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EXHIBIT 10.18(a)
EXECUTION COPY
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$900,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
CC VIII OPERATING, LLC,
as Borrower
CC VIII HOLDINGS, LLC,
as Guarantor
TD SECURITIES (USA) INC. and CHASE SECURITIES INC.,
as Joint Lead Arrangers and Joint Book Managers
CHASE SECURITIES INC., as Syndication Agent
TORONTO DOMINION (TEXAS), INC.,
as Administrative Agent
BANK OF NOVA SCOTIA, THE BANK OF NEW YORK, INC.
and BANC OF AMERICA SECURITIES LLC, as Documentation Agents
Dated as of February 2, 1999,
as Amended and Restated as of February 14, 2000
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS...........................................................................................1
1.1 Defined Terms.......................................................................................1
1.2 Other Definitional Provisions; Pro Forma Calculations..............................................21
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS......................................................................22
2.1 Commitments; Increases in the Tranche A Term Facility and the Revolving Facility; Incremental Term
Loans..........................................................................................22
2.2 Procedure for Borrowing............................................................................24
2.3 Repayment of Loans.................................................................................24
2.4 Swingline Commitment...............................................................................26
2.5 Procedure for Swingline Borrowing; Refunding of Swingline Loans....................................26
2.6 Commitment Fees, etc. .............................................................................28
2.7 Termination or Reduction of Commitments............................................................28
2.8 Optional Prepayments...............................................................................28
2.9 Mandatory Prepayments..............................................................................28
2.10 Conversion and Continuation Options...............................................................29
2.11 Limitations on Eurodollar Tranches................................................................29
2.12 Interest Rates and Payment Dates..................................................................29
2.13 Computation of Interest and Fees..................................................................30
2.14 Inability to Determine Interest Rate..............................................................30
2.15 Pro Rata Treatment and Payments...................................................................31
2.16 Requirements of Law...............................................................................32
2.17 Taxes.............................................................................................33
2.18 Indemnity.........................................................................................35
2.19 Change of Lending Office..........................................................................35
2.20 Replacement of Lenders............................................................................35
SECTION 3. LETTERS OF CREDIT....................................................................................36
3.1 L/C Commitment.....................................................................................36
3.2 Procedure for Issuance of Letter of Credit.........................................................36
3.3 Fees and Other Charges.............................................................................36
3.4 L/C Participations.................................................................................36
3.5 Reimbursement Obligation of the Borrower...........................................................37
3.6 Obligations Absolute...............................................................................37
3.7 Letter of Credit Payments..........................................................................38
3.8 Applications.......................................................................................38
SECTION 4. REPRESENTATIONS AND WARRANTIES.......................................................................38
4.1 Financial Condition................................................................................38
4.2 No Change..........................................................................................38
4.3 Existence; Compliance with Law.....................................................................39
4.4 Power; Authorization; Enforceable Obligations......................................................39
4.5 No Legal Bar.......................................................................................39
4.6 Litigation.........................................................................................39
4.7 No Default.........................................................................................39
4.8 Ownership of Property; Liens.......................................................................39
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4.9 Intellectual Property..............................................................................39
4.10 Taxes.............................................................................................40
4.11 Federal Regulations...............................................................................40
4.12 Labor Matters.....................................................................................40
4.13 ERISA.............................................................................................40
4.14 Investment Company Act; Other Regulations.........................................................40
4.15 Subsidiaries......................................................................................40
4.16 Use of Proceeds...................................................................................41
4.17 Environmental Matters.............................................................................41
4.18 Certain Cable Television Matters..................................................................41
4.19 Accuracy of Information, etc......................................................................42
4.20 Security Interests................................................................................42
4.21 Solvency..........................................................................................43
4.22 Certain Tax Matters...............................................................................43
4.23 Year 2000 Matters.................................................................................43
SECTION 5. CONDITIONS PRECEDENT.................................................................................43
5.1 Conditions to Restatement Effective Date...........................................................43
5.2 Conditions to Each Extension of Credit.............................................................44
SECTION 6. AFFIRMATIVE COVENANTS................................................................................44
6.1 Financial Statements...............................................................................44
6.2 Certificates; Other Information....................................................................45
6.3 Payment of Obligations.............................................................................46
6.4 Maintenance of Existence; Compliance. ............................................................46
6.5 Maintenance of Property; Insurance.................................................................46
6.6 Inspection of Property; Books and Records; Discussions.............................................46
6.7 Notices............................................................................................46
6.8 Environmental Laws.................................................................................47
6.9 Additional Collateral..............................................................................47
6.10 Organizational Separateness.......................................................................48
6.11 ERISA Reports.....................................................................................48
6.12 ERISA, etc........................................................................................48
SECTION 7. NEGATIVE COVENANTS...................................................................................49
7.1 Financial Condition Covenants......................................................................49
7.2 Indebtedness.......................................................................................49
7.3 Liens..............................................................................................50
7.4 Fundamental Changes................................................................................52
7.5 Disposition of Property............................................................................52
7.6 Restricted Payments................................................................................53
7.7 Investments........................................................................................54
7.8 Certain Payments and Modifications Relating to Indebtedness and Management Fees. ..................55
7.9 Transactions with Affiliates.......................................................................56
7.10 Sales and Leasebacks..............................................................................56
7.11 Changes in Fiscal Periods.........................................................................56
7.12 Negative Pledge Clauses...........................................................................56
7.13 Clauses Restricting Subsidiary Distributions......................................................57
7.14 Lines of Business; Holding Company Status.........................................................57
7.15 Investments by Holdings in the Borrower...........................................................57
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SECTION 8. EVENTS OF DEFAULT....................................................................................57
SECTION 9. THE AGENTS...........................................................................................60
9.1 Appointment........................................................................................60
9.2 Delegation of Duties...............................................................................61
9.3 Exculpatory Provisions.............................................................................61
9.4 Reliance by Administrative Agent...................................................................61
9.5 Notice of Default..................................................................................61
9.6 Non-Reliance on Agents and Other Lenders...........................................................62
9.7 Indemnification....................................................................................62
9.8 Agent in Its Individual Capacity...................................................................62
9.9 Resignation of Agents..............................................................................63
9.10 Other Agents......................................................................................63
SECTION 10. MISCELLANEOUS.......................................................................................63
10.1 Amendments and Waivers............................................................................63
10.2 Notices...........................................................................................64
10.3 No Waiver; Cumulative Remedies....................................................................64
10.4 Survival of Representations and Warranties........................................................64
10.5 Payment of Expenses and Taxes.....................................................................64
10.6 Successors and Assigns; Participations and Assignments............................................65
10.7 Adjustments; Set-off..............................................................................67
10.8 Counterparts......................................................................................68
10.9 Severability......................................................................................68
10.10 Integration......................................................................................68
10.11 GOVERNING LAW....................................................................................68
10.12 Submission To Jurisdiction; Waivers..............................................................68
10.13 Acknowledgments..................................................................................69
10.14 Releases of Guarantees and Liens.................................................................69
10.15 Confidentiality..................................................................................70
10.16 WAIVERS OF JURY TRIAL............................................................................70
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ANNEX:
A Pricing Grid
SCHEDULES:
1.1 Commitments on Restatement Effective Date
4.15 Subsidiaries
4.20 UCC Filing Jurisdictions
7.2(d) Existing Indebtedness
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D-1 Form of Addendum
D-2 Form of New Lender Supplement
D-3 Form of Increased Facility Activation Notice
E Form of Assignment and Acceptance
F Form of Prepayment Option Notice
G Form of Exemption Certificate
H Form of Specified Subordinated Note
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CREDIT AGREEMENT, dated as of February 2, 1999, as amended
and restated as of February 14, 2000, among CC VIII HOLDINGS, LLC, a Delaware
limited liability company ("Holdings"), CC VIII OPERATING, LLC, a Delaware
limited liability company (the "Borrower"), the several banks and other
financial institutions or entities from time to time parties to this Agreement
(the "Lenders"), BANK OF NOVA SCOTIA, THE BANK OF NEW YORK, INC. and BANC OF
AMERICA SECURITIES LLC, as documentation agents (in such capacity, the
"Documentation Agents"), CHASE SECURITIES INC., as syndication agent (in such
capacity, the "Syndication Agent"), and TORONTO DOMINION (TEXAS), INC., as
administrative agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H :
WHEREAS, the Borrower entered into a Loan Agreement, dated as
of February 2, 1999 (the "Existing Credit Agreement"), with Toronto Dominion
(Texas), Inc., as administrative agent, the financial institutions parties
thereto as lenders and certain other parties;
WHEREAS, the parties hereto have agreed to amend and restate
the Existing Credit Agreement as provided in this Agreement, which Agreement
shall become effective upon the satisfaction of the conditions precedent set
forth in Section 5.1 hereof; and
WHEREAS, it is the intent of the parties hereto that this
Agreement not constitute a novation of the obligations and liabilities existing
under the Existing Credit Agreement or evidence repayment of any of such
obligations and liabilities and that this Agreement amend and restate in its
entirety the Existing Credit Agreement and re-evidence the obligations of the
Borrower outstanding thereunder;
NOW, THEREFORE, in consideration of the above premises, the
parties hereto hereby agree that on the Restatement Effective Date (as defined
below) the Existing Credit Agreement shall be amended and restated in its
entirety as follows:
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms
listed in this Section 1.1 shall have the respective meanings set forth in this
Section 1.1.
"ABR": for any day, a rate per annum (rounded upwards, if
necessary, to the next 1/100th of 1%) equal to the greater of (a) the Prime Rate
in effect on such day and (b) the Federal Funds Effective Rate in effect on such
day plus 1/2 of 1%. Any change in the ABR due to a change in the Prime Rate or
the Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"ABR Loans": Loans the rate of interest applicable to which
is based upon the ABR.
"Accumulated Benefit Obligations": the actuarial present
value of the accumulated benefit obligations under any Plan, calculated in a
manner consistent with Statement No. 87 of the Financial Accounting Standards
Board.
"Addendum": an instrument, substantially in the form of
Exhibit D-1, by which a Lender consents to the amendment and restatement of the
Existing Credit Agreement pursuant hereto or becomes a party to this Agreement
as of the Restatement Effective Date.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": as defined in the preamble hereto.
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"Affiliate": as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, either to (a) vote 10% or more
of the securities having ordinary voting power for the election of directors (or
persons performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agent,
the Documentation Agents and the Administrative Agent.
"Aggregate Exposure": with respect to any Lender at any time,
an amount equal to the sum of (a) the aggregate then unpaid principal amount of
such Lender's Term Loans, (b) the amount of such Lender's unutilized Tranche A
Incremental Term Commitment then in effect and (c) the amount of such Lender's
Revolving Commitment then in effect or, if the Revolving Commitments have been
terminated, the amount of such Lender's Revolving Extensions of Credit then
outstanding.
"Aggregate Exposure Percentage": with respect to any Lender
at any time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such time.
"Agreement": this Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Annualized Asset Cash Flow Amount": with respect to any
Disposition of assets, an amount equal to the portion of Consolidated Operating
Cash Flow for the most recent Asset Disposition Test Period ending prior to the
date of such Disposition which was contributed by such assets multiplied by
four.
"Annualized Operating Cash Flow": for any fiscal quarter, an
amount equal to Consolidated Operating Cash Flow for such period multiplied by
four.
"Annualized Pro Forma Operating Cash Flow": an amount,
determined on any Disposition Date in connection with any proposed Disposition
pursuant to Section 7.5(e), equal to Consolidated Operating Cash Flow for the
most recent Asset Disposition Test Period multiplied by four, calculated in the
manner contemplated by Section 1.2(e) but excluding the effect of such
Disposition.
"Applicable Margin": (a) with respect to Tranche A Term
Loans, Tranche B Term Loans, Revolving Loans and Swingline Loans, the per annum
rates determined in accordance with the Pricing Grid and (b) with respect to
Incremental Term Loans, such per annum rates as shall be agreed to by the
Borrower and the applicable Incremental Term Lenders as shown in the applicable
Increased Facility Activation Notice.
"Application": an application, in such form as the relevant
Issuing Lender may specify from time to time, requesting such Issuing Lender to
open a Letter of Credit.
"Approved Fund": with respect to any Lender that is a fund
that invests in commercial loans, any other fund that invests in commercial
loans and is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor.
"Asset Disposition Test Period": as of any date of
determination, the most recent fiscal quarter as to which financial statements
have been delivered pursuant to Section 6.1.
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"Asset Sale": any Disposition of property or series of
related Dispositions of property (excluding (a) Exchanges pursuant to which no
cash consideration is received by the Borrower or any of its Subsidiaries and
(b) any such Disposition permitted by clause (a), (b), (c) or (d) of Section
7.5) that yields gross cash proceeds to the Borrower or any of its Subsidiaries
in excess of $1,000,000.
"Assignee": as defined in Section 10.6(c).
"Assignment and Acceptance": an Assignment and Acceptance,
substantially in the form of Exhibit E.
""Assignor": as defined in Section 10.6(c).
"Attributable Debt": in respect of a sale and leaseback
transaction entered into by Holdings, the Borrower or any of its Subsidiaries,
at the time of determination, the present value of the obligation of the lessee
for net rental payments during the remaining term of the lease included in such
sale and leaseback transaction including any period for which such lease has
been extended or may, at the sole option of the lessor, be extended. Such
present value shall be calculated using a discount rate equal to the rate of
interest implicit in such transaction, determined in accordance with GAAP.
"Authorizations": all filings, recordings and registrations
with, and all validations or exemptions, approvals, orders, authorizations,
consents, Licenses, certificates and permits from, the FCC, applicable public
utilities and other Governmental Authorities, including, without limitation,
CATV Franchises, FCC Licenses and Pole Agreements.
"Available Revolving Commitment": as to any Revolving Lender
at any time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Commitment then in effect over (b) such Lender's Revolving Extensions
of Credit then outstanding; provided, that in calculating any Lender's Revolving
Extensions of Credit for the purpose of determining such Lender's Available
Revolving Commitment pursuant to Section 2.6(a), the aggregate principal amount
of Swingline Loans then outstanding shall be deemed to be zero.
"Benefitted Lender": as defined in Section 10.7(a).
"Board": the Board of Governors of the Federal Reserve System
of the United States (or any successor).
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified by the Borrower
as a date on which the Borrower requests the relevant Lenders to make Loans
hereunder.
"Budget": as defined in Section 6.2(c).
"Business": as defined in Section 4.17(b).
"Business Day": a day other than a Saturday, Sunday or other
day on which commercial banks in New York City or Houston, Texas are authorized
or required by law to close, provided, that with respect to notices and
determinations in connection with, and payments of principal and interest on,
Eurodollar Loans, such day is also a day for trading by and between banks in
Dollar deposits in the London, England interbank eurodollar market.
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"Capital Lease Obligations": as to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"Cash Equivalents": (a) marketable direct obligations issued
by, or unconditionally guaranteed by, the United States government or issued by
any agency thereof and backed by the full faith and credit of the United States,
in each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, eurodollar time deposits or overnight
bank deposits having maturities of six months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States or any state thereof having combined capital and
surplus of not less than $500,000,000; (c) commercial paper of an issuer rated
at the time of acquisition at least A-1 by Standard & Poor's Ratings Services
("S&P") or P-1 by ▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), or carrying an
equivalent rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of commercial paper issuers
generally, and maturing within six months from the date of acquisition; (d)
repurchase obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more than 30
days, with respect to securities issued or fully guaranteed or insured by the
United States government; (e) securities with maturities of one year or less
from the date of acquisition issued or fully guaranteed by any state,
commonwealth or territory of the United States, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political
subdivision, taxing authority or foreign government (as the case may be) are
rated at the time of acquisition at least A by S&P or A by Moody's; (f)
securities with maturities of six months or less from the date of acquisition
backed by standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition; or (g) shares of
money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this definition.
"CATV Franchise": collectively, with respect to the Borrower
and its Subsidiaries, (a) any franchise, license, permit, wire agreement or
easement granted by any political jurisdiction or unit or other local, state or
federal franchising authority (other than licenses, permits and easements not
material to the operations of a CATV System) pursuant to which such Person has
the right or license to operate a CATV System and (b) any law, regulation,
ordinance, agreement or other instrument or document setting forth all or any
part of the terms of any franchise, license, permit, wire agreement or easement
described in clause (a) of this definition.
"CATV System": any cable distribution system owned or
acquired by the Borrower or any of its Subsidiaries which receives audio, video,
digital, other broadcast signals or information or telecommunications by cable,
optical, antennae, microwave or satellite transmission and which amplifies and
transmits such signals to customers of the Borrower or any of its Subsidiaries.
"Charter Acquisition": as defined in Section 5.1(b).
"Code": the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral": all property of the Loan Parties, now owned or
hereafter acquired, upon which a Lien is purported to be created by the
Guarantee and Collateral Agreement.
"Commitment Fee Rate": the per annum rate determined in
accordance with the Pricing Grid.
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"Commonly Controlled Entity": an entity, whether or not
incorporated, that is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit B.
"Conduit Lender": any special purpose corporation designated
by any Lender for the purpose of making Loans hereunder otherwise required to be
made by such Lender and designated by such Lender in a written instrument,
subject to the consent of the Administrative Agent and the Borrower; provided,
that the designation by any Lender of a Conduit Lender shall not relieve the
designating Lender of any of its obligations to fund a Loan under this Agreement
if, for any reason, its Conduit Lender fails to fund any such Loan, and the
designating Lender (and not the Conduit Lender) shall have the sole right and
responsibility to deliver all consents and waivers required or requested under
this Agreement with respect to its Conduit Lender, and provided, further, that
no Conduit Lender shall (a) be entitled to receive any greater amount pursuant
to Section 2.16, 2.17, 2.18 or 10.5 than the designating Lender would have been
entitled to receive in respect of the extensions of credit made by such Conduit
Lender or (b) be deemed to have any Tranche A Incremental Term Commitment or
Revolving Commitment hereunder.
"Conduit Participant": any trust, partnership, limited
liability company or other entity that (a) is organized under the laws of the
United States or any state thereof, (b) is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its business
and (c) is organized, managed or sponsored by any Lender.
"Confidential Information Memorandum": the collective
reference to (a) the Confidential Information Memorandum dated December 1999 and
furnished to certain of the Lenders in connection with the syndication of
certain of the Facilities prior to the Restatement Effective Date and (b) any
other information memorandum authorized by the Borrower to be distributed to one
or more Lenders or prospective Lenders in connection with any other syndication
of any of the Facilities (including in connection with any increase in the
amount thereof).
"Consideration": with respect to any Investment or
Disposition, (a) any cash or other property (valued at fair market value in the
case of such other property) paid or transferred in connection therewith, (b)
the principal amount of any Indebtedness assumed in connection therewith and (c)
any letters of credit, surety arrangements or security deposits posted in
connection therewith.
"Consolidated Debt Service Coverage Ratio": as of the last
day of any period, the ratio of (a) Annualized Operating Cash Flow determined in
respect of the fiscal quarter ending on such day to (b) the sum of (i)
Consolidated Interest Expense for the period of four consecutive fiscal quarters
ending on such day and (ii) scheduled principal payments on Indebtedness of the
Borrower or any of its Subsidiaries for the period of four consecutive fiscal
quarters commencing immediately after such day (or, in the case of the Revolving
Facility, the excess, if any, of the Total Revolving Extensions of Credit
outstanding on such day over the amount of the Total Revolving Commitments
scheduled to be in effect at the end of such period of four consecutive fiscal
quarters); provided, however, that the final scheduled installment of principal
of the Tranche B Term Facility and the Incremental Term Facility shall be
excluded from the calculation of amounts under this clause (ii).
"Consolidated Interest Coverage Ratio": as of the last day of
any period, the ratio of (a) Consolidated Operating Cash Flow for the period of
four consecutive fiscal quarters ending on such day to (b) Consolidated Interest
Expense for the period of four consecutive fiscal quarters ending on such day.
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"Consolidated Interest Expense": for any period, the sum of
(a) total cash interest expense (including that attributable to Capital Lease
Obligations) of the Borrower and its Subsidiaries for such period with respect
to all outstanding Indebtedness of the Borrower and its Subsidiaries (including
all commissions, discounts and other fees and charges owed with respect to
letters of credit and bankers= acceptance financing and net costs under Hedge
Agreements in respect of interest rates to the extent such net costs are
allocable to such period in accordance with GAAP) and (b) all Restricted
Payments made by the Borrower during such period in order to enable any of its
Affiliates to pay cash interest expense in respect of Indebtedness of such
Affiliate.
"Consolidated Leverage Ratio": as of the last day of any
period, the ratio of (a) Consolidated Total Debt on such day to (b) Annualized
Operating Cash Flow determined in respect of the fiscal quarter ending on such
day.
"Consolidated Net Income": for any period, the consolidated
net income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that, GAAP to the contrary
notwithstanding, there shall be excluded (a) the income (or deficit) of any
Person accrued prior to the date it becomes a Subsidiary of the Borrower or is
merged into or consolidated with the Borrower or any of its Subsidiaries, (b)
the income (or deficit) of any Person (other than a Subsidiary of the Borrower)
in which the Borrower or any of its Subsidiaries has an ownership interest,
except to the extent that any such income is actually received by the Borrower
or such Subsidiary in the form of dividends or similar distributions, (c) the
undistributed earnings of any Subsidiary of the Borrower (including any Excluded
Acquired Subsidiary) to the extent that the declaration or payment of dividends
or similar distributions by such Subsidiary is not at the time permitted by the
terms of any Contractual Obligation (other than under any Loan Document) or
Requirement of Law applicable to such Subsidiary and (d) whether or not
distributed, the income of any Non-Recourse Subsidiary.
"Consolidated Operating Cash Flow": as applied to the
Borrower and its Subsidiaries, on a consolidated basis, in respect of any
period, the sum of the Consolidated Net Income for such period plus Consolidated
Interest Expense, depreciation, amortization, tax expense, distributions in
respect of monitoring fees paid (not to exceed $550,000 for any calendar year),
deferred compensation expenses, any expense for the split dollar life insurance
policy in respect of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, including any finance expense with respect
thereto, and other non-cash or non-recurring expenses deducted in determining
such Consolidated Net Income; provided, that extraordinary gains or losses shall
not be taken into account in determining Consolidated Net Income for purposes of
determining Consolidated Operating Cash Flow, and gains or losses from the sale
of assets and investment activities shall be excluded from such calculation;
and, provided, further, that payments in respect of the redemption of management
participation units in the ordinary course of business shall be deemed to be a
non-recurring expense. For purposes of this Agreement, "Consolidated Operating
Cash Flow" of the Borrower shall not include as an addition or a deduction
losses associated with high speed data and telephony services up to an aggregate
amount of $15,000,000 for all periods prior to and including December 31, 2003.
