount of all outstanding Loans and all
other Obligations (including Reimbursement Obligations) shall automatically be
and become immediately due and payable, without notice or demand to any Person
and each Borrower shall automatically and immediately be obligated to deposit
with the Administrative Agent cash collateral in an amount equal to all Letter
of Credit Outstandings.
SECTION 8.3. Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in clauses (a) through (d) of Section
8.1.9 with respect to any Borrower) shall occur for any reason, whether
voluntary or involuntary, and be continuing, the Administrative Agent, upon the
direction of the Required Lenders, shall by notice to the Borrowers declare all
or any portion of the outstanding principal amount of the Loans and other
Obligations (including Reimbursement Obligations) to be due and payable and/or
the Commitments (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount of such Loans and other Obligations which shall be so
declared due and payable shall be and become immediately due and payable,
without further notice, demand or presentment, and/or, as the case may be, the
Commitments shall terminate and each Borrower shall automatically and
immediately be obligated to deposit with the Administrative Agent cash
collateral in an amount equal to all Letter of Credit Outstandings.
ARTICLE IX
THE AGENTS
SECTION 9.1. Actions. Each Lender hereby appoints First Union as its
Administrative Agent, BMO as its Documentation Agent and PNC as its Syndication
Agent, and each of BMO, First Union and PNC are appointed as the Arranging
Agents, in each case under and for purposes of this Agreement and each other
Loan Document. Each Lender authorizes the Arranging Agents to act on behalf of
such Lender under this Agreement and each other Loan Document and, in the
absence of other written instructions from the Required Lenders received from
time to time by the Arranging Agents (with respect to which the Arranging Agents
agrees that it will comply, except as otherwise provided in this Section or as
otherwise advised by counsel in order to avoid contravention of applicable law),
to exercise such powers hereunder and thereunder as are specifically delegated
to or required of the Administrative Agent by the terms hereof and thereof,
together with such powers as may be reasonably incidental thereto. Each Lender
hereby
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indemnifies (which indemnity shall survive any termination of this Agreement)
each Arranging Agent, pro rata according to such Lender's proportionate Total
Exposure Amount, from and against any and all liabilities, obligations, losses,
damages, claims, costs or expenses of any kind or nature whatsoever which may at
any time be imposed on, incurred by, or asserted against, any Arranging Agent in
any way relating to or arising out of this Agreement and any other Loan
Document, including reasonable attorneys' fees, and as to which any Arranging
Agent is not reimbursed by the Borrowers; provided, however, that no Lender
shall be liable for the payment of any portion of such liabilities, obligations,
losses, damages, claims, costs or expenses which are determined by a court of
competent jurisdiction in a final proceeding to have resulted from any Arranging
Agents' gross negligence or wilful misconduct. No Arranging Agent shall be
required to take any action hereunder or under any other Loan Document, or to
prosecute or defend any suit in respect of this Agreement or any other Loan
Document, unless it is indemnified hereunder to its satisfaction. If any
indemnity in favor of any Arranging Agent shall be or become, in such Arranging
Agent's determination, inadequate, such Arranging Agent may call for additional
indemnification from the Lenders and cease to do the acts indemnified against
hereunder until such additional indemnity is given.
SECTION 9.2. Funding Reliance, etc. Unless the Administrative Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
3:00 p.m., New York time, on the Business Day prior to a Borrowing that such
Lender will not make available the amount which would constitute its Percentage
of such Borrowing on the date specified therefor, the Administrative Agent may
assume that such Lender has made such amount available to the Administrative
Agent and, in reliance upon such assumption, make available to the Borrowers a
corresponding amount. If and to the extent that such Lender shall not have made
such amount available to the Administrative Agent, such Lender and each Borrower
severally agree to repay the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
the Administrative Agent made such amount available to the applicable Borrower
to the date such amount is repaid to the Administrative Agent, at the interest
rate applicable at the time to Loans comprising such Borrowing (in the case of
the Borrowers) and (in the case of a Lender), at the Federal Funds Rate (for the
first two Business Days after which such amount has not been repaid), and
thereafter at the interest rate applicable to Loans comprising such Borrowing.
SECTION 9.3. Exculpation. No Arranging Agent nor any of its directors,
officers, employees or agents shall be liable to any Lender for any action taken
or omitted to be taken by it under this Agreement or any other Loan Document, or
in connection herewith or therewith, except for its own wilful misconduct or
gross negligence, nor responsible for any recitals or warranties herein or
therein, nor for the effectiveness, enforceability, validity or due execution of
this Agreement or any other Loan Document, nor for the creation, perfection or
priority of any Liens purported to be created by any of the Loan Documents, or
the validity, genuineness, enforceability, existence, value or sufficiency of
any collateral security, nor to make any inquiry respecting the performance by
any Borrower or any other Obligor of its obligations hereunder or under any
other Loan Document. Any such inquiry which may be made by any Arranging Agent
shall not obligate it to make any further inquiry or to take any action. Each
Arranging Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice,
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consent, certificate, statement or writing which such Arranging Agent believes
to be genuine and to have been presented by a proper Person.
SECTION 9.4. Successor. The Administrative Agent may resign as such at
any time upon at least 30 days' prior notice to the Borrowers and all Lenders.
If the Administrative Agent at any time shall resign, the Required Lenders may
appoint another Lender as a successor Administrative Agent which shall thereupon
become the Administrative Agent hereunder. If no successor Administrative Agent
shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent's
giving notice of resignation, then the retiring Administrative Agent may, on
behalf of the Lenders, appoint a successor Administrative Agent, which shall be
one of the Lenders or a commercial banking institution organized under the laws
of the U.S. (or any State thereof) or a U.S. branch or agency of a commercial
banking institution, and having a combined capital and surplus of at least
$250,000,000; provided, however, that if such retiring Administrative Agent is
unable to find a commercial banking institution which is willing to accept such
appointment and which meets the qualifications set forth in above, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor as provided for above. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall be entitled to receive from the retiring
Administrative Agent such documents of transfer and assignment as such successor
Administrative Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations under this Agreement. After any retiring
Administrative Agent's resignation hereunder as the Administrative Agent, the
provisions of
(a) this Article IX shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the
Administrative Agent under this Agreement; and
(b) Section 10.3 and Section 10.4 shall continue to inure to
its benefit.
------------ ------------
The Documentation Agent and the Syndication Agent may resign at any time on
notice to the Borrowers and the Administrative Agent.
