Exhibit 10.01
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT
Among
UCA LLC
CENTURY CABLE HOLDINGS, LLC
CENTURY-TCI CALIFORNIA, L.P.
OLYMPUS CABLE HOLDINGS, LLC
PARNASSOS, L.P.
FRONTIERVISION OPERATING PARTNERS, L.P.
ACC INVESTMENT HOLDINGS, INC.,
ARAHOVA COMMUNICATIONS, INC.,
ADELPHIA CALIFORNIA CABLEVISION, LLC
each a Debtor and a Debtor-in-Possession under Chapter 11 of the Bankruptcy Code
as Borrowers,
THE GUARANTORS LISTED ON ANNEX B HERETO
each a Debtor and a Debtor-in-Possession under Chapter 11 of the Bankruptcy Code
as Guarantors,
(each to the extent specified herein)
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK,
as Administrative Agent
CITICORP USA, INC.
as Syndication Agent
J.P. MORGAN SECURITIES INC.
and
SALOMON SMITH BARNEY INC.
as Joint Bookrunners and Co-Lead Arrangers
CITICORP USA, INC.,
as Collateral Agent
WACHOVIA BANK, N.A.,
as Co-Syndication Agent
and
THE BANK OF NOVA SCOTIA,
FLEET NATIONAL BANK,
BANK OF AMERICA, N.A.
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agents
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
Dated as of August 26, 2002
- -------------------------------------------------------------------------------
ARTICLE 1.
DEFINITIONS
Section 1.01. Defined Terms................................................3
Section 1.02. Terms Generally.............................................28
ARTICLE 2.
AMOUNT AND TERMS OF CREDITS
Section 2.01. Commitments of the Tranche A DIP Lenders....................29
Section 2.02. Tranche B Credit-Linked Accounts............................29
Section 2.03. Making of Tranche B Loans...................................33
Section 2.04. Letters of Credit...........................................33
Section 2.05. Issuance....................................................36
Section 2.06. Nature of Letter of Credit Obligations Absolute.............37
Section 2.07. Making of Loans.............................................37
Section 2.08. Repayment of Loans; Evidence of Debt........................38
Section 2.09. Interest on Loans...........................................39
Section 2.10. Default Interest............................................40
Section 2.11. Optional Termination or Reduction of Commitment or Borrowing
Limits......................................................40
Section 2.12. Alternate Rate of Interest..................................41
Section 2.13. Refinancing of Loans........................................41
Section 2.14. Reduction Events............................................42
Section 2.15. Optional Prepayment of Loans; Reimbursement of DIP Lenders..47
Section 2.16. Reserve Requirements; Change in Circumstances...............49
Section 2.17. Change in Legality..........................................51
Section 2.18. Pro Rata Treatment, Etc.....................................51
Section 2.19. Taxes.......................................................52
Section 2.20. Certain Fees................................................54
Section 2.21. Commitment Fees.............................................54
Section 2.22. Letter of Credit Fees.......................................55
Section 2.23. Nature of Fees..............................................55
Section 2.24. Priority and Liens..........................................55
Section 2.25. Right of Set-off............................................57
Section 2.26. Security Interest in Letter of Credit Accounts..............58
Section 2.27. No Discharge: Survival of Claims............................58
Section 2.28. Use of Cash Collateral......................................58
Section 2.29. General Provisions as to Payments...........................58
Section 2.30. Nature of Obligations of each Borrower......................58
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
2
Section 3.01. Organization and Authority..................................59
Section 3.02. Due Execution...............................................59
Section 3.03. Statements Made.............................................60
Section 3.04. Current SEC Reports, No Material Adverse Change.............60
Section 3.05. Subsidiaries................................................61
Section 3.06. Liens.......................................................61
Section 3.07. Compliance with Law.........................................61
Section 3.08. Insurance...................................................62
Section 3.09. The Orders..................................................62
Section 3.10. Use of Proceeds.............................................62
Section 3.11. Litigation..................................................62
Section 3.12. Intellectual Property.......................................62
Section 3.13. Franchise Agreements........................................63
Section 3.14. No Event of Default.........................................63
Section 3.15. Loan Parties Making Representations and Warranties..........63
ARTICLE 4.
CONDITIONS OF LENDING
Section 4.01. Conditions Precedent to Closing and Initial Credit Event....63
Section 4.02. Consequence of Effectiveness................................66
Section 4.03. Conditions Precedent to Each Credit Event...................67
Section 4.04. Occurrence of Incremental Availability Date.................68
ARTICLE 5.
AFFIRMATIVE COVENANTS
Section 5.01. Financial Statements, Reports, Etc..........................69
Section 5.02. Corporate Existence.........................................74
Section 5.03. Insurance...................................................74
Section 5.04. Obligations and Taxes.......................................74
Section 5.05. Notice of Event of Default, etc.............................75
Section 5.06. Access to Books and Records.................................75
Section 5.07. Furnishing of Additional Information........................75
Section 5.08. Use of Proceeds.............................................76
Section 5.09. Chief Restructuring Officer.................................76
Section 5.10. Franchise Agreements........................................76
Section 5.11. Ongoing Compliance..........................................77
Section 5.12. Maintenance of Concentration Account........................77
Section 5.13. Additional Loan Parties.....................................77
Section 5.14. Exiting Loan Parties........................................77
ARTICLE 6.
NEGATIVE COVENANTS
Section 6.01. Liens.......................................................78
Section 6.02. Merger, etc.................................................78
3
Section 6.03. Indebtedness................................................78
Section 6.04. Capital Expenditures........................................79
Section 6.05. Minimum EBITDA..............................................79
Section 6.06. Guarantees and Other Liabilities............................79
Section 6.07. Chapter 11 Claims...........................................79
Section 6.08. Dividends; Capital Stock....................................79
Section 6.09. Transactions with Affiliates................................79
Section 6.10. Investments, Intercompany Advances..........................80
Section 6.11. Disposition of Assets.......................................82
Section 6.12. Nature of Business..........................................82
Section 6.13. Cash Management System......................................82
Section 6.14. Exiting Loan Parties........................................83
ARTICLE 7.
EVENTS OF DEFAULT
Section 7.01. Events of Default...........................................87
ARTICLE 8.
THE AGENTS
Section 8.01. Administration by Agents....................................87
Section 8.02. Advances and Payments.......................................87
Section 8.03. Sharing of Setoffs..........................................88
Section 8.04. Agreement of Required DIP Lenders or Super-Majority DIP
Lenders.....................................................89
Section 8.05. Liability of Agents.........................................89
Section 8.06. Reimbursement and Indemnification...........................90
Section 8.07. Rights of Agents............................................90
Section 8.08. Independent DIP Lenders.....................................90
Section 8.09. Notice of Transfer..........................................90
Section 8.10. Successor Agents............................................90
ARTICLE 9.
GUARANTY
Section 9.01. Guaranty....................................................91
Section 9.02. No Impairment of Guaranty...................................92
Section 9.03. Subrogation.................................................93
Section 9.04. Nature of Obligations of each Guarantor.....................94
ARTICLE 10.
MISCELLANEOUS
Section 10.01. Notices....................................................94
Section 10.02. Survival of Agreement, Representations and Warranties, etc.95
Section 10.03. Successors and Assigns.....................................95
4
Section 10.04. Confidentiality............................................98
Section 10.05. Expenses...................................................98
Section 10.06. Indemnity..................................................99
Section 10.07. CHOICE OF LAW..............................................99
Section 10.08. No Waiver..................................................99
Section 10.09. Extension of Maturity......................................99
Section 10.10. Amendments, etc...........................................100
Section 10.11. Severability..............................................101
Section 10.12. Headings..................................................102
Section 10.13. Execution in Counterparts.................................102
Section 10.14. Further Assurances........................................102
Section 10.15. Prior Agreements..........................................102
Section 10.16. WAIVER OF JURY TRIAL......................................102
ANNEX A -- Commitment Amounts
ANNEX B -- Borrowers, Borrowing Limits and Letter of Credit Sublimits
ANNEX C -- Pre-Petition Facilities
ANNEX D -- Tranche B Credit-Linked Deposit Amounts
CASH MANAGEMENT PROTOCOL
EXHIBIT A -- Form of Assignment and Acceptance
EXHIBIT B-1 -- Form of Note - Tranche A
EXHIBIT B-2 -- Form of Note - Tranche B
EXHIBIT C -- Form of Interim Order
EXHIBIT D -- Form of Amended and Restated Security and Pledge Agreement
EXHIBIT E -- Form of Counsel Opinion
EXHIBIT F -- Form of Cash Management Order
SCHEDULE 3.13 -- Franchise Agreements
SCHEDULE 6.01 -- Existing Liens
v
AMENDED AND RESTATED CREDIT AND GUARANTY AGREEMENT, dated as of August
26, 2002, among UCA LLC, CENTURY CABLE HOLDINGS, LLC, CENTURY-TCI CALIFORNIA,
L.P., OLYMPUS CABLE HOLDINGS, LLC, PARNASSOS, L.P., FRONTIERVISION OPERATING
PARTNERS, L.P., ACC INVESTMENT HOLDINGS, INC., ARAHOVA COMMUNICATIONS, INC., and
ADELPHIA CALIFORNIA CABLEVISION, LLC, the GUARANTORS listed on Annex B hereto,
each of which is a debtor and debtor-in-possession in a case pending under
chapter 11 of the Bankruptcy Code, each of the FINANCIAL INSTITUTIONS from time
to time party hereto, JPMORGAN CHASE BANK, as Administrative Agent, CITICORP
USA, INC., as Syndication Agent, and J.P. MORGAN SECURITIES INC. and SALOMON
SMITH BARNEY INC., as Joint Bookrunners and Co-Lead Arrangers, CITICORP USA,
INC., as Collateral Agent, WACHOVIA BANK, N.A., as Co-Syndication Agent, and THE
BANK OF NOVA SCOTIA, FLEET NATIONAL BANK, BANK OF AMERICA, N.A. and GENERAL
ELECTRIC CAPITAL CORPORATION, as Co-Documentation Agents.
INTRODUCTORY STATEMENT
On June 25, 2002, each Loan Party filed a voluntary petition with the
Bankruptcy Court initiating a case under chapter 11 of the Bankruptcy Code, and
has continued in the possession of its assets and in the management of its
business pursuant to Sections 1107 and 1108 of the Bankruptcy Code.
On June 25, 2002, the Borrowers party thereto, the Guarantors referred
to therein, JPMORGAN CHASE BANK, as Administrative Agent, CITICORP USA, INC., as
Syndication Agent, and J.P. MORGAN SECURITIES INC. and SALOMON SMITH BARNEY
INC., as Joint Bookrunners and Co-Lead Arrangers, CITICORP USA, INC., as
Collateral Agent, WACHOVIA BANK, N.A., as Co-Syndication Agent, and THE BANK OF
NOVA SCOTIA, FLEET NATIONAL BANK, BANK OF AMERICA, N.A. and GENERAL ELECTRIC
CAPITAL CORPORATION, as Co-Documentation Agents, entered into a Credit and
Guaranty Agreement (as amended, the "Existing Credit and Guaranty Agreement"),
pursuant to which a credit facility was made available to each Borrower as set
forth therein.
The parties thereto desire to amend and restate the Existing Credit and
Guaranty Agreement as provided in this Agreement and upon satisfaction of the
conditions specified in Section 4.01, said Credit and Guaranty Agreement will be
so amended and restated.
The proceeds of the credit extended pursuant to the facility evidenced
by this Agreement will be used only as described in Section 5.08 of this
Agreement.
To provide guarantees and security for the repayment of the Loans made
to each Borrower, the Reimbursement Obligations with respect to the Letters of
Credit issued for
the account of any Borrower and the payment of the other Obligations, each Loan
Party has provided and will continue to provide to the Agents, the Fronting
Banks and the DIP Lenders the following (each as more fully described herein):
(i) from each Guarantor, a guarantee of its Guaranteed Obligations;
(ii) subject to the Carve-Out, to satisfy its Obligations, an allowed
administrative expense claim in each of the Cases pursuant to Section 364(c)(1)
of the Bankruptcy Code having priority over all administrative expenses of the
kind specified in, or arising under, any Sections of the Bankruptcy Code
(including without limitation Sections 105, 326, 328, 330, 331, 503(b), 507(a),
507(b), 546(c) or 726 thereof) pursuant to Section 364(c)(1) of the Bankruptcy
Code, whether or not such claims or expenses may become secured by a judgment
lien or other non-consensual lien, levy or attachment;
(iii) subject to the Carve-Out, pursuant to Section 364(c)(2) of the
Bankruptcy Code, to secure its Secured Obligations, a perfected first priority
senior security interest and Lien on (x) with respect to any Loan Party other
than a Holding Company Guarantor, all property of such Loan Party (other than
Excluded Property) that is not subject on or as of the Petition Date to Existing
Non-Primed Liens (as defined below) and any amounts that cash collateralize any
Letter of Credit issued for the account of such Loan Party (if any) and (y) with
respect to any Loan Party that is a Holding Company Guarantor, all Equity
Interests (other than Excluded Property) of any direct Subsidiary of such
Holding Company Guarantor and all Holding Company Specified Assets of such
Holding Company Guarantor, in each case that are not subject to Existing
Non-Primed Liens (and the property of any Loan Party described in clauses (x) or
(y) shall exclude any Loan Party's claims and causes of action under Sections
502(d), 544, 545, 547, 548 and 550 of the Bankruptcy Code, or any other
avoidance actions under the Bankruptcy Code, but shall include any proceeds or
property recovered, unencumbered or otherwise the subject of any such action
that is successful);
(iv) subject to the Carve-Out, pursuant to Section 364(c)(3) of the
Bankruptcy Code, to secure its Secured Obligations, a perfected junior Lien on
(x) with respect to any Loan Party other than a Holding Company Guarantor, all
property of such Loan Party that is subject to valid, perfected and unavoidable
liens in existence immediately prior to the Petition Date or to valid and
unavoidable Liens in existence immediately prior to the Petition Date that are
perfected subsequent to the Petition Date as permitted by Section 546(b) of the
Bankruptcy Code and, to the extent applicable, Section 362(b)(18) of the
Bankruptcy Code (collectively, "Existing Non-Primed Liens") (other than the
property (if any) that is subject to any Primed Liens), which Liens shall be
primed by the Liens described in clause (v) below) and (y) with respect to any
Loan Party that is a Holding Company Guarantor, its Holding Company Specified
Assets that are subject to valid and perfected liens in existence on the
Petition Date or to valid Liens in existence on the Petition Date that are
perfected subsequent to the Petition Date as permitted by Sections 546(b) and
362(b)(18) of the Bankruptcy Code (other than the property (if any) that is
2
subject to existing Liens that secure obligations (if any) of such Holding
Company Guarantor under the Pre-Petition Facility as to which such Holding
Company Guarantor is liable, which Liens shall be primed by the Liens described
in clause (v) below); and
(v) subject to the Carve-Out, pursuant to Section 364(d)(1) of the
Bankruptcy Code, to secure its Secured Obligations, a perfected first priority
senior priming security interest and lien on all of the property of such Loan
Party that is subject to any of the Primed Liens (including, without limitation,
inventory, accounts receivable, property, plant, equipment, patents, copyrights,
trademarks, tradenames and other intellectual property and capital stock of
subsidiaries), which priming lien shall be senior in all respects to the
interests in such property of the Pre-Petition Lenders of such Loan Party
(including, without limitation, adequate protection liens granted to such
Pre-Petition Lenders), but shall not be senior to any Existing Non-Primed Liens
on such property.
Accordingly, the parties hereto hereby agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.01. Defined Terms. As used in this Agreement, the following
terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of
Article 2.
"Adjusted LIBOR Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the quotient of (a) the LIBOR
Rate in effect for such Interest Period divided by (b) a percentage (expressed
as a decimal) equal to 100% minus Statutory Reserves. For purposes hereof, the
term "LIBOR Rate" shall mean the rate (rounded upwards, if necessary, to the
next 1/16 of 1%) at which dollar deposits approximately equal in principal
amount to such Eurodollar Borrowing and for a maturity comparable to such
Interest Period are offered to the principal London office of the Administrative
Agent in immediately available funds in the London interbank market at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Administrative Agent" shall mean JPMCB in its capacity as
administrative agent under the Loan Documents and its successors in such
capacity.
3
"Affiliate" shall mean, 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, a Person (a
"Controlled Person") shall be deemed to be "controlled by" another Person (a
"Controlling Person") if the Controlling Person possesses, directly or
indirectly, power to direct or cause the direction of the management and
policies of the Controlled Person whether by contract or otherwise.
"Agent" shall mean the Administrative Agent, the Syndication Agent, a
Co-Lead Arranger, the Collateral Agent, the Co-Syndication Agent, or a
Co-Documentation Agent, and "Agents" shall mean all of them.
"Agreement" shall mean this Amended and Restated Credit and Guaranty
Agreement dated as of August 26, 2002, as the same may from time to time be
further amended, modified or supplemented.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Administrative Agent as its
Prime rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly announced.
"Base CD Rate" shall mean the sum of (a) the quotient of (i) the Three-Month
Secondary CD Rate divided by (ii) a percentage expressed as a decimal equal to
100% minus Statutory Reserves and (b) the Assessment Rate. "Three-Month
Secondary CD Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in effect on such day (or,
if such day shall not be a Business Day, the immediately preceding Business Day)
by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(19) during the
week following such day), or, if such rate shall not be so reported on such day
or such immediately preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center banks
in New York City received at approximately 10:00 a.m., New York City time, on
such day (or, if such day shall not be a Business Day, on the immediately
preceding Business Day) by the Administrative Agent from three New York City
negotiable certificate of deposit dealers of recognized standing selected by it.
"Federal Funds Effective Rate" shall mean, 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 which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three Federal funds brokers of recognized
4
standing selected by it. If for any reason the Administrative Agent shall have
determined (which determination shall be conclusive absent manifest error) that
it is unable to ascertain the Base CD Rate or the Federal Funds Effective Rate
or both for any reason, including the inability or failure of the Administrative
Agent to obtain sufficient quotations in accordance with the terms hereof, the
Alternate Base Rate shall be determined without regard to clause (b) or (c), or
both, of the first sentence of this definition, as appropriate, until the
circumstances giving the rise to such inability no longer exist. Any change in
the Alternate Base Rate due to a change in the Prime Rate, the Three-Month
Secondary CD Rate or the Federal Funds Effective Rate shall be effective on the
effective date of such change in the Prime Rate, the Three-Month Secondary CD
Rate or the Federal Funds Effective Rate, respectively.
"Amended and Restated Security and Pledge Agreement" shall have the
meaning set forth in Section 4.01(c).
"Applicable L/C Fee Rate" shall mean a rate per annum equal to 3.50%.
"Applicable Margin" shall mean, on any date, (i) with respect to any
Eurodollar Loan, a rate per annum equal to 3.50%, and (ii) with respect to any
ABR Loan, a rate per annum equal to 2.50%.
"Assessment Rate" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Administrative Agent as the then current net annual assessment rate that will be
employed in determining amounts payable by the Administrative Agent to the
Federal Deposit Insurance Corporation (or any successor) for insurance by such
Corporation (or any successor) of time deposits made in dollars at the
Administrative Agent's domestic offices.
"Asset Sale Agreement" shall mean any agreement with respect to the
sale, lease or other disposition of any asset of any Loan Party that is (a)
approved by the Required DIP Lenders and (b) to the extent required by the
Bankruptcy Code, approved by the Bankruptcy Court.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a DIP Lender and an Eligible Assignee, and accepted by the
Administrative Agent, substantially in the form of Exhibit A.
"Bankruptcy Code" shall mean The Bankruptcy Reform Act of 1978, as
heretofore and hereafter amended, and codified as 11 U.S.C. ss. 101, et seq.
"Bankruptcy Court" shall mean the United States Bankruptcy Court for
the Southern District of New York or any other court having jurisdiction over
the Cases from time to time.
5
"Benchmark LIBOR Rate" shall have the meaning set forth in Section
2.02(d).
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrower" shall mean any Several Borrower or any Joint and Several
Borrower and, when used with respect to any Loans or Reimbursement Obligations,
with respect to any Letters of Credit, shall mean the Borrower to whom such
Loans were made or for whose account such Letters of Credit were issued, and
"Borrowers" shall mean all of them.
"Borrower Group" shall mean each group of Persons consisting of a
Borrower and all of the direct and indirect Subsidiaries of the Parent that are
identified on Annex B as belonging to such Borrower Group.
"Borrowing" shall mean the incurrence of Loans of a single Type and a
single Class made by the relevant DIP Lenders on a single date to a single
Borrower and having, in the case of Eurodollar Loans, a single Interest Period
(with any ABR Loan made pursuant to Section 2.17 being considered a part of the
related Borrowing of Eurodollar Loans).
"Borrowing Limit" shall mean, at any time, with respect to any Borrower
Group, (i) prior to the Covenant Addendum Date, the amount set forth on Annex B
under the column "Borrowing Limit" opposite such Borrower's name (such Borrower
Group's "Initial Borrowing Limit") and (ii) on and after the Covenant Addendum
Date, the amount agreed upon between such Borrower and the Initial Majority DIP
Lenders and set forth in the Covenant Addendum, in each case as reduced from
time to time pursuant to Sections 2.11 and 2.14 or as amended from time to time
in accordance with Section 10.10 pursuant to an amendment entered into by the
Loan Parties and the Required DIP Lenders. The Initial Borrowing Limit with
respect to any Borrower may be increased upon request of such Borrower by an
amount not to exceed 20% in the aggregate of such Initial Borrowing Limit as in
effect on the date of this Agreement, subject to the consent of the Initial
Majority DIP Lenders.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which banks in the State of New York are required or permitted to
close (and, for a Letter of Credit, other than a day on which the Fronting Bank
issuing such Letter of Credit is closed); provided, however, that when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits on the
London interbank market.
"Capital Expenditures", with respect to each Borrower Group, shall have
the meaning set forth in the Covenant Addendum.
6
"Capitalized Lease" shall mean, as applied to any Person, any lease of
property by such Person as lessee that would be capitalized on a balance sheet
of such Person prepared in accordance with GAAP.
"Capital Stock" shall mean any and all shares, interests,
participations or other equivalents (however designated) of capital stock of a
corporation, any and all equivalent ownership interests in a Person (other than
a corporation) and any and all warrants or options to purchase any of the
foregoing.
"Carve-Out" shall mean (i) all fees required to be paid to the Clerk of
the Bankruptcy Court and to the Office of the United States Trustee under
Section 1930(a) of title 28 of the United States Code and (ii) an amount not
exceeding $15,000,000 in the aggregate with respect to all Loan Parties, which
amount may be used after the occurrence and during the continuance of an Event
of Default, to pay fees or expenses incurred by Loan Parties and any Committee
in respect of (A) allowances of compensation for services rendered or
reimbursement or expenses awarded by the Bankruptcy Court to the professionals
duly retained on behalf of the Loan Parties or any Committee pursuant to an
order of the Bankruptcy Court and (B) the reimbursement of expenses allowed by
the Bankruptcy Court incurred by Committee members in the performance of their
duties (but excluding fees and expenses of third-party professionals employed by
such members), and of which amount up to $500,000 may be applied towards the
reasonable fees and disbursements of a Chapter 7 Trustee in any liquidation of a
Loan Party pursuant to Chapter 7 of the Bankruptcy Court, pursuant to Section
726 of the Bankruptcy Code; provided, however, that such dollar limitation on
fees and expenses shall not be reduced by the amount of any compensation and
reimbursement of expenses paid prior to the occurrence of an Event of Default in
respect of which the Carve-Out is invoked or any fees, expenses, indemnities or
other amounts paid to the Agents, any Fronting Bank or any DIP Lender and their
respective attorneys and agents under any Loan Document or otherwise; and
provided further that nothing herein shall be construed to impair the ability of
any party to object to any of the fees, expenses, reimbursement or compensation
described in clauses (A) and (B) above and that any cash in any Letter of Credit
Account and any other Collateral specified in the Orders as not being subject to
the Carve-Out shall not be subject to the Carve-Out.
"Cases" shall mean the Cases under chapter 11 of the Bankruptcy Code of
each Loan Party pending in the Bankruptcy Court.
"Cash Management Order" shall mean an order of the Bankruptcy Court in
substantially the form of Exhibit F.
"Cash Management Protocol" shall mean the Cash Management Protocol
attached to this Agreement.
7
A "Cash Management Separation" shall have occurred with respect to any
Loan Party if such Loan Party and each other Loan Party in the Borrower Group to
which such Loan Party belongs shall have terminated their participation in the
cash management system of the Parent Group on terms and conditions reasonably
satisfactory to the Initial Majority DIP Lenders (which terms will include, in
any event, the fact that there shall be no outstanding Permitted Inter-Group
Advances owed by any Loan Parties that belong to such Borrower Group, payment of
such Permitted Inter-Group Advances has not been provided for in a manner
reasonably satisfactory to the Initial Majority DIP Lenders).
"Change of Control" shall mean and be deemed to have occurred upon the
occurrence of any of the following events: (i) any Person or "group" (within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, and
regulations promulgated thereunder) shall have acquired beneficial ownership of
more than 35% of the outstanding shares of Voting Stock of the Parent (it being
understood that the formation of the Official Equity Committee comprised of
shareholders of the Parent and the activities of such committee acting in its
official capacity and pursuant to Section 1103 of the Bankruptcy Code shall not
be deemed to constitute a "Change of Control" pursuant to this clause (i)), (ii)
the board of directors of the Parent shall cease to consist of a majority of
Continuing Directors of the Parent, (iii) any Loan Party shall cease to be
wholly-owned, directly or indirectly, by the Parent (except as a result of a
transaction permitted by Section 6.02 or 6.11 hereof) or, with respect to any
Loan Party that is not wholly-owned by the Parent on the date hereof, the Parent
shall have a lesser percentage ownership than exists in such Loan Party on the
date hereof, (iv) each Guarantor (other than a Holding Company Guarantor) shall
cease to be wholly-owned, directly or indirectly, by the Borrower in the
Borrower Group to which such Guarantor belongs (except as a result of a
transaction permitted by Section 6.02 or 6.11 hereof) or, with respect to any
such Guarantor that is not wholly-owned by such Borrower on the date hereof,
such Borrower shall have a lesser percentage ownership than exists in such
Guarantor on the date hereof, (v) any Loan Party (other than the Parent or a
Holding Company Guarantor) shall hold any Equity Interests of a Holding Company
Guarantor. "Voting Stock" shall mean shares of Capital Stock entitled to vote
generally in the election of directors, and "Continuing Directors" shall mean
(x) the directors of the Parent on the Closing Date, (y) when appointed, either
or both of Anthony Kronman and Rod Cornelius and (z) each other director, if, in
each case, such other director's nomination for election to the board of
directors of the Parent is recommended or effected by at least a majority of the
then Continuing Directors. For purposes of clause (i) in the first sentence of
this definition, the terms "Person" and "group" shall not include any voting
trust or other Person to which Voting Stock is transferred as provided in the
Agreement (other than the original transferors of such stock into such voting
trust), dated as of May 23, 2002 (the "Settlement Agreement"), by and between
the Parent and John Rigas, Tim Rigas, James Rigas, Michael Rigas and the
entitites directly or indirectly owned thereby or any agreement entered into by
the Parent pursuant thereto.
8
"Class" when used in respect of any Loan or Borrowing or Letter of
Credit shall refer to whether such Loan, or each Loan comprising such Borrowing,
or such Letter of Credit, is a Tranche A Loan or a Tranche B Loan or a Tranche A
Letter of Credit or a Tranche B Letter of Credit.
"Class Percentage" shall mean at any time, with respect to each DIP
Lender, the percentage obtained by dividing (i) if such DIP Lender is a Tranche
A DIP Lender, its Tranche A Commitment at such time by the Total Tranche A
Commitment at such time and (ii) if such DIP Lender is a Tranche B DIP Lender,
its Tranche B Credit-Linked Deposit Amount at such time by the Total Tranche B
Credit-Linked Deposit Amount at such time.
"Closing Date" shall mean the date on which this Agreement has been
executed and the conditions precedent set forth in Section 4.01 have been
satisfied or waived, which date shall occur promptly upon entry of the Final
Order, but not later than 15 days following such date.
"Co-Documentation Agents" shall mean each of The Bank of Nova Scotia,
Fleet National Bank, Bank of America, N.A. and General Electric Capital
Corporation, and their respective successors in such capacity.
"Co-Lead Arrangers" shall mean each of JPMSI and SSB, in its capacity
as Joint Bookrunner and Co-Lead Arranger under the Loan Documents, and their
respective successors in such capacity.
"Co-Syndication Agent" shall mean Wachovia Bank, N.A. in its capacity
as co-syndication agent under the Loan Documents, and its successors in such
capacity.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean the Collateral as defined in the Amended and
Restated Security and Pledge Agreement and all other collateral given, pursuant
to orders of the Bankruptcy Court or otherwise, as security for or in connection
with any of the Obligations.
"Collateral Agent" shall mean CUSA in its capacity as collateral agent
under the Loan Documents, and its successors in such capacity.
"Commitment Fee" shall have the meaning set forth in Section 2.21.
"Commitment Fee Rate" shall mean, at any date, the rate per annum set
forth below in the applicable row based upon the Utilization that exists on such
date:
9
- -------------------------------------------------- ---------------
Utilization Rate
- -------------------------------------------------- ---------------
Utilization <33.3% 1.0%
Utilization > or = 33.3% but < or = 66.6% 0.75%
Utilization > 66.6% 0.50%
- -------------------------------------------------- ---------------
For purposes of this definition, "Utilization" shall mean, at any date,
the percentage equivalent of a fraction (i) the numerator of which is the
aggregate Tranche A Outstanding Exposure with respect to all Borrowers and (ii)
the denominator of which is the Total Tranche A Commitments, in each case, at
such date.
"Committee" shall mean any statutory committee appointed in the Cases.
"Concentration Account" shall have the meaning set forth in Section
5.12.
"Confidential Information" shall mean all material non-public
information received from the Loan Parties relating to any Loan Party or their
respective businesses, other than any such information that is available to any
Agent or any DIP Lender on a non-confidential basis prior to disclosure by the
Loan Parties; provided that, in the case of information received from any Loan
Party after the date hereof, such information is clearly identified in writing
at the time of delivery as confidential.
"Consummation Date" shall mean the date of the substantial consummation
(as defined in Section 1101(2) of the Bankruptcy Code and which, for purposes of
this Agreement, shall be no later than the effective date) of a Reorganization
Plan of any Loan Party that is confirmed pursuant to an order of the Bankruptcy
Court in the Cases.
"Contingent Secured Obligations" shall have the meaning set forth in
the Amended and Restated Security and Pledge Agreement.
"Covenant Addendum" means an addendum to this Agreement executed by the
Borrowers and the Initial Majority DIP Lenders and setting forth (i) the
financial covenants contemplated by Sections 6.04 and 6.05 and related
definitions, as agreed upon between the Borrowers and the Initial Majority DIP
Lenders and (ii) such other additional agreements and additional undertakings as
the Borrowers and the Initial Majority DIP Lenders shall mutually agree upon.
"Covenant Addendum Date" shall mean the date of execution of the
Covenant Addendum.
"Credit Event" shall mean the making of any Loan or the issuance of any
Letter of Credit.
10
"Current SEC Reports" means each Current Report on Form 8-K filed by
the Parent with the Securities and Exchange Commission on or after March 28,
2002 and prior to the date of this Agreement.
"CUSA" shall mean Citicorp USA, Inc. and its successors.
"Default" shall mean any Event of Default or any event which upon
notice or lapse of time or both would constitute an Event of Default.
"DIP Lender" shall mean any Tranche A DIP Lender or any Tranche B DIP
Lender.
"DIP Lender Affiliate" shall mean, (a) with respect to any DIP Lender,
(i) an Affiliate of such DIP Lender or (ii) any entity (whether a corporation,
partnership, trust or otherwise) that is engaged in making, purchasing, holding
or otherwise investing in bank loans and similar extensions of credit in the
ordinary course of its business and is administered or managed by a DIP Lender
or an Affiliate of such DIP Lender and (b) with respect to any DIP Lender that
is a fund which invests in bank loans and similar extensions of credit, any
other fund that invests in bank loans and similar extensions of credit and is
managed by the same investment advisor as such DIP Lender or by an Affiliate of
such investment advisor.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiary" means any direct or indirect Subsidiary of any
Loan Party now or hereafter created and that is organized under the laws of the
United States of America or any state or territory thereof.
"EBITDA", with respect to each Borrower Group, shall have the meaning
set forth in the Covenant Addendum.
"Eligible Assignee" shall mean (i) a commercial bank having total
assets in excess of $1,000,000,000; (ii) a finance company, insurance company or
other financial institution or fund, in each case acceptable to the Co-Lead
Arrangers, which in the ordinary course of business extends credit of the type
contemplated herein or buys and/or invests in commercial loans and has total
assets in excess of $200,000,000 and whose becoming an assignee would not
constitute a prohibited transaction under Section 4975 of ERISA; (iii) a DIP
Lender Affiliate; and (iv) any other financial institution satisfactory to the
Borrowers (whose approval shall not be unreasonably withheld) and the Co-Lead
Arrangers.
"Environmental Lien" shall mean a Lien in favor of any Governmental
Authority for (i) any liability under federal or state environmental laws or
regulations or
11
(ii) damages arising from or costs incurred by such Governmental Authority in
responding, pursuant to applicable Federal or State environmental laws or
regulations, to a release or threatened release of a hazardous or toxic waste,
substance or constituent, or other substance into the environment.
"Equity Interests" shall mean (i) shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person or (ii) any
warrants, options or other rights to acquire such shares or interests.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" shall mean, with respect to any entity, any trade or
business (whether or not incorporated) that is under common control with such
entity within the meaning of Section 4.14(b) or (c) of the Code and the
regulations promulgated and rulings issued thereunder.
"Eurocurrency Liabilities" shall have the meaning assigned thereto in
Regulation D issued by the Board, as in effect from time to time.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Adjusted LIBOR Rate in accordance with the
provisions of Article 2.
"Event of Default" shall have the meaning set forth in Section 7.01.
"Excluded Property" shall mean: (a) any franchises, licenses or
equivalent rights (collectively, "Franchises") as and to the extent the granting
of a security interest in any such Franchise would result in the forfeiture,
termination, or loss of such Franchise (it being understood that "Excluded
Property" shall not include any proceeds from the sale or other disposition of
any such Franchise), (b) any Equity Interest or Investment Property (as defined
in the Amended and Restated Security and Pledge Agreement) as and to the extent
that the holder of such Equity Interest or Investment Property is prohibited or
otherwise restricted in the granting of a security interest with respect to such
Equity Interest or Investment Property, as applicable, whether by the
organizational documents relating to the entity to which such Equity Interest or
Investment Property relates, securityholders' agreement or otherwise (to the
extent any such restriction is enforceable) (it being understood that "Excluded
Property" shall not include any proceeds from the sale or other disposition of,
or any dividends or other distributions on, any such Equity Interest or
Investment Property), (c) voting Equity Interests in any Foreign Subsidiary that
12
is a direct Subsidiary of a Domestic Subsidiary, to the extent (but only to the
extent) required to prevent the Collateral from including more than 66 2/3% of
all voting Equity Interests in such Foreign Subsidiary or (d) Equity Interests
in any Foreign Subsidiary that is a direct Subsidiary of a Foreign Subsidiary;
provided, however, that any such asset described in clauses (a) or (b) shall
constitute Excluded Property if and for so long as such forfeiture, termination,
or loss would occur or such prohibition or restriction applies and, in each
case, is not overriden by order of the Bankruptcy Court.
"Existing Credit and Guaranty Agreement" shall have the meaning set
forth in the Introductory Statement.
"Existing Security and Pledge Agreement" shall mean the Security and
Pledge Agreement dated as of June 25, 2002 among the Loan Parties thereto and
Citicorp USA, Inc., as Collateral Agent.
