Exhibit 4.1
CREDIT AGREEMENT
among
AT&T COMCAST CORPORATION
AT&T BROADBAND CORP.
The Financial Institutions Party Hereto
JPMORGAN CHASE BANK,
as Administrative Agent, Swing Line Lender
and
Issuing Lender
CITIBANK, N.A.,
as Syndication Agent
and
BANK OF AMERICA, N.A.,
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Co-Documentation Agents
Dated as of April 26, 2002
J.P. MORGAN SECURITIES INC.
and
SALOMON SMITH BARNEY INC.,
as
Joint Lead Arrangers and Joint Bookrunners
BANC OF AMERICA SECURITIES LLC,
MERRILL LYNCH & CO.,
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Co-Arrangers
TABLE OF CONTENTS
PAGE
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS.....................................1
1.01 Defined Terms.......................................................1
1.02 Use of Certain Terms...............................................17
1.03 Accounting Terms...................................................17
1.04 Rounding...........................................................18
1.05 Exhibits and Schedules.............................................18
1.06 References to Agreements and Laws..................................18
1.07 Pro Forma Calculations.............................................18
SECTION 2 THE COMMITMENTS AND EXTENSIONS OF CREDIT............................19
2.01 Amount and Terms of Revolving Commitments..........................19
2.02 Procedure for Revolving Loan Borrowings............................19
2.03 Letters of Credit..................................................20
2.04 Swing Line Loans...................................................24
2.05 Prepayments of Revolving Loans.....................................26
2.06 Reduction or Termination of Revolving Commitments..................25
2.07 Term Loans.........................................................25
2.08 Procedure for Borrowing of Term Loans..............................25
2.09 Repayment of Term Loans............................................26
2.10 Documentation of Loans.............................................26
2.11 Continuation and Conversion Option.................................27
2.12 Interest...........................................................27
2.13 Fees...............................................................28
2.14 Computation of Interest and Fees...................................29
2.15 Making Payments....................................................29
2.16 Funding Sources....................................................30
SECTION 3 TAXES, YIELD PROTECTION AND ILLEGALITY..............................30
3.01 Taxes..............................................................30
3.02 Illegality.........................................................31
3.03 Inability to Determine Eurodollar Rates............................31
3.04 Increased Cost and Reduced Return; Capital Adequacy................31
3.05 Breakfunding Costs.................................................32
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PAGE
3.06 Matters Applicable to all Requests for Compensation................32
3.07 Survival...........................................................33
SECTION 4 CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT........................33
4.01 Conditions Precedent to Effective Date.............................33
4.02 Conditions to all Extensions of Credit.............................35
SECTION 5 REPRESENTATIONS AND WARRANTIES......................................36
5.01 Existence and Qualification; Power; Compliance with Laws...........36
5.02 Power; Authorization; Enforceable Obligations......................36
5.03 No Legal Bar.......................................................36
5.04 Financial Statements; No Material Adverse Effect...................36
5.05 Litigation.........................................................37
5.06 No Default.........................................................37
5.07 Authorizations.....................................................37
5.08 Taxes..............................................................37
5.09 Margin Regulations; Investment Company Act; Public
Utility Holding Company Act........................................37
5.10 ERISA Compliance...................................................37
5.11 Assets; Liens......................................................38
5.12 Environmental Compliance...........................................38
5.13 Use of Proceeds....................................................38
5.14 Disclosure.........................................................38
SECTION 6 AFFIRMATIVE COVENANTS...............................................39
6.01 Financial Statements...............................................39
6.02 Certificates, Notices and Other Information........................39
6.03 Payment of Taxes...................................................40
6.04 Preservation of Existence..........................................40
6.05 Maintenance of Properties..........................................40
6.06 Maintenance of Insurance...........................................40
6.07 Compliance With Laws...............................................41
6.08 Inspection Rights..................................................41
6.09 Keeping of Records and Books of Account............................41
6.10 Compliance with ERISA..............................................41
6.11 Compliance With Agreements.........................................41
6.12 Use of Proceeds....................................................41
6.13 Designation of Unrestricted Companies..............................41
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PAGE
SECTION 7 NEGATIVE COVENANTS..................................................42
7.01 Liens..............................................................42
7.02 Subsidiary Indebtedness............................................43