SECTION 9.5. Loans by Arranging Agents. Each Arranging Agent shall have
the same rights and powers with respect to (x) the Credit Extensions made by it
or any of its Affiliates, and (y) the Notes held by it or any of its Affiliates
as any other Lender and may exercise the same as if it were not an Arranging
Agent hereunder, as the case may be. Each Arranging Agent and its respective
Affiliates may accept deposits from, lend money to, and generally engage in any
kind of business with any Borrower or any Subsidiary or Affiliate of any
Borrower as if such Person were not an Arranging Agent.
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SECTION 9.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Arranging Agent and each other Lender, and based on such
Lender's review of the financial information of each Borrower, this Agreement,
the other Loan Documents (the terms and provisions of which being satisfactory
to such Lender) and such other documents, information and investigations as such
Lender has deemed appropriate, made its own credit decision to extend its
Commitments. Each Lender also acknowledges that it will, independently of each
Arranging Agent and each other Lender, and based on such other documents,
information and investigations as it shall deem appropriate at any time,
continue to make its own credit decisions as to exercising or not exercising
from time to time any rights and privileges available to it under this Agreement
or any other Loan Document.
SECTION 9.7. Copies, etc. The Administrative Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Administrative Agent by the Borrowers pursuant to the terms of this
Agreement (unless concurrently delivered to the Lenders by the Borrower). The
Administrative Agent will distribute to each Lender each document or instrument
received for its account and copies of all other communications received by the
Administrative Agent from the Borrowers for distribution to the Lenders by the
Administrative Agent in accordance with the terms of this Agreement or any other
Loan Document.
SECTION 9.8. Limitation on Duties. Notwithstanding anything else to the
contrary contained in this Agreement or any other Loan Document, neither the
Syndication Agent, the Documentation Agent nor any Arranging Agent, in such
capacity, shall have any implied obligations hereunder or under any other Loan
Document, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or otherwise exist against either the Syndication
Agent, the Documentation Agent or any Arranging Agent.
SECTION 9.9. Reliance by Administrative Agent. Each Arranging Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, facsimile, telecopy, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person, and upon advice and statements of legal counsel,
independent accountants and other experts selected by such Arranging Agent. As
to any matters not expressly provided for by this Agreement or any other Loan
Document, each Arranging Agent shall in all cases be fully protected in acting,
or in refraining from acting, hereunder or thereunder in accordance with
instructions given by the Required Lenders or all of the Lenders as is required
in such circumstance, and such instructions of such Lenders and any action taken
or failure to act pursuant thereto shall be binding on all of the Lenders. For
purposes of applying amounts in accordance with this Section, each Arranging
Agent shall be entitled to rely upon any Secured Party that has entered into a
Rate Protection Agreement with any Borrower or any of its Subsidiaries for a
determination (which such Secured Party agrees to provide or cause to be
provided upon request of the Administrative Agent) of the outstanding secured
Obligations owed to such Secured Party under any Rate Protection Agreement.
Unless it has actual knowledge evidenced by way of written notice from any such
Secured Party and any
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Borrower to the contrary, each Arranging Agent, in acting hereunder and each
other Loan Document, shall be entitled to assume that no Rate Protection
Agreements or Obligations in respect thereof are in existence or outstanding
between any Secured Party and any Obligor.
SECTION 9.10. Defaults. No Arranging Agent shall be deemed to have
knowledge or notice of the occurrence of a Default unless such Arranging Agent
has received written notice from a Lender or any Borrower specifying such
Default and stating that such notice is a "Notice of Default". In the event that
any Arranging Agent receives such a notice of the occurrence of a Default, such
Arranging Agent shall give prompt notice thereof to the Lenders. The Arranging
Agents shall (subject to Section 10.1) take such action with respect to such
Default as shall be directed by the Required Lenders; provided that unless and
until the Arranging Agents shall have received such directions, the Arranging
Agents may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it determines to be in the
best interest of the Lenders.
ARTICLE X
MISCELLANEOUS PROVISIONS
SECTION 10.1. Waivers, Amendments, etc. The provisions of this
Agreement and of each other Loan Document (other than any Rate Protection
Agreement) may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by the
Borrowers and the Required Lenders (or, in the case of any Rate Protection
Agreement, the Borrowers and the Lender party thereto); provided, however, that
no such amendment, modification or waiver shall:
(a) modify this Section 10.1 or clause (b) of Section 10.16
without the consent of all Lenders;
(b) increase any Lender's Commitment or the amount of the
Loans required to be made by a Lender, extend the final Commitment
Termination Date of Credit Extensions made (or participated in) by a
Lender, waive a default in the payment of principal, interest or fees
owing to a Lender or reduce any fees described in Article III payable
to any Lender, without the consent of such Lender;
(c) extend the date of repayment (including the date of
repayment required pursuant to clause (d) of Section 3.1.1 and the
final Stated Maturity Date) of any Lender's Loans or the principal
amount required to be repaid on such date, or reduce the principal
amount of or rate of interest on any Lender's Loans or fees owing to a
Lender, or modify the pro rata application, as among Lenders, of the
amount of any repayment or prepayment of Loans required pursuant to
this Agreement, or extend the date on which interest or fees are
payable in respect of such Lender's Loans or Commitment, in each case
without the consent of such Lender (it being understood and agreed,
however, that (i) any amendment, modification or waiver of clause (c)
of Section 3.1.1 and the obligations
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to prepay loans with Net Disposition Proceeds shall only require the
consent of the Required Lenders and (ii) any vote to rescind any
acceleration made pursuant to Section 8.2 and Section 8.3 of amounts
owing with respect to the Loans and other Obligations shall only
require the vote of the Required Lenders);
(d) reduce the percentage set forth in the definition of
"Required Lenders" or any requirement hereunder that any particular
action be taken by all Lenders, without the consent of all Lenders;
(e) increase the Stated Amount of any Letter of Credit unless
consented to by the Issuer of such Letter of Credit; or
(f) affect adversely the interests, rights or obligations of
the Administrative Agent (in its capacity as the Administrative Agent),
or the Issuer (in its capacity as Issuer), unless consented to by the
Administrative Agent or the Issuer, as the case may be.