"Exit Conditions" shall mean, with respect to any Several Loan Party,
each of the following conditions: (i) the Cash Management Separation shall have
occurred with respect to such Loan Party, (ii) all Loans outstanding to the
Borrower in the Borrower Group to which such Loan Party belongs shall have been
repaid in full, together with accrued and unpaid interest thereon, (iii) all
Letters of Credit issued for the account of such Borrower shall have expired or
been cancelled (or cash collateralized as contemplated by clause (iv) below),
(iv) all other Secured Obligations of such Loan Party and each other Loan Party
which belongs to the same Borrower Group shall have been repaid in full (or, as
to Contingent Secured Obligations, 100% cash collateralized or, in the case of
Contingent Secured Obligations with respect to Letters of Credit, 110% cash
collateralized, in each case pursuant to arrangements reasonably satisfactory to
the Administrative Agent), and (v) the Borrowing Limit of the Borrowing Group to
which such Loan Party belongs shall be permanently reduced to $0.
"Exiting Loan Party" shall mean any Several Loan Party from and after
the first date on which the Exit Conditions shall have been satisfied with
respect to such Loan Party.
"Federal Funds Effective Rate" shall mean, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) 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 on such Business Day, the average (rounded upwards, if necessary, to
the next 1/100 of 1%) of the quotations for such day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Fees" shall mean collectively the Commitment Fees, Letter of Credit
Fees and other fees referred to in Sections 2.20, 2.21 and 2.22.
13
"Final Order" shall have the meaning set forth in Section 4.03(d).
"Financial Covenant Event of Default" shall mean any Event of Default
arising under Section 7.01(c) as a result of a failure by any Borrower to comply
with Section 6.04 or Section 6.05.
"Financial Officer" shall mean, with respect to any Loan Party, the
chief financial officer, the vice president-finance, the treasurer or the
controller of such Loan Party.
"First Delivery Date" shall mean, with respect to each Borrower, the
date of delivery of the first Monthly Budget with respect to such Borrower.
"Foreign Subsidiary" shall mean any direct or indirect Subsidiary of
any Loan Party now or hereafter created and that is organized under the laws of
a jurisdiction other than the United States of America or any State thereof.
"Fronting Bank" shall mean JPMCB or any other DIP Lender, in each case
in its capacity as the issuer(s) of Letters of Credit hereunder, and its
successors in such capacity as provided for herein. A Fronting Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by an
Affiliate of such Fronting Bank, in which case the term "Fronting Bank" shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate.
"GAAP" shall mean generally accepted accounting principles applied in
accordance with Section 1.02.
"Governmental Authority" shall mean any Federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality or any court, in each case whether of the United States or
foreign.
"Guaranteed Obligations" shall mean (i) with respect to each Joint and
Several Guarantor, all Obligations of any other Loan Party and (ii) with respect
to each Several Guarantor, all Obligations of any other Loan Party which belongs
to the same Borrower Group as such Several Guarantor.
"Guarantor" shall mean each Joint and Several Guarantor and each
Several Guarantor.
"Holding Company Guarantor" shall mean each Person listed in Annex B
under the heading "Holding Company Guarantors".
14
"Holding Company Specified Assets" shall have the meaning set forth in
clause (ii) of Section 2.24(a).
"Incremental Availability Date" shall mean the first date on which each
of the conditions set forth in Section 4.04 shall have been satisfied.
"Indebtedness" shall mean, at any time and with respect to any Person,
(i) all indebtedness of such Person for borrowed money, (ii) all indebtedness of
such Person for the deferred purchase price of property or services (other than
property, including inventory, and services purchased, and expense accruals and
deferred compensation items arising in the ordinary course of business), (iii)
all obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments (other than performance, surety and appeal bonds arising in
the ordinary course of business), (iv) all indebtedness of such Person 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), (v) all obligations of such Person
under leases that have been or should be, in accordance with GAAP, recorded as
capital leases, to the extent required to be so recorded, (vi) all
reimbursement, payment or similar obligations of such Person, contingent or
otherwise, under acceptance, letter of credit or similar facilities and all
obligations of such Person in respect of (x) currency swap agreements, currency
future or option contracts and other similar agreements designed to hedge
against fluctuations in foreign interest rates and (y) interest rate swap, cap
or collar agreements and interest rate future or option contracts; (vii) all
Indebtedness referred to in clauses (i) through (vi) above guaranteed directly
or indirectly by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (A) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of such Indebtedness, (B) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
such Indebtedness or to assure the holder of such Indebtedness against loss in
respect of such Indebtedness, (C) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are rendered)
or (D) otherwise to assure a creditor against loss in respect of such
Indebtedness, and (viii) all Indebtedness referred to in clauses (i) through
(vii) above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or in
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness.
"Initial Closing Date" shall mean July 2, 2002.
15
"Initial DIP Lenders" shall mean JPMCB, CUSA, Wachovia Bank, N.A., The
Bank of Nova Scotia, Fleet National Bank, Bank of America, N.A. and General
Electric Capital Corporation.
"Initial Majority DIP Lenders" shall mean, at any time, the Initial DIP
Lenders having Tranche A Commitments in excess of 66 2/3% of the Tranche A
Commitments held by the Initial DIP Lenders at such time or, if the Tranche A
Commitments have been terminated in their entirety, holding aggregate Tranche A
Outstanding Exposures of the Initial DIP Lenders with respect to all Borrowers
representing in excess of 66 2/3% of the aggregate Tranche A Outstanding
Exposures of the Initial DIP Lenders with respect to all Borrowers; provided if
at such time no Initial DIP Lenders are DIP Lenders, the "Initial Majority DIP
Lenders" shall be the Required DIP Lenders at such time.
"Insufficiency" shall mean, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities within the meaning of Section
4001(a)(18) of ERISA.
"Intellectual Property" shall have the meaning set forth in Section
5.07.
"Intellectual Property Schedule" shall have the meaning set forth in
Section 5.07.
"Intercompany Advances" shall mean any loans or advances from one Loan
Party to another Loan Party.
"Interest Payment Date" shall mean (i) as to any Eurodollar Loan, the
last day of each consecutive 30 day period running from the commencement of the
applicable Interest Period, and (ii) as to all ABR Loans, each Monthly Payment
Date and the date on which any ABR Loans are refinanced with Eurodollar Loans
pursuant to Section 2.13.
"Interest Period" shall mean, as to any Borrowing of Eurodollar Loans,
the period commencing on the date of such Borrowing (including as a result of a
refinancing of ABR Loans) or on the last day of the preceding Interest Period
applicable to such Borrowing and ending on the numerically corresponding day (or
if there is no corresponding day, the last day) in the calendar month that is
one or three months thereafter, as the relevant Borrower may elect in the
related notice delivered pursuant to Sections 2.07(b) or 2.13; provided,
however, that (i) if any Interest Period would end on a day which shall not be a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on the immediately
preceding Business Day, and (ii) no Interest Period shall end later than the
Termination Date.
"Inter-Group Debt Summary" shall have the meaning set forth in 5.01(n).
16
"Interim Order" shall have the meaning set forth in Section 4.01(b).
"Investments" shall have the meaning set forth in Section 6.10.
"Joint and Several Borrower" means the Person listed in Annex B under
the heading "Joint and Several Borrower Group" and designated as the "Borrower".
"Joint and Several Borrower Group" shall mean any Borrower Group with
respect to which the Borrower is a Joint and Several Borrower.
"Joint and Several Guarantor" shall mean (i) each Person (other than a
Joint and Several Borrower) which belongs to a Joint and Several Borrower Group
and (ii) each Holding Company Guarantor.
"Joint and Several Loan Party" shall mean (i) each Joint and Several
Borrower and (ii) each Joint and Several Guarantor.
"JPMCB" shall mean JPMorgan Chase Bank and its successors.
"JPMSI" shall mean J.P. Morgan Securities Inc. and its successors.
"Letter of Credit" shall mean any irrevocable letter of credit issued
pursuant to Section 2.02, which letter of credit shall be in such form as may be
reasonably approved from time to time by the Administrative Agent and the
applicable Fronting Bank.
"Letter of Credit Account" shall mean, with respect to any Borrower,
the account established by such Borrower under the sole and exclusive control of
the Collateral Agent maintained at the office of the Collateral Agent at 388
Greenwich Street, New York, NY 10013 designated as the "[Borrower's Name] Letter
of Credit Account" and used solely for the purposes set forth in Sections
2.04(b) and 2.14.
"Letter of Credit Fees" shall mean the fees payable in respect of
Letters of Credit pursuant to Section 2.22.
"Letter of Credit Outstandings" shall mean, at any time, with respect
to any Borrower, the sum of (i) the aggregate Tranche A Letter of Credit
Outstandings plus (ii) the aggregate Tranche B Letter of Credit Outstandings, in
each case with respect to such Borrower.
"Letter of Credit Sublimit" shall mean, at any time, with respect to
any Borrower, the lesser of (i) the amount set forth in Annex B under the column
"Letter of Credit Sublimit" opposite such Borrower's name and (ii) such
Borrower's Borrowing Limit at such time.
17
"Lien" shall mean any mortgage, deed of trust, constructive trust or
other trust, pledge, security interest, security agreement, financing statement,
consignment or bailment given for purposes of security, indenture, encumbrance,
claim, lien or charge of any kind whatsoever (including any conditional sale or
other title retention agreement or any lease in the nature thereof).
"Loan" shall mean loans made by the DIP Lenders to the Borrowers
pursuant to this Agreement.
"Loan Documents" shall mean this Agreement, the Letters of Credit, the
Amended and Restated Security and Pledge Agreement, and any other instrument or
agreement executed and delivered in connection herewith, in each case as the
same may be amended, restated, supplemented or replaced from time to time.
"Loan Party" shall mean any Borrower or any Guarantor.
"Long-Term Budget" shall have the meaning set forth in Section 5.01(l).
"Material Adverse Effect" shall mean, with respect to any Loan Party, a
material adverse effect on (i) (x) if such Loan Party is a Several Borrower or
any Several Guarantor, the business, assets, operations, prospects or condition,
financial or otherwise, of the Borrower Group to which such Several Borrower or
Several Guarantor belongs, taken as a whole and (y) if such Loan Party is a
Joint and Several Borrower, the business, assets, operations, prospects or
condition, financial or otherwise of any Borrowing Group taken as a whole, (ii)
the ability of such Loan Party or any other Loan Party that is liable with
respect to such Loan Party's Obligations under the Loan Documents to perform any
of its obligations under any Loan Documents such that it has a material adverse
effect on the ability of the Borrowing Group to which such Loan Party belongs to
perform any of its obligations under any Loan Documents or (iii) the rights of
or benefits available to any Agent, the Fronting Banks or the DIP Lenders under
any Loan Document with respect to such Loan Party or any other Loan Party that
is liable with respect to such Loan Party's Obligations under the Loan
Documents.
"Maturity Date" shall mean June 25, 2004.
"Monthly Budget" shall have the meaning set forth in Section 5.01(k).
"Monthly Payment Date" shall mean the last Business Day of each
calendar month.
"Monthly Usage Limit" shall mean, with respect to any Borrower, for any
calendar month ending on or after the 120th Day, the percentage with respect to
such Borrower set forth in the Covenant Addendum of the maximum projected
principal
18
amount of Borrowings and face amount of Letters of Credit to be used by such
Borrower as set forth in such Borrower's Monthly Budget for such calendar month.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which any Loan Party or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" shall mean a Single Employer Plan, that (i) is
maintained for employees of any Loan Party or an ERISA Affiliate and at least
one Person other than the Loan Parties and their ERISA Affiliates or (ii) was so
maintained and in respect of which any Loan Party or an ERISA Affiliate could
have liability under Section 4064 or 4069 of ERISA in the event such Plan has
been or were to be terminated.
"Net Proceeds" shall mean, with respect to any Reduction Event, (a) the
proceeds received in respect thereof including (i) in the case of a casualty,
insurance proceeds, and (ii) in the case of a condemnation or similar event,
condemnation awards and similar payments, in each case net of (b) (x) all
expenses that are directly related to (or the need for which arises as a result
of) the Reduction Event, including, but not limited to, related severance costs,
taxes payable, brokerage commissions, professional expenses and other similar
costs that are directly related to such Reduction Event (it being understood
that taxes on overall income and capital gain taxes are not directly related to
such Reduction Event) and (y) any amount of such proceeds that, upon the order
of the Bankruptcy Court, shall be required to be escrowed or otherwise set aside
for the benefit of holders of claims against such Loan Parties other than the
Obligations.
"Obligations" shall mean all obligations, now or hereafter existing,
under this Agreement and the other Loan Documents, including, but not limited
to, (a) the due and punctual payment of all principal of and interest on the
Loans and the Reimbursement Obligations, (b) the due and punctual payment of the
Fees and all other present and future, fixed or contingent, obligations of any
Loan Party to the DIP Lenders, the Fronting Banks and any Agent under the Loan
Document, (c) all obligations of the Loan Parties, now or hereafter existing,
described in clause (f) of Section 6.03 and (d) any amendments, restatements,
renewals, extensions or modifications of any of the foregoing.
"120th Day" means the 120th day after the date of the Existing Credit
and Guaranty Agreement.
"Orders" shall mean the Interim Order and the Final Order of the
Bankruptcy Court referred to in Sections 4.01(b) and 4.03(d).
"Other Taxes" shall have the meaning set forth in Section 2.19.
19
"Outstanding Exposure" shall mean, at any time, with respect to any
Borrower, the then outstanding aggregate principal amount of the Loans by all
DIP Lenders to such Borrower plus the then aggregate Letter of Credit
Outstandings.
"Outstanding Permitted Inter-Group Debt" shall mean, with respect with
any Borrower Group, at any date, the aggregate outstanding principal or face
amount of all Permitted Inter-Group Debt of such Borrower and each other Loan
Party which belongs to such Borrower's Borrower Group, as set forth in the
Inter-Group Debt Summary most recently delivered by such Borrower on or prior to
such date.
"Parent" shall mean Adelphia Communications Corporation, a Delaware
corporation, and its successors.
"Parent Group" shall mean the Parent and all of its direct and indirect
Subsidiaries.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing substantially the same functions.
"Permitted Inter-Group Advance" shall have the meaning set forth in
Section 6.10(b).
"Permitted Inter-Group Debt" shall have the meaning set forth in
Section 6.10(b).
"Permitted Inter-Group Debt Liens" shall have the meaning set forth in
Section 6.10(b).
"Permitted Inter-Group Guarantee" shall have the meaning set forth in
Section 6.10(b).
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed
by the full faith and credit of the United States of America), in each case
maturing within twelve months from the date of acquisition thereof;
(b) without limiting the provisions of paragraph (d) below,
investments in commercial paper maturing within six months from the date of
acquisition thereof and having, at such date of acquisition, a rating of at
least "A-2" or the equivalent thereof from Standard & Poor's Corporation or
of at least "P-2" or the equivalent thereof from Moody's Investors Service,
Inc.;
20
(c) investments in certificates of deposit, banker's acceptances
and time deposits (including Eurodollar time deposits) maturing within six
months from the date of acquisition thereof issued or guaranteed by or
placed with (i) any domestic office of the Administrative Agent or the bank
with whom the Borrowers and the Guarantors maintain their cash management
system, provided, that if such bank is not a DIP Lender hereunder, such
bank shall have entered into an agreement with the Administrative Agent
pursuant to which such bank shall have waived all rights of setoff and
confirmed that such bank does not have, nor shall it claim, a security
interest therein or (ii) any domestic office of any other commercial bank
of recognized standing organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus and
undivided profits of not less than $250,000,000 and is the principal
banking subsidiary of a bank holding company having a long-term unsecured
debt rating of at least "A-2" or the equivalent thereof from Standard &
Poor's Corporation or at least "P-2" or the equivalent thereof from Moody's
Investors Service, Inc.;
(d) investments in commercial paper maturing within six months
from the date of acquisition thereof and issued by (i) the holding company
of the Administrative Agent or (ii) the holding company of any other
commercial bank of recognized standing organized under the laws of the
United States of America or any State thereof that has (A) a combined
capital and surplus in excess of $250,000,000 and (B) commercial paper
rated at least "A-2" or the equivalent thereof from Standard & Poor's
Corporation or at least "P-2" or the equivalent thereof from Moody's
Investors Service, Inc.;
(e) investments in repurchase obligations with a term of not more
than seven days for underlying securities of the types described in clause
(a) above entered into with any office of a bank or trust company meeting
the qualifications specified in clause (c) above; and
(f) investments in money market funds substantially all the assets
of which are comprised of securities of the types described in clauses (a)
through (e) above.
"Permitted Liens" shall mean (i) Liens imposed by law (other than
Environmental Liens and any Lien imposed under ERISA) for taxes, assessments or
charges of any Governmental Authority for claims not yet due and payable or that
are being contested in good faith by appropriate proceedings and with respect to
which adequate reserves or other appropriate provisions are being maintained in
accordance with GAAP; (ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens (other than Environmental
Liens and any Lien imposed under ERISA) in existence on the Petition Date or
thereafter imposed by law
21
(including, without limitation, valid Liens in existence on the Petition Date
that are perfected subsequent to the Petition Date as permitted by Sections
546(b) and 362(b)(18) of the Bankruptcy Code) and created in the ordinary course
of business; (iii) Liens (other than any Lien imposed under ERISA) incurred or
deposits made in the ordinary course of business (including, without limitation,
surety bonds and appeal bonds) in connection with workers' compensation,
unemployment insurance and other types of social security benefits or to secure
the performance of tenders, bids, leases, franchise agreements and other
contracts (other than for the repayment of Indebtedness), statutory obligations
and other similar obligations incurred in the ordinary course of business or
arising as a result of progress payments under government contracts; (iv)
easements (including, without limitation, reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded) and interest of ground lessors, that do
not materially interfere with the ordinary conduct of the business of any Loan
Party or the use thereof by such Loan Party; (v) purchase money Liens (including
Capitalized Leases) upon or in any property acquired or held in the ordinary
course of business to secure the purchase price of such property or to secure
Indebtedness permitted by Section 6.03(g) solely for the purpose of financing
the acquisition of such property; (vi) extensions, renewals or replacements of
any Lien referred to in paragraphs (i) through (v) above, provided that the
principal amount of the obligation secured thereby is not increased and that any
such extension, renewal or replacement is limited to the property originally
encumbered thereby, (vii) Liens approved by the Co-Lead Arrangers in their sole
discretion as contemplated by Section 4.04(a), and (viii) Liens of utilities
incurred in the ordinary course of business on cables and other property affixed
to transmission poles pursuant to pole agreements and pole rental and similar
agreements.
"Person" shall mean any natural person, corporation, division of a
corporation, partnership, trust, joint venture, association, company, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Petition Date" shall mean June 25, 2002.
"Plan" shall mean a Single Employer Plan or a Multiemployer Plan.
"Prepayment Date" shall mean August 26, 2002, if the Final Order has
not been entered by the Bankruptcy Court prior to such date.
"Pre-Petition Facilities" shall mean each of the credit facilities
described in Annex C and "Pre-Petition Facility" means any one of them.
"Pre-Petition Lender" shall mean any lender party to a Pre-Petition
Facility, and their respective successors and assigns.
22
"Pre-Petition Liens" shall mean each of the Liens securing any of the
pre-petition Indebtedness due to the Pre-Petition Lenders under the Pre-Petition
Facilities.
"Pre-Petition Payment" shall mean a payment (by way of adequate
protection or otherwise) of principal or interest or otherwise on account of any
pre-petition Indebtedness or trade payables or other pre-petition claims against
any Loan Party.
"Reduction Event" shall mean (i) any sale, lease, transfer or other
disposition of assets of any Loan Party (other than any disposition to any other
Loan Party that belongs to the same Borrower Group), (ii) any casualty or other
insured damage to any property of any Loan Party, or any taking of any such
property under power of eminent domain or by condemnation or similar proceeding,
or any transfer of any such property in lieu of a condemnation or similar taking
thereof, (iii) the issuance by any Loan Party of any Equity Interest, or the
receipt by any Loan Party of any capital contribution, other than any such
issuance of an Equity Interest to, or receipt of any such capital contribution
from, any other Loan Party which belongs to the same Borrower Group; or (iv) the
incurrence by any Loan Party of any Indebtedness, other than Indebtedness
permitted under Section 6.03, other than any event described in any of the
foregoing clauses so long as the proceeds from any such single event (or series
of related events) do not exceed $100,000.
"Reduction Event Collateral Account" shall mean, with respect to any
Borrower, the account established by such Borrower under the sole and exclusive
control of the Collateral Agent maintained at the office of the Collateral Agent
at 388 Greenwich Street, New York, NY 10013, designated as the "[Borrower's
Name] Reduction Event Account" and used solely for the purposes set forth in
Section 2.14(a)(iv).
"Register" shall have the meaning set forth in section 10.03(d).
"Reimbursement Obligations" shall mean, with respect to each Borrower,
at any time, all obligations of such Borrower to reimburse each Fronting Bank
for amounts paid by it in respect of drawings under Letters of Credit issued by
such Fronting Bank for the account of such Borrower.
"Reorganization Plan" shall mean a plan of reorganization in any of the
Cases.
"Required DIP Lenders" shall mean, at any time, DIP Lenders having
Tranche A Commitments and representing Tranche B Credit-Linked Deposit Amounts
in an aggregate amount in excess of 50% of the Total Commitment or, if the
Tranche A Commitments and the Tranche B Credit-Linked Deposit Amounts shall have
been terminated in their entirety, holding aggregate Outstanding Exposures with
respect to all Borrowers representing in excess of 50% of the aggregate
Outstanding Exposures with respect to all Borrowers.
23
"SEC Reporting Date" means the first date after the date of
effectiveness of this Agreement on which the Parent files a Form 10-Q or Form
10-K with the Securities and Exchange Commission (regardless of whether such
filing is with respect to a period ended prior to or after the date of
effectiveness of this Agreement).
"Secured Obligations" shall have the meaning set forth in the Amended
and Restated Security and Pledge Agreement.
"Seven A Borrower Group" shall mean the Borrower Group identified as
the "Seven A Borrower Group" in Annex B.
"Several Borrower" shall mean each Person listed in Annex B as a
Borrower other than the "Joint and Several Borrower".
"Several Borrower Group" shall mean each Borrower Group with respect to
which the Borrower is a Several Borrower.
"Several Guarantor" shall mean each Person (other than a Several
Borrower) which belongs to a Several Borrower Group.
"Several Loan Party" shall mean each Several Borrower and each Several
Guarantor.
"Single Employer Plan" shall mean a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (i) is maintained for employees of any
Borrower or an ERISA Affiliate or (ii) was so maintained and in respect of which
any Borrower could have liability under Section 4069 of ERISA in the event such
Plan has been or were to be terminated.
"SSB" shall mean Salomon Smith Barney Inc. and its successors.
"Statutory Reserves" shall mean on any date the percentage (expressed
as a decimal) established by the Board and any other banking authority that is
(i) for purposes of the definition of Base CD Rate, the then stated maximum rate
of all reserves (including, but not limited to, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City, for new three month negotiable nonpersonal time
deposits in dollars of $100,000 or more or (ii) for purposes of the definition
of Adjusted LIBOR Rate, the then stated maximum rate for all reserves (including
but not limited to any emergency, supplemental or other marginal reserve
requirements) applicable to any member bank of the Federal Reserve System in
respect of Eurocurrency Liabilities (or any successor category of liabilities
under Regulation D issued by the Board, as in effect from time to time). Such
reserve percentages shall include, without limitation, those imposed pursuant to
said Regulation.
24
The Statutory Reserves shall be adjusted automatically on and as of the
effective date of any change in such percentage.
"Stop Issuance Notice" shall have the meaning set forth in Section
2.04(c).
"Subsidiary" means, with respect to any Person (herein referred to as
the "parent"), a corporation, partnership, limited liability company or other
entity (whether now existing or hereafter organized) of which shares of stock or
other ownership interest 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, limited liability company 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 the parent. Unless
otherwise qualified, all references to a "Subsidiary" or to "Subsidiaries" in
this Agreement shall refer to a Subsidiary or Subsidiaries of the Borrowers.
"Super-Majority DIP Lenders" shall have the meaning set forth in
Section 10.10(b).
"Superpriority Claim" shall mean a claim against any Loan Party in any
of the Cases that is a superpriority administrative expense claim having
priority over any or all administrative expenses and other claims of the kind
specified in, or otherwise arising or ordered under, any Sections of the
Bankruptcy Code (including, without limitation, Sections 105, 326, 328 , 330,
331, 503(b), 506(c), 507(a), 507(b), 546(c) and/or 726 thereof), whether or not
such claim or expenses may become secured by a judgment lien or other
non-consensual lien, levy or attachment.
"Surety Basket Amount" shall mean $90,000,000.
"Surety Credit Usage" shall mean, at any date, the sum of (i) the
aggregate face amount of Surety Letters of Credit outstanding on such date, (ii)
the aggregate amount of outstanding Reimbursement Obligations with respect to
Surety Letters of Credit outstanding on such date and (iii) the aggregate amount
of cash and cash equivalents subject to Liens permitted by clause (g) of Section
6.01 on such date.
"Surety Letters of Credit" shall mean any Letter of Credit issued in
support of surety or performance bonds or similar obligations.
"Syndication Agent" shall mean SSB in its capacity as Syndication Agent
under the Loan Documents, and its successors in such capacity.
"Taxes" shall have the meaning set forth in Section 2.19.
25
"Termination Date" shall mean the earliest to occur of (i) the
Prepayment Date, (ii) the Maturity Date, (iii) the Consummation Date and (iv)
the acceleration of the Loans and the termination of the Commitments in
accordance with the terms hereof; provided that in the event (x) a
Reorganization Plan for each Loan Party in a Several Borrower Group has been
"accepted" within the meaning of Section 1126 of the Bankruptcy Code by the
Pre-Petition Lenders to such Several Borrower Group as a class and (y) the date
of substantial consummation (as defined in Section 1101(2) of the Bankruptcy
Code) of such plan shall have occurred (and the date of substantial consummation
of a plan of reorganization for each Loan Party that belongs to any other then
existing Borrower Group shall not have occurred simultaneously), the
"Consummation Date" shall be deemed to have occurred only as to the Several
Borrower Group with respect to which such plan has been substantially
consummated, and not with respect to any other Borrower Groups. Upon occurrence
of the Termination Date with respect to any Borrower Group in accordance with
the immediately preceding sentence, the Termination Date shall be deemed to have
occurred with respect to all Loan Parties in such Borrowing Group for all
purposes under this Agreement and the other Loan Documents (including without
limitation Sections 2.01(a) and 2.02(a) hereof).
"Termination Event" shall mean, with respect to any Loan Party or ERISA
Affiliate (i) a "reportable event", as such term is described in Section 4043 of
ERISA and the regulations issued thereunder (other than a "reportable event" not
subject to the provision for 30-day notice to the PBGC under Section 4043 of
ERISA or such regulations and a "reportable event" under PBGC Regulation
4043.35) or an event described in Section 4068 of ERISA excluding events
described in Section 4043(c)(9) of ERISA or PBGC Regulations 4043.21 and
4043.23, or (ii) the withdrawal of any Borrower or any ERISA Affiliate from a
Multiple Employer Plan during a plan year in which it was a "substantial
employer", as such term is defined in Section 4001(c) of ERISA, or the
incurrence of liability by any Loan Party or any ERISA Affiliate under Section
4064 of ERISA upon the termination of a Multiple Employer Plan, or (iii)
providing notice of intent to terminate a Plan pursuant to Section 4041(c) of
ERISA or the treatment of a Plan amendment as a termination under Section 4041
of ERISA, or (iv) the institution of proceedings to terminate a Plan by the PBGC
under Section 4042 of ERISA or (v) any other event or condition (other than the
commencement of the Cases and the failure to have made any contribution accrued
as of the Petition Date but not paid) that would reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the imposition of any
liability under Title IV of ERISA (other than for the payment of premiums to the
PBGC).
"Total Commitment" shall mean, at any time, the sum of (i) the Total
Tranche A Commitment and (ii) the Total Tranche B Credit-Linked Deposit Amount,
in each case at such time.
26
"Total Percentage" shall mean, at any time, with respect to each DIP
Lender, the percentage obtained by dividing (x) the sum of (i) such DIP Lender's
Tranche A Commitment (if any) and Tranche B Credit-Linked Deposit Amount (if
any) by (y) the Total Commitment, in each case at such time.
"Total Tranche A Commitment" shall mean, at any time, the sum of all
the Tranche A Commitments at such time.
"Total Tranche B Credit-Linked Deposit Amount" shall mean, at any time,
the sum of all the Tranche B Credit-Linked Deposit Amounts at such time.
"Tranche A Borrowing" shall mean the making of any Tranche A Loan or
the issuance of any Tranche A Letter of Credit.
"Tranche A Commitment" shall mean, with respect to each Tranche A DIP
Lender, its commitment hereunder in the amount set forth opposite its name on
Annex A hereto, or as may subsequently be set forth in the Register from time to
time, as the same may be reduced from time to time pursuant to this Agreement.
"Tranche A DIP Lender" shall mean any lender with a Tranche A
Commitment hereunder.
"Tranche A Letter of Credit" shall have the meaning set forth in
Section 2.04(a).
"Tranche A Letter of Credit Outstandings" shall mean, at any time, with
respect to any Borrower, the sum of (i) the aggregate undrawn stated amount of
all Tranche A Letters of Credit issued for the account of such Borrower then
outstanding plus (ii) all outstanding Reimbursement Obligations under Tranche A
Letters of Credit issued for the account of such Borrower, in each case at such
time.
"Tranche A Loan" shall have the meaning set forth in Section 2.01(a).
"Tranche A Outstanding Exposure" shall mean, at any time, with respect
to any Borrower, the then outstanding aggregate principal amount of the Tranche
A Loans by all Tranche A DIP Lenders to such Borrower plus the then aggregate
Tranche A Letter of Credit Outstandings.
"Tranche B Actual Return Rate" shall have the meaning set forth in
Section 2.02(h).
27
"Tranche B Borrowing" shall mean the making of any Tranche B Loan or
the issuance of any Tranche B Letter of Credit.
"Tranche B Credit-Linked Account" shall mean, with respect to each
Tranche B DIP Lender, the account established by the Administrative Agent at
JPMorgan Chase Bank in the name of such Tranche B DIP Lender pursuant to Section
2.02(a).
"Tranche B Credit-Linked Deposit Amount" shall mean, with respect to
each Tranche B DIP Lender, an amount equal to the amount set forth opposite its
name on Annex D, or as may subsequently be set forth in the Register from time
to time, as the same may be reduced from time to time pursuant to this
Agreement.
"Tranche B DIP Lender" shall mean any financial institution or other
investor that has a corresponding Tranche B Credit-Linked Deposit Amount
hereunder.
"Tranche B Fixed Return Rate" shall have the meaning set forth in
Section 2.02(h).
"Tranche B Letter of Credit" shall have the meaning set forth in
Section 2.04(b).
"Tranche B Letter of Credit Outstandings" shall mean, at any time, with
respect to any Borrower, the sum of (i) the aggregate undrawn stated amount of
all Tranche B Letters of Credit issued for the account of such Borrower then
outstanding plus (ii) all outstanding Reimbursement Obligations under Tranche B
Letters of Credit issued for the account of such Borrower, in each case at such
time.
"Tranche B Loan" shall have the meaning set forth in Section 2.03(a).
"Tranche B Outstanding Exposure" shall mean, at any time, with respect
to any Borrower, the then outstanding aggregate principal amount of the Tranche
B Loans by all Tranche B DIP Lenders to such Borrower plus the then aggregate
Tranche B Letter of Credit Outstandings.
"Transferee" shall have the meaning set forth in Section 2.19.
"True-Up Event of Default" shall mean, with respect to any Borrower
Group, an Event of Default arising under Section 7.01(c) as a result of a
failure by any Borrower to comply with the provisions of Section 6.10(d) at any
time or date on which compliance therewith is required pursuant to the terms of
Section 6.10(d).
"Type" when used in respect of any Loan or Borrowing shall refer to the
Rate of interest by reference to which interest on such Loan or on the Loans
comprising such
28
Borrowing is determined. For purposes hereof, "Rate" shall mean the Adjusted
LIBOR Rate and the Alternate Base Rate.
"Unused Total Commitment" shall mean, at any time, the Total Commitment
minus the aggregate Outstanding Exposure with respect to all Borrowers, in each
case at such time.
"Withdrawal Liability" shall have the meaning given such term under
Part I of Subtitle E of Title IV of ERISA.
Section 1.02. Terms Generally. The definitions in Section 1.01 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. All references herein to Sections,
Exhibits and Schedules shall be deemed references to Sections of, and Exhibits
and Schedules to, this Agreement unless the context shall otherwise require.
Except as otherwise expressly provided herein, all terms of an accounting or
financial nature shall be construed in accordance with GAAP, as in effect from
time to time; provided, however, that for purposes of determining compliance
with any covenant set forth in Section 6.04 or 6.05, such terms shall be
construed in accordance with GAAP as specified in the Covenant Addendum.
ARTICLE 2.
AMOUNT AND TERMS OF CREDITS
Section 2.01. Commitments of the Tranche A DIP Lenders.
(a) Upon the terms and subject to the conditions herein set forth
(including, without limitation, the provisions of Section 2.28 and Article 4)
each Tranche A DIP Lender, severally and not jointly with the other Tranche A
DIP Lenders, agrees to make loans (each a "Tranche A Loan" and collectively, the
"Tranche A Loans") to each Borrower at any time and from time to time during the
period commencing on the date hereof and ending on the Termination Date;
provided that, after giving effect to any such Tranche A Loan, (i) the aggregate
outstanding principal amount of Tranche A Loans of such Tranche A DIP Lender
plus such Tranche A DIP Lender's participation in Tranche A Letters of Credit
(and unreimbursed draws thereunder) does not exceed such Tranche A DIP Lender's
Tranche A Commitment, (ii) the Outstanding Exposure with respect to such
Borrower does not exceed such Borrower's Borrowing Limit and (iii) the Tranche A
Outstanding Exposure with respect to all Borrowers does not exceed the Total
Tranche A Commitment. Tranche A Loans made pursuant to this subsection (a) may
be repaid and reborrowed in accordance with the provisions of this Agreement.
(b) Each Tranche A Borrowing shall be funded by the Tranche A DIP
Lenders pro rata in accordance with their respective Class Percentages;
provided, however, that
29
the failure of any Tranche A DIP Lender to make any Tranche A Loan shall not in
itself relieve the other Tranche A DIP Lenders of their obligations to lend.
Section 2.02. Tranche B Credit-Linked Accounts.
(a) Establishment of Tranche B Credit-Linked Accounts. On or prior to
the Closing Date, the Administrative Agent shall establish a Tranche B
Credit-Linked Account at JPMCB in the name of each Person that is to be a
Tranche B DIP Lender. The Administrative Agent shall establish additional
Tranche B Credit-Linked Accounts at JPMCB (subject to Section 8.10) at such
times and in the names of such assignee Tranche B DIP Lenders as shall be
required pursuant to Section 10.03(b). Amounts on deposit in each Tranche B
Credit-Linked Account shall be invested, or caused to be invested, by the
Administrative Agent as set forth in subsection (d) below, and no Person (other
than the Administrative Agent or any of its sub-agents) shall have the right to
make any withdrawals from any Tranche B Credit-Linked Deposit Account or
exercise any other right or power with respect thereto, except as expressly
provided in subsection (c) below. Without limiting the generality of the
foregoing, each party hereto acknowledges and agrees that no amount on deposit
at any time in any Tranche B Credit-Linked Account shall be the property of any
Loan Party, shall constitute "Collateral" under the Loan Documents, or shall
otherwise be available in any manner to satisfy any Obligation of any Loan Party
under the Loan Documents.
