EXECUTION COPY
8/3/98
AMENDED AND RESTATED LOAN AGREEMENT
AMONG
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.,
AS BORROWER,
NATIONSBANK, N.A.,
AS LEAD ARRANGER,
SALOMON BROTHERS HOLDING COMPANY INC,
AND ROYAL BANK OF CANADA,
AS ARRANGING AGENTS,
SALOMON BROTHERS HOLDING COMPANY INC,
AS DOCUMENTATION AGENT,
ROYAL BANK OF CANADA,
AS SYNDICATION AGENT,
THE LENDERS PARTY HERETO
AND
NATIONSBANK, N.A.,
AS ADMINISTRATIVE AGENT
Dated as of August 4, 1998
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
Atlanta, Georgia
AMENDED AND RESTATED LOAN AGREEMENT
AMONG
▇▇▇▇▇▇▇ COMMUNICATIONS, INC.,
AS BORROWER,
NATIONSBANK, N.A.,
AS LEAD ARRANGER,
SALOMON BROTHERS HOLDING COMPANY INC,
AND ROYAL BANK OF CANADA,
AS ARRANGING AGENTS,
SALOMON BROTHERS HOLDING COMPANY INC,
AS DOCUMENTATION AGENT,
ROYAL BANK OF CANADA,
AS SYNDICATION AGENT,
THE LENDERS PARTY HERETO
AND
NATIONSBANK, N.A.,
AS ADMINISTRATIVE AGENT
Dated as of August 4, 1998
WHEREAS, the Borrower and certain of the Lenders (the "Prior
Lenders") are parties to that certain Credit Agreement dated as of June 27,
1996, as amended (the "Prior Loan Agreement") among the Borrower, The
Toronto-Dominion Bank, PNC Bank, National Association and NationsBank, N.A.,
as Arranging Agents, PNC Bank, National Association, as Documentation Agent,
NationsBank, N.A., as Syndication Agent, the financial institutions parties
thereto, and Toronto Dominion (Texas), Inc., as Administrative Agent; and
WHEREAS, the Borrower has requested that the Prior Lenders consent to
certain amendments to the Prior Loan Agreement, as more fully set forth in
this Amended and Restated Loan Agreement; and
WHEREAS, the Prior Lenders have agreed to amend and restate the Prior
Loan Agreement in its entirety as set forth herein; and
WHEREAS, the Borrower acknowledges and agrees that (i) the
Obligations (as defined herein) represent, among other things, the amendment,
restatement, renewal, extension, consolidation and modification of the
Obligations (as defined in the Prior Loan Agreement) arising in connection
with the Prior Loan Agreement and the other Loan Documents (as defined in the
Prior Loan Agreement) executed in connection therewith; and (ii) the Loan
Documents (as defined herein) are intended to restructure, restate, renew,
extend, consolidate, amend and modify the Prior Loan Agreement and the other
Loan Documents (as defined in the Prior Loan Agreement) executed in connection
therewith; and
WHEREAS, the parties hereto intend that (i) the provisions of the
Prior Loan Agreement and the other Loan Documents (as defined in the Prior
Loan Agreement) executed in connection therewith, to the extent restructured,
restated, renewed, extended, consolidated, amended and modified hereby, are
hereby superseded and replaced by the provisions hereof and of the Loan
Documents (as defined herein); and (ii) the Notes (as hereinafter defined)
amend, renew, extend, modify, replace, are substituted for and supersede in
their entirety, but do not extinguish the indebtedness arising under the
promissory notes issued pursuant to the Prior Loan Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto,
the parties hereby amend and restate the Prior Loan Agreement as follows:
ARTICLE 1
Definitions
For the purposes of this Agreement:
"Administrative Agent" shall mean NationsBank, N.A., a national
banking association, acting as administrative agent for the Lenders and the
Arranging Agents.
"Administrative Agent's Office" shall mean the office of the
Administrative Agent located at NationsBank, N.A., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇ or such other office as may be designated pursuant to the
provisions of Section 11.1 hereof.
"Advance" or "Advances" shall mean amounts advanced by the Lenders to
the Borrower pursuant to Article 2 hereof on the occasion of any borrowing.
"Advance Purchase" shall mean any commercially reasonable transaction
or series of transactions whereby the Borrower purchases, leases, or otherwise
acquires income-producing cable television related assets prior to making an
upgrade in, or expansion, modification or repair to any other income-producing
cable television related assets for the purpose of making such upgrade,
expansion, modification or repair.
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"Affiliate" shall mean any Person directly or indirectly controlling,
controlled by, or under common control with, the Borrower. For purposes of
this definition, "control" when used with respect to any Person includes,
without limitation, the direct or indirect beneficial ownership of more than
five percent (5%) of the voting securities or voting equity of such Person or
the power to direct or cause the direction of the management and policies of
such Person, whether by contract or otherwise, including, without limitation,
the power to elect a majority of the directors or trustees of a corporation or
trust, as the case may be.
"Agreement" shall mean this Amended and Restated Loan Agreement, as
amended, modified, restated or supplemented from time to time.
"Agreement Date" shall mean August 4, 1998.
"AML Movie Studio Guaranties" shall mean those certain personal
guaranties, each dated November 19, 1994, relating to certain television cable
and satellite operations in Australia.
"AML Movie Studio Guaranty Liability" shall mean the aggregate amount
of all indemnification obligations of the Borrower or any Restricted
Subsidiary to ▇.▇. ▇▇▇▇▇▇▇ in respect of the AML Movie Studio Guaranties.
"Annual Excess Cash Flow" shall mean, as of the end of any fiscal
year of the Borrower, as determined based upon the audited annual financial
statements for such year required to be provided under Section 6.2 hereof, the
remainder of (a) Operating Cash Flow for such year, minus (b) the sum of the
following items for the Borrower and the Restricted Subsidiaries on a
consolidated basis for such year: (i) Total Interest Expense paid during such
period; (ii) Capital Expenditures made (net of any proceeds realized in
respect of damaged or destroyed capital assets or from the disposition of
obsolete or retired capital assets); (iii) payments of principal of Total Debt
scheduled to be made pursuant to the documents, instruments or agreements
evidencing such Total Debt; (iv) income taxes (without duplication) paid or
payable in cash during or with respect to such year; and (v) the lesser of (A)
cash or Cash Equivalents then held by the Borrower and the Restricted
Subsidiaries on a consolidated basis or (B) $5,000,000.
"Annualized Operating Cash Flow" shall mean an amount equal to
Operating Cash Flow for the most recent fiscal quarter for which financial
statements have been delivered pursuant to Section 6.1 or 6.2 hereof, times
four (4).
"Applicable Law" shall mean, in respect of any Person, all provisions
of constitutions, statutes, rules, regulations and orders of governmental
bodies or regulatory agencies applicable to such Person, including, without
limiting the foregoing, the Licenses, the Federal Communications Act of 1934,
as amended, and Title 47 of the United States Code, and all orders and decrees
of all courts and arbitrators in proceedings or actions to which the Person in
question is a party or by which it is bound.
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"Applicable Margin" shall mean the interest rate margin applicable to
Base Rate Advances and LIBOR Advances, as the case may be, in each case
determined in accordance with Section 2.3(f) hereof.
"Arranging Agents" shall mean, collectively, the Lead Arranger,
Salomon Brothers Holding Company Inc, and Royal Bank of Canada; and "Arranging
Agent" shall mean any one of the foregoing Arranging Agents.
"Australia Litigation" shall mean the case of ▇▇▇▇▇▇▇ Communications,
Inc. and ORS ats. Hadid, which commenced on February 2, 1998, before his
Honour Justice Lehane in the Federal Court of Australia, New South Wales
District Registry.
"Authorized Officer" shall mean any officer of the Borrower or any
Restricted Subsidiary holding the office of Vice President or above.
"Authorized Signatory" shall mean such senior personnel of the
Borrower as may be duly authorized and designated in writing by the Borrower
to execute documents, agreements and instruments on behalf of the Borrower.
"Available Commitment" shall mean, as of any date, an amount equal to
(a) the Commitment on such date, minus (b) the aggregate principal amount of
all Loans outstanding on such date.
"Base Rate" shall mean, at any time, the greater of (a) the rate of
interest adopted by NationsBank, N.A., as its reference rate for the
determination of interest rates for loans of varying maturities in United
States dollars to United States residents of varying degrees of
creditworthiness and being quoted at such time by NationsBank, N.A., as its
"prime rate," and (b) the sum of (i) the Federal Funds Rate, plus (ii)
one-half of one percent (1/2%). The Base Rate is not necessarily the lowest
rate of interest charged to borrowers of NationsBank, N.A.
"Base Rate Advance" shall mean an Advance which the Borrower requests
to be made as a Base Rate Advance or is reborrowed as a Base Rate Advance in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $5,000,000 and in integral multiples of
$1,000,000 in excess thereof, except for a Base Rate Advance which is in an
amount equal to the unused amount of the Commitment, which Advance may be in
such amount.
"Base Rate Basis" shall mean a simple interest rate equal to the sum
of (a) the Base Rate, plus (b) the Applicable Margin. The Base Rate Basis
shall be adjusted automatically as of the opening of business on the effective
date of each change in the Base Rate or the Applicable Margin to account for
such changes.
"Basic Subscriber" shall mean a dwelling unit, including an apartment
which is separately billed for cable television services within an apartment
building, in respect of which the Borrower or any of its Restricted
Subsidiaries has in effect an agreement to provide one or more of the basic
cable television subscription services offered by the Borrower or any of its
Restricted Subsidiaries and for which the Borrower or any of its Restricted
Subsidiaries has received at least one full month's payment at the rate
customarily charged by such Person within the applicable franchise area,
except for those dwelling units for which payment is more than sixty (60) days
past due, or for which notices of termination of service have been sent by the
Borrower or any of its Restricted Subsidiaries or by the customer. As to bulk
subscribers, such as hotels, motels, and apartments, billed on a bulk basis,
the number of Basic Subscribers of the Borrower and its Restricted
Subsidiaries shall be computed by dividing the monthly basic cable revenues
received by the Borrower and its Restricted Subsidiaries from any such bulk
subscribers by the average monthly subscription price received by the Borrower
and its Restricted Subsidiaries from other Basic Subscribers within the
portion of the System serving such bulk subscriber.
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"Borrower" shall mean ▇▇▇▇▇▇▇ Communications, Inc., a Delaware
corporation.
"Business Day" shall mean a day on which banks and foreign exchange
markets are open for the transaction of business required for this Agreement
in London, England; Dallas, Texas; and New York, New York, as relevant to the
determination to be made or the action to be taken.
"Capital Expenditures" shall mean, in respect of any Person,
expenditures for the purchase, repair, replacement or construction of fixed
assets, plant and equipment which are capitalized in accordance with GAAP.
"Capital Stock" shall mean, as applied to any Person, any capital
stock of such Person, regardless of class or designation, and all warrants,
options, purchase rights, conversion or exchange rights, voting rights, calls
or claims of any character with respect thereto.
"Capitalized Lease Obligation" shall mean that portion of any
obligation of a Person as lessee under a lease which at the time would be
required to be capitalized on the balance sheet of such lessee in accordance
with GAAP.
"Cash Equivalents" shall mean (a) marketable, direct obligations of
the United States of America, maturing within three hundred sixty-five (365)
days of the date of purchase; (b) commercial paper issued by corporations,
each of which conducts a substantial part of its business in the United States
of America, maturing within one hundred and eighty (180) days from the date of
the original issue thereof, and rated "A-1" or better by Standard and Poor's
Rating Group, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or "P-1" or
better by ▇▇▇▇▇'▇ Investors Service; (c) repurchase agreements maturing within
three hundred sixty-five (365) days of the date of purchase, which are issued
by any Lender or by any United States national or state bank having capital,
surplus and undivided profits totaling more than $250,000,000 and rated "A" or
better by Standard and Poor's Rating Group, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc., or "A-2" or better by ▇▇▇▇▇'▇ Investors Service; or (d)
certificates of deposit with maturities of two hundred seventy (270) days or
less from the date of acquisition and overnight bank deposits of any Lender or
of any commercial bank having capital and surplus in excess of $500,000,000.
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"Certificate of Financial Condition" shall mean a certificate of
financial condition of the Borrower substantially in the form of Exhibit A
attached hereto, and signed by an Authorized Signatory.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Commission" shall mean the Federal Communications Commission or any
successor thereto.
"Commitment" shall mean the several obligations of the Lenders to
advance the sum of up to $300,000,000 at any one time outstanding to the
Borrower pursuant to the terms hereof in accordance with their respective
Commitment Ratios, as such obligations may be increased pursuant to Section
2.13 hereof or reduced from time to time pursuant to the terms hereof.
"Commitment Ratios" shall mean the percentages in which the Lenders
are severally bound to satisfy the Commitment to make Advances to the
Borrower, which shall be determined for any Lender as of any date of
determination by dividing the Lender's Maximum Dollar Commitment by the
Commitment, which Commitment Ratios, Maximum Dollar Commitments, and other
information as of the date hereof are set forth in Schedule 14 hereto or as
may be modified in connection with assignments or increases in the Commitment
or as otherwise required hereunder. For any date of determination after the
date upon which the Commitment shall have terminated, the Commitment Ratios
shall be determined using the Commitment and Maximum Dollar Commitment as of
the date immediately prior to such termination.
"Contiguous Areas" shall mean those geographical areas which are
geographically contiguous to any geographical boundary of the System.
"Default" shall mean any Event of Default, and any of the events
specified in Section 8.1 hereof regardless of whether there shall have
occurred any passage of time or giving of notice or both that would be
necessary for such event to be an Event of Default.
"Default Rate" shall mean a simple per annum interest rate equal to
the sum of (a) the otherwise applicable Interest Rate Basis, plus (b) two
percent (2%). In the event there is no otherwise applicable Interest Rate
Basis, the Default Rate shall mean a simple per annum interest rate equal to
the sum of (i) Base Rate Basis, plus (ii) two percent (2%).
"Documentation Agent" shall mean Salomon Brothers Holding Company Inc.
"Dollar" or "$" shall mean (except where specifically designated
otherwise) lawful money of the United States of America.
"Environmental Laws" shall mean any and all applicable federal,
state, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees or requirements of any governmental authority
regulating, relating to or imposing liability or standards of conduct
concerning environmental protection matters, including without limitation,
Hazardous Materials, as now or may at any time hereafter be in effect.
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"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as in effect on the Agreement Date and as amended thereafter from time
to time.
"ERISA Affiliate" shall mean any Person whose employees, together
with employees of the Borrower or any Restricted Subsidiary, are treated as
employed by a single employer for purposes of Section 414 of the Code.
"Existing Notes" shall mean, collectively, (a) the unsecured 7-5/8%
Senior Notes due 2008, (b) the 8-3/8% Senior Notes due 2005, and (c) Existing
Subordinated Debt.
"Existing Subordinated Debt" shall mean, collectively, (a) the 1996
Senior Subordinated Debt and (b) the 1998 Senior Subordinated Debt.
"Event of Default" shall mean any of the events specified in Section
8.1 hereof, provided that any requirement for notice or lapse of time has been
satisfied.
"Federal Funds Rate" shall mean, as of any date, the weighted average
of the rates on overnight federal funds transactions with the 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, 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 the Administrative
Agent from three (3) federal funds brokers of recognized standing selected by
the Administrative Agent.
"GAAP" shall mean, as in effect from time to time, generally accepted
accounting principles in the United States, consistently applied.
"Guaranty", "Guaranteed," or "Guarantees," as applied to an
obligation, shall mean and include (a) a guaranty, direct or indirect, in any
manner, of any part or all of such obligation or (b) any other agreement,
direct or indirect, contingent or otherwise, the practical effect of which is
to assure in any way the payment or performance (or payment of damages in the
event of non-performance) of any part or all of such obligation, including,
without limiting the foregoing, any reimbursement obligations with respect to
outstanding letters of credit, but excluding guaranties by endorsement of
negotiable instruments for collection or deposit in the ordinary course of
business.
"Hazardous Materials" shall mean any hazardous materials, hazardous
wastes, hazardous constituents, hazardous or toxic substances, petroleum
products (including crude oil or any fraction thereof), or friable asbestos
containing materials defined or regulated as such in or under any
Environmental Law.
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"Indebtedness" shall mean, with respect to any Person, without
duplication, (a) all items which in accordance with GAAP would be included in
determining total liabilities as shown on the liability side of a balance
sheet of such Person, except (i) accounts payable which by their terms are
less than sixty (60) days past due, (ii) items of partners' or shareholders'
equity or Capital Stock or surplus or (iii) items of general contingency or
deferred tax reserves, (b) all direct or indirect obligations secured by any
Lien to which any property or asset owned by such Person is subject, whether
or not the obligation secured thereby shall have been assumed, (c) all
Capitalized Lease Obligations of such Person and all obligations of such
Person with respect to leases constituting part of a sale and lease-back
arrangement, (d) all obligations, contingent or otherwise, arising under
Guaranties issued by such Person, (e) all reimbursement obligations with
respect to outstanding letters of credit, and (f) all obligations of such
Person under Interest Rate Hedge Agreements.
"Indebtedness for Money Borrowed" shall mean, with respect to any
Person, money borrowed and Indebtedness represented by notes payable and
drafts accepted representing extensions of credit, all obligations evidenced
by bonds, debentures, notes or other similar instruments, all Indebtedness
upon which interest charges are customarily paid, all reimbursement
obligations with respect to outstanding letters of credit, and all
Indebtedness issued or assumed as full or partial payment for property or
services, whether or not any such notes, drafts, obligations or Indebtedness
represent Indebtedness for money borrowed. For purposes of this definition,
interest which is accrued but not paid on the original due date for such
interest shall be deemed Indebtedness for Money Borrowed. Where obligations
are evidenced by bonds, debentures, notes or other similar instruments whose
face amount exceeds the amount received by the Borrower with respect thereto,
only the amount received plus any debt discount amortized as of the
calculation date need be taken into account as Indebtedness for money
borrowed.
"Indemnitees" shall have the meaning assigned to such term in Section
5.10 hereof.
"Interest Period" shall mean, (a) in connection with any Base Rate
Advance, the period beginning on the date such Advance is made and ending on
the last day of the calendar quarter in which such Advance is made, provided,
however, that if a Base Rate Advance is made on the last day of any such
calendar quarter, it shall have an Interest Period ending on, and its Payment
Date shall be, the last day of the following such calendar quarter; and (b) in
connection with any LIBOR Advance, the term of such Advance selected by the
Borrower or otherwise determined in accordance with this Agreement.
Notwithstanding the foregoing, however, with respect to LIBOR Advances only,
(i) any Interest Period which would otherwise end on a day which is not a
Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day, (ii) any Interest Period
which begins on a day for which there is no numerically corresponding day in
the calendar month during which such Interest Period is to end shall (subject
to clause (i) above) end on the last day of such calendar month, and (iii) no
Interest Period shall extend beyond the Maturity Date or such earlier date as
would cause the Borrower to incur reimbursement obligations under Section 2.10
hereof in light of the Borrower's scheduled repayment obligations under
Section 2.7 hereof. Interest shall be due and payable with respect to any
Advance as provided in Section 2.3 hereof.
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"Interest Rate Basis" shall mean the Base Rate Basis or the LIBOR
Basis, as appropriate.
"Interest Rate Hedge Agreement" shall mean the obligations of any
Person pursuant to any arrangement with any other Person whereby, directly or
indirectly, such Person is entitled to receive from time to time periodic
payments calculated by applying either a floating or a fixed rate of interest
on a stated notional amount in exchange for periodic payments made by such
Person calculated by applying a fixed or a floating rate of interest on the
same notional amount and shall include, without limitation, interest rate
swaps, caps, floors, collars and similar agreements.
"Investments" shall have the meaning ascribed thereto in Section
7.6(a) hereof.
"Lead Arranger" shall mean NationsBank, N.A.
"Lenders" shall mean those financial institutions whose names are set
forth on the signature pages hereof as "Lenders," any assignees (but not
participants) thereof pursuant to and in accordance with Section 11.5 hereof
and any financial institution which becomes a lender pursuant to Section 2.13
hereof; and "Lender" shall mean any one of the foregoing Lenders.
"LIBOR" shall mean, for any Interest Period, the average (rounded
upward to the nearest one-sixteenth of one percent (1/16%)) of the interest
rates per annum at which deposits in United States dollars for such Interest
Period are offered to NationsBank, N.A. in the London interbank borrowing
market at approximately 11:00 a.m. (London, England time), two (2) Business
Days before the first day of such Interest Period, in an amount approximately
equal to the principal amount of, and for a length of time approximately equal
to the Interest Period for, the LIBOR Advance sought by the Borrower.
"LIBOR Advance" shall mean an Advance which the Borrower requests to
be made as a LIBOR Advance or which is reborrowed as a LIBOR Advance, in
accordance with the provisions of Section 2.2 hereof, and which shall be in a
principal amount of at least $5,000,000 and in integral multiples of
$1,000,000 in excess thereof.
"LIBOR Basis" shall mean a simple per annum interest rate equal to
the sum of (a) the quotient of (i) LIBOR divided by (ii) one minus the LIBOR
Reserve Percentage, stated as a decimal, plus (b) the Applicable Margin. The
LIBOR Basis shall be rounded upwards to the nearest one-sixteenth of one
percent (1/16%) and shall apply to Interest Periods of one (1), two (2), three
(3), six (6) and, with the prior consent of each of the Lenders, nine (9) and
twelve (12) months, and, once determined, shall remain unchanged during the
applicable Interest Period, except for changes to reflect adjustments in the
LIBOR Reserve Percentage and the Applicable Margin.
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"LIBOR Reserve Percentage" shall mean the percentage which is in
effect from time to time under Regulation D of the Board of Governors of the
Federal Reserve System, as such regulation may be amended from time to time,
as the maximum reserve requirement applicable with respect to Eurocurrency
Liabilities (as that term is defined in said Regulation D), whether or not any
Lender has any Eurocurrency Liabilities subject to such reserve requirement at
that time. The LIBOR Basis for any LIBOR Advance shall be adjusted as of the
effective date of any change in the LIBOR Reserve Percentage.
"Licenses" shall mean any rights, whether based upon any agreement,
statute, ordinance or otherwise, granted by any governmental authority to the
Borrower or any Restricted Subsidiary to own and operate cable television
systems, described, in form reasonably satisfactory to the Administrative
Agent, as of the Agreement Date on Schedule 1 attached hereto, and any other
such rights subsequently obtained by the Borrower or any Restricted
Subsidiary, together with any amendment, modification or replacement with
respect thereto.
"Lien" shall mean, with respect to any property, any mortgage, lien,
pledge, assignment, charge, security interest, title retention agreement,
levy, execution, seizure, attachment, garnishment or other encumbrance of any
kind in respect of such property, whether or not ▇▇▇▇▇▇, vested or perfected,
but excluding any negative pledge with respect to such property. For purposes
of this Agreement, the Borrower and the Restricted Subsidiaries shall be
deemed to own subject to a Lien any assets which they have acquired or hold
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement relating to any
such assets.