No failure or delay on the part of the Administrative Agent, the Issuer or any
Lender in exercising any power or right under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
any Borrower or any other Obligor in any case shall entitle it to any notice or
demand in similar or other circumstances. No waiver or approval by the
Administrative Agent, the Issuer or any Lender under this Agreement or any other
Loan Document shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
SECTION 10.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address or facsimile number set forth on Schedule II or set forth in the
Lender Assignment Agreement or at such other address or facsimile number as may
be designated by such party in a notice to the other parties. Any notice, if
mailed and properly addressed with postage prepaid or if properly addressed and
sent by pre-paid courier service, shall be deemed given when received; any
notice, if transmitted by facsimile, shall be deemed given when the confirmation
of transmission thereof is received by the transmitter.
SECTION 10.3. Payment of Costs and Expenses. Each Borrower jointly and
severally agrees to pay on demand all expenses of the Administrative Agent
(including the fees and out-of-pocket expenses of counsel to the Administrative
Agent and of local counsel, if any, who may be retained by counsel to the
Administrative Agent) in connection with
(a) the negotiation, preparation, execution and delivery of
this Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other
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Loan Document as may from time to time hereafter be required, whether
or not the transactions contemplated hereby are consummated; and
(b) the filing, recording, refiling or rerecording of any Loan
Document and/or any Uniform Commercial Code financing statements
relating thereto and all amendments, supplements, amendments and
restatements and other modifications to any thereof and any and all
other documents or instruments of further assurance required to be
filed or recorded or refiled or rerecorded by the terms hereof or the
terms of any Loan Document; and
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
Each Borrower further agrees to pay, and to save each Secured Party harmless
from all liability for, any stamp or other taxes which may be payable in
connection with the execution or delivery of this Agreement, the Credit
Extensions hereunder, or the issuance of the Notes, Letters of Credit or any
other Loan Documents. Each Borrower also agrees to reimburse each Secured Party
upon demand for all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and legal expenses of counsel to each Secured Party) incurred by
such Secured Party in connection with (x) the negotiation of any restructuring
or "work-out" with the Borrowers, whether or not consummated, of any Obligations
and (y) the enforcement of any Obligations.
SECTION 10.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Secured Party, each Borrower hereby jointly
and severally indemnifies, exonerates and holds each Secured Party and each of
their respective officers, directors, employees and agents (collectively, the
"Indemnified Parties") free and harmless from and against any and all
obligations, claims, actions, causes of action, suits, losses, costs,
liabilities and damages, and expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought), including reasonable attorneys' fees
and disbursements, whether incurred in connection with actions between or among
the parties hereto or the parties hereto and third parties (collectively, the
"Indemnified Liabilities"), incurred by the Indemnified Parties or any of them
as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Credit
Extension, including all Indemnified Liabilities arising in connection
with the entering into and performance of this Agreement;
(b) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties (including
any action brought by or on behalf of any Borrower as the result of any
determination by the Required Lenders pursuant to Article V not to fund
any Credit Extension, provided that any such action is resolved in
favor of such Indemnified Party);
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(c) any investigation, litigation or proceeding related to any
acquisition or proposed acquisition by any Borrower or any of its
Subsidiaries of all or any portion of the stock or assets of any
Person, whether or not an Indemnified Party is party thereto;
(d) any investigation, litigation or proceeding related to any
environmental cleanup, audit, compliance or other matter relating to
the protection of the environment or the Release by any Borrower or any
of its Subsidiaries of any Hazardous Material;
(e) the presence on or under, or the escape, seepage, leakage,
spillage, discharge, emission, discharging or releases from, any real
property owned or operated by any Borrower or any Subsidiary thereof of
any Hazardous Material (including any losses, liabilities, damages,
injuries, costs, expenses or claims asserted or arising under any
Environmental Law), regardless of whether caused by, or within the
control of, any Borrower or such Subsidiary; or
(f) each Lender's Environmental Liability (the indemnification
herein shall survive repayment of the Loans and any transfer of the
property of any Borrower or any of its Subsidiaries by foreclosure or
by a deed in lieu of foreclosure for any Lender's Environmental
Liability, regardless of whether caused by, or within the control of,
any Borrower or such Subsidiary);
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party to the extent of the relevant Indemnified Party's
gross negligence or wilful misconduct. Each Borrower and its successors and
assigns hereby waive, release and agree not to make any claim or bring any cost
recovery action against, any Secured Party under CERCLA or any state equivalent,
or any similar law now existing or hereafter enacted. It is expressly understood
and agreed that to the extent that any such Person is strictly liable under any
Environmental Laws, each Borrower's obligation to such Person under this
indemnity shall likewise be without regard to fault on the part of each Borrower
with respect to the violation or condition which results in liability of such
Person. If and to the extent that the foregoing undertaking may be unenforceable
for any reason, each Borrower hereby jointly and severally agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law.
SECTION 10.5. Survival. The obligations of the Borrowers under Sections
4.3, 4.4, 4.5, 4.6, 10.3 and 10.4, and the obligations of the Lenders under
Section 9.1, shall in each case survive any assignment from one Lender to
another (in the case of Sections 10.3 and 10.4) and any termination of this
Agreement or the occurrence of the Termination Date. The representations and
warranties made by each Borrower and each other Obligor in this Agreement and in
each other Loan Document shall survive the execution and delivery of this
Agreement and each such other Loan Document.
SECTION 10.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
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SECTION 10.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 10.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be an original and all of which shall constitute together but one
and the same agreement. This Agreement shall become effective when counterparts
hereof executed on behalf of each Borrower, the Administrative Agent and each
Lender (or notice thereof satisfactory to the Administrative Agent) shall have
been received by the Administrative Agent and notice thereof shall have been
given by the Administrative Agent to the Borrowers and each Lender.
SECTION 10.9. Governing Law; Entire Agreement. THIS AGREEMENT AND
(OTHER THAN THE LETTERS OF CREDIT, TO THE EXTENT SPECIFIED BELOW AND EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH IN A LOAN DOCUMENT) EACH OTHER LOAN DOCUMENT
(INCLUDING PROVISIONS WITH RESPECT TO INTEREST, LOAN CHARGES AND COMMITMENT
FEES) SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS
5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF A SECURITY INTEREST
UNDER A LOAN DOCUMENT, OR REMEDIES UNDER A LOAN DOCUMENT IN RESPECT OF ANY
PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE
STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH LETTER OF CREDIT, OR IF NO
LAWS OR RULES ARE DESIGNATED, THE INTERNATIONAL STANDBY PRACTICES
(ISP98--INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NUMBER 590 (THE "ISP98
RULES")) AND, AS TO MATTERS NOT GOVERNED BY THE ISP98 RULES, THE INTERNAL LAWS
OF THE STATE OF NEW YORK. This Agreement and the other Loan Documents constitute
the entire understanding among the parties hereto with respect to the subject
matter hereof and thereof and supersede any prior agreements, written or oral,
with respect thereto.