"Consolidated Total Debt": at any date, the aggregate
principal amount of all Indebtedness (other than any contingent obligations for
standby letters of credit entered into in the ordinary course of business such
as in lieu of bonds, security deposits and the like, not constituting L/C
Obligations) of the Borrower and its Subsidiaries at such date, determined on a
consolidated basis in accordance with GAAP.
"Contractual Obligation": as to any Person, any provision of
any debt or equity security issued by such Person or of any agreement,
instrument or other undertaking to which such Person is a party or by which it
or any of its property is bound.
"Default": any of the events specified in Section 8, whether
or not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
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"Default Rate": the rate referred to in Section 2.12(c).
"Disposition": with respect to any property, any sale, lease
(other than leases in the ordinary course of business, including leases of
excess office space and fiber leases), sale and leaseback, assignment,
conveyance, transfer or other disposition thereof, including pursuant to an
exchange for other property. The terms "Dispose" and "Disposed of" shall have
correlative meanings.
"Disposition Date": as defined in Section 7.5(e).
"Documentation Agents": as defined in the preamble hereto.
"Dollars" and "$": dollars in lawful currency of the United
States.
"Domestic Subsidiary": any Subsidiary of the Borrower
organized under the laws of any jurisdiction within the United States.
"Environmental Laws": any and all foreign, federal, state,
local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, decrees, requirements of any Governmental Authority or other Requirements
of Law (including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"Equity Interests": any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all classes of membership interests in a limited liability
company, any and all classes of partnership interests in a partnership and any
and all other equivalent ownership interests in a Person, and any and all
warrants, rights or options to purchase any of the foregoing.
"ERISA": the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied
to a Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum determined
on the basis of the rate for deposits in Dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period appearing on
Page 3750 of the Dow ▇▇▇▇▇ Markets screen as of 11:00 A.M., London time, two
Business Days prior to the beginning of such Interest Period. In the event that
such rate does not appear on Page 3750 of the Dow ▇▇▇▇▇ Markets screen (or
otherwise on such screen), the "Eurodollar Base Rate" shall be determined by
reference to such other comparable publicly available service for displaying
eurodollar rates as may be selected by the Administrative Agent or, in the
absence of such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 10:00 A.M., Houston
time, two Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.
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"Eurodollar Loans": Loans for which the applicable rate of
interest is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for
such day in accordance with the following formula (rounded upward to the nearest
1/100th of 1%):
Eurodollar Base Rate
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar
Loans under a particular Facility the then current Interest Periods with respect
to all of which begin on the same date and end on the same later date (whether
or not such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"Exchange": any exchange of operating assets for other
operating assets in a Permitted Line of Business and, subject to the last
sentence of this definition, of comparable value and use to those assets being
exchanged, including exchanges involving the transfer or acquisition (or both
transfer and acquisition) of Equity Interests of a Person so long as 100% of the
Equity Interests of such Person are transferred or acquired, as the case may be.
It is understood that exchanges of the kind described above as to which a
portion of the consideration paid or received is in the form of cash shall
nevertheless constitute "Exchanges" for the purposes of this Agreement so long
as the aggregate consideration received by the Borrower and its Subsidiaries in
connection with such exchange represents fair market value for the assets and
cash being transferred by the Borrower and its Subsidiaries.
"Exchange Excess Amount": as defined in Section 7.5(f).
"Excluded Acquired Subsidiary": any Subsidiary described in
Section 7.2(g) to the extent that the documentation governing the Indebtedness
referred to in said paragraph prohibits such Subsidiary from becoming a
Subsidiary Guarantor, but only so long as such Indebtedness remains outstanding.
"Existing Credit Agreement": as defined in the recitals.
"Existing Tranche A Term Loan": as defined in Section 2.1(a).
"Facility": each of (a) the Tranche A Incremental Term
Commitments and the Tranche A Term Loans (the "Tranche A Term Facility"), (b)
the Tranche B Term Loans (the "Tranche B Term Facility"), (c) the Incremental
Term Loans (the "Incremental Term Facility") and (d) the Revolving Commitments
and the extensions of credit made thereunder (the "Revolving Facility").
"FCC": the Federal Communications Commission and any
successor thereto.
"FCC License": any community antenna relay service, broadcast
auxiliary license, earth station registration, business radio, microwave or
special safety radio service license issued by the FCC pursuant to the
Communications Act of 1934, as amended.
"Federal Funds Effective Rate": for any day, the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the average of
the quotations for the day
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of such transactions received by the Administrative Agent from three federal
funds brokers of recognized standing selected by it.
"Flow-Through Entity": any Person that is not treated as a
separate tax paying entity for United States federal income tax purposes.
"Foreign Subsidiary": any Subsidiary of the Borrower that is
not a Domestic Subsidiary.
"Funding Office": the office of the Administrative Agent
specified in Section 10.2 or such other office as may be specified from time to
time by the Administrative Agent as its funding office by written notice to the
Borrower and the Lenders.
"GAAP": generally accepted accounting principles in the
United States as in effect from time to time, except that for purposes of
Section 7.1, GAAP shall be determined on the basis of such principles in effect
on the date hereof and consistent with those used in the preparation of the most
recent audited financial statements delivered pursuant to Section 4.1. In the
event that any "Accounting Change" (as defined below) shall occur and such
change results in a change in the method of calculation of financial covenants,
standards or terms in this Agreement, then the Borrower and the Administrative
Agent agree to enter into negotiations in order to amend such provisions of this
Agreement so as to equitably reflect such Accounting Changes with the desired
result that the criteria for evaluating the Borrower's financial condition shall
be the same after such Accounting Changes as if such Accounting Changes had not
been made. Until such time as such an amendment shall have been executed and
delivered by the Borrower, the Administrative Agent and the Majority Lenders,
all financial covenants, standards and terms in this Agreement shall continue to
be calculated or construed as if such Accounting Changes had not occurred.
"Accounting Changes" refers to changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants or, if applicable, the SEC.
"Governmental Authority": any nation or government, any state
or other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative functions of or
pertaining to government, any securities exchange and any self-regulatory
organization (including the National Association of Insurance Commissioners).
"Guarantee and Collateral Agreement": the Guarantee and
Collateral Agreement to be executed and delivered by Holdings, the Borrower and
each Subsidiary Guarantor, substantially in the form of Exhibit A, as the same
may be amended, supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including any bank under any letter of credit) to induce the creation of which
the guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term "Guarantee Obligation" shall not
include endorsements of instruments for deposit or collection in the ordinary
course of business.
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The amount of any Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee Obligation
is made and (b) the maximum amount for which such guaranteeing person may be
liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrower in good faith.
"Guarantors": the collective reference to Holdings and the
Subsidiary Guarantors.
"Hedge Agreements": all interest rate swaps, caps or collar
agreements or similar arrangements dealing with interest rates or currency
exchange rates or the exchange of nominal interest obligations, either generally
or under specific contingencies.
"Holdings": as defined in the preamble hereto, together with
any successor thereto pursuant to Section 7.4(e).
"Holdings Debt": any Indebtedness of Holdings.
"Increased Facility Activation Date": any Business Day on
which any Lender shall execute and deliver to the Administrative Agent an
Increased Facility Activation Notice pursuant to Section 2.1(c).
"Increased Facility Activation Notice": a notice
substantially in the form of Exhibit D-3.
"Increased Facility Closing Date": any Business Day
designated as such in an Increased Facility Activation Notice.
"Incremental Term Facility": as defined in the definition of
"Facility".
"Incremental Term Lenders": (a) on any Increased Facility
Activation Date relating to Incremental Term Loans, the Lenders signatory to the
relevant Increased Facility Activation Notice and (b) thereafter, each Lender
that is a holder of an Incremental Term Loan.
"Incremental Term Loans": as defined in Section 2.1(a).
"Incremental Term Maturity Date": with respect to the
Incremental Term Loans to be made pursuant to any Increased Facility Activation
Notice, the maturity date specified in such Increased Facility Activation
Notice, which date shall be a date at least six months after the final maturity
of the Tranche B Term Loans.
"Indebtedness": of any Person at any date, without
duplication, (a) all indebtedness of such Person for borrowed money, (b) all
obligations of such Person for the deferred purchase price of property or
services (other than current trade payables incurred in the ordinary course of
such Person's business), (c) all obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party under acceptances, letters of credit, surety bonds or similar
arrangements, (g) the liquidation value of all redeemable preferred Equity
Interests of such Person, (h) all Guarantee Obligations of such Person in
respect of obligations of the kind referred to in clauses (a) through (g) above,
(i) all obligations of the kind referred to in clauses (a) through (h) above
secured by (or for which the holder
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of such obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such obligation, and (j) for the purposes of Section 8(e) only, all
obligations of such Person in respect of Hedge Agreements. The Indebtedness of
any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness expressly provide that such Person is not liable therefor.
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all
rights, priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including copyrights, copyright licenses, patents, patent licenses, trademarks,
trademark licenses, technology, know-how and processes, and all rights to ▇▇▇ at
law or in equity for any infringement or other impairment thereof, including the
right to receive all proceeds and damages therefrom.
"Interest Payment Date": (a) as to any ABR Loan, the last day
of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any Eurodollar
Loan having an Interest Period of three months or less, the last day of such
Interest Period, (c) as to any Eurodollar Loan having an Interest Period longer
than three months, each day that is three months, or a whole multiple thereof,
after the first day of such Interest Period and the last day of such Interest
Period and (d) as to any Loan (other than any Revolving Loan that is an ABR Loan
and any Swingline Loan), the date of any repayment or prepayment made in respect
thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially,
the period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three, six or, if
consented to by (which consent shall not be unreasonably withheld) each Lender
under the relevant Facility, nine or twelve months thereafter, as selected by
the Borrower in its notice of borrowing or notice of conversion, as the case may
be, given with respect thereto; and (b) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such Eurodollar
Loan and ending one, two, three, six or, if consented to by (which consent shall
not be unreasonably withheld) each Lender under the relevant Facility, nine or
twelve months thereafter, as selected by the Borrower by irrevocable notice to
the Administrative Agent not less than three Business Days prior to the last day
of the then current Interest Period with respect thereto; provided that, all of
the foregoing provisions relating to Interest Periods are subject to the
following:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately preceding
Business Day;
(ii) the Borrower may not select an Interest Period
under a particular Facility that would extend beyond the Revolving
Termination Date or beyond the date final payment is due on the Tranche
A Term Loans, the Tranche B Term Loans or the relevant Incremental Term
Loans, as the case may be;
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(iii) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of a calendar
month; and
(iv) the Borrower shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan.
"Investments": as defined in Section 7.7.
"Issuing Lender": each of the Administrative Agent and any
other Revolving Lender that has agreed in its sole discretion to act as an
"Issuing Lender" hereunder and that has been approved in writing by the
Administrative Agent as an "Issuing Lender" hereunder, in each case in its
capacity as issuer of any Letter of Credit.
"L/C Commitment": $25,000,000.
"L/C Fee Payment Date": the last day of each March, June,
September and December and the last day of the Revolving Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of
(a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all Revolving Lenders other than the Issuing Lender that
issued such Letter of Credit.
"Lenders": as defined in the preamble hereto; provided, that
unless the context otherwise requires, each reference herein to the Lenders
shall be deemed to include any Conduit Lender.
"Letters of Credit": as defined in Section 3.1(a).
"License": as to any Person, any license, permit, certificate
of need, authorization, certification, accreditation, franchise, approval, or
grant of rights by any Governmental Authority or other Person necessary or
appropriate for such Person to own, maintain, or operate its business or
property, including FCC Licenses.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Loan": any loan made or held by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement, any Notes and the Guarantee
and Collateral Agreement.
"Loan Parties": Holdings, the Borrower and each Subsidiary of
the Borrower that is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility,
the holders of 51% or more of the aggregate unpaid principal amount of the Term
Loans or the Total Revolving Extensions of Credit, as
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13
the case may be, outstanding under such Facility (or, in the case of the
Revolving Facility, prior to any termination of the Revolving Commitments, the
holders of 51% or more of the Total Revolving Commitments).
"Majority Lenders" shall mean, at any time, Lenders having
51% or more of the aggregate principal amount of all of the following (a) the
Tranche A Term Loans then outstanding, (b) the Tranche B Term Loans then
outstanding, (c) the Incremental Term Loans, if any, then outstanding, and
(d)(i) until such time as the Revolving Commitments have been terminated or
canceled, the Revolving Commitments, and (ii) thereafter, the Revolving
Extensions of Credit then outstanding. For the purposes of this definition, any
unutilized Tranche A Incremental Term Commitments shall be deemed to have been
borrowed as Tranche A Term Loans.
"Management Fee Agreement": the Management Agreement, dated
as of February 14, 2000, among the Borrower, its Subsidiaries and Charter
Communications, Inc.
"Material Adverse Effect": a material adverse effect on (a)
the business, property, operations or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of any material provision of this Agreement or any of the other
Loan Documents or the rights or remedies of the Administrative Agent or the
Lenders hereunder or thereunder.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or petroleum products or
any hazardous or toxic substances, materials or wastes, defined or regulated as
such in or under any Environmental Law, including asbestos, polychlorinated
biphenyls and urea-formaldehyde insulation.
"Multiemployer Plan": a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or
any Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred payment of
principal pursuant to a note or installment receivable or purchase price
adjustment receivable or otherwise, but only as and when received) of such Asset
Sale or Recovery Event, net of attorneys' fees, accountants' fees, investment
banking fees, amounts required to be applied to the repayment of Indebtedness
secured by a Lien expressly permitted hereunder on any asset that is the subject
of such Asset Sale or Recovery Event (other than any Lien pursuant to the
Guarantee and Collateral Agreement) and other customary fees and expenses
actually incurred in connection therewith and net of taxes paid or reasonably
estimated to be payable as a result thereof (after taking into account any
available tax credits or deductions and any tax sharing arrangements) and (b) in
connection with any issuance or sale of Equity Interests or any incurrence of
Indebtedness, the cash proceeds received from such issuance or incurrence, net
of attorneys' fees, investment banking fees, accountants' fees, underwriting
discounts and commissions and other customary fees and expenses actually
incurred in connection therewith.
"New Lender": as defined in Section 2.1(d).
"New Lender Supplement": as defined in Section 2.1(d).
"Non-Excluded Taxes": as defined in Section 2.17(a).
"Non-Recourse Subsidiary": (a) any Subsidiary of the Borrower
created, acquired or activated by the Borrower or any of its Subsidiaries in
connection with any Investment made pursuant to Section 7.7(g) and designated as
such by the Borrower substantially concurrently with such creation, acquisition
or activation and (b) any Subsidiary of such designated Subsidiary, provided,
that (i) at no time
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shall any creditor of any such Subsidiary have any claim (whether pursuant to a
Guarantee Obligation, by operation of law or otherwise) against the Borrower or
any of its other Subsidiaries (other than another Non-Recourse Subsidiary) in
respect of any Indebtedness or other obligation of any such Subsidiary (other
than in respect of a non-recourse pledge of Equity Interests in such
Subsidiary); (ii) neither the Borrower nor any of its Subsidiaries (other than
another Non-Recourse Subsidiary) shall become a general partner of any such
Subsidiary; (iii) no default with respect to any Indebtedness of any such
Subsidiary (including any right which the holders thereof may have to take
enforcement action against any such Subsidiary) shall permit (upon notice, lapse
of time or both) any holder of any Indebtedness of the Borrower or its other
Subsidiaries (other than another Non-Recourse Subsidiary) to declare a default
on such other Indebtedness or cause the payment thereof to be accelerated or
payable prior to its final scheduled maturity; (iv) no such Subsidiary shall own
any Equity Interests of, or own or hold any Lien on any property of, the
Borrower or any other Subsidiary of the Borrower (other than another
Non-Recourse Subsidiary); (v) no Investments may be made in any such Subsidiary
by the Borrower or any of its Subsidiaries (other than another Non-Recourse
Subsidiary) except pursuant to Section 7.7(g); (vi) the Borrower shall not
directly own any Equity Interests in such Subsidiary; and (vii) at the time of
such designation, no Default or Event of Default shall have occurred and be
continuing or would result therefrom. It is understood that Non-Recourse
Subsidiaries shall be disregarded for the purposes of any calculation pursuant
to this Agreement relating to financial matters with respect to the Borrower.
"Non-U.S. Lender": as defined in Section 2.17(d).
"Notes": the collective reference to any promissory note
evidencing Loans.
"Other Taxes": any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant": as defined in Section 10.6(b).
"▇▇▇▇ ▇▇▇▇▇ Contributions": any capital contribution made by
▇▇▇▇ ▇. ▇▇▇▇▇ or any of his Affiliates, directly or indirectly, to the Borrower
or any of its Subsidiaries.
"▇▇▇▇ ▇▇▇▇▇ Group": the collective reference to (a) ▇▇▇▇ ▇.
▇▇▇▇▇, (b) his estate, spouse, immediate family members and heirs and (c) any
trust, corporation, partnership or other entity, the beneficiaries,
stockholders, partners or other owners of which consist exclusively of ▇▇▇▇ ▇.
▇▇▇▇▇ or such other Persons referred to in clause (b) above or a combination
thereof.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Line of Business": as defined in Section 7.14(a).
"Person": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan": at a particular time, any employee pension benefit
plan subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of ERISA or any welfare plan providing post-employment healthcare
benefits, and in respect of which the Borrower or a Commonly Controlled Entity
is (or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
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"Pole Agreement": any pole attachment agreement or
underground conduit use agreement entered into in connection with the operation
of any CATV System.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Prime Rate": the rate of interest per annum publicly
announced from time to time by the Administrative Agent or its relevant
affiliate as its prime rate in effect (the Prime Rate not being intended to be
the lowest rate of interest charged by the Administrative Agent or its relevant
affiliate in connection with extensions of credit to debtors).
"Properties": as defined in Section 4.17(a).
"Qualified Indebtedness": (a) with respect to a Qualified
Parent Company, any Indebtedness (i) which is issued in a Rule 144A private
placement or registered public offering, (ii) which is not held by any Affiliate
of the Borrower and (iii) as to which 100% of the Net Cash Proceeds thereof are
used by such Qualified Parent Company to make Investments in one or more of its
Subsidiaries engaged substantially in businesses of the type described in
Section 7.14(a) and/or to refinance other Qualified Indebtedness or Indebtedness
of the Borrower and (b) with respect to an Affiliate of the Borrower, any
Indebtedness as to which 100% of the Net Cash Proceeds thereof were contributed
to the Borrower.
"Qualified Parent Company": Charter Communications Holding
Company, LLC or any of its direct or indirect Subsidiaries, in each case
provided that the Borrower shall be a Subsidiary of such Person.
"Recovery Event": any settlement of or payment in respect of
any property or casualty insurance claim or any condemnation proceeding relating
to any asset of the Borrower or any of its Subsidiaries.
"Refunded Swingline Loans": as defined in Section 2.5(b).
"Refunding Date": as defined in Section 2.5(c).
"Register": as defined in Section 10.6(d).
"Regulation U": Regulation U of the Board as in effect from
time to time.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the relevant Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit.
"Reinvestment Deadline": as defined in the definition of
"Reinvestment Notice".
"Reinvestment Deferred Amount": with respect to any
Reinvestment Event, the aggregate Net Cash Proceeds received by the Borrower or
any of its Subsidiaries in connection therewith that are not applied to prepay
the Term Loans pursuant to Section 2.9(a) as a result of the delivery of a
Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in
respect of which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a
Responsible Officer and delivered to the Administrative Agent within twelve
months after any Asset Sale or Recovery Event, stating that (a) no Event of
Default has occurred and is continuing, (b) the Borrower (directly or indirectly
through a
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Subsidiary) intends and expects to use all or a specified portion of the Net
Cash Proceeds of such Asset Sale or Recovery Event to acquire assets useful in
its business, on or prior to the earlier of (i) the date that is eighteen months
from the date of receipt of such Net Cash Proceeds and (ii) the date on which
such proceeds would be required to be applied, or to be offered to be applied,
to prepay, redeem or defease any Indebtedness of the Borrower or any of its
Affiliates (other than Indebtedness under this Agreement) if not applied as
described above (such earlier date, the "Reinvestment Deadline"), and (c) such
use will not require redemptions or prepayments (or offers to make redemptions
or prepayments) of any other Indebtedness of the Borrower or any of its
Affiliates.
"Reinvestment Prepayment Amount": with respect to any
Reinvestment Event, the Reinvestment Deferred Amount relating thereto less any
amount expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the Borrower's business.
"Reinvestment Prepayment Date": with respect to any
Reinvestment Event, the earlier of (a) the relevant Reinvestment Deadline and
(b) the date on which the Borrower shall have determined not to, or shall have
otherwise ceased to, acquire assets useful in the Borrower's business with all
or any portion of the relevant Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty day notice
period is waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of
PBGC Reg. '4043.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer": the chief executive officer, president
or chief financial officer of the Borrower, but in any event, with respect to
financial matters, any of the chief financial officer or any other financial
officer of the Borrower.
"Restatement Effective Date": the date on which the
conditions precedent set forth in Section 5.1 shall have been satisfied, which
date is February 14, 2000.
"Restatement Signing Date": the date on which the condition
described in Section 5.1(a)(ii) shall have been satisfied.
"Restricted Payments": as defined in Section 7.6.
"Revolving Aggregate Committed Amount": the sum of the Total
Revolving Commitments as in effect on the Restatement Effective Date and the
amount of any increases therein effected pursuant to Section 2.1(c).
"Revolving Commitment": as to any Lender, the obligation of
such Lender, if any, to make Revolving Loans and participate in Swingline Loans
and Letters of Credit in an aggregate principal and/or face amount not to exceed
the amount set forth under the heading "Revolving Commitment" opposite such
Lender's name on Schedule 1.1 or in the Assignment and Acceptance or New Lender
Supplement pursuant to which such Lender became a party hereto, as the same may
be changed from time
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to time pursuant to the terms hereof. The amount of the Total Revolving
Commitments as of the Restatement Effective Date is $200,000,000.
"Revolving Commitment Period": the period from and including
the Restatement Effective Date to the Revolving Termination Date.