"Loan Documents" shall mean, without limitation, this Agreement, the
Notes, all Requests for Advances, all Notices of Increased Commitment, any
Interest Rate Hedge Agreements, and all other documents and agreements
executed or delivered in connection with or contemplated by this Agreement.
"Loans" shall mean, collectively, the loans made by the Lenders to
the Borrower pursuant to Section 2.1 hereof; and "Loan" shall mean any of the
foregoing Loans.
"Materially Adverse Effect" shall mean any materially adverse effect
upon the business, assets, liabilities, financial condition, or results of
operations of the Borrower and any of the Restricted Subsidiaries, taken as a
whole, or upon the ability of the Borrower or any of the Restricted
Subsidiaries to construct, operate and maintain the System, or to ensure
performance under the Licenses, this Agreement or any other Loan Document by
the Borrower or any of the Restricted Subsidiaries, resulting from either any
act, omission, situation, status, event or undertaking, or any combination or
series of acts, omissions, situations, statuses, events or undertakings.
"Maturity Date" shall mean March 31, 2006, or such earlier date as
payment of the Loans shall be due (whether by acceleration or otherwise).
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"Maximum Dollar Commitment" shall mean for any Lender as of any date
the maximum dollar amount such Lender is severally bound to advance to the
Borrower to satisfy such Lender's portion of the Commitment which amount may
be decreased by assignments made pursuant to Section 11.5 hereof, decreased on
a pro rata basis with respect to any reduction in the Commitment pursuant to
Section 2.5 hereof, or increased pursuant to Section 2.13 hereof.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Necessary Authorizations" shall mean all approvals and licenses
from, and all filings and registrations with, any governmental or other
regulatory authority, including, without limiting the foregoing, the Licenses
and all approvals, licenses, filings and registrations under the Federal
Communications Act of 1934, as amended, necessary in order to enable the
Borrower and the Restricted Subsidiaries to acquire, construct, maintain and
operate the System.
"Net Income" shall mean, as applied to any Person for any fiscal
period, the aggregate amount of net income (or net loss) of such Person, after
taxes, for such period as determined in accordance with GAAP.
"Net Proceeds" shall mean, with respect to any sale, lease, transfer,
or other disposition of the assets of the Borrower or the assets of or
interests in any of its Restricted Subsidiaries, the gross sales price for the
assets being sold (including, without limitation, any payments received for
non-competition covenants), net of (a) amounts reserved, if any, for taxes
payable with respect to the sale (after application of any available losses,
credits or offsets), (b) reasonable and customary transaction costs payable by
the Borrower or such Restricted Subsidiary in connection with such sale,
lease, transfer or other disposition of assets or interests, (c) reasonable
contingencies with respect to such sale, lease, transfer or other disposition
appropriately reserved for by the Borrower or such Restricted Subsidiary, and
(d) until actually received by the Borrower or such Restricted Subsidiary, any
portion of the sales price held in escrow or paid in installments or evidenced
by a non-compete agreement or covenant for which compensation is paid over
time. Upon receipt by the Borrower or any of its Restricted Subsidiaries of
amounts referred to in clause (d) above, such amounts shall be deemed to be
"Net Proceeds." "Net Proceeds" of any sale, lease, transfer or other
disposition of assets of or interests held by a Restricted Subsidiary in an
Unrestricted Subsidiary which is not a wholly-owned direct or indirect
Subsidiary of the Borrower shall be adjusted to reflect the aggregate
percentage ownership of such Unrestricted Subsidiary by the Borrower and the
Restricted Subsidiaries.
"1998 Senior Subordinated Debt" shall mean the unsecured 8-1/4%
Senior Subordinated Notes issued by the Borrower pursuant to that certain
Indenture dated as of February 5, 1998 between the Borrower and The Bank of
New York, as trustee, or any notes issued in replacement thereof pursuant to
the Registration Rights Agreement, dated January 30, 1998, entered into by
Borrower in connection with the original issuance thereof.
"1996 Senior Subordinated Debt" shall mean the unsecured 10-1/2%
Senior Subordinated Notes issued by the Borrower pursuant to that certain
Indenture dated as of June 15, 1996 between the Borrower and The Bank of New
York, as trustee.
-11-
"Notes" shall mean those certain revolving loan promissory notes in
the aggregate principal amount equal to the Commitment as in effect from time
to time, one such note issued to each of the Lenders by the Borrower, in
accordance with the Lenders' respective Commitment Ratios and each one
substantially in the form of Exhibit B attached hereto, and any extensions,
renewals, amendments, replacements or substitutions to any of the foregoing;
and "Note" shall mean any one of the foregoing Notes.
"Notice of Increased Commitment" shall mean each notice by the
Borrower of an increase in the Commitment pursuant to Section 2.13 hereof,
which notice shall be substantially in the form of Exhibit C attached hereto
and shall be delivered to the Administrative Agent and the Lenders.
"Obligations" shall mean (a) all payment and performance obligations
of the Borrower to the Lenders, the Administrative Agent and the Arranging
Agents, or any of them, under this Agreement and the other Loan Documents, as
the same may be amended from time to time, or as a result of making the Loans,
(b) all payment and performance obligations of all obligors (other than the
Borrower) to the Lenders, the Arranging Agents and the Administrative Agent,
or any of them, under the Loan Documents, as the same may be amended from time
to time, and (c) the obligation to pay an amount equal to the amount of any
and all damage which the Lenders, the Arranging Agents, and the Administrative
Agent, or any of them, may suffer by reason of a breach by the Borrower or any
other obligor of any obligation, covenant or undertaking with respect to this
Agreement or any other Loan Document.
"Operating Cash Flow" shall mean, for the Borrower and the Restricted
Subsidiaries on a consolidated basis in respect of any period, without
duplication, the remainder of (a) the sum of (i) Net Income (excluding any
gain on the sale of any assets or properties of the Borrower or any of the
Restricted Subsidiaries and any non-cash income of the Borrower or any of the
Restricted Subsidiaries), plus, (ii) to the extent deducted from Net Income,
(A) Total Interest Expense, (B) depreciation, (C) amortization, (D) deferred
income taxes, (E) cash income taxes paid, (F) other non-cash charges, and (G)
extraordinary losses, minus, (b) to the extent included in Net Income,
extraordinary income, all as determined in accordance with GAAP. Operating
Cash Flow shall be calculated for the Borrower and the Restricted Subsidiaries
on a consolidated basis after giving effect to any acquisitions and
dispositions of assets occurring during such period as if such transactions
had occurred on the first day of such period.
"Payment Date" shall mean the last day of any Interest Period.
"Permitted Liens" shall mean, as applied to any Person:
(a) any Lien in favor of the Administrative Agent, the
Lenders and the Arranging Agents (or the Administrative Agent on behalf of
such Persons) given to secure the Obligations;
-12-
(b) (i) Liens on real estate for real estate taxes not yet
delinquent and (ii) Liens for taxes, assessments, judgments, governmental
charges or levies or claims the non-payment of which is being diligently
contested in good faith by appropriate proceedings and for which adequate
reserves have been set aside on such Person's books, but only so long as no
foreclosure, distraint, sale or similar proceedings have been commenced with
respect thereto and remain unstayed for a period of thirty (30) days after
their commencement;
(c) Liens of carriers, warehousemen, mechanics, laborers and
materialmen incurred in the ordinary course of business for sums not yet due
or being diligently contested in good faith, if such reserve or appropriate
provision, if any, as shall be required by GAAP shall have been made
therefor;
(d) Liens incurred in the ordinary course of business in
connection with worker's compensation and unemployment insurance;
(e) Restrictions on the transfer of assets imposed by any of
the Licenses as presently in effect, the Federal Communications Act of 1934,
as amended, and any regulations thereunder or the States of Delaware or New
Jersey;
(f) Liens created under Pole Agreements on cables and other
property affixed to transmission poles;
(g) Easements, rights-of-way, restrictions and other similar
encumbrances on the use of real property which do not interfere with the
ordinary conduct of the business of such Person, or Liens incidental to the
conduct of the business of such Person or to the ownership of its properties
which were not incurred in connection with Indebtedness or other extensions
of credit and which do not in the aggregate materially detract from the
value of such properties or materially impair their use in the operation of
the business of such Person;
(h) Purchase money security interests which are perfected by
operation of law only for a period not in excess of ten (10) days after the
inception thereof and limited to Liens on assets so purchased;
(i) Liens securing Indebtedness permitted under Section
7.1(f) hereof to the extent incurred in connection with the acquisition of
any property or assets by the Borrower or any of the Restricted
Subsidiaries, and Liens securing Capitalized Lease Obligations permitted
under Section 7.1(f) hereof; provided, however, that
(1) such Lien shall attach only to the property or
asset acquired in such transaction and shall not extend to or cover
any other assets or properties of the Borrower or any of the
Restricted Subsidiaries; and
(2) the Indebtedness secured or covered by such
Lien shall not exceed the cost of the asset or property acquired and
shall not be renewed or extended by the Borrower or any of the
Restricted Subsidiaries;
-13-
(a) Liens arising under operating leases for leased
equipment; and
(b) Liens existing as of the Agreement Date as described on
Schedule 2 attached hereto.
"Person" shall mean an individual, corporation, partnership, limited
liability company, trust or unincorporated organization, or a government or
any agency or political subdivision thereof or, for the purpose of the
definition of "ERISA Affiliate," any trade or business.
"Plan" shall mean an employee benefit plan within the meaning of
Section 3(3) of ERISA maintained for employees of any Person or any affiliate
of such Person.
"Pole Agreements" shall mean the agreements between the Borrower or
any of the Restricted Subsidiaries and the parties referred to in Schedule 3
attached hereto, as more particularly described therein, and any other
agreement subsequently entered into by the Borrower or any of the Restricted
Subsidiaries permitting the Borrower or any of the Restricted Subsidiaries to
make use of the transmission poles or conduits of such parties in distributing
its cable television signals.
"Pro Forma Debt Service" shall mean, with respect to the Borrower and
the Restricted Subsidiaries on a consolidated basis for the four (4) fiscal
quarters immediately following the date of calculation, the sum of (a)
interest scheduled to accrue in respect of Total Debt, plus (b) payments of
principal scheduled to be paid on Total Debt, all in accordance with the
documents, instruments and agreements evidencing such Total Debt. For purposes
of calculating Pro Forma Debt Service (i) where any item of interest on any
Total Debt varies or depends upon a variable rate of interest (including,
without limitation, the Base Rate or LIBOR), such rate shall be assumed to
equal the rate in effect on the date of calculation thereof and (ii) the
principal amount outstanding under any revolving or line of credit facility
shall be assumed to be the outstanding principal balance thereunder on the
last day of the fiscal quarter immediately preceding the period in respect of
which the calculation of Pro Forma Debt Service is being determined or, if
less, the aggregate commitment under such revolving or line of credit facility
as of the date of calculation, in each case adjusted to give effect to any
mandatory commitment reductions which are scheduled to occur during such
period in respect of which the calculation of Pro Forma Debt Service is being
determined.
"Regulations" shall have the meaning ascribed thereto in Section
4.1(m) hereof.
"Reportable Event" shall have the meaning set forth in Title IV of
ERISA.
"Request for Advance" shall mean any certificate signed by an
Authorized Signatory of the Borrower requesting an Advance hereunder which
will increase the aggregate amount of the Loans outstanding hereunder, which
certificate shall be denominated a "Request for Advance," and shall be in
substantially the form of Exhibit D attached hereto. Each Request for Advance
shall, among other things, (a) specify the date of the Advance, which shall be
a Business Day, the amount of the Advance, the type of Advance and, with
respect to LIBOR Advances, the Interest Period selected by the Borrower, and
(b) state that there shall not exist, on the date of the requested Advance and
after giving effect thereto, a Default.
-14-
"Required Lenders" shall mean, at any time, (a) if there are no Loans
outstanding, Lenders the total of whose Commitment Ratios equals or exceeds
fifty-one percent (51%), or (b) if there are Loans outstanding, Lenders the
total principal amount of whose Loans outstanding equals or exceeds fifty-one
(51%) of the total principal amount of the Loans outstanding hereunder.
"Restricted Payment" shall mean (a) any direct or indirect
distribution, dividend or other payment (other than with Capital Stock of the
Borrower) to any Person (i) on account of any Capital Stock (whether common or
preferred) of, general or limited partnership interest in, or other equity
securities of or other ownership interests in, the Borrower or any of the
Restricted Subsidiaries (or of any warrants, options or other rights to
acquire the same) or (ii) in connection with any tax sharing agreement; (b)
any management, consulting or other similar fees, or any interest thereon,
payable by the Borrower to any Affiliate, or to any other Person; and (c) any
payment of principal, interest, premium, fees or other amounts payable in
respect of Subordinated Debt other than scheduled payments of interest in
respect of Subordinated Debt.
"Restricted Purchase" shall mean any payment (other than with Capital
Stock of the Borrower) on account of the purchase, redemption, defeasance or
other acquisition or retirement of any Capital Stock of, general or limited
partnership interest in, or other equity securities of, or other ownership
interest in, the Borrower or any Restricted Subsidiary (or of any warrants,
options or other rights to acquire the same) or any Subordinated Debt of the
Borrower or any Restricted Subsidiary.
"Restricted Subsidiaries" shall mean Suburban Cable TV Co. Inc., a
Pennsylvania corporation; LenComm, Inc., a California corporation; ▇▇▇▇▇▇▇
West, Inc., a California corporation; ▇▇▇▇▇▇▇ Atlantic, Inc., a New Jersey
corporation; ▇▇▇▇▇▇▇ New Castle County Partnership, a Delaware general
partnership; ▇▇▇▇▇▇▇ Newcastle County, Inc., a Delaware corporation; CAH,
Inc., a Pennsylvania corporation; any other wholly-owned Subsidiaries of the
Borrower which are solely engaged in businesses directly related to the cable
television business in the United States and which are acquired by the
Borrower or another Restricted Subsidiary in accordance with the terms of this
Agreement; and such other Subsidiaries of the Borrower as may be designated by
the Borrower as "Restricted Subsidiaries" with prior written notice to the
Administrative Agent.
"Senior Debt" shall mean, with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis as of any calculation date,
the sum, without duplication, of (a) Indebtedness for Money Borrowed other
than Subordinated Debt, plus (b) the deferred purchase price of property
(including, without limitation, Capitalized Lease Obligations and contingent
obligations), plus (c) the AML Movie Studio Guaranty Liability, all as
determined in accordance with GAAP.
-15-
"Senior Leverage Ratio" shall mean, for any period, the ratio of
Senior Debt as of the end of such period to Annualized Operating Cash Flow for
such period.
"Shareholders' Agreements" shall mean (i) that certain letter
agreement dated as of December 18, 1991 among H. F. (▇▇▇▇▇) ▇▇▇▇▇▇▇, Liberty
Media Corporation, ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Foundation, (ii) that certain Supplemental
Agreement dated as of December 15, 1981 among TCI Growth, Inc., a Nevada
corporation, H. F. and ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ Communications, Inc.
and that certain Joinder Agreement executed by LMC ▇▇▇▇▇▇▇, Inc., (iii) that
certain Amendment to Supplemental Agreement dated May 4, 1984 between ▇▇▇▇▇▇▇
Communications, Inc. and TCI Growth, Inc., (iv) that certain Agreement dated
July 1, 1990 between ▇.▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇ Foundation,
Telecommunications, Inc. and Liberty Media Corporation, (v) that certain
Agreement and Consent dated as of November 1, 1990 by and among TCI
Development Corporation, TCI Holdings, Inc., TCI Liberty, Inc., Liberty Cable,
Inc., ▇. ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ Communications, Inc., (vi) those certain
Irrevocable Proxies dated March 30, 1990 by ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, respectively, in favor of ▇. ▇. ▇▇▇▇▇▇▇, and
(vii) that certain Assignment and Assumption Agreement dated as of November 4,
1993 among Liberty Cable, Inc., a Wyoming corporation, Liberty Media
Corporation, a Delaware corporation, and LMC ▇▇▇▇▇▇▇, Inc., a Colorado
corporation.
"Solvent" shall mean, with respect to any Person on a particular
date, that on such date (i) the fair value of the property (tangible or
intangible) of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person, (ii)
the amount that will be required to pay the probable liabilities of such
Person on its debts as they become absolute and matured will not be greater
than the fair salable value of the assets of such Person at such time if sold
pursuant to an orderly sale, (iii) such Person is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and
other commitments as they mature in the normal course of business, (iv) such
Person does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and liabilities
mature, and (v) to the best of such Person's knowledge (after due inquiry),
and in its good faith reasonable judgment, such Person is not engaged in
business or a transaction, and is not about to engage in business or a
transaction, for which such Person's property would constitute unreasonably
small capital after giving due consideration to prevailing practices in the
industry in which such Person is engaged. In computing the amount of any
contingent liability at any time, it is intended that such liability will be
computed at the amount which, in light of all the facts and circumstances
existing at such time, represents the amount that might reasonably be expected
to become an actual or matured liability.
"Subordinated Debt" shall mean, for the Borrower and the Restricted
Subsidiaries on a consolidated basis as of any calculation date, all
Indebtedness for Money Borrowed permitted hereunder which is expressly
subordinated by its terms to the Obligations pursuant to subordination terms
satisfactory to the Required Lenders, including, without limitation, the
Existing Subordinated Debt.
-16-
"Subsidiary" shall mean, as applied to any Person, (a) any
corporation of which fifty percent (50%) or more of the outstanding stock
(other than directors' qualifying shares) having ordinary voting power to
elect a majority of its board of directors, regardless of the existence at the
time of a right of the holders of any class or classes of securities of such
corporation to exercise such voting power by reason of the happening of any
contingency, or any partnership of which fifty percent (50%) or more of the
outstanding partnership interests, is at the time owned by such Person, or by
one or more Subsidiaries of such Person, or by such Person and one or more
Subsidiaries of such Person, and (b) any other entity which is controlled or
capable of being controlled by such Person, or by one or more Subsidiaries of
such Person, or by such Person and one or more Subsidiaries of such Person,
whether by contract or otherwise.
"Syndication Agent" shall mean Royal Bank of Canada.
"System" shall mean, collectively, the cable television systems owned
by the Borrower and the Restricted Subsidiaries on the Agreement Date or
hereafter acquired by the Borrower or any of the Restricted Subsidiaries in
accordance with the terms and conditions of this Agreement.
"Total Debt" shall mean, with respect to the Borrower and the
Restricted Subsidiaries on a consolidated basis as of any calculation date,
without duplication, the sum of (a) Senior Debt, plus (b) Subordinated Debt,
plus (c) the principal amount outstanding under the Guaranties, including,
without limitation, the AML Movie Studio Guaranty Liability.
"Total Interest Expense" shall mean, with respect to the Borrower and
the Restricted Subsidiaries on a consolidated basis, the aggregate amount of
all interest expense and commitment fees in respect of Total Debt and the
portion of payments under Capitalized Lease Obligations which constitutes
imputed interest, in each case for the four (4) most recently completed fiscal
quarters, whether accrued or paid, and as determined in accordance with GAAP.
"Total Leverage Ratio" shall mean, for any period, the ratio of (a)
Total Debt as of the end of such period to (b) Annualized Operating Cash Flow
for such period.
"Unrestricted Subsidiaries" shall mean all Subsidiaries of the
Borrower which are not Restricted Subsidiaries.
"Year 2000 Compliant" shall have the meaning ascribed thereto in
Section 4.1(x) hereof.
"Year 2000 Problem" shall have the meaning ascribed thereto in
Section 4.1(x) hereof.
Each definition of an agreement in this Article 1 shall include such
agreement as amended from time to time with the prior written consent of the
Required Lenders, except as provided in Section 11.12 hereof.
-17-
ARTICLE 2
Loans
Section 2.1 The Loans. The Lenders hereby agree, severally in
accordance with their respective Commitment Ratios and not jointly, upon the
terms and subject to the conditions of this Agreement, to lend and relend to
the Borrower amounts which in the aggregate at any one time outstanding do not
exceed the amount of the Available Commitment as in effect from time to time
hereunder. Subject to the terms hereof, Advances under the Commitment may be
repaid and then reborrowed as provided in Sections 2.2(b)(ii) and (c)(ii)
hereof.
Section 2.2 Manner of Borrowing and Disbursement.
(a) Choice of Interest Rate, Etc. Any Advance shall, at the
option of the Borrower as provided in this Section 2.2, be made as a Base Rate
Advance or a LIBOR Advance; provided, however, that the Borrower may not
receive a LIBOR Advance pursuant to a reborrowing of an Advance under Section
2.2(b)(ii) or (c)(ii) hereof or otherwise after the occurrence and during the
continuance of an Event of Default hereunder. LIBOR Advances shall in all
cases be subject to Section 2.3(e) and Article 10 hereof. Any notice given to
the Administrative Agent in connection with a requested Advance hereunder
shall be given to the Administrative Agent prior to 11:00 a.m. (Dallas, Texas
time) in order for such Business Day to count toward the minimum number of
Business Days required.
(b) Base Rate Advances.
(i) Advances. The Borrower shall give the
Administrative Agent in the case of Base Rate Advances written notice
prior to 11:00 a.m. (Dallas, Texas time) on the date of any requested
Base Rate Advance (which notice shall be in the form of a Request for
Advance in the case of any Advance which would increase the aggregate
principal amount of the Loans outstanding), or telecopied notice
followed immediately by written notice (which notice shall be in the
form of an original Request for Advance in the case of any Advance
which would increase the aggregate principal amount of the Loans
outstanding); provided, however, that the Borrower's failure to
confirm any telecopied notice with written notice (whether in the
form of an original Request for Advance or otherwise) shall not
invalidate any notice so given.
(ii) Repayments and Reborrowings. The Borrower may
repay or prepay a Base Rate Advance without regard to its Payment
Date and (i) upon irrevocable written notice prior to 11:00 a.m.
(Dallas, Texas time) on the date of any requested repayment and
reborrowing, to the Administrative Agent, reborrow all or a portion
of the principal amount thereof as one (1) or more Base Rate
Advances, or, (ii) subject to the provisions of Section 2.3(e)
hereof, upon at least three (3) Business Days' irrevocable prior
written notice to the Administrative Agent, reborrow all or a portion
of the principal thereof as one or more LIBOR Advances, or (iii) upon
prior notice to the Administrative Agent, not reborrow all or any
portion of such Base Rate Advance. On the date indicated by the
Borrower, such Base Rate Advance shall be so repaid and, as
applicable, reborrowed.
-18-
(c) LIBOR Advances.
(i) Advances. Upon request, the Administrative
Agent, whose determination shall be conclusive, shall determine the
available LIBOR Bases and shall notify the Borrower of such LIBOR
Bases. The Borrower shall give the Administrative Agent in the case
of LIBOR Advances at least three (3) Business Days' irrevocable prior
written notice (which notice shall be in the form of a Request for
Advance in the case of any Advance which would increase the aggregate
principal amount of the Loans outstanding), or telecopied notice
followed immediately by written notice (which notice shall be in the
form of an original Request for Advance in the case of any Advance
which would increase the aggregate principal amount of the Loans
outstanding); provided, however, that the Borrower's failure to
confirm any telecopied notice with written notice (whether in the
form of an original Request for Advance or otherwise) shall not
invalidate any notice so given.