SECTION 10.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) no Borrower may assign or transfer its rights or
obligations hereunder without the prior written consent of the
Administrative Agent and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 10.11.
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SECTION 10.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans,
participations in Letters of Credit and Commitments to one or more other Persons
in accordance with the terms set forth below.
SECTION 10.11.1. Assignments. Any Lender, pursuant to a Lender
Assignment Agreement,
(a) with the consents of the Borrowers and the Administrative
Agent (which consents shall not be unreasonably delayed or withheld and
which consents shall not be required, in the case of the Borrowers,
during the continuation of an Event of Default) may at any time assign
and delegate to one or more financial institutions; and
(b) upon notice to the Borrowers and the Administrative Agent,
upon the Administrative Agent's acknowledgment on a Lender Assignment
Agreement, may assign and delegate to any of its Affiliates, to any
other Lender or to any special-purpose investment funds which are
organized for the specific purpose of making, acquiring participations
in or investing in loans of the type made pursuant to this Agreement;
(each assignee described in either of the foregoing clauses (a) or (b) referred
to as an "Assignee Lender"), all or any fraction of such Lender's total Loans,
Letter of Credit Outstandings and Commitments in a minimum aggregate amount of
$5,000,000 (or, if less, the entire remaining amount of such Lender's Loans,
Letter of Credit Outstandings and Commitments) and; provided, however, that
following such assignment, such assigning Lender's total Loans, Letter of Credit
Outstandings and Commitments shall be either a minimum aggregate amount of
$5,000,000 or zero; and provided, further, however, that such minimum assignment
amount will not apply to assignments by a Lender to its Affiliate or to any
special-purpose investment funds which are organized for the specific purpose of
making, acquiring participations in or investing in loans of the type made
pursuant to this Agreement which are managed by or whose investment advisor is a
Lender or an Affiliate of a Lender (referred to as a "Related Fund"). Each
Obligor and the Administrative Agent shall be entitled to continue to deal
solely and directly with a Lender in connection with the interests so assigned
and delegated to an Assignee Lender until
(c) notice of such assignment and delegation, together with
(i) payment instructions, (ii) the Internal Revenue Service forms or
other statements contemplated or required to be delivered pursuant to
Section 4.6, if applicable, and (iii) addresses and related information
with respect to such Assignee Lender, shall have been delivered to the
Borrowers and the Administrative Agent by such assignor Lender and such
Assignee Lender and shall have paid to the assignor Lender all amounts
due and payable thereunder;
(d) such Assignee Lender shall have executed and delivered to
each Borrower and the Administrative Agent a Lender Assignment
Agreement, accepted by the Administrative Agent;
(e) the processing fees described below shall have been paid;
and
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(f) the Administrative Agent shall have registered such
assignment and delegation in the Register pursuant to clause (b) of
Section 2.7.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement and such assignment and delegation is registered in the
Register, (i) the Assignee Lender thereunder shall be deemed automatically to
have become a party hereto and to the extent that rights and obligations
hereunder have been assigned and delegated to such Assignee Lender in connection
with such Lender Assignment Agreement, shall have the rights and obligations of
a Lender hereunder and under the other Loan Documents, and (ii) the assignor
Lender, to the extent that rights and obligations hereunder have been assigned
and delegated by it in connection with such Lender Assignment Agreement, shall
be released from its obligations hereunder and under the other Loan Documents.
Subject to the provisions of Section 2.7, within five Business Days after its
receipt of notice that the Administrative Agent has received and accepted an
executed Lender Assignment Agreement (and if requested by the Assignee Lender),
but subject to clause (c), each Borrower shall execute and deliver to the
Administrative Agent (for delivery to the relevant Assignee Lender) a new Note
(if the Assignee Lender so requests a Note) evidencing such Assignee Lender's
assigned Loans and Commitments and, if the assignor Lender has retained Loans
and Commitments hereunder (and if such Lender has held a Note or now requests
one), a replacement Note in the principal amount of the Loans and Commitments
retained by the assignor Lender hereunder (such Note to be in exchange for, but
not in payment of, the Note then held by such assignor Lender). Each such Note
shall be dated the date of the predecessor Note. The assignor Lender shall ▇▇▇▇
each predecessor Note "exchanged" and deliver each of them to the Administrative
Agent for delivery to the Borrowers. Accrued interest on the transferred Loans
and accrued fees, shall be paid as provided in this Agreement. Accrued interest
on that part of the assigned Loans shall be paid to the assignor Lender. Accrued
interest and accrued fees shall be paid at the same time or times provided in
this Agreement. Such assignor Lender or such Assignee Lender must also pay a
processing fee in the amount of $3,500 to the Administrative Agent upon delivery
of any Lender Assignment Agreement unless such assignment and delegation is by a
Lender to its Affiliate, a Related Fund of such Lender or an assignment to a
Federal Reserve Bank as provided below, or otherwise consented to by the
Administrative Agent. Any attempted assignment and delegation not made in
accordance with this Section shall be null and void. Notwithstanding anything to
the contrary set forth above, any Lender may (without requesting the consent of
the Borrowers or the Administrative Agent) transfer, assign and pledge its
rights under this Agreement and/or its Loans and/or its Notes hereunder to a
Federal Reserve Bank in support of borrowings made by such Lender from such
Federal Reserve Bank.