(b) Deposits in Tranche B Credit-Linked Accounts. The following amounts
will be deposited in each Tranche B Credit-Linked Account at the following
times:
(i) on the Closing Date, each Tranche B DIP Lender that is a party to
this Agreement shall deposit in its Tranche B Credit-Linked Account an amount in
Dollars equal to such Tranche B DIP Lender's Tranche B Credit-Linked Deposit
Amount. All funding obligations with respect to any Tranche B Loan and all
obligations to repay the Fronting Bank with respect to any draw paid by it under
any Tranche B Letter of Credit and not reimbursed by the applicable Borrower, in
each case of each Tranche B DIP Lender, shall be satisfied upon such Tranche B
DIP Lender's making such deposit in its Tranche B Credit-Linked Account;
(ii) on any date on which the Administrative Agent receives any payment
for the account of any Tranche B DIP Lender with respect to the principal amount
of any of its Tranche B Loans (whether pursuant to Section 2.14, 2.15, 7.01 or
otherwise), the Administrative Agent shall deposit such amount in the Tranche B
Credit-Linked Account of such Tranche B DIP Lender;
(iii) on any date on which the Administrative Agent or the Fronting
Bank receives any reimbursement payment from any Borrower with respect to
amounts withdrawn from any Tranche B Credit-Linked Account to reimburse any
Fronting Bank with respect to any payment made by it under any Tranche B Letter
of Credit, the
30
Administrative Agent or the Fronting Bank shall deposit in each Tranche B
Credit-Linked Account the portion of such reimbursement payment to be deposited
therein, in accordance with Section 2.04(h); and
(iv) concurrently with the effectiveness of any assignment by any
Tranche B DIP Lender of all or any portion of its Tranche B Credit-Linked
Deposit Amount, the Administrative Agent shall transfer into the Tranche B
Credit-Linked Account of the assignee Tranche B DIP Lender the corresponding
portion of the amount on deposit in the assignor's Tranche B Credit-Linked
Account, in accordance with Section 10.03(b).
(c) Withdrawals from and Closing of Tranche B Credit-Linked Accounts.
Amounts on deposit in each Tranche B Credit-Linked Account shall be withdrawn
and distributed (or transferred, in the case of clause (iv) below) as follows:
(i) on the date of any Tranche B Borrowing, subject to satisfaction of
the conditions applicable thereto set forth in Article 4, the Administrative
Agent shall withdraw from each Tranche B Credit-Linked Account an amount equal
to the relevant Tranche B DIP Lender's Class Percentage of such Borrowing, and
make such amount available to the relevant Borrower, as contemplated by Section
2.03(b) and in accordance with Section 2.07;
(ii) on any date on which any Fronting Bank is to be reimbursed by the
Tranche B DIP Lenders for any payment made by such Fronting Bank with respect to
a Tranche B Letter of Credit, the Administrative Agent shall withdraw from each
Tranche B Credit-Linked Account an amount equal to the relevant Tranche B DIP
Lender's Class Percentage of such unreimbursed payment, and make such amount
available to the Fronting Bank, in accordance with Section 2.04(h);
(iii) concurrently with each optional or mandatory reduction or
termination of the Tranche B Credit-Linked Deposit Amounts pursuant to Section
2.11 or 2.14, as the case may be, the Administrative Agent shall withdraw from
each Tranche B Credit-Linked Account, and pay to the relevant Tranche B DIP
Lender, an amount equal to the amount of the optional or mandatory reduction of
such Tranche B DIP Lender's Tranche B Credit-Linked Deposit Amount, in
accordance with the applicable Section;
(iv) concurrently with the effectiveness of any assignment by any
Tranche B DIP Lender of all or any portion of its Tranche B Credit-Linked
Deposit Amount, the corresponding portion of the amount on deposit in the
assignor's Tranche B Credit-Linked Account shall be transferred from the
assignor's Tranche B Credit-Linked Account to the assignee's Tranche B
Credit-Linked Account, in accordance with Section 10.03(b) and, if required by
Section 10.03(b), shall close such assignor's Tranche B Credit-Linked Account;
and
31
(v) upon the reduction of the Total Tranche B Credit-Linked Deposit
Amount to $0 and the expiration or cancellation of all outstanding Tranche B
Letters of Credit (or cash collateralization thereof at 110% pursuant to
arrangements reasonably satisfactory to the Administrative Agent), the
Administrative Agent shall withdraw from each Tranche B Credit-Linked Account,
and pay to the relevant Tranche B DIP Lender, the aggregate amount then on
deposit therein, and shall close each such Tranche B Credit-Linked Account.
(d) Investment of Amounts in Tranche B Credit-Linked Accounts. The
Administrative Agent shall invest, or cause to be invested, the amount on
deposit in the Tranche B Credit-Linked Account of each Tranche B DIP Lender so
as to earn for the account of such Tranche B DIP Lender a return thereon at a
rate per annum equal to (i) the rate for one-month LIBOR deposits as determined
by the Administrative Agent (the "Benchmark LIBOR Rate") minus (ii) 0.10%. The
Benchmark LIBOR Rate will be reset on each Business Day. Such return will be
paid by the Administrative Agent to each Tranche B DIP Lender monthly in arrears
on each Monthly Payment Date. No Loan Party shall have any obligation under or
in respect of the provisions of this Section 2.02(d).
(e) Tranche B Fixed Return Rate Indemnity. The Borrowers shall pay to
the Administrative Agent, for the account of each Tranche B DIP Lender, for each
calendar month, an amount equal to (i) the Tranche B Fixed Return Rate minus
(ii) the Tranche B Actual Return Rate, in each case with respect to such Tranche
B DIP Lender for such calendar month (but only if such amount constituting the
difference between the amounts provided for in items (i) and (ii) above is
greater than $0). Each such amount will be paid by the Borrowers to the
Administrative Agent, for the account of each Tranche B DIP Lender, on the
Monthly Payment Date for such calendar month.
(f) Excess Payments. In the event that the Tranche B Actual Return Rate
with respect to any Tranche B DIP Lender for any calendar month exceeds the
Tranche B Fixed Return Rate with respect to such Tranche B DIP Lender for such
calendar month, such excess amount shall be held in a separate sub-account of
the Tranche B Credit-Linked Account of such Tranche B DIP Lender. Amounts on
deposit in any such sub-account shall be withdrawn by the Administrative Agent
and paid to the relevant Tranche B DIP Lender in satisfaction of any amount
subsequently payable by the Borrowers to such Tranche B DIP Lender pursuant to
subsection (e) above, and the Borrowers shall not be required to make any
payment to such Tranche B DIP Lender pursuant to subsection (e) above until the
amounts on deposit in such sub-account of such Tranche B DIP Lender shall be $0.
(g) Sub-agents. The Administrative Agent may perform any and all its
duties and exercise its rights and powers contemplated by this Section 2.02 by
or through one or more sub-agents appointed by it (which may include any of its
Affiliates), and any such sub-agent shall be entitled to the benefit of all the
provisions of Article 8 of this
32
Agreement (including without limitation Section 8.06). The parties hereto
acknowledge that on or prior to the Closing Date the Administrative Agent has
engaged JPMorgan Chase Institutional Services to act as its sub-agent for
purposes of this Section 2.02, and that in such capacity JPMorgan Chase
Institutional Services shall be entitled to the benefit of all the provisions of
Article 8 of this Agreement (including without limitation Section 8.06).
(h) Definitions. For purposes of this Section 2.02, the following
defined terms shall have the following meanings:
"Tranche B Actual Return Rate" shall mean, for any calendar month, with
respect to any Tranche B DIP Lender, an amount equal (i) the aggregate amount of
payments received by such Tranche B DIP Lender from the Administrative Agent
pursuant to Section 2.02(d) plus (ii) the aggregate amount of interest payments
received by such Tranche B DIP Lender from the Borrowers pursuant to Section
2.09 plus (iii) the aggregate amount of letter of credit fees received by such
Tranche B DIP Lender from the Borrowers pursuant to Section 2.22, in each case
with respect to such calendar month.
"Tranche B Fixed Return Rate" shall mean, for any calendar month, with
respect to any Tranche B DIP Lender, an amount equal to the interest that would
have accrued on the Tranche B Credit-Linked Deposit Amount of such Tranche B DIP
Lender during such calendar month if such interest were calculated at a rate
equal to (i) the Benchmark LIBOR Rate plus (ii) a rate per annum equal to (the
Applicable Margin with respect to Eurodollar Loans - 0.25%) (on the basis of the
actual number of days elapsed over a year of 360 days).
Section 2.03. Making of Tranche B Loans.
(a) Upon the terms and subject to the conditions herein set forth
(including, without limitation, the provisions of Section 2.28 and Article 4),
each Tranche B DIP Lender, severally and not jointly with the other Tranche B
DIP Lenders, agrees to make loans (each a "Tranche B Loan" and collectively, the
"Tranche B Loans") to each Borrower at any time and from time to time during the
period commencing on the date hereof and ending on the Termination Date;
provided that, after giving effect to any such Tranche B Loan, (i) the aggregate
outstanding principal amount of Tranche B Loans of such Tranche B DIP Lender
plus such Tranche B DIP Lender's participation in Tranche B Letters of Credit
(and unreimbursed draws thereunder) does not exceed such Tranche B DIP Lender's
Tranche B Credit-Linked Deposit Amount, (ii) the Outstanding Exposure with
respect to such Borrower does not exceed such Borrower's Borrowing Limit and
(iii) the Tranche B Outstanding Exposure with respect to all Borrowers does not
exceed the Total Tranche B Credit-Linked Deposit Amount. Tranche B Loans made
pursuant to this subsection (a) may be repaid and reborrowed in accordance with
the provisions of this Agreement.
33
(b) Each Tranche B Borrowing shall be funded by the Tranche B DIP
Lenders pro rata in accordance with their respective Class Percentages, solely
from amounts on deposit in their respective Tranche B Credit-Linked Accounts.
Section 2.04. Letters of Credit.
(a) Tranche A Letters of Credit. Upon the terms and subject to the
conditions herein set forth, each Borrower may request a Fronting Bank, at any
time and from time to time after the date hereof and prior to the Termination
Date, to issue, and subject to the terms and conditions contained herein, and so
long as no Stop Issuance Notice is in effect, such Fronting Bank shall issue,
for the account of such Borrower, one or more Tranche A Letters of Credit for
the uses specified in Section 5.08(a); provided that after giving effect to such
issuance (i) the aggregate outstanding principal amount of Tranche A Loans of
such Tranche A DIP Lender plus such Tranche A DIP Lender's participation in
Tranche A Letters of Credit (and unreimbursed draws thereunder) does not exceed
such Tranche A DIP Lender's Tranche A Commitment, (ii) the Outstanding Exposure
with respect to such Borrower does not exceed such Borrower's Borrowing Limit,
(iii) the Tranche A Outstanding Exposure with respect to all Borrowers does not
exceed the Total Tranche A Commitment, (iv) the Letter of Credit Outstandings
with respect to such Borrower do not exceed such Borrower's Letter of Credit
Sublimit and (v) the Surety Credit Usage will not exceed the Surety Basket
Amount.
(b) Tranche B Letters of Credit. Upon the terms and subject to the
conditions herein set forth, each Borrower may request a Fronting Bank, at any
time and from time to time after the date hereof and prior to the Termination
Date, to issue, and subject to the terms and conditions contained herein, and so
long as no Stop Issuance Notice is in effect, such Fronting Bank shall issue,
for the account of such Borrower, one or more Tranche B Letters of Credit for
the uses specified in Section 5.08(a); provided that after giving effect to such
issuance (i) the aggregate outstanding principal amount of Tranche B Loans of
such Tranche B DIP Lender plus such Tranche B DIP Lender's participation in
Tranche B Letters of Credit (and unreimbursed draws thereunder) does not exceed
such Tranche B DIP Lender's Tranche B Credit-Linked Deposit Amount, (ii) the
Outstanding Exposure with respect to such Borrower does not exceed such
Borrower's Borrowing Limit, (iii) the Tranche B Outstanding Exposure with
respect to all Borrowers does not exceed the Total Tranche B Credit-Linked
Deposit Amount, (iv) the Letter of Credit Outstandings with respect to such
Borrower and (v) the Surety Credit Usage will not exceed the Surety Basket
Amount.
(c) If either (i) DIP Lenders holding in excess of 50% of the Total
Tranche A Commitment or (ii) DIP Lenders representing in excess of 50% of the
Total Tranche B Credit-Linked Amount determine at any time that the conditions
set forth in Section 4.03 would not be satisfied in respect of a Credit Event at
such time, then such DIP Lenders may request that the Administrative Agent issue
a "Stop Issuance Notice", and the
34
Administrative Agent shall issue such notice to each Fronting Bank. Such Stop
Issuance Notice shall be withdrawn by the relevant DIP Lenders upon a
determination by them that the circumstances giving rise thereto no longer
exist. While a Stop Issuance Notice is in effect, no Letter of Credit of the
same Class as the Class of DIP Lenders that have caused the issuance of such
Stop Issuance Notice may be issued. The relevant DIP Lenders may request
issuance of a Stop Issuance Notice only if there is a reasonable basis therefor,
and shall consider reasonably and in good faith a request from a Borrower for
withdrawal of the same on the basis that the conditions in Section 4.03 are
satisfied; provided that the Administrative Agent and the Fronting Banks may and
shall conclusively rely on any Stop Issuance Notice while it remains in effect.
(d) No Letter of Credit shall expire later than 10 days prior to the
Maturity Date. To the extent that Surety Letters of Credit are issued, each
Borrower shall obtain a separate Surety Letter of Credit in, or be liable with
respect to, an amount that is commensurate with the benefit to be received by
such Borrower as a result of the transactions supported by the surety or
performance bonds or similar obligations to be supported by such Letters of
Credit.
(e) Each Borrower shall pay to each Fronting Bank, in addition to such
other fees and charges as are specifically provided for in Section 2.22 hereof,
such fees and charges in connection with the issuance and processing of the
Letters of Credit issued by such Fronting Bank for the account of such Borrower
as are customarily imposed by such Fronting Bank from time to time in connection
with letter of credit transactions.
(f) Drafts drawn under each Letter of Credit shall be reimbursed by the
Borrower in Dollars not later than the first Business Day following the date of
draw and shall bear interest from the date of draw until the first Business Day
following the date of draw at a rate per annum equal to the Alternate Base Rate
plus the Applicable Margin and thereafter until reimbursed in full at a rate per
annum equal to the Alternate Base Rate plus the Applicable Margin plus 2%
(computed on the basis of the actual number of days elapsed over a year of 360
days). The Borrower shall effect such reimbursement (x) if such draw occurs
prior to the Termination Date applicable to such Letter of Credit, in cash or
through a Borrowing of the same Class as the Letter of Credit to which such
reimbursement obligation relates or (y) if such draw occurs on or after the
Termination Date, in cash.
(g) Immediately upon the issuance of any Letter of Credit of either
Class by any Fronting Bank, such Fronting Bank shall be deemed to have sold to
each DIP Lender of such Class other than such Fronting Bank and each such other
DIP Lender shall be deemed unconditionally and irrevocably to have purchased
from such Fronting Bank, without recourse or warranty, an undivided interest and
participation, to the extent of such DIP Lender's Class Percentage, in such
Letter of Credit, each drawing thereunder and the Obligations of the Borrower
and the Guarantors under this Agreement with respect thereto. Upon any change in
the Tranche A Commitments or the Tranche B
35
Credit-Linked Deposit Amounts pursuant to Section 10.03(b), it is hereby agreed
that with respect to all Letter of Credit Outstandings of the relevant Class,
there shall be an automatic adjustment to the participations hereby created to
reflect the new Class Percentages of the assigning and assignee DIP Lenders. Any
action taken or omitted by a Fronting Bank under or in connection with a Letter
of Credit, if taken or omitted in the absence of gross negligence or willful
misconduct, shall not create for such Fronting Bank any resulting liability to
any other DIP Lender.
(h) In the event that a Fronting Bank makes any payment under any
Letter of Credit of either Class and the Borrower shall not have reimbursed such
amount in full to such Fronting Bank pursuant to this Section, the Fronting Bank
shall promptly notify the Administrative Agent, which shall promptly notify each
DIP Lender of such Class of such failure, and each such DIP Lender shall
promptly and unconditionally pay to the Administrative Agent for the account of
such Fronting Bank the amount of such DIP Lender's Class Percentage of such
unreimbursed payment in Dollars and in same day funds. If such Fronting Bank so
notifies the Administrative Agent, and the Administrative Agent so notifies the
DIP Lenders of such Class prior to 11:00 a.m. (New York City time) on any
Business Day, then (i) if the relevant Letter of Credit is a Tranche A Letter of
Credit, each of the Tranche A DIP Lenders shall make available to such Fronting
Bank such Tranche A DIP Lender's Class Percentage of the amount of such payment
on such Business Day in same day funds and (ii) if the relevant Letter of Credit
is a Tranche B Letter of Credit, each of the Tranche B DIP Lenders hereby
irrevocably authorizes the Administrative Agent to make available to such
Fronting Bank such Tranche B DIP Lender's Class Percentage of the amount of such
payment on such Business Day in same day funds from amounts on deposit in such
Tranche B DIP Lender's Tranche B Credit-Linked Account. If and to the extent any
Tranche A DIP Lender shall not have so made its Class Percentage of the amount
of such payment available to such Fronting Bank, such Tranche A DIP Lender
agrees to pay to such Fronting Bank, forthwith on demand such amount, together
with interest thereon, for each day from such date until the date such amount is
paid to the Administrative Agent for the account of such Fronting Bank at the
Federal Funds Effective Rate. The failure of any Tranche A DIP Lender to make
available to the Fronting Bank its Class Percentage of any payment under any
Letter of Credit shall not relieve any other Tranche A DIP Lender of its
obligation hereunder to make available to the Fronting Bank its Class Percentage
of any payment under any Letter of Credit of the relevant Class on the date
required, as specified above, but no DIP Lender shall be responsible for the
failure of any Tranche A DIP Lender to make available to such Fronting Bank such
other DIP Lender's Class Percentage of any such payment. Whenever a Fronting
Bank receives a payment of a Reimbursement Obligation as to which it has
received any payments from DIP Lenders pursuant to this paragraph, such Fronting
Bank shall pay (i) if such payment is with respect to a Tranche A Letter of
Credit, to each Tranche A DIP Lender which has paid its Class Percentage
thereof, in Dollars and in same day funds, an amount equal to such DIP Lender's
Class Percentage thereof and (ii) if such payment is with respect to a Tranche B
Letter of Credit, to each Tranche B DIP Lender, by depositing into its
36
Tranche B Credit-Linked Account, in Dollars and in same day funds, an amount
equal to such DIP Lender's Class Percentage thereof.
(i) The obligations of each DIP Lender of each Class to participate in
Letters of Credit of such Class and to pay or reimburse the Fronting Bank for
such DIP Lender's Class Percentage of amounts drawn thereunder is absolute,
irrevocable and unconditional and shall not be affected by any circumstances
whatsoever (including, without limitation, the occurrence or continuation of any
Event of Default) and each such payment or reimbursement shall be made without
offset, abatement, withholding or other reduction whatsoever; provided that any
such obligations of any Tranche B DIP Lender shall be satisfied solely from
amounts on deposit in its Tranche B Credit-Linked Accounts.
Section 2.05. Issuance. Whenever a Borrower desires a Fronting Bank to
issue a Letter of Credit, it shall give to such Fronting Bank and the
Administrative Agent at least two Business Days' prior written (including
telegraphic, telex, facsimile or cable communication) notice (or such shorter
period as may be agreed upon by the Administrative Agent, such Borrower and such
Fronting Bank) specifying the date on which the proposed Letter of Credit is to
be issued (which shall be a Business Day), the stated amount of the Letter of
Credit so requested, the conditions for the drawing thereof, the expiration date
of such Letter of Credit and the name and address of the beneficiary thereof.
Section 2.06. Nature of Letter of Credit Obligations Absolute. The
obligations of the Borrower to reimburse the DIP Lenders for drawings made under
any Letter of Credit shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms of this Agreement under all circumstances,
including, without limitation: (i) any lack of validity or enforceability of any
Letter of Credit; (ii) the existence of any claim, setoff, defense or other
right that such Borrower or any Guarantor may have at any time against a
beneficiary of any Letter of Credit or against any of the DIP Lenders, whether
in connection with this Agreement, the transactions contemplated herein or any
unrelated transaction; (iii) any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; (iv) payment by a Fronting Bank of any Letter of
Credit against presentation of a demand, draft or certificate or other document
which does not comply with the terms of such Letter of Credit; (v) any other
circumstance or happening whatsoever, that is similar to any of the foregoing;
or (vi) the fact that any Event of Default shall have occurred and be
continuing.
Section 2.07. Making of Loans.
(a) Except as contemplated by Section 2.12, Loans shall be either ABR
Loans or Eurodollar Loans as the relevant Borrower may request subject to and in
accordance
37
with this Section, provided that all Loans made to a single Borrower pursuant to
the same Borrowing shall, unless otherwise specifically provided herein, be
Loans of the same Type. Each DIP Lender may fulfill its funding obligation with
respect to any Eurodollar Loan or ABR Loan by causing any lending office of such
DIP Lender to make such Loan; provided that any such use of a lending office
shall not affect the obligation of the Borrower to repay such Loan in accordance
with the terms of this Agreement. Subject to the other provisions of this
Section and the provisions of Section 2.13, Borrowings of Loans of more than one
Type may be incurred at the same time, provided that no more than ten (10)
Borrowings of Eurodollar Loans may be outstanding at any time.
(b) The relevant Borrower shall give the Administrative Agent (x) at
least three (3) Business Days' prior notice for each Borrowing of Eurodollar
Loans and (y) same day notice for each Borrowing of ABR Loans; such notice shall
be irrevocable and shall specify (x) the amount of such Borrowing (which shall
not be less than $5,000,000 or an integral multiple of $100,000 in excess
thereof in the case of Eurodollar Loans and not less than $1,000,000 or an
integral multiple of $500,000 in excess thereof in the case of ABR Loans) and
the Class of such Borrowing, (y) the date of such Borrowing (which shall be a
Business Day) and (z) the disbursement instructions for such Borrowing. Such
notice, to be effective, must be received by the Administrative Agent not later
than (1) 12:00 noon, New York City time, on the third Business Day preceding the
date on which such Borrowing is to be made, in the case of Eurodollar Loans and
(2) 10:00 A.M., New York City time, on the day such Borrowing is to be made, in
the case of ABR Loans, except as provided in the last sentence of this Section
2.07(b). Such notice shall specify whether the Borrowing then being requested is
to be a Borrowing of ABR Loans or Eurodollar Loans. If no election is made as to
the Type of Loan, such notice shall be deemed a request for Borrowing of ABR
Loans. The Administrative Agent shall promptly notify each DIP Lender of the
relevant Class of its proportionate share of such Borrowing, the date of such
Borrowing, the Type of Borrowing or Loans being requested and the Interest
Period or Interest Periods applicable thereto, as appropriate. On the borrowing
date specified in such notice, (aa) if such Borrowing is a Tranche A Borrowing,
each Tranche A DIP Lender shall make an amount equal to its Class Percentage of
the Borrowing available at the office of the Administrative Agent at 270 Park
Avenue, New York, NY 10017, no later than 12:00 noon, New York City time, in
immediately available funds, and (bb) if such Borrowing is a Tranche B
Borrowing, each Tranche B DIP Lender hereby irrevocably authorizes the
Administrative Agent to make available to the Borrower an amount on deposit in
such Tranche B DIP Lender's Tranche B Credit-Linked Deposit Account equal to
such Tranche B DIP Lender's Class Percentage of such Tranche B Borrowing (it
being understood that the funding obligation of each Tranche B DIP Lender with
respect to such Borrowing shall be required to be satisfied solely by making
such amount available, and the Borrower shall have no other recourse against
such Tranche B DIP Lender with respect to the satisfaction of such funding
obligation). The Administrative Agent shall, in the case of a Tranche A
Borrowing, upon receipt of the funds made available by the Tranche A DIP
38
Lenders to fund such Borrowing, disburse such funds in the manner specified in
the notice of borrowing delivered by the Borrower, and in the case of a Tranche
B Borrowing, disburse the relevant portions of the amounts on deposit in the
Tranche B Credit-Linked Deposit Accounts in the manner specified in the notice
of borrowing delivered by the Borrower.
Section 2.08. Repayment of Loans; Evidence of Debt.
(a) Each Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each DIP Lender the then unpaid
principal amount of each Loan made to such Borrower on the Termination Date.
(b) Each DIP Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of each Borrower to
such DIP Lender resulting from each Loan made by such DIP Lender to such
Borrower, including the amounts of principal and interest payable and paid by
such Borrower to such DIP Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Borrower, Type and Class
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
relevant Borrower to each DIP Lender hereunder and (iii) the amount of any sum
received by the Administrative Agent hereunder for the account of the DIP
Lenders in respect of the Loans and each DIP Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
DIP Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of any Borrower to repay
the Loans made to such Borrower in accordance with the terms of this Agreement.
(e) Any DIP Lender may request that Loans made by it to any Borrower be
evidenced by a promissory note of such Borrower. In such event, the relevant
Borrower shall execute and deliver to such DIP Lender a promissory note payable
to the order of such DIP Lender (or, if requested by such DIP Lender, to such
DIP Lender and its registered assigns) in the form attached hereto as Exhibit B.
Thereafter, the Loans made to such Borrower and evidenced by such promissory
note and interest thereon shall at all times (including after assignment
pursuant to Section 10.03) be represented by one or more promissory notes in
such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
39
Section 2.09. Interest on Loans.
(a) Subject to the provisions of Section 2.10, each ABR Loan shall bear
interest (computed on the basis of the actual number of days elapsed over a year
of 360 days) at a rate per annum equal to the Alternate Base Rate plus the
Applicable Margin.
(b) Subject to the provisions of Section 2.10, each Eurodollar Loan
shall bear interest (computed on the basis of the actual number of days elapsed
over a year of 360 days) at a rate per annum equal, during each Interest Period
applicable thereto, to the Adjusted LIBOR Rate for such Interest Period in
effect for such Borrowing plus the Applicable Margin.
(c) Accrued interest on all Loans shall be payable in arrears on each
Interest Payment Date applicable thereto, at maturity (whether by acceleration
or otherwise), after such maturity on demand and (with respect to Eurodollar
Loans) upon any repayment or prepayment thereof (on the amount repaid or
prepaid).
Section 2.10. Default Interest. If any Borrower or any Guarantor with
respect to such Borrower, as the case may be, shall default in the payment of
the principal of or interest on any Loan made to such Borrower or in the payment
of any other amount becoming due hereunder (including, without limitation, the
reimbursement pursuant to Section 2.04(f) of any draft drawn under a Letter of
Credit issued for the account of such Borrower), whether at stated maturity, by
acceleration or otherwise, such Borrower or such Guarantor, as the case may be,
shall on demand from time to time pay interest, to the extent permitted by law,
on such defaulted amount up to (but not including) the date of actual payment
(after as well as before judgment) at a rate per annum (computed on the basis of
the actual number of days elapsed over a year of 360 days) equal to (x) in the
case of Borrowings consisting of Eurodollar Loans, the Adjusted LIBOR Rate in
effect for such Borrowing plus the Applicable Margin plus 2%, (y) in the case of
Borrowings consisting of ABR Loans, the Alternate Base Rate in effect for such
Borrowing plus the Applicable Margin plus 2% and (z) in the case of all other
amounts, the Alternate Base Rate plus 2%.
Section 2.11. Optional Termination or Reduction of Commitment or
Borrowing Limits. (a) Upon at least two Business Days' prior written notice to
the Administrative Agent, the Borrowers may at any time in whole permanently
terminate, or from time to time in part permanently reduce, the Unused Total
Commitment. Any such reduction shall be allocated to reduce the Total Tranche A
Commitment and the Total Tranche B Credit-Linked Deposit Amount pro rata (on the
basis of aggregate amount).
(b) Each such reduction of the Tranche A Commitments and the Tranche B
Credit-Linked Deposit Amounts pursuant to subsection (a) shall be in the
principal amount of $5,000,000 or any integral multiple of $1,000,000 in excess
thereof and shall be applied pro rata (on the basis of Class Percentage) to
reduce the Tranche A
40
Commitments and the Tranche B Credit-Linked Deposit Amounts of all the DIP
Lenders of the relevant Class. Simultaneously with each such reduction or
termination of the Tranche A Commitments, the Borrowers shall pay to the
Administrative Agent for the account of each Tranche A DIP Lender the Commitment
Fee accrued on the amount of the Tranche A Commitment of such Tranche A DIP
Lender so terminated or reduced through the date thereof.
(c) Upon at least two Business Days' prior written notice to the
Administrative Agent, any Borrower may at any time in whole permanently
terminate, or from time to time in part permanently reduce, its Borrowing Limit;
provided that (i) no Borrower may reduce its Borrowing Limit to an amount below
its then Outstanding Exposure and (ii) no Joint and Several Borrower may reduce
its Borrowing Limit to $0 pursuant to this subsection (c).
(d) Each such partial reduction of any Borrowing Limit pursuant to
subsection (c) shall be in the principal amount of $1,000,000 or any integral
multiple of $500,000 in excess thereof.
Section 2.12. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two (2) Business Days prior to the commencement of any
Interest Period for a Eurodollar Loan, the Administrative Agent shall have
determined (which determination shall be conclusive and binding upon each of the
Borrowers absent manifest error) that reasonable means do not exist for
ascertaining the applicable Adjusted LIBOR Rate, the Administrative Agent shall,
as soon as practicable thereafter, give written or telegraphic notice of such
determination to each of the Borrowers and the DIP Lenders, and any request by
any Borrower for a Borrowing of Eurodollar Loans (including pursuant to a
refinancing with Eurodollar Loans) pursuant to Section 2.07 or 2.13 shall be
deemed a request for a Borrowing of ABR Loans. After such notice shall have been
given and until the circumstances giving rise to such notice no longer exist,
each request for a Borrowing of Eurodollar Loans shall be deemed to be a request
for a Borrowing of ABR Loans.
Section 2.13. Refinancing of Loans. Each Borrower shall have the right,
at any time, on three Business Days' prior irrevocable notice to the
Administrative Agent (which notice, to be effective, must be received by the
Administrative Agent not later than 1:00 p.m., New York City time, on the third
Business Day preceding the date of any refinancing), (x) to refinance (without
the satisfaction of the conditions set forth in Article 4 as a condition to such
refinancing) any outstanding Borrowing or Borrowings of Loans of one Type (or a
portion thereof) made to such Borrower with a Borrowing of Loans of the other
Type to such Borrower or (y) to continue an outstanding Borrowing of Eurodollar
Loans for an additional Interest Period, subject to the following:
(a) as a condition to the refinancing of ABR Loans with Eurodollar
Loans and to the continuation of Eurodollar Loans for an additional
Interest
41
Period, no Event of Default shall have occurred and be continuing
at the time of such refinancing (other than (x) a Financial Covenant Event
of Default with respect to a Borrower Group other than the Borrower Group
to which the Borrower that has borrowed the Loans proposed to be refinanced
belongs or (y) a True-Up Event of Default with respect to a single test
date or time with respect to a single Borrower Group other than the
Borrower Group to which the Borrower that has borrowed the Loans proposed
to be refinanced belongs);
(b) if less than a full Borrowing of Loans of either Class shall
be refinanced, such refinancing shall be made pro rata among the DIP
Lenders holding Loans of such Class in accordance with the respective
principal amounts of the Loans comprising such Borrowing held by such DIP
Lenders immediately prior to such refinancing;
(c) the aggregate principal amount of Loans being refinanced shall
be at least $1,000,000, provided that no partial refinancing of a Borrowing
of Eurodollar Loans shall result in the Eurodollar Loans remaining
outstanding pursuant to such Borrowing being less than $1,000,000 in
aggregate principal amount;
(d) each DIP Lender shall effect each refinancing by applying the
proceeds of its new Eurodollar Loan or ABR Loan, as the case may be, to its
Loan being refinanced;
(e) the Interest Period with respect to a Borrowing of Eurodollar
Loans effected by a refinancing or in respect to the Borrowing of
Eurodollar Loans being continued as Eurodollar Loans shall commence on the
date of refinancing or the expiration of the current Interest Period
applicable to such continuing Borrowing, as the case may be;
(f) a Borrowing of Eurodollar Loans may be refinanced only on the
last day of an Interest Period applicable thereto; and
(g) each request for a refinancing with a Borrowing of Eurodollar
Loans that fails to state an applicable Interest Period shall be deemed to
be a request for an Interest Period of one month.
In the event that a Borrower shall not give notice to refinance any Borrowing of
Eurodollar Loans made to such Borrower, or to continue such Borrowing as
Eurodollar Loans, or shall not be entitled to refinance or continue such
Borrowing as Eurodollar Loans, in each case as provided above, such Borrowing
shall automatically be refinanced with a Borrowing of ABR Loans at the
expiration of the then-current Interest Period. The Administrative Agent shall,
after it receives notice from any Borrower, promptly
42
give each DIP Lender notice of any refinancing, in whole or part, of any Loan
made by such DIP Lender.
Section 2.14. Reduction Events.
(a) (i) On any date of receipt of any Net Proceeds in respect of any
Reduction Event by any Several Loan Party:
(x) an aggregate amount equal to the amount of such Net Proceeds shall
be applied by the Borrower in the Several Borrower Group to which such Several
Loan Party belongs as follows (and subject to Sections 2.14(a)(iii) and
2.14(a)(iv)):
first, to repay the outstanding Loans (if any) of such Borrower,
until such Loans have been repaid in full;
second, to cash collateralize the Letters of Credit (if any)
issued for the account of such Borrower by making a deposit in its Letter
of Credit Account, until the amount of cash and cash equivalents on deposit
therein is at least equal to 110% of its Letter of Credit Outstandings; and
third, to repay pro rata (on the basis of outstanding principal
amount) any Permitted Inter-Group Debt owed or guaranteed by any Loan Party
in the Several Borrower Group to which such Several Loan Party belongs.
provided that if the Net Proceeds in respect of any Reduction Event by any
Several Loan Party are less than $1,000,000, such reduction shall be made upon
receipt of Net Proceeds by such Several Loan Party or any other Several Loan
Party which belongs to the same Several Borrower Group such that, together with
all other such proceeds received by Several Loan Parties which belong to such
Several Borrower Group and have not previously applied pursuant to this Section
2.14(a)(i)(x), aggregate Net Proceeds are equal to at least $1,000,000. Any
amount of Net Proceeds with respect to such Reduction Event held by any Loan
Party after giving effect to the repayments and cash collateralizations
described above shall remain subject to the Liens securing the Secured
Obligations of such Loan Party and shall be used by such Loan Party as permitted
by this Agreement (including Section 5.08).
(y) the Borrowing Limit of the Several Borrower which belongs to the
same Several Borrower Group as the Several Loan Party which has received such
Net Proceeds shall be reduced by an amount to be determined by the Initial
Majority DIP Lenders in their discretion after consultation with the relevant
Borrower, provided that such amount will not be less than (1) 50% (or, in the
case of the Several Borrower Group identified as the "Frontiervision Borrower
Group" on Annex B, 60%) of (2) the amount of such Net Proceeds (and, for
purposes of this clause (y), "Net Proceeds" shall exclude any amounts of
obligations secured by Liens incurred prior to the Petition Date (other
43
than Pre-Petition Liens) encumbering the assets of any Loan Party belonging to
such Several Borrower Group and recognized by the Court as valid) minus the
aggregate amount of the repayments and cash collateralizations made pursuant to
clauses first and second of paragraph (x) of this Section 2.14(a)(i), (it being
understood that nothing in this clause (y) shall limit the ability of such
Several Borrower to reduce its Borrowing Limit in accordance with Section
2.11(c)); and
(z) the Total Tranche A Commitment will be reduced by an amount equal
to the aggregate amount of the repayment of Tranche A Loans and cash
collateralizations of Tranche A Letters of Credit made pursuant to clauses first
and second of paragraph (x) of this Section 2.14(a)(i) and the Total Tranche B
Credit-Linked Deposit Amount will be reduced by an amount equal to the aggregate
amount of the repayment of Tranche B Loans and cash collateralizations of
Tranche B Letters of Credit made pursuant to clauses first and second of
paragraph (x) of this Section 2.14(a)(i).