(ii) Repayments and Reborrowings. The Borrower
shall give the Administrative Agent at least three (3) Business
Days' prior written notice if all or a portion of any LIBOR Advance
outstanding on its Payment Date (i) is to be repaid and then
reborrowed in whole or in part as a LIBOR Advance, or (ii) is to be
repaid and not reborrowed. The Borrower shall give the
Administrative Agent at least one (1) Business Day's prior written
notice if all or a portion of any LIBOR Advance outstanding on its
Payment Date is to be repaid and then reborrowed as a Base Rate
Advance. Upon such Payment Date such LIBOR Advance will, subject to
the provisions hereof, be so repaid and, as applicable, reborrowed.
(d) Notification of Lenders. Upon receipt of a Request for
Advance, or a notice from the Borrower with respect to any outstanding Advance
prior to the Payment Date for such Advance, the Administrative Agent shall
promptly notify each Lender by telephone or telecopy of the contents thereof
and the amount of such Lender's portion of the Advance. Each Lender shall, not
later than 12:00 noon (Dallas, Texas time) on the date specified in such
notice, make available to the Administrative Agent at the Administrative
Agent's Office, or at such account as the Administrative Agent shall
designate, the amount of its portion of any such Advance which would increase
the aggregate principal amount of the Loans outstanding in immediately
available funds.
-19-
(e) Disbursement. Prior to 1:00 p.m. (Dallas, Texas time) on
the date of an Advance hereunder, the Administrative Agent shall, subject to
the satisfaction of the conditions set forth in Article 3 hereof, disburse the
amounts made available to the Administrative Agent by the Lenders (or as
otherwise provided below) in like funds by transferring the amounts so made
available (or as otherwise provided below) by wire transfer pursuant to the
Borrower's instructions. Unless the Administrative Agent shall have received
notice from a Lender prior to the date of any borrowing that such Lender will
not make available to the Administrative Agent such Lender's ratable portion
of such borrowing, the Administrative Agent may assume that such Lender has
made such portion available to the Administrative Agent on the date of such
borrowing and the Administrative Agent may, in its sole discretion and in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent such Lender shall not have so made
such ratable portion available to the Administrative Agent, such Lender agrees
to repay to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount
is made available to the Borrower until the date such amount is repaid to the
Administrative Agent, at the Federal Funds Rate for three (3) Business Days
and thereafter at the Base Rate. If such Lender shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Lender's Loan as part of such borrowing for purposes of this
Agreement. If such Lender does not repay such corresponding amount immediately
upon the Administrative Agent's demand therefor, the Administrative Agent
shall notify the Borrower and the Borrower shall immediately pay such
corresponding amount to the Administrative Agent. In the event that any Lender
fails to notify the Administrative Agent prior to the date of any borrowing
that such Lender will not make available to the Administrative Agent such
Lender's pro rata portion of any borrowing, such Lender (and not the Borrower)
shall be responsible to reimburse the Administrative Agent for any losses or
out-of-pocket expenses of the type described in Section 2.10 hereof incurred
by the Administrative Agent in conjunction with the Borrower's repayment of
amounts disbursed hereunder pursuant to the immediately preceding sentence.
The failure of any Lender to make the Loan to be made by it as part of any
borrowing shall not relieve any other Lender of its obligation, if any,
hereunder to make its Loan on the date of such borrowing, but no Lender shall
be responsible for any such failure of any other Lender. In the event that, at
any time when the Borrower is not in Default and the conditions to borrowing
have been satisfied and the Required Lenders have funded their respective
portions of a requested Advance, a Lender for any reason fails or refuses to
fund its portion of such Advance, then, until such time as such Lender has
funded its portion of such Advance, or all other Lenders have received payment
from the Borrower (whether by repayment or prepayment or otherwise) of
principal and interest in an aggregate amount equal to or greater than the
amount of principal and interest due in respect of such Advance, such
non-funding Lender shall not have the right (A) to vote regarding any issue on
which voting is required or advisable under this Agreement or any other Loan
Document (and the amount of the Loans of such Lender shall not be counted as
outstanding for purposes of determining "Required Lenders" hereunder) or (B)
to receive payments of principal, interest or fees from the Borrower, the
Administrative Agent or the other Lenders in respect of its Loans.
Section 2.3 Interest.
(a) On Base Rate Advances. Interest on each Base Rate
Advance shall be computed on the basis of a year of 365/366 days for the
actual number of days elapsed and shall be payable at the Base Rate Basis for
such Advance on the applicable Payment Date. Interest on Base Rate Advances
then outstanding shall also be due and payable on the Maturity Date.
-20-
(b) On LIBOR Advances. Interest on each LIBOR Advance shall
be computed on the basis of a 360-day year for the actual number of days
elapsed and shall be payable at the LIBOR Basis for such Advance in arrears on
the applicable Payment Date, and, in addition, if the Interest Period for a
LIBOR Advance exceeds three (3) months, interest on such LIBOR Advance shall
also be due and payable in arrears on each three (3) month anniversary of the
date of such LIBOR Advance during such Interest Period. Interest on LIBOR
Advances then outstanding shall also be due and payable on the Maturity Date.
(c) Interest if no Notice of Selection of Interest Rate
Basis. If the Borrower fails to give the Administrative Agent timely notice of
its selection of a LIBOR Basis, or if for any reason a determination of a
LIBOR Basis for any Advance is not timely concluded, the Base Rate Basis shall
apply to such Advance.
(d) Interest Upon Default. Immediately upon the occurrence
and during the continuance of an Event of Default, interest on the
outstanding principal balance of the Loans shall accrue at the Default Rate
from the date of such Event of Default. Such interest shall be payable on
the earlier of demand or the Maturity Date and shall accrue until the
earlier of (i) waiver or cure (to the satisfaction of the Required Lenders
or of all Lenders, as applicable) of the applicable Event of Default, (ii)
agreement by the Required Lenders to rescind the charging of interest at the
Default Rate, or (iii) payment in full of the Obligations. The Lenders shall
not be required to (1) accelerate the maturity of the Loans, (2) exercise
any other rights or remedies under the Loan Documents, or (3) give notice to
the Borrower of the decision to charge interest on the Loans at the Default
Rate in accordance herewith, prior to or in conjunction with the effective
date of the decision to charge interest at the Default Rate.
(e) LIBOR Contracts. At no time may the number of
outstanding LIBOR Advances exceed seven (7).
(f) Applicable Margin. With respect to any Advance, the
Applicable Margin shall be as set forth in the table set forth below based
upon the Total Leverage Ratio as of the end of the most recently completed
fiscal quarter of the Borrower. Changes to the Applicable Margin shall be
effective (i) with respect to an increase in the Applicable Margin, as of the
second (2nd) Business Day after the day on which the financial statements are
required to be delivered to the Administrative Agent and the Lenders pursuant
to Section 6.1 or 6.2 hereof, as the case may be; provided, however, that if
such financial statements are not delivered to the Administrative Agent and
the Lenders on or before the date specified in such Section, such increase
shall be effective as of the date specified in such Section for delivery of
the financial statements; and (ii) with respect to a decrease in the
Applicable Margin, as of the later of (A) the second (2nd) Business Day after
the day on which such financial statements are required to be delivered
pursuant to Section 6.1 or 6.2 hereof, as the case may be, and (B) the date on
which such financial statements are actually delivered to the Administrative
Agent and the Lenders.
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the Applicable the Applicable
If the Total Margin for Base Margin for LIBOR
Leverage Ratio is: then Rate Advances shall be and Advances shall be
------------------ ---------------------- -----------------
Greater than or equal to 6.50:1 0.500% 1.500%
Greater than or equal to 6.00:1, but 0.250% 1.250%
less than 6.50:1
Greater than or equal to 5.50:1, but 0.125% 1.125%
less than 6.00:1
Greater than or equal to 5.00:1, but 0.000% 0.875%
less than 5.50:1
Greater than or equal to 4.50:1, but 0.000% 0.750%
less than 5.00:1
Less than 4.50:1 0.000% 0.625%
(g) All interest on the Loans shall accrue as of the first
day of each Advance hereunder through but excluding the Payment Date for such
Advance.
Section 2.4 Commitment Fees. The Borrower agrees to pay to the
Lenders, in accordance with their respective Commitment Ratios, a commitment
fee on the aggregate unborrowed balance of the Available Commitment for each
day from the Agreement Date until the payment and performance, in full, of all
Obligations, and the termination of the Commitment, for each day on which the
Total Leverage Ratio is (1) greater than or equal to 5.50:1, at a rate of
three-eighths of one percent (3/8%) per annum, or (2) less than 5.50:1, at a
rate of one-quarter of one percent (1/4%) per annum. Such commitment fee shall
be computed on the basis of a year of 365/366 days for the actual number of
days elapsed, shall be payable quarterly in arrears on the last day of each
calendar quarter, commencing on the first such date following the Agreement
Date and on the Maturity Date, and shall be fully earned when due and
non-refundable when paid.
Section 2.5 Commitment Reductions.
(a) Optional. The Borrower may, without penalty, at any time
terminate or permanently reduce the Commitment by giving the Administrative
Agent and the Lenders at least three (3) Business Days' notice thereof;
provided, however, that any reduction shall reduce the Commitment in a
principal amount of at least $5,000,000 and an integral multiple of
$1,000,000. The Borrower shall make a repayment of the Loans outstanding under
the Commitment, plus accrued interest on such outstanding Loans, together with
any costs incurred on account of such repayment under Section 2.10 hereof, on
or before the effective date of the reduction of the Commitment, such that the
principal amount of the Loans outstanding under the Commitment after such
repayment does not exceed the Commitment as so reduced. The Borrower shall not
have any right to rescind any termination or reduction pursuant to this
Section 2.5(a).
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(b) Mandatory.
(i) Scheduled Reductions. Commencing on December
31, 2001, the Commitment (as then in effect) shall be automatically
and permanently reduced on the dates and by the percentages set
forth below:
Commitment Percentage
Reduction Date Reduction
-------------- ----------
December 31, 2001 5.000%
March 31, 2002, June 30, 2002,
September 30, 2002 and December 31, 2002 2.500%
March 31, 2003, June 30, 2003,
September 30, 2003, and December 31, 2003 3.750%
March 31, 2004, June 30, 2004,
September 30, 2004, and December 31, 2004 5.500%
March 31, 2005, June 30, 2005,
September 30, 2005, and December 31, 2005 7.000%
March 31, 2006 20.000%
(ii) Reductions from Net Proceeds of Asset Sales.
The Commitment shall also be automatically and permanently reduced
by an amount equal to the Net Proceeds of any sale, lease, transfer
or other disposition of assets of the Borrower or any of the
Restricted Subsidiaries (other than sales or other dispositions of
(A) cable television-related assets having an aggregate sales price
not to exceed (1) $3,000,000 in any fiscal year and (2) $10,000,000
in the aggregate prior to the Maturity Date, or (B) obsolete
equipment or other immaterial assets in the ordinary course having
an aggregate sales price not to exceed $2,000,000 in any fiscal
year), (x) which Net Proceeds are not reinvested in other
income-producing cable television-related assets of the Borrower or
any of the Restricted Subsidiaries within one (1) year of such sale,
lease, transfer or other disposition, or, (y) with respect to an
Advance Purchase, which amount equal to such Net Proceeds has not
been invested in other income-producing cable television related
assets of the Borrower or any of the Restricted Subsidiaries within
one (1) year immediately prior to such sale, lease, transfer or
other disposition; provided, however, that no reduction shall be
required under this Section 2.5(b)(ii) if the Total Leverage Ratio
at the time such repayment is required to be made is less than 5.50
to 1. Reductions in the Commitment prescribed by this Section
2.5(b)(ii) shall be effective on the first anniversary of the
applicable sale, lease, transfer or other disposition of assets and
applied to the Commitment on a pro rata basis to each mandatory
reduction in the Commitment scheduled to occur thereafter.
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(iii) Reductions Upon Issuance of Debt. In the
event that the Borrower issues Indebtedness permitted under Section
7.1(d) hereof, the Commitment shall also be automatically and
permanently reduced by an amount equal to the net proceeds of such
debt issuance; provided, however, that no reduction shall be required
under this Section 2.5(b)(iii) unless a Default or Event of Default
exists at the time of or is caused by such debt issuance. Reductions
in the Commitment prescribed by this Section 2.5(b)(iii) shall be
applied to the Commitment on a pro rata basis to each mandatory
reduction in the Commitment scheduled to occur thereafter.
Section 2.6 Prepayment. The principal amount of any Base Rate Advance
may be prepaid in full or in part at any time, without penalty and without
regard to the Payment Date for such Advance upon prior notice to the
Administrative Agent. LIBOR Advances may be prepaid prior to the applicable
Payment Date, upon three (3) Business Days' prior written notice to the
Administrative Agent; provided, however, that the Borrower shall reimburse the
Lenders on the earlier of demand or the Maturity Date, for any loss or
out-of-pocket expense incurred by the Lenders in connection with such
prepayment, as set forth in Section 2.10. Any notice of prepayment shall be
irrevocable and all amounts prepaid on the Loans shall be applied first to
interest and fees and other amounts due hereunder, and then to principal.
Partial prepayments shall be in a principal amount of at least $2,000,000 and
integral multiples of $1,000,000. Upon receipt of any notice of prepayment,
the Administrative Agent shall promptly notify each Lender of the contents
thereof by telephone or telecopy and of such Lender's portion of the
prepayment.
Section 2.7 Repayment.
(a) Payments Upon Commitment Reductions. The Borrower shall
make a repayment of the Loans outstanding under the Commitment, plus accrued
interest on the portion of such Loans required to be repaid, together with any
costs incurred on account of such repayment under Section 2.10 hereof, on or
before the effective date of each reduction of the Commitment, such that the
principal amount of the Loans outstanding under the Commitment after such
repayment does not exceed the Commitment as so reduced.
(b) Repayments from Net Proceeds of Asset Sales. The
Borrower shall make a repayment of the Loans outstanding under the Commitment
to the extent that the Borrower is required to reduce the Commitment pursuant
to Section 2.5(b)(ii) hereof.
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(c) Repayments Upon Issuance of Debt. In the event that the
Borrower issues Indebtedness permitted under Section 7.1(d) hereof, the
Borrower shall make a repayment of the Loans outstanding under the Commitment
in an amount equal to the net proceeds of such debt issuance.
(d) Maturity Date. A final payment of all Obligations then
outstanding shall be due and payable on the Maturity Date.
Section 2.8 Notes; Loan Accounts.
(a) The Loans shall be repayable in accordance with the
terms and provisions set forth herein, and shall be evidenced by the Notes.
One Note shall be issued by the Borrower to each Lender and payable to the
order of such Lender in accordance with the respective Commitment Ratio of
such Lender, and each Note shall be duly executed and delivered by the
Authorized Signatories.
(b) Each Lender may open and maintain on its books in the
name of the Borrower a loan account with respect to the Loans and interest
thereon. The records of a Lender with respect to the loan account maintained
by it shall be prima facie evidence of the Loans and accrued interest thereon.
Section 2.9 Manner of Payment.
(a) Each payment (including any prepayment) by the Borrower
on account of the principal of or interest on the Loans, commitment fees, and
any other amount owed to the Lenders or the Administrative Agent under this
Agreement or the other Loan Documents shall be made not later than 11:00 a.m.
(Dallas, Texas time) on the date specified for payment under this Agreement to
the Administrative Agent at the Administrative Agent's Office, for the account
of the Lenders and the Administrative Agent, or any of them, as the case may
be, in lawful money of the United States of America in immediately available
funds. Any payment received by the Administrative Agent after 11:00 a.m.
(Dallas, Texas time) shall be deemed received on the next Business Day.
Receipt by the Administrative Agent of any payment intended for any Lender or
the Administrative Agent hereunder prior to 11:00 a.m. (Dallas, Texas time) on
any Business Day shall be deemed to constitute receipt by such Lender or the
Administrative Agent (as appropriate) on such Business Day. In the case of a
payment for the account of a Lender, the Administrative Agent will promptly
thereafter distribute the amount so received in like funds to such Lender. If
the Administrative Agent shall not have received any payment from the Borrower
as and when due, the Administrative Agent will promptly notify the Lenders
accordingly. If any payment under this Agreement or any of the Notes shall be
specified to be made on a day which is not a Business Day, such payment shall
be made on the next succeeding day which is a Business Day, and such extension
of time shall in such case be included in computing interest and fees, if any,
due and payable on such next succeeding Business Day.
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(b) The Borrower agrees to pay principal, interest, fees and
all other amounts due hereunder or under the Notes or the other Loan Documents
without set-off or counterclaim or any deduction whatsoever.
(c) Prior to the acceleration of the Loans under Section 8.2
hereof, if some but less than all amounts due from the Borrower are received
by the Administrative Agent, the Administrative Agent shall distribute such
amounts in the following order of priority, all in accordance where applicable
with the Commitment Ratios: (i) to the costs and expenses, if any, incurred by
the Administrative Agent in the collection of such amounts under this
Agreement; (ii) to the payment of all fees then due and payable hereunder;
(iii) to the payment of interest then due and payable on the Loans; (iv) to
the payment of all other amounts not otherwise referred to in this Section
2.9(c) then due and payable hereunder or under the Notes or the other Loan
Documents; and (v) to the payment of principal then due on the Loans
outstanding, which payment shall be applied against outstanding Advances in
the following order of priority: (A) Advances, the Interest Period for which
is expiring concurrently with such payment, (B) other Base Rate Advances, and
(C) other LIBOR Advances. Subsequent to the acceleration of the Loans under
Section 8.2 hereof, all amounts received from any source whatsoever by the
Administrative Agent or any of the Lenders with respect to the Borrower shall
be paid to and distributed by the Administrative Agent in the manner provided
in Section 2.11(c) hereof.
(d) Prior to the date on which any Person becomes a Lender
hereunder, and from time to time thereafter if required by law due to a change
in circumstances or if reasonably requested by the Borrower or the
Administrative Agent (unless such Lender is unable to do so by reasons of
change in law or otherwise), each Lender organized under the laws of a
jurisdiction outside the United States shall provide the Administrative Agent
and the Borrower with an IRS Form 4224 or Form 1001 or other applicable form,
certificate or document prescribed by the Internal Revenue Services certifying
as to such Lender's entitlement to full exemption from United States
withholding tax with respect to all payments to be made to such Lender
hereunder and under any Note. Unless the Borrower and the Administrative Agent
have received forms or other documents satisfactory to them indicating that
payments hereunder or under any Note are not subject to United States
withholding tax (or there is a change in law preventing delivery thereof), the
Borrower or the Administrative Agent shall, in the case of payments to or for
any Lender organized under the law of a jurisdiction outside the United
States, (i) withhold taxes from such payments at the applicable statutory
rate, or at a rate reduced by an applicable tax treaty (provided that the
Borrower and the Administrative Agent have received forms or other documents
satisfactory to them indicating that such reduced rate applies) and (ii) pay
such Lender such payment net of any taxes withheld. To the extent that the
Borrower is obligated hereunder, the Borrower shall provide evidence that such
taxes of any nature whatsoever in respect of this Agreement, any Loan or any
Note shall have been paid to the appropriate taxing authorities by delivery to
the Lender on whose account such payment was made of the official tax receipts
or notarized copies of such receipts within thirty (30) days after payment of
such tax. If the Borrower fails to make any such payment when due, the
Borrower shall indemnify the Lenders for any incremental taxes, interest or
penalties that may become payable by any Lender as a result of any such
failure.
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Section 2.10 Reimbursement.
(a) Whenever any Lender shall sustain or incur any losses or
out-of-pocket expenses in connection with (i) failure by the Borrower to
borrow any LIBOR Advance after having given notice of its intention to borrow
in accordance with Section 2.2 hereof (whether by reason of the Borrower's
election not to proceed or the non-fulfillment of any of the conditions set
forth in Article 3 hereof), or (ii) prepayment or repayment of any LIBOR
Advance in whole or in part (including a prepayment pursuant to Sections 10.2
and 10.3(b) hereof) prior to its Payment Date, the Borrower agrees to pay to
such Lender, upon the earlier of such Lender's demand or the Maturity Date, an
amount sufficient to compensate such Lender for all such losses and
out-of-pocket expenses. Such Lender's good faith determination of the amount
of such losses or out-of-pocket expenses, absent manifest error, shall be
binding and conclusive. Upon the request of the Borrower, any Lender seeking
compensation hereunder shall provide the Borrower with its calculation of such
losses and out-of-pocket expenses.
(b) Loss subject to reimbursement hereunder shall be any
loss incurred by any Lender in connection with the re-employment of funds
prepaid, repaid, not borrowed, or paid, as the case may be, and the amount of
such loss shall be the excess, if any, of (i) interest or other costs to such
Lender of the deposit or other sources of funding used to make any such LIBOR
Advance for the remainder of its Interest Period over (ii) the interest which
would be earned by such Lender if the amount of such LIBOR Advance were
redeployed in the London interbank borrowing market for the remainder of its
putative Interest Period.
Section 2.11 Pro Rata Treatment.
(a) Advances. Each Advance from the Lenders under this
Agreement shall be made pro rata on the basis of their respective Commitment
Ratios.
(b) Payments Prior to Declaration of Event of Default. Prior
to the acceleration of the Loans under Section 8.2 hereof, each payment and
prepayment of the Loans, and, except as provided in Section 2.2(e) and Article
10 hereof, each payment of interest on the Loans, shall be made to the Lenders
pro rata on the basis of their respective unpaid principal amounts outstanding
immediately prior to such payment or prepayment. If any Lender shall obtain
any payment (whether involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Loans made by it in excess of its
ratable share of the Loans under its Commitment Ratio, such Lender shall
forthwith purchase from the other Lenders such participations in the Loans
made by them as shall be necessary to cause such purchasing Lender to share
the excess payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent
of such recovery. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.11(b) may, to the
fullest extent permitted by law, exercise all its rights of payment
(including, without limitation, the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
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(c) Payments Subsequent to Declaration of Event of Default.
Subsequent to the acceleration of the Loans under Section 8.2 hereof,
payments and prepayments made to the Administrative Agent or the Lenders or
otherwise received by any of them (from realization on collateral for the
Obligations or otherwise) shall be distributed as follows: first, to the
Administrative Agent's costs and expenses, if any, incurred in connection
with the collection of such payment or prepayment, including, without
limitation, any costs incurred in connection with the sale or disposition of
any collateral for the Obligations; second, to the payment of fees then due
and payable to the Lenders and any costs and expenses, if any, incurred by
any of the Lenders under Section 11.2(c) hereof; third, to any unpaid
interest which may have accrued on the Obligations; fourth, to any unpaid
principal of the Obligations; fifth, to damages incurred by the
Administrative Agent or any Lender by reason of any breach hereof or of any
other Loan Document; and sixth, upon satisfaction in full of all
Obligations, to the Borrower or as otherwise required by law.