(g) In the event that S&P, ▇▇▇▇▇'▇ or ▇▇▇▇▇▇▇▇'▇ BankWatch (or
InsuranceWatch Ratings Service, in the case of Lenders that are
insurance companies (or Best's Insurance Reports, if such insurance
company is not rated by InsuranceWatch Ratings Service)) shall, after
the date that any Lender with a Commitment to make Revolving Loans or
participate in Letters of Credit becomes a Lender, downgrade the
long-term certificate of deposit rating or long-term senior, unsecured
debt rating of such Lender, and the resulting rating shall be below
BBB-, Baa3 or C (or BB, in the case of Lender that is an insurance
company (or B, in the case of an insurance company not rated by
InsuranceWatch Ratings Service)), then the Issuer shall have the right,
but not the obligation, upon notice to such Lender and the
Administrative Agent, to replace such
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Lender with a financial institution (a "Replacement Lender") in
accordance with and subject to the restrictions contained in this
Section, and such Lender hereby agrees to transfer and assign without
recourse (in accordance with and subject to the restrictions contained
in this Section) all its interests, rights and obligations in respect
of its Revolving Loan Commitment under this Agreement to such Assignee
Lender; provided, however, that (i) no such assignment shall conflict
with any law, rule and regulation or order of any governmental
authority and (ii) such Replacement Lender shall pay to such Lender in
immediately available funds on the date of such assignment the
principal of and interest and fees (if any) accrued to the date of
payment on the Loans made, and Letters of Credit participated in, by
such Lender hereunder and all other amounts accrued for such Lender's
account or owed to it hereunder. Upon any such termination or
assignment, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of any provisions of this
Agreement which by their terms survive the termination of this
Agreement.
SECTION 10.11.2. Participations. Any Lender may sell to one or more
commercial banks or other Persons (each of such commercial banks and other
Persons being herein called a "Participant") participating interests in any of
the Loans, Commitments, or other interests of such Lender hereunder; provided,
however, that
(a) no participation contemplated in this Section shall
relieve such Lender from its Commitments or its other obligations
hereunder or under any other Loan Document;
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations;
(c) the Borrowers and each other Obligor and the
Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations
under this Agreement and each of the other Loan Documents;
(d) no Participant, unless such Participant is an Affiliate of
such Lender or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in clauses (b), (c) and
(f) of Section 10.1; and
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(e) no Borrower shall be required to pay any amount under this
Agreement that is greater than the amount which it would have been
required to pay had no participating interest been sold.
Each Borrower acknowledges and agrees that each Participant, for purposes of
Sections 4.3, 4.4, 4.5, 4.6, 4.8, 4.9, 7.1.1, 10.3 and 10.4, shall be considered
a Lender. Each Participant shall only be indemnified for increased costs
pursuant to Section 4.3, 4.5 or 4.6 if and to the extent that the Lender which
sold such participating interest to such Participant concurrently is entitled to
make, and does make, a claim on the Borrowers for such increased costs. Any
Lender that sells a participating interest in any Loan, Commitment or other
interest to a Participant under this Section shall indemnify and hold harmless
each Borrower and the Administrative Agent from and against any taxes,
penalties, interest or other costs or losses (including reasonable attorneys'
fees and expenses) incurred or payable by any Borrower or the Administrative
Agent as a result of the failure of the Borrowers or the Administrative Agent to
comply with its obligations to deduct or withhold any Taxes from any payments
made pursuant to this Agreement to such Lender or the Administrative Agent, as
the case may be, which Taxes would not have been incurred or payable if such
Participant had been a Non-U.S. Lender that was entitled to deliver to the
Borrowers, the Administrative Agent or such Lender, and did in fact so deliver,
a duly completed and valid Form 1001 or 4224 (or applicable successor form)
entitling such Participant to receive payments under this Agreement without
deduction or withholding of any United States federal taxes. Without in any way
limiting the foregoing, each party hereto hereby agrees that, prior to the date
that is one year and one day after the payment in full of all outstanding
commercial paper or other senior indebtedness of any special purpose funding
vehicle (an "SPV") that becomes a Participant hereunder, it will not institute
against, or join any other Person in instituting against, such SPV any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the U.S. or any State thereof. In addition, nothing herein
shall prevent an SPV that becomes a Participant hereunder from assigning its
interests in any Loan, Commitment or other interest acquired from a Lender to
any financial institution providing liquidity and/or credit support to or for
the account of such SPV or from disclosing on a confidential basis any
non-public information relating to its participation to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPV.
SECTION 10.12. Other Transactions. Nothing contained herein shall
preclude any Arranging Agent, the Issuer or any other Lender from engaging in
any transaction, in addition to those contemplated by this Agreement or any
other Loan Document, with any Borrower or any of its Affiliates in which such
Borrower or such Affiliate is not restricted hereby from engaging with any other
Person.
SECTION 10.13. Limited Recourse. Notwithstanding any contrary provision
of this Agreement or any other Loan Document, no recourse shall be had for the
payment of the principal of or interest or premium, if any, on the Loans or for
any claim based thereon against (i) any Parent or Minority Owner, in either
case, that is not a Borrower, a Restricted Subsidiary or otherwise a Guarantor,
or any of their respective legal ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, permitted
successors or assigns or (ii) any corporation, partnership (or any general or
limited partner thereof) or individual to which the collateral securing the
payment of the Obligations shall have been transferred with the prior written
consent of each Lender, except to the extent such consent
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is not required pursuant to this Agreement or any other Loan Document. It is
understood that all Obligations may not be enforced against any of the Persons
described in clause (i) or (ii); provided, however, that this Section 10.13
shall not (A) prevent or restrict recourse to the collateral securing the
payment of the Obligations or constitute a waiver, release or discharge of any
Indebtedness or Obligations, but such Indebtedness shall remain outstanding
until paid or discharged; (B) limit any rights, claims for damages or recourse
of the Lenders, the Arranging Agents, the Issuer or their respective transferees
or assigns as a result of (x) any knowing or wilful breach by such Person of any
representation or warranty of such Person made under or pursuant to this
Agreement or any other Loan Document or (y) any knowing or wilful breach of
covenant or other obligation by such Person under this Agreement, or any other
Loan Document; or (C) limit the right of any Person to name any Borrower, any
Obligor or any transferee of any interest in the collateral securing the payment
of the Obligations as a party defendant in any action or suit for a judicial
sale or in the exercise of any other remedy under this Agreement or any other
Loan Document, so long as no judgment in the nature of a deficiency judgment
shall be asked for, taken or enforced against any Person referred to in clauses
(i) and (ii). Notwithstanding the foregoing, nothing herein shall be construed
to constitute a waiver by the Arranging Agents, the Issuer or the Lenders of any
rights to damages, other monetary relief, injunctive relief or any other remedy
at law or equity against any Borrower, any Obligor or any Parent by reason of
fraud, knowing or wilful breach of representations and warranties, wilful
tortious acts or omissions, gross negligence or criminal acts. This Section
10.13 is not intended to and shall not impair or limit any Arranging Agent's,
the Issuer's or any Lender's ability to realize on the collateral securing the
payment of the Obligations or on any other assets of any Borrower or any Obligor
or to exercise its rights under a Guaranty including the guarantee provided in
Section 4.10..