"Revolving Extensions of Credit": as to any Revolving Lender
at any time, an amount equal to the sum of (a) the aggregate principal amount of
all Revolving Loans held by such Lender then outstanding, (b) such Lender's
Revolving Percentage of the L/C Obligations then outstanding and (c) such
Lender's Revolving Percentage of the aggregate principal amount of Swingline
Loans then outstanding.
"Revolving Facility": as defined in the definition of
"Facility".
"Revolving Lender": each Lender that has a Revolving
Commitment or that holds Revolving Extensions of Credit.
"Revolving Loans": as defined in Section 2.1(b).
"Revolving Percentage": as to any Revolving Lender at any
time, the percentage which such Lender's Revolving Commitment then constitutes
of the Total Revolving Commitments (or, at any time after the Revolving
Commitments shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Revolving Loans then outstanding constitutes
of the aggregate principal amount of the Revolving Loans then outstanding).
"Revolving Termination Date": June 30, 2007.
"SEC": the Securities and Exchange Commission, any successor
thereto and any analogous Governmental Authority.
"Shell Subsidiary": any Subsidiary of the Borrower that is a
"shell" company having (a) assets (either directly or through any Subsidiary or
other Equity Interests) with an aggregate value not exceeding $10,000 and (b) no
operations.
"Single Employer Plan": any Plan that is covered by Title IV
of ERISA, but that is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that,
as of any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the amount of
all "liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
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"Specified Agents": the collective reference to the
Administrative Agent and the Syndication Agent.
"Specified Change of Control": a "Change of Control" or any
defined term having a comparable purpose contained in the documentation
governing any Holdings Debt or any Specified Long-Term Indebtedness having an
aggregate outstanding principal amount in excess of $25,000,000.
"Specified Holdings Subsidiary": each Subsidiary of Holdings
other than the Borrower and its Subsidiaries.
"Specified Long-Term Indebtedness": any Indebtedness incurred
pursuant to Section 7.2(f).
"Specified Subordinated Debt": any Indebtedness of the
Borrower issued directly or indirectly to ▇▇▇▇ ▇. ▇▇▇▇▇ or any of his
Affiliates, so long as such Indebtedness (a) qualifies as Specified Long-Term
Indebtedness and (b) has terms and conditions substantially identical to those
set forth in Exhibit H.
"Subsidiary": as to any Person, a corporation, partnership,
limited liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such other
ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly, through one
or more intermediaries, or both, by such Person; provided, that Non-Recourse
Subsidiaries shall be deemed not to constitute "Subsidiaries" for the purposes
of this Agreement (other than the definition of "Non-Recourse Subsidiary").
Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Borrower.
"Subsidiary Guarantor": each Subsidiary of the Borrower other
than any Foreign Subsidiary and any Excluded Acquired Subsidiary.
"Swingline Commitment": the obligation of the Swingline
Lender to make Swingline Loans pursuant to Section 2.4 in an aggregate principal
amount at any one time outstanding not to exceed $25,000,000.
"Swingline Lender": Toronto Dominion (Texas), Inc., in its
capacity as the lender of Swingline Loans.
"Swingline Loans": as defined in Section 2.4.
"Swingline Participation Amount": as defined in Section 2.5.
"Syndication Agent": as defined in the preamble hereto.
"Term Lenders": the collective reference to the Tranche A
Term Lenders, the Tranche B Term Lenders and the Incremental Term Lenders.
"Term Loans": the collective reference to the Tranche A Term
Loans, the Tranche B Term Loans and the Incremental Term Loans.
"Threshold Management Fee Date": any date on which, both
before and after giving pro forma effect to the payment of any previously
deferred management fees pursuant to Section 7.8(c)
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(including any Indebtedness incurred in connection therewith), the Consolidated
Interest Coverage Ratio, determined in respect of the most recent period of four
consecutive fiscal quarters for which the relevant financial information is
available, is greater than 2.25 to 1.0.
"Threshold Transaction Date": any date on which, both before
and after giving pro forma effect to a particular transaction (including any
Indebtedness incurred in connection therewith), the Consolidated Interest
Coverage Ratio, determined in respect of the most recent period of four
consecutive fiscal quarters for which the relevant financial information is
available, is greater than 1.75 to 1.0.
"Total Revolving Commitments": at any time, the aggregate
amount of the Revolving Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the
aggregate amount of the Revolving Extensions of Credit of the Revolving Lenders
outstanding at such time.
"Tranche A Aggregate Funded Amount": the sum of (i) the
aggregate principal amount of Existing Tranche A Term Loans outstanding on the
Restatement Effective Date, (ii) the aggregate principal amount of Tranche A
Incremental Term Loans made pursuant to Section 2.1(a) and (iii) the aggregate
principal amount of Tranche A Term Loans made pursuant to Section 2.1(c).
"Tranche A Incremental Term Commitment": as to any Tranche A
Term Lender, the obligation of such Lender (if any) to make Tranche A
Incremental Term Loans to the Borrower hereunder in a principal amount not to
exceed the amount set forth under the heading "Tranche A Incremental Term
Commitment" opposite such Lender's name on Schedule 1.1 or in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Tranche A Incremental Term Commitments is $75,000,000.
"Tranche A Incremental Term Commitment Termination Date": as
defined in Section 2.1(a).
"Tranche A Incremental Term Lender": each Lender that has a
Tranche A Incremental Term Commitment or is the holder of a Tranche A
Incremental Term Loan.
"Tranche A Incremental Term Loan": as defined in Section
2.1(a).
"Tranche A Term Facility": as defined in the definition of
"Facility".
"Tranche A Term Lender": each Lender that has a Tranche A
Incremental Term Commitment or is the holder of a Tranche A Term Loan.
"Tranche A Term Loan": as defined in Section 2.1(a).
"Tranche A Term Percentage": as to any Tranche A Term Lender
at any time, the percentage which the aggregate principal amount of such
Lender's Tranche A Term Loans then outstanding constitutes of the aggregate
principal amount of all Tranche A Term Loans then outstanding.
"Tranche B Aggregate Funded Amount": the aggregate principal
amount of Tranche B Term Loans outstanding on the Restatement Effective Date
after giving effect to any borrowing under the Tranche B Incremental Term
Commitment.
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"Tranche B Incremental Term Commitment": as to any Tranche B
Term Lender, the obligation of such Lender (if any) to make a Tranche B Term
Loan to the Borrower hereunder on the Restatement Effective Date in a principal
amount not to exceed the amount set forth under the heading "Tranche B
Incremental Term Commitment" opposite such Lender's name on Schedule 1.1 or in
the Assignment and Acceptance pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof. The original aggregate amount of the Tranche B Incremental Term
Commitments is $125,000,000.
"Tranche B Term Facility": as defined in the definition of
"Facility".
"Tranche B Term Lender": each Lender that holds a Tranche B
Term Loan.
"Tranche B Term Loan": as defined in Section 2.1(a).
"Tranche B Term Percentage": as to any Tranche B Term Lender
at any time, the percentage which the aggregate principal amount of such
Lender's Tranche B Term Loans then outstanding constitutes of the aggregate
principal amount of all Tranche B Term Loans then outstanding.
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar Loan.
"United States": the United States of America.
"Wholly Owned Subsidiary": as to any Person, any other Person
all of the Equity Interests of which (other than directors' qualifying shares
required by law) are owned by such Person directly or through other Wholly Owned
Subsidiaries or a combination thereof.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor
that is a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions; Pro Forma Calculations. (a)
Unless otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in the other Loan Documents or any
certificate or other document made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to Holdings, the Borrower and its Subsidiaries not
defined in Section 1.1 and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to them under
GAAP, (ii) the words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation", (iii) the word "incur" shall be
construed to mean incur, create, issue, assume, become liable in respect of or
suffer to exist (and the words "incurred" and "incurrence" shall have
correlative meanings), and (iv) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, Equity Interests,
securities, revenues, accounts, leasehold interests, contract rights and any
other "assets" as such term is defined under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
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(e) For the purposes of calculating Annualized Operating Cash
Flow, Annualized Pro Forma Operating Cash Flow, Consolidated Operating Cash Flow
and Consolidated Interest Expense for any period (a "Test Period"), (i) if at
any time from the period (a "Pro Forma Period") commencing on the second day of
such Test Period and ending on the last day of such Test Period (or, in the case
of any pro forma calculation made pursuant hereto in respect of a particular
transaction, ending on the date such transaction is consummated and, unless
otherwise expressly provided herein, after giving effect thereto), the Borrower
or any Subsidiary shall have made any Material Disposition (as defined below),
the Consolidated Operating Cash Flow for such Test Period shall be reduced by an
amount equal to the Consolidated Operating Cash Flow (if positive) attributable
to the property which is the subject of such Material Disposition for such Test
Period or increased by an amount equal to the Consolidated Operating Cash Flow
(if negative) attributable thereto for such Test Period, and Consolidated
Interest Expense for such Test Period shall be reduced by an amount equal to the
Consolidated Interest Expense for such Test Period attributable to any
Indebtedness of the Borrower or any Subsidiary repaid, repurchased, defeased or
otherwise discharged with respect to the Borrower and its Subsidiaries in
connection with such Material Disposition (or, if the Equity Interests of any
Subsidiary are sold, the Consolidated Interest Expense for such Test Period
directly attributable to the Indebtedness of such Subsidiary to the extent the
Borrower and its continuing Subsidiaries are no longer liable for such
Indebtedness after such Disposition); (ii) if during such Pro Forma Period the
Borrower or any Subsidiary shall have made a Material Acquisition (as defined
below), Consolidated Operating Cash Flow and Consolidated Interest Expense for
such Test Period shall be calculated after giving pro forma effect thereto
(including the incurrence or assumption of any Indebtedness in connection
therewith) as if such Material Acquisition (and the incurrence or assumption of
any such Indebtedness) occurred on the first day of such Test Period; (iii) if
during such Pro Forma Period any Person that subsequently became a Subsidiary or
was merged with or into the Borrower or any Subsidiary since the beginning of
such Pro Forma Period shall have entered into any disposition or acquisition
transaction that would have required an adjustment pursuant to clause (i) or
(ii) above if made by the Borrower or a Subsidiary during such Pro Forma Period,
Consolidated Operating Cash Flow and Consolidated Interest Expense for such Test
Period shall be calculated after giving pro forma effect thereto as if such
transaction occurred on the first day of such Test Period; and (iv) in the case
of determinations in connection with transactions involving the incurrence of
Indebtedness, Consolidated Interest Expense shall be calculated after giving pro
forma effect thereto (and all other incurrences of Indebtedness during such Pro
Forma Period) as if such Indebtedness was incurred on the first day of such Test
Period. For the purposes of this paragraph, pro forma calculations regarding the
amount of income or earnings relating to any Material Disposition or Material
Acquisition and the amount of Consolidated Interest Expense associated with any
discharge or incurrence of Indebtedness shall in each case be determined in good
faith by a Responsible Officer of the Borrower. If any Indebtedness bears a
floating rate of interest and the incurrence or assumption thereof is being
given pro forma effect, the interest expense on such Indebtedness shall be
calculated as if the rate in effect on the last day of the relevant Pro Forma
Period had been the applicable rate for the entire relevant Test Period (taking
into account any interest rate protection agreement applicable to such
Indebtedness if such interest rate protection agreement has a remaining term in
excess of 12 months). As used in this Section 1.2(e), "Material Acquisition"
means any acquisition of property or series of related acquisitions of property
that (i) constitutes assets comprising all or substantially all of an operating
unit of a business or constitutes all or substantially all of the Equity
Interests of a Person and (ii) involves the payment of Consideration by the
Borrower and its Subsidiaries in excess of $1,000,000; and "Material
Disposition" means any Disposition of property or series of related Dispositions
of property that yields gross proceeds to the Borrower or any of its
Subsidiaries in excess of $1,000,000.
(f) In the event that, during the period between the
Restatement Signing Date and the Restatement Effective Date, any changes are
made in the organizational structure of the Borrower and its Affiliates that are
otherwise permitted by this Agreement, appropriate changes to the definitions
and other provisions hereof and of the other Loan Documents reflecting such
changes may be made with the approval of the Administrative Agent.
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SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments; Increases in the Tranche A Term Facility and
the Revolving Facility; Incremental Term Loans. (a) Subject to the terms and
conditions hereof, (i) each Tranche A Term Lender severally agrees to, as
applicable (x) maintain hereunder its term loan referred to as a "Facility A
Term Loan" in the Existing Credit Agreement (each, an "Existing Tranche A Term
Loan") or (y) make one or more incremental term loans to the Borrower in an
amount not to exceed the amount of the Tranche A Incremental Term Commitment of
such Lender (each, a "Tranche A Incremental Term Loan" and, together with the
Existing Tranche A Term Loans, each a "Tranche A Term Loan"), (ii) each Tranche
B Term Lender severally agrees to, as applicable (x) maintain hereunder its term
loan referred to as a "Facility B Term Loan" in the Existing Credit Agreement or
(y) make an incremental term loan to the Borrower in an amount not to exceed the
amount of the Tranche B Incremental Term Commitment of such Lender (each, a
"Tranche B Term Loan") and (iii) each Incremental Term Lender severally agrees
to make one or more term loans (each, an "Incremental Term Loan") to the extent
provided in Section 2.1(c). The Term Loans may from time to time be Eurodollar
Loans or ABR Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.10. Tranche A
Incremental Term Loans may be made on up to four dates during the period from
the Restatement Effective Date through the first anniversary thereof (the
"Tranche A Incremental Term Commitment Termination Date"); provided that 50% of
the Tranche A Incremental Term Commitments shall be utilized prior to the
six-month anniversary of the Restatement Effective Date. The Tranche A
Incremental Term Commitments shall be permanently reduced on the date of any
borrowing thereunder by the amount of such borrowing, and shall automatically
terminate on the Tranche A Incremental Term Commitment Termination Date.
(b) Subject to the terms and conditions hereof, each Revolving
Lender severally agrees to make revolving credit loans ("Revolving Loans") to
the Borrower from time to time during the Revolving Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to such
Lender's Revolving Percentage of the sum of (i) the L/C Obligations then
outstanding and (ii) the aggregate principal amount of the Swingline Loans then
outstanding, does not exceed the amount of such Lender's Revolving Commitment.
If at any time the aggregate outstanding Revolving Extensions of Credit exceed
$25,000,000, then the Tranche A Incremental Term Loans shall be drawn until the
Tranche A Incremental Term Commitments have been fully utilized. During the
Revolving Commitment Period the Borrower may use the Revolving Commitments by
borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof. The Revolving Loans may
from time to time be Eurodollar Loans or ABR Loans, as determined by the
Borrower and notified to the Administrative Agent in accordance with Sections
2.2 and 2.10.
(c) The Borrower and any one or more Lenders (including New
Lenders) may from time to time agree that such Lenders shall make, obtain or
increase the amount of their Tranche A Term Loans, Incremental Term Loans or
Revolving Commitments, as applicable, by executing and delivering to the
Administrative Agent an Increased Facility Activation Notice specifying (i) the
amount of such increase and the Facility or Facilities involved, (ii) the
applicable Increased Facility Closing Date and (iii) in the case of Incremental
Term Loans, (x) the applicable Incremental Term Maturity Date, (y) the
amortization schedule for such Incremental Term Loans, which shall comply with
Section 2.3, and (z) the Applicable Margin for such Incremental Term Loans.
Notwithstanding the foregoing, without the consent of the Majority Lenders, (i)
the aggregate amount of borrowings of Incremental Term Loans shall not exceed an
amount equal to (w) $200,000,000 plus (x) the aggregate principal amount of
optional prepayments of Term Loans made pursuant to Section 2.8 or optional
reductions of the Revolving Commitments pursuant to Section 2.7 (provided that
the amount described in this clause (x) shall not exceed $100,000,000) minus (y)
the aggregate amount of incremental Tranche A Term Loans or incremental
Revolving Commitments obtained pursuant to this paragraph, (ii) the aggregate
amount of incremental Tranche A Term Loans and incremental Revolving Commitments
obtained pursuant to this paragraph shall not exceed $100,000,000, (iii)
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incremental Tranche A Term Loans may not be made on or after March 31, 2002,
(iv) incremental Revolving Commitments may not be obtained on or after March 31,
2002, (v) each increase effected pursuant to this paragraph shall be in a
minimum amount of at least $50,000,000 and (vi) no more than four Increased
Facility Closing Dates may be selected by the Borrower after the Restatement
Effective Date. No Lender shall have any obligation to participate in any
increase described in this paragraph unless it agrees to do so in its sole
discretion.
(d) Any additional bank, financial institution or other entity
which, with the consent of the Borrower and the Administrative Agent (which
consent shall not be unreasonably withheld), elects to become a "Lender" under
this Agreement in connection with any transaction described in Section 2.1(c)
shall execute a New Lender Supplement (each, a "New Lender Supplement"),
substantially in the form of Exhibit D-2, whereupon such bank, financial
institution or other entity (a "New Lender") shall become a Lender for all
purposes and to the same extent as if originally a party hereto and shall be
bound by and entitled to the benefits of this Agreement.
(e) Unless otherwise agreed by the Administrative Agent, on
each Increased Facility Closing Date (other than in respect of Incremental Term
Loans), the Borrower shall borrow Tranche A Term Loans under the increased
Tranche A Term Facility, or shall borrow Revolving Loans under the increased
Revolving Commitments, as the case may be, from each Lender participating in the
relevant increase in an amount determined by reference to the amount of each
Type of Loan (and, in the case of Eurodollar Loans, of each Eurodollar Tranche)
which would then have been outstanding from such Lender if (i) each such Type or
Eurodollar Tranche had been borrowed or effected on such Increased Facility
Closing Date and (ii) the aggregate amount of each such Type or Eurodollar
Tranche requested to be so borrowed or effected had been proportionately
increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed
pursuant to the preceding sentence shall equal the Eurodollar Base Rate then
applicable to the Eurodollar Loans of the other Lenders in the same Eurodollar
Tranche (or, until the expiration of the then-current Interest Period, such
other rate as shall be agreed upon between the Borrower and the relevant
Lender).
2.2 Procedure for Borrowing. In order to effect a borrowing
hereunder, the Borrower shall give the Administrative Agent irrevocable notice
(which notice must be received by the Administrative Agent prior to 12:00 Noon,
Houston time, (a) three Business Days prior to the requested Borrowing Date, in
the case of Eurodollar Loans, or (b) one Business Day prior to the requested
Borrowing Date, in the case of ABR Loans), specifying (i) the Facility under
which such Loan is to be borrowed, (ii) the amount and Type of Loans to be
borrowed, (iii) the requested Borrowing Date and (iv) in the case of Eurodollar
Loans, the respective amounts of each such Type of Loan and the respective
lengths of the initial Interest Period therefor. Any Loans made on the
Restatement Effective Date shall initially be ABR Loans. Each borrowing shall be
in an aggregate amount equal to (x) in the case of ABR Loans, $5,000,000 or a
whole multiple of $1,000,000 in excess thereof (or, if the then aggregate
Available Revolving Commitments are less than $5,000,000, such lesser amount)
and (y) in the case of Eurodollar Loans, $10,000,000 or a whole multiple of
$1,000,000 in excess thereof; provided, that the Swingline Lender may request,
on behalf of the Borrower, borrowings under the Revolving Commitments that are
ABR Loans in other amounts pursuant to Section 2.5. Upon receipt of any such
notice from the Borrower, the Administrative Agent shall promptly notify each
relevant Lender thereof. Each relevant Lender will make the amount of its pro
rata share of each borrowing available to the Administrative Agent for the
account of the Borrower at the Funding Office prior to 11:00 A.M., Houston time,
on the Borrowing Date requested by the Borrower in funds immediately available
to the Administrative Agent. Such borrowing will then be made available not
later than 2:00 P.M., Houston time, to the Borrower by the Administrative Agent
crediting the account of the Borrower on the books of such office with the
aggregate of the amounts made available to the Administrative Agent by the
relevant Lenders and in like funds as received by the Administrative Agent.
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2.3 Repayment of Loans. (a) The Tranche A Term Loans of each
Tranche A Term Lender shall mature in 22 consecutive quarterly installments,
commencing on March 31, 2002, each of which shall be in an amount equal to such
Lender's Tranche A Term Percentage multiplied by the percentage of the Tranche A
Aggregate Funded Amount set forth below opposite such installment:
Installment Percentage
----------- ----------
March 31, 2002 2.5%
June 30, 2002 2.5%
September 30, 2002 2.5%
December 31, 2002 2.5%
March 31, 2003 3.75%
June 30, 2003 3.75%
September 30, 2003 3.75%
December 31, 2003 3.75%
March 31, 2004 3.75%
June 30, 2004 3.75%
September 30, 2004 3.75%
December 31, 2004 3.75%
March 31, 2005 5.0%
June 30, 2005 5.0%
September 30, 2005 5.0%
December 31, 2005 5.0%
March 31, 2006 6.25%
June 30, 2006 6.25%
September 30, 2006 6.25%
December 31, 2006 6.25%
March 31, 2007 7.5%
June 30, 2007 7.5%
(b) The Tranche B Term Loans of each Tranche B Term Lender
shall mature in 25 consecutive quarterly installments (each due on the last day
of each calendar quarter, except for the last such installment), commencing on
March 31, 2002, each of which shall be in an amount equal to such Lender's
Tranche B Term Percentage multiplied by (i) in the case of the first 24 such
installments, 0.25% of the Tranche B Aggregate Funded Amount and (ii) in the
case of the last such installment (which shall be due on February 2, 2008),
94.0% of the Tranche B Aggregate Funded Amount.
(c) The Incremental Term Loans of each Incremental Term Lender
shall mature in consecutive installments (which shall be no more frequent than
quarterly) as specified in the Increased Facility Activation Notice pursuant to
which such Incremental Term Loans were made, provided that, prior to the date
that is six months after the final maturity of the Tranche B Term Loans, the
aggregate amount of such installments for any four consecutive fiscal quarters
shall not exceed 1% of the aggregate principal amount of such Incremental Term
Loans on the date such Loans were first made.