Section 2.12 Capital Adequacy. If any Lender shall determine that the
adoption of any Applicable Law regarding the capital adequacy of banks or bank
holding companies, or any change in any Applicable Law or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Lender with any request or
directive regarding capital adequacy (whether or not having the force of law)
of any such governmental authority, central bank or comparable agency, has the
effect of reducing the rate of return on such Lender's capital as a
consequence of its commitment or its obligations to fund or maintain Advances
hereunder to a level below that which it could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's
policies with respect to capital adequacy immediately before such adoption,
change or compliance and assuming that such Lender's capital was fully
utilized prior to such adoption, change or compliance) by an amount deemed by
such Lender in good faith to be material and such Lender has attempted in good
faith, but without success, to mitigate or eliminate such reduction in its
rate of return by assigning its Loans and its portion of the Commitment to an
affiliate of such Lender if such assignment would be reasonable under the
circumstances as determined by such Lender in good faith and would not be
otherwise disadvantageous to such Lender, then, upon the earlier of demand by
such Lender or the Maturity Date, the Borrower shall immediately pay to such
Lender, such additional amounts as shall be sufficient to compensate such
Lender for such reduced return, together with interest on such amount from the
fourth (4th) day after the date of demand or the Maturity Date, as applicable,
until payment in full thereof at the Default Rate. A certificate of such
Lender setting forth the amount to be paid to such Lender by the Borrower as a
result of any event referred to in this paragraph shall, absent manifest
error, be conclusive, and, at the Borrower's request, such Lender shall set
forth the basis for such determination.
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Section 2.13 Increases in the Commitment. Subject to the terms and
conditions of this Agreement, the Borrower may request an increase in the
Commitment on any Business Day on or prior to December 28, 2001. The amount of
any such increase in the Commitment (each such increase, a "Commitment
Increase") shall be in integral multiples of $25,000,000 and the aggregate
amount of all such Commitment Increases shall not exceed $250,000,000. The
effectiveness of any such Commitment Increase shall be subject to the
satisfaction of each of the conditions precedent to Commitment Increase set
forth in Section 3.3 hereof. The decision of any Lender to participate in a
Commitment Increase shall be at such Lender's sole discretion. Any such
Commitment Increase shall be effective on the date of delivery by the Borrower
to the Administrative Agent of a Notice of Increased Commitment (each such
date, a "Commitment Increase Effective Date"). On each such Commitment
Increase Effective Date, the "Maximum Dollar Amount" of each Lender
participating in each such Commitment Increase shall automatically increase by
such Lender's portion of the Commitment Increase as set forth in the Notice of
Increased Commitment and the dollar amount contained in the definition of
"Commitment" set forth in Article 1 hereof shall automatically be increased by
the amount of such Commitment Increase as set forth in such Notice of
Increased Commitment.
ARTICLE 3
Conditions Precedent
Section 3.1 Conditions Precedent to Initial Advance. The obligation
of the Lenders to undertake the Commitment and to make the initial Advance
under the Commitment is subject to the prior fulfillment of each of the
following conditions:
(a) The Administrative Agent or the Lenders, as appropriate,
shall have received each of the following, in form and substance satisfactory
to the Administrative Agent and the Lenders:
(i) duly executed Notes;
(ii) opinions of corporate and special FCC counsel
to the Borrower and the Restricted Subsidiaries, addressed to each
Lender and the Administrative Agent and satisfactory to the
Administrative Agent and the Lenders, dated the Agreement Date, and
the Borrower hereby instructs such counsel to deliver such opinions
to the Administrative Agent and the Lenders;
(iii) the loan certificate of the Borrower, in
substantially the form attached hereto as Exhibit E, including a
certificate of incumbency with respect to each Authorized Signatory,
together with appropriate attachments which shall include without
limitation, the following items: (A) a copy of the Certificate of
Incorporation of the Borrower, certified to be true, complete and
correct by the Delaware Secretary of State, (B) a true, complete and
correct copy of the Bylaws of the Borrower, as in effect on the date
hereof, (C) a true, complete and correct copy of the resolutions of
the Borrower authorizing the execution, delivery and performance of
this Agreement and the other Loan Documents to which the Borrower is
party, (D) certificates of good standing from appropriate
jurisdictions for the Borrower, (E) a true and correct list of all
Licenses granted to the Borrower and the Restricted Subsidiaries,
together with all amendments thereto through the date hereof and
certified to be in full force and effect, (F) a true and correct list
of all Pole Agreements granted to the Borrower and the Restricted
Subsidiaries, together with all amendments thereto through the date
hereof and certified to be in full force and effect;
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(iv) a Master Assignment and Assumption Agreement
among the Prior Lenders and the Lenders;
(v) financial projections with respect to the
Borrower and the Restricted Subsidiaries;
(vi) a letter from New Jersey counsel to the
Borrower with respect to regulatory issues;
(vii) a duly executed Certificate of Financial
Condition of the Borrower;
(viii) copies of insurance binders or certificates
covering the assets of the Borrower and the Restricted Subsidiaries
and otherwise meeting the requirements of Section 5.5 hereof;
(ix) opinion of Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇
LLP, special counsel to the Arranging Agents, addressed to the
Administrative Agent and the Lenders, and the Arranging Agents hereby
instruct such counsel to deliver such opinion to the Administrative
Agent and the Lenders; and
(x) all such other documents as the Administrative
Agent or any Lender may reasonably request, certified by an
appropriate governmental official or an Authorized Signatory if so
requested.
(b) The Lenders shall have received evidence reasonably
satisfactory to the Administrative Agent and the Lenders that all Necessary
Authorizations, including all necessary consents to the closing of this
Agreement from the grantors of the Licenses, have been obtained or made, are
in full force and effect and are not subject to any pending or threatened
reversal or cancellation, and the Administrative Agent and the Lenders shall
have received a certificate of an Authorized Signatory so stating.
(c) The Administrative Agent and the Lenders shall have
received such fees as are due and payable to them on the Agreement Date.
(d) There shall not have occurred any event which could have
or which has had a Materially Adverse Effect since December 31, 1997, except
for any such event affecting the cable television industry generally.
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Section 3.2 Conditions Precedent to Each Advance. The obligation of
the Lenders to make each Advance, including, without limitation, the initial
Advance, is subject to the fulfillment of each of the following conditions
immediately prior to or contemporaneously with such Advance:
(a) With respect to Advances which, if funded, would
increase the aggregate amount of the Loans outstanding hereunder, all of the
representations and warranties of the Borrower under this Agreement, which,
pursuant to Section 4.2 hereof, are made at and as of the time of such
Advance, shall be true and correct at such time in all material respects, both
before and after giving effect to the making of the Advance and application of
the proceeds of the Advance, except to the extent they relate solely to an
earlier date or time period;
(b) The incumbency of the Authorized Signatories shall be as
stated in the certificate of incumbency contained in the Borrower's loan
certificate delivered pursuant to Section 3.1(a) hereof or as subsequently
modified and reflected in a certificate of incumbency delivered to the
Administrative Agent and the Lenders;
(c) With respect to Advances which, if funded, would
increase the aggregate amount of Loans outstanding hereunder, the
Administrative Agent and the Lenders shall have received a duly executed
Request for Advance, which shall certify the Borrower's compliance with
Sections 7.8, 7.9, 7.10, 7.14 and 7.15 hereof, both before and after giving
effect to the making of the requested Advance; and
(d) With respect to Advances which, if funded, would
increase the aggregate amount of the Loans outstanding hereunder, there shall
not exist, on the date of the making of the Advance and after giving effect
thereto, a Default hereunder, and, since the date of the most recent audited
annual financial statements of the Borrower and the Restricted Subsidiaries
referred to in Section 4.1(k) or required to have been delivered to the
Administrative Agent and the Lenders pursuant to Section 6.2 hereof, there
shall not have occurred any event which could reasonably be expected to have
or which has had a Materially Adverse Effect, except for any such event
affecting the cable television industry generally.
Section 3.3 Conditions Precedent to Each Commitment Increase. The
effectiveness of any Commitment Increase is subject to the fulfillment of each
of the following conditions immediately prior to or contemporaneously with
such Commitment Increase:
(a) All of the representations and warranties of the
Borrower under this Agreement, which, pursuant to Section 4.2 hereof, are made
at and as of the time of such Commitment Increase, shall be true and correct
at such time in all material respects, both before and after giving effect to
the Commitment Increase, except to the extent they relate solely to an earlier
date or time period;
(b) The incumbency of the Authorized Signatories shall be as
stated in the certificate of incumbency contained in the Borrower's loan
certificate delivered pursuant to Section 3.1(a) hereof or as subsequently
modified and reflected in a certificate of incumbency delivered to the
Administrative Agent and the Lenders;
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(c) The Administrative Agent and the Lenders shall have
received a duly executed Notice of Increased Commitment, which shall certify
the Borrower's compliance with Sections 7.8, 7.9, 7.10, 7.14 and 7.15 hereof,
both before and after giving effect to the Commitment Increase; and
(d) There shall not exist, on the date of the Commitment
Increase and after giving effect thereto, a Default hereunder, and, since the
date of the most recent audited annual financial statements of the Borrower
and the Restricted Subsidiaries referred to in Section 4.1(k) or required to
have been delivered to the Administrative Agent and the Lenders pursuant to
Section 6.2 hereof, there shall not have occurred any event which could
reasonably be expected to have or which has had a Materially Adverse Effect,
except for any such event affecting the cable television industry generally.
ARTICLE 4
Representations and Warranties
Section 4.1 Representations and Warranties. The Borrower hereby
agrees, represents and warrants to the Administrative Agent and the Lenders
that:
(a) Organization; Ownership; Power; Qualification;
Capitalization. The Borrower is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The Borrower has
the corporate power and authority to own its properties and to carry on its
business as now being and hereafter proposed to be conducted. The Borrower is
duly qualified, in good standing and authorized to do business in each
jurisdiction in which the character of its properties or the nature of its
businesses requires such qualification or authorization.
(b) Authorization; Enforceability. The Borrower has the
corporate power and has taken all necessary corporate action to authorize it
to borrow hereunder, to execute, deliver and perform this Agreement and each
of the other Loan Documents to which it is a party in accordance with their
respective terms, and to consummate the transactions contemplated hereby and
thereby. This Agreement has been duly executed and delivered by the Borrower
and is, and each of the other Loan Documents to which the Borrower is party
is, a legal, valid and binding obligation of the Borrower enforceable in
accordance with its terms, except as such enforceability may be limited by (a)
bankruptcy, insolvency, reorganization, arrangement, moratorium or similar
laws of general applicability affecting the enforcement of creditors' rights
and (b) the application of general principles of equity.
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(c) Subsidiaries; Authorization. Except for changes
permitted by this Agreement, Schedule 4 sets forth a true and complete list of
each of the Borrower's Subsidiaries and accurately designates as of the
Agreement Date whether each such Subsidiary is a Restricted Subsidiary or an
Unrestricted Subsidiary. The Borrower has or will have delivered to the
Administrative Agent, an updated Schedule 4 within fifteen (15) days after any
changes thereto. Each of the Restricted Subsidiaries is a corporation or
partnership, as the case may be, duly organized, validly existing, and in good
standing under the laws of the state of its organization, and has the power
and authority, corporate, partnership or otherwise, to own its properties and
to carry on its business as now being and hereafter proposed to be conducted.
Each Restricted Subsidiary is duly qualified, in good standing and authorized
to do business in each jurisdiction in which the character of its properties
or the nature of its business requires such qualification or authorization.
The outstanding shares of Capital Stock of each Restricted Subsidiary have
been duly authorized and validly issued and are fully paid and non-assessable,
and all of the outstanding shares of each class of the Capital Stock of each
Restricted Subsidiary are owned, directly or indirectly, beneficially and of
record, by the Borrower, free and clear of all Liens. None of the Restricted
Subsidiaries has any stock or securities or other ownership interests
convertible into or exchangeable for any shares of its Capital Stock or other
ownership interests, nor are there any preemptive or similar rights to
subscribe for or to purchase, or any other rights to subscribe for or to
purchase, or any options for the purchase of, or any agreements providing for
the issuance (contingent or otherwise) of, or any calls, commitments, or
claims of any character relating to, any such Capital Stock or other ownership
interests, or any stock or securities convertible into or exchangeable for any
such Capital Stock or other ownership interests. None of the Restricted
Subsidiaries is subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of its Capital Stock or
other ownership interests or to register any shares of its Capital Stock or
other ownership interests, and there are no agreements restricting the
transfer of any shares of such Capital Stock or other ownership interests.
(d) Compliance with Other Loan Documents and Contemplated
Transactions. The execution, delivery and performance, in accordance with
their respective terms, by the Borrower of this Agreement and the other Loan
Documents to which it is party, and the consummation of the transactions
contemplated hereby and thereby, do not and will not (i) require any consent
or approval not already obtained, (ii) violate any Applicable Law respecting
the Borrower or any of its Subsidiaries, (iii) conflict with, result in a
breach of, or constitute a default under any of the certificates or articles
of incorporation or partnership or bylaws or partnership agreements, as
amended, of the Borrower or of any of its Subsidiaries, under any License or
under any indenture, agreement, or other instrument to which the Borrower or
any of its Subsidiaries is a party or by which it or any of its properties may
be bound, including, without limitation, the Pole Agreements, or (iv) result
in or require the creation or imposition of any Lien upon or with respect to
any property now owned or hereafter acquired by the Borrower or any of the
Restricted Subsidiaries except Permitted Liens.
(e) Business. The Borrower is engaged solely in the business
of acting as a holding company for its Subsidiaries and of investing in other
cable television systems and investing in other activities directly relating
to the cable television business. The Restricted Subsidiaries are engaged
principally in the business of owning, operating and maintaining the System.
Not less than ninety percent (90%) of Annualized Operating Cash Flow of the
Restricted Subsidiaries as of any date of determination is derived directly
from the cable television business in the United States.
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(f) Licenses, etc. The Licenses have been duly authorized
(to the best of the Borrower's knowledge after due inquiry) by the grantors
thereof and are in full force and effect. The Borrower and the Restricted
Subsidiaries are in compliance in all material respects with all of the
provisions thereof. The Borrower has secured all Necessary Authorizations and
all such Necessary Authorizations are in full force and effect. Neither any
License nor any Necessary Authorization is the subject of any pending or, to
the best of the Borrower's knowledge after due inquiry, threatened revocation
which, with respect to any License or Licenses, if determined adversely, would
constitute an Event of Default under Section 8.1(l) hereof. Except as
described on Schedule 5 attached hereto, there is no Person other than the
Borrower or any of its Restricted Subsidiaries which is currently providing
cable, wireless or satellite delivered television services in any territory
within the System.
(g) Compliance with Law. The Borrower and each of the
Restricted Subsidiaries are in compliance in all material respects with all
Applicable Laws.
(h) Title to Assets. Except for Permitted Liens, the
Borrower and the Restricted Subsidiaries have good, legal and marketable title
to, or a valid leasehold interest in, all of their respective assets. None of
such properties or assets is subject to any Liens, except for Permitted Liens.
No financing statement under the Uniform Commercial Code as in effect in any
jurisdiction and no other filing which names the Borrower or any Restricted
Subsidiary as debtor or which covers or purports to cover any of the assets of
the Borrower or any Restricted Subsidiary is on file in any state or other
jurisdiction, and neither the Borrower nor any Restricted Subsidiary has
signed any such financing statement or filing or any security agreement
authorizing any secured party thereunder to file any such financing statement
or filing. Neither the Borrower nor any Restricted Subsidiary owns any parcel
of real estate with a fair market value in excess of $2,500,000, except as set
forth on Schedule 6 attached hereto.
(i) Litigation. Except as described on Schedule 7 attached
hereto and except for actions, suits, proceedings or investigations as to
which the Borrower is not required to notify the Lenders or has given
appropriate notice in accordance with Section 6.6 hereof, there is no action,
suit, proceeding or investigation pending against, or, to the best of the
Borrower's knowledge after due inquiry, threatened against or in any other
manner relating adversely to, the Borrower or any Restricted Subsidiary or any
of its respective properties, including, without limitation, the Licenses, in
any court or before any arbitrator of any kind or before or by any
governmental body, and no such action, suit, proceeding or investigation (i)
calls into question the validity of this Agreement or any other Loan Document,
or (ii) could, if determined adversely to the Borrower or any Restricted
Subsidiary, have a Materially Adverse Effect, except to the extent such
action, suit, proceeding or investigation affects the cable television
industry generally.
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(j) Taxes. All federal, state and other tax returns of the
Borrower and the Restricted Subsidiaries required by law to be filed have been
duly filed and all federal, state and other taxes, including, without
limitation, withholding taxes, assessments and other governmental charges or
levies required to be paid by the Borrower or any Restricted Subsidiary or
imposed upon the Borrower or any Restricted Subsidiary or any of its
respective properties, income, profits or assets, which are due and payable,
have been paid, except any such tax, assessment, charge, levy or claim (x) the
payment of which the Borrower or the applicable Restricted Subsidiary is
diligently contesting in good faith by appropriate proceedings, (y) for which
adequate reserves have been provided on the books of the Borrower or the
applicable Restricted Subsidiary, and (z) as to which no Lien other than a
Permitted Lien has attached and no foreclosure, distraint, sale or similar
proceedings have been commenced. The charges, accruals and reserves on the
books of the Borrower and the Restricted Subsidiaries in respect of taxes are,
in the judgment of the Borrower, adequate. All pro forma financial information
provided to the Lenders in connection with this Agreement have been based upon
reasonable assumptions and prepared in good faith.
(k) Financial Statements. The Borrower has furnished to the
Administrative Agent and the Lenders audited financial statements and
unaudited financial statements for the Borrower and the Restricted
Subsidiaries on a consolidated basis which are complete and correct in all
material respects and present fairly, in accordance with GAAP, the financial
position of such Persons as of December 31, 1997 and March 31, 1998,
respectively, and the results of operations for the periods then ended. The
Borrower and the Restricted Subsidiaries have no material liabilities,
contingent or otherwise, other than as disclosed in the financial statements
referred to in the preceding sentence or in the financial statements delivered
to the Administrative Agent and the Lenders pursuant to Sections 6.1 and 6.2
hereof, and there are no material unrealized losses of the Borrower and the
Restricted Subsidiaries and no material anticipated losses of the Borrower and
the Restricted Subsidiaries other than those which have been previously
disclosed in writing to the Administrative Agent and the Lenders and
identified to the Administrative Agent and the Lenders as such. The financial
projections delivered to the Lenders prior to the Agreement Date have been
prepared by the Borrower in good faith and based on reasonable assumptions.
(l) ERISA. The Borrower, each Restricted Subsidiary, each
ERISA Affiliate and each of their Plans are in compliance with ERISA and the
Code. Neither the Borrower, nor any Restricted Subsidiary, nor any ERISA
Affiliate has incurred any accumulated funding deficiency with respect to any
such Plan within the meaning of ERISA or the Code. The Borrower, each
Restricted Subsidiary, and each ERISA Affiliate have complied with all
requirements of Sections 601 through 608 of ERISA and Section 4980B of the
Code. Neither the Borrower, nor any Restricted Subsidiary, nor any ERISA
Affiliate has made any promises of retirement or other benefits to employees,
except as set forth in any Plan. Neither the Borrower, nor any Restricted
Subsidiary, nor any ERISA Affiliate has incurred any liability to the Pension
Benefit Guaranty Corporation in connection with any such Plan. The assets of
each such Plan which is subject to Title IV of ERISA, if any, are sufficient
to provide the benefits under such Plan payment of which the Pension Benefit
Guaranty Corporation would guarantee if such Plan were terminated, and such
assets are also sufficient to provide all other "benefit liabilities" (as
defined in Section 4001(a)(1b) of ERISA) due under the Plan upon termination.
No Reportable Event has occurred and is continuing with respect to any such
Plan. No such Plan or trust created thereunder, or party in interest (as
defined in Section 3(14) of ERISA), or any fiduciary (as defined in Section
3(21) of ERISA), has engaged in a "prohibited transaction" (as such term is
defined in Section 406 of ERISA or Section 4975 of the Code) which would
subject such Plan or any other Plan of the Borrower, any trust created
thereunder, or any such party in interest or fiduciary, or any party dealing
with any such Plan or any such trust to the penalty or tax on "prohibited
transactions" imposed by Section 502 of ERISA or Section 4975 of the Code.
Neither the Borrower, nor any Restricted Subsidiary, nor any ERISA Affiliate
is a participant in, or is obligated to make any payment to, any Multiemployer
Plan.
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(m) Compliance with Regulations T, U and X. Neither the
Borrower nor any Restricted Subsidiary is engaged principally in or has as one
of its important activities the business of extending credit for the purpose
of purchasing or carrying, and neither the Borrower nor any Restricted
Subsidiary owns or presently intends to acquire, any "margin security" or
"margin stock" as defined in Regulations T, U, and X (12 C.F.R. Parts 220,
221, and 224) (collectively, the "Regulations") of the Board of Governors of
the Federal Reserve System (herein called "margin stock"). None of the
proceeds of the Loans will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute this transaction
a "purpose credit" within the meaning of the Regulations. Neither the Borrower
nor any Restricted Subsidiary nor any bank acting on its behalf has taken or
will take any action which might cause this Agreement or the Notes to violate
any of the Regulations or any other regulation of the Board of Governors of
the Federal Reserve System or to violate the applicable provisions of the
Securities Exchange Act of 1934, in each case as now in effect or as the same
may hereafter be in effect. If so requested by the Administrative Agent or any
Lender, the Borrower will furnish the Administrative Agent or such Lender with
(i) a statement or statements in conformity with the requirements of Federal
Reserve Form U-1 referred to in Regulation U of said Board of Governors and
(ii) other documents evidencing its compliance with the margin regulations,
including without limitation an opinion of counsel in form and substance
satisfactory to the Required Lenders. Neither the making of the Loans nor the
use of proceeds thereof will violate, or be inconsistent with, the provisions
of any of the Regulations.
(n) Investment Company Act; Public Utility Holding Company
Act. Neither the Borrower nor any Restricted Subsidiary is required to
register under the provisions of the Investment Company Act of 1940, as
amended, and neither the entering into or performance by the Borrower of this
Agreement nor the issuance of the Notes violates any provision of such Act or
requires any consent, approval or authorization of, or registration with, the
Securities and Exchange Commission or any other governmental or public body or
authority pursuant to any provisions of such Act. Neither the Borrower nor any
Restricted Subsidiary is subject to regulation under the Public Utility
Holding Company Act of 1935.
(o) Government Regulation. Neither the Borrower nor any
Restricted Subsidiary is required to obtain any consent, approval,
authorization, permit or license which has not already been obtained from, or
effect any filing or registration which has not already been effected with,
any federal, state or local regulatory authority in connection with the
execution and delivery of this Agreement or any other Loan Document. Neither
the Borrower nor any Restricted Subsidiary is required to obtain any consent,
approval, authorization, permit or license which has not already been obtained
from, or effect any filing or registration which has not already been effected
with, any federal, state or local regulatory authority in connection with the
performance, in accordance with their respective terms, of this Agreement or
any other Loan Document, or the borrowing hereunder, other than filings and
consents relating to the renewal of Licenses and ongoing filings and consents
relating to the Commission.