SECTION 10.14. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE ADMINISTRATIVE
AGENT, THE LENDERS, ANY ISSUER OR ANY BORROWER IN CONNECTION HEREWITH OR
THEREWITH SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE
OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENT'S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. EACH BORROWER AND EACH PARENT HEREBY EXPRESSLY AND
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AT THE
ADDRESS FOR NOTICES SPECIFIED IN SECTION 10.2. EACH BORROWER AND EACH PARENT
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF
ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
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INCONVENIENT FORUM. TO THE EXTENT THAT ANY BORROWER OR ANY PARENT HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, EACH BORROWER AND EACH PARENT HEREBY IRREVOCABLY WAIVES TO THE FULLEST
EXTENT PERMITTED BY LAW SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 10.15. Waiver of Jury Trial. EACH ARRANGING AGENT, THE ISSUER,
EACH LENDER, EACH BORROWER AND EACH PARENT HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHTS THEY MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING
OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF SUCH ARRANGING AGENT, THE ISSUER, SUCH LENDER, SUCH
BORROWER OR SUCH PARENT IN CONNECTION HEREWITH OR THEREWITH. EACH BORROWER AND
EACH PARENT ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN
DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR EACH ARRANGING AGENT, THE ISSUER AND EACH LENDER ENTERING INTO
THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT.
SECTION 10.16. Release. (a) The Administrative Agent is hereby
authorized and directed by the Lenders and the Issuer to, and shall, release
Liens, release a Borrower, release any party to a Guaranty and any other
guarantees or any other Obligations under the Loan Documents and take such other
actions as the Borrowers may reasonably request in connection with any
transaction otherwise permitted under this Agreement and involving (i) any asset
subject to any such Lien, (ii) such Borrower or (iii) any Person party to any
such Guaranty.
(b) To the extent not otherwise permitted under the terms of
this Agreement, the Required Lenders can release any Guarantor or any
Borrower, or release any Capital Securities pledged to the Secured
Parties under a Loan Document, provided, the Borrowers shall have
delivered to the Administrative Agent a pro forma Compliance
Certificate for the most recently reported Fiscal Quarter (prepared in
good faith and in a manner and using such methodology which is
consistent with the most recent financial statements delivered pursuant
to Section 7.1.1) giving pro forma effect to the consummation of such
release and evidencing compliance with the covenants set forth in
Section 7.2.4.
-97-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
HILTON HEAD COMMUNICATIONS, L.P.
By: NCAA Holdings, Inc., as its general partner
By:
Title:
UCA CORP.
By:
Title:
UCA LLC
By: ACC Operations, Inc., as its sole member
By:
Title:
NATIONAL CABLE ACQUISITION
ASSOCIATES, L.P.
By: Olympus Communications, L.P., as its general
partner
By: ACP Holdings, Inc., as its managing general
partner
By:
Title:
GRAND ISLAND CABLE, INC.
By:
Title:
-98-
SVHH CABLE ACQUISITION, L.P.
By: SVHH Holdings, Inc., as its general partner
By:
Title:
TELE-MEDIA COMPANY OF HOPEWELL-PRINCE
▇▇▇▇▇▇
By: Eastern Virginia Cablevision Holdings, LLC,
as its managing general partner
By: Eastern Virginia Cablevision L.P., as its sole
member
By: TMC Holdings Corporation, as its general
partner
By:
Title:
FIRST UNION NATIONAL BANK, as Administrative
Agent and as a Lender
By:
Title:
BANK OF MONTREAL, as Documentation Agent and
as a Lender
By:
Title:
PNC BANK, NATIONAL ASSOCIATION, as
Syndication Agent and as a Lender
By:
Title:
-99-
LENDERS
ABN AMRO BANK N.V.
By:
Name:
Title:
By:
Name:
Title:
-100-
THE BANK OF NEW YORK
By:
Name:
Title:
-101-
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
-102-
BARCLAYS BANK PLC
By:
Name:
Title:
-103-
THE CHASE MANHATTAN BANK
By:
Name:
Title:
-104-
CIBC INC.
By:
Name:
Title:
-105-
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
-106-
CREDIT LYONNAIS NEW YORK BRANCH
By:
Name:
Title:
-107-
CREDIT SUISSE FIRST BOSTON
By:
Name:
Title:
By:
Name:
Title:
-108-
FIRST NATIONAL BANK OF MARYLAND
By:
Name:
Title:
-109-
SALOMON BROTHERS HOLDING COMPANY
INC.
By:
Name:
Title:
-110-
FRANKLIN FLOATING RATE TRUST
By:
Name:
Title:
-111-
[PAGES 111-112 INTENTIONALLY OMITTED]
-112-
-113-
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
Name:
Title:
-114-
MEESPIERSON CAPITAL CORP.
By:
Name:
Title:
By:
Name:
Title:
-115-
NATIONAL CITY BANK OF PENNSYLVANIA
By:
Name:
Title:
-116-
NATIONSBANK, N.A.
By:
Name:
Title:
-117-
ROYAL BANK OF CANADA
By:
Name:
Title:
-118-
[PAGES 118-119 INTENTIONALLY OMITTED]
-119-
-120-
SALOMON BROTHERS HOLDING COMPANY
INC.
By:
Name:
Title:
-121-
TORONTO DOMINION (TEXAS), INC.
By:
Name:
Title:
-122-
BANK OF TOKYO MISTUBISHI TRUST
COMPANY
By:
Name:
Title:
-123-
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
By:
Name:
Title:
-124-
SCHEDULE I
DISCLOSURE SCHEDULE
Item 6.7 Litigation, Labor Controversies, etc.
Item 6.8 Subsidiaries.
Item 6.9 Scheduled Liens.
Item 6.11 Pension and Welfare Plans.
Item 6.12 Environmental Warranties.
Item 6.14 Franchises.
Item 7.2.2(b) Indebtedness to be paid.
Item 7.2.5(a) Investments.