7.03 Fundamental Changes................................................43
7.04 ERISA..............................................................44
7.05 Limitations on Upstreaming.........................................44
7.06 Margin Regulations.................................................44
7.07 Financial Covenants................................................44
SECTION 8 EVENTS OF DEFAULT AND REMEDIES......................................45
8.01 Events of Default..................................................45
8.02 Remedies Upon Event of Default.....................................46
SECTION 9 THE AGENTS..........................................................47
9.01 Appointment........................................................47
9.02 Delegation of Duties...............................................48
9.03 Exculpatory Provisions.............................................48
9.04 Reliance by Administrative Agent...................................48
9.05 Notice of Default..................................................48
9.06 Non-Reliance on Agents and Other Lenders...........................49
9.07 Indemnification....................................................49
9.08 Agent in Its Individual Capacity...................................49
9.09 Successor Administrative Agent.....................................50
9.10 Documentation Agents and Syndication Agent.........................50
SECTION 10 MISCELLANEOUS......................................................50
10.01 Amendments; Consents...............................................50
10.02 Requisite Notice; Effectiveness of Signatures
and Electronic Mail................................................51
10.03 Attorney Costs, Expenses and Taxes.................................52
10.04 Binding Effect; Assignment.........................................53
10.05 Set-off............................................................54
10.06 Sharing of Payments................................................55
10.07 No Waiver; Cumulative Remedies.....................................55
10.08 Usury..............................................................55
10.09 Counterparts.......................................................56
10.10 Integration........................................................56
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PAGE
10.11 Nature of Lenders' Obligations.....................................56
10.12 Survival of Representations and Warranties.........................56
10.13 Indemnity by Borrower..............................................56
10.14 Nonliability of Lenders............................................57
10.15 No Third Parties Benefitted........................................58
10.16 Severability.......................................................58
10.17 Confidentiality....................................................58
10.18 Headings...........................................................59
10.19 Time of the Essence................................................59
10.20 Foreign Lenders....................................................59
10.21 Removal and Replacement of Lenders.................................59
10.22 Governing Law......................................................60
10.23 Waiver of Right to Trial by Jury...................................60
iv
EXHIBITS
A Form of Guarantee Agreement
B Form of Request for Extension of Credit
C Form of Compliance Certificate
D Form of Assignment and Acceptance
SCHEDULES
A Excluded Indebtedness
2.01 Commitments
7.01 Existing Liens
7.02 Existing Subsidiary Indebtedness
v
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of April 26, 2002, by and
among AT&T COMCAST CORPORATION, a Pennsylvania corporation ("Borrower"), AT&T
BROADBAND CORP., a Delaware corporation, each lender from time to time party
hereto (collectively, "Lenders" and individually, a "Lender"), JPMORGAN CHASE
BANK, as Administrative Agent, Swing Line Lender and an Issuing Lender,
CITIBANK, N.A., as syndication agent (in such capacity, "Syndication Agent"),
and BANK OF AMERICA, N.A., MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED and MORGAN STANLEY SENIOR FUNDING, INC., as co-documentation
agents (in such capacity, "Co-Documentation Agents").
RECITAL
Borrower has requested that Lenders, Swing Line Lender and Issuing
Lender provide a revolving line of credit and a term loan facility, and Lenders,
Swing Line Lender, Issuing Lender and Administrative Agent are willing to do so
on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquisition" means (a) any purchase or other acquisition of
assets or series of related purchases or other acquisitions of assets by
Borrower or any Restricted Subsidiary (including by way of asset or stock
purchase, swap or merger) other than from Borrower or any Restricted Subsidiary
or (b) the designation by Borrower of an Unrestricted Subsidiary as a Restricted
Subsidiary.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity
as administrative agent under any of the Loan Documents, or any successor
administrative agent permitted under the Loan Documents.
"Administrative Agent's Office" means Administrative Agent's
address and, as appropriate, account set forth below its signature to this
Agreement, or such other address or account as Administrative Agent hereafter
may designate by written notice to Borrower and Lenders.
"Administrative Agent-Related Persons" means Administrative Agent
(including any successor agent), together with its Affiliates and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Administrative Questionnaire" means, with respect to each Lender,
an administrative questionnaire in the form prepared by Administrative Agent and
submitted to Administrative Agent (with a copy to Borrower) duly completed by
such Lender.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by, or is under direct
or indirect common control with, such Person.