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(p) Absence of Default. The Borrower and the Restricted
Subsidiaries are in compliance with all of the provisions of their
certificates or articles of incorporation and bylaws, or certificates of
partnership and partnership agreements, as the case may be, and no event has
occurred or failed to occur (including, without limitation, any matter which
could create a Default hereunder by cross-default) which has not been remedied
or waived, the occurrence or non-occurrence of which constitutes, or with the
passage of time or giving of notice or both would constitute, (i) an Event of
Default or (ii) a default by the Borrower or any Restricted Subsidiary under
any material indenture, agreement or other instrument, including without
limiting the foregoing, the material Pole Agreements, or any judgment, decree
or order to which the Borrower or any Restricted Subsidiary is a party or by
which the Borrower or any Restricted Subsidiary or any of its respective
properties may be bound or affected.
(q) Accuracy and Completeness of Information. All
information, reports, prospectuses and other papers and data relating to the
Borrower and the Restricted Subsidiaries and furnished by or on behalf of the
Borrower or any of the Restricted Subsidiaries to the Administrative Agent and
the Lenders, or any of them, were, at the time furnished, complete and correct
in all material respects to the extent necessary to give the recipients true
and accurate knowledge of the subject matter. Notwithstanding the foregoing,
with respect to projections of the future performance of the Borrower and the
Restricted Subsidiaries, such representations and warranties are made in good
faith and to the best of the Borrower's knowledge after due inquiry, but
without any assurances by the Borrower of the future achievement of such
performance.
(r) Agreements with Affiliates. Except as set forth on
Schedule 8 attached hereto, neither the Borrower nor any Restricted
Subsidiaries have (i) any agreements or binding arrangements of any kind with
any Affiliates or (ii) any management or consulting agreements of any kind
with any third party (including, without limitation, Affiliates).
(s) Solvency. The Borrower and the Restricted Subsidiaries
are, and after giving effect to the making of the Loans and the other
transactions contemplated hereby will be, Solvent.
(t) Collective Bargaining. Except as set forth on Schedule 9
attached hereto, no employee of the Borrower or of any of the Restricted
Subsidiaries is a party to any collective bargaining agreement with the
Borrower or any of the Restricted Subsidiaries and, to the best knowledge of
the Borrower after due inquiry, there are no material grievances, disputes, or
controversies with any union or any other organization of the employees of the
Borrower or any of the Restricted Subsidiaries or threats of strikes, work
stoppages, or any asserted pending demands for collective bargaining by any
union or other organization.
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(u) No Adverse Change. Since the date of the most recent
audited annual financial statements of the Borrower and the Restricted
Subsidiaries required to have been delivered to the Administrative Agent and
the Lenders pursuant to Section 6.2 hereof (or, prior to the first such
delivery required hereunder, since December 31, 1997), there has occurred no
event which would have a Materially Adverse Effect, except for such events
affecting the cable television industry generally.
(v) Environmental Matters.
(i) None of the properties of the Borrower and the
Restricted Subsidiaries contains, including, without limitation, in,
on or under the soil and groundwater thereunder, any Hazardous
Materials in violation of Environmental Laws or in amounts that could
give rise to liability under Environmental Laws.
(ii) The Borrower and the Restricted Subsidiaries
are in compliance with all Environmental Laws, and, to the best of
the Borrower's knowledge after due inquiry, there is no contamination
of any of such properties which could interfere with the continued
operation of any of such properties or impair the financial condition
of the Borrower or any of the Restricted Subsidiaries.
(iii) Neither the Borrower nor any Restricted
Subsidiary has received from any governmental authority any
complaint, notice of violation, alleged violation, investigation or
advisory action or notice of potential liability regarding matters of
environmental protection or permit compliance under applicable
Environmental Laws with regard to any such properties that have not
been resolved to the satisfaction of the issuing governmental
authority, nor is the Borrower or any Restricted Subsidiary aware
that any governmental authority is contemplating delivering any such
notice to the Borrower or any of the Restricted Subsidiaries.
(iv) There has been no pending or threatened
complaint, notice of violation, alleged violation, investigation or
notice of potential liability under Environmental Laws with regard to
any of such properties.
(v) Hazardous Materials have not been generated,
treated, stored, disposed of, at, on or under any of such property in
violation of any Environmental Laws or in a manner that could give
rise to liability under Environmental Laws, nor have any Hazardous
Materials been transported or disposed of from any of such properties
to any other location in violation of any Environmental Laws or in a
manner that could give rise to liability under Environmental Laws.
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(vi) Neither the Borrower nor any of the Restricted
Subsidiaries are a party to any governmental administrative actions
or judicial proceedings pending under any Environmental Law with
respect to any of such properties nor are there any consent decrees
or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding
under any Environmental Law with respect to any of such properties.
(w) Voting Control of the Borrower. As of the Agreement
Date, all of the shares of the issued and outstanding Capital Stock of the
Borrower are fully paid and non-assessable and owned, beneficially and of
record, as set forth on Schedule 10 attached hereto. The Borrower has no stock
or securities convertible into or exchangeable for any shares of its Capital
Stock, and there are no preemptive or similar rights to subscribe for or to
purchase, or any other rights to subscribe for or to purchase, or any options
for the purchase of, or any agreements providing for the issuance (contingent
or otherwise) of, or any calls, commitments, or claims of any character
relating to, any such Capital Stock, or any stock or securities convertible
into or exchangeable for any such Capital Stock, except as set forth on
Schedule 10 attached hereto. The Borrower is not subject to any obligation
(contingent or otherwise) to repurchase or otherwise acquire or retire any
shares of its Capital Stock or to register any shares of its Capital Stock,
and there are no agreements restricting the transfer of any shares of such
Capital Stock, except as set forth in the Shareholders' Agreements as in
effect on the Agreement Date. The voting control of ▇. ▇. ▇▇▇▇▇▇▇ of the
shares of the Borrower's Capital Stock is evidenced by the Shareholders'
Agreements. There has been no change in or other modification to such
Shareholders' Agreements or the voting control of ▇. ▇. ▇▇▇▇▇▇▇ evidenced
thereby.
(x) Year 2000 Compliance. The Borrower has (i) initiated a
review and assessment of all areas within its and each of its Subsidiaries'
businesses and operations (including those affected by suppliers, vendors and
customers) that could be adversely affected by the "Year 2000 Problem" (that
is, the risk that computer applications used by the Borrower or any of its
Subsidiaries (or suppliers, vendors and customers) may be unable to recognize
and perform properly date-sensitive functions involving certain dates prior to
and any date after December 31, 1999), (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan in accordance with that timetable. Based on the
foregoing, the Borrower reasonably believes that all computer applications
(including those of its suppliers, vendors and customers) that are material to
its or any of its Subsidiaries' businesses and operations are reasonably
expected by September 30, 1999 to be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that is, be "Year
2000 Compliant"), except to the extent that a failure to do so could not
reasonably be expected to have a Materially Adverse Effect.
Section 4.2 Survival of Representations and Warranties, etc. All
representations and warranties made under this Agreement shall be deemed to be
made, and shall be true and correct, at and as of the Agreement Date, and
shall be true and correct in all material respects as of the date of each
Advance which increases the principal amount of the Loans outstanding
hereunder, except to the extent they relate solely to an earlier date or time
period. All representations and warranties made under this Agreement shall
survive, and not be waived by, the execution hereof by the Administrative
Agent and the Lenders, any investigation or inquiry by any of the
Administrative Agent and the Lenders, or the making of any Advance.
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ARTICLE 5
General Covenants
So long as any of the Obligations is outstanding and unpaid or the
Borrower shall have the right to borrow hereunder (whether or not the
conditions to borrowing have been or can be fulfilled), and unless the
Required Lenders shall otherwise consent in writing:
Section 5.1 Preservation of Existence and Similar Matters. The
Borrower will, and will cause each Restricted Subsidiary to:
(a) preserve and maintain its existence in the state of its
formation, its material rights, franchises, licenses and privileges,
including, without limiting the foregoing, the Licenses (to the extent
required to prevent the occurrence of an Event of Default under Section 8.1(l)
hereof), all material Pole Agreements, and all other Necessary Authorizations,
and
(b) qualify and remain qualified and authorized to do
business in each jurisdiction in which the character of its properties or the
nature of its businesses requires such qualification or authorization.
Section 5.2 Business; Compliance with Applicable Law. The Borrower
will engage solely in the business of (a) acting as a holding company for its
Subsidiaries, (b) investing in other cable television systems, (c) investing
in other activities directly relating to the cable television industry, and
(d) providing consulting services to Garden State Cablevision L.P., a Delaware
limited partnership. The Borrower will cause the Restricted Subsidiaries to
engage principally in the business of owning, operating and maintaining the
System. The Borrower will, and will cause the Restricted Subsidiaries to,
comply with the requirements of Applicable Law.
Section 5.3 Maintenance of Properties. The Borrower will maintain or
cause to be maintained in the ordinary course of business in good repair,
working order and condition (reasonable wear and tear excepted) all properties
used in its and the Restricted Subsidiaries' businesses (whether owned or held
under lease), and from time to time make or cause to be made all needed and
appropriate repairs, renewals, replacements, additions, betterments and
improvements thereto.
Section 5.4 Accounting Methods and Financial Records. The Borrower
will, and will cause each Restricted Subsidiary to, maintain a system of
accounting established and administered in accordance with GAAP, keep adequate
records and books of account in which complete entries will be made in
accordance with such accounting principles consistently applied and reflecting
all transactions required to be reflected by such accounting principles, and
keep accurate and complete records of its properties and assets. The Borrower
will, and will cause each Restricted Subsidiary to, maintain a fiscal year
ending on December 31st.
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Section 5.5 Insurance. The Borrower will, and will cause each
Restricted Subsidiary to:
(a) maintain insurance including, but not limited to, public
liability, business interruption and worker's compensation insurance from
responsible companies in such amounts and against such risks to the Borrower
and the Restricted Subsidiaries as shall be standard in the cable television
industry for cable television companies similar in size and location to the
Borrower and the Restricted Subsidiaries;
(b) keep its assets insured by insurers on terms and in a
manner acceptable to the Required Lenders against loss or damage by fire,
theft, burglary, loss in transit, explosions and hazards insured against by
extended coverage, in amounts which are standard in the cable television
industry for cable television companies similar in size and location to the
Borrower and the Restricted Subsidiaries, all premiums thereon to be paid by
the Borrower and the Restricted Subsidiaries; and
(c) require that each insurance policy provide for at least
thirty (30) days' prior written notice to the Administrative Agent of any
termination of or proposed cancellation or nonrenewal of such policy.
Section 5.6 Payment of Taxes and Claims. The Borrower will, and will
cause each Restricted Subsidiary to, pay and discharge all taxes, including,
without limitation, withholding taxes, assessments and governmental charges or
levies required to be paid by it or imposed upon it or its income or profits
or upon any properties belonging to it prior to the date on which penalties
attach thereto, and all lawful claims for labor, materials and supplies which,
if unpaid, might become a Lien or charge upon any of its properties; provided,
however, that no such tax, assessment, charge, levy or claim need be paid
which is being diligently contested in good faith by appropriate proceedings
and for which adequate reserves shall have been set aside on the appropriate
books in accordance with GAAP, but only so long as such tax, assessment,
charge, levy or claim does not become a Lien or charge other than a Permitted
Lien and no foreclosure, distraint, sale or similar proceedings shall have
been commenced. The Borrower shall, and shall cause each Restricted Subsidiary
to, timely file all information returns required by federal, state or local
tax authorities.
Section 5.7 Visits and Inspections. The Borrower will, and will cause
each Restricted Subsidiary to, permit representatives of the Administrative
Agent and the Lenders to (a) visit and inspect the properties of the Borrower
and the Restricted Subsidiaries at all reasonable times, (b) inspect and make
extracts from and copies of its books and records, and (c) discuss with the
principal officers of the Borrower and the Restricted Subsidiaries, its
business, assets, liabilities, financial position, results of operations and
business prospects.
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Section 5.8 Payment of Indebtedness; Loans. Subject to any provisions
regarding subordination herein or in any other Loan Document, the Borrower
will, and will cause each of the Restricted Subsidiaries to, pay any and all
of its Indebtedness when and as it becomes due, other than amounts diligently
disputed in good faith and as to which adequate reserves have been set aside
in accordance with GAAP.
Section 5.9 Use of Proceeds. The Borrower will use the aggregate
proceeds of the Loans to finance general corporate expenditures, including,
without limitation, permitted acquisitions, investments and Capital
Expenditures, to provide working capital to the Borrower and the Restricted
Subsidiaries and for payment by the Borrower of any money judgment against the
Borrower in connection with the Australia Litigation in an aggregate amount
not to exceed $7,000,000.
Section 5.10 Indemnity. The Borrower will indemnify and hold harmless
each Lender, each Arranging Agent and the Administrative Agent, and each of
their respective employees, representatives, officers, directors, affiliates,
agents and attorneys (collectively, "Indemnitees"), from and against any and
all claims, liabilities, losses, damages, actions, attorneys' fees and demands
incurred by any Indemnitee, whether or not such Indemnitee is a party to any
litigation, investigation or other proceeding, (a) resulting from, arising out
of or otherwise relating to any breach or alleged breach by the Borrower of
any representation or warranty made hereunder, or (b) arising out of (i) the
making or administration of any Loans or the actual or proposed use of the
proceeds of any Loans, (ii) the issuance by the Borrower of additional
Indebtedness for Money Borrowed, (iii) allegations of any participation by any
Indemnitee in the affairs of the Borrower or any Subsidiary of the Borrower,
or allegations that any Indemnitee has any joint liability with the Borrower
or any Subsidiary of the Borrower for any reason, or (iv) any claims against
any Indemnitee by any investor in or lender to the Borrower or any Subsidiary
of the Borrower, for any reason whatsoever; unless, in any case referred to
above, the Indemnitee seeking indemnification hereunder is determined to have
acted or failed to act with gross negligence or willful misconduct by a
non-appealable judicial order.
Section 5.11 Interest Rate Hedging. The Borrower shall at all times
maintain one (1) or more Interest Rate Hedge Agreements, fixed rate loan
agreements or similar arrangements with respect to its interest obligations
relating to an aggregate principal amount of not less than fifty percent (50%)
of Total Debt outstanding from time to time. Such Interest Rate Hedge
Agreements and other agreements and arrangements shall have the effect of
fixing the interest rate payable by the Borrower with respect to such amount
of Total Debt for a weighted average period of not less than two (2) years
from the date of such Interest Rate Hedge Agreement or other agreement or
arrangement or, if earlier, until the Maturity Date, and shall be subject to
terms reasonably acceptable to the Administrative Agent. Such terms shall
include consideration of the creditworthiness of the other party to such
Interest Rate Hedge Agreements or other agreement or arrangement. All
obligations of the Borrower to any of the Administrative Agent or any Lender
pursuant to any Interest Rate Hedge Agreement shall rank pari passu with the
Obligations. All obligations of the Borrower under any other fixed rate loan
agreement or similar arrangement, as described above, may rank pari passu with
the Obligations to the extent they are otherwise permitted hereunder, but
shall not be secured by any Lien and shall not otherwise be senior to the
Obligations.
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Section 5.12 Year 2000 Compliance. The Borrower will promptly notify
the Administrative Agent in the event the Borrower discovers or determines
that any computer application (including, without limitation, those of its
suppliers and vendors) that is material to its or any of its Subsidiaries'
business and operations will not be Year 2000 Compliant on a timely basis,
except to the extent that such failure could not reasonably be expected to
have a Materially Adverse Effect.
Section 5.13 Further Assurances. The Borrower will promptly cure, or
cause to be cured, defects in the creation and issuance of any of the Notes
and the execution and delivery of the Loan Documents, resulting from any acts
or failure to act by the Borrower or any of its Restricted Subsidiaries or any
employee or officer thereof. The Borrower at its expense will promptly execute
and deliver to the Administrative Agent and the Lenders, or cause to be
executed and delivered to the Administrative Agent and the Lenders, all such
other and further documents, agreements, and instruments in compliance with or
accomplishment of the covenants and agreements of the Borrower in the Loan
Documents, including this Agreement, or to correct any omissions in the Loan
Documents, or more fully to state the obligations set out herein or in any of
the Loan Documents, or to obtain any consents, all as may be necessary or
appropriate in connection therewith and as may be reasonably requested.
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ARTICLE 6
Information Covenants
So long as any of the Obligations is outstanding and unpaid or the
Borrower has a right to borrow hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Required Lenders shall
otherwise consent in writing, the Borrower will furnish or cause to be
furnished to each Lender and to the Administrative Agent at their respective
offices:
Section 6.1 Quarterly Financial Statements. As soon as available and
in any event within sixty (60) days after the end of each fiscal quarter in
each fiscal year of the Borrower, the consolidated financial statements of the
Borrower and its Subsidiaries and the special-purpose consolidated financial
statements for the Borrower and the Restricted Subsidiaries, each consisting
of a balance sheet as of the end of such fiscal quarter and related statements
of income, stockholders' equity and cash flows for the fiscal quarter then
ended and the fiscal year through that date, all in reasonable detail and
certified (subject to normal year-end audit adjustments) by the chief
executive officer, president or chief financial officer of the Borrower as
having been prepared in accordance with GAAP, and setting forth in comparative
form the respective financial statements for the corresponding date and period
in the previous fiscal year, together with a completed Quarterly Capital
Expenditure Report in a form substantially identical to Exhibit F attached
hereto.
Section 6.2 Annual Financial Statements. As soon as available and in
any event within one hundred twenty (120) days after the end of each fiscal
year of Borrower, the consolidated financial statements of the Borrower and
its Subsidiaries and the special-purpose consolidated financial statements for
the Borrower and the Restricted Subsidiaries, each consisting of a balance
sheet as of the end of such fiscal year and related statements of income,
stockholders' equity and cash flows for the fiscal year then ended, all in
reasonable detail and setting forth in comparative form the financial
statements as of the end of and for the preceding fiscal year, and certified
by the Borrower's current independent certified public accountants or other
nationally recognized independent certified public accountants satisfactory to
the Arranging Agents. The certificate or report of accountants shall be free
of qualifications (other than any consistency qualification that may result
from a change in the method used to prepare the financial statements as to
which such accountants concur) and shall not indicate the occurrence or
existence of any event, condition or contingency which would materially impair
the prospect of payment or performance of any covenant, agreement or duty of
the Borrower under any of the Loan Documents, together with a letter of such
accountants substantially to the effect that, based upon their ordinary and
customary examination of the affairs of the Borrower, performed in connection
with the preparation of such consolidated financial statements, and in
accordance with generally accepted auditing standards, they are not aware of
the existence of any condition or event which constitutes a Default or Event
of Default or, if they are aware of such condition or event, stating the
nature thereof and confirming the Borrower's calculations with respect to the
certificate to be delivered pursuant to Section 6.4 hereof with respect to
such financial statements.
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Section 6.3 Quarterly Operating Reports. As soon as practicable, and
in any event at the time financial statements are furnished pursuant to
Sections 6.1 and 6.2 hereof, a quarterly operating report of the Borrower and
the Restricted Subsidiaries, certified by the chief financial or executive
officer of the Borrower and of each Restricted Subsidiary, in such detail and,
if requested by the Arranging Agents, on a form supplied by the Arranging
Agents, accurately setting forth, (a) the number of new Basic Subscribers of
each Restricted Subsidiary as to which hook-ups were completed during the
preceding quarter, (b) the total number of all Basic Subscribers, new Basic
Subscribers, pay TV subscribers, homes passed and miles of cable plant as of
the end of such quarter for the Borrower and the Restricted Subsidiaries,
taken as a whole, and (c) such other information as the Arranging Agents may
reasonably request.
Section 6.4 Performance Certificates. At the time the financial
statements are furnished pursuant to Sections 6.1 and 6.2 hereof, a
certificate of an Authorized Officer substantially in the form of Exhibit G
attached hereto and otherwise in form and substance satisfactory to the
Required Lenders:
(a) reaffirming the representations and warranties set forth
in Article 4 hereof as of the date of such certificate with the same effect as
though such representations and warranties had been made on and as of such
date (except for representations and warranties which expressly relate solely
to an earlier date or time period);
(b) setting forth as at the end of such quarterly period or
fiscal year, as the case may be, the arithmetical calculations required to
establish whether or not the Borrower was in compliance with the requirements
of Sections 7.1, 7.4, 7.6(d), 7.6(e), 7.8, 7.9, 7.10, 7.14 and 7.15 hereof;
(c) summarizing in reasonable detail (i) all investments
made by the Borrower or any of the Restricted Subsidiaries since the Agreement
Date pursuant to Section 7.6(a)(iii) and (iv) hereof; (ii) all acquisitions
made by the Borrower or any of the Restricted Subsidiaries since the Agreement
Date pursuant to Sections 7.4(b), (c) and (d) hereof; and (iii) all
investments in excess of $1,000,000 made by the Borrower or any of the
Restricted Subsidiaries during such quarterly period or fiscal year, other
than pursuant to Section 7.6(a)(iii) and (iv) hereof; and
(d) stating that, to the best of his or her knowledge after
due inquiry, no Default or Event of Default has occurred as at the end of such
quarterly period or year, as the case may be, or, if a Default or an Event of
Default has occurred, disclosing each such Default or Event of Default and its
nature, when it occurred, whether it is continuing and the steps being taken
by the Borrower with respect to such Default or Event of Default.
Section 6.5 Copies of Other Reports.
(a) No later than January 31st of each year, a copy of the
annual budget for the Borrower for such fiscal year, including, without
limitation, the budget for Capital Expenditures.
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(b) From time to time and promptly upon each request, such
data, certificates, reports, statements, opinions of counsel, documents or
further information regarding the business, assets, liabilities, financial
position, projections, results of operations or business prospects of the
Borrower or any Restricted Subsidiary, as the Administrative Agent or any
Lender reasonably may request.