SCHEDULE II
PERCENTAGES AND ADMINISTRATIVE INFORMATION
The Borrowers:
Main at ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Lenders:
Name: Percentages
Tranche B
Term Loan
Commitment/ Revolving
Tranche B Loan LIBOR Office/
Term Loans: Commitment: Domestic Office:
Bank of Montreal 20.0000% 5.5000% ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
First Union National Bank 20.0000% 5.5000% ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LIBOR Office/
PNC Bank, National Association 20.0000% 5.5000% Communications Banking Division
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇-▇▇▇▇-▇▇-▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Barclays Bank PLC 0.0000% 5.5000% ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The ▇▇▇▇▇ Manhattan Bank 2.0000% 5.5000% ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: 212-270-7340
Attention: ▇▇▇▇ ▇▇▇▇▇
Bank of Tokyo 0.0000% 5.0000% ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Credit Lyonnais New York Branch 0.0000% 5.0000% ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: 212-261-7890
Attention: ▇▇▇▇ ▇▇▇▇▇
Rabobank Nederland 0.0000% 5.0000% ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Corporate Services
LIBOR Office/
Toronto Dominion (Texas), Inc. 4.0000% 5.0000% ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇)▇▇▇-▇▇▇▇
Att: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
ABN AMRO Bank, N.V. 2.0000% 4.1667% ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Bank of America 0.0000% 4.1667% ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
The Bank of New York 2.0000% 4.1667% ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
The Bank of Nova Scotia 0.0000% 4.1667% ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇
CIBC Inc. 0.0000% 4.1667% ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
LIBOR Office/
Salomon Brothers Holding 0.0000% 4.1667% 7 World Trade Center, 33rd Floor
Company ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Credit Suisse First Boston 0.0000% 4.1667% Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Brothers 2.0000% 4.1667% ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
MeesPierson Capital Corp. 0.0000% 4.1667% ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇.
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Royal Bank of Canada 0.0000% 4.1667% ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: 212-428-6460
Attention: ▇▇▇▇▇ ▇▇▇▇
Societe Generale 4.0000% 4.1667% ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
LIBOR Office/
The Industrial Bank of Japan, 0.0000% 2.5000% ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
National City Bank of Pennsylvania 4.0000% 2.5000% ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
FNB Bank 0.0000% 1.6667% ▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ Floating Rate Trust 20.0000% 0.0000% ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇
SCHEDULE III
CAPITAL STRUCTURE
SECTION PAGE
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms.......................................................................................2
1.2. Use of Defined Terms...............................................................................31
1.3. Cross-References...................................................................................32
1.4. Accounting and Financial Determinations............................................................32
ARTICLE II
COMMITMENTS, BORROWING AND ISSUANCE
PROCEDURES AND NOTES AND LETTERS OF CREDIT
2.1. Commitments........................................................................................32
2.1.1. Revolving Loan Commitment..........................................................................32
2.1.2. Letter of Credit Commitment........................................................................32
2.1.3. Tranche B Term Loan Commitment.....................................................................33
2.1.4. Lenders Not Permitted or Required to Make Loans....................................................33
2.1.5. Issuer Not Permitted or Required to Issue Letters of Credit........................................33
2.2. Reduction of the Commitment Amounts................................................................33
2.2.1. Optional...........................................................................................33
2.2.2. Mandatory Reduction of Revolving Loan Commitment Amount............................................34
2.3. Borrowing Procedure................................................................................34
2.4. Continuation and Conversion Elections..............................................................35
2.5. Funding............................................................................................35
2.6. Issuance Procedures................................................................................35
2.6.1. Other Lenders' Participation.......................................................................36
2.6.2. Disbursements......................................................................................36
2.6.3. Reimbursement......................................................................................37
2.6.4. Deemed Disbursements...............................................................................37
2.6.5. Nature of Reimbursement Obligations................................................................37
2.7. Register; Notes....................................................................................38
2.8. Incremental Facility...............................................................................39
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments; Application............................................................41
3.1.1. Repayments and Prepayments.........................................................................41
3.1.2. Application........................................................................................42
-i-
SECTION PAGE
3.2. Interest Provisions................................................................................43
3.2.1. Rates..............................................................................................43
3.2.2. Post-Maturity Rates................................................................................43
3.2.3. Payment Dates......................................................................................43
3.3. Fees...............................................................................................44
3.3.1. Commitment Fee.....................................................................................44
3.3.2. Agent's Fee........................................................................................44
3.3.3. Letter of Credit Fee...............................................................................44
ARTICLE IV
CERTAIN LIBO RATE AND OTHER PROVISIONS
4.1. LIBO Rate Lending Unlawful.........................................................................45
4.2. Deposits Unavailable...............................................................................45
4.3. Increased LIBO Rate Loan Costs, etc................................................................45
4.4. Funding Losses.....................................................................................46
4.5. Increased Capital Costs............................................................................46
4.6. Taxes..............................................................................................47
4.7. Payments, Computations, etc........................................................................49
4.8. Sharing of Payments................................................................................49
4.9. Setoff.............................................................................................50
4.10. Guaranty Provisions................................................................................50
4.10.1. Guaranty...........................................................................................50
4.10.2. Guaranty Absolute, etc.............................................................................51
4.10.3. Reinstatement, etc.................................................................................52
4.10.4. Waiver, etc........................................................................................52
4.10.5. Postponement of Subrogation, etc...................................................................52
ARTICLE V
CONDITIONS TO CREDIT EXTENSIONS
5.1. Initial Credit Extension...........................................................................53
5.1.1. Resolutions, etc...................................................................................53
5.1.2. Delivery of Notes..................................................................................53
5.1.3. Payment of Outstanding Indebtedness, etc...........................................................53
5.1.4. Due Diligence......................................................................................54
5.1.5. Obligor Pledge Agreement...........................................................................54
5.1.6. Guarantee..........................................................................................54
5.1.7. Solvency, etc......................................................................................54
5.1.8. Subordination Agreements...........................................................................54
5.1.9. Insurance..........................................................................................54
5.1.10. Closing Fees, Expenses, etc........................................................................54
5.1.11. Approvals..........................................................................................55
-ii-
SECTION PAGE
5.1.12. Management Agreements..............................................................................55
5.1.13. Opinions of Counsel................................................................................55
5.1.14. Franchise Agreements and FCC Licenses..............................................................55
5.1.15. Financial Information, etc.........................................................................55
5.1.16. Compliance Certificate.............................................................................55
5.1.17. Closing Date Certificate...........................................................................56
5.2. All Credit Extensions..............................................................................56
5.2.1. Compliance with Warranties, No Default, etc........................................................56
5.2.2. Credit Extension Request, etc......................................................................56
5.2.3. Satisfactory Legal Form............................................................................56
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1. Organization, etc..................................................................................57
6.2. Due Authorization, Non-Contravention, etc..........................................................57