(ii) On any date of receipt of any Net Proceeds in respect of any
Reduction Event by any Joint and Several Loan Party:
(x) an aggregate amount equal to the amount of such Net Proceeds shall
be applied by the Borrower in the Joint and Several Group to which such Joint
and Several Loan Party belongs as follows (and subject to Sections 2.14(a)(iii)
and 2.14(a)(iv):
first, to repay the outstanding Loans (if any) of such Borrower,
until such Loans have been repaid in full;
second, to cash collateralize pro rata on the Letters of Credit
(if any) issued for the account of such Borrower, by making a deposit in
its Letter of Credit Account, until the amount of cash and cash equivalents
on deposit therein is at least equal to 110% of its Letter of Credit
Outstandings;
third, to repay (on a pro rata basis) the outstanding Loans (if
any) of all other Borrowers, until such Loans have been repaid in full;
fourth, to cash collateralize pro rata the Letters of Credit (if
any) issued for the account of all other Borrowers, by making a deposit in
each Letter of Credit Account, until the amount of cash and cash
equivalents on deposit therein is at least equal to 110% of its Letter of
Credit Outstandings; and
fifth, to repay pro rata (on the basis of outstanding principal
amount) any Permitted Inter-Group Debt owed or guaranteed by any Loan
Party;
provided that if the Net Proceeds in respect of any Reduction Event by any Joint
and Several Loan Party are less than $1,000,000, such reduction shall be made
upon receipt of Net Proceeds by any Joint and Several Loan Party such that,
together with all other
44
such proceeds received by Joint and Several Loan Parties and not previously
applied pursuant to this Section 2.14(a)(ii)(x), aggregate Net Proceeds are
equal to at least $1,000,000. Any amount of Net Proceeds with respect to such
Reduction Event held by any Loan Party after giving effect to the repayments and
cash collateralizations described above shall remain subject to the Liens
securing the Secured Obligations of such Loan Party and shall be used by such
Loan Party as permitted by this Agreement (including Section 5.08).
(y) the Borrowing Limit of each of the Borrowers shall be reduced by an
amount to be determined by the Initial Majority DIP Lenders in their discretion
after consultation with the Borrowers; and
(z) the Total Tranche A Commitment will be reduced by an amount equal
to the aggregate amount of the repayment of Tranche A Loans and cash
collateralizations of Tranche A Letters of Credit made pursuant to clauses first
and second of paragraph (x) of this Section 2.14(a)(ii) and the Total Tranche B
Credit-Linked Deposit Amount will be reduced by an amount equal to the aggregate
amount of the repayment of Tranche B Loans and cash collateralizations of
Tranche B Letters of Credit made pursuant to clauses first and second of
paragraph (x) of this Section 2.14(a)(ii).
(iii) Subject to Section 2.14(a)(iv), each repayment of any Loans
and each cash collateralization of Letters of Credit pursuant to Sections
2.14(a)(i)(x) or 2.14(a)(ii)(x) shall be applied to repay pro rata (on the
basis of outstanding amounts) Loans of each Class and cash collateralize
Letters of Credit of each Class.
(iv) Each optional and mandatory prepayment (or cash
collateralization) of the Tranche B Loans and the Tranche B Letter of
Credit Obligations (each, a "Tranche B Unscheduled Prepayment") shall be
subject to the following provisions of this subsection:
(x) At least three Business Days before any date (an
"Unscheduled Prepayment Date") on which any Tranche B Unscheduled
Prepayment would, but for the provisions of this subsection,
otherwise be made pursuant to this Section, the Borrower shall
deliver a notice (a "Tranche B Notice") to the Administrative
Agent, which shall (x) state that the Borrower intends to make a
Tranche B Unscheduled Prepayment, (y) state the amount thereof and
(z) contain an offer to prepay and/or cash collateralize, as the
case may be, on a specified date (a "Deferred Tranche B Prepayment
Date"), which shall be the tenth Business Day after the date of
the Borrower's Tranche B Notice (or such other date as shall be
mutually agreed upon between the Borrower and the Administrative
Agent), the Tranche B Loans and/or Tranche B Letters of Credit, as
applicable, of each Tranche B DIP Lender by a principal
45
amount equal to its Class Percentage of such Tranche B Unscheduled
Prepayment. Each Borrower's Tranche B Notice shall be given by
telecopy, confirmed by hand delivery or overnight courier service,
in each case addressed to the Administrative Agent as provided in
Section 10.01. Promptly after it receives any Borrower's Tranche B
Notice, the Administrative Agent shall deliver a notice complying
with clause (v) of this subsection (a "Tranche B Prepayment
Notice") to each Tranche B DIP Lender. Such Tranche B Unscheduled
Prepayment shall not occur on such Unscheduled Prepayment Date,
but shall instead be deferred to the Deferred Tranche B Prepayment
Date described above.
(y) Each Tranche B Prepayment Notice shall be in writing,
shall refer to this Section and shall (1) notify the relevant
Tranche B DIP Lender of the contents and the date of the
Borrower's Tranche B Notice, (2) state the principal amount that
such Tranche B DIP Lender will be entitled to receive if it
accepts the prepayment described therein, (3) request such Tranche
B DIP Lender to notify the Borrower and the Administrative Agent
in writing, at least three Business Days before the Deferred
Tranche B Prepayment Date, as to whether such Tranche B DIP Lender
accepts or rejects (in each case, in whole and not in part) such
offer of prepayment and (4) inform such Tranche B DIP Lender that,
if it fails to reject such offer in writing at least three
Business Days before such Deferred Tranche B Prepayment Date, it
will be deemed to accept such offer; provided that no Tranche B
DIP Lender shall be entitled to reject any offer of prepayment as
contemplated in clause (3) of this Section 2.14(a)(iv)(y) if,
after application of such prepayment assuming that no such right
of rejection is applicable thereto, (i) all Loans outstanding to
each of the Borrowers would be repaid in full, together with
accrued and unpaid interest thereon, (ii) all Letters of Credit
issued for the account of each of the Borrowers shall have expired
or would be cash collateralized as contemplated by clause (iii)
below, (iii) all other Secured Obligations of each Loan Party
would be repaid in full (or, as to Contingent Secured Obligations,
100% cash collateralized or, in the case of Contingent Secured
Obligations with respect to Letters of Credit, 110% cash
collateralized), and (iv) the Borrowing Limit of each Borrowing
Group would be permanently reduced to $0.
(z) On each Deferred Tranche B Prepayment Date, the
Administrative Agent shall instruct the Collateral Agent to
withdraw from the relevant Loan Party's Reduction Event Collateral
Account the principal amount that was deposited therein pursuant
to Section 2.14(a)(v) below and deferred to such date pursuant to
this subsection. The Administrative Agent shall apply such amount
to prepay the Tranche B Loans and/cash collateralize Tranche B
Letters of Credit of each
46
Tranche B DIP Lender that shall have accepted (or been deemed to
have accepted) such prepayment (each, an "Accepting Tranche B DIP
Lender") by an amount equal to its Class Pecentage of the relevant
Tranche B Unscheduled Prepayment and shall apply the balance of
the deferred prepayment amount to prepay and/or cash
collateralize, as the case may be, the then outstanding Tranche A
Loans and Tranche A Letters of Credit ratably.
(v) Promptly after any Net Proceeds are received by or on behalf
of any Loan Party in respect of any Reduction Event, the Borrower shall
deposit a portion of such Net Proceeds equal to the aggregate amount of the
repayment of Tranche B Loans and cash collateralizations of Tranche B
Letters of Credit to be made pursuant to clauses first and second of
paragraph (x) of each of Section 2.14(a)(i) and Section 2.14(a)(ii) (as
applicable) in its Reduction Event Collateral Account to be held until
applied to make the related prepayments and cash collateralization. If any
portion of any optional or mandatory Tranche B Unscheduled Prepayment is
deferred pursuant to this Section, the deferred amount shall be held by the
Borrower in its Reduction Event Collateral Account and withdrawn from such
Reduction Event Collateral Account by the Collateral Agent at the
instruction of the Administrative Agent on the related Deferred Tranche B
Prepayment Date and applied to make the prepayment and cash
collateralizations to be made on such date.
(vi) If on any date Loan Parties in more than one Borrower Group
(one of which is a Joint and Several Borrower Group) each receive Net
Proceeds in respect of any Reduction Event, the repayments and cash
collateralizations required to be made as a result of the receipt of Net
Proceeds by a Joint and Several Loan Party will be made first and
repayments and cash collateralizations by such Joint and Several Loan Party
shall be limited to the amount of Net Proceeds received by such Joint and
Several Loan Party, and then the repayments and cash collateralizations
required to be made as a result of the receipt of Net Proceeds by Loan
Parties in a Several Borrower Group will be made (in such order as the
Administrative Agent shall determine in its discretion).
(b) Upon the Termination Date, each of the Total Tranche A Commitment
and the Total Tranche B Credit-Linked Deposit Amount shall be terminated in full
and each Borrower shall pay its Loans in full and cash collateralize its then
outstanding Letters of Credit in an amount equal to 110% of its Letter of Credit
Outstandings; provided that if the Termination Date has not occurred with
respect to all Borrower Groups, (i) neither the Total Tranche A Commitment nor
the Total Tranche B Credit-Linked Deposit Amount shall be terminated, (ii) no
Borrower other than the Borrower or Borrowers that belong to the Borrower Groups
with respect to which the Termination Date has occurred shall be required to pay
its Loans in full and cash collateralize its then outstanding Letters of Credit
in an amount equal to 110% of its Letter of Credit Outstandings and
48
(iii) the Borrower or Borrowers that belong in the Borrower Groups with respect
to which the Termination Date has occurred shall satisfy all the Exit Conditions
no later than the Termination Date with respect to them.
(c) The relevant Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment, cash collateralization or
reduction under this Section not later than 12:30 p.m., New York City time, six
(6) Business Days before the date of prepayment, cash collateralization or
reduction (to the extent practicable in the case of a Reduction Event), as the
case may be (or, solely if such prepayment will be a prepayment of ABR Loans
only, no later than 12:30 p.m., New York City time, on the date of such
prepayment). Each such notice shall be irrevocable and shall specify the
prepayment or cash collateralization date and, if applicable, each Borrowing or
portion thereof to be prepaid. Promptly following receipt of any such notice,
the Administrative Agent shall advise the Fronting Banks and the DIP Lenders of
the contents thereof.
Section 2.15. Optional Prepayment of Loans; Reimbursement of DIP
Lenders.
(a) The Borrowers shall have the right at any time and from time to
time to prepay any of their respective Loans, in whole or in part, without
penalty or premium (but subject to the provisions of Sections 2.15(b) and
2.15(c)) (x) with respect to Eurodollar Loans, upon at least three (3) Business
Days' prior written, telex or facsimile notice to the Administrative Agent and
(y) with respect to ABR Loans on the same Business Day if written, telex or
facsimile notice is received by the Administrative Agent prior to 1:00 p.m., New
York City time, and thereafter upon at least one Business Day's prior written,
telex or facsimile notice to the Administrative Agent; provided, however, that
(i) each such partial prepayment shall be in integral multiples of $5,000,000
and, in any event not less than $10,000,000 and (ii) no prepayment of Eurodollar
Loans shall be permitted pursuant to this Section 2.15(a) other than on the last
day of an Interest Period applicable thereto unless such prepayment is
accompanied by the payment of the amounts described in clause (i) of the first
sentence of Section 2.15(b), (iii) no partial prepayment of a Borrowing of
Eurodollar Loans shall result in the aggregate principal amount of the
Eurodollar Loans remaining outstanding pursuant to such Borrowing being less
than $5,000,000 and (iv) no Borrower may prepay at any time any of its Tranche B
Loans pursuant to this Section if any of its Tranche A Loans are outstanding at
such time. Each notice of prepayment shall (x) specify the prepayment date, the
Borrower making the prepayment and the principal amount of the Loans to be
prepaid and, in the case of Eurodollar Loans, the Borrowing or Borrowings
pursuant to which made, (y) be irrevocable and (z) commit the relevant Borrower
to prepay such Loans by the amount and on the date stated therein, subject to
the provisions of Section 2.14(a)(iv). The Administrative Agent shall, promptly
after receiving notice from a Borrower hereunder, notify each affected DIP
Lender of the principal amount of the Loans held by such DIP Lender that are to
be prepaid, the prepayment date and the manner of application of the prepayment.
49
(b) The relevant Borrower shall reimburse each DIP Lender on demand for
any loss incurred or to be incurred by it in the reemployment of the funds
released (i) resulting from any prepayment (for any reason whatsoever,
including, without limitation, refinancing with ABR Loans) of any Eurodollar
Loan required or permitted under this Agreement, if such Loan is prepaid other
than on the last day of the Interest Period for such Loan (including, without
limitation, any such prepayment in connection with the syndication of the credit
facility evidenced by this Agreement) or (ii) in the event that after such
Borrower delivers a notice of borrowing under Section 2.07 in respect of
Eurodollar Loans, such Loans are not made on the first day of the Interest
Period specified in such notice of borrowing for any reason other than a breach
by such DIP Lender of its obligations hereunder. Such loss shall be the amount
as reasonably determined by such DIP Lender as the excess, if any, of (A) the
amount of interest which would have accrued to such DIP Lender on the amount so
paid or not borrowed at a rate of interest equal to the Adjusted LIBOR Rate for
such Loan, for the period from the date of such payment or failure to borrow to
the last day (x) in the case of a payment or refinancing with ABR Loans other
than on the last day of the Interest Period for such Loan, of the then current
Interest Period for such Loan, or (y) in the case of such failure to borrow, of
the Interest Period for such Loan which would have commenced on the date of such
failure to borrow, over (B) the amount of interest which would have accrued to
such DIP Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the London interbank market. Each DIP
Lender shall deliver to the relevant Borrower from time to time one or more
certificates setting forth the amount of such loss as determined by such DIP
Lender.
(c) In the event a Borrower fails to prepay any Loan on the date
specified in any prepayment notice delivered pursuant to Section 2.15(a), such
Borrower on demand by any DIP Lender shall pay to the Administrative Agent for
the account of such DIP Lender any amounts required to compensate such DIP
Lender for any loss incurred by such DIP Lender as a result of such failure to
prepay, including, without limitation, any loss, cost or expenses incurred by
reason of the acquisition of deposits or other funds by such DIP Lender to
fulfill deposit obligations incurred in anticipation of such prepayment, but
without duplication of any amounts paid under Section 2.15(b). Each DIP Lender
shall deliver to the relevant Borrower from time to time one or more
certificates setting forth the amount of such loss as determined by such DIP
Lender.
(d) Any partial prepayment of Loans by a Borrower pursuant to Section
2.14 or 2.15 shall be applied to such Borrower's Loans as specified by such
Borrower (subject to clause (iv) of Section 2.15(a)) or, in the absence of such
specification, as determined by the Administrative Agent, and shall be applied
to repay ratably the Loan of the several DIP Lenders included within such
Borrowing or Borrowings, provided that, in the event such a partial prepayment
is applied as determined by the Administrative Agent (in the absence of a
specification by the relevant Borrower), no Eurodollar Loans shall be prepaid
pursuant to Section 2.14 to the extent that such Loan has an Interest Period
49
ending after the required date of prepayment unless and until all outstanding
ABR Loans and Eurodollar Loans with Interest Periods ending on such date have
been repaid in full.
(e) The obligations of the Loan Parties under this Section 2.15 shall
survive any termination of this Agreement.
Section 2.16. Reserve Requirements; Change in Circumstances.
(a) Notwithstanding any other provision herein, if after the date of
this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation of payments to any DIP Lender
of the principal of or interest on any Eurodollar Loan made by such DIP Lender
or any fees or other amounts payable hereunder (other than changes in respect of
Taxes, Other Taxes and taxes imposed on, or measured by, the net income or
overall gross receipts or franchise taxes of such DIP Lender by the jurisdiction
in which such DIP Lender has its principal office or in which the applicable
lending office for such Eurodollar Loan is located or by any political
subdivision or taxing authority therein, or by any other jurisdiction or by any
political subdivision or taxing authority therein other than a jurisdiction in
which such DIP Lender would not be subject to tax but for the execution and
performance of this Agreement), or shall impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of, deposits with
or for the account of or credit extended by such DIP Lender (except any such
reserve requirement that is reflected in the Adjusted LIBOR Rate) or shall
impose on such DIP Lender or the London interbank market any other condition
affecting this Agreement or the Eurodollar Loans made by such DIP Lender, and
the result of any of the foregoing shall be to increase the cost to such DIP
Lender of making or maintaining any Eurodollar Loan or to reduce the amount of
any sum received or receivable by such DIP Lender hereunder (whether of
principal, interest or otherwise) by an amount deemed by such DIP Lender to be
material, then the relevant Borrower will pay to such DIP Lender in accordance
with paragraph (c) below such additional amount or amounts as will compensate
such DIP Lender for such additional costs incurred or reduction suffered.
(b) If any DIP Lender shall have determined that the adoption or
effectiveness after the date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any governmental
authority, central bank or comparable agency charged with the interpretation of
administration thereof, or compliance by any DIP Lender (or any lending office
of such DIP Lender) or any DIP Lender's holding company with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such DIP Lender's capital or on the
capital of such DIP Lender's holding company, if any, as a consequence of this
Agreement, the Loans made
50
by such DIP Lender pursuant hereto, such DIP Lender's Commitment hereunder or
the issuance of, or participation in, any Letter of Credit by such DIP Lender to
a level below that which such DIP Lender or such DIP Lender's holding company
could have achieved but for such adoption, change or compliance (taking into
account DIP Lender's policies and the policies of such DIP Lender's holding
company with respect to capital adequacy) by an amount deemed by such DIP Lender
to be material, then from time to time the relevant Borrower shall pay to such
DIP Lender such additional amount or amounts as will compensate such DIP Lender
or such DIP Lender's holding company for any such reduction suffered.
(c) A certificate of each DIP Lender setting forth such amount or
amounts as shall be necessary to compensate such DIP Lender or its holding
company as specified in paragraph (a) or (b) above, as the case may be, shall be
delivered to the relevant Borrower and shall be conclusive absent manifest
error. The relevant Borrower shall pay each DIP Lender the amount shown as due
on any such certificate delivered to it within ten (10) days after its receipt
of the same. Any DIP Lender receiving any such payment shall promptly make a
refund thereof to the relevant Borrower if the law, regulation, guideline or
change in circumstances giving rise to such payment is subsequently deemed or
held to be invalid or inapplicable.
(d) Failure on the part of any DIP Lender to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital with respect to any period shall not constitute a waiver of
such DIP Lender's right to demand compensation with respect to such period or
any other period. The protection of this Section shall be available to each DIP
Lender regardless of any possible contention of the invalidity or
inapplicability of the law, rule, regulation, guideline or other change or
condition which shall have occurred or been imposed.
Section 2.17. Change in Legality.
(a) Notwithstanding anything to the contrary contained elsewhere in
this Agreement, if (x) any change after the date of this Agreement in any law or
regulation or in the interpretation thereof by any Governmental Authority
charged with the administration thereof shall make it unlawful for a DIP Lender
to make or maintain a Eurodollar Loan or to give effect to its obligations as
contemplated hereby with respect to a Eurodollar Loan or (y) at any time any DIP
Lender determines that the making or continuance of any of its Eurodollar Loans
has become impracticable as a result of a contingency occurring after the date
hereof that adversely affect the London interbank market or the position of such
DIP Lender in such market, then, by written notice to the Borrower, such DIP
Lender may (i) declare that Eurodollar Loans will not thereafter be made by such
DIP Lender hereunder, whereupon any request by a Borrower for a Eurodollar
Borrowing shall, as to such DIP Lender only, be deemed a request for an ABR Loan
unless such declaration shall be subsequently withdrawn; and (ii) require that
all outstanding Eurodollar Loans made by it be converted to ABR Loans, in which
event
51
all such Eurodollar Loans shall be automatically converted to ABR Loans as of
the effective date of such notice as provided in paragraph (b) below. In the
event any DIP Lender shall exercise its rights under clause (i) or (ii) of this
paragraph (a), all payments and prepayments of principal which would otherwise
have been applied to repay the Eurodollar Loans that would have been made by
such DIP Lender or the converted Eurodollar Loans of such DIP Lender shall
instead be applied to repay the ABR Loans made by such DIP Lender in lieu of, or
resulting from the conversion of, such Eurodollar Loans.
(b) For purposes of this Section 2.17, a notice to a Borrower by any
DIP Lender pursuant to paragraph (a) above shall be effective, if lawful, and if
any Eurodollar Loans shall then be outstanding, on the last day of the
then-current Interest Period; otherwise, such notice shall be effective on the
date of receipt by the relevant Borrower.
Section 2.18. Pro Rata Treatment, Etc. All payments and repayments of
principal and interest in respect of the Loans of any Class (except as provided
in Sections 2.14, 2.15 and 2.17) shall be made pro rata among the DIP Lenders of
such Class in accordance with their relevant Outstanding Exposures, and all
payments of Commitment Fees and Letter of Credit Fees (other than those payable
to a Fronting Bank) shall be made pro rata among the DIP Lenders of the relevant
Class in accordance with their Class Percentages. All payments by a Borrower
hereunder shall be (i) net of any tax applicable to such Borrower or any
Guarantor and (ii) made in Dollars in immediately available funds at the office
of the Administrative Agent at 12:00 noon, New York City time, on the date on
which such payment shall be due. Interest in respect of any Loan hereunder shall
accrue from and including the date of such Loan to but excluding the date on
which such Loan is paid in full or converted to a Loan of a different Type.
Section 2.19. Taxes.
(a) Any and all payments by a Borrower or any Guarantor hereunder shall
be made free and clear of and without deduction for any and all current or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding (i) taxes imposed on or measured by
the net income or gross receipts of the Administrative Agent or any DIP Lender
(or, as contemplated by Section 10.03 hereof, any transferee or assignee
thereof, including a participation holder (any such entity being called a
"Transferee")) and franchise taxes imposed on the Administrative Agent or any
DIP Lender (or Transferee) by the United States or any jurisdiction under the
laws of which the Administrative Agent or any DIP Lender (or Transferee) is
organized or in which the applicable lending office of any such DIP Lender (or
Transferee) or applicable office of the Administrative Agent is located or any
political subdivision thereof or by any other jurisdiction or by any political
subdivision or taxing authority therein other than a jurisdiction in which the
Administrative Agent or such DIP
52
Lender would not be subject to tax but for the execution and performance of this
Agreement and (ii) taxes, levies, imposts, deductions, charges or withholdings
("Amounts") with respect to payments hereunder to a DIP Lender (or Transferee)
or the Administrative Agent in accordance with laws in effect on the later of
the date of this Agreement and the date such DIP Lender (or Transferee) or the
Administrative Agent becomes a DIP Lender (or Transferee or Administrative
Agent, as the case may be), but not excluding, with respect to such DIP Lender
(or Transferee) or the Administrative Agent, any increase in such Amounts solely
as a result of any change in such laws occurring after such later date or any
Amounts that would not have been imposed but for actions (other than actions
contemplated by this Agreement) taken by a Borrower after such later date (all
such nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes"). If a Borrower or any
Guarantor shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to the DIP Lenders (or any Transferee) or the
Administrative Agent, (i) the sum payable shall be increased by the amount
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section) such DIP Lender (or
Transferee) or the Administrative Agent (as the case may be) shall receive an
amount equal to the sum it would have received had no such deductions been made,
(ii) the relevant Borrower shall make such deductions and (iii) such Borrower
shall pay the full amount deducted to the relevant taxing authority or other
Governmental Authority in accordance with applicable law.
(b) In addition, each Borrower agrees to pay any current or future
stamp or documentary taxes or any other excise or property taxes, charges,
assessments or similar levies that arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other Taxes").
(c) Each Borrower will indemnify each DIP Lender (or Transferee) and
the Administrative Agent for the full amount of Taxes and Other Taxes paid by
such DIP Lender (or Transferee) or the Administrative Agent, as the case may be,
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted by the relevant taxing authority or other Governmental
Authority. Such indemnification shall be made within 30 days after the date any
DIP Lender (or Transferee) or the Administrative Agent, as the case may be,
makes written demand therefor. If a DIP Lender (or Transferee) or the
Administrative Agent shall become aware that it is entitled to receive a refund
in respect of Taxes or Other Taxes as to which it has been indemnified by a
Borrower pursuant to this Section, it shall promptly notify such Borrower of the
availability of such refund and shall, within 30 days after receipt of a request
by such Borrower, apply for such refund at such Borrower's expense. If any DIP
Lender (or Transferee) or the Administrative Agent receives a refund in respect
of any Taxes or Other Taxes as to which it has been indemnified by a Borrower
pursuant to this Section, it shall promptly notify such Borrower of such refund
and shall, within 30 days
53
after receipt of a request by such Borrower (or promptly upon receipt, if such
Borrower has requested application for such refund pursuant hereto), repay such
refund to such Borrower (to the extent of amounts that have been paid by such
Borrower under this Section with respect to such refund plus interest that is
received by the DIP Lender (or Transferee) or the Administrative Agent as part
of the refund), net of all out-of-pocket expenses of such DIP Lender (or
Transferee) or the Administrative Agent and without additional interest thereon;
provided that such Borrower, upon the request of such DIP Lender (or Transferee)
or the Administrative Agent, agrees to return such refund (plus penalties,
interest or other charges) to such DIP Lender (or Transferee) or the
Administrative Agent in the event such DIP Lender (or Transferee) or the
Administrative Agent is required to repay such refund. Nothing contained in this
subsection (c) shall require any DIP Lender (or Transferee) or the
Administrative Agent to make available any of its tax returns (or any other
information relating to its taxes that it deems to be confidential).
(d) Within 30 days after the date of any payment of Taxes or Other
Taxes withheld by a Borrower in respect of any payment to any DIP Lender (or
Transferee) or the Administrative Agent, such Borrower will furnish to the
Administrative Agent, at its address referred to on the signature pages hereof,
the original or a certified copy of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement contained
herein, the agreements and obligations contained in this Section shall survive
the payment in full of the principal of and interest on all Loans made
hereunder.
(f) Each DIP Lender (or Transferee) that is organized under the laws of
a jurisdiction outside the United States shall, if legally able to do so, prior
to the immediately following due date of any payment by a Borrower hereunder,
deliver to such Borrower such certificates, documents or other evidence, as
required by the Code or Treasury Regulations issued pursuant thereto, including,
but not limited to, Internal Revenue Service Form W-8BEN, W-8EC1, or W-9 and any
other certificate or statement of exemption required by applicable law, properly
completed and duly executed by such DIP Lender (or Transferee) establishing that
such payment is (i) not subject to United States Federal withholding tax under
the Code because such payment is effectively connected with the conduct by such
DIP Lender (or Transferee) of a trade or business in the United States or (ii)
totally exempt from United States Federal withholding tax or subject to a
reduced rate of such tax as a result of the application of a provision of an
applicable tax treaty or otherwise. Unless the relevant Borrower and the
Administrative Agent have received forms or other documents satisfactory to them
indicating that such payments hereunder are not subject to United States Federal
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, such Borrower or the Administrative Agent shall withhold taxes from
such payments at the applicable statutory rate.
54
(g) No Borrower shall be required to pay any additional amounts to any
DIP Lender (or Transferee) in respect of United States Federal withholding tax
pursuant to subsection (a) above if the obligation to pay such additional
amounts would not have arisen if such DIP Lender (or Transferee) had complied
with the provisions of subsection (f) above.
(h) The obligations of the Borrowers under this Section 2.19 shall
survive any termination of this Agreement.
Section 2.20. Certain Fees. The Borrowers shall pay to the
Administrative Agent or the Collateral Agent, as the case may be, for the
respective accounts of the Administrative Agent, the Collateral Agent and the
DIP Lenders, as the case may be, the fees set forth in that certain letter dated
June 25, 2002 among each of the Borrowers, JPMCB, CUSA, JPMSI and SSB at the
times set forth therein.
Section 2.21. Commitment Fees. The Borrowers shall pay to the Tranche A
DIP Lenders a commitment fee (the "Commitment Fee") for the period commencing on
June 25, 2002 to the Termination Date or the earlier date of termination of the
Total Tranche A Commitment, computed (on the basis of the actual number of days
elapsed over a year of 360 days) at the Commitment Fee Rate on the daily unused
Total Tranche A Commitment. Commitment Fees, to the extent then accrued, shall
be payable (x) monthly, in arrears, on each Monthly Payment Date, (y) on the
Termination Date and (z) upon any reduction or termination in whole or in part
of the Total Tranche A Commitment as provided in Section 2.11 or 2.14 hereof.
Section 2.22. Letter of Credit Fees. The Borrowers shall pay (x) with
respect to each Tranche A Letter of Credit (i) to the Administrative Agent on
behalf of the Tranche A DIP Lenders a fee calculated (on the basis of the actual
number of days elapsed over a year of 360 days) at the rate of the Applicable
L/C Fee Rate per annum on the undrawn stated amount thereof and (ii) to the
relevant Fronting Bank such Fronting Bank's customary fees for issuance,
amendments and processing referred to in Section 2.04 and (y) with respect to
each Tranche B Letter of Credit (i) to the Administrative Agent on behalf of the
Tranche B DIP Lenders a fee calculated (on the basis of the actual number of
days elapsed over a year of 360 days) at the rate of the Applicable L/C Fee Rate
per annum on the undrawn stated amount thereof and (ii) to the relevant Fronting
Bank such Fronting Bank's customary fees for issuance, amendments and processing
referred to in Section 2.04. In addition, each Borrower agrees to pay each
Fronting Bank for its account a fronting fee in respect of each Letter of Credit
issued by such Fronting Bank for such Borrower, for the period from and
including the date of issuance of such Letter of Credit to and including the
date of termination of such Letter of Credit, computed at a rate, and payable at
times, to be determined by such Fronting Bank, the relevant Borrower and the
Administrative Agent. Accrued fees described in clauses (x)(i) and (y)(i) of
the first sentence of this paragraph in respect of each Letter of Credit shall
be due and payable monthly in arrears on each Monthly Payment Date and on the
55
relevant Termination Date, or such earlier date as the Total Tranche A
Commitment or the Total Tranche B Credit-Linked Deposit Amount is terminated, as
the case may be. Accrued fees described in clauses (x)(ii) and (y)(ii) of the
first sentence of this paragraph in respect of each Letter of Credit shall be
payable at times to be determined by the relevant Fronting Bank, the relevant
Borrower and the Administrative Agent.
Section 2.23. Nature of Fees. All Fees shall be paid on the dates due,
in immediately available funds. as provided herein and in the letter described
in Section 2.20. Once paid, none of the Fees shall be refundable under any
circumstances.
Section 2.24. Priority and Liens.
(a) Each Loan Party hereby covenants, represents and warrants that,
upon entry of the Interim Order and execution of the Existing Credit and
Guaranty Agreement and the Existing Security and Pledge Agreement, the Secured
Obligations of such Loan Party under the Loan Documents shall at all times be:
(i) subject to the Carve-Out, pursuant to Section 364(c)(1) of the
Bankruptcy Code, entitled to Superpriority Claim status in the Case of such Loan
Party;
(ii) subject to the Carve-Out, pursuant to Section 364(c)(2) of the
Bankruptcy Code, secured by a perfected first priority senior security interest
and Lien on (x) with respect to any Loan Party other than a Holding Company
Guarantor, all property of such Loan Party other than Excluded Property that is
not subject on or as of the Petition Date to Existing Non-Primed Liens and any
amounts that cash collateralize any Letter of Credit issued for the account of
such Loan Party (if any) and (y) with respect to any Loan Party that is a
Holding Company Guarantor, all Equity Interests other than Excluded Property of
any direct Subsidiary of such Holding Company Guarantor, any unencumbered cash,
cash accounts and cash investments (including without limitation Permitted
Investments) held by such Holding Company Guarantor, and to the extent such
Holding Company Guarantor holds any other assets, all such other assets (the
assets described in this clause (y), collectively, with respect to each Holding
Company Guarantor, the "Holding Company Specified Assets"), in each case that
are not subject to Existing Non-Primed Liens (and the property of any Loan Party
described in clauses (x) or (y) shall exclude any Loan Party's claims and causes
of action under Sections 502(d), 544, 545, 547, 548 and 550 of the Bankruptcy
Code, or any other avoidance actions under the Bankruptcy Code, but shall
include any proceeds or property recovered, unencumbered or otherwise the
subject of any such action that is successful);
(iii) subject to the Carve-Out, pursuant to Section 364(c)(3) of the
Bankruptcy Code, secured by a perfected junior Lien on (x) with respect to any
Loan Party other than a Holding Company Guarantor, all property of such Loan
Party that is subject to valid, perfected and unavoidable liens in existence
immediately prior to the Petition Date or to valid and unavoidable Liens in
existence immediately prior to the Petition Date that are
56
perfected subsequent to the Petition Date as permitted by Sections 546(b) of the
Bankruptcy Code and, to the extent applicable, Section 362(b)(18) of the
Bankruptcy Code (other than the property (if any) that is subject to existing
Liens that secure obligations of such Loan Party under the Pre-Petition Facility
as to which such Loan Party is liable (any such Liens, "Primed Liens"), which
Liens shall be primed by the Liens described in clause (iv) below) and (y) with
respect to any Loan Party that is a Holding Company Guarantor, its Holding
Company Specified Assets that are subject to valid and perfected liens in
existence on the Petition Date or to valid Liens in existence on the Petition
Date that are perfected subsequent to the Petition Date as permitted by Sections
546(b) and 362(b)(18) of the Bankruptcy Code (other than the property (if any)
that is subject to existing Liens that secure obligations (if any) of such
Holding Company Guarantor under the Pre-Petition Facility as to which such
Holding Company Guarantor is liable, which Liens shall be primed by the Liens
described in clause (iv) below); and
(iv) subject to the Carve-Out, pursuant to Section 364(d)(1) of the
Bankruptcy Code, secured by a perfected first priority, senior priming security
interest and lien on all of the property of such Loan Party that is subject to
any of the Primed Liens (including, without limitation, inventory, accounts
receivable, property, plant, equipment, patents, copyrights, trademarks,
tradenames and other intellectual property and capital stock of subsidiaries),
which priming lien shall be senior in all respects to the interests in such
property of the Pre-Petition Lenders of such Loan Party (including, without
limitation, adequate protection liens granted to such Pre-Petition Lenders), but
shall not be senior to any Existing Non-Primed Liens on such property. Except
for the Carve-Out, the Superpriority Claims shall at all times be senior to the
rights of the Loan Parties, any chapter 11 Trustee and, subject to section 726
of the Bankruptcy Code, any chapter 7 Trustee, or any other creditor (including,
without limitation, post-petition counterparties and other post-petition
creditors) in the Cases or any subsequent proceedings under the Bankruptcy Code,
including, without limitation, any chapter 7 cases if any of the Loan Parties'
cases are converted to cases under chapter 7 of the Bankruptcy Code.
(b) As to all real property the title to which is held by any Loan
Party, or the possession of which is held by any Loan Party pursuant to
leasehold interest, each Loan Party hereby assigns and conveys as security,
grants a security interest in, hypothecates, mortgages, pledges and sets over
unto the Collateral Agent on behalf of the Agents, the Fronting Banks and the
DIP Lenders all of the right, title and interest of such Loan Party in all of
such owned real property and in all such leasehold interests, together in each
case with all of the right, title and interest of such Loan Party in and to all
buildings, improvements, and fixtures related thereto, any lease or sublease
thereof, all general intangibles relating thereto and all proceeds thereof, with
the rank and priority set forth in subsection (a). Each Loan Party acknowledges
that, pursuant to the Orders, the Liens in favor of the Collateral Agent on
behalf of the Agents, the Fronting Banks and the DIP Lenders in all of such real
property and leasehold instruments shall be perfected without the recordation of
any instruments of mortgage or assignment.
57
Section 2.25. Right of Set-off. Subject to the provisions of Section
7.01, Section 8.03 and the Orders, upon the occurrence and during the
continuance of any Event of Default and at least 5 days' prior notice to the
applicable Loan Party, each Agent, each Fronting Bank and each DIP Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law and without further order of or application to the Bankruptcy
Court, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by each such Agent, each such Fronting Bank and each such DIP Lender
to or for the credit or the account of any Loan Party against any and all of the
obligations of such Loan Party now or hereafter existing under the Loan
Documents, irrespective of whether or not such Agent, Fronting Bank or DIP
Lender shall have made any demand under any Loan Document and although such
obligations may not have been accelerated. Each DIP Lender, Fronting Bank and
Agent agrees promptly to notify the applicable Loan Party after any such set-off
and application made by such DIP Lender, Fronting Bank or Agent, as the case may
be, provided that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of each DIP Lender, Fronting Bank
and Agent under this Section are in addition to other rights and remedies that
such DIP Lender, Fronting Bank and Agent may have upon the occurrence and during
the continuance of any Event of Default.