Section 6.6 Notice of Litigation and Other Matters. Prompt notice of
the following events after an Authorized Officer has received notice or has
otherwise become aware thereof:
(a) the commencement of all proceedings and investigations
by or before any governmental body and all actions and proceedings in any
court or before any arbitrator against the Borrower or any Restricted
Subsidiary involving a claim for damages or potential cost to the Borrower or
any Restricted Subsidiary of $2,500,000 or more with respect to any single or
related series of proceedings, investigations or actions or, to the extent
known to the Borrower or any Restricted Subsidiary, in any other way relating
materially adversely and directly to the Borrower or any Restricted
Subsidiary, or any of its respective properties, assets or businesses or any
License, including, without limitation, proceedings, investigations or actions
arising under Environmental Laws;
(b) any Default or the occurrence or non-occurrence of any
event (i) which constitutes, or which with the passage of time or giving of
notice or both would constitute a Default by the Borrower or any Restricted
Subsidiary under any material agreement other than this Agreement to which the
Borrower or any Restricted Subsidiary is party or by which any of its
properties may be bound, or (ii) which could have a Materially Adverse Effect,
giving in each case the details thereof and specifying the action proposed to
be taken with respect thereto; and
(c) the occurrence of any Reportable Event or a "prohibited
transaction" (as such term is defined in Section 406 of ERISA or Section 4975
of the Code) with respect to any Plan of the Borrower, any Restricted
Subsidiary or any ERISA Affiliate or the institution or threatened institution
by the Pension Benefit Guaranty Corporation of proceedings under ERISA to
terminate or to partially terminate any such Plan or the commencement or
threatened commencement of any litigation regarding any such Plan or naming it
or the trustee of any such Plan with respect to such Plan.
ARTICLE 7
Negative Covenants
So long as any of the Obligations is outstanding and unpaid or the
Borrower has a right to borrow hereunder (whether or not the conditions to
borrowing have been or can be fulfilled) and unless the Required Lenders shall
otherwise give their prior consent in writing:
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Section 7.1 Indebtedness of the Borrower and the Restricted
Subsidiaries. The Borrower shall not, and shall not permit any Restricted
Subsidiary to, create, assume, incur or otherwise become or remain obligated
in respect of, or permit to be outstanding, any Indebtedness except:
(a) Indebtedness under this Agreement and the Notes;
(b) Accounts payable, subscriber deposits, accrued expenses
and customer advance payments incurred in the ordinary course of business,
which are (1) current or (2) being contested in good faith by appropriate
proceedings and for which the Borrower or the applicable Restricted Subsidiary
has established adequate reserves on its books;
(c) Obligations arising under Interest Rate Hedge Agreements;
(d) Unsecured Indebtedness for Money Borrowed of the
Borrower, which is subject to terms which are no more restrictive than the
terms of this Agreement and the other Loan Documents, and which does not
amortize or mature prior to one (1) year after the Maturity Date and, if such
Indebtedness will be Subordinated Debt, which is subordinated on terms
satisfactory to the Required Lenders;
(e) (i) Indebtedness arising in respect of the AML Movie
Studio Guaranty Liability and under Guaranties existing as of the Agreement
Date, as described on Schedule 11 attached hereto, in an aggregate amount not
to exceed, in the aggregate, the lesser of (A) $33,500,000 and (B) the maximum
face amount of the AML Movie Studio Guaranties; and (ii) Indebtedness arising
under Guaranties (other than in respect of the AML Movie Studio Guaranty
Liability and those existing on the Agreement Date) in an aggregate amount not
to exceed $50,000,000 at any time outstanding;
(f) Other Indebtedness incurred in the ordinary course of
business which is either unsecured or secured by Liens described in clause (i)
of the definition of "Permitted Liens" in an aggregate amount not to exceed
$10,000,000, plus Indebtedness arising under Capitalized Lease Obligations
existing as of the Agreement Date;
(g) Indebtedness of the Borrower to any Restricted
Subsidiary or of any Restricted Subsidiary to the Borrower or any other
Restricted Subsidiary; and
(h) Indebtedness existing as of the Agreement Date,
including, without limitation, the Existing Notes as described on Schedule 11
attached hereto.
Notwithstanding the foregoing, the Borrower may refinance its Indebtedness
existing as of the Agreement Date in respect of the Existing Notes and other
Indebtedness permitted pursuant to Section 7.1(d) hereof (as described on
Schedule 11 attached hereto) with other Indebtedness (other than proceeds of
the Loans) so long as (i) the refinanced Indebtedness has a maturity of not
less than one (1) year greater than the maturity of the Loans, (ii) the terms
governing the refinanced Indebtedness are no more restrictive than the terms
of this Agreement and the other Loan Documents nor the terms governing the
Indebtedness proposed to be refinanced, and (iii) the refinanced Indebtedness
is unsecured. Any such refinanced Indebtedness (other than Subordinated Debt)
incurred by the Borrower in accordance herewith may rank pari passu with the
Obligations.
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Further notwithstanding the foregoing or Section 7.7 hereof, the Borrower may
repurchase the Existing Notes for cash using proceeds of the Loans or
otherwise so long as (A) no Default then exists or would be caused thereby,
(B) the Total Leverage Ratio, calculated using the financial statements of the
Borrower and the Restricted Subsidiaries for the most recently completed
fiscal quarter for which financial statements are required to have been
provided to the Administrative Agent in accordance with Section 6.1 hereof as
of the proposed date of the repurchase of the Existing Notes, is less than
5.50 to 1, and (C) the aggregate consideration paid by the Borrower to
repurchase the Existing Subordinated Debt is less than the sum of (1)
$50,000,000, plus (2) any cash consideration received by the Borrower from the
sale or other monetization of its investment in @ Home Network.
Section 7.2 Limitation on Liens. The Borrower shall not, and shall
not permit any Restricted Subsidiary to, create, assume, incur or permit to
exist or to be created, assumed, incurred or permitted to exist, directly or
indirectly, any Lien on any of its properties or assets (including, without
limitation, with respect to any Restricted Subsidiary, Capital Stock of such
Restricted Subsidiary), whether now owned or hereafter acquired, except for
Permitted Liens.
Section 7.3 Amendment and Waiver. The Borrower shall not, and shall
not permit any Restricted Subsidiary to, enter into any amendment of, or agree
to or accept or consent to any waiver of any of the provisions of (a) its
certificate or articles of incorporation or bylaws, or certificate of
partnership or partnership agreement, as applicable; (b) any Loan Document; or
(c) any of the documents, instruments and agreements evidencing or relating to
the Existing Notes or any other Subordinated Debt if the effect of any such
amendment or waiver is to (i) increase the aggregate principal amount
outstanding thereunder, (ii) reduce the weighted average life to maturity
thereof, or (iii) cause the terms governing such Indebtedness to be more
restrictive than the terms of this Agreement or of the existing documents,
instruments or agreements governing such Indebtedness.
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Section 7.4 Liquidation, Change in Ownership, Disposition or
Acquisition of Assets; Change in Business.
(a) The Borrower shall not, and shall not permit any
Restricted Subsidiary to, at any time (i) liquidate or dissolve itself (or
suffer any liquidation or dissolution) or otherwise wind up its affairs; (ii)
enter into any merger or consolidation (other than any merger or consolidation
of a Restricted Subsidiary into another Restricted Subsidiary or, so long as
the Borrower is the surviving corporation and so long as no Default then
exists or would be caused thereby, of a Restricted Subsidiary into the
Borrower); or (iii) sell, lease, abandon, transfer, exchange or otherwise
dispose of all or any of its assets, property or business (other than sales or
other dispositions as provided in Section 2.5(b)(ii) hereof); provided,
however, that so long as no Default then exists or would be caused thereby,
the Borrower or any of the Restricted Subsidiaries may sell or otherwise
dispose of assets for fair consideration so long as: (A) the assets sold or
otherwise disposed of in any single or series of related transactions
contributed or accounted for less than twenty-five percent (25%) of Annualized
Operating Cash Flow, calculated using the financial statements of the Borrower
and the Restricted Subsidiaries for the most recently completed fiscal quarter
for which financial statements are required to have been provided to the
Administrative Agent and the Lenders in accordance with Section 6.1 hereof as
of the date of such proposed sale or other disposition; and (B) the aggregate
amount of Annualized Operating Cash Flow contributed by or attributable to all
assets sold or otherwise disposed of during the term of this Agreement
(calculated in the manner set forth in clause (A) above with respect to each
such sale or other disposition) is less than forty-nine percent (49%) of
Annualized Operating Cash Flow calculated using the financial statements of
the Borrower and the Restricted Subsidiaries for the most recently completed
fiscal quarter for which financial statements are required to have been
provided to the Administrative Agent and the Lenders as of the proposed date
of the most recent such sale or other disposition. All Net Proceeds of any
sale, lease, transfer, exchange or other disposition of assets permitted
hereunder shall be used to prepay the Loans outstanding or to reduce the
Commitment to the extent required under Section 2.5(b)(ii) hereof.
(b) The Borrower shall not, and shall not permit any
Restricted Subsidiary to, at any time, acquire any assets, property or
business of any other Person, or acquire stock, partnership or other ownership
interests in any other Person, other than as permitted by Section 7.6 hereof
and other than:
(i) assets directly related to the cable television
business in the United States;
(ii) all of the issued and outstanding Capital
Stock or other ownership interests of Persons engaged in businesses
directly related to the cable television business in the United
States; or
(iii) the assets or all of the issued and
outstanding Capital Stock or other ownership interests of Persons not
engaged in businesses directly related to the cable television
business in the United States, for an aggregate purchase price not to
exceed (1) $25,000,000 in any fiscal year, and (2)(A) if the Total
Leverage Ratio, calculated using the financial statements of the
Borrower and the Restricted Subsidiaries for the most recently
completed fiscal quarter for which financial statements are required
to have been provided to the Administrative Agent and the Lenders
under Section 6.1 hereof as of the proposed date of such acquisition,
is less than 5.00 to 1, $100,000,000 during the term of this
Agreement, or (B) if the Total Leverage Ratio (calculated in the
manner set forth in clause (A) above with respect to such
acquisition) is greater than or equal to 5.00 to 1, $50,000,000
during the term of this Agreement;
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and provided that, in any such case, no Default then exists or would be caused
thereby. Prior to consummating any such acquisition, the Borrower shall
provide the Administrative Agent and the Lenders with calculations
specifically demonstrating the Borrower's pro forma compliance with Sections
7.8, 7.9, 7.10, 7.11, 7.14 and 7.15 hereof, both before and after giving
effect to the proposed acquisition. Any Subsidiary formed or acquired by the
Borrower or any Restricted Subsidiary in connection with any acquisition
described in this subsection 7.4(b) shall be deemed to be a Restricted
Subsidiary unless the Required Lenders shall otherwise consent in writing.
(c) The Borrower shall not permit less than ninety percent
(90%) of Annualized Operating Cash Flow of Restricted Subsidiaries as of any
date of determination to be derived directly from the cable television
business in the United States.
Section 7.5 Limitation on Guaranties. The Borrower shall not, and
shall not permit any Restricted Subsidiary to, at any time Guaranty, assume,
be obligated with respect to, or permit to be outstanding any Guaranty of, any
obligation of any other Person other than (a) obligations under agreements of
the Borrower or any Restricted Subsidiary entered into in connection with the
acquisition of services, supplies and equipment in the ordinary course of
business of the Borrower or such Restricted Subsidiary, and (b) Guaranties
described in Section 7.1(e) hereof.
Section 7.6 Investments.
(a) The Borrower shall not, and shall not permit any
Restricted Subsidiary to, purchase or otherwise acquire or invest in the
Capital Stock of, or any other equity interest in, any Person (including,
without limitation, the Capital Stock of the Borrower), or make any loan to,
or enter into any arrangement for the purpose of providing funds or credit to,
or guarantee or become contingently obligated in respect of the obligations of
or make any other investment, whether by way of capital contribution or
otherwise in, to or with any Person, or permit any Restricted Subsidiary so to
do (collectively, the "Investments"); provided, however, that so long as no
Default then exists or would be caused thereby, the Borrower or any Restricted
Subsidiary may:
(i) make Investments in Cash Equivalents;
(ii) maintain the Investments described as of the
Agreement Date on Schedule 12 attached hereto;
(iii) make Investments in Persons engaged in
businesses directly related to the cable television business in the
United States; and
(iv) make Investments in Persons engaged in
businesses not directly related to the cable television business in
the United States in (A) an aggregate amount not to exceed (1)
$50,000,000 so long as the Total Leverage Ratio for the most recently
completed fiscal quarter for which financial statements are required
to have been provided to the Lenders in accordance with Section 6.1
or 6.2 hereof, as applicable, is greater than or equal to 5.0 to 1,
or (2) $100,000,000 so long as the Total Leverage Ratio for such
fiscal quarter is less than 5.0 to 1, and (B) an aggregate amount not
to exceed $25,000,000 in any fiscal year; provided, however, that in
each such case, the Borrower has provided the Administrative Agent
and the Lenders with calculations specifically demonstrating the
Borrower's pro forma compliance with Sections 7.8, 7.9, 7.10, 7.14
and 7.15 hereof, both before and after giving effect to the proposed
investment.
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(b) The Borrower shall require, and shall cause each of the
Restricted Subsidiaries to require, that any Investment in the form of an
advance or loan made by the Borrower or such Restricted Subsidiary, as
applicable, to any other Person be evidenced by a duly executed and delivered
promissory note of such other Person in an original principal amount not less
than the amount of such loan; provided, however, that loans or advances made
to the Borrower or any Subsidiary of the Borrower need not be evidenced by
such promissory notes if regulatory approval by any governmental body of the
State of New Jersey or Delaware would be required in connection therewith.
(c) The Borrower shall require, and shall cause each of the
Restricted Subsidiaries to require, that any Investment in an Unrestricted
Subsidiary be in the form of a loan or intercompany advance and be evidenced
by a promissory note in the principal amount of such investment. The Borrower
will cause each such promissory note to be repaid by the applicable
Unrestricted Subsidiary upon a sale of any assets of such Unrestricted
Subsidiary (other than in the ordinary course of its business) or upon a sale
of any Capital Stock of such Unrestricted Subsidiary.
Section 7.7 Restricted Payments and Purchases. The Borrower shall
not, and shall not permit any Restricted Subsidiary to, directly or indirectly
declare or make any Restricted Payment or Restricted Purchase; provided,
however, that the Restricted Subsidiaries may declare and make Restricted
Payments to, and Restricted Purchases from, the Borrower, and so long as no
Default then exists or would be caused thereby, the Borrower may make (a)
Restricted Payments in an aggregate amount not to exceed during any fiscal
year, fifty percent (50%) of Annual Excess Cash Flow for the preceding fiscal
year and (b) distributions on preferred stock issued after the Agreement Date
in an amount not to exceed $10,000,000 in the aggregate during the term of
this Agreement so long as the Total Leverage Ratio for the most recently
completed fiscal quarter for which financial statements are required to have
been delivered to the Lenders pursuant to Section 6.1 or 6.2 hereof, as
applicable, is less than or equal to 5.50 to 1.
Section 7.8 Senior Leverage Ratio. (a) As of the end of any calendar
quarter, (b) at the time of any Advance which increases the aggregate
principal amount of the Loans outstanding hereunder, and (c) at the time of
any incurrence of Indebtedness, any proposed sale, lease, transfer, exchange
or other disposition of assets, any proposed acquisition of assets, or any
proposed investment in any other Person, the Borrower shall not permit the
Senior Leverage Ratio for the calendar quarter end being tested in the case of
Section 7.8(a) hereof, or the most recent quarter end for which financial
statements are required to have been provided to the Administrative Agent and
the Lenders pursuant to Sections 6.1 and 6.2 hereof in the case of Sections
7.8(b) and (c) hereof after giving effect to the Advance or other transaction
proposed to be effected as of such date, to exceed the ratios set forth below
for calculation dates using financial statements for periods ending during the
periods shown below:
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Period Senior Leverage Ratio
------ ---------------------
From the Agreement Date through December 30, 2000 5.50:1
From December 31, 2000 through December 30, 2001 4.50:1
From December 31, 2001 through December 30, 2002 4.00:1
From December 31, 2002 through December 30, 2003 3.50:1
At December 31, 2003 and all times thereafter 3.00:1
Section 7.9 Operating Cash Flow to Total Interest Expense Ratio. (a)
As of the end of any calendar quarter, (b) at the time of any Advance which
increases the aggregate principal amount of the Loans outstanding hereunder,
and (c) at the time of any proposed sale, lease, transfer, exchange or other
disposition of assets, any proposed acquisition of assets, or any proposed
investment in any other Person, the Borrower shall not permit the ratio of (1)
Operating Cash Flow, minus cash taxes to (2) Total Interest Expense for the
twelve (12) month period then ending in the case of Section 7.9(a) hereof, or
for the most recently ended twelve (12) month period for which financial
statements are required to have been provided to the Administrative Agent and
the Lenders pursuant to Section 6.1 and 6.2 hereof in the case of Sections
7.9(b) and (c) hereof, in each case, after giving effect to the Advance or
other transaction proposed to be effected as of such date, to be less than the
ratios set forth below for calculation dates using financial statements for
periods ending during the periods shown below:
Period Ratio
------ -----
From the Agreement Date through December 30, 1999 1.50:1
From December 31, 1999 through December 30, 2000 1.75:1
At December 31, 2000 and all times thereafter 2.00:1
Section 7.10 Annualized Operating Cash Flow to Pro Forma Debt Service
Ratio. (a) As of the end of any calendar quarter, (b) at the time of any
Advance which increases the aggregate principal amount of the Loans
outstanding hereunder, and (c) at the time of any proposed sale, lease,
transfer, exchange or other disposition of assets, any proposed acquisition of
assets, or any proposed investment in any other Person, the Borrower shall not
permit the ratio of (1) Annualized Operating Cash Flow, minus cash taxes for
the calendar quarter end being tested in the case of Section 7.10(a) hereof,
or the most recent quarter end for which financial statements are required to
be delivered to the Administrative Agent and the Lenders pursuant to Sections
6.1 and 6.2 hereof in the case of Sections 7.10(b) and (c) hereof, to (2) Pro
Forma Debt Service to be less than 1.15 to 1.
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Section 7.11 Affiliate Transactions. The Borrower shall not, and
shall not permit any Restricted Subsidiary to, at any time engage in any
transaction with an Affiliate, nor make an assignment or other transfer of any
of its properties or assets to any Affiliate, on terms less advantageous to
the Borrower or the applicable Restricted Subsidiary than would be the case if
such transactions had been effected on an arm's length basis with a
non-Affiliate.
Section 7.12 ERISA Liabilities. The Borrower shall not, and shall not
permit any Restricted Subsidiary to, allow any of its Plans to have an
accumulated funding deficiency as defined in Section 4971(c)(ii) of the Code
and measured at the end of the plan year. The Borrower shall not, and shall
not permit any Restricted Subsidiary to, become a participant in any
Multiemployer Plan.
Section 7.13 Restrictions on Upstream Dividends by Subsidiaries. The
Borrower shall not permit to exist at any time any consensual restriction
limiting the ability (whether by covenant, event of default, subordination or
otherwise) of any Restricted Subsidiary to (a) make Restricted Payments to or
Restricted Purchases from the Borrower or any Restricted Subsidiary, (b) pay
any obligation owed to the Borrower or any Restricted Subsidiary, (c) make any
loans or advances to or investments in the Borrower or in any Restricted
Subsidiary, or (d) transfer any of its property or assets (other than property
or assets subject to Permitted Liens) to the Borrower or any Restricted
Subsidiary.
Section 7.14 Total Debt to Annualized Operating Cash Flow Ratio. (a)
As of the end of any calendar quarter, (b) at the time of any Advance which
increases the aggregate principal amount of the Loans outstanding hereunder,
and (c) at the time of any incurrence of Indebtedness, any proposed sale,
lease, transfer, exchange or other disposition of assets, any proposed
acquisition of assets, or any proposed investment in any other Person, the
Borrower shall not permit the Total Leverage Ratio for the calendar quarter
end being tested in the case of Section 7.14(a) hereof, or the most recent
quarter end for which financial statements are required to be delivered to the
Administrative Agent and the Lenders pursuant to Sections 6.1 and 6.2 hereof
in the case of Sections 7.14(b) and (c) hereof, after giving effect to the
Advance or other transaction proposed to be effected as of such date, to
exceed the ratios set forth below for calculation dates using financial
statements for periods ending during the periods shown below:
Period Senior Leverage Ratio
------ ---------------------
From the Agreement Date through December 30, 2000 6.75:1
From December 31, 2000 through December 30, 2001 6.00:1
From December 31, 2001 through December 30, 2002 5.50:1
From December 31, 2002 through December 30, 2003 5.00:1
At December 31, 2003 and all times thereafter 4:50:1
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Section 7.15 Limitation on Leases; Sale/Leasebacks. The Borrower
shall not, and shall not permit any Restricted Subsidiary to, make or be or
become obligated to make any payment in respect of any obligations as lessee
under a lease, except for (x) payments under leases to be used in connection
with the operation of its business (other than Pole Agreements and tower
rental agreements entered into in the ordinary course of business), which,
when aggregated with all other payments under such leases by the Borrower and
the Restricted Subsidiaries would not exceed in the aggregate during any one
fiscal year of the Borrower, $5,000,000, and during the term of this
Agreement, $25,000,000, and (y) payments relating to Capitalized Lease
Obligations permitted hereunder, and (z) payments under Pole Agreements and
tower rental agreements entered into in the ordinary course of business. The
Borrower shall not, and shall not permit any Restricted Subsidiary to, enter
into any sale/leaseback transaction.