(d) The Total Revolving Commitments shall be permanently
reduced on each of the dates set forth below by an aggregate amount equal to the
percentage of the Revolving Aggregate Committed Amount set forth opposite such
date:
Date Percentage
---- ----------
March 31, 2002 2.5%
June 30, 2002 2.5%
September 30, 2002 2.5%
December 31, 2002 2.5%
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March 31, 2003 3.75%
June 30, 2003 3.75%
September 30, 2003 3.75%
December 31, 2003 3.75%
March 31, 2004 3.75%
June 30, 2004 3.75%
September 30, 2004 3.75%
December 31, 2004 3.75%
March 31, 2005 5.0%
June 30, 2005 5.0%
September 30, 2005 5.0%
December 31, 2005 5.0%
March 31, 2006 6.25%
June 30, 2006 6.25%
September 30, 2006 6.25%
December 31, 2006 6.25%
March 31, 2007 7.5%
June 30, 2007 7.5%
(e) Any reduction or termination of the Revolving Commitments
pursuant to this Section 2.3 shall be accompanied by prepayment of the Revolving
Loans and/or Swingline Loans to the extent that the Total Revolving Extensions
of Credit exceed the amount of the Total Revolving Commitments after giving
effect thereto, provided that if the aggregate principal amount of Revolving
Loans and Swingline Loans then outstanding is less than the amount of such
excess (because L/C Obligations constitute a portion thereof), the Borrower
shall, to the extent of the balance of such excess, replace outstanding Letters
of Credit and/or deposit an amount in cash in a cash collateral account
established with the Administrative Agent for the benefit of the Lenders on
terms and conditions satisfactory to the Administrative Agent. The application
of any prepayment pursuant to this paragraph shall be made, first, to ABR Loans
and, second, to Eurodollar Loans. Each prepayment of the Loans under this
paragraph (other than ABR Loans and Swingline Loans) shall be accompanied by
accrued interest to the date of such prepayment on the amount prepaid.
2.4 Swingline Commitment. Subject to the terms and conditions
hereof, the Swingline Lender agrees to make a portion of the credit otherwise
available to the Borrower under the Revolving Commitments from time to time
during the Revolving Commitment Period by making swingline loans ("Swingline
Loans") to the Borrower; provided that (a) the aggregate principal amount of
Swingline Loans outstanding at any time shall not exceed the Swingline
Commitment then in effect (notwithstanding that the Swingline Loans outstanding
at any time, when aggregated with the Swingline Lender's other outstanding
Revolving Loans hereunder, may exceed the Swingline Commitment then in effect)
and (b) the Borrower shall not request, and the Swingline Lender shall not make,
any Swingline Loan if, after giving effect to the making of such Swingline Loan,
the aggregate amount of the Available Revolving Commitments would be less than
zero. During the Revolving Commitment Period, the Borrower may use the Swingline
Commitment by borrowing, repaying and reborrowing, all in accordance with the
terms and conditions hereof. Swingline Loans shall be ABR Loans only.
2.5 Procedure for Swingline Borrowing; Refunding of Swingline
Loans. (a) Whenever the Borrower desires that the Swingline Lender make
Swingline Loans it shall give the Swingline Lender irrevocable telephonic notice
confirmed promptly in writing (which telephonic notice must be received by the
Swingline Lender not later than 12:00 Noon, Houston time, on the proposed
Borrowing Date), specifying (i) the amount to be borrowed and (ii) the requested
Borrowing Date (which shall be a Business Day during the Revolving Commitment
Period). Each borrowing under the Swingline Commitment shall be in an amount
equal to $1,000,000 or a whole multiple of $500,000 in excess thereof. Not later
than 2:00
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P.M., Houston time, on the Borrowing Date specified in a notice in respect of
Swingline Loans, the Swingline Lender shall make available to the
Administrative Agent at the Funding Office an amount in immediately available
funds equal to the amount of the Swingline Loan to be made by the Swingline
Lender. The Administrative Agent shall make the proceeds of such Swingline Loan
available to the Borrower on such Borrowing Date by depositing such proceeds in
the account of the Borrower with the Administrative Agent on such Borrowing Date
in immediately available funds.
(b) The Swingline Lender, at any time and from time to time in
its sole and absolute discretion and in consultation with the Borrower (provided
that the failure to so consult shall not affect the ability of the Swingline
Lender to make the following request) may, on behalf of the Borrower (which
hereby irrevocably directs the Swingline Lender to act on its behalf), on one
Business Day's notice given by the Swingline Lender no later than 1:00 P.M.,
Houston time, request each Revolving Lender to make, and each Revolving Lender
hereby agrees to make, a Revolving Loan, in an amount equal to such Revolving
Lender's Revolving Percentage of the aggregate amount of the Swingline Loans
(the "Refunded Swingline Loans") outstanding on the date of such notice, to
repay the Swingline Lender. Each Revolving Lender shall make the amount of such
Revolving Loan available to the Administrative Agent at the Funding Office in
immediately available funds, not later than 11:00 A.M., Houston time, one
Business Day after the date of such notice. The proceeds of such Revolving Loans
shall be immediately made available by the Administrative Agent to the Swingline
Lender for application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to
charge the Borrower's accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent amounts received from the Revolving
Lenders are not sufficient to repay in full such Refunded Swingline Loans.
(c) If prior to the time a Revolving Loan would have otherwise
been made pursuant to Section 2.5(b), one of the events described in Section
8(f) shall have occurred and be continuing with respect to the Borrower or if
for any other reason, as determined by the Swingline Lender in its sole
discretion, Revolving Loans may not be made as contemplated by Section 2.5(b),
each Revolving Lender shall, on the date such Revolving Loan was to have been
made pursuant to the notice referred to in Section 2.5(b) (the "Refunding
Date"), purchase for cash an undivided participating interest in the then
outstanding Swingline Loans by paying to the Swingline Lender an amount (the
"Swingline Participation Amount") equal to (i) such Revolving Lender's Revolving
Percentage times (ii) the sum of the aggregate principal amount of Swingline
Loans then outstanding that were to have been repaid with such Revolving Loans.
(d) Whenever, at any time after the Swingline Lender has
received from any Revolving Lender such Lender's Swingline Participation Amount,
the Swingline Lender receives any payment on account of the Swingline Loans, the
Swingline Lender will distribute to such Lender its Swingline Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded and, in the case of principal and interest payments, to reflect such
Lender's pro rata portion of such payment if such payment is not sufficient to
pay the principal of and interest on all Swingline Loans then due); provided,
however, that in the event that such payment received by the Swingline Lender is
required to be returned, such Revolving Lender will return to the Swingline
Lender any portion thereof previously distributed to it by the Swingline Lender.
(e) Each Revolving Lender's obligation to make the Loans
referred to in Section 2.5(b) and to purchase participating interests pursuant
to Section 2.5(c) shall be absolute and unconditional and shall not be affected
by any circumstance, including (i) any setoff, counterclaim, recoupment, defense
or other right that such Revolving Lender or the Borrower may have against the
Swingline Lender, the Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or an Event of Default or the
failure to satisfy any of the other conditions specified in Section 5; (iii) any
adverse change in the condition (financial or otherwise) of the Borrower; (iv)
any breach of this Agreement
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or any other Loan Document by the Borrower, any other Loan Party or any other
Revolving Lender; or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
2.6 Commitment Fees, etc. (a) The Borrower agrees to pay to
the Administrative Agent for the account of each Revolving Lender and each
Tranche A Incremental Term Lender a nonrefundable commitment fee for the period
from and including the Restatement Effective Date to the last day of the
Revolving Commitment Period or the date on which the Tranche A Incremental Term
Commitments have been fully utilized or terminated, as the case may be, computed
at the Commitment Fee Rate on the average daily amount of the Available
Revolving Commitment or the unutilized Tranche A Incremental Term Commitment, as
the case may be, of such Lender during the period for which payment is made,
payable quarterly in arrears on the last day of each March, June, September and
December and on the Revolving Termination Date or the date on which the Tranche
A Incremental Term Commitments have been fully utilized or terminated, as the
case may be, commencing on the first of such dates to occur after the date
hereof.
(b) The Borrower agrees to pay to the Administrative Agent the
fees in the amounts and on the dates previously agreed to in writing by the
Borrower and the Administrative Agent.
2.7 Termination or Reduction of Commitments. The Borrower
shall have the right, upon not less than three Business Days' notice to the
Administrative Agent, to terminate the Revolving Commitments or the Tranche A
Incremental Term Commitments or, from time to time, to reduce the amount of the
Revolving Commitments or the Tranche A Incremental Term Commitments; provided
that no such termination or reduction of Revolving Commitments shall be
permitted if, after giving effect thereto and to any prepayments of the
Revolving Loans and Swingline Loans made on the effective date thereof, the
Total Revolving Extensions of Credit would exceed the Total Revolving
Commitments. Any such reduction shall be in an amount equal to $10,000,000, or a
whole multiple of $1,000,000 in excess thereof, shall reduce permanently the
Revolving Commitments or the Tranche A Incremental Term Commitments, as the case
may be, then in effect and shall, in the case of the Revolving Commitments, be
applied pro rata to the scheduled reductions thereof.
2.8 Optional Prepayments. The Borrower may at any time and
from time to time prepay the Loans, in whole or in part, without premium or
penalty, upon irrevocable notice delivered to the Administrative Agent at least
three Business Days prior thereto in the case of Eurodollar Loans and at least
one Business Day prior thereto in the case of ABR Loans, which notice shall
specify the date and amount of prepayment and whether the prepayment is of
Eurodollar Loans or ABR Loans; provided, that if a Eurodollar Loan is prepaid on
any day other than the last day of the Interest Period applicable thereto, the
Borrower shall also pay any amounts owing pursuant to Section 2.18. Upon receipt
of any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof. If any such notice is given, the amount specified in such notice
shall be due and payable on the date specified therein, together with (except in
the case of Revolving Loans that are ABR Loans and Swingline Loans) accrued
interest to such date on the amount prepaid. Partial prepayments of Term Loans
and Revolving Loans shall be in an aggregate principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof. Partial prepayments of Swingline
Loans shall be in an aggregate principal amount of $1,000,000 or a whole
multiple of $500,000 in excess thereof.
2.9 Mandatory Prepayments. (a) If on any date the Borrower or
any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or
Recovery Event then, (i) unless a Reinvestment Notice shall be delivered in
respect thereof, such Net Cash Proceeds shall be applied within two Business
Days after the deadline by which such Reinvestment Notice is otherwise required
to be delivered in respect of such Asset Sale or Recovery Event toward the
prepayment of the Term Loans (provided that the foregoing requirement shall not
apply to the first $10,000,000 of aggregate Net Cash Proceeds received after the
Restatement Effective Date) and (ii) on each Reinvestment Prepayment Date, an
amount equal to the
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Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event
shall be applied toward the prepayment of the Term Loans.
(b) The application of any prepayment pursuant to this Section
2.9 shall be made, first, to ABR Loans and, second, to Eurodollar Loans. Each
prepayment of the Loans under this Section 2.9 shall be accompanied by accrued
interest to the date of such prepayment on the amount prepaid.
2.10 Conversion and Continuation Options. (a) The Borrower may
elect from time to time to convert Eurodollar Loans to ABR Loans by giving the
Administrative Agent at least three Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may only be
made on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert ABR Loans to Eurodollar Loans by giving
the Administrative Agent at least three Business Days' prior irrevocable notice
of such election (which notice shall specify the length of the initial Interest
Period therefor), provided that no ABR Loan may be converted into a Eurodollar
Loan when any Event of Default has occurred and is continuing. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.
(b) Any Eurodollar Loan may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Borrower giving irrevocable notice to the Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that (i) no Eurodollar Loan may be continued as such when any
Event of Default has occurred and is continuing and (ii) if the Borrower shall
fail to give any required notice as described above in this paragraph, the
relevant Eurodollar Loans shall be automatically converted to Eurodollar Loans
having a one-month Interest Period on the last day of the then expiring Interest
Period. Upon receipt of any such notice the Administrative Agent shall promptly
notify each relevant Lender thereof.
2.11 Limitations on Eurodollar Tranches. Notwithstanding
anything to the contrary in this Agreement, all borrowings, conversions and
continuations of Eurodollar Loans hereunder and all selections of Interest
Periods hereunder shall be in such amounts and be made pursuant to such
elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $10,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than fifteen Eurodollar Tranches shall be outstanding at any one time.
2.12 Interest Rates and Payment Dates. (a) Each Eurodollar
Loan shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each ABR Loan shall bear interest at a rate per annum
equal to the ABR plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any
Loan or Reimbursement Obligation shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), all outstanding Loans and
Reimbursement Obligations (whether or not overdue) shall bear interest at a rate
per annum equal to (x) in the case of the Loans, the rate that would otherwise
be applicable thereto pursuant to the foregoing provisions of this Section plus
2% or (y) in the case of Reimbursement Obligations, the rate applicable to ABR
Loans under the Revolving Facility plus 2%, and (ii) if all or a portion of any
interest payable on any Loan or Reimbursement Obligation or any commitment fee
or other amount payable hereunder shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue amount shall bear
interest at a rate per annum equal to the rate then applicable to ABR Loans
under the relevant Facility plus 2% (or, in the case of any such other amounts
that do not relate to a particular Facility, the rate then applicable to ABR
Loans under the Revolving Facility plus 2%), in each case, with
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respect to clauses (i) and (ii) above, from the date of such non-payment until
such amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest
Payment Date, provided that interest accruing pursuant to paragraph (c) of this
Section shall be payable from time to time on demand.
2.13 Computation of Interest and Fees. (a) Interest and fees
payable pursuant hereto shall be calculated on the basis of a 360-day year for
the actual days elapsed, except that, with respect to ABR Loans the rate of
interest on which is calculated on the basis of the Prime Rate, the interest
thereon shall be calculated on the basis of a 365- (or 366-, as the case may be)
day year for the actual days elapsed. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of each determination
of a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the ABR or the Eurocurrency Reserve Requirements shall become
effective as of the opening of business on the day on which such change becomes
effective. The Administrative Agent shall as soon as practicable notify the
Borrower and the relevant Lenders of the effective date and the amount of each
such change in interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement shall be
conclusive and binding on the Borrower and the Lenders in the absence of
manifest error. The Administrative Agent shall, at the request of the Borrower,
deliver to the Borrower a statement showing the quotations used by the
Administrative Agent in determining any interest rate pursuant to Section
2.12(a).
2.14 Inability to Determine Interest Rate. If prior to the
first day of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that,
by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for
such Interest Period, or
(b) the Administrative Agent shall have received notice from
the Majority Facility Lenders in respect of the relevant Facility that
the Eurodollar Rate determined or to be determined for such Interest
Period will not adequately and fairly reflect the cost to such Lenders
(as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as ABR Loans,
(y) any Loans under the relevant Facility that were to have been converted on
the first day of such Interest Period to Eurodollar Loans shall be continued as
ABR Loans and (z) any outstanding Eurodollar Loans under the relevant Facility
shall be converted, on the last day of the then-current Interest Period, to ABR
Loans. Until such notice has been withdrawn by the Administrative Agent, no
further Eurodollar Loans under the relevant Facility shall be made or continued
as such, nor shall the Borrower have the right to convert Loans under the
relevant Facility to Eurodollar Loans.
2.15 Pro Rata Treatment and Payments. (a) Except in the case
of the Incremental Term Facility, each borrowing by the Borrower from the
Lenders hereunder, each payment by the Borrower on account of any commitment fee
and any reduction of the Tranche A Incremental Term Commitments or Revolving
Commitments of the Lenders shall be made pro rata according to the respective
Tranche A Incremental Term Commitments, Tranche B Incremental Term Commitments
or Revolving Commitments, as the case may be, of the relevant Lenders.
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(b) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Term Loans shall be made pro rata
according to the respective outstanding principal amounts of the Term Loans then
held by the Term Lenders (except as otherwise provided in Section 2.15(d)). The
amount of each principal prepayment of the Term Loans shall be applied to reduce
the then remaining installments of the Tranche A Term Loans, Tranche B Term
Loans and Incremental Term Loans, as the case may be, pro rata based upon the
then remaining principal amount thereof. Amounts prepaid on account of the Term
Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower
on account of principal of and interest on the Revolving Loans shall be made pro
rata according to the respective outstanding principal amounts of the Revolving
Loans then held by the Revolving Lenders.
(d) Notwithstanding anything to the contrary in this
Agreement, with respect to the amount of any mandatory prepayment of the Term
Loans pursuant to Section 2.9 and, if the Borrower so elects in its sole
discretion, any optional prepayment of the Term Loans pursuant to Section 2.8,
that in any such case is allocated to Tranche B Term Loans or Incremental Term
Loans (such amounts, the "Tranche B Prepayment Amount" and the "Incremental
Prepayment Amount", respectively), at any time when Tranche A Term Loans remain
outstanding, the Borrower will (or, in the case of optional prepayments, may),
in lieu of applying such amount to the prepayment of Tranche B Term Loans and
Incremental Term Loans, respectively, on the date specified in Section 2.9 or
2.8, as the case may be, for such prepayment, give the Administrative Agent
telephonic notice (promptly confirmed in writing) requesting that the
Administrative Agent prepare and provide to each Tranche B Lender and
Incremental Term Lender a notice (each, a "Prepayment Option Notice") as
described below. As promptly as practicable after receiving such notice from the
Borrower, the Administrative Agent will send to each Tranche B Lender and
Incremental Term Lender a Prepayment Option Notice, which shall be in the form
of Exhibit F, and shall include an offer by the Borrower to prepay on the date
(each a "Prepayment Date") that is 10 Business Days after the date of the
Prepayment Option Notice, the relevant Term Loans of such Lender by an amount
equal to the portion of the prepayment amount indicated in such Lender's
Prepayment Option Notice as being applicable to such Lender's Tranche B Term
Loans or Incremental Term Loans, as the case may be. On the Prepayment Date, (i)
the Borrower shall pay to the relevant Tranche B Lenders and Incremental Term
Lenders the aggregate amount necessary to prepay that portion of the outstanding
relevant Term Loans in respect of which such Lenders have accepted prepayment as
described in the Prepayment Option Notice, (ii) the Borrower shall pay to the
Tranche A Term Lenders an amount equal to 50% (or, in the case of optional
prepayments, such percentage as shall be determined by the Borrower in its sole
discretion) of the portion of the Tranche B Prepayment Amount and the
Incremental Prepayment Amount not accepted by the relevant Lenders, and such
amount shall be applied pro rata to the prepayment of the Tranche A Term Loans,
and (iii) the Borrower shall be entitled to retain the remaining portion of the
Tranche B Prepayment Amount and the Incremental Prepayment Amount not accepted
by the relevant Lenders.
(e) All payments (including prepayments) to be made by the
Borrower hereunder, whether on account of principal, interest, fees or
otherwise, shall be made without setoff or counterclaim and shall be made prior
to 12:00 Noon, Houston time, on the due date thereof to the Administrative
Agent, for the account of the Lenders, at the Funding Office, in Dollars and in
immediately available funds. The Administrative Agent shall distribute such
payments to the Lenders promptly upon receipt in like funds as received. If any
payment hereunder (other than payments on the Eurodollar Loans) becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. If any payment on a Eurodollar Loan becomes
due and payable on a day other than a Business Day, the maturity thereof shall
be extended to the next succeeding Business Day unless the result of such
extension would be to extend such payment into another calendar month, in which
event such payment shall be made on the immediately preceding Business Day. In
the case of any extension of any payment of principal pursuant to the preceding
two sentences, interest thereon shall be payable at the then applicable rate
during such extension.
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(f) Unless the Administrative Agent shall have been notified
in writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the Administrative
Agent by the required time on the Borrowing Date therefor, such Lender shall pay
to the Administrative Agent, on demand, such amount with interest thereon at a
rate equal to the daily average Federal Funds Effective Rate for the period
until such Lender makes such amount immediately available to the Administrative
Agent. A certificate of the Administrative Agent submitted to any Lender with
respect to any amounts owing under this paragraph shall be conclusive in the
absence of manifest error. If such Lender's share of such borrowing is not made
available to the Administrative Agent by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent shall also be entitled to
recover such amount with interest thereon at the rate per annum applicable to
ABR Loans under the relevant Facility, on demand, from the Borrower.
(g) Unless the Administrative Agent shall have been notified
in writing by the Borrower prior to the date of any payment being made hereunder
that the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the Lenders their respective pro rata shares
of a corresponding amount. If such payment is not made to the Administrative
Agent by the Borrower within three Business Days of such required date, the
Administrative Agent shall be entitled to recover, on demand, from each Lender
to which any amount which was made available pursuant to the preceding sentence,
such amount with interest thereon at the rate per annum equal to the daily
average Federal Funds Effective Rate. Nothing herein shall be deemed to limit
the rights of the Administrative Agent or any Lender against the Borrower.
2.16 Requirements of Law. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Letter of Credit, any
Application or any Eurodollar Loan made by it, or change the basis of
taxation of payments to such Lender in respect thereof (except for
Non-Excluded Taxes covered by Section 2.17 and changes in the rate of
tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement
against assets held by, deposits or other liabilities in or for the
account of, advances, loans or other extensions of credit by, or any
other acquisition of funds by, any office of such Lender that is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this paragraph, it shall promptly
notify the Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled.
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(b) If any Lender shall have determined that the adoption of
or any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time, after
submission by such Lender to the Borrower (with a copy to the Administrative
Agent) of a written request therefor, the Borrower shall pay to such Lender such
additional amount or amounts as will compensate such Lender for such reduction;
provided that the Borrower shall not be required to compensate a Lender pursuant
to this paragraph for any amounts incurred more than six months prior to the
date that such Lender notifies the Borrower of such Lender's intention to claim
compensation therefor; and provided further that, if the circumstances giving
rise to such claim have a retroactive effect, then such six-month period shall
be extended to include the period of such retroactive effect.
(c) A certificate as to any additional amounts payable
pursuant to this Section submitted by any Lender to the Borrower (with a copy to
the Administrative Agent) shall be conclusive in the absence of manifest error.
The obligations of the Borrower pursuant to this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.17 Taxes. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") or Other Taxes are required to be withheld
from any amounts payable to the Administrative Agent or any Lender hereunder,
the amounts so payable to the Administrative Agent or such Lender shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that the Borrower shall not be required to
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's failure to comply with the
requirements of paragraph (d) or (e) of this Section or (ii) that are United
States withholding taxes imposed on amounts payable to such Lender at the time
the Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes
pursuant to this paragraph.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable
by the Borrower, as promptly as possible thereafter the Borrower shall send to
the Administrative Agent for its own account or for the account of the relevant
Lender, as the case may be, a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the
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required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure.