Section 2.26. Security Interest in Letter of Credit Accounts. Pursuant
to Section 364(c)(2) of the Bankruptcy Code, each Loan Party hereby assigns and
pledges to the Collateral Agent, as security for such Loan Party's Secured
Obligations for the ratable benefit of the DIP Lenders, the Fronting Banks and
the Agents, a first priority security interest, senior to all other Liens, if
any, in all of each Loan Party's right, title and interest in and to each Letter
of Credit Account, and direct investment of the funds contained therein. Cash
held in each Letter of Credit Account shall not be available for use by any
Borrower or any other Loan Party, whether pursuant to Section 363 of the
Bankruptcy Code or otherwise.
Section 2.27. No Discharge: Survival of Claims. Each Loan Party agrees
that (i) its obligations hereunder shall not be discharged by the entry of an
order confirming any Plan of Reorganization (and each Loan Party, pursuant to
Section 1141(d)(4) of the Bankruptcy Code, hereby waives any such discharge) and
(ii) the Superpriority Claim granted to the Agents, the Fronting Banks and the
DIP Lenders pursuant to the Order and described in Section 2.24 and the Liens
granted to the Collateral Agent pursuant to the Order and described in Sections
2.24 and 2.26 shall not be affected in any manner by the entry of an order
confirming any Plan of Reorganization.
Section 2.28. Use of Cash Collateral. Notwithstanding anything to the
contrary contained herein, no Borrower shall be permitted to request a Credit
Event unless all Loan Parties shall at that time have the use of all cash
collateral subject to the Orders for the purposes described in Section 3.10.
58
Section 2.29. General Provisions as to Payments. Each Borrower shall
make each payment of principal of, and interest on, its Loans, of its
Reimbursement Obligations and of fees hereunder, not later than 12:00 noon (New
York City time) on the date when due in Federal or other funds immediately
available in New York City, without set-off or counterclaim, to the
Administrative Agent, the Collateral Agent or the applicable Fronting Bank or
DIP Lender, as the case may be, at their respective addresses referred to in
Section 10.01. Whenever any such payment shall be due on a day which is not a
Business Day, the date for payment thereof shall be extended to the next
Business Day. If the date for any payment of principal is extended by operation
of law or otherwise, interest thereon shall be payable for such extended time.
Section 2.30. Nature of Obligations of each Borrower. The Obligations
of each Several Borrower in any Several Borrower Group under the Loan Documents
are joint and several within such Several Borrower Group and several as to any
other Borrower Group. The Obligations of each Joint and Several Borrower in any
Joint and Several Borrower Group under the Loan Documents are joint and several
within such Joint and Several Borrower Group as well as all other Joint and
Several Borrower Groups and all Several Borrower Groups.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES
In order to induce the DIP Lenders and the Fronting Banks to extend
credit pursuant to any Credit Event, each Loan Party represents and warrants to
the Agents, the DIP Lenders and the Fronting Banks as follows (in accordance
with and subject to the limitations set forth in Section 3.15):
Section 3.01. Organization and Authority. Such Loan Party (i) is duly
organized and validly existing under the laws of the State of its incorporation
or formation, (ii) is duly qualified as a foreign corporation (or other entity)
and is in good standing in each jurisdiction in which the failure to so qualify
would have a Material Adverse Effect, (iii) subject to the entry by the
Bankruptcy Court of the Interim Order (or the Final Order, when applicable) has
the requisite corporate power and authority to effect the transactions
contemplated hereby, and by the other Loan Documents to which it is a party and
(iv) subject to the entry by the Bankruptcy Court of the Interim Order (or the
Final Order, when applicable) has all requisite corporate power and authority to
own, pledge, mortgage, lease and operate its properties, and to conduct its
business as now or currently proposed to be conducted.
Section 3.02. Due Execution. Upon the entry by the Bankruptcy Court of
the Interim Order (or the Final Order, when applicable), the execution, delivery
and performance by such Loan Party of each of the Loan Documents to which it is
a party
59
(including, without limitation, the use of any proceeds of the Loans by such
Loan Party or the grant and pledge by such Loan Party of the security interests
granted pursuant to the Amended and Restated Security and Pledge Agreement), (i)
are within the respective corporate powers of such Loan Party, have been duly
authorized by all necessary corporate action, including the consent of
shareholders, partners or members where required, and do not (A) contravene the
charter, by-laws or other organizational documents of any Loan Party, (B)
violate any law (including, without limitation, the Securities Exchange Act of
1934) or regulation (including, without limitation, Regulations T or U of the
Board of Governors of the Federal Reserve System), or any order or decree of any
court or Governmental Authority, (C) conflict with or result in a breach of, or
constitute a default under, any indenture, mortgage or deed of trust entered
into after the Petition Date or any lease, agreement or other instrument entered
into after the Petition Date binding on such Loan Party or any of their
properties, or (D) result in or require the creation or imposition of any Lien
upon any of the property of any of the Loan Parties pursuant to any such lease,
agreement or instrument, other than the Liens granted pursuant to the Loan
Documents or the Orders; and (ii) do not require the consent, authorization by
or approval of or notice to or filing or registration with any Governmental
Authority other than (1) the entry of the Orders and (2) with respect to any
Collateral consisting of franchise agreements, notice of the grant of the
security interests to Persons or Governmental Authorities required to be given
such notice pursuant to the terms of such franchise agreement. Except for the
entry of the Orders, no authorization, approval or other action by, and no
notice to or filing with, any Governmental Authority or regulatory body is
required for the perfection of the security interests granted pursuant to the
Loan Documents or, the exercise by the Agents, the Fronting Banks or the DIP
Lenders of their respective rights and remedies under the Loan Documents, except
in the case of a foreclosure by the Collateral Agent with respect to certain
Collateral relating to franchise or similar agreements with Governmental
Authorities, for any required consent, authorization by or approval of or notice
to any such Governmental Authority. Upon the entry by the Bankruptcy Court of
the Interim Order (or the Final Order, when applicable), this Agreement shall
have been duly executed and delivered by each of the Loan Parties. Upon the
entry by the Bankruptcy Court of the Interim Order (or the Final Order, when
applicable), this Agreement, and each of the other Loan Documents to which such
Loan Party is or will be a party, when delivered hereunder or thereunder, will
be a legal, valid and binding obligation of such Loan Party, enforceable against
such Loan Party in accordance with its terms and the Orders.
Section 3.03. Statements Made. The information that has been delivered
in writing by any Loan Party to any Agent, any Fronting Bank or any DIP Lender
or to the Bankruptcy Court in connection with any Loan Document, taken as a
whole and in light of the circumstances in which made and taken together with
the information in the Current SEC Reports, contains no untrue statement of a
material fact and does not omit to state a material fact necessary to make such
statements not misleading; provided that (i) the foregoing representation does
not apply to historical financial statements of the
60
Parent and its subsidiaries or to projections other than those referred to in
the following item (ii) and (ii) to the extent that any such information
constitutes projections delivered specifically for use in connection with this
Agreement, such projections were prepared in good faith on the basis of
assumptions, methods, data, tests and information believed by the Loan Parties
to be reasonable at the time such projections were furnished.
Section 3.04. Current SEC Reports, No Material Adverse Change. (a) The
information in the Current SEC Reports with respect to financial statements of
the Parent and its subsidiaries is, taken as a whole, true and correct in all
material respects.
(b) Since December 31, 2001 no event or condition has occurred which
has resulted, or could reasonably be expected to result in, a Material Adverse
Effect, other than (w) the commencement of the Cases and events typically
occurring as a result of the commencement of a proceeding under chapter 11 of
the Bankruptcy Code, (x) the matters set forth in the Current SEC Reports or
otherwise disclosed in writing by the applicable Loan Party to the Initial DIP
Lenders prior to the date of this Agreement, (y) any downgrading or suspension
of any rating of indebtedness of the Parent or any subsidiary thereof (provided
that any such downgrading or suspension after the date of this Agreement could
not reasonably be deemed to have resulted from or been made in anticipation of
any event or condition that would otherwise constitute a Material Adverse
Effect) or (z) any criminal indictment of any member of the Rigas family
(provided that this clause (z) shall not preclude a determination that any event
or condition first occurring after the date of this Agreement and relating to
any such indictment was not otherwise a Material Adverse Effect).
Section 3.05. Subsidiaries. (a) The corporate organization chart
provided by the Loan Parties to the Co-Lead Arrangers prior to the date hereof
is true and correct in all material respects.
(b) Each Person that is a borrower or a guarantor under any
Pre-Petition Facility is a Loan Party.
(c) Each Loan Party is a debtor and a debtor-in-possession in a case
pending under chapter 11 of the Bankruptcy Code.
Section 3.06. Liens. There are no Liens of any nature whatsoever on any
assets of any Loan Party other than Liens permitted under Section 6.01. No Loan
Party is party to any contract, agreement, lease or instrument (other than the
Loan Documents) entered into on or after the Petition Date the performance of
which, either unconditionally or upon the happening of an event, will result in
or require the creation of a Lien on any assets of such Loan Party or otherwise
result in a violation of the Loan Documents.
Section 3.07. Compliance with Law. (a)(i) The operations of the Loan
Parties comply with all applicable environmental, health and safety statutes and
regulations,
61
including, without limitation, regulations promulgated under the Resource
Conservation and Recovery Act (42 U.S.C. ss.ss. 6901 et seq.); (ii) none of the
operations of the Loan Parties is the subject of any pending Federal or state
investigation evaluating whether any remedial action involving a material
expenditure by any Loan Party is needed to respond to a release of any Hazardous
Waste or Hazardous Substance (as such terms are defined in any applicable state
or Federal environmental law or regulations) into the environment; and (iii) no
Loan Party has any material contingent liability arising under applicable State
or Federal environmental law or regulations in connection with any release of
any Hazardous Waste or Hazardous Substance into the environment, except in the
case of each of items (i), (ii) and (iii) above, for any matter referred to
therein that would not result in a Material Adverse Effect.
(b) No Loan Party is in violation of any applicable State or Federal
environmental law, rule or regulation, or in default with respect to any
judgment, writ, injunction or decree legally issued pursuant to any such State
or Federal environmental law, rule or regulation by any Governmental Authority
the violation of which, or a default with respect to which, would have a
Material Adverse Effect.
Section 3.08. Insurance. All policies of insurance of any kind or
nature owned by or issued to the Loan Parties, including, without limitation,
policies of life, fire, theft, product liability, public liability, property
damage, other casualty, employee fidelity, workers' compensation, employee
health and welfare, title, property and liability insurance, are in full force
and effect and are of a nature and provide such coverage as is customarily
carried by companies of the size and character of the Loan Parties.
Section 3.09. The Orders. On or prior to the date of the initial Credit
Event, the Interim Order will have been entered and as of the date of the
initial Credit Event, the Interim Order will not have been stayed, amended,
vacated, reversed or rescinded. On or prior to the date of any Credit Event, the
Interim Order or the Final Order, as the case may be, will have been entered and
as of the date of such Credit Event, the Interim Order or the Final Order, as
the case may be, will not have been amended, stayed, vacated or rescinded.
Section 3.10. Use of Proceeds. The Letters of Credit and the proceeds
of the Loans will be used by the relevant Borrower only as permitted by Section
5.08(a).
Section 3.11. Litigation. Except as disclosed in the Borrower's Form
10-K for the year ended December 31, 2000, the Borrower's Form 10-Q for the
quarter ended March 31, 2001, and the Current SEC Reports and Environmental
Reports, there are no unstayed actions, suits or proceedings pending or, to the
best knowledge of the Borrower or the Guarantors, threatened against or
affecting the Borrower or the Guarantors or any of their respective properties,
before any court or governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, that are reasonably
62
expected to be determined adversely to the Borrower or the Guarantors and, if so
adversely determined, would have a Material Adverse Effect.
Section 3.12. Intellectual Property. The information set forth in the
Intellectual Property Schedule is true, correct and complete in all material
respects. Except as described in the Intellectual Property Schedule, no claim
has been asserted and is pending by any Person challenging or questioning the
use of any such Intellectual Property or the validity or effectiveness of any
such Intellectual Property, nor does any Loan Party know of any such claim, and,
to the knowledge of any Loan Party, the use of such Intellectual Property by the
Loan Parties does not infringe on the rights of any Person, except for such
claims and infringement that, in the aggregate, would not be reasonably expected
to have a Material Adverse Effect. The representations and warranties set forth
in this Section 3.12 shall not be made (or deemed made) on any date prior to the
date on which the Loan Parties have delivered to the Collateral Agent the
Intellectual Property Schedule pursuant to Section 5.07.
Section 3.13. Franchise Agreements. Schedule 3.13 sets forth, with
respect to each Loan Party, as of the date of this Agreement, (i) the franchise
agreements to which such Loan Party is a party as of the Petition Date and (ii)
the locations and the minimum number of subscribers in each region in which the
related Borrowing Group operates.
Section 3.14. No Event of Default. No Default or Event of Default has
occurred and is continuing (other than, solely if this representation is made by
any Several Borrower, a Financial Covenant Event of Default with respect to any
other Borrower Group or a True-Up Event of Default with respect to a single test
date or time and with respect to a single other Borrower Group).
Section 3.15. Loan Parties Making Representations and Warranties. The
representations and warranties set forth in the preceding Sections of this
Article 3 are made (or deemed made) by the Loan Parties on any date as specified
in the Loan Documents as follows: (i) each Loan Party in any Several Borrower
Group is making such representations and warranties joint and severally with any
other Loan Party in such Several Borrower Group, and severally as to any other
Loan Party and (ii) each Loan Party (other than a Loan Party described in clause
(i) is making such representations and warranties joint and severally with any
other Loan Party. No representations and warranties shall be made by or on
behalf of a Loan Party on and after the date on which such Loan Party is an
Exiting Loan Party.
63
ARTICLE 4.
CONDITIONS OF LENDING
Section 4.01. Conditions Precedent to Closing and Initial Credit Event.
The occurrence of the Closing Date and obligation of the DIP Lenders (including,
if applicable, any Fronting Bank) to extend credit pursuant to the initial
Credit Event, is subject to the following conditions precedent:
(a) Supporting Documents. The Administrative Agent shall have received
for each Loan Party: (i) a copy of such entity's constituent documents, as
amended up to and including the Closing Date, certified by the Secretary of
State (or other applicable Governmental Authority) of the jurisdiction of such
entity's organization, (ii) a certificate of such Secretary of State (or other
applicable Governmental Authority) of such entity's jurisdiction of
organization, dated as of a recent date, as to the good standing of such entity
and as to the constituent documents on file in the office of such Secretary of
State (or other applicable Governmental Authority), (iii) a certificate of the
Secretary or an Assistant Secretary of each such entity dated as of the Closing
Date and certifying that (A) attached thereto is a true and complete copy of the
by-laws of such entity as in effect on the date of such certification, (B) that
attached thereto is a true and complete copy of resolutions adopted by the
governing body of such entity authorizing the Borrowings and Letter of Credit
extensions hereunder, the execution, delivery and performance in accordance with
their respective terms of the Loan Documents and any other documents required or
contemplated hereunder or thereunder and the granting of the Liens on the
Collateral contemplated hereby, and that such resolutions are in full force and
effect without modification or amendment, (C) that the constituent documents of
such entity have not been amended since the date of the last amendment thereto
indicated on the certificate of the Secretary of State furnished pursuant to
clause (i) above and (D) as to the incumbency and specimen signature of each
officer of such entity executing this Agreement or any other Loan Documents or
any other document delivered by it in connection herewith or therewith (such
certificate to contain a certification by another officer of such entity as to
the incumbency and signature of the officer signing the certificate referred to
in this clause (iii)), and (iv) such other documents as the Administrative Agent
may reasonably request; provided that the requirements under clauses (i), (ii)
and (iii) above shall be deemed to have been satisfied if the Administrative
Agent receives a certificate of the Secretary or Assistant Secretary of each
such entity, satisfactory in form and substance to the Administrative Agent in
its sole discretion, dated as of the Closing Date and certifying that the items
received pursuant to clauses (i), (ii) and (iii) of Section 4.01(a) of the
Existing Credit and Guaranty Agreement have not changed as of the Closing Date.
(b) Interim Order. At the time of the initial Credit Event, the Agents,
the Fronting Bank and the DIP Lenders shall have received a certified copy of an
order of the Bankruptcy Court in substantially the form of Exhibit C (the
"Interim Order") approving the Loan Documents and granting the Superpriority
Claim status and senior
64
priming and other Liens described in Section 2.24 which Interim Order (i) shall
have been entered with the consent or non-objection of a preponderance of the
Pre-Petition Lenders (as determined by the Co-Lead Arrangers in their sole
discretion) upon an application or motion of the Loan Parties reasonably
satisfactory in form and substance to the Co-Lead Arrangers, on such prior
notice to such parties (including the Pre-Petition Lenders) as may in each case
be reasonably satisfactory to the Co-Lead Arrangers, (ii) shall authorize
extensions of credit in amounts satisfactory to the Co-Lead Arrangers, (iii)
shall approve the payment by the Loan Parties of all of the Fees referred to in
Section 2.20, (iv) shall be in full force and effect, (v) shall have authorized
the use by the Loan Parties of any cash collateral in which any Pre-Petition
Lender under the Pre-Petition Facilities may have an interest and shall have
provided, as adequate protection for the use of such cash collateral and the
priming contemplated hereby, for (A) the monthly payment of current interest and
letter of credit fees (including the payment on the Closing Date of any such
interest and fees that are accrued and unpaid as of the Petition Date) at the
applicable non-default base rates plus applicable margins provided for pursuant
to the Pre-Petition Facilities; provided, that, as additional adequate
protection consideration for Pre-Petition Lenders under the Frontier Credit
Agreement (as defined in the Interim Order) to consent to the priming of their
liens and the use of their Cash Collateral, the payment described in this clause
(A) shall be determined by applying the applicable non-default base rate plus
applicable margin plus 40 basis points, (B) subject to the Carve-Out a
Superpriority Claim as contemplated by Section 507(b) of the Bankruptcy Code
immediately junior to the claims under Section 364(c)(1) of the Bankruptcy Code
held by the Agents, the Fronting Banks and the DIP Lenders and the Permitted
Inter-Group Debt, (C) subject to the Carve-Out a Lien on substantially all of
the assets of Loan Parties (or, in the case of any Holding Company Guarantor,
its Holding Company Specified Assets) having a priority immediately junior to
the priming and other Liens granted in favor of the Agent, the Fronting Banks
and the DIP Lenders hereunder and under the other Loan Documents and the Liens
securing the Permitted Inter-Group Debt, (D) the payment on a current basis of
the reasonable fees and disbursements (including, but not limited to, the
reasonable fees and disbursements of counsel and internal and third-party
consultants, including financial consultants, and auditors) incurred by the
respective agents under the Pre-Petition Facilities (including any unpaid
pre-petition fees and expenses) and the continuation of the payment to such
agents on a current basis of the administration fees that are provided for under
the respective Pre-Petition Facilities and (vi) shall not have been stayed,
reversed, modified or amended in any respect; and, if the Interim Order is the
subject of a pending appeal in any respect, neither the extension of any credit
pursuant to a Credit Event nor the performance by any Loan Party of any of their
respective obligations under any Loan Documents or under any other instrument or
agreement referred to therein shall be the subject of a presently effective stay
pending appeal.
The adequate protection liens and the priority claims granted to the
Pre-Petition Lenders as contemplated by the Interim Order shall be limited to an
amount equal to the diminution, from and after the date of filing of the Interim
Order, in the value of their
65
pre-petition collateral, including, without limitation, the diminution in value
of the Pre-Petition Liens as a consequence of the priming liens contemplated
hereby.
(c) Amended and Restated Security and Pledge Agreement. Each Loan Party
shall have duly executed and delivered to the Collateral Agent an Amended and
Restated Security and Pledge Agreement in substantially the form of Exhibit D
(the "Amended and Restated Security and Pledge Agreement") and each of the
documents contemplated thereunder that is to be delivered prior to the
occurrence of the initial Credit Event (including, without limitation, all such
patent, trademark and copyright security agreements or other filings as
requested by the Collateral Agent in order to perfect the Administrative Agent's
security interest in intellectual property of each Loan Party).
(d) First Day Orders. All of the "first day orders" entered by the
Bankruptcy Court at the time of the commencement of the Cases shall be
satisfactory in form and substance to the Co-Lead Arrangers.
(e) Opinion of Counsel. The Agents, the Fronting Banks and the DIP
Lenders shall have received one or more favorable written opinions of counsel to
the Loan Parties, each dated the Closing Date and each in form and substance,
and from a Person, reasonably acceptable to the Co-Lead Arrangers.
(f) Payment of Fees. The Borrowers shall have paid the then unpaid
balance of all accrued and unpaid Fees due under and pursuant to this Agreement.
(g) Corporate and Judicial Proceedings. All corporate, judicial and
other proceedings and all instruments and agreements in connection with the
transactions among the Loan Parties, the Agents, the Fronting Banks and the DIP
Lenders contemplated by the Loan Documents shall be satisfactory in form and
substance to the Co-Lead Arrangers, and the Co-Lead Arrangers shall have
received all information and copies of all documents and papers, including
records of corporate, judicial and other proceedings, which the Co-Lead
Arrangers may have requested in connection therewith, such documents and papers
where appropriate to be certified by proper corporate, governmental or judicial
or other authorities.
(h) Information. The Co-Lead Arrangers shall have received all such
information (financial or otherwise) as may be reasonably requested by them and
shall have discussed such information with the management of the Loan Parties
and shall be satisfied with the nature and substance of such discussions.
(i) Representations and Warranties. All representations and warranties
contained in this Agreement and the other Loan Documents shall be true and
correct in all material respects on and as of the Closing Date with the same
effect as if made on and as of such date except to the extent such
representations and warranties expressly
66
relate to an earlier date (which shall be true and correct in all material
respects on and as of such earlier date).
(j) No Default. No Default or Event of Default shall have occurred and
be continuing on and as of the Closing Date.
(k) Closing Documents. The Administrative Agent shall have received all
documents required by this Agreement and the other Loan Documents and such
documents shall be satisfactory in form and substance to the Co-Lead Arrangers.
Section 4.02. Consequence of Effectiveness. (a) On the Closing Date,
without further action by any of the parties thereto, the Existing Credit and
Guaranty Agreement will be automatically amended and restated to read as this
Agreement reads.
(b) On and after the Closing Date, the rights and obligations of the
parties hereto shall be governed by the provisions hereof. The rights and
obligations of the parties with respect to the period before the Closing Date
shall continue to be governed by the provisions of the Existing Credit and
Guaranty Agreement as in effect before the Closing Date.
Section 4.03. Conditions Precedent to Each Credit Event. The obligation
of each DIP Lender and each Fronting Bank to extend credit pursuant to any
Credit Event, including the initial Credit Event, is subject to the satisfaction
of each of the following conditions precedent:
(a) Notice. The Administrative Agent shall have received a notice with
respect to such Credit Event, as required by Article 2.
(b) Representations and Warranties. All representations and warranties
contained in this Agreement and the other Loan Documents shall be true and
correct in all material respects on and as of the date of such Credit Event with
the same effect as if made on and as of such date except to the extent such
representations and warranties expressly relate to an earlier date (which shall
be true and correct in all material respects as of such earlier date).
(c) No Default. On the date of such Credit Event, before and after
giving effect thereto, no Default or Event of Default shall have occurred and be
continuing (other than (x) a Financial Covenant Default with respect to a
Borrower Group other than the Borrower Group to which the Borrower requesting
such Credit Event belongs and (y) a True-Up Event of Default with respect to a
single test date or time and with respect to a single Borrower Group other than
the Borrower Group to which the Borrower requesting such Credit Event belongs
and (z) a Default with respect to an Exiting Loan Party).
(d) Orders. The Interim Order shall be in full force and effect and
shall not have been stayed, reversed, modified or amended in any respect without
the prior written
67
consent of the Co-Lead Arrangers, provided, that if after giving effect to such
Credit Event, the aggregate Outstanding Exposure with respect to all Borrowers
would exceed the amount authorized by the Interim Order, the Agents, the
Fronting Banks and each of the DIP Lenders shall have received a certified copy
of an order of the Bankruptcy Court satisfactory in form and substance to the
Co-Lead Arrangers in their sole discretion (the "Final Order"), which, in any
event, shall have been entered by the Bankruptcy Court no later than August 26,
2002, and at the time of such Credit Event, the Final Order shall be in full
force and effect, and shall not have been stayed, reversed, modified or amended
in any respect without the prior written consent of the Co-Lead Arrangers; and
if either the Interim Order or the Final Order is the subject of a pending
appeal in any respect, neither the occurrence of any Credit Event nor the
performance by any Loan Party of any of their respective obligations under any
of the Loan Documents shall be the subject of a presently effective stay pending
appeal.
(e) Payment of Fees. The Borrowers shall have paid to the relevant
parties the then unpaid balance of all accrued and unpaid Fees then payable
under and pursuant to this Agreement and the letter referred to in Section 2.20.
(f) Borrowing Limit. After giving effect to such Credit Event and
subject to the proviso in Section 6.10(c), the Outstanding Exposure with respect
to the Borrower requesting such Credit Event will not exceed (i) such Borrower's
Borrowing Limit minus (ii) the Outstanding Permitted Inter-Group Debt of such
Borrower's Borrower Group.
(g) Monthly Usage Limit. Solely if such Credit Event occurs on or after
the First Delivery Date, after giving effect to such Credit Event, the
Outstanding Exposure with respect to the Borrower requesting such Credit Event
will not exceed such Borrower's Monthly Usage Limit applicable to the calendar
month in which such Credit Event occurs.
(h) Total Commitments. After giving effect to such Credit Event, the
Outstanding Exposure with respect to all Borrowers will not exceed the Total
Commitment or, solely if such Credit Event occurs prior to the Incremental
Availability Date, the lesser of (i) the Total Commitment and (ii) $500,000,000.
(i) Tranche B Usage. Solely if such Credit Event is a Tranche A
Borrowing or the issuance of a Tranche A Letter of Credit, immediately prior and
after giving effect to such Credit Event, the aggregate Tranche B Outstanding
Exposure is equal to the Total Tranche B Credit-Linked Deposit Amount.
(j) Use of Proceeds. The uses of the proceeds of such Credit Event
shall be (i) substantially consistent with the Monthly Budget of the relevant
Borrower applicable to the calendar month in which such Credit Event occurs and
(ii) in compliance with Section 5.08.
68
The request by any Borrower for, and the acceptance by such Borrower of
the proceeds of, each Credit Event shall each be deemed to be a representation
and warranty by such Borrower on and as of the date of such Credit Event that
each of the conditions specified in this Section have been satisfied.
Section 4.04. Occurrence of Incremental Availability Date. The
Incremental Availability Date shall occur on the first date on which each of the
following conditions shall have been satisfied:
(a) Additional Due Diligence. The Co-Lead Arrangers shall have advised
the Borrowers in writing that the Initial Majority DIP Lenders shall have
completed an additional due diligence review with respect to each Loan Party,
the scope, substance and results of which due diligence review (i) shall be
satisfactory to each Initial Majority DIP Lender in its sole discretion, (ii)
shall include, at the request of the Initial Majority DIP Lenders in their sole
discretion, an evaluation of (x) the assets of each Loan Party (including
without limitation its subscribers), (y) the reporting systems of each Loan
Party (including without limitation billing systems and cash management systems)
and (z) the receipt of historical financial information with respect to each
Loan Party and (iii) shall include, in any event, satisfaction of the Initial
Majority DIP Lenders with the Loan Parties' systems for tracking cash receipt
and disbursements and with the arrangements with the Adelphia Business Solutions
business regarding the continued supply of certain services to the Loan Parties.
(b) Monthly Budgets, Long-Term Budgets and Projections. The Agents, the
Fronting Banks and the DIP Lenders shall have received from each Borrower (i)
the Long Term Budget with respect to such Borrower and its Borrower Group, (ii)
the first Monthly Budget with respect to such Borrower and its Borrower Group,
and (iii) financial projections with respect to such Borrower and its Borrower
Group, showing, among other things, the effect on such Borrower Group of the
filing under Chapter 11 of the Bankruptcy Code, and each of the items described
in clauses (i), (ii) and (iii) shall be satisfactory in form and substance to
the Co-Lead Arrangers in their sole discretion.
(c) UCC Searches. The Collateral Agent shall have received all of the
UCC searches referred to in Section 5.07, and such UCC searches shall reflect
the absence of Liens on the assets of the Loan Parties other than such Liens as
may be approved by the Co-Lead Arrangers in their sole discretion and other
Liens permitted under Section 6.01.
69
ARTICLE 5.
AFFIRMATIVE COVENANTS
From the date hereof and for so long as any Commitment shall be in
effect or any Letter of Credit shall remain outstanding, or any Obligation shall
remain outstanding or unpaid under the Loan Documents, each of the applicable
Loan Parties specified below agrees that:
Section 5.01. Financial Statements, Reports, Etc. Each Borrower, the
Parent and each other Loan Party (as applicable) will deliver to the
Administrative Agent and each of the DIP Lenders:
(a) (x) within 90 days after the end of each fiscal year ended on or
after the 120th Day, (i) such Borrower's consolidated balance sheet and related
statement of income and cash flows, showing the financial condition of such
Borrower's Borrower Group on a consolidated basis, as of the close of such
fiscal year, and the results of operations during such year, such statements to
be audited by PricewaterhouseCoopers or other independent public accountants of
recognized national standing acceptable to the Required DIP Lenders and
accompanied by an opinion of such accountants (which shall not be qualified in
any material respect other than with respect to the Cases) and, solely if such
statements are being delivered on or after the SEC Reporting Date, to be
certified on behalf of such Borrower by a Financial Officer of such Borrower to
the effect that such consolidated financial statements fairly present the
financial condition and results of operations of such Borrower Group on a
consolidated basis in accordance with GAAP consistently applied and (ii) the
Parent's consolidated balance sheet and related statement of income and cash
flows, showing the financial condition of the Parent Group on a consolidated
basis, as of the close of such fiscal year, and the results of operations during
such year, such statements to be audited by PricewaterhouseCoopers or other
independent public accountants of recognized national standing acceptable to the
Required DIP Lenders and accompanied by an opinion of such accountants (which
shall not be qualified in any material respect other than with respect to the
Cases) and, solely if such statements are being delivered on or after the SEC
Reporting Date, to be certified on behalf of such Borrower by a Financial
Officer of the Parent to the effect that such consolidated financial statements
fairly present the financial condition and results of operations of the Parent
Group on a consolidated basis in accordance with GAAP consistently applied and
(y) as soon as available, for each Borrower Group and the Parent Group, the
restated consolidated balance sheet and related statement of income and cash
flows for any date, or any period ended, prior to the date of effectiveness of
this Agreement, as applicable, in the case of statements that were previously
audited, such statements to be audited by PricewaterhouseCoopers or other
independent public accountants of recognized national standing acceptable to the
Required DIP Lenders and accompanied by an opinion of such accountants (which
shall not be qualified in any material respect other than with respect to the
Cases) and to be certified by a Financial Officer of the relevant Loan Party to
the effect that such
70
consolidated financial statements fairly present the financial condition and
results of operations of the applicable Borrower Group or Parent Group, as the
case may be, on a consolidated basis in accordance with GAAP consistently
applied (except for such changes necessitated by such restatement and as to
which such public accountants shall have concurred) (any statements delivered
pursuant to this clause (y), the "Restated Statements");
(b) within 45 days after the end of each month of each fiscal year
ended on or after the 120th Day, (i) such Borrower's consolidated balance sheets
and related statements of income and cash flows, showing the financial condition
of such Borrower's Borrower Group on a consolidated basis, as of the close of
such month and the results of their operations during such month and the then
elapsed portion of such fiscal year, each set of such statements, solely if such
statements are being delivered on or after the SEC Reporting Date, certified on
behalf of such Borrower by a Financial Officer of such Borrower as fairly
presenting the financial condition and results of operations of such Borrower's
Borrower Group on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments, (ii) the Parent's
consolidated balance sheets and related statements of income and cash flows,
showing the financial condition of the Parent Group on a consolidated basis, as
of the close of such month and the results of their operations during such month
and the then elapsed portion of the fiscal year, each set of such statements,
solely if such statements are being delivered on or after the SEC Reporting
Date, certified on behalf of such Borrower by a Financial Officer of the Parent
as fairly presenting the financial condition and results of operations of the
Parent Group on a consolidated basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and (iii) certain
operating statistics of such Borrower in a form acceptable to the Co-Lead
Arrangers, certified on behalf of such Borrower by a Financial Officer of such
Borrower as to the accuracy thereof;
(c) concurrently with any delivery of financial statements under (a) or
(b) above with respect to any Borrower or the Parent, as the case may be, (i) a
certificate of the applicable Financial Officer (A) solely if such statements
are being delivered on or after the SEC Reporting Date or are being delivered
under (a) or (b), certifying on behalf of the Borrower the accuracy of such
statements in all material respects, (B) solely if such financial statements are
not Restated Statements, certifying on behalf of the Borrower that to the best
of such Financial Officer's knowledge no Default or Event of Default has
occurred during the period covered by such financial statements and is
continuing (other than, with respect to any Several Borrower, a Default or Event
of Default with respect to any Loan Party that does not belong to such Several
Borrower's Borrower Group) or, if such a Default or Event of Default has
occurred and is continuing, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto and (C)
solely if such financial statements are not Restated Statements, setting forth
computations in reasonable detail satisfactory to the Co-Lead Arrangers
demonstrating compliance with the provisions of Sections 6.03,
71
6.04, 6.05, 6.10 and 6.11, (ii) solely if such financial statements are not
Restated Statements, setting forth in reasonable detail a reconciliation of the
financial results set forth in such statements with the projected financial
results for the relevant period set forth in the Long-Term Budget and the
Monthly Budget of the applicable Loan Party and (iii) with respect to any
financial statements delivered under (a) (other than Restated Statements), a
certificate (which certificate may be limited to accounting matters and disclaim
responsibility for legal interpretations) of the relevant accountants
accompanying such financial statements certifying that, in the course of the
regular audit of the business of the relevant Borrower or the Parent, as the
case may be, such accountants have obtained no knowledge that an Event of
Default has occurred during the period covered by such financial statements and
its continuing, or if, in the opinion of such accountants, an Event of Default
has occurred during the period covered by such financial statements and is
continuing, specifying the nature thereof and all relevant facts with respect
thereto;
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by any
Loan Party with the Securities and Exchange Commission, or any governmental
authority succeeding to any of or all of the functions of said commission, or
with any national securities exchange, as the case may be;
(e) as soon as available and in any event (A) within 30 days after any
Loan Party or any of its ERISA Affiliates knows or has reason to know that any
Termination Event described in clause (i) of the definition of Termination Event
with respect to any Single Employer Plan of such Loan Party or such ERISA
Affiliate has occurred and (B) within 10 days after any Loan Party or any of its
ERISA Affiliates knows or has reason to know that any other Termination Event
with respect to any such Plan has occurred, a statement of a Financial Officer
of such Loan Party describing such Termination Event and the action, if any,
which such Loan Party or such ERISA Affiliate proposes to take with respect
thereto;
(f) promptly and in any event within 10 days after receipt thereof by
any Loan Party or any of its ERISA Affiliates from the PBGC copies of each
notice received by such Loan Party or any such ERISA Affiliate of the PBGC's
intention to terminate any Single Employer Plan of such Loan Party or such ERISA
Affiliate or to have a trustee appointed to administer any such Plan;
(g) promptly and in any event within 30 days after the filing thereof
with the Department of Labor by any Loan Party, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with respect to
each Single Employer Plan of any Loan Party or any of its ERISA Affiliates;
(h) within 10 days after notice is given or required to be given to the
PBGC under Section 302(f)(4)(A) of ERISA of the failure of any Loan Party or any
of its
72
ERISA Affiliates to make timely payments to a Plan, a copy of any such notice
filed and a statement of a Financial Officer setting forth (A) sufficient
information necessary to determine the amount of the lien under Section
302(f)(3), (B) the reason for the failure to make the required payments and (C)
the action, if any, which such Loan Party or any of its ERISA Affiliates
proposed to take with respect thereto;
(i) promptly and in any event within 10 days after receipt thereof by
any Loan Party or any of its ERISA Affiliates from a Multiemployer Plan sponsor,
a copy of each notice received by such Loan Party or any of its ERISA Affiliates
concerning (A) the imposition of Withdrawal Liability by a Multiemployer Plan,
(B) the determination that a Multiemployer Plan is, or is expected to be, in
reorganization within the meaning of Title IV of ERISA, (C) the termination of a
Multiemployer Plan within the meaning of Title IV of ERISA, or (D) the amount of
liability incurred, or which may be incurred, by such Loan Party or any of its
ERISA Affiliates in connection with any event described in clause (A), (B) or
(C) above;
(j) promptly after the same is available, copies of all pleadings,
motions, applications, judicial information, financial information and other
documents filed by or on behalf of such Loan Party with the Bankruptcy Court in
the Cases, or distributed by or on behalf of such Loan Party to any official
committee appointed in the Cases;
(k) on or prior to the 15thday of each calendar month (commencing with
August 2002 for the Parent Group and October 2002 for each Borrower Group), (i)
a budget with respect to each Borrower and its Borrower Group or the Parent
Group (as applicable) (each, a "Monthly Budget") for each of (x) such calendar
month, and (y) the two subsequent calendar months thereafter, in form and
substance satisfactory to the Co-Lead Arrangers in their sole discretion and
setting forth, among other things, the forecasted maximum projected principal
amount of Borrowings and face amount of Letters of Credit to be used by such
Borrower or the Parent Group (as applicable) during such month and the two
calendar months thereafter and the projected maximum principal amount of
Borrowings and face amount of Letters of Credit to be used by such Borrower or
the Parent Group (as applicable) during such month and the two calendar months
thereafter and (ii) together with each such Monthly Budget of each Borrower or
the Parent Group (as applicable) described in clause (i) above, a reconciliation
of the results of the business operations of such Borrower's Borrower Group or
the Parent Group (as applicable) for the month preceding the most recently ended
calender month as compared to its corresponding Monthly Budget, in form and
substance satisfactory to the Co-Lead Arrangers in their sole discretion;
provided that, solely on August 15, 2002, the Parent Group will provide a report
setting forth the results of June 2002 in lieu of such reconciliation. The
delivery of items (i) and (ii) in any month shall be concurrent;
(l) (i) no later than the 120th Day, a budget with respect to each
Borrower and its Borrower Group (each, a "Long-Term Budget") for the period
ending not earlier than the Maturity Date, in form and substance acceptable to
the Co-Lead Arrangers in
73
their sole discretion, including, but not limited to, information regarding
capital expenditures including projected amounts, and use thereof (and the
delivery of all Long-Term Budgets shall be concurrent); and (ii) from time to
time, upon request by the Co-Lead Arrangers, with respect to any Borrower, an
updated Long-Term Budget;
(m) on the second Business Day of each calendar week, from each
Borrower (or, solely for any week ending prior to the 120th Day, from the Parent
only), a statement of projected cash receipts and cash disbursements with
respect to such Borrower's Borrower Group (or, solely for any week ending prior
to the 120th Day, the Parent Group) for each week in the period of thirteen
continuous weeks commencing with the immediately following week, in form and
substance acceptable to the Co-Lead Arrangers;
(n) no later than the 15th Business Day of each calendar month, a
summary (an "Inter-Group Debt Summary") from each Borrower of all (i) Permitted
Inter-Group Debt incurred by any Loan Party in its Borrower Group and (ii)
Permitted Inter-Group Advances made by any Loan Party in its Borrower Group, in
each case outstanding as of the last Business Day of the immediately preceding
calendar month, in form and substance acceptable to Co-Lead Arrangers in their
sole discretion;
(o) on or prior to the 15th day of each calendar month, from each
Borrower, a summary report regarding subscribers and franchise agreements
(including the status of each franchise agreement) and related matters with
respect to each Borrower Group, in each case as of the end of the immediately
preceding calendar month, in form and substance acceptable to the Co-Lead
Arrangers in their sole discretion;
(p) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of any Loan Party, or
compliance with the terms of any agreement as any Agent, any Fronting Bank or
any DIP Lender may reasonably request; and
(q) such other financial reports or other information as such Loan
Party shall provide to any Pre-Petition Lender or any agent under any
Pre-Petition Facility and such reports or other information regarding the cash
management system in which the Loan Parties participate and any proposed or
contemplated Cash Management Separation with respect thereto that such Loan
Party may provide to any Person pursuant to the Cash Management Protocol.