ARTICLE 8
Default
Section 8.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall
be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment or order of any court or any order, rule or regulation of any
governmental or non-governmental body:
(a) Any material representation or warranty made under this
Agreement shall prove incorrect or misleading in any material respect when
made or deemed to be made pursuant to Section 4.2 hereof;
(b) The Borrower shall default in the payment of (i) any
interest under the Notes, or fees or other amounts payable hereunder or under
any other Loan Document (except as provided in clause (ii) of this Section
8.1(b)), when due and such Default shall not be cured by payment in full
within three (3) Business Days from the due date; or (ii) any principal under
the Notes, or any of them, when due;
(c) The Borrower shall default in the performance or
observance of any agreement or covenant contained in Article 6 or 7 hereof;
(d) The Borrower shall default in the performance or
observance of any other agreement or covenant contained in this Agreement not
specifically referred to elsewhere in this Section 8.1, and such default shall
not be cured to the Required Lenders' satisfaction within a period of thirty
(30) days from the date of the occurrence of such default;
(e) There shall occur any default in the performance or
observance of any agreement or covenant or material breach of any
representation or warranty contained in any of the Loan Documents (other than
this Agreement or as otherwise provided in Section 8.1 of this Agreement),
which shall not be cured to the Required Lenders' satisfaction within a period
of thirty (30) days from the date of the occurrence of such default;
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(f) ▇.▇. ▇▇▇▇▇▇▇ (individually or through his control, by
written proxy, of the voting rights of his family, employees of the Borrower
or any employee stock option plan of the Borrower with respect to the Capital
Stock of the Borrower), Tele-Communications, Inc., a Delaware corporation,
directly or indirectly through one or more direct or indirect wholly-owned
Subsidiaries, and any successors of Tele-Communications, Inc., shall own
beneficially less than sixty percent (60%) of all voting shares of the
Borrower's Capital Stock and have the right to elect less than fifty-one
percent (51%) of the members of the board of directors of the Borrower; or the
Borrower shall cease to own, directly or indirectly through a wholly-owned
Restricted Subsidiary, all of the issued and outstanding Capital Stock of the
Restricted Subsidiaries;
(g) There shall be entered a decree or order for relief in
respect of the Borrower or any Restricted Subsidiary under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
applicable Federal or state bankruptcy law or other similar law, or appointing
a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar
official of the Borrower or any Restricted Subsidiary or of any substantial
part of its properties, or ordering the winding-up or liquidation of the
affairs of the Borrower or any Restricted Subsidiary or an involuntary
petition shall be filed against the Borrower or any Restricted Subsidiary, and
(i) such petition shall not be diligently contested, or (ii) any such petition
shall continue undismissed for a period of sixty (60) consecutive days;
(h) The Borrower or any Restricted Subsidiary shall file a
petition, answer or consent seeking relief under Title 11 of the United States
Code, as now constituted or hereafter amended, or any other applicable Federal
or state bankruptcy law or other similar law, or the Borrower or any
Restricted Subsidiary shall consent to the institution of proceedings
thereunder or to the filing of any such petition or to the appointment or
taking of possession of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Borrower or any Restricted
Subsidiary or of any substantial part of its properties, or the Borrower or
any Restricted Subsidiary shall fail generally to pay its debts as they become
due, or the Borrower or any Restricted Subsidiary shall take any action in
furtherance of any such action;
(i) A final judgment shall be entered by any court against
the Borrower or any Restricted Subsidiary for the payment of money in excess
of $5,000,000 in the aggregate in excess of insurance coverage, or a warrant
of attachment or execution or similar process shall be issued or levied
against property of the Borrower or any Restricted Subsidiary which, together
with all other such property of the Borrower and the Restricted Subsidiaries
subject to other such process exceeds $5,000,000 in the aggregate in excess of
insurance coverage, and if, within thirty (30) days after the entry, issue or
levy thereof, such judgment, warrant or process shall not have been paid or
discharged or stayed pending appeal, or if, after the expiration of any such
stay, such judgment, warrant or process shall not have been paid or
discharged;
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(j) There shall be at any time any "accumulated funding
deficiency," as defined in ERISA or in Section 412 of the Code, with respect
to any Plan maintained by the Borrower, any Restricted Subsidiary or any ERISA
Affiliate, or to which the Borrower, any Restricted Subsidiary or any ERISA
Affiliate has any liabilities, or any trust created thereunder; or a trustee
shall be appointed by a United States District Court to administer any such
Plan; or the Pension Benefit Guaranty Corporation shall institute proceedings
to terminate any such Plan; or the Borrower, any Restricted Subsidiary or any
ERISA Affiliate shall incur any liability to the Pension Benefit Guaranty
Corporation in connection with the termination of any such Plan; or any Plan
or trust created under any Plan of the Borrower, any Restricted Subsidiary or
any ERISA Affiliate shall engage in a "prohibited transaction" (as such term
is defined in Section 406 of ERISA or Section 4975 of the Code) which would
subject any such Plan, any trust created thereunder, any trustee or
administrator thereof, or any party dealing with any such Plan or trust to the
tax or penalty on "prohibited transactions" imposed by Section 502 of ERISA or
Section 4975 of the Code; or the Borrower, any Restricted Subsidiary or any
ERISA Affiliate shall enter into or become obligated to contribute to a
Multiemployer Plan;
(k) There shall occur any default or event of default or any
event which gives rise to a right of redemption or similar option or privilege
with respect to Indebtedness of the Borrower or any Restricted Subsidiary or
which causes the Borrower or any Restricted Subsidiary to be required to offer
to purchase any such Indebtedness under any agreement or instrument evidencing
Indebtedness of the Borrower or any Restricted Subsidiary in an aggregate
principal amount exceeding $10,000,000, or there shall occur any material
default under any Interest Rate Hedge Agreement, fixed rate loan agreement or
other similar arrangement having a notional principal amount of $10,000,000 or
more, which default or event of default, in any such case, has not been cured
within any applicable cure period and as to which notice, if any is required
to be given in order for such event to constitute an event of default, has
been given under such agreement or instrument;
(l) Any number of Licenses shall be terminated or revoked
such that the Borrower or one or more Restricted Subsidiaries are no longer
entitled to operate the portion of the System subject to such Licenses and
retain the revenue received therefrom, or the Borrower or any Restricted
Subsidiary or any grantor or grantors of Licenses shall fail to renew any
number of Licenses at the stated expiration thereof such that the Borrower
or one or more Restricted Subsidiaries are no longer entitled to operate the
portion of the System subject to such Licenses and retain the revenue
received therefrom, and the overall effect of all such terminations,
revocations and failures to renew would be or has been to reduce, by ten
percent (10%) or more, Annualized Operating Cash Flow as of the Agreement
Date; or
(m) Any material provision of any Loan Document shall at any
time and for any reason be declared to be null and void, or a proceeding
shall be commenced by the Borrower or any Restricted Subsidiary, or by any
governmental authority having jurisdiction over the Borrower or any
Restricted Subsidiary, seeking to establish the invalidity or
unenforceability thereof (exclusive of questions of interpretation of any
provision thereof), or the Borrower or any Restricted Subsidiary shall deny
that it has any liability or obligation for the payment of principal or
interest purported to be created under any Loan Document.
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Section 8.2 Remedies. If an Event of Default shall have occurred and
shall be continuing:
(a) With the exception of an Event of Default specified in
Section 8.1(g) or (h) hereof, the Administrative Agent, at the direction of
the Required Lenders, shall (i) terminate the Commitment and/or (ii) declare
the principal of and interest on the Loans and the Notes and all other amounts
owed under this Agreement, the Notes or the other Loan Documents, to be
forthwith due and payable without presentment, demand, protest or notice of
any kind, all of which are hereby expressly waived, anything in this
Agreement, the Notes or the other Loan Documents to the contrary
notwithstanding.
(b) Upon the occurrence and continuance of an Event of
Default specified in Section 8.1(g) or (h) hereof, such principal, interest
and other amounts shall thereupon and concurrently therewith become due and
payable and the Commitment shall forthwith terminate, all without any action
by any of the Administrative Agent, the Lenders, the Required Lenders or the
holders of the Notes, and without presentment, demand, protest or other notice
of any kind, all of which are expressly waived, anything in this Agreement,
the Notes or the other Loan Documents to the contrary notwithstanding.
(c) The Administrative Agent, in accordance with Section 9.8
hereof, shall exercise all of the post-default rights granted to it under the
Loan Documents or under Applicable Law.
(d) The rights and remedies of the Administrative Agent and
the Lenders hereunder shall be cumulative, and not exclusive.
ARTICLE 9
The Agents
Section 9.1 Appointment and Authorization. Each Lender hereby
irrevocably appoints and authorizes, and hereby agrees that it will require
any transferee of any of its interest in its Loans and in its Notes
irrevocably to appoint and authorize, the Administrative Agent to take such
actions as its agent on its behalf and to exercise such powers hereunder as
are delegated by the terms hereof, together with such powers as are reasonably
incidental thereto. Neither the Administrative Agent nor any of its respective
directors, officers, employees or agents shall be liable for any action taken
or omitted to be taken by it or them hereunder or in connection herewith,
except for its or their own gross negligence or willful misconduct.
Section 9.2 Interest Holders. The Administrative Agent may treat each
Lender, or the Person designated in the last notice filed with the
Administrative Agent under this Section, as the holder of all of the interests
of such Lender in its Loans and in its Notes until written notice of transfer,
signed by such Lender (or the Person designated in the last notice filed with
the Administrative Agent) and by the Person designated in such written notice
of transfer, in form and substance satisfactory to the Administrative Agent,
shall have been filed with the Administrative Agent.
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Section 9.3 Consultation with Counsel. The Administrative Agent may
consult with such legal counsel selected by it and shall not be liable for any
action taken or suffered by it in good faith reliance on the advice of such
counsel.
Section 9.4 Documents. The Administrative Agent shall be under no
duty to examine, inquire into, or pass upon the validity, effectiveness or
genuineness of this Agreement, any Note, or any other instrument, document or
communication furnished pursuant hereto or in connection herewith, and the
Administrative Agent shall be entitled to assume that they are valid,
effective and genuine, have been signed or sent by the proper parties and are
what they purport to be.
Section 9.5 Administrative Agent and Affiliates. With respect to the
Loans and all other matters herein, the Lender which is an affiliate of the
Administrative Agent shall have the same rights and powers hereunder as any
other Lender and the Administrative Agent and its affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
the Borrower and its Subsidiaries, and any Affiliates of, or Persons doing
business with, the Borrower and its Subsidiaries, as if it were not affiliated
with the Administrative Agent and without any obligation to account therefor.
The Lenders acknowledge that the Administrative Agent and its affiliates have
other lending and investment relationships with the Borrower and its
Subsidiaries and its Affiliates and in the future may enter into additional
such relationships.
Section 9.6 Responsibility of the Administrative Agent. The duties
and obligations of the Administrative Agent under this Agreement are only
those expressly set forth in this Agreement. The Administrative Agent shall be
entitled to assume that no Default or Event of Default has occurred and is
continuing unless it has actual knowledge, or has been notified by the
Borrower, of such fact, or has been notified by a Lender that such Lender
considers that a Default or an Event of Default has occurred and is
continuing, and such Lender shall specify in detail the nature thereof in
writing. The Administrative Agent shall not be liable hereunder for any action
taken or omitted to be taken except for its gross negligence or willful
misconduct.
Section 9.7 Action by Administrative Agent.
(a) The Administrative Agent shall be entitled to use its
discretion with respect to exercising or refraining from exercising any rights
which may be vested in it by, and with respect to taking or refraining from
taking any action or actions which it may be able to take under or in respect
of, this Agreement, unless the Administrative Agent shall have been instructed
by the Required Lenders to exercise or refrain from exercising such rights or
to take or refrain from taking such action; provided, however, that the
Administrative Agent shall not exercise any rights under Section 8.2(a) or (c)
hereof without the request of the Required Lenders. The Administrative Agent
shall not incur any liability under or in respect of this Agreement with
respect to anything which it may do or refrain from doing in the reasonable
exercise of its judgment or which may seem to it to be necessary or desirable
in the circumstances, except for its gross negligence or willful misconduct.
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(b) The Administrative Agent shall not be liable to the
Lenders or to any Lender in acting or refraining from acting under this
Agreement in accordance with the instructions of the Required Lenders or all
the Lenders, if expressly required by the terms of this Agreement, and any
action taken or failure to act pursuant to such instructions shall be binding
on all Lenders.
Section 9.8 Notice of Default or Event of Default. In the event that
the Administrative Agent or any Lender shall acquire actual knowledge, or
shall have been notified, of any Default or Event of Default, the
Administrative Agent or such Lender shall promptly notify the Lenders and the
Administrative Agent, and the Administrative Agent shall take such action and
assert such rights under this Agreement as the Required Lenders shall request
in writing, and the Administrative Agent shall not be subject to any liability
by reason of its action pursuant to any such request. If the Required Lenders
shall fail to request the Administrative Agent to take action or to assert
rights under this Agreement in respect of any Default or Event of Default
within ten (10) days after their receipt of the notice of any Default or Event
of Default from the Administrative Agent, or shall request inconsistent action
with respect to such Default or Event of Default, the Administrative Agent
may, but shall not be required to, take such action and assert such rights as
it deems in its discretion to be advisable for the protection of the Lenders;
provided, however, that, if the Required Lenders have instructed the
Administrative Agent not to take such action or assert such right, in no event
shall the Administrative Agent act contrary to such instructions.
Section 9.9 Responsibility Disclaimed. The Administrative Agent shall
be under no liability or responsibility whatsoever as Administrative Agent:
(a) To the Borrower or any other Person as a consequence of
any failure or delay in performance by or any breach by, any Lender of any of
its or their obligations under this Agreement;
(b) To any Lender, as a consequence of any failure or delay
in performance by, or any breach by, the Borrower or any other Person of any
of its obligations under this Agreement or the Notes or any other Loan
Document; or
(c) To any Lender, for any statements, representations or
warranties in this Agreement, or any other document contemplated by this
Agreement, or any information provided pursuant to this Agreement, any other
Loan Document, or any other document contemplated by this Agreement, or for
the validity, effectiveness, enforceability or sufficiency of this Agreement,
the Notes, any other Loan Document, or any other document contemplated by this
Agreement.
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Section 9.10 Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower) pro rata
according to their respective Commitment Ratios, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including reasonable fees and expenses of experts,
agents, consultants and counsel), or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of this Agreement,
any other Loan Document, or any other document contemplated by this Agreement
or any action taken or omitted by the Administrative Agent under this
Agreement, any other Loan Document, or any other document contemplated by this
Agreement, except that no Lender shall be liable to the Administrative Agent
for any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses, or disbursements resulting from
the gross negligence or willful misconduct of the Administrative Agent.
Section 9.11 Credit Decision. Each Lender represents and warrants to
each other and to the Administrative Agent and the Borrower that:
(a) In making its decision to enter into this Agreement and
to make its Advances it has independently taken whatever steps it considers
necessary to evaluate the financial condition and affairs of the Borrower and
the Restricted Subsidiaries and that it has made an independent credit
judgment, and that it has not relied upon information provided by the
Administrative Agent; and
(b) So long as any portion of the Loans remains outstanding,
it will continue to make its own independent evaluation of the financial
condition and affairs of the Borrower and the Restricted Subsidiaries.
Section 9.12 Successor Agents. The Administrative Agent may resign at
any time by giving written notice thereof to the Lenders and the Borrower, and
may be removed at any time for cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent and, prior to the occurrence and continuance of
an Event of Default, with the consent of the Borrower which consent shall not
be unreasonably withheld or delayed. If no successor Administrative Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within ten (10) days after the retiring Administrative
Agent's giving of notice of resignation or the Required Lenders' removal of
the retiring Administrative Agent, then the retiring Administrative Agent may,
on behalf of the Lenders, appoint a successor Administrative Agent which shall
be any Lender or a commercial bank organized under the laws of the United
States of America or any political subdivision thereof which has combined
capital and reserves in excess of $250,000,000. Such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges, duties and obligations of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. After any retiring Administrative Agent's
resignation or removal hereunder as Administrative Agent, the provisions of
this Article shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as
Administrative Agent.
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Section 9.13 Arranging Agents. The Arranging Agents shall have no
duties or obligations under this Agreement or the other Loan Documents in
their capacities as Arranging Agents other than as expressly provided herein.
ARTICLE 10
Change in Circumstances Affecting Advances
Section 10.1 LIBOR Basis Determination Inadequate or Unfair. If with
respect to any proposed LIBOR Advance for any Interest Period, any Lender
determines that deposits in dollars (in the applicable amount) are not being
offered to such Lender in the relevant market for such Interest Period, or if
the rate quoted by the Administrative Agent does not reflect such Lender's
actual cost of funding such Advance, such Lender shall forthwith give notice
thereof to the Administrative Agent, the Borrower and the Lenders, whereupon
until the Administrative Agent notifies the Borrower that the circumstances
giving rise to such situation no longer exist, the obligations of such Lender
to make LIBOR Advances shall be suspended.
Section 10.2 Illegality. If any applicable law, rule
or regulation, or any change therein, or any interpretation or change in
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency, shall make it unlawful or impossible for
any Lender to make, maintain or fund its LIBOR Advances, such Lender shall
notify the Administrative Agent, and the Administrative Agent shall forthwith
give notice thereof to the Lenders and the Borrower. Before giving any notice
to the Administrative Agent pursuant to this Section, such Lender shall
designate a different lending office if such designation will avoid the need
for giving such notice and will not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender. Upon receipt of such notice,
notwithstanding anything contained in Article 2 hereof, the Borrower shall
repay in full the then outstanding principal amount of each LIBOR Advance of
such Lender so affected, together with accrued interest thereon, either (a) on
the last day of the then current Interest Period applicable to such Advance if
such Lender may lawfully continue to maintain and fund such Advance to such
day or (b) immediately if such Lender may not lawfully continue to fund and
maintain such Advance to such day. Concurrently with repaying each LIBOR
Advance of such Lender so affected, notwithstanding anything contained in
Article 2 hereof, the Borrower shall borrow a Base Rate Advance from such
Lender, and such Lender shall make such Advance in an amount such that the
outstanding principal amount of the Notes held by such Lender shall equal the
outstanding principal amount of such Notes immediately prior to such
repayment.
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Section 10.3 Increased Costs.
(a) If any applicable law, rule or regulation, or any change
therein, or any interpretation or change in interpretation or administration
thereof by any governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof or compliance by any
Lender with any request or directive (whether or not having the force of law)
of any such authority, central bank or comparable agency:
(1) shall subject any Lender to any tax, duty or
other charge with respect to this Agreement, the Notes, the
Loans or payments by the Borrower of principal, interest,
fees or other amounts due from the Borrower hereunder or
under the Notes or its obligation to make Loans hereunder
(except for taxes on the overall net income of such Lender),
or shall change the basis of taxation of payments to any
Lender of the principal of or interest on its Loans or in
respect of any other amounts due under this Agreement in
respect of its Loans, or its obligation to make Loans; or
(2) shall impose, modify or deem applicable any
reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System, but
excluding any included in an applicable LIBOR Reserve
Percentage), special deposit, capital adequacy, assessment
or other requirement or condition against assets of,
deposits with or for the account of, or commitments or
credit extended by, any Lender or shall impose on any Lender
or the London Interbank Borrowing Market any other condition
affecting its obligation to make Loans;
and the result of any of the foregoing is to increase the cost to such Lender
of making or maintaining any such Loans, or to reduce the amount of any sum
received or receivable by the Lender under this Agreement or under its Notes
with respect thereto, then, on the earlier of a date within fifteen (15) days
after demand by such Lender or the Maturity Date, the Borrower agrees to pay
to such Lender such additional amount or amounts as will compensate such
Lender for such increased costs. Each Lender will promptly notify the Borrower
and the Administrative Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to compensation pursuant
to this Section 10.3 and will designate a different lending office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the sole judgment of such Lender made in good
faith, be otherwise disadvantageous to such Lender.
(b) A certificate of any Lender claiming compensation under
this Section 10.3 and setting forth the additional amount or amounts to be
paid to it hereunder and calculations therefor shall be presumptively correct
in the absence of manifest error. In determining such amount, such Lender may
use any reasonable averaging and attribution methods. If any Lender demands
compensation under this Section 10.3 with respect to LIBOR Advances, the
Borrower may at any time, upon at least three (3) Business Days' prior notice
to such Lender, prepay in full the then outstanding LIBOR Advances of such
Lender, together with accrued interest thereon to the date of prepayment,
along with any reimbursement required under Section 2.10 hereof. Concurrently
with prepaying such LIBOR Advances the Borrower shall borrow a Base Rate
Advance from such Lender, and such Lender shall make such Advance in an amount
such that the outstanding principal amount of the Notes held by such Lender
shall equal the outstanding principal amount of such Notes immediately prior
to such prepayment.
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Section 10.4 Effects on Other Advances. If notice has been given
pursuant to Section 10.1, 10.2 or 10.3 hereof suspending the obligation of any
Lender to make any LIBOR Advance, or requiring LIBOR Advances of any Lender to
be repaid or prepaid, then, unless and until the Administrative Agent notifies
the Borrower that the circumstances giving rise to such repayment no longer
apply, all Advances which would otherwise be made by such Lender as LIBOR
Advances shall be made instead as Base Rate Advances.
ARTICLE 11
Miscellaneous
Section 11.1 Notices.
(a) Except as provided in the following sentence, all
notices and other communications under this Agreement shall be in writing and
shall be deemed to have been given three (3) days after deposit in the mail,
designated as certified mail, return receipt requested, post-prepaid, or one
(1) day after being entrusted to a reputable commercial overnight delivery
service, or when sent out by telecopy addressed to the party to which such
notice is directed at its address determined as provided in this Section 11.1.
All Requests for Advances and other borrowing and payment notices shall be in
writing and shall be deemed to be given only upon actual receipt by the
Administrative Agent. All notices and other communications under this
Agreement shall be given to the parties hereto at the following addresses:
(i) If to the Borrower, to it at:
▇▇▇▇▇▇▇ Communications, Inc.
c/o The ▇▇▇▇▇▇▇ Group
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Esq.
with a copy to (which copy shall not constitute notice):
Saul, Ewing, ▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy No: (▇▇▇) ▇▇▇-▇▇▇▇
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(ii) If to the Administrative Agent, to it at:
NationsBank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇
with a copy to (which copy shall not constitute notice):
Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to the Documentation Agent, the Syndication
Agent or the Lenders, to them at the address set
forth on Schedule 14 attached hereto.
Copies shall be provided to persons other than parties hereto only in the case
of notices under Article 8 hereof.
(b) Any party hereto may change the address to which notices
shall be directed under this Section 11.1 by giving ten (10) days' written
notice of such change to other parties.
Section 11.2 Expenses. The Borrower will promptly pay:
(a) all reasonable out-of-pocket costs and expenses of the
Arranging Agents in connection with the preparation, negotiation, execution
and delivery of this Agreement and other Loan Documents, and the transactions
contemplated hereunder and thereunder and the making of the initial Advance
hereunder whether or not such Advance is made; provided, however, that legal
fees and expenses under this Section 11.2(a) shall be limited to the
reasonable fees and disbursements of Powell, Goldstein, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
Atlanta, Georgia, special counsel for the Arranging Agents;
(b) all reasonable out-of-pocket costs and expenses of the
Administrative Agent in connection with the administration of the transactions
contemplated in this Agreement or the other Loan Documents (other than routine
overhead expenses) and the preparation, negotiation, execution and delivery of
any waiver, amendment or consent by the Lenders or the Required Lenders
relating to this Agreement or the other Loan Documents, including, but not
limited to, the reasonable fees and disbursements of any experts, agents or
consultants and of counsel for the Administrative Agent; and
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(c) all reasonable out-of-pocket costs and expenses of the
Administrative Agent and the Lenders in obtaining performance under this
Agreement or the other Loan Documents and in connection with any
restructuring, refinancing or "work out" of the transactions contemplated
hereby and thereby, and all reasonable out-of-pocket costs and expenses of
collection if default is made in the payment of the Notes, which in each case
shall include reasonable fees and out-of-pocket expenses of any experts,
agents, consultants and counsel for each of the Administrative Agent and the
Lenders.
Section 11.3 Waivers. The rights and remedies of the Administrative
Agent and the Lenders under this Agreement and the other Loan Documents shall
be cumulative and not exclusive of any rights or remedies which they would
otherwise have. No failure or delay by the Administrative Agent, the Required
Lenders, and the Lenders, or any of them, in exercising any right shall
operate as a waiver of such right. The Administrative Agent and the Lenders
expressly reserve the right to require strict compliance with the terms of
this Agreement in connection with any funding of a request for an Advance. In
the event the Lenders decide to fund a request for an Advance at a time when
the Borrower is not in strict compliance with the terms of this Agreement,
such decision by the Lenders shall not be deemed to constitute an undertaking
by the Lenders to fund any further requests for Advances or preclude the
Lenders from exercising any rights available to the Lenders under the Loan
Documents or at law or equity. Any waiver or indulgence granted by the Lenders
or by the Required Lenders shall not constitute a modification of this
Agreement, except to the extent expressly provided in such waiver or
indulgence, or constitute a course of dealing by the Administrative Agent and
the Lenders at variance with the terms of this Agreement such as to require
further notice by the Administrative Agent and the Lenders of their intent to
require strict adherence to the terms of this Agreement in the future. Any
such actions shall not in any way affect the ability of the Administrative
Agent and the Lenders, in their discretion, to exercise any rights available
to them under this Agreement or under any other agreement, whether or not the
Administrative Agent and the Lenders are party, relating to the Borrower.