(d) Each Lender (or Transferee) that is not a citizen or
resident of the United States of America, a corporation, partnership or other
entity created or organized in or under the laws of the United States of America
(or any jurisdiction thereof), or any estate or trust that is subject to federal
income taxation regardless of the source of its income (a "Non-U.S. Lender")
shall deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-8BEN or
Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from U.S.
federal withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest", a statement substantially in the form of
Exhibit G and a Form W-8BEN, or any subsequent versions thereof or successors
thereto, properly completed and duly executed by such Non-U.S. Lender claiming
complete exemption from U.S. federal withholding tax on all payments by the
Borrower under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender
shall promptly notify the Borrower at any time it determines that it is no
longer in a position to provide any previously delivered certificate to the
Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this
paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from non-U.S.
withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding, provided that such Lender is legally entitled to
complete, execute and deliver such documentation and in such Lender's judgment
such completion, execution or submission would not materially prejudice the
legal position of such Lender.
(f) The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
2.18 Indemnity. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) default by the Borrower in making any
prepayment of or conversion from Eurodollar Loans after the Borrower has given a
notice thereof in accordance with the provisions of this Agreement or (c) the
making of a prepayment of Eurodollar Loans on a day that is not the last day of
an Interest Period with respect thereto. Such indemnification may include an
amount equal to the excess, if any, of (i) the amount of interest that would
have accrued on the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of such failure to
borrow, convert or continue to the last day of such Interest Period (or, in the
case of a failure to borrow, convert or continue, the Interest Period that would
have commenced on the date of such failure) in each case at the applicable rate
of interest for such Loans provided for herein (excluding, however, the
Applicable Margin included therein, if any) over (ii) the amount of interest (as
reasonably determined by such Lender) that would have accrued to such Lender on
such amount by placing such amount on deposit for a comparable period with
leading banks in
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the interbank eurodollar market. A certificate as to any amounts payable
pursuant to this Section submitted to the Borrower by any Lender shall be
conclusive in the absence of manifest error. This covenant shall survive the
termination of this Agreement and the payment of the Loans and all other
amounts payable hereunder.
2.19 Change of Lending Office. Each Lender agrees that, upon
the occurrence of any event giving rise to the operation of Section 2.16 or
2.17(a) with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.16 or 2.17(a).
2.20 Replacement of Lenders. The Borrower shall be permitted
to replace any Lender that (a) requests reimbursement for amounts owing pursuant
to Section 2.16 or 2.17(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) prior to any such replacement, such Lender shall have taken no action
under Section 2.19 which has eliminated the continued need for payment of
amounts owing pursuant to Section 2.16 or 2.17(a), (iv) the replacement
financial institution shall purchase, at par, all Loans and other amounts owing
to such replaced Lender on or prior to the date of replacement, (v) the Borrower
shall be liable to such replaced Lender under Section 2.18 if any Eurodollar
Loan owing to such replaced Lender shall be purchased other than on the last day
of the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 10.6 (provided that the
Borrower shall be obligated to pay the registration and processing fee referred
to therein), (viii) until such time as such replacement shall be consummated,
the Borrower shall pay all additional amounts (if any) required pursuant to
Section 2.16 or 2.17(a), as the case may be, and (ix) any such replacement shall
not be deemed to be a waiver of any rights that the Borrower, the Agents or any
other Lender shall have against the replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions
hereof, each Issuing Lender, in reliance on the agreements of the other
Revolving Lenders set forth in Section 3.4(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Borrower on any Business Day during
the Revolving Commitment Period in such form as may be approved from time to
time by such Issuing Lender; provided that no Issuing Lender shall issue any
Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the aggregate amount of the
Available Revolving Commitments would be less than zero. Each Letter of Credit
shall (i) be denominated in Dollars, (ii) unless otherwise agreed by the
Administrative Agent and the relevant Issuing Lender, have a face amount of at
least $500,000 and (iii) expire no later than the earlier of (x) the first
anniversary of its date of issuance and (y) the date that is five Business Days
prior to the Revolving Termination Date, provided that any Letter of Credit with
a one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in clause
(y) above).
(b) No Issuing Lender shall be obligated to issue any Letter
of Credit hereunder if such issuance would conflict with, or cause such Issuing
Lender or any L/C Participant to exceed any limits imposed by, any applicable
Requirement of Law.
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3.2 Procedure for Issuance of Letter of Credit. The Borrower
may from time to time request that any Issuing Lender issue a Letter of Credit
by delivering to such Issuing Lender an Application therefor, completed to the
satisfaction of such Issuing Lender, and such other certificates, documents and
other papers and information as such Issuing Lender may request. Upon receipt of
any Application, the relevant Issuing Lender will process such Application and
the certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall
such Issuing Lender be required to issue any Letter of Credit earlier than three
Business Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed to by such Issuing Lender and the Borrower. The relevant
Issuing Lender shall furnish a copy of such Letter of Credit to the Borrower
promptly following the issuance thereof. The relevant Issuing Lender shall
promptly furnish to the Administrative Agent, which shall in turn promptly
furnish to the Lenders, notice of the issuance of each Letter of Credit
(including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on
all outstanding Letters of Credit at a per annum rate equal to the Applicable
Margin then in effect with respect to Eurodollar Loans under the Revolving
Facility, shared ratably among the Revolving Lenders and payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date. In addition, the
Borrower shall pay to the relevant Issuing Lender for its own account a fronting
fee of 0.25% per annum on the undrawn and unexpired amount of each Letter of
Credit issued by such Issuing Lender, payable quarterly in arrears on each L/C
Fee Payment Date after the issuance date.
(b) In addition to the foregoing fees, the Borrower shall pay
or reimburse the relevant Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by such Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit.
3.4 L/C Participations. (a) Each Issuing Lender irrevocably
agrees to grant and hereby grants to each L/C Participant, and, to induce the
Issuing Lenders to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
each Issuing Lender, on the terms and conditions hereinafter stated, for such
L/C Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Percentage in each Issuing Lender's obligations and
rights under each Letter of Credit issued by it hereunder and the amount of each
draft paid by such Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with each Issuing Lender that, if a draft
is paid under any Letter of Credit issued by such Issuing Lender for which such
Issuing Lender is not reimbursed in full by the Borrower in accordance with the
terms of this Agreement, such L/C Participant shall pay to such Issuing Lender
upon demand an amount equal to such L/C Participant's Revolving Percentage of
the amount of such draft, or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant
to any Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Lender under any Letter of Credit is
paid to such Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to such Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
Federal Funds Effective Rate during the period from and including the date such
payment is required to the date on which such payment is immediately available
to such Issuing Lender, times (iii) a fraction the numerator of which is the
number of days that elapse during such period and the denominator of which is
360. If any such amount required to be paid by any L/C Participant pursuant to
Section 3.4(a) is not made available to the relevant Issuing Lender by such L/C
Participant within three Business Days after the date such payment is due, such
Issuing Lender shall be entitled to recover from such L/C Participant, on
demand, such amount with interest thereon calculated
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from such due date at the rate per annum applicable to ABR Loans under the
Revolving Facility. A certificate of the relevant Issuing Lender submitted to
any L/C Participant with respect to any amounts owing under this Section shall
be conclusive in the absence of manifest error.
(c) Whenever, at any time after the relevant Issuing Lender
has made payment under any Letter of Credit and has received from any L/C
Participant its pro rata share of such payment in accordance with Section
3.4(a), such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, including proceeds of
collateral applied thereto by such Issuing Lender), or any payment of interest
on account thereof, such Issuing Lender will distribute to such L/C Participant
its pro rata share thereof; provided, however, that in the event that any such
payment received by such Issuing Lender shall be required to be returned by such
Issuing Lender, such L/C Participant shall return to such Issuing Lender the
portion thereof previously distributed by such Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the relevant Issuing Lender on each date on which such
Issuing Lender notifies the Borrower of the date and amount of a draft presented
under any Letter of Credit and paid by such Issuing Lender for the amount of (a)
such draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment. Each such
payment shall be made to the relevant Issuing Lender in lawful money of the
United States and in immediately available funds. Interest shall be payable on
any and all amounts remaining unpaid by the Borrower under this Section from the
date such amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate set forth in (i) until the second
Business Day following the date of the applicable drawing, Section 2.12(b) and
(ii) thereafter, Section 2.12(c).
3.6 Obligations Absolute. The Borrower's obligations under
this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower may have or have had against any Issuing Lender, any other
Lender, any beneficiary of a Letter of Credit or any other Person. The Borrower
also agrees with each Issuing Lender that no Issuing Lender shall be responsible
for, and the Borrower's Reimbursement Obligations under Section 3.5 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. No Issuing
Lender shall be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions found by a final and nonappealable decision of a court of competent
jurisdiction to have resulted from the gross negligence or willful misconduct of
the relevant Issuing Lender. The Borrower agrees that any action taken or
omitted by any Issuing Lender under or in connection with any Letter of Credit
or the related drafts or documents, if done in the absence of gross negligence
or willful misconduct and in accordance with the standards of care specified in
the Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of any Issuing Lender to the
Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented
for payment under any Letter of Credit, the relevant Issuing Lender shall
promptly notify the Borrower of the date and amount thereof. The responsibility
of each Issuing Lender to the Borrower in connection with any draft presented
for payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
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3.8 Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this
Agreement and to make the Loans and issue or participate in the Letters of
Credit, Holdings and the Borrower hereby jointly and severally represent and
warrant to the Agents and each Lender that:
4.1 Financial Condition. The unaudited consolidated balance
sheet of the Borrower as at September 30, 1999, and the related unaudited
consolidated statements of operations and cash flows for the three-month period
ended on such date, have been prepared based on the best information available
to the Borrower as of the date of delivery thereof, and present fairly the
consolidated financial condition of the Borrower as at such date, and the
consolidated results of its operations and its consolidated cash flows for the
three-month period then ended (subject to normal year-end audit adjustments).
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). Holdings, the Borrower and its
Subsidiaries do not have any material Guarantee Obligations, contingent
liabilities and liabilities for taxes, or any long-term leases or unusual
forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are not reflected in the most recent financial statements
referred to in this paragraph. During the period from December 31, 1998 to and
including the date hereof there has been no Disposition by Holdings, the
Borrower or any of its Subsidiaries of any material part of its business or
property.
4.2 No Change. Since December 31, 1998 there has been no
event, development or circumstance that has had or could reasonably be expected
to have a Material Adverse Effect.
4.3 Existence; Compliance with Law. Each of Holdings, the
Borrower and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b) has
the power and authority, and the legal right, to own and operate its property,
to lease the property it operates as lessee and to conduct the business in which
it is currently engaged, (c) is duly qualified as a foreign entity and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such qualification
and (d) is in compliance with all Requirements of Law, in each case with respect
to clauses (c) and (d), except as could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
4.4 Power; Authorization; Enforceable Obligations. Each Loan
Party has the power and authority, and the legal right, to make, deliver and
perform the Loan Documents to which it is a party and, in the case of the
Borrower, to borrow hereunder. Each Loan Party has taken all necessary action to
authorize the execution, delivery and performance of the Loan Documents to which
it is a party and, in the case of the Borrower, to authorize the borrowings on
the terms and conditions of this Agreement. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the Loan Documents, except the
filings referred to in Section 4.20. Each Loan Document has been duly executed
and delivered on behalf of each Loan Party party thereto. This Agreement
constitutes, and each other Loan Document upon execution will constitute, a
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against each such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors= rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
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4.5 No Legal Bar. The execution, delivery and performance of
this Agreement and the other Loan Documents, the issuance of Letters of Credit,
the borrowings hereunder and the use of the proceeds thereof will not violate
any Requirement of Law or any material Contractual Obligation of Holdings, the
Borrower or any of its Subsidiaries and will not result in, or require, the
creation or imposition of any Lien on any of their respective properties or
revenues pursuant to any Requirement of Law or any such Contractual Obligation
(other than the Liens created by the Guarantee and Collateral Agreement).
4.6 Litigation. No litigation, investigation or proceeding of
or before any arbitrator or Governmental Authority is pending or, to the
knowledge of Holdings or the Borrower, threatened by or against Holdings, the
Borrower or any of its Subsidiaries or against any of their respective
properties or revenues (a) with respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby, or (b) that could reasonably be
expected to have a Material Adverse Effect.
4.7 No Default. Neither Holdings, the Borrower nor any of its
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect that could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of Holdings, the
Borrower and its Subsidiaries has good and sufficient legal title to, or a valid
leasehold interest in, all its material real property, and good title to, or a
valid leasehold interest in, all its other material property, and none of such
property is subject to any Lien except as permitted by Section 7.3.
4.9 Intellectual Property. Holdings, the Borrower and each of
its Subsidiaries owns, or is licensed to use, all material Intellectual Property
necessary for the conduct of its business as currently conducted. No material
claim has been asserted and is pending by any Person challenging or questioning
the use, validity or effectiveness of any material Intellectual Property owned
or licensed by Holdings, the Borrower or any of its Subsidiaries, nor does
Holdings or the Borrower know of any valid basis for any such claim. The use of
Intellectual Property by Holdings, the Borrower and its Subsidiaries does not
infringe on the rights of any Person in any material respect.
4.10 Taxes. Each of Holdings, the Borrower and each of its
Subsidiaries has filed or caused to be filed all federal, state and other
material tax returns that are required to be filed and has paid all taxes shown
to be due and payable on said returns or on any assessments made against it or
any of its property and all other taxes, fees or other charges imposed on it or
any of its property by any Governmental Authority (other than any the amount or
validity of that are currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of Holdings, the Borrower or its Subsidiaries, as the case
may be); no tax Lien has been filed, and, to the knowledge of Holdings and the
Borrower, no claim is being asserted, with respect to any such tax, fee or other
charge.
4.11 Federal Regulations. No part of the proceeds of any Loans
will be used for "buying" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U as now and from time to
time hereafter in effect or for any purpose that violates the provisions of the
Regulations of the Board. If requested by any Lender or the Administrative
Agent, the Borrower will furnish to the Administrative Agent and each Lender a
statement to the foregoing effect in conformity with the requirements of FR Form
G-3 or FR Form U-1, as applicable, referred to in Regulation U.
4.12 Labor Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect: (a) there are no
strikes or other labor disputes against Holdings, the Borrower or any of its
Subsidiaries pending or, to the knowledge of Holdings or the Borrower,
threatened; (b) hours worked by and payment made to employees of Holdings, the
Borrower and its Subsidiaries have not been in violation of the Fair Labor
Standards Act or any other applicable Requirement of Law dealing with such
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matters; and (c) all payments due from Holdings, the Borrower or any of its
Subsidiaries on account of employee health and welfare insurance have been paid
or accrued as a liability on the books of Holdings, the Borrower or the relevant
Subsidiary.
4.13 ERISA. Each Plan is in material compliance with the
applicable provisions of ERISA and the Code. No Plan is a Multiemployer Plan or
a "defined benefit plan" (as defined in ERISA). Each Commonly Controlled Entity
has met all of the funding standards applicable to all Plans, and no condition
exists which would permit the institution of proceedings to terminate any Plan
under Section 4042 of ERISA.
4.14 Investment Company Act; Other Regulations. No Loan Party
is an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
No Loan Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
4.15 Subsidiaries. Except as disclosed to the Administrative
Agent by the Borrower in writing from time to time after the Restatement
Effective Date, (a) Schedule 4.15 sets forth the name and jurisdiction of
organization of Holdings and each of its Subsidiaries and, as to each such
Subsidiary, the percentage of each class of Equity Interests owned by any Loan
Party and (b) except as set forth on Schedule 4.15, there are no outstanding
subscriptions, options, warrants, calls, rights or other agreements or
commitments of any nature relating to any Equity Interests of the Borrower or
any of its Subsidiaries, except as created by the Loan Documents.
4.16 Use of Proceeds. The proceeds of the Loans, and the
Letters of Credit, shall be used for general purposes, including to make
distributions to finance the Charter Acquisition (up to $140,000,000) and
permitted Investments.
4.17 Environmental Matters. Except as, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by
Holdings, the Borrower or any of its Subsidiaries (the "Properties") do
not contain, and have not previously contained, any Materials of
Environmental Concern in amounts or concentrations or under
circumstances that constitute or constituted a violation of, or could
give rise to liability under, any Environmental Law;
(b) neither Holdings, the Borrower nor any of its Subsidiaries
has received or is aware of any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard
to any of the Properties or the business operated by Holdings, the
Borrower or any of its Subsidiaries (the "Business"), nor does Holdings
or the Borrower have knowledge or reason to believe that any such
notice will be received or is being threatened;
(c) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of, or in a
manner or to a location that could give rise to liability under, any
Environmental Law, nor have any Materials of Environmental Concern been
generated, treated, stored or disposed of at, on or under any of the
Properties in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative
action is pending or, to the knowledge of Holdings and the Borrower,
threatened, under any Environmental Law to which Holdings, the Borrower
or any Subsidiary is or will be named as a party with respect to the
Properties or the Business, nor are there any consent decrees or other
decrees, consent orders,
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administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to the Properties or the Business;
(e) there has been no release or threat of release of
Materials of Environmental Concern at or from the Properties, or
arising from or related to the operations of Holdings, the Borrower or
any Subsidiary in connection with the Properties or otherwise in
connection with the Business, in violation of or in amounts or in a
manner that could give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with
all applicable Environmental Laws, and there is no contamination at,
under or about the Properties or violation of any Environmental Law
with respect to the Properties or the Business; and
(g) neither Holdings, the Borrower nor any of its Subsidiaries
has assumed any liability of any other Person under Environmental Laws.
4.18 Certain Cable Television Matters. Except as, in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect:
(a) (i) Holdings, the Borrower and its Subsidiaries possess
all Authorizations necessary to own, operate and construct the CATV
Systems or otherwise for the operations of their businesses and are not
in violation thereof and (ii) all such Authorizations are in full force
and effect and no event has occurred that permits, or after notice or
lapse of time could permit, the revocation, termination or material and
adverse modification of any such Authorization;
(b) neither Holdings, the Borrower nor any of its Subsidiaries
is in violation of any duty or obligation required by the
Communications Act of 1934, as amended, or any FCC rule or regulation
applicable to the operation of any portion of any of the CATV Systems;
(c) (i) there is not pending or, to the best knowledge of
Holdings or the Borrower, threatened, any action by the FCC to revoke,
cancel, suspend or refuse to renew any FCC License held by Holdings,
the Borrower or any of its Subsidiaries and (ii) there is not pending
or, to the best knowledge of Holdings or the Borrower, threatened, any
action by the FCC to modify adversely, revoke, cancel, suspend or
refuse to renew any other Authorization; and
(d) there is not issued or outstanding or, to the best
knowledge of Holdings or the Borrower, threatened, any notice of any
hearing, violation or complaint against Holdings, the Borrower or any
of its Subsidiaries with respect to the operation of any portion of the
CATV Systems and neither Holdings nor the Borrower has any knowledge
that any Person intends to contest renewal of any Authorization.
4.19 Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
by or on behalf of any Loan Party to the Agents or the Lenders, or any of them,
for use in connection with the transactions contemplated by this Agreement or
the other Loan Documents, as supplemented from time to time prior to the date
this representation and warranty is made or deemed made, contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained herein or therein not misleading. The projections and
pro forma financial information contained in the materials referenced above are
based upon good faith estimates and assumptions believed by management of the
Borrower to be reasonable at the time made, it being recognized by the Lenders
that such financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods covered by
such financial information may differ
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from the projected results set forth therein by a material amount. There is no
fact known to any Loan Party that could reasonably be expected to have a
Material Adverse Effect that has not been expressly disclosed herein, in the
other Loan Documents, in the Confidential Information Memorandum or in any other
documents, certificates and statements furnished to the Agents and the Lenders
for use in connection with the transactions contemplated hereby and by the other
Loan Documents.
4.20 Security Interests. The Guarantee and Collateral
Agreement is effective to create in favor of the Administrative Agent, for the
benefit of the Lenders, a legal, valid and enforceable security interest in the
Collateral described therein and proceeds thereof. In the case of certificated
Pledged Stock described in the Guarantee and Collateral Agreement, when
certificates representing such Pledged Stock are delivered to the Administrative
Agent, and in the case of the other Collateral described in the Guarantee and
Collateral Agreement, when financing statements specified on Schedule 4.20 in
appropriate form are filed in the offices specified on Schedule 4.20, the
Guarantee and Collateral Agreement shall constitute a fully perfected Lien on,
and security interest in, all right, title and interest of the Loan Parties in
such Collateral and the proceeds thereof, as security for the Obligations (as
defined in the Guarantee and Collateral Agreement), in each case prior and
superior in right to any other Person.
4.21 Solvency. Each Loan Party (other than any Shell
Subsidiary) is, and after giving effect to the financing transactions referred
to herein will be and will continue to be, Solvent.
4.22 Certain Tax Matters. As of the Restatement Effective
Date, each of Holdings, the Borrower and each of its Subsidiaries (other than
any such Subsidiary that is organized as a corporation) is a Flow-Through
Entity.
4.23 Year 2000 Matters. Based on a review of the operations of
Holdings, the Borrower and its Subsidiaries as they relate to the processing,
storage and retrieval of data, Holdings, the Borrower and its Subsidiaries do
not believe that a Material Adverse Effect is reasonably likely to occur as a
result of computer software and hardware that will not (a) receive, transmit,
process, compare, sequence, store, retrieve and present calendar dates (and data
or functions involving or based on calendar dates) falling on or after January
1, 2000 in the same manner and with the same functionality, accuracy, data
integrity and performance as calendar dates (and data involving or based on
calendar dates) falling on or before December 31, 1999, (b) receive, transmit,
process, compare, sequence, store, retrieve and present calendar dates in a four
digit year format or (c) correctly process calendar dates for leap years.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Restatement Effective Date. The
effectiveness of this Agreement is subject to the satisfaction of the following
conditions precedent:
(a) Credit Agreement; Guarantee and Collateral Agreement. The
Administrative Agent shall have received (i) this Agreement, executed
and delivered by the Agents, Holdings and the Borrower, (ii) an
Addendum, executed and delivered by (x) the "Majority Lenders" under
and as defined in the Existing Credit Agreement, (y) each Lender that
is not a "Lender" under and as defined in the Existing Credit Agreement
and (z) each Lender whose commitments or extensions of credit under the
Existing Credit Agreement are increasing pursuant to this Agreement,
(iii) the Guarantee and Collateral Agreement, executed and delivered by
Holdings, the Borrower and each Subsidiary Guarantor and (iv) an
Acknowledgment and Consent in the form attached to the Guarantee and
Collateral Agreement, executed and delivered by each Issuer (as defined
therein), if any, that is not a Loan Party.
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(b) Charter Acquisition. The Borrower shall have been acquired
(the "Charter Acquisition"), directly or indirectly, by Charter
Communications Holding Company, LLC.