Section 5.02. Corporate Existence. Each Loan Party will preserve,
maintain in full force and effect, and renew as necessary all governmental
rights, privileges, qualification, permits, licenses and franchises necessary or
desirable in the normal conduct of its business except (i) to the extent such
failure to preserve the same could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect and (ii) as otherwise permitted in connection
with sales of assets permitted by Section 6.11.
74
Section 5.03. Insurance. Each Loan Party will keep its insurable
properties insured at all times, against such risks, including fire and other
risks insured against by extended coverage, as is customary with companies of
the same or similar size in the same or similar businesses; and maintain in full
force and effect public liability insurance against claims for personal injury
or death or property damage occurring upon, in, about or in connection with the
use of any properties owned, occupied or controlled by such Loan Party, as the
case may be, in such amounts and with such deductibles as are customary with
companies of the same or similar size in the same or similar businesses and in
the same geographic area, and maintain such other insurance or self insurance as
may be required by law.
Section 5.04. Obligations and Taxes. Each Loan Party will pay all its
material obligations arising after the Petition Date promptly and in accordance
with their terms and pay and discharge promptly all material taxes, assessments
and governmental charges or levies imposed upon it or upon its income or profits
or in respect of its property arising after the Petition Date, before the same
shall become in default, as well as all material lawful claims for labor,
materials and supplies or otherwise arising after the Petition Date which, if
unpaid, would become a Lien (other than a Permitted Lien) or charge upon such
properties or any part thereof; provided, however, that such Loan Party shall
not be required to pay and discharge or to cause to be paid and discharged any
such tax, assessment, charge, levy or claim so long as the validity or amount
thereof shall be contested in good faith by appropriate proceedings (if such
Loan Party shall have set aside on their books adequate reserves therefor in
conformity with GAAP).
Section 5.05. Notice of Event of Default, etc. Each Loan Party will,
within two Business Days thereof, give to the Administrative Agent notice in
writing of (a) any Default or Event of Default and (b) any material litigation,
investigations or proceedings which may exist at any time between such Loan
Party and any Governmental Authority, other than those described in the Current
SEC Reports.
Section 5.06. Access to Books and Records. Each Loan Party will
maintain or cause to be maintained at all times true and complete books and
records in accordance with GAAP of the financial operations of such Loan Party
(provided that no Loan Party shall be deemed to have breached the foregoing
covenant solely as a result of matters described in the Current SEC Reports,
provided that such Loan Party is in compliance with Section 5.11); and provide
the Agents and their respective representatives access to all such books and
records during regular business hours, in order that the Agents may examine and
make abstracts from such books, accounts, records and other papers. Each Loan
Party will, at any reasonable time and from time to time during regular business
hours, upon reasonable notice, permit any Agent or any DIP Lender or any of
their respective representatives (including, without limitation, appraisers) to
visit the properties of such Loan Party and to conduct examinations of and to
monitor the Collateral and to discuss the affairs, finances and condition of
such Loan Party with the officers and independent accountants of such Loan
Party.
75
Section 5.07. Furnishing of Additional Information. Each Loan Party
will deliver to the Collateral Agent (i) within 30 days after the date hereof,
such financing statements, security agreements, or other documents as may be
necessary or desirable or as the Collateral Agent may request in order to
perfect any security interest on any of the Collateral, (ii) within 15 days
after the date hereof, a Perfection Certificate (as defined in the Amended and
Restated Security and Pledge Agreement) with respect to such Loan Party, in the
form specified in the Amended and Restated Security and Pledge Agreement, (iii)
within 60 days after the date of the Existing Credit and Guaranty Agreement, a
schedule (the "Intellectual Property Schedule") setting forth a complete and
accurate list of all patents, registered and material unregistered trademarks,
material trade names, service marks and copyrights, and all applications
pertaining to the foregoing and licenses thereof, of the Loan Parties
(collectively, the "Intellectual Property"), showing as of the date of such
schedule the jurisdiction in which registered, the registration number, the date
of registration and the expiration date; (iv) within 60 days after the date of
the Existing Credit and Guaranty Agreement, UCC searches with respect to each
Loan Party in the jurisdiction of its incorporation, and each jurisdiction where
it conducts business and/or any of its assets are located (or deemed to be
located), and (v) solely if such Loan Party is the Parent or a Borrower, within
45 days after the date of the Existing Credit and Guaranty Agreement, customary
favorable written opinions (including opinions regarding due organization, valid
existence, requisite authority to enter into the transactions contemplated
hereby, due execution and delivery of the Loan Documents) of in-house counsel to
the Parent and each Borrower, each dated as of the Closing Date, and each in
form and substance, and from a Person, reasonably acceptable to the Co-Lead
Arrangers; provided that periods provided for delivery of documents in any of
items (i), (ii), (iii), (iv) and (v) above may be extended by the Co-Lead
Arrangers.
Section 5.08. Use of Proceeds. (a) The proceeds of the Loans made to
each Borrower will be used by such Borrower solely (i) for general corporate
purposes of such Borrower and each other Loan Party in such Borrower's Borrower
Group and (ii) to make Investments to the extent permitted by Section 6.10. The
Letters of Credit issued for the account of any Borrower will be used for
general corporate purposes in the ordinary course of business, including support
of surety bonds and similar obligations. The use of all of such proceeds and all
Letters of Credit shall be subject to the limitations set forth in the Orders.
(b) No Several Loan Party will use any Net Proceeds received by it in
respect of any Reduction Event for any purpose other than the funding of the
operations of such Loan Party and each other Loan Party that belongs to the same
Borrower Group and, without limiting the generality of the foregoing, no Several
Loan Party shall use any such Net Proceeds to make any Permitted Inter-Group
Advances. Net Proceeds received by a Several Loan Party in respect of any
Reduction Event shall be deposited in a separate account to be maintained with
the Administrative Agent for the benefit of such Several Loan Party (which
account shall not be part of the cash management system of the
76
Parent Group) and may be withdrawn only for the uses specified in the
immediately preceding sentence. Nothing in this Agreement shall be construed to
constitute a waiver by any DIP Lender or any other creditor of any legal rights
such DIP Lender or other creditor or party in interest may have to challenge,
object or otherwise seek relief with respect to any such Reduction Event and all
such rights are hereby expressly reserved.
Section 5.09. Chief Restructuring Officer. The Borrowers will at all
times continue to employ a chief restructuring officer whose identity, and the
scope of whose duties, are reasonably acceptable to the Co-Lead Arrangers.
Section 5.10. Franchise Agreements. Each Loan Party will preserve and
maintain in full force and effect each franchise agreement or similar agreement
to which it is a party from time to time (including without limitation by
ensuring the timely renewal thereof), so long as after giving effect to the
lapse thereof, the aggregate number of subscribers that were covered by all such
franchise agreements of all Loan Parties in any Borrower Group that have lapsed
since the Petition Date does not exceed (i) 10% of the aggregate amount of
subscribers that were covered by all such franchise agreements of all Loan
Parties in such Borrower Group on the Petition Date and (ii) 10% of the
aggregate amount of subscribers that were covered by all such franchise
agreements of all Loan Parties on the Petition Date.
Section 5.11. Ongoing Compliance. Without limiting its obligations
under Section 6.13, each Loan Party will use its best efforts to correct, as
expeditiously as possible, any deficiencies in its financial statements and
records, and in its accounting, reporting and cash management systems, described
in the Current SEC Reports.
Section 5.12. Maintenance of Concentration Account. The Loan Parties
shall, within 30 days after the Initial Closing Date, and at all times
thereafter, maintain with the Administrative Agent an account or accounts (the
"Concentration Account") (a) to be used by the Loan Parties as their principal
concentration accounts and (b) into which shall be swept or deposited, at the
end of each Business Day, all cash of the Loan Parties and the full available
balances in excess of an aggregate of $500,000 in all of the operating and other
bank accounts of the Loan Parties at any institution other than the
Administrative Agent (other than any amounts required or permitted to be
deposited in any other account pursuant to the Cash Management Protocol);
provided that this covenant shall not apply to the accounts maintained with
respect to the Telemedia joint ventures in accordance with past practice so long
as (x) no Loan Party shall have control over the management of such accounts and
(y) only amounts generated by the Telemedia joint ventures shall be deposited
therein.
Section 5.13. Additional Loan Parties. Promptly and in any event within
10 days after any Subsidiary of the Parent that is not a Loan Party on the date
hereof shall have filed a voluntary petition with the Bankruptcy Court under
chapter 11 of the Bankruptcy Code, the Parent will cause such Subsidiary to
become a party to this
77
Agreement and the Amended and Restated Security and Pledge Agreement by
executing a counterpart of each such Loan Document (and cause the Interim Order
or the Final Order, as the case may be, to be applicable to such Subsidiary),
whereupon (i) such Subsidiary shall have all the rights, and be subject to all
the obligations, of a Loan Party under the Loan Documents and (ii) such
Subsidiary shall be designated a Several Loan Party or a Joint and Several Loan
Party (and if applicable, shall be identified as belonging to a Borrower Group),
as the Parent and the Co-Lead Arrangers may agree.
Section 5.14. Exiting Loan Parties. No Loan Party shall be obligated to
comply with any covenants set forth in this Article 5 from and after the date
such Loan Party becomes an Exiting Loan Party.
ARTICLE 6.
NEGATIVE COVENANTS
From the date hereof and for so long as any Commitment shall be in
effect or any Letter of Credit shall remain outstanding or any Obligation shall
remain outstanding or unpaid under the Loan Documents, each of the applicable
Loan Parties will not (and will not apply to the Bankruptcy Court for authority
to):
Section 6.01. Liens. Each Loan Party will not incur, create, assume or
suffer to exist any Lien on any asset of such Loan Party now owned or hereafter
acquired by such Loan Party, other than: (a) Liens securing the obligations of
such Loan Party under the Pre-Petition Facility to which such Loan Party is a
party, (b) Liens (other than Liens described in clause (a)) existing on the
Petition Date and set forth on Schedule 6.01, (c) Liens in favor of the
Pre-Petition Lenders as adequate protection granted pursuant to the Orders,
which Liens are junior to the Liens contemplated hereby in favor of the Agents,
the Fronting Banks and the DIP Lenders and junior to any Permitted Inter-Group
Debt Lien, provided that the Interim Order and the Final Order shall provide
that the holders of such junior Liens shall not be permitted to take any action
to foreclose or otherwise exercise any remedies with respect to such junior
Liens (except that such holders shall not be prevented from seeking additional
adequate protection or modification thereof or seeking the termination of the
use of cash collateral upon the occurrence and during the continuance of any
Event of Default so long as such additional adequate protection shall at all
times be subject and junior to the claims and Liens in favor of the Agents, the
Fronting Banks and the DIP Lenders and the Permitted Inter-Group Debt Liens, (d)
Permitted Liens, (e) Liens in favor of the Agents, the Fronting Banks and the
DIP Lenders securing the Obligations, (f) Permitted Inter-Group Debt Liens, and
(g) Liens on cash and cash equivalents securing reimbursement obligations with
respect to surety bonds in the ordinary course of business so long as after
giving effect to any such Lien, the Surety Credit Usage does not exceed the
Surety Basket Amount.
78
Section 6.02. Merger, etc. Each Loan Party will not consolidate or
merge with or into another Person, except that any Loan Party that belongs to
any Borrower Group may merge or consolidate with any other Loan Party that
belongs to the same Borrower Group.
Section 6.03. Indebtedness. Each Loan Party will not contract, create,
incur, assume or suffer to exist any Indebtedness, except for (a) Indebtedness
under this Agreement; (b) Indebtedness incurred prior to the Petition Date; (c)
Indebtedness incurred pursuant to Intra-Group Advances, (d) Permitted
Inter-Group Debt solely to the extent arising from Intercompany Advances that
are permitted under clause (iv) of Section 6.10(a), (e) Indebtedness consisting
of guaranties permitted by Section 6.06, (f) Indebtedness owed to any DIP Lender
or any of its Affiliates in respect of any overdrafts and related liabilities
arising from treasury, depository and cash management services or in connection
with any automated clearing house transfer of funds, and (g) purchase money
Indebtedness in an aggregate amount not in excess of $40,000,000, the proceeds
of which Indebtedness are applied to finance the acquisition, construction or
improvement of real property, vehicles or equipment in the ordinary course of
business and extensions, renewals or replacements of any such Indebtedness.
Section 6.04. Capital Expenditures. Each Borrower will not permit
Capital Expenditures for its Borrower Group for any month ended on or after the
Covenant Addendum Date to exceed the amount set forth for such month in the
Covenant Addendum.
Section 6.05. Minimum EBITDA. Each Borrower will not permit EBITDA for
its Borrower Group for any month ended on or after the Covenant Addendum Date to
be less than the amount set forth in the Covenant Addendum.
Section 6.06. Guarantees and Other Liabilities. Each Loan Party will
not purchase or repurchase (or agree, contingently or otherwise, so to do) the
Indebtedness of, or assume, guarantee (directly or indirectly or by an
instrument having the effect of assuring another's payment or performance of any
obligation or capability of so doing, or otherwise), endorse or otherwise become
liable, directly or indirectly, in connection with the obligations, stock or
dividends of any Person, except (i) Permitted Inter-Group Guarantees, (ii) any
other guaranty of Indebtedness or other obligations of any Loan Party if such
Loan Party could have incurred such Indebtedness or obligations under this
Agreement, and (iii) by endorsement of negotiable instruments for deposit or
collection in the ordinary course of business.
Section 6.07. Chapter 11 Claims. Each Loan Party will not incur,
create, assume, suffer to exist or permit any other Superpriority Claim that is
pari passu with or senior to the claims of the Agents, the Fronting Banks and
the DIP Lenders against the Loan Parties under the Loan Documents.
79
Section 6.08. Dividends; Capital Stock. Each Loan Party will not
declare or pay, directly or indirectly, any dividends or make any other
distribution, or payment, whether in cash, property, securities or a combination
thereof, with respect to (whether by reduction of capital or otherwise) any
shares of capital stock (or any options, warrants, rights or other equity
securities or agreements relating to any capital stock), any partnership
interests, or set apart any sum for the aforesaid purposes, except that any Loan
Party (other than a Borrower) in any Borrower Group may pay dividends to any
other Loan Party in such Borrower Group.
Section 6.09. Transactions with Affiliates. Each Loan Party will not
sell or transfer any property to, or otherwise engage in any other material
transactions with, any of its Affiliates, other than in the ordinary course of
business in good faith and at prices and on terms and conditions not less
favorable than could be obtained on an arms'-length basis from unrelated third
parties; provided that nothing in this Section 6.09 shall be construed to
prohibit any Investment permitted under Section 6.10.
Section 6.10. Investments, Intercompany Advances. (a) Each Loan Party
will not purchase, hold or acquire any capital stock, evidences of indebtedness
or other securities of, make or permit to exist any loans or advances to, or
make or permit to exist any investment in, any other Person (all of the
foregoing, "Investments"), except for (i) ownership by each Loan Party of the
Equity Interests of each of its Subsidiaries referred to in Section 3.05, (ii)
Permitted Investments, (iii) Investments (other than Investments permitted by
clause (i)) by each Loan Party outstanding on the Petition Date (but not any
refinancings or extensions thereof or further advances of any kind in connection
therewith), (iv) Intercompany Advances to the extent permitted by subsection
(b), (v) prior to the Covenant Addendum Date, any Investment consisting of loans
or advances made by any Loan Party that belongs to a Joint and Several Borrower
Group to any Person (other than a Loan Party) that is engaged in the cable
business and whose assets are managed by a Loan Party so long as (1) the
aggregate amount of such Investments will not exceed $10,000,000, (2) the
proceeds of any such Investment will be used by the recipient thereof solely for
working capital purposes and (3) the Loan Party that has made such Investment
will use its commercially reasonable efforts to cause any such Investment to be
secured by assets of the recipient of the proceeds thereof, (vi) prior to the
Covenant Addendum Date, Investments not otherwise permitted by the foregoing
clauses in an aggregate amount not to exceed $3,000,000, (vii) Investments
consisting of the acquisition of assets pursuant to the Settlement Agreement (so
long as the terms of such acquisition, taken as a whole, are fair and
reasonable), (viii) on and after the Covenant Addendum Date, Investments to the
extent permitted by the Covenant Addendum and subject to the limitations set
forth therein and (ix) prior to the Covenant Addendum Date, any Investment
consisting of loans or advances made by any Loan Party that belongs to the Seven
A Borrower Group to STV Communications in an aggregate amount not to exceed
$10,000,000, except that any such Loan Party shall not be permitted to make any
such Investment to the extent the aggregate amount of such Investments exceeds
$5,000,000 until the Co-Lead Arrangers, in their sole discretion, are
80
satisfied with their additional due diligence review with respect to STV
Communications; provided that (1) no Loan Party shall be deemed to have breached
this covenant solely as a result of the continuation after the date hereof and
prior to the date that falls 45 days after the date hereof of matters relating
to the Adelphia Cash Management System that are described in the Current SEC
Reports, so long as such Loan Party is in compliance with Section 5.11 and (2)
no Loan Party shall make any Investment (including without limitation any loan
or advance) (i) in any Exiting Loan Party from and after the date such Exiting
Loan Party becomes an Exiting Loan Party or (ii) in Century/ML Cable Venture, a
New York joint venture, and Century-ML Cable Corporation, a Delaware
corporation, or any of their respective Subsidiaries or joint ventures.
(b) Intercompany Advances will be subject to the following
restrictions:
(i) no Loan Party which belongs to any Borrower Group may make any
Intercompany Advance directly to any Loan Party that belongs to any
other Borrower Group;
(ii) any Loan Party which belongs to any Borrower Group may make
any Intercompany Advance to any other Loan Party which belongs to the
same Borrower Group (any such Intercompany Advance, an "Intra-Group
Advance");
(iii) in addition to any Intra-Group Advance, any Loan Party which
belongs to any Borrower Group may make any Intercompany Advance to any
Loan Party that is a Holding Company Guarantor and a direct or indirect
holding company of such Loan Party, subject to the proviso set forth
below; and
(iv) any Holding Company Guarantor may make any Intercompany
Advance to any other Holding Company Guarantor that is a direct or
indirect holding company of such Holding Company Guarantor or to a
direct or indirect subsidiary of such Holding Company Guarantor,
subject to the proviso set forth below;
provided that (v) any Permitted Inter-Group Advance may be made only so
long as (1) it shall be secured by Liens on the Collateral of (i) the Loan Party
to which such Permitted Inter-Group Advance is made pursuant to clause (iv)
above (the "Ultimate Intercompany Borrower") and (ii) each other Loan Party that
is a member of the same Borrower Group as the Ultimate Intercompany Borrower
(any such Lien, a "Permitted Inter-Group Debt Lien"), which Lien shall be junior
in right of payment and in all other respects to the Liens on such Collateral in
favor of the Agents, the Fronting Banks and the DIP Lenders on the Collateral
and shall be subordinated thereto pursuant to a subordination agreement in form
and substance acceptable to the Co-Lead Arrangers in
81
their sole discretion and (2) the repayment thereof shall be an obligation of or
guaranteed by such Ultimate Intercompany Borrower pursuant to an instrument or
guarantee in form and substance acceptable to the Co-Lead Arrangers in their
sole discretion (any such instrument or guarantee, a "Permitted Inter-Group
Guarantee"), (w) no Loan Party which belongs to any Borrower Group may incur any
Permitted Inter-Group Debt or make any Permitted Inter-Group Advance (i) while a
Financial Covenant Event of Default has occurred and is continuing with respect
to such Borrower Group or (ii) if such Loan Party is not in compliance with the
requirements of Section 6.10(d), (and no Loan Party which does not belong to
such Borrower Group shall make any Permitted Inter-Group Advance to any Loan
Party which belongs to such Borrower Group during such time). (x) Permitted
Inter-Group Debt will bear interest from time to time on a monthly basis at the
rate equal to the blended rate of interest for such period under this Agreement.
Obligations under any Permitted Inter-Group Guarantee shall be joint and several
obligations of each Loan Party that is a member of the Borrower Group of which
the Ultimate Intercompany Borrower is a member and (y) any Holding Company
Guarantor which is the recipient of funds pursuant to an Intercompany Advance
pursuant to Section 6.10(b)(iii) will (1) promptly, and in any event within one
Business Day of receipt thereof, use such funds to make an Intercompany Advance
described in Section 6.10(b)(iv) or (2) to the extent such Holding Company
Guarantor holds operating assets, use such funds to fund its operations. No Loan
Party will use the proceeds of any Intercompany Advance or any Loan (x) to
finance expenditures related to the golf course in Coudersport, Pennsylvania,
other than remediation costs and other costs associated with the shut-down of
such golf course or (y) to finance expenditures incurred by or related to the
Buffalo Sabres hockey team (but nothing in this clause (y) shall be construed to
prohibit the wind-down of existing insurance and other operating arrangements
with respect to such team).
"Permitted Inter-Group Debt" means any intercompany debt permitted to
be incurred by any Loan Party pursuant to clauses (iii) or (iv) above.
"Permitted Inter-Group Advance" means any intercompany loan or advance
permitted to be made by any Loan Party pursuant to clauses (iii) or (iv) above.
(c) Subject to the proviso set forth in clause (a), on any date, the
sum of (i) the Outstanding Permitted Inter-Group Debt of each Borrower Group
(including, without limitation, the Seven A Borrower Group) plus (ii) the
Outstanding Exposure of the Borrower in such Borrower Group on such date shall
not exceed such Borrower's Borrowing Limit; provided, however, until the Co-Lead
Arrangers, in their sole discretion, are satisfied with their additional due
diligence review with respect to the Seven A Borrower Group, ACC Investments
Holdings, Inc.'s Outstanding Exposure shall be $0.
82
(d) At the times and on the dates specified in the Cash Management
Protocol, each Loan Party shall repay Loans and Intercompany Advances, as
applicable, in the amounts required to be repaid in the Cash Management
Protocol.
Section 6.11. Disposition of Assets. Each Loan Party will not sell or
otherwise dispose of any assets except for (i) sales of inventory, fixtures and
equipment in the ordinary course of business, (ii) sales of surplus equipment no
longer used in the businesses of the Loan Parties, (iii) sales of assets
pursuant to an Asset Sale Agreement and (iv) sales of assets (other than those
described in clause (i), (ii) or (iii) hereof) with an aggregate fair market
value not to exceed $15,000,000 (cumulatively for all Loan Parties); provided
that in each of the above cases (x) the consideration received by the relevant
Loan Party shall not be less than the fair market value of the assets sold or
disposed of, (y) where required by law, the sale or disposition shall have
received the approval of the Bankruptcy Court and (z) upon receipt by such Loan
Party of any Net Proceeds of any sale or disposition described in clause (ii),
(iii) or (iv) hereof constituting a Reduction Event, such Loan Party will comply
with the provisions of Section 2.12.
Section 6.12. Nature of Business. Each Loan Party will not modify or
alter in any material manner the nature and type of its business as conducted at
or prior to the Petition Date or the manner in which such business is conducted
(except as required by the Bankruptcy Code), it being understood that sales
permitted by Section 6.11 shall not constitute such a material modification or
alteration.
Section 6.13. Cash Management System. Each Loan Party will not conduct
its cash management system on and after the Petition Date in any manner other
than in accordance with the Cash Management Protocol and the Cash Management
Order; provided that from and after the occurrence of a Cash Management
Separation with respect to any Loan Party, the provisions of this Section 6.13
shall be deemed to have been amended to provide that the Borrower Group to which
such Loan Party belongs shall be excluded from such cash management system and
each other Loan Party shall comply with all the conditions (if any) applicable
to it pursuant to the terms of such Cash Management Separation.
Section 6.14. Exiting Loan Parties. No Loan Party shall be obligated to
comply with any covenants set forth in this Article 6 from and after the date
such Loan Party becomes an Exiting Loan Party.
83
ARTICLE 7.
EVENTS OF DEFAULT
Section 7.01. Events of Default. In the case of the happening of any of
the following events and the continuance thereof beyond the applicable period of
grace, if any (each, an "Event of Default"):
(a) any representation or warranty made (or deemed made) by a Loan
Party in any Loan Document or in connection with any Loan Document or any Credit
Event or any statement or representation made in any report, financial
statement, certificate or other document furnished by a Loan Party to any Agent,
any Fronting Bank or any DIP Lenders under or in connection with any Loan
Document (including without limitation the Covenant Addendum), shall prove to
have been false or misleading in any material respect when made (or deemed made)
or delivered; or
(b) default shall be made in the payment of (i) any principal of the
Loans or Reimbursement Obligations or cash collateralization requirement
pursuant to Section 2.14 when due (whether at the fixed due date thereof
(including the Prepayment Date), or as a result of a Reduction Event, or by
acceleration thereof or otherwise); or (ii) Fees or interest on the Loans or
interest on the Reimbursement Obligations or any other amount payable under any
Loan Document (other than any amount described in clause (i)) when due, and such
default described in this clause (ii) shall continue unremedied for more than
two (2) Business Days, or
(c) default shall be made by any Loan Party in the due observance or
performance of any covenant, condition or agreement contained in Sections
5.01(k), 5.08, 5.09, 5.10 or Article 6 hereof; or
(d) default shall be made by any Loan Party in the due observance or
performance of any other covenant, condition or agreement to be observed or
performed pursuant to the terms of this Agreement or any of the other Loan
Documents or the Orders and such default shall continue unremedied for more than
ten (10) days; or
(e) any of the Cases shall be dismissed or converted to a case under
chapter 7 of the Bankruptcy Code or any Loan Party shall file a motion or other
pleading seeking the dismissal of any of the Cases under Section 1112 of the
Bankruptcy Code or otherwise (or any other Person shall file such motion or
pleading that shall not be dismissed within 10 days after the filing thereof); a
trustee under chapter 7 or chapter 11 of the Bankruptcy Code, a responsible
officer or an examiner with enlarged powers relating to the operation of the
business (powers beyond those set forth in Section 1106(a)(3) and (4) of the
Bankruptcy Code) under Section 1106(b) of the Bankruptcy Code shall be appointed
in any of the Cases and the order appointing such trustee, responsible officer
or examiner shall not be reversed or vacated within 30 days after the entry
thereof (provided that the appointment of any examiner with investigatory
powers,
84
who may issue reports to the Bankruptcy Court or perform any similar activities
that do not involve participating in the management of the Debtors will not be
considered an examiner with enlarged powers); or an application shall be filed
by any Loan Party for the approval of any other Superpriority Claim (other than
the Carve-Out) in any of the Cases which is pari passu with or senior to the
claims of the Agents, the Fronting Banks and the DIP Lenders against any Loan
Party hereunder, or there shall arise or be granted any such pari passu or
senior Superpriority Claim; or
(f) the Bankruptcy Court shall enter an order or orders granting relief
from the automatic stay applicable under Section 362 of the Bankruptcy Code to
the holder or holders of any security interest to permit foreclosure (or the
granting of a deed in lieu of foreclosure or the like) on any of the assets of a
Loan Party that have a value in excess of $5,000,000 in the aggregate; or
(g) a Change of Control shall occur (except with respect to a Loan
Party that is an Exiting Loan Party); or
(h) any provision of any Loan Document shall, for any reason, cease to
be valid and binding against any Loan Party or any Loan Party shall so assert in
any pleading filed in any court; or
(i) an order of the Bankruptcy Court shall be entered reversing,
amending, supplementing, staying for a period in excess of ten (10) days,
vacating or otherwise modifying either of the Orders or terminating the use of
cash collateral by the Loan Parties pursuant to the Orders; or
(j) any judgment or order as to a post-petition liability or debt for
the payment of money in excess of $5,000,000 shall be rendered against any Loan
Party and the enforcement thereof shall not have been stayed; or
(k) any non-monetary judgment or order with respect to a post-petition
event shall be rendered against any Loan Party which does or would reasonably be
expected to have a Material Adverse Effect and there shall be any period of ten
(10) consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(l) except as permitted by the Orders, any Loan Party shall make any
Pre-Petition Payment other than Pre-Petition Payments authorized by the
Bankruptcy Court in respect of: (i) employee reimbursement, health care, and
welfare claims, (ii) sales and use taxes in a total amount not in excess of
$5,000,000, (iii) any fees due to regulatory authorities in a total amount not
in excess of $46,000,000, (iv) any E-rate program rebates in a total amount not
in excess of $1,300,000, (v) accrued employee wages and salaries, (vi) insurance
premiums and any retroactive adjustments, (vii) warehouse
85
expenses in a total amount not in excess of $500,000 and (viii) expenses related
to customer programs (including deposits, marketing offers and charitable
events); or
(m) any Termination Event described in clauses (iii) or (iv) of the
definition of such term shall have occurred and shall continue unremedied for
more than ten (10) days and the sum (determined as of the date of occurrence of
such Termination Event) of the Insufficiency of the Plan in respect of which
such Termination Event shall have occurred and be continuing and the
Insufficiency of any and all other Plans with respect to which such a
Termination Event (described in such clauses (iii) or (iv)) shall have occurred
and then exist is equal to or greater than $2,000,000; or
(n) (i) Any Loan Party or any ERISA Affiliate thereof shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan, (ii) such Loan Party or such ERISA
Affiliate does not have reasonable grounds to contest such Withdrawal Liability
and is not in fact contesting such Withdrawal Liability in a timely and
appropriate manner and (iii) the amount of such Withdrawal Liability specified
in such notice, when aggregated with all other amounts required to be paid to
Multiemployer Plans in connection with Withdrawal Liabilities (determined as of
the date of such notification), exceeds $2,000,000 allocable to post-petition
obligations or requires payments exceeding $2,000,000 per annum in excess of the
annual payments made with respect to such Multiemployer Plans by such Loan Party
or such ERISA Affiliate for the plan year immediately preceding the plan year in
which such notification is received; or
(o) any Loan Party or any ERISA Affiliate thereof shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan is
in reorganization or is being terminated, within the meaning of Title IV of
ERISA, if as a result of such reorganization or termination the aggregate annual
contributions of such Loan Party and its ERISA Affiliates to all Multiemployer
Plans that are then in reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer Plans for the plan
years that include the date hereof by an amount exceeding $2,000,000; or
(p) any Loan Party or any ERISA Affiliate shall have committed a
failure described in Section 302(f)(1) of ERISA (other than the failure to make
any contribution accrued and unpaid as of the Petition Date) and the amount
determined under Section 302(f)(3) of ERISA is equal to or greater than
$2,000,000; or
(q) it shall be determined (whether by the Bankruptcy Court or by any
other judicial or administrative forum) that any Loan Party is liable for the
payment of claims arising out of any failure to comply (or to have complied)
with applicable environmental laws or regulations the payment of which will have
a Material Adverse Effect on the financial condition, business, properties,
operations or assets of the Loan Parties, taken as a whole, and the enforcement
thereof shall not have been stayed; or
86
(r) default shall be made by any Loan Party in the due observance or
performance of any term or condition contained in any Order; or
(s) the Covenant Addendum Date shall not have occurred on or prior to
the 120th Day; or
(t) any criminal indictment of any Loan Party shall occur;
then, and in every such event and at any time thereafter during the continuance
of such event, and without further order of or application to the Bankruptcy
Court, subject to the proviso set forth at the end of this paragraph, the
Administrative Agent or the Collateral Agent, as the case may be, may, and at
the request of the Required DIP Lenders shall, take one or more of the following
actions, at the same or different times: (i) terminate forthwith the Total
Tranche A Commitment and the Total Tranche B Credit-Linked Deposit Amount; (ii)
declare the Loans then outstanding to be forthwith due and payable, whereupon
the principal of the Loans together with accrued interest thereon and any unpaid
accrued Fees and all other liabilities of the Loan Parties accrued hereunder and
under any other Loan Document, shall become forthwith due and payable, without
presentment, demand, protest or any other notice of any kind, all of which are
hereby expressly waived by the Loan Parties, anything contained herein or in any
other Loan Document to the contrary notwithstanding; (iii) require each Borrower
upon demand to forthwith deposit in its Letter of Credit Account cash in an
amount that, together with any amounts then held in such Letter of Credit
Account, is equal to the sum of 110% of the then outstanding Letters of Credit
issued for the account of such Borrower; (iv) upon at least 5 days' prior notice
to the applicable Loan Party, set-off amounts in each Letter of Credit Account,
or any other accounts maintained by any Loan Party with any Agent and apply such
amounts to the Obligations of such Loan Party hereunder and in the other Loan
Documents; and (v) exercise any and all remedies under the Loan Documents and
under applicable law available to the Agents, the Fronting Banks and the DIP
Lenders (subject, in the case of clause (iv), to the notice specified therein),
and the proceeds of any sale or other disposition of the Collateral of any Loan
Party shall be applied in accordance with the provisions of the Amended and
Restated Security and Pledge Agreement; provided that (A) upon the occurrence
and at any time during the continuance of (xx) a Financial Covenant Event of
Default with respect to a Borrower Group or (yy) a True-Up Event of Default with
respect to any test date or time and with respect to a Borrower Group (so long
as no True-Up Event of Default with respect to such Borrower Group occurred on
the immediately prior test date or time) and, in the case of clauses (xx) or
(yy), the occurrence and continuance at such time of no other Event of Default,
the Administrative Agent and the Collateral Agent may not, and Required DIP
Lenders may not request either of them to, (1) take the action described in
clause (i), (2) take any actions described in clause (ii) with respect to any
Loans other than the Loans of the Borrower (the "Defaulting Borrower") whose
failure to comply with Section 6.04, 6.05 or 6.10(d), as the case may be, has
resulted in such Financial
87
Covenant Event of Default or True-Up Event of Default, as the case may be, (3)
take any actions described in clauses (iii) and (iv) with respect to any Letter
of Credit Account, or other account other than the Letter of Credit Account, and
any other account of the Defaulting Borrower, of any Several Guarantor that
belongs to the same Borrower Group as the Defaulting Borrower, of any Joint and
Several Borrower and of any Joint and Several Guarantor (all such Loan Parties,
collectively, the "Defaulting Group") and (4) take any actions described in
clause (v) with respect to any Loan Party other than a Loan Party that belongs
to the Defaulting Group and (B) upon the occurrence at any time of an Event of
Default contemplated in Section 7.01(g) (so long as no other Event of Default
has occurred or is continuing at such time), (1) the Administrative Agent and
the Collateral Agent may not, and the Required DIP Lenders may not request
either of them to, take any actions described in clauses (i), (ii), (iii), (iv),
and (v) prior to the 30th day after the day on which such Change of Control
first occurred.