6.3. Government Approval, Regulation, etc...............................................................57
6.4. Validity, etc......................................................................................57
6.5. Financial Information..............................................................................58
6.6. No Material Adverse Change.........................................................................58
6.7. Litigation, Labor Controversies, etc...............................................................58
6.8. Subsidiaries.......................................................................................58
6.9. Ownership of Properties............................................................................58
6.10. Taxes..............................................................................................59
6.11. Pension and Welfare Plans..........................................................................59
6.12. Environmental Warranties...........................................................................59
6.13. Regulations U and X................................................................................59
6.14. The Franchises.....................................................................................60
6.15. Patents, Copyrights, FCC Licenses, etc.............................................................60
6.16. Partnership Agreements; Operating Agreements; Management Agreement.................................60
6.17. Issuance of Affiliate Indebtedness and Intercompany Indebtedness; Status of
Obligations as Senior Indebtedness, etc............................................................60
6.18. Accuracy of Information............................................................................61
6.19. Solvency...........................................................................................61
6.20. Compliance with Laws...............................................................................62
6.21. Year 2000 Compliance...............................................................................62
ARTICLE VII
COVENANTS
7.1. Affirmative Covenants..............................................................................62
7.1.1. Financial Information, Reports, Notices, etc.......................................................62
7.1.2. Maintenance of Existence; Compliance with Laws, etc................................................65
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SECTION PAGE
7.1.3. Maintenance of Properties..........................................................................65
7.1.4. Insurance..........................................................................................66
7.1.5. Books and Records..................................................................................66
7.1.6. Environmental Law Covenant.........................................................................66
7.1.7. Rate Protection....................................................................................67
7.1.8. Subordination......................................................................................67
7.1.9. Use of Proceeds....................................................................................67
7.1.10. Additional Collateral..............................................................................67
7.1.11. Future Subsidiaries................................................................................68
7.1.12. Year 2000 Compliance...............................................................................68
7.1.13. Minority Owner Pledge Agreement. .................................................................69
7.2. Negative Covenants.................................................................................69
7.2.1. Business Activities................................................................................69
7.2.2. Indebtedness.......................................................................................69
7.2.3. Liens..............................................................................................70
7.2.4. Financial Condition and Operations.................................................................71
7.2.5. Investments........................................................................................72
7.2.6. Restricted Payments, etc...........................................................................73
7.2.7. Consolidation, Merger, etc.........................................................................74
7.2.8. Asset Swaps, Dispositions, etc.....................................................................74
7.2.9. Modification of Certain Agreements.................................................................75
7.2.10. Transactions with Affiliates.......................................................................75
7.2.11. Restrictive Agreements, etc........................................................................76
7.2.12. Management Fees....................................................................................76
7.2.13. Payment of Management Fees.........................................................................76
7.2.14. Conversion of Restricted Subsidiary to an Unrestricted Subsidiary..................................77
7.2.15. Conditions to Release of a Borrower, etc...........................................................77
7.2.16. Conditions to Formation of an Additional Borrower..................................................78
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Listing of Events of Default.......................................................................79
8.1.1. Non-Payment of Obligations.........................................................................79
8.1.2. Breach of Warranty.................................................................................79
8.1.3. Non-Performance of Certain Covenants and Obligations...............................................79
8.1.4. Non-Performance of Other Covenants and Obligations.................................................79
8.1.5. Default on Other Indebtedness......................................................................80
8.1.6. Judgments..........................................................................................80
8.1.7. Pension Plans......................................................................................80
8.1.8. Change in Control..................................................................................80
8.1.9. Bankruptcy, Insolvency, etc........................................................................80
8.1.10. Impairment of Security, etc........................................................................81
8.1.11. Failure of Subordination...........................................................................81
8.1.12. Failure to Obtain or Cessation of Authorization, etc...............................................81
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SECTION PAGE
8.1.13. Cancellation of Any Franchise Agreement............................................................82
8.2. Action if Bankruptcy...............................................................................82
8.3. Action if Other Event of Default...................................................................82
ARTICLE IX
THE AGENTS
9.1. Actions............................................................................................83
9.2. Funding Reliance, etc..............................................................................83
9.3. Exculpation........................................................................................84
9.4. Successor..........................................................................................84
9.5. Loans by Arranging Agents..........................................................................85
9.6. Credit Decisions...................................................................................85
9.7. Copies, etc........................................................................................85
9.8. Limitation on Duties...............................................................................85
9.9. Reliance by Administrative Agent...................................................................85
9.10. Defaults...........................................................................................86
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1. Waivers, Amendments, etc...........................................................................86
10.2. Notices............................................................................................87
10.3. Payment of Costs and Expenses......................................................................88
10.4. Indemnification....................................................................................88
10.5. Survival...........................................................................................89
10.6. Severability.......................................................................................90
10.7. Headings...........................................................................................90
10.8. Execution in Counterparts, Effectiveness, etc......................................................90
10.9. Governing Law; Entire Agreement....................................................................90
10.10. Successors and Assigns.............................................................................91
10.11. Sale and Transfer of Loans and Notes; Participations in Loans and Notes............................91
10.11.1. Assignments........................................................................................91
10.11.2. Participations.....................................................................................93
10.12. Other Transactions.................................................................................94
10.13. Limited Recourse...................................................................................94
10.14. Forum Selection and Consent to Jurisdiction........................................................95
10.15. Waiver of Jury Trial...............................................................................96
10.16. Release............................................................................................96
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SCHEDULE I - Disclosure Schedule
SCHEDULE II - Percentages and Administrative Information
SCHEDULE III - Capital Structure
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Tranche B Term Note
EXHIBIT B-1 - Form of Borrowing Request
EXHIBIT B-2 - Form of Issuance Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Lender Assignment Agreement
EXHIBIT E - Form of Compliance Certificate
EXHIBIT F - Form of Closing Date Certificate
EXHIBIT G-1 - Form of Intercompany Subordination Agreement
EXHIBIT G-2 - Form of Manager Subordination Agreement
EXHIBIT H - Form of Subsidiary Guaranty
EXHIBIT I - Form of Obligor Pledge Agreement
EXHIBIT J - Form of Officer's Solvency Certificate
EXHIBIT K - Form of Release Certificate
EXHIBIT L - Form of Joinder Agreement
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