Section 11.4 Set-Off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon the occurrence of an Event of Default and during the continuation
thereof, the Lenders and any subsequent holder or holders of the Notes are
hereby authorized by the Borrower at any time or from time to time, without
notice to the Borrower (other than as expressly provided below) or to any
other Person, any such notice being hereby expressly waived, to set-off,
appropriate and apply any and all deposits (general or special, time or
demand, including, without limitation, Indebtedness evidenced by certificates
of deposit, in each case whether matured or unmatured) and any other
Indebtedness at any time held or owing by the Lenders or such holder to or for
the credit or the account of the Borrower, against and on account of the
obligations and liabilities of the Borrower, to the Lenders or such holder
under this Agreement, the Notes and any other Loan Document, including,
without limitation, all claims of any nature or description arising out of or
connected with this Agreement, the Notes or any other Loan Document,
irrespective of whether (a) the Lenders or the holder of the Notes shall have
made any demand hereunder or (b) the Lenders shall have declared the principal
of and interest on the Loans, Notes, and other amounts due hereunder, to be
due and payable as permitted by Section 8.2 hereof and although such
obligations and liabilities, or any of them, shall be contingent or unmatured.
Any sums obtained by any Lender or by any subsequent holder of the Notes shall
be subject to the pro rata treatment provisions of Section 2.11 hereof. Upon
direction by the Administrative Agent with the consent of the Required
Lenders, each Lender holding deposits of the Borrower shall exercise its
set-off rights as so directed. The Administrative Agent shall give the
Borrower notice of any exercise of set-off rights of which it is aware after
the occurrence thereof; provided, however, that failure by the Administrative
Agent to provide such notice shall not invalidate or otherwise render
inappropriate or unlawful any such exercise of set-off rights hereunder.
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Section 11.5 Assignment.
(a) The Borrower may not assign or transfer any of its
rights or obligations hereunder or under the Notes without the prior written
consent of the Administrative Agent and the Lenders.
(b) Each Lender may at any time enter into assignment
agreements or participations with one or more other banks or other Persons
pursuant to which such Lender may assign or participate its interest under
this Agreement, the Notes and the other Loan Documents, including, without
limitation, its interest in any particular Advance or portion thereof, as
follows:
(i) Each Lender may sell assignments or
participations of up to one hundred percent (100%) of its
interest hereunder to (A) one or more U.S. affiliates of
such Lender, and (B) any Federal Reserve Bank as collateral
security pursuant to Regulation A of the Board of Governors
of the Federal Reserve System and any Operating Circular
issued by such Federal Reserve Bank, without restriction.
(ii) All other assignments and participations (as
applicable) shall be subject to the following additional
terms and conditions:
(A) No Lender shall assign its interests
in the Commitment without (i) obtaining the prior consent of
the Administrative Agent and, (ii) so long as no Default has
occurred and is continuing, obtaining the prior consent of
the Borrower. No such consent shall be unreasonably withheld
or delayed.
(B) Any Person purchasing a participation
or an assignment of the Loans from a Lender shall be
required to represent and warrant that its purchase shall
not constitute a "prohibited transaction" (as defined in
Section 406 of ERISA or Section 4975 of the Code).
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(C) Assignments (including any assignment
of any Advance or portion thereof) may be made with all
voting rights, and shall be made pursuant to an Assignment
and Assumption Agreement substantially in the form attached
hereto as Exhibit I. No assignment shall be in an amount
less than $10,000,000 or such lesser amount as shall be
agreed to by the Borrower and the Administrative Agent. As
of the effective date thereof, assignments shall relieve the
assigning Lender of all future obligations with respect to
the portion of the Loans so assigned and shall confer on the
assignee all rights and obligations of the assigning Lender
with respect to such portion of the Loans.
(D) Participants shall have the same
rights and benefits as the assigning Lender under Sections
2.10 and 2.12 hereof and Articles 6 and 10 hereof.
(E) No participation agreement shall
confer any rights under this Agreement or the other Loan
Documents to any purchaser thereof, or relieve the selling
Lender from its obligations under this Agreement; provided,
however, that a participation agreement may confer on the
participant the right to approve or disapprove (w) decreases
in the interest rates or commitment fees applicable to the
Loans, (x) any forgiveness of principal or interest, (y) any
extension of any Maturity Date or any scheduled date for the
payment of principal or reduction in the Commitment, or (z)
any release of any collateral or guaranty with respect to
the Obligations.
(F) No assignment, participation or other
transfer of any rights hereunder or under the Notes shall be
effected that would result in any interest requiring
registration under the Securities Act of 1933, as amended,
or qualification under any state securities law.
(G) If applicable, the assigning Lender
shall, and shall cause each of its assignees and
participants to provide to the Administrative Agent on or
prior to the Agreement Date or effective date of any
assignment, as the case may be, an appropriate Internal
Revenue Service form as required by Applicable Law
supporting the assignee's or participant's position that no
withholding by the Borrower for U.S. income tax payable by
the Lenders and their assignees and participants in respect
of amounts received by it hereunder is required. For
purposes of this Agreement, an appropriate Internal Revenue
Service form shall mean Form 1001 (Ownership Exemption or
Reduced Rate Certificate of the U.S. Department of
Treasury), or Form 4224 (Exemption from Withholding of Tax
on Income Effectively Connected with the Conduct of a Trade
or Business in the United States), or any successor or
related forms adopted by the relevant U.S. taxing
authorities.
(c) The Borrower hereby agrees that any holder of a
participation in, and any assignee or transferee of, all or any portion of any
amount owed by the Borrower under this Agreement and the Notes may exercise
any and all rights of banker's lien, set-off, or counterclaim with respect to
any and all amounts owed by the Borrower to such assignee, transferee, or
holder as fully as if such assignee, transferee, or holder had made the Loans
in the amount of the obligation in which it holds a participation or which is
assigned or transferred to it.
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(d) Except as specifically set forth in this Section,
nothing in this Agreement or the other Loan Documents, expressed or implied,
is intended to or shall confer on any Person other than the respective parties
hereto and thereto and their successors and assignees permitted hereunder and
thereunder any benefit or any legal or equitable right, remedy, or other claim
under this Agreement or the other Loan Documents.
(e) Each Lender who sells or assigns a portion of its Loans,
Commitment and/or Notes, including, without limitation, to another Lender, but
excluding assignments made pursuant to Section 11.5(b)(i) hereof, shall pay to
the Administrative Agent an assignment fee of $3,500 for each such assignment
on or before the effective date of such assignment.
(f) The provisions of this Section 11.5 shall not apply to
any purchase of participations among the Lenders pursuant to Section 2.11
hereof.
Section 11.6 Accounting Principles. All references in this Agreement
to generally accepted accounting principles shall be to such principles as in
effect from time to time. All accounting terms used herein without definition
shall be used as defined under GAAP. All calculations to be made hereunder
with respect to the Borrower and the Restricted Subsidiaries on a consolidated
basis shall be made using the special-purpose financial statements of such
Persons on a consolidated basis prepared in accordance herewith.
Section 11.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, but
all such separate counterparts shall together constitute but one and the same
instrument.
Section 11.8 Governing Law. This Agreement and the other Loan
Documents shall be construed in accordance with and governed by the internal
laws of the State of New York, without giving effect to any conflict of law
principles.
Section 11.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof in that jurisdiction or affecting the validity or enforceability of
such provision in any other jurisdiction.
Section 11.10 Interest.
(a) In no event shall the amount of interest due or payable
hereunder or under the Notes exceed the maximum rate of interest allowed by
Applicable Law, and in the event any such payment is inadvertently made by the
Borrower or inadvertently received by any Lender, then such excess sum shall
be credited as a payment of principal, unless the Borrower shall notify such
Lender in writing that it elects to have such excess sum returned forthwith.
It is the express intent hereof that the Borrower not pay and the Lenders not
receive, directly or indirectly in any manner whatsoever, interest in excess
of that which may legally be paid by the Borrower under Applicable Law.
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(b) Notwithstanding the use by the Lenders of the Base Rate
and LIBOR as reference rates for the determination of interest on the Loans,
the Lenders shall be under no obligation to obtain funds from any particular
source in order to charge interest to the Borrower at interest rates tied to
such reference rates.
Section 11.11 Headings. Headings used in this Agreement are for
convenience only and shall not be used in connection with the interpretation
of any provision hereof.
Section 11.12 Amendment and Waiver. Neither this Agreement nor any
term hereof may be amended orally, nor may any provision hereof be waived
orally but only by an instrument in writing signed by the Required Lenders
and, in the case of an amendment, also by the Borrower, except that in the
event of (a) any decrease (other than pro rata) or any increase in the amount
of the Commitment, (b) any delay in the timing of, or reduction of the amount
of, any mandatory reduction in the Commitment or any payments of principal,
interest, and fees due hereunder, or any change in the method of calculating
interest and fees payable hereunder, (c) any release or impairment of
collateral or any guaranty issued in favor of the Administrative Agent and the
Lenders in respect of the Obligations, (d) any waiver of any Event of Default
arising from the failure by the Borrower to pay any sum due hereunder, or (e)
any amendment of Section 2.11 or this Section 11.12 or of the definition of
Required Lenders or any provision specifying the number of Lenders required to
take action hereunder, any amendment or waiver may be made only by an
instrument in writing signed by each of the Lenders and, in the case of an
amendment, also by the Borrower.
Section 11.13 Entire Agreement. Except as otherwise expressly
provided herein, this Agreement and the other documents described or
contemplated herein embody the entire agreement and understanding among the
parties hereto and thereto and supersede all prior agreements and
understandings relating to the subject matter hereof and thereof.
Section 11.14 Consent to Jurisdiction. The Borrower agrees that any
suit, action or proceeding with respect to this Agreement or Advances
hereunder may be brought in any court of the United States of America for the
Southern District of New York or the State of New York, and by execution and
delivery of this Agreement the Borrower irrevocably submits to each such
jurisdiction for that purpose. The Borrower irrevocably waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to
the laying of the venue of any such suit, action or proceeding brought in such
court and any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. The Borrower agrees that a
final judgment in any such suit, action or proceeding brought in such a court,
after all appropriate appeals, shall be conclusive and binding upon the
Borrower.
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Section 11.15 Confidentiality. The Lenders shall hold all non-public,
proprietary or confidential information (which has been identified as such by
the Borrower) obtained pursuant to the requirements of this Agreement in
accordance with their customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices; however, the Lenders may make disclosure of any such information to
their examiners, Affiliates, outside auditors, counsel, consultants,
appraisers and other professional advisors in connection with this Agreement
or as reasonably required by any proposed syndicate member or any proposed
transferee or participant in connection with the contemplated transfer of any
Note or participation therein or as required or requested by any governmental
authority or representative thereof or in connection with the enforcement
hereof or of any Loan Document or related document or pursuant to legal
process or with respect to any litigation between or among the Borrower and
any of the Lenders or involving any Lender. In no event shall any Lender be
obligated or required to return any materials furnished to it by the Borrower.
The foregoing provisions shall not apply to a Lender with respect to
information that (i) is or becomes generally available to the public (other
than through such Lender), (ii) is already in the possession of such Lender on
a nonconfidential basis, or (iii) comes into the possession of such Lender in
a manner not involving a breach of a duty of confidentiality owing to the
Borrower.
Section 11.16 Senior Debt. The Obligations of the Borrower hereunder
are intended by the parties hereto to be Senior Debt and rank pari passu with
all other Senior Debt and senior in right of payment to all Subordinated Debt
of the Borrower.
ARTICLE 12
Waiver of Jury Trial
Section 12.1 Waiver of Jury Trial. THE BORROWER, THE ADMINISTRATIVE
AGENT, EACH LENDER AND EACH ARRANGING AGENT HEREBY WAIVE THE RIGHT TO A TRIAL
BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING OF ANY TYPE IN WHICH THE
BORROWER, THE ADMINISTRATIVE AGENT, THE LENDERS AND THE ARRANGING AGENTS, OR
ANY OF THEM, OR ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS, IS A PARTY, AS
TO ALL MATTERS AND THINGS ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
AGREEMENT, ANY OF THE NOTES OR THE OTHER LOAN DOCUMENTS AND THE RELATIONS
AMONG THE PARTIES SET FORTH ABOVE.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
or caused it to be executed under seal by their duly authorized officers, all
as of the day and year first above written.
BORROWER: ▇▇▇▇▇▇▇ COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
[CORPORATE SEAL] Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: VICE PRESIDENT AND TREASURER
------------------------------
Attest: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
-----------------------------------
Title: VICE PRESIDENT AND GENERAL COUNSEL
-----------------------------------
▇▇▇▇▇▇▇ Communications, Inc.
Signature 1
NATIONSBANK, N.A., as Administrative Agent,
Arranging Agent and Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
▇▇▇▇▇▇▇ Communications, Inc.
Signature 2
SALOMON BROTHERS HOLDING COMPANY
INC, as Arranging Agent, Documentation Agent
and Lender
By: /s/ ▇▇▇▇ ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
-----------------------------------
Title: MANAGING DIRECTOR
----------------------------------
▇▇▇▇▇▇▇ Communications, Inc.
Signature 3
ROYAL BANK OF CANADA, as Arranging
Agent, Syndication Agent and Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Title: MANAGER
--------------------------
▇▇▇▇▇▇▇ Communications, Inc.
Signature 4
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Title: VICE PRESIDENT
--------------------------
▇▇▇▇▇▇▇ Communications, Inc.
Signature ▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as a Lender
By: /s/ ▇. ▇. ▇▇▇▇▇▇
-------------------------------
Name:
--------------------------
Title:
--------------------------
▇▇▇▇▇▇▇ Communications, Inc.
Signature 6
THE FIRST NATIONAL BANK OF
MARYLAND, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: VICE PRESIDENT
--------------------------
▇▇▇▇▇▇▇ Communications, Inc.
Signature 7
THE DAI-ICHI KANGYO BANK LIMITED,
as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Title: VICE PRESIDENT
--------------------------
▇▇▇▇▇▇▇ Communications, Inc.
Signature 8
SUMMIT BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: REGIONAL VICE PRESIDENT
--------------------------
▇▇▇▇▇▇▇ Communications, Inc.
Signature 9
SUNTRUST BANK, CENTRAL FLORIDA,
N.A., as a Lender
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
Title: VICE PRESIDENT
--------------------------
▇▇▇▇▇▇▇ Communications, Inc.
Signature 10
BANQUE NATIONALE DE PARIS., as a Lender
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Title: SENIOR VICE PRESIDENT AND MANAGER
------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇. ▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇. ▇▇
------------------------------
Title: VICE PRESIDENT
------------------------------
▇▇▇▇▇▇▇ Communications, Inc.
Signature 11
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS............................................................................................2
ARTICLE 2 LOANS.................................................................................................17
2.1 THE LOANS.............................................................................................18
2.2 MANNER OF BORROWING AND DISBURSEMENT..................................................................18
2.3 INTEREST..............................................................................................20
2.4 COMMITMENT FEES.......................................................................................22
2.5 COMMITMENT REDUCTIONS.................................................................................22
2.6 PREPAYMENT............................................................................................24
2.7 REPAYMENT.............................................................................................24
2.8 NOTES; LOAN ACCOUNTS..................................................................................25
2.9 MANNER OF PAYMENT.....................................................................................25
2.10 REIMBURSEMENT.........................................................................................27
2.11 PRO RATA TREATMENT....................................................................................27
2.12 CAPITAL ADEQUACY......................................................................................28
2.13 INCREASES IN THE COMMITMENT...........................................................................29
ARTICLE 3 CONDITIONS PRECEDENT..................................................................................29
3.1 CONDITIONS PRECEDENT TO INITIAL ADVANCE...............................................................29
3.2 CONDITIONS PRECEDENT TO EACH ADVANCE..................................................................31
3.3 CONDITIONS PRECEDENT TO EACH COMMITMENT INCREASE......................................................31
ARTICLE 4 REPRESENTATIONS AND WARRANTIES........................................................................32
4.1 REPRESENTATIONS AND WARRANTIES........................................................................32
4.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC.......................................................40
ARTICLE 5 GENERAL COVENANTS.....................................................................................40
5.1 PRESERVATION OF EXISTENCE AND SIMILAR MATTERS.........................................................40
5.2 BUSINESS; COMPLIANCE WITH APPLICABLE LAW..............................................................40
5.3 MAINTENANCE OF PROPERTIES.............................................................................41
5.4 ACCOUNTING METHODS AND FINANCIAL RECORDS..............................................................41
5.5 INSURANCE.............................................................................................41
5.6 PAYMENT OF TAXES AND CLAIMS...........................................................................41
5.7 VISITS AND INSPECTIONS................................................................................42
5.8 PAYMENT OF INDEBTEDNESS; LOANS........................................................................42
5.9 USE OF PROCEEDS.......................................................................................42
5.10 INDEMNITY.............................................................................................42
5.11 INTEREST RATE HEDGING.................................................................................43
5.12 YEAR 2000 COMPLIANCE..................................................................................43
5.13 FURTHER ASSURANCES....................................................................................43
ARTICLE 6 INFORMATION COVENANTS.................................................................................44
6.1 QUARTERLY FINANCIAL STATEMENTS........................................................................44
6.2 ANNUAL FINANCIAL STATEMENTS...........................................................................44
6.3 MONTHLY OPERATING REPORTS.............................................................................45
6.4 PERFORMANCE CERTIFICATES..............................................................................45
6.5 COPIES OF OTHER REPORTS...............................................................................46
6.6 NOTICE OF LITIGATION AND OTHER MATTERS................................................................46
ARTICLE 7 NEGATIVE COVENANTS....................................................................................46
7.1 INDEBTEDNESS OF THE BORROWER AND THE RESTRICTED SUBSIDIARIES..........................................47
7.2 LIMITATION ON LIENS...................................................................................48
7.3 AMENDMENT AND WAIVER..................................................................................48
7.4 LIQUIDATION, CHANGE IN OWNERSHIP, DISPOSITION OR ACQUISITION OF ASSETS; CHANGE IN BUSINESS............49
7.5 LIMITATION ON GUARANTIES..............................................................................50
7.6 INVESTMENTS...........................................................................................50
7.7 RESTRICTED PAYMENTS AND PURCHASES.....................................................................51
7.8 SENIOR LEVERAGE RATIO.................................................................................52
7.9 OPERATING CASH FLOW TO TOTAL INTEREST EXPENSE RATIO...................................................52
7.10 ANNUALIZED OPERATING CASH FLOW TO PRO FORMA DEBT SERVICE RATIO........................................53
7.11 AFFILIATE TRANSACTIONS................................................................................53
7.12 ERISA LIABILITIES.....................................................................................53
7.13 RESTRICTIONS ON UPSTREAM DIVIDENDS BY SUBSIDIARIES....................................................53
7.14 TOTAL DEBT TO ANNUALIZED OPERATING CASH FLOW RATIO....................................................53
7.15 LIMITATION ON LEASES; SALE/LEASEBACKS.................................................................54
ARTICLE 8 DEFAULT...............................................................................................54
8.1 EVENTS OF DEFAULT.....................................................................................54
8.2 REMEDIES..............................................................................................57
ARTICLE 9 THE AGENTS............................................................................................58
9.1 APPOINTMENT AND AUTHORIZATION.........................................................................58
9.2 INTEREST HOLDERS......................................................................................58
9.3 CONSULTATION WITH COUNSEL.............................................................................58
9.4 DOCUMENTS.............................................................................................58
9.5 ADMINISTRATIVE AGENT AND AFFILIATES...................................................................58
9.6 RESPONSIBILITY OF THE ADMINISTRATIVE AGENT............................................................59
9.7 ACTION BY ADMINISTRATIVE AGENT........................................................................59
9.8 NOTICE OF DEFAULT OR EVENT OF DEFAULT.................................................................59
9.9 RESPONSIBILITY DISCLAIMED.............................................................................60
9.10 INDEMNIFICATION.......................................................................................60
9.11 CREDIT DECISION.......................................................................................60
9.12 SUCCESSOR AGENTS......................................................................................61
9.13 ARRANGING AGENTS......................................................................................61
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ARTICLE 10 CHANGE IN CIRCUMSTANCES AFFECTING ADVANCES............................................................61
10.1 LIBOR BASIS DETERMINATION INADEQUATE OR UNFAIR........................................................61
10.2 ILLEGALITY............................................................................................62
10.3 INCREASED COSTS.......................................................................................62
10.4 EFFECTS ON OTHER ADVANCES.............................................................................63
ARTICLE 11 MISCELLANEOUS.........................................................................................64
11.1 NOTICES...............................................................................................64
11.2 EXPENSES..............................................................................................65
11.3 WAIVERS...............................................................................................66
11.4 SET-OFF...............................................................................................66
11.5 ASSIGNMENT............................................................................................67
11.6 ACCOUNTING PRINCIPLES.................................................................................69
11.7 COUNTERPARTS..........................................................................................69
11.8 GOVERNING LAW.........................................................................................69
11.9 SEVERABILITY..........................................................................................69
11.10 INTEREST..............................................................................................69
11.11 HEADINGS..............................................................................................70
11.12 AMENDMENT AND WAIVER..................................................................................70
11.13 ENTIRE AGREEMENT......................................................................................70
11.14 CONSENT TO JURISDICTION...............................................................................70
11.15 CONFIDENTIALITY.......................................................................................70
11.16 SENIOR DEBT...........................................................................................71
ARTICLE 12 WAIVER OF JURY TRIAL..................................................................................71
12.1 WAIVER OF JURY TRIAL..................................................................................71
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EXHIBITS
Exhibit A - Form of Certificate of Financial Condition
Exhibit B - Form of Promissory Note
Exhibit C - Form of Notice of Increased Commitment
Exhibit D - Form of Request for Advance
Exhibit E - Form of Borrower Loan Certificate
Exhibit F - Form of Quarterly Capital Expenditure Report
Exhibit G - Form of Performance Certificate
Exhibit H - Form of Assignment and Assumption Agreement
SCHEDULES
Schedule 1 - Licenses
Schedule 2 - Liens as of the Agreement Date
Schedule 3 - Pole Agreements
Schedule 4 - Subsidiaries
Schedule 5 - Overbuilding
Schedule 6 - Real Property
Schedule 7 - Litigation
Schedule 8 - Agreements with Affiliates
Schedule 9 - Collective Bargaining
Schedule 10 - Ownership of Borrower
Schedule 11 - Existing Indebtedness
Schedule 12 - Existing Investments
Schedule 13 - Additional Permitted Investments
Schedule 14 - Commitment Ratios and Lender Information
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