ARTICLE 8.
THE AGENTS
Section 8.01. Administration by Agents. The general administration of
the Loan Documents shall be performed by the Agents as contemplated therein.
Each DIP Lender hereby irrevocably authorizes the appropriate Agent, at its
discretion, to take or refrain from taking such actions as such Agent on its
behalf and to exercise or refrain from exercising such powers under the Loan
Documents as are delegated by the terms hereof or thereof, as appropriate,
together with all powers reasonably incidental thereto (including the release of
Collateral in connection with any transaction that is expressly permitted by the
Loan Documents). The Agents shall have no duties or responsibilities except as
expressly set forth in this Agreement and the remaining Loan Documents.
Section 8.02. Advances and Payments.
(a) On the date of each Loan, the Administrative Agent shall be
authorized (but not obligated) to advance, for the account of each of the
Tranche A DIP Lenders, the amount of the Loan to be made by it in accordance
with its Tranche A Commitment hereunder. Should the Administrative Agent do so,
each of the Tranche A DIP Lenders agrees forthwith to reimburse the
Administrative Agent in immediately available funds for the amount so advanced
on its behalf by the Administrative Agent, together with interest at the Federal
Funds Effective Rate if not so reimbursed on the date due from and including
such date but not including the date of reimbursement.
(b) Any amounts received by any of the Agents in connection with any
Loan Document (other than amounts to which such Agent is entitled to receive for
its own account pursuant to Sections 2.20, 2.22, 8.06, 10.05 and 10.06 of this
Agreement), the application of which is not otherwise provided for in any Loan
Document shall be
88
applied, first, in accordance with each DIP Lender's Class Percentage to pay
accrued but unpaid Commitment Fees (if any) or Letter of Credit Fees, and
second, in accordance with each DIP Lender's Class Percentage to pay accrued but
unpaid interest and the principal balance outstanding and all reimbursed Letter
of Credit drawings, and then to cash collateralize any outstanding Letter of
Credit Obligations and to pay any other outstanding Obligation. All amounts to
be paid to a DIP Lender by the Administrative Agent shall be credited to that
DIP Lender, after collection by the Administrative Agent, in immediately
available funds either by wire transfer or deposit in that DIP Lender's
correspondent account with the Administrative Agent, as such DIP Lender and the
Administrative Agent shall from time to time agree (except that any amounts to
be paid to any Tranche B DIP Lender and required to be deposited pursuant to
Section 2.02(b) in its Tranche B Credit-Linked Account shall be so deposited).
Subject in any event to Section 8.03, in the event of an acceleration of the
Loans and Reimbursement Obligations in accordance with the terms hereof, any
payments with respect thereto shall be applied pro rata between the Classes, on
the basis of the aggregate Tranche A Outstanding Exposure of all the Tranche A
DIP Lenders and the aggregate Tranche B Outstanding Exposure of all the Tranche
B DIP Lenders at such time.
Section 8.03. Sharing of Setoffs. Each DIP Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or counterclaim
against any Loan Party, including, but not limited to, a secured claim under
Section 506 of the Bankruptcy Code or other security interest arising from, or
in lieu of, such secured claim and received by such DIP Lender under any
applicable bankruptcy, insolvency or other similar law, or otherwise, obtain
payment in respect of its Loans as a result of which the unpaid portion of its
Loans is proportionately less than the unpaid portion of the Loans of any other
DIP Lender (a) it shall promptly purchase at par (and shall be deemed to have
thereupon purchased) from such other DIP Lender a participation in the Loans of
such other DIP Lender, so that the aggregate unpaid principal amount of each DIP
Lender's Loans and its participation in Loans of the other DIP Lenders shall be
in the same proportion to the aggregate unpaid principal amount of all Loans
then outstanding as the principal amount of its Loans prior to the obtaining of
such payment was to the principal amount of all Loans outstanding prior to the
obtaining of such payment and (b) such other adjustments shall be made from time
to time as shall be equitable to ensure that the DIP Lenders share such payment
pro-rata, provided that if any such non-pro-rata payment is thereafter recovered
or otherwise set aside, such purchase of participation shall be rescinded
(without interest). Each Loan Party expressly consents to the foregoing
arrangements and agrees that any DIP Lender holding (or deemed to be holding) a
participation in a Loan may exercise any and all rights of banker's lien, setoff
or counterclaim with respect to any and all moneys owing by such Borrower to
such DIP Lender as fully as if such DIP Lender held a Note and was the original
obligee thereon, in the amount of such participation.
Section 8.04. Agreement of Required DIP Lenders or Super-Majority DIP
Lenders. Upon any occasion requiring or permitting an approval, consent, waiver,
89
election or other action on the part of the Required DIP Lenders or
Super-Majority DIP Lenders, action shall be taken by the Administrative Agent
for and on behalf or of the benefit of all DIP Lenders upon the direction of the
Required DIP Lenders or the Super-Majority DIP Lenders (as the case may be), and
any such action shall be binding on all DIP Lenders. No amendment, modification,
consent, or waiver shall be effective except in accordance with the provisions
of Section 10.10.
Section 8.05. Liability of Agents.
(a) Each of the Agents, when acting on behalf of the DIP Lenders, may
execute any of its respective duties under this Agreement or any other Loan
Document by or through any of its respective officers, agents, and employees,
and none of the Agents, any of their directors, officers, agents, employees or
Affiliates shall be liable to the DIP Lenders or any of them for any action
taken or omitted to be taken in good faith, or be responsible to the DIP Lenders
or to any of them for the consequences of any oversight or error of judgment, or
for any loss, unless the same shall happen through its gross negligence or
willful misconduct. The Agents and their respective directors, officers, agents,
employees and Affiliates shall in no event be liable to the DIP Lenders or to
any of them for any action taken or omitted to be taken by them pursuant to
instructions received by them from the Required DIP Lenders or in reliance upon
the advice of counsel selected by it. Without limiting the foregoing, none of
the Agents, any of their respective directors, officers, employees,
administrative agents or Affiliates shall be responsible to any DIP Lender for
the due execution, validity, genuineness, effectiveness, sufficiency, or
enforceability of, or for any statement, warranty or representation in, this
Agreement, any Loan Document or any related agreement, document or order, or
shall be required to ascertain or to make any inquiry concerning the performance
or observance by the Borrower of any of the terms, conditions, covenants, or
agreements of this Agreement or any of the Loan Documents.
(b) None of the Agents nor any of their respective directors, officers,
employees, administrative agents or Affiliates shall have any responsibility to
any Loan Party on account of the failure or delay in performance or breach by
any DIP Lender or by any Loan Party of any of its respective obligations under
this Agreement or any of the Loan Documents or in connection herewith or
therewith.
(c) Each of the Agents, in its capacity as an Agent hereunder, shall be
entitled to rely on any communication, instrument, or document reasonably
believed by such person to be genuine or correct and to have been signed or sent
by a person or persons believed by such person to be the proper person or
persons, and such person shall be entitled to rely on advice of legal counsel,
independent public accountants, and other professional advisers and experts
selected by such person.
Section 8.06. Reimbursement and Indemnification. Each DIP Lender agrees
(i) to reimburse (x) each of the Agents for such DIP Lender's Total Percentage
of any
90
expenses and fees incurred for the benefit of the DIP Lenders under this
Agreement and any of the Loan Documents, including, without limitation, counsel
fees and compensation of agents and employees paid for services rendered on
behalf of the DIP Lenders, and any other expense incurred in connection with the
operations or enforcement thereof not reimbursed by the Loan Parties and (y)
each of the Agents for such DIP Lender's Total Percentage of any expenses of the
Agents incurred for the benefit of the DIP Lenders that the Borrowers have
agreed to reimburse pursuant to Section 10.05 and have failed to so reimburse
and (ii) to indemnify and hold harmless each of the Agents and any of its
directors, officers, employees, administrative agents or Affiliates, on demand,
in the amount of its proportionate share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against it or any of them in any way
relating to or arising out of this Agreement or any of the Loan Documents or any
action taken or omitted by it or any of them under this Agreement or any of the
Loan Documents to the extent not reimbursed by the Loan Parties (except such as
shall result from their respective gross negligence or willful misconduct).
Section 8.07. Rights of Agents. It is understood and agreed that each
of the Agents shall have the same rights and powers hereunder (including the
right to give such instructions) as the other DIP Lenders and may exercise such
rights and powers, as well as its rights and powers under other agreements and
instruments to which it is or may be party, and engage in other transactions
with any Loan Party, as though it were not an Agent of the DIP Lenders under
Loan Documents.
Section 8.08. Independent DIP Lenders. Each DIP Lender acknowledges
that it has decided to enter into this Agreement and the other Loan Documents
and to make the Loans hereunder based on its own analysis of the transactions
contemplated hereby and of the creditworthiness of the Loan Parties and agrees
that the Agents shall bear no responsibility therefor.
Section 8.09. Notice of Transfer. Each of the Agents may deem and treat
a DIP Lender party to this Agreement and any other Loan Document as the owner of
such DIP Lender's portion of the Loans for all purposes, unless and until a
written notice of the assignment or transfer thereof executed by such DIP Lender
shall have been received by each of the Agents.
Section 8.10. Successor Agents. Each Agent may resign at any time by
giving written notice thereof to the DIP Lenders and the Borrowers. Upon any
such resignation, the Required DIP Lenders shall have the right to appoint a
successor Agent, which shall be reasonably satisfactory to the Borrowers. If no
successor Agent shall have been so appointed by the Required DIP Lenders and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation, the retiring Agent may, on behalf of the DIP
Lenders, appoint a successor Agent, which shall be a
91
commercial bank organized under the laws of the United States of America or of
any State thereof and having a combined capital and surplus of at least
$100,000,000, which shall be reasonably satisfactory to the Borrowers. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement
or any Loan Document. After any retiring Agent's resignation hereunder as Agent,
the provisions of this Article 8 shall inure (as applicable) to its benefit as
to any actions taken or omitted to be taken by it while it was Agent under the
Loan Documents. Upon the effectiveness of the retirement of any Administrative
Agent, the retiring Administrative Agent may, at its option, (i) transfer the
management of all then existing Tranche B Credit-Linked Accounts to the
successor Administrative Agent or (ii) close all such Tranche B Credit-Linked
Accounts upon the establishment of new Tranche B Credit-Linked Accounts with the
successor Administrative Agent (and the successor Administrative Agent shall
establish such new accounts) and transfer all amounts on deposit in such Tranche
B Credit-Linked Accounts to such new accounts.
ARTICLE 9.
GUARANTY
Section 9.01. Guaranty.
(a) Each of the Guarantors unconditionally and irrevocably guarantees
the due and punctual payment and performance of the Guaranteed Obligations of
such Guarantor. Each of the Guarantors further agrees that the Obligations
included in such Guarantor's Guaranteed Obligations may be extended or renewed,
in whole or in part, without notice to or further assent from such Guarantor,
and that such Guarantor will remain bound upon this guaranty notwithstanding any
extension or renewal of any of such Obligations.
(b) Each of the Guarantors waives presentation to, demand for payment
from and protest to any other Loan Party, and also waives notice of protest for
nonpayment. The obligations of each Guarantor hereunder shall not be affected by
(i) the failure of any Agent, any Fronting Bank or any DIP Lender to assert any
claim or demand or to enforce any right or remedy against any other Loan Party
under the provisions of any Loan Document or otherwise; (ii) any extension or
renewal of any provision thereof; (iii) any rescission, waiver, compromise,
acceleration, amendment or modification of any of the terms or provisions of any
Loan Document (except as and to the extent any of the foregoing explicitly
related to the Obligations of such Guarantor, in which case the Guaranty shall
be modified accordingly); (iv) the release, exchange, waiver or foreclosure of
any security for any of the Obligations of any Loan Party (except as and to
92
the extent any of the foregoing explicitly related to the Obligations of such
Guarantor, in which case the Guaranty shall be modified accordingly); (v) the
failure of any Agent, the Fronting Bank or any DIP Lender to exercise any right
or remedy against any other Loan Party; (vi) the release or substitution of any
Loan Party; or (vii) any other event or condition which, but for the provisions
hereof, would constitute a legal or equitable discharge of the obligations of
such Guarantor hereunder.
(c) Each of the Guarantors further agrees that this guaranty
constitutes a guaranty of performance and of payment when due of the Guaranteed
Obligations of such Guarantor and not just of collection, and waives any right
to require that any resort be had by any Agent, any Fronting Bank or any DIP
Lender to any security held for payment of such Guaranteed Obligations (or any
other Obligations) or to any balance of any deposit, account or credit on the
books of any Agent, any Fronting Bank or any DIP Lender in favor of any Loan
Party or to any other Person.
(d) Each of the Guarantors hereby waives any defense that it might have
based on a failure to remain informed of the financial condition of any other
Loan Party and any circumstances affecting the ability of any other Loan Party
to perform under any Loan Document.
(e) Each Guarantor's guaranty hereunder shall not be affected by the
genuineness, validity, regularity or enforceability of any of its Guaranteed
Obligations (or any other Obligations) or any other instrument evidencing any
Guaranteed Obligations (or any other Obligations), or by the existence,
validity, enforceability, perfection, or extent of any Collateral therefor or by
any other circumstance relating to its Guaranteed Obligations (or any other
Obligations) that might otherwise constitute a defense to this guaranty. No
Agent, Fronting Bank or DIP Lender makes any representation or warranty in
respect to any such circumstances.
(f) Upon any of the Obligations becoming due and payable (by
acceleration or otherwise), the Agents, DIP Lenders and the Fronting Bank shall
be entitled to immediate payment of such Obligations by each of the Guarantors
whose Guaranteed Obligations include such Obligations, upon written demand by
the Administrative Agent, without further application to or order of the
Bankruptcy Court.
Section 9.02. No Impairment of Guaranty. The obligations of each of the
Guarantors hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, other than repayment in full of the
Obligations to which such Guaranty relates, including, without limitation, any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of any of
the Obligations that are included in such Guarantor's Guaranteed Obligations or
any other Obligations. Without limiting the generality of the foregoing, the
obligations of each of the Guarantors hereunder shall not
93
be discharged or impaired or otherwise affected by the failure of any Agent, any
Fronting Bank or any DIP Lender to assert any claim or demand or to enforce any
remedy under any Loan Document or any other agreement or instrument, by any
waiver or modification of any provision thereof, by any default, failure or
delay, willful or otherwise, in the performance of any of the Obligations, or by
any other act or thing or omission or delay to do any other act or thing that
may or might in any manner or to any extent vary the risk of any of the
Guarantors or would otherwise operate as a discharge of any of the Guarantors as
a matter of law, unless and until the Obligations that are included in such
Guarantor's Guaranteed Obligations are paid in full (in which case they will be
terminated) or in part (in which case they will be reduced by the amount of such
payment).
Section 9.03. Subrogation. (a) Upon payment by any Guarantor (any such
Guarantor, a "Paying Guarantor") of any of its Guaranteed Obligations to any
Agent, any Fronting Bank or any DIP Lender pursuant to the guaranty granted by
such Guarantor under this Article 9 or pursuant to Section 2.14, such Paying
Guarantor shall be subrogated to the rights of the payee against (i) the Loan
Party whose Obligations constituted the Guaranteed Obligations that were so paid
by such Paying Guarantor (such Loan Party, the "Benefitting Loan Party") and
(ii) any other Loan Party that has guaranteed the Obligations of the Benefitting
Loan Party pursuant to this Article 9 or whose funds have been applied to pay
such Obligations pursuant to Section 2.14.
(b) Each Loan Party agrees that all rights of any Paying Guarantor
against any other Loan Party arising by way of right of subrogation,
contribution or otherwise, as a result of any payment made by any Paying
Guarantor pursuant to this Article 9 or pursuant to Section 2.14, shall, as set
forth in the Orders, (i) in all respects be subordinate and junior in right of
payment to the prior final payment in full of all the Obligations (and all other
obligations or Liens to which the Obligations are subject, including, without
limitation, the Carve-Out), the termination of the Total Commitment and the
termination or expiration of all Letters of Credit, (ii) rank pari passu with
the Permitted Inter-Group Debt of the relevant Loan Parties and (iii) rank
senior to the adequate protection Liens and the priority claims granted to the
Pre-Petition Lenders against the relevant Loan Parties, as contemplated by the
Orders.
(c) If any amount shall be paid to such Guarantor for the account of
any other Loan Party, such amount shall be held in trust for the benefit of the
Agents, the Fronting Banks and the DIP Lenders and shall forthwith be paid to
the Administrative Agent to be credited and applied to the relevant Obligations,
whether matured or unmatured. If (i) any Guarantor shall make payment to any
Agent, Fronting Bank or DIP Lender of all or any part of the Guaranteed
Obligations, (ii) all of the Obligations shall have been paid in full in cash,
(iii) the Total Commitments shall have been terminated and (iv) all Letters of
Credit shall have expired or been terminated, such Agent, Fronting Bank or DIP
Lender will, at such Guarantor's request and expense, execute and deliver to
such Guarantor appropriate documents necessary to evidence the transfer by
subrogation to
94
such Guarantor of an interest in the Guaranteed Obligations resulting from such
payment made by such Guarantor pursuant to this Guaranty.
Section 9.04. Nature of Obligations of each Guarantor. The obligations
of each Joint and Several Guarantor hereunder are joint and several. The
obligations of each Several Guarantor hereunder are (i) joint and several as to
each other Several Guarantor which belongs to the same Several Borrower Group as
such Several Guarantor and (ii) several, and not joint, as to each other Loan
Party.
ARTICLE 10.
MISCELLANEOUS
Section 10.01. Notices. Notices and other communications provided for
herein shall be in writing (including telegraphic, telex, facsimile or cable
communication) and shall be mailed, telegraphed, telexed, transmitted, cabled or
delivered to any Loan Party at One North Main Street, Coudersport, PA 16915,
Attention: Ron Stengel and Christopher Dunstan with copies to Cornelius T.
Finnegan III, Willkie Farr & Gallagher, 787 Seventh Avenue, New York, NY
10019-6099, to a DIP Lender at its address shown on the records of the
Administrative Agent or the Administrative Agent, JPMorgan Chase Bank, 270 Park
Avenue, New York, NY 10017, Attention: Gloria Javier, to the Collateral Agent,
Citicorp USA, Inc., 388 Greenwich Street, New York, NY, 10013,, Attention: Hien
Nugent, to the Syndication Agent, Citicorp USA, Inc., 388 Greenwich Street, New
York, NY, 10013, Attention: Michael Schadt, to the Joint Bookrunners and Co-Lead
Arrangers, J.P. Morgan Securities Inc., 270 Park Avenue, New York, NY 10017,
Attention: Gloria Javier, and Salomon Smith Barney Inc., 390 Greenwich Street,
New York, NY, 10013, Attention: Caesar W. Wyszomirski, and to counsel to the
Administrative Agent, Tiziana M. Tabucchi, Davis Polk & Wardwell, 450 Lexington
Avenue, New York, NY 10017, or such other address as such party may from time to
time designate by giving written notice to the other parties hereunder. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the fifth
Business Day after the date when sent by registered or certified mail, postage
prepaid, return receipt requested, if by mail; or when delivered to the
telegraph company, charges prepaid, if by telegram; or when receipt is
acknowledged, if by any telegraphic communications or facsimile equipment of the
sender, in each case addressed to such party as provided in this Section 10.01
or in accordance with the latest unrevoked written direction from such party;
provided, however, that in the case of notices to the Administrative Agent
notices pursuant to the preceding sentence with respect to change of address and
pursuant to Article 2 shall be effective only when received by the
Administrative Agent.
Section 10.02. Survival of Agreement, Representations and Warranties,
etc. All warranties, representations and covenants made by any Loan Party herein
or in any
95
certificate or other instrument delivered by it or on its behalf in connection
with this Agreement shall be considered to have been relied upon by the DIP
Lenders and shall survive the making of the Loans herein contemplated regardless
of any investigation made by any DIP Lender or on its behalf and shall continue
in full force and effect so long as any amount due or to become due hereunder is
outstanding and unpaid and so long as the Commitments have not been terminated.
All statements in any such certificate or other instrument shall constitute
representations and warranties by the Loan Parties hereunder with respect to the
Loan Parties.
Section 10.03. Successors and Assigns.
(a) This Agreement shall be binding upon and inure to the benefit of
the Loan Parties, the Agents and the DIP Lenders and their respective successors
and assigns. No Loan Party may assign or transfer any of its rights or
obligations hereunder without the prior written consent of all of the DIP
Lenders. Each DIP Lender may sell participations to any Person in all or part of
any Loan, or all or part of its Tranche A Commitment or Tranche B Credit-Linked
Deposit Amount, in which event, without limiting the foregoing, the provisions
of Section 2.16 shall inure to the benefit of each purchaser of a participation
(provided that such participant shall look solely to the seller of such
participation for such benefits and the Loan Parties' liability, if any, under
Sections 2.16 and 2.19 shall not be increased as a result of the sale of any
such participation) and the pro rata treatment of payments, as described in
Section 2.18, shall be determined as if such DIP Lender had not sold such
participation. In the event any DIP Lender shall sell any participation, such
DIP Lender shall retain the sole right and responsibility to enforce the
obligations of each Loan Party relating to the Loans, including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement (provided that such DIP Lender may grant its
participant the right to consent to such DIP Lender's execution of amendments,
modifications or waivers that (i) reduce any Fees payable hereunder to the DIP
Lenders, (ii) reduce the amount of any scheduled principal payment on any Loan
or reduce the principal amount of any Loan or the rate of interest payable
hereunder or (iii) extend the maturity of any Loan Party's obligations
hereunder). The sale of any such participation shall not alter the rights and
obligations of the DIP Lender selling such participation hereunder with respect
to the Loan Parties.
(b) Each DIP Lender may assign to one or more DIP Lenders or Eligible
Assignees all or a portion of its interests, rights and obligations under this
Agreement (including, without limitation, all or a portion of its Tranche A
Commitment or Tranche B Credit-Linked Deposit Amount and the same portion of the
related Loans and Letter of Credit Outstandings at the time owing to it),
provided, however, that (i) other than in the case of an assignment to a DIP
Lender Affiliate of the assignor DIP Lender or to another DIP Lender, the
Administrative Agent and the Fronting Bank must give their respective prior
written consent to such assignment, which consent will not be unreasonably
withheld, (ii) after giving effect to such assignment, (x) the aggregate amount
of the
96
Tranche A Commitment or Tranche B Credit-Linked Deposit Amount of the assigning
DIP Lender shall, unless otherwise agreed to in writing by the Administrative
Agent, be either $0 or at least $1,000,000 and (y) the aggregate amount of the
Tranche A Commitment or Tranche B Credit-Linked Deposit Amount of the assignee
DIP Lender shall, unless otherwise agreed to in writing by the Administrative
Agent, be at least $1,000,000 and (iii) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register (as defined below), an Assignment and Acceptance with
blanks appropriately completed, together with a processing and recordation fee
of $3,500 (for which no Loan Party shall have any liability). Upon such
execution, delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date shall be
within ten Business Days after the execution thereof (unless otherwise agreed to
in writing by the Administrative Agent), (A) 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 DIP Lender hereunder and (B) the assignor DIP
Lender 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 or the remaining portion of an
assigning DIP Lender's rights and obligations under this Agreement, such DIP
Lender shall cease to be a party hereto). Concurrently with the effectiveness of
any assignment by any Tranche B DIP Lender of all or any portion of its Tranche
B Credit-Linked Deposit Amount, (x) if the assignee was not a Tranche B DIP
Lender immediately prior to such assignment, the Administrative Agent shall
establish a new Tranche B Credit-Linked Account in the name of such assignee,
(y) unless otherwise consented to by the Administrative Agent, a corresponding
portion of the amount on deposit in the Tranche B Credit-Linked Account of the
assignor Tranche B DIP Lender shall be purchased by the assignee and shall be
transferred from the assignor's Tranche B Credit-Linked Account to the
assignee's Tranche B Credit-Linked Account and (z) if after giving effect to
such assignment the aggregate amount of the Tranche B Credit-Linked Deposit
Amount of the assignor Tranche B DIP Lender shall be $0, the Administrative
Agent shall close the Tranche B Credit-Linked Account of such assignor Tranche B
DIP Lender.
(c) By executing and delivering an Assignment and Acceptance, the DIP
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse claim, such DIP
Lender assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or any of the other Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement or any of the other Loan Documents; (ii) such DIP
Lender assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Loan Party or the
performance or observance by any Loan Party of any of its obligations under this
Agreement or any of the other Loan
97
Documents or any other instrument or document furnished pursuant hereto, (iii)
such assignee confirms that it has received a copy of this Agreement and the
other Loan Documents; (iv) such assignee will, independently and without
reliance upon the Administrative Agent, such DIP Lender assignor or any other
DIP Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee appoints and
authorizes the Administrative Agent to take such action as Administrative Agent
on its behalf and to exercise such powers under this Agreement as are delegated
to the Administrative Agent by the terms thereto, together with such powers as
are reasonably incidental hereof; and (vi) such assignee agrees that it will
perform in accordance with their terms all obligations that by the terms of this
Agreement are required to be performed by it as a DIP Lender.
(d) The Administrative Agent shall maintain at its office a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the DIP Lenders and the Tranche A
Commitment or Tranche B Credit-Linked Deposit Amount, as the case may be of, and
principal amount of the Loans owing to, each DIP Lender from time to time (the
"Register"). The entries in the Register shall be conclusive, in the absence of
manifest error, and the Loan Parties, the Administrative Agent and the DIP
Lenders shall treat each Person the name of which is recorded in the Register as
a DIP Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by any Loan Party or any DIP Lender at any reasonable
time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning DIP Lender and the assignee thereunder together with the fee payable
in respect thereto, the Administrative Agent shall, if such Assignment and
Acceptance has been completed with blanks appropriately filled and consented to
by the Administrative Agent and the Fronting Bank (to the extent such consent is
required hereunder), (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt written
notice thereof to the Borrowers (together with a copy thereof). No assignment
shall be effective for purposes of this Agreement unless it has been recorded in
the Register as provided in this paragraph.
(f) Any DIP Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.03, disclose to the assignee or participant or proposed assignee or
participant, any information relating to any Loan Party furnished to such DIP
Lender by or on behalf of any Loan Party; provided that prior to any such
disclosure, each such assignee or participant or proposed assignee or
participant shall agree in writing to be bound by the provisions of Section
10.04.
(g) Each Loan Party hereby agrees to actively assist and cooperate with
the Administrative Agent in the Administrative Agent's efforts to sell
participations herein
98
(as described in Section 10.03(a)) and assign to one or more DIP Lenders or
Eligible Assignees a portion of its interests, rights and obligations under this
Agreement (as set forth in Section 10.03(b)).
Section 10.04. Confidentiality. No Agent or DIP Lender shall use the
Confidential Information in violation of any applicable law. Notwithstanding the
foregoing, nothing herein shall prevent any Agent or any DIP Lender from
disclosing such information (a) to any officer, director, employee, agent, or
advisor of such Agent or any of its Affiliates, or such DIP Lender or any of its
Affiliates, to the extent such disclosure is necessary to permit such officer,
director, employee, agent, or advisor to fulfill their duties with respect to
the Obligations, (b) as required by any applicable law or any subpoena or
similar process, (c) upon the order of any Governmental Authority, (d) upon the
request or demand of any Governmental Authority having jurisdiction over such
Agent or such DIP Lender, (e) that is or becomes available to the public or that
is or becomes available to such Agent or DIP Lender as a result of a disclosure
by a Person not otherwise bound by this Agreement, (f) in connection with any
litigation to which such Agent or any of its Affiliates, or such DIP Lender or
any of its Affiliates may be a party, (g) in connection with the exercise of any
remedy under the Loan Documents, (h) to any actual or proposed assignee, so long
as such proposed assignee executes a confidentiality agreement, (i) any direct
or indirect contractual counterparty or prospective counterparty (or such
contractual counterparty's or prospective counterparty's professional advisor)
to any credit derivative transaction relating to obligations of the Loan
Parties; (j) with the consent of the Loan Parties; (k) to the extent such
Confidential Information (i) becomes publicly available other than as a result
of a failure to comply with this Section 10.04 or (ii) becomes available to any
Agent or any DIP Lender on a nonconfidential basis from a source other than a
Loan Party; or (l) to the National Association of Insurance Commissioners or any
other similar organization or any nationally recognized rating agency that
requires access to information about a DIP Lender's or its Affiliates'
investment portfolio in connection with ratings issued with respect to such DIP
Lender or its Affiliates.
Section 10.05. Expenses. Whether or not the transactions hereby
contemplated shall be consummated, the Loan Parties agree to pay all expenses
incurred by the Agents (including but not limited to the reasonable fees and
disbursements of Davis Polk & Wardwell, special counsel for the Co-Lead
Arrangers, any other counsel that the Co-Lead Arrangers shall retain and any
internal or third-party appraisers, consultants and auditors advising any Agent
and its counsel) in connection with the preparation, execution, delivery and
administration of this Agreement and the other Loan Documents, the making of the
Loans and the issuance of the Letters of Credit, the perfection of the Liens
contemplated hereby, the syndication of the transactions contemplated hereby,
the costs, fees and expenses of the Administrative Agent and the Collateral
Agent in connection with its periodic field audits, monitoring of assets
(including reasonable and customary internal collateral monitoring fees) and
publicity expenses, and, following the occurrence of an Event of Default, all
expenses incurred by the DIP Lenders, the
99
Fronting Banks and the Agents in the enforcement or protection of their
respective rights in connection with this Agreement or the other Loan Documents,
including but not limited to the reasonable fees and disbursements of any
counsel for the DIP Lenders, the Fronting Banks and the Agents. Such payments
shall be made on the date of the Interim Order and thereafter on demand upon
delivery of a statement setting forth such costs and expenses. The obligations
of the Loan Parties under this Section 10.05 shall survive any termination of
this Agreement.
Section 10.06. Indemnity. Each Loan Party agrees to indemnify and hold
harmless each Agent, Fronting Bank and the DIP Lenders and their respective
directors, officers, employees, agents and Affiliates (each an "Indemnified
Party") from and against any and all expenses, losses, claims, damages and
liabilities incurred by such Indemnified Party arising out of claims made by any
Person in any way relating to the transactions contemplated hereby, but
excluding therefrom all expenses, losses, claims, damages, and liabilities to
the extent that they are determined by the final judgment of a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnified Party. The Loan Parties' obligations under this
Section 10.06 shall survive any termination of this Agreement.
Section 10.07. CHOICE OF LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WHOLLY WITHIN SUCH STATE AND THE BANKRUPTCY CODE.
Section 10.08. No Waiver. No failure on the part of the Administrative
Agent or any of the DIP Lenders to exercise, and no delay in exercising, any
right, power or remedy hereunder or any of the other Loan Documents shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy. All remedies hereunder are
cumulative and are not exclusive of any other remedies provided by law.
Section 10.09. Extension of Maturity. Should any payment of principal
of or interest or any other amount due hereunder become due and payable on a day
other than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day and, in the case of principal, interest shall be payable
thereon at the rate herein specified during such extension.
Section 10.10. Amendments, etc.
(a) No modification, amendment or waiver of any provision of this
Agreement or the Amended and Restated Security and Pledge Agreement and no
consent
100
to any departure by any Loan Party therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Loan Parties and the
Required DIP Lenders, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given; provided, however,
that (1) no such modification or amendment shall, without the written consent of
the DIP Lender affected thereby (x) increase the Tranche A Commitment of a DIP
Lender or the Tranche B Credit-Linked Deposit Amount with respect to any DIP
Lender, or (y) reduce the principal amount of any Loan or any Reimbursement
Obligation or the rate of interest payable thereon, or reduce the Tranche B
Fixed Return Rate or the amount payable to a DIP Lender pursuant to Section
2.02(e) or extend any date for the payment of interest hereunder or reduce any
Fees payable hereunder or extend the final maturity of any Borrower's
obligations hereunder or (z) release any amount on deposit in the Tranche B
Credit-Linked Account of a DIP Lender (other than pursuant to Section 2.02(c));
(2) any waiver of compliance with the reporting requirements set forth in
Section 5.01(k), 5.01(l), 5.01(m), 5.01(n), 5.01(o) and 5.01(p) or any Event of
Default arising solely from non-compliance therewith shall be binding on all the
DIP Lenders if consented to by the Co-Lead Arrangers, (3) no such modification
or amendment shall, without the written consent of (A) all of the DIP Lenders
(i) amend or modify any provision of this Agreement that provides for the
unanimous consent or approval of the DIP Lenders, (ii) change the percentage set
forth in the definition of Required DIP Lenders or Super-Majority DIP Lenders or
any other provision of any Loan Document specifying the number or percentage of
DIP Lenders required to take any action thereunder or (iii) amend or modify the
Superpriority Claim status of the DIP Lenders contemplated by Section 2.24 or
the rank of the Liens for the benefit of the Agents, the Fronting Banks and the
DIP Lenders contemplated thereby, (B) the Super-Majority DIP Lenders (as
hereinafter defined), release all or substantially all of the Collateral or all
or substantially all of the Guarantors, or (C) all of the Initial DIP Lenders,
change any provision set forth in the definition of Initial Majority DIP
Lenders, (4) no such modification or amendment shall, without the written
consent of the Initial Majority DIP Lenders, modify, amend or waive any
provision that expressly requires the consent or approval of the Initial
Majority DIP Lenders so as to amend, modify or waive the requirement of such
consent or approval and (5) no such modification or amendment shall, without the
written consent of Tranche B DIP Lenders representing in excess of 50% of the
Tranche B Credit-Linked Deposit Amounts, amend Section 2.02 (or any provision or
definition referred to therein) to the extent it affects the Tranche B DIP
Lenders. No such amendment or modification may adversely affect the rights and
obligations of any Agent or any Fronting Bank hereunder without its prior
written consent. Each assignee under Section 10.03(b) shall be bound by any
amendment, modification, waiver, or consent authorized as provided herein, and
any consent by a DIP Lender shall bind any Person subsequently acquiring an
interest on the Loans held by such DIP Lender.