(c) Fees. The Lenders and the Agents shall have received all
fees required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal
counsel), on or before the Restatement Effective Date. All such amounts
will be paid with proceeds of Loans made on the Restatement Effective
Date and will be reflected in the funding instructions given by the
Borrower to the Administrative Agent on or before the Restatement
Effective Date.
(d) Closing Certificate; No Material Restrictions; Pro Forma
Compliance. The Administrative Agent shall have received, with a
counterpart for each Lender, a certificate of each Loan Party, dated
the Restatement Effective Date, substantially in the form of Exhibit C,
with appropriate insertions and attachments, which (i) in the case of
Holdings, shall also certify that Holdings and its Subsidiaries are not
subject to material contractual or other restrictions that would be
violated by the transactions contemplated hereby and (ii) in the case
of the Borrower, shall also certify, in reasonable detail, pro forma
compliance with Section 7.1(a) for, or as at the end of, as the case
may be, the most recent three-month period for which the relevant
financial information is available.
(e) Legal Opinions. The Administrative Agent shall have
received one or more signed legal opinions covering such matters
incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(f) Filings, Registrations, Recordings, etc. Each document
(including any Uniform Commercial Code financing statement) required by
the Guarantee and Collateral Agreement under law or reasonably
requested by the Administrative Agent to be filed, registered or
recorded in order to create or maintain in favor of the Administrative
Agent, for the benefit of the Lenders, a perfected Lien on the
Collateral described therein, prior and superior in right to any other
Person, shall be in proper form for filing, registration or
recordation. The Administrative Agent shall have received (i) the
certificates, if any, representing the Equity Interests pledged
pursuant to the Guarantee and Collateral Agreement, together with an
undated stock power for each such certificate executed by the pledgor
thereof, and (ii) each promissory note (if any) pledged to the
Administrative Agent pursuant to the Guarantee and Collateral Agreement
endorsed in blank by the pledgor thereof.
5.2 Conditions to Each Extension of Credit. The agreement of
each Lender to make any extension of credit requested to be made by it on any
date (including its initial extension of credit) is subject to the satisfaction
of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by any Loan Party in or pursuant to
the Loan Documents shall be true and correct in all material respects
on and as of such date as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the
extensions of credit requested to be made on such date.
(c) Other Documents. In the case of any extension of credit
made on an Increased Facility Closing Date, the Administrative Agent
shall have received such documents and information as it may reasonably
request.
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Each borrowing by and issuance of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in Sections
5.2(a) and (b) have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
Holdings and the Borrower hereby agree that, so long as the
Tranche A Incremental Term Commitments or the Revolving Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or any Agent hereunder, each of Holdings and the Borrower
shall, and shall cause each Subsidiary of the Borrower to:
6.1 Financial Statements. Furnish to the Administrative Agent
(with sufficient copies for each Lender):
(a) as soon as available, but in any event within 90 days
after the end of each fiscal year of the Borrower, a copy of the
audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year,
setting forth in each case in comparative form the figures for the
previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope
of the audit, or any other material adverse exception or qualification,
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or other independent certified public
accountants of nationally recognized standing; and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of each
fiscal year of the Borrower, the unaudited consolidated balance sheet
of the Borrower and its consolidated Subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and
of cash flows for such quarter and the portion of the fiscal year
through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by a
Responsible Officer as being fairly stated in all material respects
(subject to normal year-end audit adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
6.2 Certificates; Other Information. Furnish to the
Administrative Agent (with sufficient copies for each Lender) (or (i) in the
case of clause (e) below, to the Administrative Agent and (ii) in the case of
clause (f) below, to the relevant Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a), a certificate of the independent
certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge
was obtained of any Default or Event of Default under Section 7.1,
except as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer
stating that, to the best of each such Responsible Officer's knowledge,
each Loan Party during such period has observed or performed all of its
covenants and other agreements, and satisfied every condition,
contained in this Agreement and the other Loan Documents to which it is
a party to be observed, performed or satisfied by it, and that such
Responsible Officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate and (ii) a
Compliance Certificate containing all information and
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calculations necessary for determining compliance by Holdings, the
Borrower and its Subsidiaries with the provisions of this Agreement
referred to therein as of the last day of the fiscal quarter or fiscal
year of the Borrower, as the case may be;
(c) as soon as available, and in any event no later than 45
days after the end of each fiscal year of the Borrower, a budget for
the following fiscal year (which shall include projected Consolidated
Operating Cash Flow and budgeted capital expenditures), and, as soon as
available, material revisions, if any, of such budget with respect to
such fiscal year (collectively, the "Budget"), which Budget shall in
each case be accompanied by a certificate of a Responsible Officer
stating that such Budget is based on reasonable estimates, information
and assumptions and that such Responsible Officer has no reason to
believe that such Budget is incorrect or misleading in any material
respect;
(d) upon request by the Administrative Agent and within five
days after the same are sent, copies of all financial statements and
reports (including reports on Form 10-K, 10-Q or 8-K) that Holdings or
the Borrower sends to the holders of any class of its debt securities
or public equity securities and, within five days after the same are
filed, copies of all financial statements and reports that Holdings or
the Borrower may make to, or file with, the SEC;
(e) no later than three Business Days prior to consummating
any transaction described in Section 7.2(f), 7.2(g), 7.5(e), 7.5(f),
7.5(g), 7.6(b), 7.7(f), 7.7(g) or (with respect to payment of deferred
management fees) 7.8(c), a certificate of a Responsible Officer
demonstrating in reasonable detail (i) that both before and after
giving effect to such transaction, no Default or Event of Default shall
be in effect (including, on a pro forma basis, pursuant to Section 7.1)
and (ii) compliance with any other financial tests referred to in the
relevant Section, provided that, in the case of Investments,
Dispositions or the payment of deferred management fees, the
requirement to deliver such certificate shall not apply to any
Investment or Disposition pursuant to which the Consideration paid is
less than $25,000,000 or to any such payment of deferred management
fees in an amount less than $5,000,000; and
(f) promptly, such additional financial and other information
as any Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as the case may
be, all its material obligations of whatever nature, except where the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of Holdings, the Borrower or its Subsidiaries, as the case
may be.
6.4 Maintenance of Existence; Compliance. (a) (i) Preserve,
renew and keep in full force and effect its existence and (ii) take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business, except, in each case, as
otherwise permitted by Section 7.4 and except, in the case of clause (ii) above,
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (b) comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all material
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with reputable
insurance companies insurance on all its material property in at least such
amounts and against at least such risks (but including in any event public
liability, product liability and
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business interruption) as are usually insured against in the same general area
by companies engaged in the same or a similar business.
6.6 Inspection of Property; Books and Records; Discussions.
(a) Keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and (b)
permit representatives of any Lender, coordinated through the Administrative
Agent, to visit and inspect any of its properties and examine and make abstracts
from any of its books and records at any reasonable time and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of Holdings, the Borrower and its Subsidiaries
with officers and employees of Holdings, the Borrower and its Subsidiaries and
with its independent certified public accountants.
6.7 Notices. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of Holdings, the Borrower or any of its Subsidiaries or (ii)
litigation, investigation or proceeding that may exist at any time
between Holdings, the Borrower or any of its Subsidiaries and any
Governmental Authority, that, in either case, could reasonably be
expected to have a Material Adverse Effect;
(c) any litigation or proceeding commenced against Holdings,
the Borrower or any of its Subsidiaries which could reasonably be
expected to result in a liability of $25,000,000 or more to the extent
not covered by insurance or which could reasonably be expected to have
a Material Adverse Effect;
(d) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof:
(i) the occurrence of any Reportable Event with respect to any Plan, a
failure to make any required contribution to a Plan, the creation of
any Lien in favor of the PBGC or a Plan or any withdrawal from, or the
termination, Reorganization or Insolvency of, any Multiemployer Plan or
(ii) the institution of proceedings or the taking of any other action
by the PBGC or the Borrower or any Commonly Controlled Entity or any
Multiemployer Plan with respect to the withdrawal from, or the
termination, Reorganization or Insolvency of, any Plan; and
(e) any other development or event that has had or could
reasonably be expected to have a Material Adverse Effect.
Each notice pursuant to this Section 6.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Holdings, the Borrower or the relevant
Subsidiary proposes to take with respect thereto.
6.8 Environmental Laws. (a) Except as, in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect, comply with,
and ensure compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws, and obtain and comply with and maintain, and
ensure that all tenants and subtenants obtain and comply with and maintain, any
and all licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws.
(b) Except as, in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, conduct and complete all
investigations, studies, sampling and testing, and all remedial, removal and
other actions required under Environmental Laws and promptly comply with all
lawful orders and directives of all Governmental Authorities regarding
Environmental Laws.
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6.9 Additional Collateral. With respect to any new Subsidiary
(other than a Shell Subsidiary so long as it qualifies as such) created or
acquired after the Restatement Effective Date by the Borrower or any of its
Subsidiaries (which shall be deemed to have occurred in the event that any
Non-Recourse Subsidiary ceases to qualify as such), promptly (a) execute and
deliver to the Administrative Agent such amendments to the Guarantee and
Collateral Agreement as the Administrative Agent deems necessary or advisable to
grant to the Administrative Agent, for the benefit of the Lenders, a perfected
first priority security interest in the Equity Interests and intercompany
obligations of such new Subsidiary that are held by the Borrower or any of its
Subsidiaries (limited, in the case of Equity Interests of any Foreign
Subsidiary, to 66% of the total outstanding Equity Interests of such Foreign
Subsidiary), (b) deliver to the Administrative Agent the certificates, if any,
representing such Equity Interests, and any intercompany notes evidencing such
obligations, together with undated stock powers and endorsements, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, and (c) except in the case of a Foreign
Subsidiary or an Excluded Acquired Subsidiary (until it ceases to qualify as
such), cause such new Subsidiary (i) to become a party to the Guarantee and
Collateral Agreement and (ii) to take such actions necessary or advisable to
grant to the Administrative Agent for the benefit of the Lenders a perfected
first priority security interest in the Collateral described in the Guarantee
and Collateral Agreement with respect to such new Subsidiary, including the
filing of Uniform Commercial Code financing statements in such jurisdictions as
may be required by the Guarantee and Collateral Agreement or by law or as may be
requested by the Administrative Agent.
6.10 Organizational Separateness. In the case of Holdings,
each Specified Holdings Subsidiary, each Non-Recourse Subsidiary and the
Borrower and its Subsidiaries, (a) satisfy customary formalities with respect to
organizational separateness, including, without limitation, (i) the maintenance
of separate books and records and (ii) the maintenance of separate bank or other
deposit or investment accounts in its own name; (b) act solely in its own name
and through its authorized officers and agents; (c) in the case of the Borrower
or any of its Subsidiaries, not make or agree to make any payment to a creditor
of Holdings, any Specified Holdings Subsidiary or any Non-Recourse Subsidiary;
(d) not commingle any money or other assets of Holdings, any Specified Holdings
Subsidiary or any Non-Recourse Subsidiary with any money or other assets of the
Borrower or any of its Subsidiaries; and (e) not take any action, or conduct its
affairs in a manner, which could reasonably be expected to result in the
separate organizational existence of Holdings, each Specified Holdings
Subsidiary and each Non-Recourse Subsidiary from the Borrower and its
Subsidiaries being ignored under any circumstance. Holdings agrees to cause each
Specified Holdings Subsidiary, and the Borrower agrees to cause each
Non-Recourse Subsidiary, to comply with the applicable provisions of this
Section 6.10.
6.11 ERISA Reports. Furnish to the Administrative Agent as
soon as available to the Borrower or Holdings the following items with respect
to any Plan:
(a) any request for a waiver of the funding standards or an
extension of the amortization period;
(b) any reportable event (as defined in Section 4043 of
ERISA), unless the notice requirement with respect thereto has been
waived by regulation;
(c) any notice received by any Commonly Controlled Entity that
the PBGC has instituted or intends to institute proceedings to
terminate any Plan, or that any Multiemployer Plan is Insolvent or in
Reorganization;
(d) notice of the possibility of the termination of any Plan
by its administrator pursuant to Section 4041 of ERISA; and
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(e) notice of the intention of any Commonly Controlled Entity
to withdraw, in whole or in part, from any Multiemployer Plan.
6.12 ERISA, etc. Comply in all material respects with the
provisions of ERISA and the Code applicable to each Plan. Each of Holdings, the
Borrower and its Subsidiaries will meet all minimum funding requirements
applicable to them with respect to any Plan pursuant to Section 302 of ERISA or
Section 412 of the Code, without giving effect to any waivers of such
requirements or extensions of the related amortization periods which may be
granted. At no time shall the Accumulated Benefit Obligations under any Plan
that is not a Multiemployer Plan exceed the fair market value of the assets of
such Plan allocable to such benefits by more than $10,000,000. After the
Restatement Effective Date, Holdings, the Borrower and its Subsidiaries will not
withdraw, in whole or in part, from any Multiemployer Plan so as to give rise to
withdrawal liability exceeding $10,000,000 in the aggregate. At no time shall
the actuarial present value of unfunded liabilities for post-employment health
care benefits, whether or not provided under a Plan, calculated in a manner
consistent with Statement No. 106 of the Financial Accounting Standards Board,
exceed $10,000,000.
SECTION 7. NEGATIVE COVENANTS
Holdings and the Borrower hereby agree that, so long as the
Tranche A Incremental Term Commitments or the Revolving Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or any Agent hereunder, each of Holdings and the Borrower
shall not, and shall not permit any Subsidiary of the Borrower to, directly or
indirectly (provided that only Sections 7.2, 7.3, 7.4, 7.10, 7.12, 7.14(b) and
7.15 shall apply to Holdings):
7.1 Financial Condition Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio determined as of the last day of any fiscal quarter of the
Borrower ending during any period set forth below to exceed the ratio set forth
below opposite such period:
Period Consolidated Leverage Ratio
------ ---------------------------
through 09/30/01 5.75 to 1.0
10/01/01 - 09/30/02 5.50 to 1.0
10/01/02 - 09/30/03 4.75 to 1.0
10/01/03 and thereafter 4.00 to 1.0
(b) Consolidated Interest Coverage Ratio. Permit the
Consolidated Interest Coverage Ratio determined as of the last day of any fiscal
quarter ending during any period set forth below to be less than the ratio set
forth below opposite such period:
Period Consolidated Interest Coverage Ratio
------ ------------------------------------
through 06/30/01 1.50 to 1.0
07/01/01 - 12/31/02 1.75 to 1.0
01/01/03 and thereafter 2.00 to 1.0
(c) Consolidated Debt Service Coverage Ratio. Permit the
Consolidated Debt Service Coverage Ratio determined as of the last day of any
fiscal quarter to be less than 1.25 to 1.0.
7.2 Indebtedness. Create, issue, incur, assume, become liable
in respect of or suffer to exist any Indebtedness, except:
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(a) Indebtedness of any Loan Party pursuant to any Loan
Document;
(b) Indebtedness of the Borrower to any Subsidiary and of any
Wholly Owned Subsidiary Guarantor to the Borrower or any other
Subsidiary;
(c) Guarantee Obligations incurred in the ordinary course of
business by the Borrower or any of its Subsidiaries of obligations of
any Wholly Owned Subsidiary Guarantor;
(d) Indebtedness described on Schedule 7.2(d);
(e) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 7.3(f) in an
aggregate principal amount not to exceed $10,000,000 at any one time
outstanding;
(f) Indebtedness of the Borrower (but not any Subsidiary of
the Borrower) incurred on any Threshold Transaction Date so long as (i)
no Default or Event of Default shall have occurred and be continuing or
would result therefrom, (ii) such Indebtedness shall have no scheduled
amortization prior to the date that is one year after the final
maturity of the Term Loans outstanding on the date such Indebtedness is
incurred, (iii) such Indebtedness is unsecured and the covenants and
default provisions applicable to such Indebtedness shall be no more
restrictive than those contained in this Agreement and (iv) such
Indebtedness shall be subordinated to the Loans and other obligations
under the Loan Documents pursuant to subordination terms reasonably
satisfactory to the Administrative Agent, provided that the requirement
that such Indebtedness be incurred on a Threshold Transaction Date
shall not apply in the case of any refinancing of Indebtedness
previously incurred pursuant to this Section 7.2(f) so long as the
interest rate and cash-pay characteristics applicable to such
refinancing Indebtedness are no more onerous than those applicable to
such refinanced Indebtedness;
(g) Indebtedness of any Person that becomes a Subsidiary
pursuant to an Investment permitted by Section 7.7, so long as (i) no
Default or Event of Default shall have occurred and be continuing or
would result therefrom, (ii) such Indebtedness existed at the time of
such Investment and was not created in anticipation thereof, (iii) the
Borrower shall use its best efforts to cause such Indebtedness to be
repaid no later than 120 days after the date of such Investment, (iv)
if such Indebtedness is not repaid within such period then, until such
Indebtedness is repaid, the operating cash flow of the relevant
Subsidiary shall be excluded for the purposes of calculating
Consolidated Operating Cash Flow (whether or not distributed to the
Borrower or any of its other Subsidiaries) and (v) the aggregate
outstanding principal amount of Indebtedness incurred pursuant to this
paragraph shall not exceed $100,000,000;
(h) letters of credit for the account of the Borrower or any
of its Subsidiaries obtained other than pursuant to this Agreement, so
long as the aggregate undrawn face amount thereof, together with any
unreimbursed reimbursement obligations in respect thereof, does not
exceed $10,000,000 at any one time;
(i) Indebtedness of Holdings (but not the Borrower or any of
its Subsidiaries) owing to any Affiliate of Holdings so long as (i)
such Indebtedness shall have no scheduled amortization prior to the
date that is one year after the final maturity of the Term Loans
outstanding on the date such Indebtedness is incurred and (ii) 100% of
the Net Cash Proceeds thereof (other than any such Net Cash Proceeds
that are applied to refinance other Indebtedness of Holdings) shall be
used by Holdings to make Investments in one or more of its Affiliates
engaged substantially exclusively in businesses of the type described
in Section 7.14(a); and
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(j) additional Indebtedness of the Borrower or any of its
Subsidiaries in an aggregate principal amount (for the Borrower and all
Subsidiaries) not to exceed $25,000,000 at any one time outstanding.
7.3 Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental
charges not yet due or that are being contested in good faith by
appropriate proceedings, provided that adequate reserves with respect
thereto are maintained on the books of Holdings, the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business that are not overdue for a period of more than 30 days or that
are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation;
(d) deposits made to secure the performance of bids, tenders,
trade contracts, leases, statutory or regulatory obligations, surety
and appeal bonds, bankers acceptances, government contracts,
performance bonds and other obligations of a like nature incurred in
the ordinary course of business, in each case excluding obligations for
borrowed money;
(e) easements, rights-of-way, municipal and zoning ordinances,
title defects, restrictions and other similar encumbrances incurred in
the ordinary course of business that, in the aggregate, are not
substantial in amount and that do not in any case materially detract
from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of Holdings, the Borrower or
any of its Subsidiaries;
(f) Liens securing Indebtedness of Holdings, the Borrower or
any of its Subsidiaries incurred pursuant to Section 7.2(e) to finance
the acquisition of fixed or capital assets, provided that (i) such
Liens shall be created substantially simultaneously with the
acquisition of such fixed or capital assets, (ii) such Liens do not at
any time encumber any property other than the property financed by such
Indebtedness and (iii) the amount of Indebtedness secured thereby is
not increased;
(g) Liens created pursuant to the Guarantee and Collateral
Agreement securing obligations of the Loan Parties under (i) the Loan
Documents, (ii) Hedge Agreements provided by any Lender or any
Affiliate of any Lender and (iii) letters of credit issued pursuant to
Section 7.2(h) by any Lender or any Affiliate of any Lender;
(h) any landlord's Lien or other interest or title of a lessor
under any lease or a licensor under a license entered into by Holdings,
the Borrower or any of its Subsidiaries in the ordinary course of its
business and covering only the assets so leased or licensed;
(i) Liens created under Pole Agreements on cables and other
property affixed to transmission poles or contained in underground
conduits;
(j) Liens of or restrictions on the transfer of assets imposed
by any franchisors, utilities or other regulatory bodies or any
federal, state or local statute, regulation or ordinance, in each case
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arising in the ordinary course of business in connection with franchise
agreements or Pole Agreements;
(k) Liens arising from judgments or decrees not constituting
an Event of Default under Section 8(h); and
(l) Liens not otherwise permitted by this Section so long as
neither (i) the aggregate outstanding principal amount of the
obligations secured thereby nor (ii) the aggregate fair market value
(determined as of the date such Lien is incurred) of the assets subject
thereto exceeds (as to Holdings, the Borrower and all Subsidiaries),
when added to the aggregate outstanding amount of Attributable Debt,
$10,000,000 at any one time.
7.4 Fundamental Changes. Enter into any merger, consolidation
or amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of all or substantially all of its
property or business, except that:
(a) any Subsidiary of the Borrower may be merged or
consolidated with or into any Wholly Owned Subsidiary Guarantor
(provided that the Wholly Owned Subsidiary Guarantor shall be the
continuing or surviving entity);
(b) any Subsidiary of the Borrower may be merged or
consolidated with or into the Borrower (provided that the Borrower
shall be the continuing or surviving entity);
(c) any Subsidiary of the Borrower may Dispose of any or all
of its assets (upon voluntary liquidation or otherwise) to any Wholly
Owned Subsidiary Guarantor;
(d) any Shell Subsidiary may be dissolved; and
(e) so long as no Default or Event of Default has occurred or
is continuing or would result therefrom, Holdings may be merged or
consolidated with any Affiliate of ▇▇▇▇ ▇. ▇▇▇▇▇ (provided that either
(i) Holdings is the continuing or surviving entity or (ii) if Holdings
is not the continuing or surviving entity, such continuing or surviving
entity assumes the obligations of Holdings under the Loan Documents to
which it is a party pursuant to an instrument in form and substance
reasonably satisfactory to the Administrative Agent and, in connection
therewith, the Administrative Agent shall receive such legal opinions,
certificates and other documents as it may reasonably request).