(b) Notwithstanding anything to the contrary contained in Section
10.10(a), in the event that the Borrowers request that this Agreement be
modified or amended in a manner that would require the unanimous consent of all
of the DIP Lenders (or the
101
consent described in clause (B) of the first sentence of Section 10.10(a)) and
such modification or amendment is agreed to by the Super-Majority DIP Lenders
(as hereinafter defined), then with the consent of the Borrowers and the
Super-Majority DIP Lenders, the Borrowers and the Super-Majority DIP Lenders
shall be permitted to amend the Agreement without the consent of the DIP Lender
or DIP Lenders that did not agree to the modification or amendment requested by
the Borrowers (such DIP Lender or DIP Lenders, collectively the "Minority DIP
Lenders") to provide for (w) the termination of the Commitment of each of the
Minority DIP Lenders, (x) the addition to this Agreement of one or more other
financial institutions (each of which shall be an Eligible Assignee), or an
increase in the Commitment of one or more of the Super-Majority DIP Lenders
(with the written consent thereof), so that the Total Commitment after giving
effect to such amendment shall be in the same amount as the Total Commitment
immediately before giving effect to such amendment, (y) if any Loans are
outstanding at the time of such amendment, the making of such additional Loans
by such new financial institutions or Super-Majority DIP Lender or DIP Lenders,
as the case may be, as may be necessary to repay in full the outstanding Loans
of the Minority DIP Lenders immediately before giving effect to such amendment
and (z) such other modifications to this Agreement as may be appropriate. As
used herein, the term "Super-Majority DIP Lenders" shall mean, at any time, DIP
Lenders holding Loans representing at least 66-2/3% of the aggregate principal
amount of the Loans outstanding, or if no Loans are outstanding, DIP Lenders
having Commitments representing at least 66-2/3% of the Total Commitment.
(c) Prior to the later of (i) August 26, 2002, and (ii) 7 Business Days
after the date on which the Final Order is entered, the Co-Lead Arrangers, JPMCB
and CUSA shall be entitled, after consultation with the Parent and the Borrowers
and disclosure to the Bankruptcy Court, to change the amount of the Total
Commitment (other than increase the Total Commitments to an amount in excess of
$1,500,000,000), the pricing, structure (including without limitation collateral
and guarantee arrangements) or terms of this Agreement and the other Loan
Documents if they determine that such changes are necessary or advisable in
order to ensure the completion of the syndication of the credit facility
hereunder in a manner satisfactory to them. Each Loan Party agrees that it shall
enter into any amendments or modifications of any Loan Document, or any
additional documents, as may be necessary or desirable in order to effect the
foregoing changes.
Section 10.11. 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.
Section 10.12. Headings. Section headings used herein are for
convenience only and are not to affect the construction of or be taken into
consideration in interpreting this Agreement.
102
Section 10.13. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall constitute an
original, but all of which taken together shall constitute one and the same
instrument.
Section 10.14. Further Assurances. Whenever and so often as reasonably
requested by the Administrative Agent or the Collateral Agent, each Loan Party
will promptly execute and deliver or cause to be executed and delivered all such
other and further instruments, documents or assurances, and promptly do or cause
to be done all such other and further things as may be necessary and reasonably
required in order to further and more fully vest in the Administrative Agent and
the Collateral Agent all rights, interests, powers, benefits, privileges and
advantages conferred or intended to be conferred by this Agreement and the other
Loan Documents.
Section 10.15. Prior Agreements. This Agreement, the other Loan
Documents and the Orders represent the entire agreement of the parties with
regard to the subject matter hereof and thereof. The terms of any letters and
other documentation entered into between any Loan Party and any DIP Lender or
any Agent prior to the execution of this Agreement which relate to any Loans to
be made hereunder shall be replaced by the terms of this Agreement, the other
Loan Documents and the Orders except for: (i) that certain letter dated June 25,
2002 among each of certain Loan Parties, JPMCB, CUSA, JPMSI and SSB, (ii) the
Engagement Letter dated as of June 19, 2002 among each of certain Loan Parties,
JPMCB, CUSA, JPMSI and SSB.
Section 10.16. WAIVER OF JURY TRIAL. EACH LOAN PARTY, EACH AGENT, EACH
FRONTING BANK AND EACH DIP LENDER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
ANY OF THE LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED THEREBY.
103
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and the year first written above.
BORROWERS:
UCA LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Erland E. Kailbourne
Title: President
CENTURY CABLE HOLDINGS, LLC
By: Century Cable Holding Corp., its sole member
By:
---------------------------------------------
Name: Erland E. Kailbourne
Title: President
CENTURY-TCI CALIFORNIA, L.P.
By: Century-TCI California Communications, L.P.,
its general partner
By: Century Exchange, LLC, its general partner
By: Century Cable Holding Corp., its sole member
By:
---------------------------------------------
Name: Erland E. Kailbourne
Title: President
OLYMPUS CABLE HOLDINGS, LLC
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general
partner
By:
----------------------------------------------
Name: Erland E. Kailbourne
Title: President
PARNASSOS, L.P.
By: Parnassos Communications, L.P., its general
partner
By: Adelphia Western New York Holdings, LLC, its
general partner
By: ACC Operations, Inc., its sole member
By:
----------------------------------------------
Name: Erland E. Kailbourne
Title: President
FRONTIERVISION OPERATING PARTNERS, L.P.
By: FrontierVision Holdings, L.P., its general
partner
By: FontierVision Partners, L.P., its general
partner
By: Adelphia GP Holdings, LLC, its general partner
By: ACC Operations, Inc., its sole member
By:
----------------------------------------------
Name: Erland E. Kailbourne
Title: President
ACC INVESTMENT HOLDINGS, INC.
By:
----------------------------------------------
Name: Erland E. Kailbourne
Title: President
ARAHOVA COMMUNICATIONS, INC.
By:
----------------------------------------------
Name: Erland E. Kailbourne
Title: President
ADELPHIA CALIFORNIA CABLEVISION, LLC
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Erland E. Kailbourne
Title: President
ADMINISTRATIVE AGENT:
JPMORGAN CHASE BANK,
as Administrative Agent
By:
----------------------------------------------
Title:
270 Park Avenue
New York, NY 10017
SYNDICATION AGENT:
CITICORP USA, INC.,
as Syndication Agent
By:
---------------------------------------------
Title:
JOINT BOOKRUNNERS AND CO-LEAD ARRANGERS:
J.P. MORGAN SECURITIES INC.
By:
---------------------------------------------
Title:
SALOMON SMITH BARNEY INC.
By:
---------------------------------------------
Title:
COLLATERAL AGENT:
CITICORP USA, INC.
By:
---------------------------------------------
Title:
JPMORGAN CHASE BANK
By:
---------------------------------------------
Title:
270 Park Avenue
New York, NY 10017
CITICORP USA, INC.
By:
---------------------------------------------
Title:
CO-SYNDICATION AGENT:
WACHOVIA BANK, N.A.
By:
---------------------------------------------
Title:
CO-DOCUMENTATION AGENTS:
THE BANK OF NOVA SCOTIA
By:
---------------------------------------------
Title:
FLEET NATIONAL BANK
By:
---------------------------------------------
Title:
BANK OF AMERICA, N.A.
By:
---------------------------------------------
Title:
GENERAL ELECTRIC
CAPITAL CORPORATION
By:
---------------------------------------------
Title:
GUARANTORS:
ACC CABLE COMMUNICATIONS FL-VA, LLC
By: ACC Cable Holdings VA, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ACC CABLE HOLDINGS VA, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ACC HOLDINGS II, LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ACC OPERATIONS, INC.
By:
---------------------------------------------
Name:
Title:
ACC TELECOMMUNICATIONS HOLDINGS LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ACC TELECOMMUNICATIONS LLC
By: ACC Telecommunications Holdings LLC, its sole member
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ACC TELECOMMUNICATIONS OF VIRGINIA LLC
By: ACC Telecommunications Holdings LLC, its sole member
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ACC-AMN HOLDINGS, LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA ACQUISITION SUBSIDIARY, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA ARIZONA, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA BLAIRSVILLE, LLC
By: Century Communications Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLE PARTNERS, L.P.
By: Olympus Cable Holdings, LLC, its managing general
partner
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION ASSOCIATES, L.P.
By: Chelsea Communications, Inc., its general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF BOCA RATON, LLC
By: Adelphia Cablevision Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF FONTANA, LLC
By: Clear Cablevision, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF INLAND EMPIRE, LLC
By: Clear Cablevision, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF THE KENNEBUNKS, LLC
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION, LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF NEW YORK, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF NEWPORT BEACH, LLC
By: Ft. Myers Cablevision, LLC, its sole member
By: Ft. Myers Acquisition Limited Partnership, its sole
member
By: Olympus Communications, L.P., its general partner
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF ORANGE COUNTY, LLC
By: Ft. Myers Cablevision, LLC, its sole member
By: Ft. Myers Acquisition Limited Partnership, its sole
member
By: Olympus Communications, L.P., its general partner
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF ORANGE COUNTY II, LLC
By: Mickelson Media, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF SAN BERNARDINO, LLC
By: Clear Cablevision, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF SANTA ANA, LLC
By: UCA LLC, its sole member
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF SEAL BEACH, LLC
By: Manchester Cablevision, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF SIMI VALLEY, LLC
By: UCA LLC, its sole member
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF WEST PALM BEACH III, LLC
By: Century New Mexico Cable Television Corp., its sole
member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF WEST PALM BEACH IV, LLC
By: Sentinel Communications of Muncie, Indiana, Inc., its
sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CABLEVISION OF WEST PALM BEACH V, LLC
By: Huntington CATV, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CENTRAL PENNSYLVANIA, LLC
By: National Cable Acquisition Associates, L.P., its sole
member
By: Olympus Communications, L.P., its general partner
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA CLEVELAND, LLC
By: Adelphia of the Midwest, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA COMMUNICATIONS CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA COMMUNICATIONS OF CALIFORNIA, LLC
By: Adelphia Cablevision Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA COMMUNICATIONS OF CALIFORNIA II, LLC
By: Adelphia Cablevision Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA COMMUNICATIONS OF CALIFORNIA III, LLC
By: FrontierVision Operating Partners, L.P., its sole
member
By: FrontierVision Holdings, L.P., its general partner
By: FrontierVision Partners, L.P., its general partner
By: Adelphia GP Holdings, L.L.C., its general partner
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA COMMUNICATIONS INTERNATIONAL, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA COMPANY OF WESTERN CONNECTICUT
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA GENERAL HOLDINGS III, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA GS CABLE, LLC
By: Olympus Cable Holdings, LLC, its sole member
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA GP HOLDINGS, LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA HARBOR CENTER HOLDINGS, LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA HOLDINGS 2001, LLC
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA INTERNATIONAL II, LLC
By: ACC Operations, Inc., its member
By: Adelphia Communications International, Inc., its
member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA INTERNATIONAL III, LLC
By: ACC Operations, Inc., its member
By: Adelphia Communications International, Inc., its
member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA OF THE MIDWEST, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA MOBILE PHONES, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA PINELLAS COUNTY, LLC
By: Ft. Myers Cablevision, L.L.C., its sole member
By: Ft. Myers Acquisition Limited Partnership, its sole
member
By: Olympus Communications, L.P., its general partner
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA PRESTIGE CABLEVISION, LLC
By: Century Cable Holdings, LLC, its sole member
By: Century Cable Holding Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA TELECOMMUNICATIONS, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA TELECOMMUNICATIONS OF FLORIDA, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA WELLSVILLE, LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ADELPHIA WESTERN NEW YORK HOLDINGS, LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ARAHOVA HOLDINGS, LLC
By: Olympus Cable Holdings, LLC, its sole member
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
BADGER HOLDING CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
BETTER TV, INC. OF BENNINGTON
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
BLACKSBURG/SALEM CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
BRAZAS COMMUNICATIONS, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
BUENAVISION TELECOMMUNICATIONS, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CABLE SENTRY CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CALIFORNIA AD SALES, LLC
By: Ft. Myers Cablevision, LLC, its sole member
By: Ft. Myers Acquisition Limited Partnership, its sole
member
By: Olympus Communications, L.P., its general partner
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CCC-III, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CCC-INDIANA, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CCH INDIANA, L.P.
By: CCC-Indiana, Inc., its general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CDA CABLE, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY ADVERTISING, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY ALABAMA CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY ALABAMA HOLDING CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY AUSTRALIA COMMUNICATIONS CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY BERKSHIRE CABLE CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY CABLE HOLDING CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY CABLE MANAGEMENT CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY CABLE OF SOUTHERN CALIFORNIA
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY CABLEVISION HOLDINGS, LLC
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY CAROLINA CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY COLORADO SPRINGS CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY COLORADO SPRINGS PARTNERSHIP
By: Paragon Cable Television Inc., a general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY COMMUNICATIONS CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY CULLMAN CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY ENTERPRISE CABLE CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY EXCHANGE, LLC
By: Century Cable Holding Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY FEDERAL, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY GRANITE CABLE TELEVISION CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY HUNTINGTON COMPANY
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY INDIANA CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY ISLAND ASSOCIATES, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY ISLAND CABLE TELEVISION CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY INVESTMENT HOLDING CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY INVESTORS, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY KANSAS CABLE TELEVISION CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY LYKENS CABLE CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY MENDOCINO CABLE TELEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY MISSISSIPPI CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY MOUNTAIN CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY NEW MEXICO CABLE TELEVISION CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY NORWICH CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY OHIO CABLE TELEVISION CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY OREGON CABLE CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY PACIFIC CABLE TV, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY PROGRAMMING, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY REALTY CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY SHASTA CABLE TELEVISION CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY SOUTHWEST COLORADO CABLE TELEVISION CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY-TCI CALIFORNIA COMMUNICATIONS, L.P.
By: Century Exchange LLC, its general partner
By: Century Cable Holding Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY-TCI HOLDINGS, LLC
By: Century-TCI California Communications, L.P., its sole
member
By: Century Exchange LLC, its general partner
By: Century Cable Holding Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY TRINIDAD CABLE TELEVISION CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY VIRGINIA CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY VOICE AND DATA COMMUNICATIONS, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY WARRICK CABLE CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY WASHINGTON CABLE TELEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CENTURY WYOMING CABLE TELEVISION CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CHELSEA COMMUNICATIONS, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CHELSEA COMMUNICATIONS, LLC
By: Olympus Cable Holdings, LLC, its sole member
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CHESTNUT STREET SERVICES, LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CLEAR CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CMA CABLEVISION ASSOCIATES VII, L.P.
By: Tele-Media Company of Tri-States, L.P., its general
partner
By: Tri-States, L.L.C., its general partner
By: Century Cable Holdings, LLC, its sole member
By: Century Cable Holding Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CMA CABLEVISION ASSOCIATES XI, LIMITED PARTNERSHIP
By: Tele-Media Company of Tri-States, L.P., its general
partner
By: Tri-States, L.L.C., its general partner
By: Century Cable Holdings, LLC, its sole member
By: Century Cable Holding Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CORAL SECURITY, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
COWLITZ CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CP-MDU I LLC
By: Adelphia California Cablevision, L.L.C., its sole
member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
CP-MDU II LLC
By: Adelphia California Cablevision, L.L.C., its sole
member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
E. & E. CABLE SERVICE, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
EASTERN VIRGINIA CABLEVISION HOLDINGS, LLC
By: Eastern Virginia Cablevision, L.P., its sole member
By: TMC Holdings Corporation, its general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
EASTERN VIRGINIA CABLEVISION, L.P.
By: TMC Holdings Corporation, its general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
EMPIRE SPORTS NETWORK, L.P.
By: Parnassos Communications, L.P., its general partner
By: Adelphia Western New York Holdings, LLC, its general
partner
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FAE CABLE MANAGEMENT CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FOP INDIANA, L.P.
By: FrontierVision Cable New England, Inc., its general
partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FRONTIERVISION ACCESS PARTNERS, LLC
By: FrontierVision Operating Partners, L.P., its sole
member
By: FrontierVision Holdings, L.P., its general partner
By: FrontierVision Partners, L.P., its general partner
By: Adelphia GP Holdings, LLC, its general partner
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FRONTIERVISION CABLE NEW ENGLAND, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FRONTIERVISION CAPITAL CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FRONTIERVISION HOLDINGS CAPITAL CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FRONTIERVISION HOLDINGS CAPITAL II CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FRONTIERVISION HOLDINGS L.L.C.
By: FrontierVision Partners, L.P., its sole member
By: Adelphia GP Holdings, LLC, its general partner
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FRONTIERVISION HOLDINGS, L.P.
By: FrontierVision Partners, L.P., its general partner
By: Adelphia GP Holdings, LLC, its general partner
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FRONTIERVISION OPERATING PARTNERS, L.L.C.
By: FrontierVision Holdings, L.P., its sole member
By: FrontierVision Partners, L.P., its general partner
By: Adelphia GP Holdings, LLC, its general partner
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FT. MYERS ACQUISITION LIMITED PARTNERSHIP
By: Olympus Communications, L.P., its general partner
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FRONTIERVISION PARTNERS, L.P.
By: Adelphia GP Holdings, LLC, its general partner
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
FT. MYERS CABLEVISION, LLC
By: Ft. Myers Acquisition Limited Partnership, its sole
member
By: Olympus Communications, L.P., its general partner
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
GENESIS CABLE COMMUNICATIONS SUBSIDIARY, L.L.C.
By: ACC Cable Communications FL-VA, LLC, its sole member
By: ACC Cable Holdings VA, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
GLOBAL ACQUISITION PARTNERS, L.P.
By: Global Cablevision II, LLC, its general partner
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
GLOBAL CABLEVISION II, LLC
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
THE GOLF CLUB AT WENDING CREEK FARMS, LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
GRAFTON CABLE COMPANY
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
GS CABLE LLC
By: Adelphia GS Cable, LLC, its sole member
By: Olympus Cable Holdings, LLC, its sole member
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
GS TELECOMMUNICATIONS, LLC
By: GS Cable, LLC, its sole member
By: Adelphia GS Cable, LLC, its sole member
By: Olympus Cable Holdings, LLC, its sole member
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
HARRON CABLEVISION OF NEW HAMPSHIRE, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
HUNTINGTON CATV, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
IMPERIAL VALLEY CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
KALAMAZOO COUNTY CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
KEY BISCAYNE CABLEVISION
By: Adelphia Cable Partners, L.P., a general partner
By: Olympus Cable Holdings, LLC, its managing general
partner
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
KOOTENAI CABLE, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
LAKE CHAMPLAIN CABLE TELEVISION CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
LEADERSHIP ACQUISITION LIMITED PARTNERSHIP
By: Olympus Communications, L.P., its general partner
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
LOUISA CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
MANCHESTER CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
MARTHA'S VINEYARD CABLEVISION, L.P.
By: Century Cable Holdings, LLC, its general partner
By: Century Cable Holding Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
MERCURY COMMUNICATIONS, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
MICKELSON MEDIA, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
MICKELSON MEDIA OF FLORIDA, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
MONUMENT COLORADO CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
MOUNTAIN CABLE COMMUNICATIONS CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
MOUNTAIN CABLE COMPANY, L.P.
By: Pericles Communications Corporation, its managing
general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
MONTGOMERY CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
MT. LEBANON CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
MULTI-CHANNEL T.V. CABLE COMPANY
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
NATIONAL CABLE ACQUISITION ASSOCIATES, L.P.
By: Olympus Communications, L.P., its general partner
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
OLYMPUS CAPITAL CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
OLYMPUS COMMUNICATIONS HOLDINGS, L.L.C.
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
OLYMPUS COMMUNICATIONS, L.P.
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
OLYMPUS SUBSIDIARY, LLC
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
OWENSBORO-BRUNSWICK, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
OWENSBORO INDIANA, L.P.
By: Century Granite Cable Television Corp., its general
partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
OWENSBORO ON THE AIR, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
PAGE TIME, INC
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
PARAGON CABLE TELEVISION INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
PARAGON CABLEVISION CONSTRUCTION CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
PARAGON CABLEVISION MANAGEMENT CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
PARNASSOS COMMUNICATIONS, L.P.
By: Adelphia Western New York Holdings, LLC, its general
partner
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
PARNASSOS HOLDINGS, LLC
By: Parnassos Communications, L.P., its sole member
By: Adelphia Western New York Holdings, LLC, its general
partner
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
PERICLES COMMUNICATIONS CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
PULLMAN TV CABLE CO., INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
RENTAVISION OF BRUNSWICK, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
RICHMOND CABLE TELEVISION CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
RIGPAL COMMUNICATIONS, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ROBINSON/PLUM CABLEVISION, L.P.
By: Olympus Subsidiary, LLC, its general partner
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
SABRES, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
SCRANTON CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
SENTINEL COMMUNICATIONS OF MUNCIE, INDIANA, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
SOUTHEAST FLORIDA CABLE, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
SOUTHWEST COLORADO CABLE, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
SOUTHWEST VIRGINIA CABLE, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
S/T CABLE CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
STAR CABLE INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
STARPOINT, LIMITED PARTNERSHIP
By: West Boca Acquisition Limited Partnership, its general
partner
By: Adelphia Cable Partners, L.P., its general partner
By: Olympus Cable Holdings, LLC, its managing general
partner
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
SVHH CABLE ACQUISITION, L.P.
By: SVHH Holdings, LLC, its general partner
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
SVHH HOLDINGS, LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
TELE-MEDIA COMPANY OF HOPEWELL-PRINCE GEORGE
By: Eastern Virginia Cablevision Holdings, LLC, its
managing general partner
By: Eastern Virginia Cablevision, L.P., its sole member
By: TMC Holdings Corporation, its general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
TELE-MEDIA COMPANY OF TRI-STATES L.P.
By: Tri-States, L.L.C., its general partner
By: Century Cable Holdings, LLC, its sole member
By: Century Cable Holding Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
TELE-MEDIA INVESTMENT PARTNERSHIP, L.P.
By: National Cable Acquisition Associates, L.P., a general
partner
By: Olympus Communications, L.P., its general partner
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
TELESAT ACQUISITION, LLC
By: Arahova Holdings, LLC, its sole member
By: Olympus Cable Holdings, LLC, its sole member
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
TELESTAT ACQUISITION LIMITED PARTNERSHIP
By: Olympus Communications, L.P., its general partner
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
THE MAIN INTERNETWORKS, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
THE WESTOVER T.V. CABLE CO., INCORPORATED
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
THREE RIVERS CABLE ASSOCIATES, L.P.
By: Chelsea Communications, LLC, a general partner
By: Olympus Cable Holdings, LLC, its sole member
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
And By: Mt. Lebanon Cablevision, Inc., a general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
TIMOTHEOS COMMUNICATIONS, L.P.
By: Olympus Communications Holdings, L.L.C., its general
partner
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
TMC HOLDINGS CORPORATION
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
TMC HOLDINGS, LLC
By: TMC Holdings Corporation, its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
TRI-STATES, L.L.C.
By: Century Cable Holdings, LLC, its sole member
By: Century Cable Holding Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
UCA LLC
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
U.S. TELE-MEDIA INVESTMENT COMPANY
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
UPPER ST. CLAIR CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
VALLEY VIDEO, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
VAN BUREN COUNTY CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
WARRICK CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
WARRICK INDIANA, L.P.
By: CCC-III, Inc., its general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
WELLSVILLE CABLEVISION, L.L.C.
By: Century Cable Holdings, LLC, its sole member
By: Century Cable Holding Corp., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
WEST BOCA ACQUISITION LIMITED PARTNERSHIP
By: Adelphia Cable Partners, L.P., its general partner
By: Olympus Cable Holdings, LLC, its managing general
partner
By: Olympus Subsidiary, LLC, its sole member
By: Olympus Communications, L.P., its sole member
By: ACC Operations, Inc., its managing general partner
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
WESTERN NY CABLEVISION, L.P.
By: Adelphia Western New York Holdings, LLC, its general
partner
By: ACC Operations, Inc., its sole member
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
WESTVIEW SECURITY, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
WILDERNESS CABLE COMPANY
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
YOUNG'S CABLE TV CORP.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
YUMA CABLEVISION, INC.
By:
---------------------------------------------
Name: Randall D. Fisher
Title: Vice President and Secretary
ANNEX B
-------
Century Borrower Group (Several Borrower Group):
------------------------------------------------
- ------------------------------ ------------------ ----------------------------
Borrower: Borrowing Limit Letter of Credit Sublimit
- --------- --------------- -------------------------
- ------------------------------ ------------------ ----------------------------
Century Cable Holdings, LLC $150 million $150 million
- ------------------------------ ------------------ ----------------------------
Guarantors:
- -----------
Ft. Myers Cablevision, LLC
Ft. Myers Acquisition Limited Partnership
Adelphia Cablevision of Newport Beach, LLC
California Ad Sales, LLC
Tri-States, L.L.C.
CMA Cablevision Associates VII, L.P.
Wellsville Cablevision, L.L.C.
Brazas Communications, Inc.
Eastern Virginia Cablevision, L.P.
Louisa Cablevision, Inc.
Manchester Cablevision, Inc.
Clear Cablevision, Inc.
Adelphia Cablevision of Inland Empire, LLC
Adelphia Cablevision Corp.
Harron Cablevision of New Hampshire, Inc.
Adelphia Communications of California II, LLC
Century Virginia Corp.
Adelphia of the Midwest, Inc.
Badger Holding Corporation
Paragon Cable Television Inc.
Paragon Cablevision Construction Corporation
Century Wyoming Cable Television Corp.
Star Cable Inc.
E. & E. Cable Service, Inc.
Adelphia Cablevision of West Palm Beach III, LLC
Adelphia Cablevision of Orange County II, LLC
Owensboro on the Air, Inc.
Owensboro Indiana, L.P.
Century Island Cable Television Corp.
Southwest Colorado Cable, Inc.
Sentinel Communications of Muncie, Indiana, Inc.
Huntington CATV, Inc.
Century Warrick Cable Corp.
Century Cable Holding Corp.
Adelphia Cablevision of Orange County, LLC
1
Century Ohio Cable Television Corp.
Tele-Media Company of Tri-States L.P.
CMA Cablevision Associates XI, Limited Partnership
Martha's Vineyard Cablevision, L.P.
TMC Holdings Corporation
Scranton Cablevision, Inc.
Blacksburg/Salem Cablevision, Inc.
Adelphia Cablevision of Seal Beach, LLC
Adelphia Cablevision of Fontana, LLC
Adelphia Cablevision of San Bernardino, LLC
Adelphia Cablevision of Boca Raton, LLC
Adelphia Communications of California, LLC
Century Mountain Corp.
Adelphia Prestige Cablevision, LLC
Adelphia Cleveland, LLC
S/T Cable Corporation
Paragon Cablevision Management Corporation
Century Trinidad Cable Television Corp.
Grafton Cable Company
The Westover T.V. Cable Co., Incorporated
Century New Mexico Cable Television Corp.
Mickelson Media, Inc.
Century Mendocino Cable Television, Inc.
Century Colorado Springs Partnership
Century Granite Cable Television Corp.
Century Island Associates, Inc.
Century Southwest Colorado Cable Television Corp.
Century Indiana Corp.
Adelphia Cablevision of West Palm Beach IV, LLC
Adelphia Cablevision of West Palm Beach V, LLC
Century Berkshire Cable Corp.
Adelphia Pinellas County, LLC
2
Century-TCI Borrower Group (Several Borrower Group):
----------------------------------------------------
- ------------------------------- ------------------ ----------------------------
Borrower: Borrowing Limit Letter of Credit Sublimit
- --------- --------------- -------------------------
- ------------------------------- ------------------ ----------------------------
Century-TCI California, L.P. $150 million $150 million
- ------------------------------- ------------------ ----------------------------
Guarantors:
- -----------
Century-TCI Holdings, LLC
Century-TCI California Communications, L.P.
3
UCA Borrower Group (Several Borrower Group):
--------------------------------------------
- ------------------------------- ------------------ ----------------------------
Borrower: Borrowing Limit Letter of Credit Sublimit
- --------- --------------- -------------------------
- ------------------------------- ------------------ ----------------------------
UCA LLC $150 million $150 million
- ------------------------------- ------------------ ----------------------------
Guarantors:
- -----------
Southwest Virginia Cable, Inc.
Van Buren County Cablevision, Inc.
Adelphia Cablevision of Santa Ana, LLC
Adelphia Cablevision of Simi Valley, LLC
Tele-Media Company of Hopewell-Prince George
SVHH Cable Acquisition, L.P.
SVHH Holdings, LLC
Olympus Communications, L.P.
National Cable Acquisition Associates, L.P.
Tele-Media Investment Partnership, L.P.
Adelphia Central Pennsylvania, LLC
Eastern Virginia Cablevision Holdings, LLC
4
Parnassos Borrower Group (Several Borrower Group):
--------------------------------------------------
- ------------------------------- ------------------ ----------------------------
Borrower: Borrowing Limit Letter of Credit Sublimit
- --------- --------------- -------------------------
- ------------------------------- ------------------ ----------------------------
Parnassos, L.P. $50 million $50 million
- ------------------------------- ------------------ ----------------------------
Guarantors:
- -----------
Parnassos Holdings, LLC
Parnassos Communications, L.P.
Western NY Cablevision, L.P.
5
Frontiervision Borrower Group (Several Borrower Group):
-------------------------------------------------------
- ------------------------------- ------------------ ----------------------------
Borrower: Borrowing Limit Letter of Credit Sublimit
- --------- --------------- -------------------------
- ------------------------------- ------------------ ----------------------------
FrontierVision Operating $150 million $150 million
Partners, L.P.
- ------------------------------- ------------------ ----------------------------
Guarantors:
- -----------
FrontierVision Capital Corporation
FrontierVision Access Partners, LLC
The Main InternetWorks, Inc.
Adelphia Communications of California III, LLC
FrontierVision Cable New England, Inc.
FOP Indiana, L.P.
FrontierVision Holdings, L.P.
FrontierVision Operating Partners, L.L.C.
FrontierVision Holdings Capital Corporation
FrontierVision Holdings Capital II Corporation
6
Olympus Borrower Group (Several Borrower Group):
------------------------------------------------
- ------------------------------- ------------------ ----------------------------
Borrower: Borrowing Limit Letter of Credit Sublimit
- --------- --------------- -------------------------
- ------------------------------- ------------------ ----------------------------
Olympus Cable Holdings, LLC $150 million $150 million
- ------------------------------- ------------------ ----------------------------
Guarantors:
- -----------
Olympus Communications Holdings, L.L.C.
Arahova Holdings, LLC
Adelphia Cablevision of New York, Inc.
Century Alabama Holding Corp.
Century Enterprise Cable Corp.
Century Alabama Corp.
Century Cullman Corp.
Century Cable Management Corporation
Century Carolina Corp.
Century Huntington Company
Century Mississippi Corp.
Century Norwich Corp.
Century Shasta Cable Television Corp.
CDA Cable, Inc.
Century Washington Cable Television, Inc.
Century Kansas Cable Television Corp.
Century Lykens Cable Corp.
Cowlitz Cablevision, Inc.
Imperial Valley Cablevision, Inc.
Kootenai Cable, Inc.
Mickelson Media of Florida, Inc.
Pullman TV Cable Co., Inc.
Rentavision of Brunswick, Inc.
Telesat Acquisition, LLC
Valley Video, Inc.
Wilderness Cable Company
Yuma Cablevision, Inc.
Warrick Cablevision, Inc.
CCC-III, Inc.
Warrick Indiana, L.P.
Chelsea Communications, LLC
Chelsea Communications, Inc.
GS Telecommunications LLC
Kalamazoo County Cablevision, Inc.
Multi-Channel T.V. Cable Company
Mt. Lebanon Cablevision, Inc.
7
Rigpal Communications, Inc.
Upper St. Clair Cablevision, Inc.
Pericles Communications Corporation
Mountain Cable Communications Corporation
Young's Cable TV Corp.
Better TV, Inc. of Bennington
Adelphia Cablevision Associates, L.P.
Three Rivers Cable Associates, L.P.
Mountain Cable Company, L.P.
Lake Champlain Cable Television Corporation
Richmond Cable Television Corporation
Adelphia GS Cable, LLC
ACC Cable Holdings VA, Inc.
Adelphia Cable Partners, L.P.
GS Cable LLC
ACC Cable Communications FL-VA, LLC
Timotheos Communications, L.P.
Southeast Florida Cable, Inc.
Key Biscayne Cablevision
West Boca Acquisition Limited Partnership
Starpoint, Limited Partnership
Genesis Cable Communications Subsidiary L.L.C.
Cable Sentry Corporation
Coral Security, Inc.
Westview Security, Inc.
Olympus Capital Corporation
TMC Holdings, LLC
Adelphia Company of Western Connecticut
Olympus Subsidiary, LLC
Adelphia Holdings 2001, LLC
8
Seven A (Joint and Several Borrower Group):
-------------------------------------------
- ------------------------------- ------------------ ----------------------------
Borrower: Borrowing Limit Letter of Credit Sublimit
- --------- --------------- -------------------------
- ------------------------------- ------------------ ----------------------------
ACC Investment Holdings, Inc. $5 million $5 million
- ------------------------------- ------------------ ----------------------------
Guarantors:
- -----------
ACC Telecommunications Holdings LLC
ACC Telecommunications LLC
ACC Telecommunications of Virginia LLC
ACC-AMN Holdings, LLC
Adelphia Acquisition Subsidiary, Inc.
Adelphia Arizona, Inc.
Adelphia Cablevision, LLC
Adelphia Communications International, Inc.
Adelphia International II, LLC
Adelphia International III, LLC
Adelphia Harbor Center Holdings, LLC
Adelphia General Holdings III, Inc.
Adelphia Mobile Phones, Inc.
Adelphia Telecommunications, Inc.
Adelphia Wellsville, LLC
Chestnut Street Services, LLC
The Golf Club at Wending Creek Farms, LLC
Mercury Communications, Inc.
Page Time, Inc.
Sabres, Inc.
US Tele-Media Investment Company
Empire Sports Network, L.P.
9
Seven B (Several Borrower Group):
---------------------------------
- ------------------------------- ------------------ ----------------------------
Borrower: Borrowing Limit Letter of Credit Sublimit
- --------- --------------- -------------------------
- ------------------------------- ------------------ ----------------------------
Arahova Communications, Inc. $10 million $10 million
- ------------------------------- ------------------ ----------------------------
Guarantors:
- -----------
FAE Cable Management Corp.
Adelphia Blairsville, LLC
Century Colorado Springs Corp.
Century Voice and Data Communications, Inc.
Century Australia Communications Corp.
Century Oregon Cable Corp.
Century Investment Holding Corp.
Century Investors, Inc.
Owensboro-Brunswick, Inc.
Century Advertising, Inc.
Century Programming, Inc.
Century Realty Corp.
Century Federal, Inc.
Century Pacific Cable TV, Inc.
Century Cable of Southern California
Century Communications Corp.
Century Exchange, LLC
10
Seven C (Several Borrower Group):
---------------------------------
- ------------------------------- ------------------ ----------------------------
Borrower: Borrowing Limit Letter of Credit Sublimit
- --------- --------------- -------------------------
- ------------------------------- ------------------ ----------------------------
Adelphia California $35 million $35 million
Cablevision, LLC
- ------------------------------- ------------------ ----------------------------
Guarantors:
- -----------
Adelphia Cablevision of the Kennebunks, LLC
CP-MDU I LLC
CP-MDU II LLC
Adelphia Telecommunications of Florida, Inc.
Buenavision Telecommunications, Inc.
Century Cablevision Holdings, LLC
CCC-Indiana, Inc.
CCH Indiana, L.P.
Global Cablevision II, LLC
Global Acquisition Partners, L.P.
Monument Colorado Cablevision, Inc.
Leadership Acquisition Limited Partnership
Telesat Acquisition Limited Partnership
Robinson/Plum Cablevision, L.P.
11
Holding Company Guarantors:
---------------------------
Adelphia Communications Corporation
ACC Operations, Inc.
ACC Holdings II, LLC
FrontierVision Holdings, LLC
FrontierVision Partners, L.P.
Adelphia GP Holdings, LLC
Montgomery Cablevision, Inc.
Adelphia Western New York Holdings, LLC
12