7.5 Disposition of Property. Dispose of any of its property,
whether now owned or hereafter acquired, or, in the case of any Subsidiary,
issue or sell any Equity Interests to any Person, except:
(a) the Disposition of obsolete or worn out property in the
ordinary course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions expressly permitted by Section 7.4;
(d) the sale or issuance of any Subsidiary's Equity Interests
to the Borrower or any Wholly Owned Subsidiary Guarantor;
(e) the Disposition (directly or indirectly through the
Disposition of 100% of the Equity Interests of a Subsidiary) of
operating assets by the Borrower or any of its Subsidiaries (it being
understood that Exchange Excess Amounts shall be deemed to constitute
usage of availability in respect of Dispositions pursuant to this
Section 7.5(e)), provided that (i) on the date of such
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Disposition (the "Disposition Date"), no Default or Event of Default
shall have occurred and be continuing or would result therefrom; (ii)
the Annualized Asset Cash Flow Amount attributable to the assets being
disposed of, when added to the Annualized Asset Cash Flow Amount
attributable to all other assets previously disposed of pursuant to
this Section 7.5(e) during the one-year period ending on such
Disposition Date (or, if shorter, the period from the Restatement
Effective Date to such Disposition Date), shall not exceed an amount
equal to 30% of Annualized Pro Forma Operating Cash Flow determined as
of such Disposition Date; (iii) the Annualized Asset Cash Flow Amount
attributable to the assets being disposed of, when added to the
Annualized Asset Cash Flow Amount attributable to all other assets
previously disposed of pursuant to this Section 7.5(e) during the
period from the Restatement Effective Date to such Disposition Date),
shall not exceed an amount equal to 50% of Annualized Pro Forma
Operating Cash Flow determined as of such Disposition Date; (iv) at
least 75% of the proceeds of such Disposition shall be in the form of
cash; and (v) the Net Cash Proceeds of such Disposition shall be
applied to prepay the Term Loans to the extent required by Section
2.9(a);
(f) any Exchange by the Borrower and its Subsidiaries,
provided that (i) on the date of such Exchange, no Default or Event of
Default shall have occurred and be continuing or would result
therefrom; (ii) the assets received in connection with such Exchange
shall be received by the Borrower or a Wholly Owned Subsidiary of the
Borrower; (iii) in the event that (x) any cash consideration is paid to
the Borrower or any of its Subsidiaries in connection with such
Exchange and (y) the Annualized Asset Cash Flow Amount attributable to
the assets being Exchanged exceeds the annualized asset cash flow
amount (determined in a manner comparable to the manner in which
Annualized Asset Cash Flow Amounts are determined hereunder) of the
assets received in connection with such Exchange (such excess amount,
an "Exchange Excess Amount"), then, the Disposition of such Exchange
Excess Amount is permitted by clauses (ii) and (iii) of Section 7.5(e);
and (iv) the Net Cash Proceeds of such Exchange, if any, shall be
applied to prepay the Term Loans to the extent required by Section
2.9(a);
(g) Dispositions of property acquired after the Restatement
Effective Date, (other than property acquired in connection with
Exchanges of property owned on the Restatement Effective Date), so long
as (i) no Default or Event of Default shall have occurred and be
continuing or would result therefrom, (ii) a definitive agreement to
consummate such Disposition is executed no later than twelve months
after the date on which relevant property is acquired and (iii) such
Disposition is consummated within eighteen months after the date on
which the relevant property is acquired; and
(h) the Disposition of other property having a fair market
value not to exceed $5,000,000 in the aggregate for any fiscal year of
the Borrower.
7.6 Restricted Payments. Declare or pay any dividend (other
than dividends payable solely in common stock of the Person making such
dividend) on, or make any payment on account of, or set apart assets for a
sinking or other analogous fund for, the purchase, redemption, defeasance,
retirement or other acquisition of, any Equity Interests of Holdings, the
Borrower or any Subsidiary, whether now or hereafter outstanding, or make any
other distribution in respect thereof, either directly or indirectly, whether in
cash or property or in obligations of Holdings, the Borrower or any Subsidiary
(collectively, "Restricted Payments"), except that:
(a) any Subsidiary may make Restricted Payments to the
Borrower or any Wholly Owned Subsidiary Guarantor;
(b) the Borrower may make distributions (directly or
indirectly) to any Qualified Parent Company or any Affiliate of the
Borrower for the purpose of enabling such Person to make
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scheduled interest payments in respect of its Qualified Indebtedness,
provided that (i) no Default or Event of Default shall have occurred
and be continuing or would result therefrom, (ii) each such
distribution shall be made on a Threshold Transaction Date (except in
the case of any distribution made for the purpose of paying interest on
(x) Qualified Indebtedness as to which 100% of the Net Cash Proceeds
thereof were contributed to the Borrower as a capital contribution, (y)
Qualified Indebtedness incurred to refinance such Qualified
Indebtedness or (z) the 8% Senior Notes due 2009, issued by Bresnan
Communications Group LLC and Bresnan Capital Corporation on February 2,
1999, outstanding as of the Restatement Effective Date or any
replacement debt thereof in an aggregate principal amount not to exceed
$170,000,000) and (iii) each such distribution shall be made no earlier
than three Business Days prior to the date the relevant interest
payment is due;
(c) so long as no Default or Event of Default has occurred and
is continuing or would result therefrom, (i) the Borrower may make
distributions to Holdings or direct payments to be used to repurchase,
redeem or otherwise acquire or retire for value any Equity Interests of
any Qualified Parent Company held by any member of management of
Holdings, the Borrower or any of its Subsidiaries pursuant to any
management equity subscription agreement or stock option agreement in
effect as of the Restatement Effective Date, provided that the
aggregate amount of such distributions shall not exceed $5,000,000 in
any fiscal year of the Borrower and (ii) the Borrower may make
distributions to Holdings as described in the last sentence of Section
7.9;
(d) so long as no Default or Event of Default has occurred and
is continuing or would result therefrom, the Borrower may (i) make
distributions on, or within six months after, the Restatement Effective
Date in an aggregate amount not to exceed $140,000,000 to finance the
Charter Acquisition and (ii) make distributions to Holdings for any
purpose, provided that, after giving effect to any such distribution
pursuant to this clause (ii), the Consolidated Leverage Ratio shall be
less than 3.50 to 1.0;
(e) the Borrower may make distributions to Holdings to permit
Holdings (or any parent company thereof) to pay (i) attorneys' fees,
investment banking fees, accountants' fees, underwriting discounts and
commissions and other customary fees and expenses actually incurred in
connection with any issuance, sale or incurrence by Holdings (or any
such parent company) of Equity Interests or Indebtedness (other than
any such amounts customarily paid out of the proceeds of transactions
of such type), provided, that such amounts shall be allocated in an
appropriate manner (determined after consultation with the
Administrative Agent) among the Borrower and the other Subsidiaries, if
any, of the issuer or obligor in respect of such Equity Interests or
Indebtedness and (ii) other administrative expenses (including legal,
accounting, other professional fees and costs, printing and other such
fees and expenses) incurred in the ordinary course of business, in an
aggregate amount in the case of this clause (ii) not to exceed
$2,000,000 in any fiscal year; and
(f) in respect of any calendar year or portion thereof during
which the Borrower is a Flow-Through Entity, so long as no Default or
Event of Default has occurred and is continuing or would result
therefrom, the Borrower may make distributions (directly or indirectly)
to the direct or indirect holders of the Equity Interests of the
Borrower that are not Flow-Through Entities, in proportion to their
ownership interests, sufficient to permit each such holder to pay
income taxes that are required to be paid by it with respect to its
Equity Interests in the Borrower for the prior calendar year, as
estimated by the Borrower in good faith.
7.7 Investments. Make any advance, loan, extension of credit
(by way of guaranty or otherwise) or capital contribution to, or purchase any
Equity Interests, bonds, notes, debentures or other debt securities of, or any
assets constituting a significant part of a business unit of, or make any other
investment in, any Person (all of the foregoing, "Investments"), except:
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(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees of the Borrower or any of
its Subsidiaries in the ordinary course of business (including for
travel, entertainment and relocation expenses) in an aggregate amount
not to exceed $2,000,000 at any one time outstanding;
(e) Investments by the Borrower or any of its Subsidiaries in
the Borrower or any Person that, prior to such investment, is a Wholly
Owned Subsidiary Guarantor;
(f) acquisitions by the Borrower or any Wholly Owned
Subsidiary Guarantor of operating assets (substantially all of which
consist of cable systems), directly through an asset acquisition or
indirectly through the acquisition of 100% of the Equity Interests of a
Person substantially all of whose assets consist of cable systems,
provided, that (i) no Default or Event of Default shall have occurred
and be continuing or would result therefrom and (ii) the aggregate
Consideration (excluding Consideration paid with the proceeds of ▇▇▇▇
▇▇▇▇▇ Contributions and Consideration consisting of operating assets
transferred in connection with Exchanges) paid in connection with such
acquisitions, other than acquisitions consummated on a Threshold
Transaction Date, shall not exceed $150,000,000 during the term of this
Agreement;
(g) the Borrower or any of its Subsidiaries may contribute
cable systems to any Non-Recourse Subsidiary so long as (i) such
Disposition is permitted pursuant to Section 7.5(e), (ii) no Default or
Event of Default shall have occurred and be continuing or would result
therefrom, (iii) after giving effect thereto, the Consolidated Leverage
Ratio shall be equal to or lower than the Consolidated Leverage Ratio
in effect immediately prior thereto and (iv) the Equity Interests
received by the Borrower or any of its Subsidiaries in connection
therewith shall be pledged as Collateral (either directly or through a
holding company parent of such Non-Recourse Subsidiary so long as such
parent is a Wholly Owned Subsidiary Guarantor); and
(h) in addition to Investments otherwise expressly permitted
by this Section, Investments by the Borrower or any of its Subsidiaries
in an aggregate amount (valued at cost) not to exceed $100,000,000
during the term of this Agreement.
7.8 Certain Payments and Modifications Relating to
Indebtedness and Management Fees. (a) Make or offer to make any payment,
prepayment, repurchase or redemption in respect of, or otherwise optionally or
voluntarily defease or segregate funds with respect to (collectively,
"prepayment"), any Specified Long-Term Indebtedness, other than (i) the payment
of scheduled interest payments required to be made in cash, (ii) the prepayment
of Specified Subordinated Debt with the proceeds of other Specified Long-Term
Indebtedness or of Loans and (iii) the prepayment of any such Indebtedness with
the proceeds of other Specified Long-Term Indebtedness so long as such new
Indebtedness has terms no less favorable to the interests of the Borrower and
the Lenders than those applicable to the Indebtedness being refinanced.
(b) Amend, modify, waive or otherwise change, or consent or
agree to any amendment, modification, waiver or other change to, any of the
terms of the any Specified Long-Term Indebtedness, other than any such
amendment, modification, waiver or other change that (i) (x) would extend the
maturity or reduce the amount of any payment of principal thereof or reduce the
rate or extend any date for payment of interest thereon or (y) is immaterial to
the interests of the Lenders and (ii) does not involve the payment of a consent
fee.
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(c) Make, agree to make or expense any payment in respect of
management fees, directly or indirectly, except that the Borrower may pay
management fees pursuant to the Management Fee Agreement so long as (i) no
Default or Event of Default shall have occurred and be continuing or would
result therefrom, (ii) the aggregate amount of such payments expensed during any
fiscal year of the Borrower shall not exceed 3.50% of consolidated revenues of
the Borrower and its consolidated Subsidiaries for such fiscal year (provided
that, in addition, payments of management fees may be made in respect of amounts
that have been accrued, but were not paid, during any preceding fiscal year of
the Borrower ending on or after December 31, 2000, so long as the aggregate
amount of payments made pursuant to this parenthetical during any fiscal year of
the Borrower (other than any such payments made on a Threshold Management Fee
Date), when added to the aggregate amount of non-deferred management fees
otherwise paid pursuant to this clause (ii) during such fiscal year, shall not
exceed 5.0% of consolidated revenues of the Borrower and its consolidated
Subsidiaries for such fiscal year) and (iii) each such payment shall be made no
earlier than three Business Days prior to the date such payment is due.
(d) Amend, modify, waive or otherwise change, or consent or agree
to any amendment, modification, waiver or other change to, any of the terms of
the Management Fee Agreement, other than any such amendment, modification,
waiver or other change that (i)(x) would extend the due date or reduce (or
increase to the amount permitted by Section 7.8(c)) the amount of any payment
thereunder or (y) does not adversely affect the interests of the Lenders and
(ii) does not involve the payment of a consent fee or adversely affect the
subordination of the management fees to the Loans.
7.9 Transactions with Affiliates. Enter into any transaction,
including any purchase, sale, lease or exchange of property, the rendering of
any service or the payment of any management, advisory or similar fees, with any
Affiliate (other than the Borrower or any Wholly Owned Subsidiary Guarantor)
unless such transaction is (a) not prohibited under this Agreement, (b) in the
ordinary course of business of the Borrower or such Subsidiary, as the case may
be, and (c) upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary, as the case may be, than it would obtain in a comparable arm's
length transaction with a Person that is not an Affiliate. The foregoing
restrictions shall not apply to transactions expressly permitted by Section 7.6
or Section 7.8(c). Notwithstanding anything to the contrary in this Section 7.9,
so long as no Default or Event of Default shall have occurred and be continuing
or would result therefrom, the Borrower shall be permitted to pay (either
directly or by way of a distribution to Holdings) amounts not in excess of 1.0%
of the aggregate enterprise value of Investments permitted hereby to certain
Affiliates of the Borrower.
7.10 Sales and Leasebacks. Enter into any arrangement with any
Person (other than Subsidiaries of the Borrower) providing for the leasing by
Holdings, the Borrower or any Subsidiary of real or personal property that has
been or is to be sold or transferred by Holdings, the Borrower or such
Subsidiary to such Person or to any other Person to whom funds have been or are
to be advanced by such Person on the security of such property or rental
obligations of Holdings, the Borrower or such Subsidiary unless, after giving
effect thereto, the aggregate outstanding amount of Attributable Debt, when
added to the aggregate amount utilized pursuant to Section 7.3(l), does not
exceed $10,000,000.
7.11 Changes in Fiscal Periods. Permit the fiscal year of the
Borrower to end on a day other than December 31 or change the Borrower's method
of determining fiscal quarters.
7.12 Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement that prohibits or limits the ability of Holdings,
the Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property or revenues, whether now owned or
hereafter acquired, to secure its obligations under the Loan Documents to which
it is a party (without regard to the amount of such obligations), other than (a)
this Agreement and the other Loan Documents, (b) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby (in
which case, any prohibition or limitation shall only be effective against the
assets financed thereby) and
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(c) pursuant to Contractual Obligations assumed in connection with Investments
(but not created in contemplation thereof) so long as the maximum aggregate
liabilities of Holdings and its Subsidiaries pursuant thereto do not exceed
$2,000,000 at any time.
7.13 Clauses Restricting Subsidiary Distributions. Enter into or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of any Subsidiary of the Borrower to (a) make Restricted Payments in
respect of any Equity Interests of such Subsidiary held by, or pay any
Indebtedness owed to, the Borrower or any other Subsidiary of the Borrower, (b)
make loans or advances to, or other Investments in, the Borrower or any other
Subsidiary of the Borrower or (c) transfer any of its assets to the Borrower or
any other Subsidiary of the Borrower, except for such encumbrances or
restrictions existing under or by reason of (i) any restrictions existing under
the Loan Documents and (ii) any restrictions with respect to a Subsidiary
imposed pursuant to an agreement that has been entered into in connection with
the Disposition of all or substantially all of the Equity Interests or assets of
such Subsidiary in a transaction otherwise permitted by this Agreement.
7.14 Lines of Business; Holding Company Status. (a) Enter into any
business, either directly or through any Subsidiary, except for (i) those
businesses in which the Borrower and its Subsidiaries are significantly engaged
on the date of this Agreement and (ii) businesses which are reasonably similar
or related thereto or reasonable extensions thereof but not, in the case of this
clause (ii), in the aggregate, material to the overall business of the Borrower
and its Subsidiaries (collectively, "Permitted Lines of Business"), provided,
that, in any event, the Borrower and its Subsidiaries will continue to be
primarily engaged in the businesses in which they are primarily engaged on the
date of this Agreement.
(b) In the case of Holdings, (i) conduct, transact or otherwise
engage in, or commit to conduct, transact or otherwise engage in, any business
or operations other than those incidental to its ownership of the Equity
Interests in other Persons or (ii) own, lease, manage or otherwise operate any
properties or assets other than Equity Interests in the Borrower.
7.15 Investments by Holdings in the Borrower. In the case of
Holdings, make any Investment in the Borrower other than in the form of a
capital contribution, unless such Investment is evidenced by a note and pledged
to the Administrative Agent pursuant to the Guarantee and Collateral Agreement.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof;
or the Borrower shall fail to pay any interest on any Loan or
Reimbursement Obligation, or any other amount payable hereunder or
under any other Loan Document, within five days after any such interest
or other amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it
at any time under or in connection with this Agreement or any such
other Loan Document shall prove to have been inaccurate in any material
respect on or as of the date made or deemed made; or
(c) any Loan Party shall default in the observance or performance
of any agreement contained in clause (i) or (ii) of Section 6.4(a)
(with respect to Holdings and the Borrower only),
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Section 6.7(a) or Section 7 of this Agreement or Sections 6.4 and
6.6(b) of the Guarantee and Collateral Agreement; or
(d) any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any
other Loan Document (other than as provided in paragraphs (a) through
(c) of this Section), and such default shall continue unremedied for a
period of 30 days after notice to the Borrower from the Administrative
Agent or the Majority Lenders; or
(e) Holdings, the Borrower or any of its Subsidiaries shall
(i) default in making any payment of any principal of any Indebtedness
(including any Guarantee Obligation, but excluding the Loans) on the
scheduled or original due date with respect thereto; or (ii) default in
making any payment of any interest on any such Indebtedness beyond the
period of grace, if any, provided in the instrument or agreement under
which such Indebtedness was created; or (iii) default in the observance
or performance of any other agreement or condition relating to any such
Indebtedness or contained in any instrument or agreement evidencing,
securing or relating thereto, or any other event shall occur or
condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case
of any such Indebtedness constituting a Guarantee Obligation) to become
payable; provided, that a default, event or condition described in
clause (i), (ii) or (iii) of this paragraph (e) shall not at any time
constitute an Event of Default unless, at such time, one or more
defaults, events or conditions of the type described in clauses (i),
(ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness of Holdings, the Borrower and
its Subsidiaries the outstanding principal amount of which exceeds in
the aggregate $25,000,000; or
(f)(i) Holdings, the Borrower or any of its Subsidiaries
shall commence any case, proceeding or other action (A) under any
existing or future law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to
it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian,
conservator or other similar official for it or for all or any
substantial part of its assets, or Holdings, the Borrower or any of its
Subsidiaries shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against Holdings, the
Borrower or any of its Subsidiaries any case, proceeding or other
action of a nature referred to in clause (i) above that (A) results in
the entry of an order for relief or any such adjudication or
appointment or (B) remains undismissed, undischarged or unbonded for a
period of 60 days; or (iii) there shall be commenced against Holdings,
the Borrower or any of its Subsidiaries any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its
assets that results in the entry of an order for any such relief that
shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) Holdings, the
Borrower or any of its Subsidiaries shall take any action in
furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or
(iii) above; or (v) Holdings, the Borrower or any of its Subsidiaries
shall generally not, or shall be unable to, or shall admit in writing
its inability to, pay its debts as they become due; or
(g)(i) Commonly Controlled Entities shall fail to pay when
due amounts (other than amounts being contested in good faith through
appropriate proceedings) for which they shall have become liable under
Title IV of ERISA to pay to the PBGC or to a Plan, (ii) the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause
a trustee to be appointed to administer any Plan or a proceeding shall
be instituted by a fiduciary of any Plan against any
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Commonly Controlled Entity to enforce Sections 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter, or (iii) a condition shall exist which would require the
PBGC to obtain a decree adjudicating that any Plan must be terminated;
and in each case in clauses (i) through (iii) above, such event or
condition, together with all other such events or conditions, if any,
could, in the sole judgment of the Majority Lenders, reasonably be
expected to result in a Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against
Holdings, the Borrower or any of its Subsidiaries involving in the
aggregate for all such Persons a liability (to the extent not paid or
fully covered by insurance as to which the relevant insurance company
has acknowledged coverage) of $25,000,000 or more, and all such
judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
(i) the Guarantee and Collateral Agreement shall cease, for
any reason (other than the gross negligence or willful misconduct of
the Administrative Agent), to be in full force and effect, or any Loan
Party or any Affiliate of any Loan Party shall so assert, or any Lien
created by the Guarantee and Collateral Agreement shall cease to be
enforceable and of the same effect and priority purported to be created
thereby; or
(j)(i) the ▇▇▇▇ ▇▇▇▇▇ Group shall cease to have the power,
directly or indirectly, to vote or direct the voting of Equity
Interests having at least 51% (determined on a fully diluted basis) of
the ordinary voting power for the management of the Borrower; (ii) the
▇▇▇▇ ▇▇▇▇▇ Group shall cease to own of record and beneficially,
directly or indirectly, Equity Interests of the Borrower representing
at least 25% (determined on a fully diluted basis) of the economic
interests therein; (iii) a Specified Change of Control shall occur;
(iv) Charter Communications Holding Company, LLC shall cease to own of
record and beneficially, directly or indirectly, Equity Interests of
the Borrower representing at least 51% (determined on a fully diluted
basis) of the economic interests therein; or (v) the Borrower shall
cease to be a direct Wholly Owned Subsidiary of Holdings; or
(k) the Borrower or any of its Subsidiaries shall have
received a notice of termination or suspension with respect to any of
its CATV Franchises or CATV Systems from the FCC or any Governmental
Authority or other franchising authority or the Borrower or any of its
Subsidiaries or the grantors of any CATV Franchises or CATV Systems
shall fail to renew such CATV Franchises or CATV Systems at the stated
expiration thereof if the percentage represented by such CATV
Franchises or CATV Systems and any other CATV Franchises or CATV
Systems which are then so terminated, suspended or not renewed of
Consolidated Operating Cash Flow for the 12-month period preceding the
date of the termination, suspension or failure to renew, as the case
may be, (giving pro forma effect to any acquisitions or Dispositions
that have occurred since the beginning of such 12-month period as if
such acquisitions or Dispositions had occurred at the beginning of such
12-month period), would exceed 10%, unless (i) an alternative CATV
Franchise or CATV System in form and substance reasonably satisfactory
to the Majority Lenders shall have been procured and come into effect
prior to or concurrently with the termination or expiration date of
such terminated, suspended or non-renewed CATV Franchise or CATV System
or (ii) the Borrower or such Subsidiary continues to operate and retain
the revenues received from such systems after the stated termination or
expiration and is engaged in negotiations to renew or extend such
franchise rights and obtains such renewal or extension within one year
following the stated termination or expiration, provided that such
negotiations have not been terminated by either party thereto, such
franchise rights or the equivalent thereof have not been awarded on an
exclusive basis to a third Person and no final determination (within
the meaning of Section 635 of the Communications Act of 1934, as
amended) has been made that the Borrower or such Subsidiary is not
entitled to the renewal or extension thereof;
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then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Tranche A Incremental Term Commitments and the Revolving
Commitments shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement and the other
Loan Documents (including all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Majority Lenders, the
Administrative Agent may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Tranche A
Incremental Term Commitments and the Revolving Commitments to be terminated
forthwith, whereupon the Tranche A Incremental Term Commitments and the
Revolving Commitments shall immediately terminate; and (ii) with the consent of
the Majority Lenders, the Administrative Agent may, or upon the request of the
Majority Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Borrower shall at such time deposit
in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrower hereunder and under the other Loan Documents. After
all such Letters of Credit shall have expired or been fully drawn upon, all
Reimbursement Obligations shall have been satisfied and all other obligations of
the Borrower hereunder and under the other Loan Documents shall have been paid
in full, the balance, if any, in such cash collateral account shall be returned
to the Borrower (or such other Person as may be lawfully entitled thereto).
Except as expressly provided above in this Section, presentment, demand, protest
and all other notices of any kind are hereby expressly waived by the Borrower.
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Loan Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
9.2 Delegation of Duties. The Administrative Agent may execute any
of its duties under this Agreement and the other Loan Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
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9.3 Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.4 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to Holdings or the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders (or, if so specified
by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement and the other Loan
Documents in accordance with a request of the Majority Lenders (or, if so
specified by this Agreement, all Lenders), and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders and all
future holders of the Loans.
9.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless the Administrative Agent has received notice from a
Lender, Holdings or the Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that the Administrative Agent receives such a notice, the
Administrative Agent shall promptly give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Majority Lenders (or, if
so specified by this Agreement, all Lenders); provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders.
9.6 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereinafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation
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into the business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates and made its own
decision to make its Loans hereunder and enter into this Agreement. Each Lender
also represents that it will, independently and without reliance upon any Agent
or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigation as it deems necessary
to inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender with any credit
or other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Loan Party or any
affiliate of a Loan Party that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by Holdings or the Borrower
and without limiting the obligation of Holdings or the Borrower to do so),
ratably according to their respective Aggregate Exposure Percentages in effect
on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Tranche A Incremental
Term Commitments and the Revolving Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with such Aggregate
Exposure Percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever that may at any
time (whether before or after the payment of the Loans) be imposed on, incurred
by or asserted against such Agent in any way relating to or arising out of, the
Tranche A Incremental Term Commitments, the Revolving Commitments, this
Agreement, any of the other Loan Documents or any documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
or any action taken or omitted by such Agent under or in connection with any of
the foregoing; provided that no Lender shall be liable for the payment of any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from such Agent's gross negligence or willful misconduct. The agreements in this
Section shall survive the payment of the Loans and all other amounts payable
hereunder.
9.8 Agent in Its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Loan Party as though such Agent was not an Agent. With
respect to its Loans made or renewed by it and with respect to any Letter of
Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
9.9 Resignation of Agents. (a) The Administrative Agent may resign
at any time by giving at least 60 days' prior written notice of its intention to
do so to each of the other Lenders and the Borrower pending the appointment by
the Borrower of a successor Administrative Agent reasonably satisfactory to the
Majority Lenders. If no successor Administrative Agent shall have been so
appointed and shall have accepted such appointment within 45 days after the
retiring Administrative Agent's giving of such notice of resignation, then the
retiring Administrative Agent may with the consent of the Borrower, which shall
not be unreasonably withheld or delayed, appoint a successor Administrative
Agent which shall be a bank or a trust company organized, or having a branch
that is licensed, under the laws of the United States of America or any state
thereof and having a combined capital, surplus and undivided profit of at least
$100,000,000.
(b) Any Agent other than the Administrative Agent may resign at
any time by giving at least 60 days' prior written notice of its intention to do
so to each of the other Lenders and the Borrower.
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Upon any such resignation, the Borrower may, but shall not be obligated to,
appoint a successor Agent in the relevant capacity reasonably satisfactory to
the Majority Lenders, provided, that the effectiveness of such resignation shall
not be conditioned upon the appointment of a successor.
(c) After any retiring Agent's resignation hereunder as Agent, the
provisions of this Agreement shall continue to inure to the benefit of such
Agent as to any actions taken or omitted to be taken by it while it was an Agent
under this Agreement and the other Loan Documents.
9.10 Other Agents. Notwithstanding any provision to the contrary
elsewhere in this Agreement (including the circumstance that the Syndication
Agent shall have certain rights regarding notification, consents and other
matters, to the extent expressly provided herein), no Agent other than the
Administrative Agent shall have any duties or responsibilities hereunder or
under any other Loan Document, or any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against any Agent.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement, any other
Loan Document nor any term hereof or thereof may be amended orally, nor may any
provision hereof or thereof be waived orally but only by an instrument in
writing signed by the Majority Lenders (or by the Administrative Agent if
authorized in writing to do so by the Majority Lenders) and by the Borrower,
except in connection with the Incremental Term Facility or other transactions
described in Section 2.1(c) (which requires no consent) and in the event of (a)
any reduction in a scheduled payment of principal, interest or fees due
hereunder (other than the waiver of charging interest at the Default Rate), (b)
any postponement of the timing of scheduled payments of principal, interest or
fees hereunder to any Lender, (c) any waiver of any Default due to the
Borrower's failure to pay any principal, interest or fees when scheduled to be
due hereunder to any Lender, (d) any amendment of this Section 10.1 or of the
definition of Majority Lenders or Majority Facility Lenders, (e) any release of
Collateral or guarantees, (f) any changes in the several nature of the
obligations of the Lenders, or (g) any change to the provisions of Section 2.15
hereof which provide for payments to be distributed to the Lenders on a pro rata
basis, any amendment or waiver may be made only by an instrument in writing
signed by the Administrative Agent and all the Lenders and by the Borrower. No
Lender's Revolving Commitment, Tranche A Incremental Term Commitment or Tranche
B Incremental Term Commitment hereunder may be increased without the written
consent of such Lender.
10.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of Holdings, the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
Any Loan Party: c/o CC VIII Operating, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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The Administrative Agent: Toronto Dominion (Texas), Inc.
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans and other extensions of credit hereunder.
10.5 Payment of Expenses and Taxes. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees and
disbursements of one firm of counsel to the Administrative Agent and filing and
recording fees and expenses, with statements with respect to the foregoing to be
submitted to the Borrower prior to the Restatement Effective Date (in the case
of amounts to be paid on the Restatement Effective Date) and from time to time
thereafter on a quarterly basis or such other periodic basis as the
Administrative Agent shall deem appropriate, (b) to pay or reimburse each Lender
and each Agent for all its costs and expenses incurred in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan
Documents and any such other documents, including the fees and disbursements of
one firm of counsel selected by the Administrative Agent and reasonably
acceptable to the Syndication Agent (or, in the event that either Syndication
Agent determines in good faith that issues apply to it that are not applicable
to the Administrative Agent or, with respect to an issue as to which another
counsel is proposed to be engaged, that its interests are different from those
of the Administrative Agent, one additional firm of counsel selected by Chase
Securities Inc.), together with any special or local counsel to the
Administrative Agent, and not more than one other firm of counsel to the
Lenders, (c) to pay, indemnify, and hold each Lender and each Agent harmless
from, any and all recording and filing fees and any and all liabilities with
respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, that may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Loan Documents and any such other documents, and (d) to pay, indemnify, and hold
each Lender, each Agent, their affiliates and their respective officers,
directors, trustees, employees, agents and controlling persons (each, an
"Indemnitee") harmless from and against any and all other liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever with respect to the
execution, delivery, enforcement, performance and administration of this
Agreement, the other Loan Documents and any such other documents, including any
of the foregoing relating to the use of proceeds of the Loans or the violation
of, noncompliance with or liability under, any Environmental Law
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applicable to the operations of Holdings, the Borrower any of its Subsidiaries
or any of the Properties and the reasonable fees and expenses of legal counsel
in connection with claims, actions or proceedings by any Indemnitee against any
Loan Party under any Loan Document (all the foregoing in this clause (d),
collectively, the "Indemnified Liabilities"), provided, that the Borrower shall
have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee. Without
limiting the foregoing, and to the extent permitted by applicable law, the
Borrower agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries to so waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. All amounts due
under this Section 10.5 shall be payable not later than 15 days after written
demand therefor. Statements payable by the Borrower pursuant to this Section
10.5 shall be submitted to ▇▇▇▇ ▇▇▇▇▇▇▇▇ (Telephone No. ▇▇▇-▇▇▇-▇▇▇▇) (Telecopy
No. 314-965-8793), at the address of the Borrower set forth in Section 10.2, or
to such other Person or address as may be hereafter designated by the Borrower
in a written notice to the Administrative Agent. The agreements in this Section
10.5 shall survive repayment of the Loans and all other amounts payable
hereunder.
10.6 Successors and Assigns; Participations and Assignments. (a)
This Agreement shall be binding upon and inure to the benefit of Holdings, the
Borrower, the Lenders, the Agents, all future holders of the Loans and their
respective successors (which shall include, in the case of any Lender, any
entity resulting from a merger or consolidation) and assigns, except that the
Borrower may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of each Lender.
(b) Any Lender other than any Conduit Lender may, without the
consent of the Borrower or the Administrative Agent, in accordance with
applicable law, at any time sell to one or more banks, financial institutions or
other entities (each, a "Participant"), including, without limitation, any
Conduit Participant, participating interests in any Loan owing to such Lender,
any Tranche A Incremental Term Commitment or Revolving Commitment of such Lender
or any other interest of such Lender hereunder and under the other Loan
Documents. In the event of any such sale by a Lender of a participating interest
to a Participant, such Lender's obligations under this Agreement to the other
parties to this Agreement shall remain unchanged, such Lender shall remain
solely responsible for the performance thereof, such Lender shall remain the
holder of any such Loan for all purposes under this Agreement and the other Loan
Documents, and the Borrower and the Agents shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. In no event shall
any Participant under any such participation have any right to approve any
amendment or waiver of any provision of any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would (i) reduce the amount or extend the scheduled date of
amortization or maturity of any Loan, (ii) reduce the rate of interest or any
fee or extend any due date thereof or (iii) increase the amount or extend the
expiry date of any Lender's commitment, in each case to the extent subject to
such participation. The Borrower agrees that if amounts outstanding under this
Agreement and the Loans are due or unpaid, or shall have been declared or shall
have become due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable law, be deemed
to have the right of setoff in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, provided that, in purchasing such participating interest, such
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 10.7(a) as fully as if it were a Lender
hereunder. The Borrower also agrees that each Participant shall be entitled to
the benefits of Sections 2.16, 2.17 and 2.18 with respect to its participation
in the Tranche A Incremental Term Commitments and the Revolving
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Commitments and the Loans outstanding from time to time as if it was a Lender;
provided that, in the case of Section 2.17, such Participant shall have complied
with the requirements of said Section and provided, further, that no Participant
shall be entitled to receive any greater amount pursuant to any such Section
than the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender other than any Conduit Lender (an "Assignor") may,
in accordance with applicable law, at any time and from time to time assign to
any Lender, any affiliate of any Lender or any Approved Fund or, with the
consent of the Borrower and the Administrative Agent (which, in each case, shall
not be unreasonably withheld or delayed), to an additional bank, financial
institution or other entity (an "Assignee") all or any part of its rights and
obligations under this Agreement pursuant to an Assignment and Acceptance,
executed by such Assignee, such "Assignor and any other Person whose consent is
required pursuant to this paragraph, and delivered to the Administrative Agent
for its acceptance and recording in the Register; provided that, except in the
case of an assignment of all of a Lender's interests under this Agreement, no
such assignment to an Assignee (other than any Lender, any affiliate of any
Lender or any Approved Fund) shall (i) be in an aggregate principal amount of
less than $5,000,000 or (ii) cause the "Assignor to have Aggregate Exposure of
less than $3,000,000, in each case unless otherwise agreed by the Borrower and
the Administrative Agent. For purposes of clauses (i) and (ii) of the preceding
sentence, the amounts described therein shall be aggregated in respect of each
Lender and its related Approved Funds, if any. Any such assignment need not be
ratable as among the Facilities. Upon such execution, delivery, acceptance and
recording, from and after the effective date determined pursuant to such
Assignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Lender hereunder with a Tranche A Incremental Term
Commitment or a Revolving Commitment and/or Loans as set forth therein, and (y)
the "Assignor thereunder shall, to the extent provided in such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of an Assignor's rights and
obligations under this Agreement, such "Assignor shall cease to be a party
hereto). Notwithstanding any provision of this Section 10.6, the consent of the
Borrower shall not be required for any assignment that occurs when an Event of
Default pursuant to Section 8(a) or 8(f) shall have occurred and be continuing.
On the effective date of any Assignment and Acceptance, the Administrative Agent
shall give notice of the terms thereof to the Syndication Agent. Notwithstanding
the foregoing, any Conduit Lender may assign at any time to its designating
Lender hereunder without the consent of the Borrower or the Administrative Agent
any or all of the Loans it may have funded hereunder and pursuant to its
designation agreement and without regard to the limitations set forth in the
first sentence of this Section 10.6(c).
(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Tranche A
Incremental Term Commitment and the Revolving Commitment of, and the principal
amount of the Loans owing to, each Lender from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Borrower, each other Loan Party, the Agents and the Lenders shall treat each
Person whose name is recorded in the Register as the owner of the Loans and any
Notes evidencing the Loans recorded therein for all purposes of this Agreement.
Any assignment of any Loan, whether or not evidenced by a Note, shall be
effective only upon appropriate entries with respect thereto being made in the
Register (and each Note shall expressly so provide). Any assignment or transfer
of all or part of a Loan evidenced by a Note shall be registered on the Register
only upon surrender for registration of assignment or transfer of the Note
evidencing such Loan, accompanied by a duly executed Assignment and Acceptance,
and thereupon one or more new Notes shall be issued to the designated Assignee.
The Administrative Agent will promptly send a copy of the Register to the
Borrower upon request.
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(e) Upon its receipt of an Assignment and Acceptance executed by
an "Assignor, an Assignee and any other Person whose consent is required by
Section 10.6(c), together with payment to the Administrative Agent of a
registration and processing fee of $3,500, the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) record the information
contained therein in the Register on the effective date determined pursuant
thereto.
(f) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section 10.6 concerning assignments
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including any pledge or assignment by a
Lender of any Loan to any Federal Reserve Bank in accordance with applicable
law.
(g) Each of Holdings, the Borrower, each Lender and the
Administrative Agent hereby confirms that it will not institute against a
Conduit Lender or join any other Person in instituting against a Conduit Lender
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceeding under any state bankruptcy or similar law, for one year and one day
after the payment in full of the latest maturing commercial paper note issued by
such Conduit Lender; provided, however, that each Lender designating any Conduit
Lender hereby agrees to indemnify, save and hold harmless each other party
hereto for any loss, cost, damage or expense arising out of its inability to
institute such a proceeding against such Conduit Lender during such period of
forbearance.
10.7 Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular Lender
or to the Lenders under a particular Facility, if any Lender (a "Benefitted
Lender") shall receive any payment of all or part of the amounts owing to it
hereunder, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of the amounts owing to such other Lender hereunder, such Benefitted Lender
shall purchase for cash from the other Lenders a participating interest in such
portion of the amounts owing to each such other Lender hereunder, or shall
provide such other Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest, unless such Benefitted Lender is required to pay interest
thereon, in which case each Lender returning funds to such Benefitted Lender
shall pay its pro rata share of such interest.
(b) In addition to any rights and remedies of the Lenders provided
by law, each Lender shall have the right, without prior notice to Holdings or
the Borrower, any such notice being expressly waived by Holdings and the
Borrower to the extent permitted by applicable law, upon any amount becoming due
and payable by Holdings or the Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise), to set off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of Holdings or
the Borrower, as the case may be. Each Lender agrees promptly to notify the
Borrower and the Administrative Agent after any such setoff and application made
by such Lender, provided that the failure to give such notice shall not affect
the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart
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hereof. A set of the copies of this Agreement signed by all the parties shall be
lodged with the Borrower and the Administrative Agent.
10.9 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
represent the agreement of Holdings, the Borrower, the Agents and the Lenders
with respect to the subject matter hereof, and there are no promises,
undertakings, representations or warranties by the any Agent or any Lender
relative to subject matter hereof not expressly set forth or referred to herein
or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. Each of Holdings and
the Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment
in respect thereof, to the non-exclusive general jurisdiction of the
courts of the State of New York, the courts of the United States for
the Southern District of New York, and appellate courts from any
thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have
to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and
agrees not to plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to Holdings or the Borrower, as the case may be at its address
set forth in Section 10.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding
referred to in this Section any special, exemplary, punitive or
consequential damages.
10.13 Acknowledgments. Each of Holdings and the Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
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(b) neither any Agent nor any Lender has any fiduciary
relationship with or duty to Holdings or the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents,
and the relationship between the Agents and Lenders, on one hand, and
Holdings and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Agents and the Lenders or among Holdings,
the Borrower and the Agents and the Lenders.
10.14 Releases of Guarantees and Liens. (a) Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
Administrative Agent is hereby irrevocably authorized by each Lender (without
requirement of notice to or consent of any Lender except as expressly required
by Section 10.1) to take any action requested by the Borrower having the effect
of releasing any Collateral or Guarantee Obligations (i) to the extent necessary
to permit consummation of any transaction not prohibited by any Loan Document or
that has been approved in accordance with Section 10.1 or (ii) under the
circumstances described in paragraph (b) below.
(b) At such time as the Loans, the Reimbursement Obligations and
the other obligations under the Loan Documents (other than obligations under or
in respect of Hedge Agreements or letters of credit obtained other than pursuant
to this Agreement) shall have been paid in full, the Tranche A Incremental Term
Commitments and the Revolving Commitments have been terminated and no Letters of
Credit shall be outstanding, the Collateral shall be released from the Liens
created by the Guarantee and Collateral Agreement, and the Guarantee and
Collateral Agreement and all obligations (other than those expressly stated to
survive such termination) of the Administrative Agent and each Loan Party under
the Guarantee and Collateral Agreement shall terminate, all without delivery of
any instrument or performance of any act by any Person.
10.15 Confidentiality. Each Agent and each Lender agrees to keep
confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to any Agent, any Lender or any
affiliate of any Lender or any Approved Fund, (b) to any Transferee or
prospective Transferee that agrees to comply with the provisions of this
Section, (c) to its employees, directors, agents, attorneys, accountants and
other professional advisors or those of any of its affiliates who have a need to
know, (d) upon the request or demand of any Governmental Authority, (e) in
response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (f) if requested or
required to do so in connection with any litigation or similar proceeding, (g)
that has been publicly disclosed, (h) any nationally recognized rating agency
that requires access to information about a Lender's investment portfolio in
connection with ratings issued with respect to such Lender, (i) in connection
with the exercise of any remedy hereunder or under any other Loan Document or
(j) to any direct or indirect contractual counterparty in swap agreements or
such contractual counterparty's professional advisor (so long as such
contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section 10.15).
10.16 WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER, THE AGENTS
AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
CC VIII HOLDINGS, LLC
By:
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
CC VIII OPERATING, LLC
By:
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
The Administrative Agent:
TORONTO DOMINION (TEXAS), INC.
By:
--------------------------------------------
Name:
Title:
The Syndication Agent:
CHASE SECURITIES INC.
By:
--------------------------------------------
Name:
Title:
The Documentation Agents:
BANK OF NOVA SCOTIA
By:
--------------------------------------------
Name:
Title:
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, INC.
By:
--------------------------------------------
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By:
--------------------------------------------
Name:
Title:
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Annex A
PRICING GRID
=====================================================================================================================
Applicable Margin Applicable Margin
for Eurodollar Loans for ABR Loans
-----------------------------------------------
Commitment Fee
Consolidated Leverage Ratio A/RC B A/RC B Rate
----------------------------------------------------------------------------------------------------------------------
Greater than or equal to 5.50 to 1.0 2.25% 2.75% 1.25% 1.75% 0.375%
----------------------------------------------------------------------------------------------------------------------
Greater than or equal to 4.75 to 1.0 but 2.00% 2.75% 1.00% 1.75% 0.375%
less than 5.50 to 1.0
----------------------------------------------------------------------------------------------------------------------
Greater than or equal to 4.50 to 1.0 but 1.75% 2.75% 0.75% 1.75% 0.375%
less than 4.75 to 1.0
----------------------------------------------------------------------------------------------------------------------
Greater than or equal to 4.00 to 1.0 but 1.50% 2.50% 0.50% 1.50% 0.375%
less than 4.50 to 1.0
----------------------------------------------------------------------------------------------------------------------
Greater than or equal to 3.75 to 1.0 but 1.25% 2.50% 0.25% 1.50% 0.250%
less than 4.00 to 1.0
----------------------------------------------------------------------------------------------------------------------
Greater than or equal to 3.00 to 1.0 but 1.00% 2.50% 0% 1.50% 0.250%
less than 3.75 to 1.0
----------------------------------------------------------------------------------------------------------------------
Less than 3.00 to 1.0 0.75% 2.50% 0% 1.50% 0.250%
======================================================================================================================
As used above, (a) "A/RC" refers to Tranche A Term Loans,
Revolving Loans and Swingline Loans and (b) "B" refers to Tranche B Term Loans.
Until the first anniversary of the Restatement Effective Date,
rates corresponding to a Consolidated Leverage Ratio of less than 4.50 to 1.0
will not be available with respect to Tranche A Term Loans, Revolving Loans and
Swingline Loans.
Changes in the Applicable Margin or in the Commitment Fee Rate
resulting from changes in the Consolidated Leverage Ratio shall become effective
on the date (the "Adjustment Date") on which financial statements are delivered
to the Lenders pursuant to Section 6.1 (but in any event not later than the 45th
day after the end of each of the first three quarterly periods of each fiscal
year or the 90th day after the end of each fiscal year, as the case may be) and
shall remain in effect until the next change to be effected pursuant to this
paragraph. If any financial statements referred to above are not delivered
within the time periods specified above, then, until such financial statements
are delivered, the highest rates referred to in the Pricing Grid shall be
applicable. In addition, the highest rates referred to in the Pricing Grid shall
be applicable at all times while an Event of Default shall have occurred and be
continuing.