2
"Agents" means the collective reference to Administrative Agent,
Syndication Agent and Co-Documentation Agents.
"Aggregate Exposure" means, with respect to any Lender at any
time, an amount equal to (a) until the Effective Date, the aggregate Commitments
of such Lender at such time and (b) thereafter, the sum of (i) the aggregate
then unpaid principal amount of such Lender's Term Loans and (ii) the amount of
such Lender's Revolving Commitment then in effect or, if the Revolving
Commitments have been terminated, the amount of such Lender's Outstanding
Revolving Obligations.
"Aggregate Exposure Percentage" means, with respect to any Lender
at any time, the ratio (expressed as a percentage) of such Lender's Aggregate
Exposure at such time to the Aggregate Exposure of all Lenders at such time.
"Agreement" means this Credit Agreement, as amended, restated,
extended, supplemented or otherwise modified in writing from time to time.
"Annualized EBITDA" means, at any date of determination, EBITDA
for the two fiscal quarter periods then most recently ended times two (2);
provided that (x) for the purposes of calculating the Interest Coverage Ratio at
December 31, 2002 and March 31, 2003, Annualized EBITDA shall mean EBITDA for
the period from the first day of the fiscal quarter in which the Effective Date
occurs to such date of determination and (y) for the purposes of calculating the
Leverage Ratio at March 31, 2003, Annualized EBITDA shall mean EBITDA for the
fiscal quarter then ended times four (4).
"Annualized Interest Expense" means, at any date of determination,
Interest Expense for the two fiscal quarter periods then most recently ended
times two (2); provided that for the purposes of calculating the Interest
Coverage Ratio at December 31, 2002 and March 31, 2003, Annualized Interest
Expense shall mean Interest Expense for the period from the first day of the
fiscal quarter in which the Effective Date occurs to such date of determination.
"Applicable Amount" means the rate per annum, in basis points, set
forth under the relevant column heading below based upon the applicable Debt
Ratings:
REVOLVING FACILITY
PRICING DEBT RATINGS COMMITMENT BASE EURODOLLAR RATE/ UTILIZATION FEE UTILIZATION FEE
LEVEL S&P/MOODY'S FEE RATE LETTERS OF CREDIT (>33.3%) (>66.7%)
------- ------------ ---------- ---- ----------------- --------------- ---------------
1 >A/A2 8.5 0 22.5 12.5 25.0
2 A-/A3 10.0 0 37.5 12.5 25.0
3 BBB+/Baa1 12.5 0 62.5 12.5 25.0
4 BBB/Baa2 15.0 0 87.5 12.5 25.0
5 BBB-/Baa3 18.0 12.5 112.5 12.5 25.0
6 <BBB-/Baa3 or
unrated 25.0 62.5 162.5 12.5 25.0
3
TERM FACILITY
PRICING DEBT RATINGS
LEVEL S&P/MOODY'S BASE RATE MARGIN EURODOLLAR RATE MARGIN
------- ------------ ---------------- ----------------------
1 >A/A2 0 47.5
2 A-/A3 0 62.5
3 BBB+/Baa1 0 87.5
4 BBB/Baa2 12.5 112.5
5 BBB-/Baa3 37.5 137.5
6 <BBB-/Baa3 or
unrated 87.5 187.5
As used in this definition, "Debt Rating" means, as of any date of
determination, the rating as determined by either S&P or Moody's (collectively,
the "Debt Ratings") of Borrower's senior unsecured non-credit enhanced long-term
Indebtedness for borrowed money; provided that, solely for purposes of
determining the Applicable Amount, if a Debt Rating is issued by each of S&P and
Moody's, then the higher of such Debt Ratings shall apply (with Pricing Level 1
being the highest and Pricing Level 6 being the lowest), unless there is a split
in Debt Ratings of more than one level, in which case the level that is one
level higher than the lower Debt Rating shall apply. Initially, the Debt Ratings
shall be determined from the certificate delivered pursuant to Section
4.01(a)(iv). Thereafter, the Debt Ratings shall be determined from the most
recent public announcement of any changes in the Debt Ratings. Any change in the
Applicable Amount shall become effective on and as of the date of any public
announcement of any Debt Rating that indicates a different Applicable Amount. If
the rating system of S&P or Moody's shall change, Borrower and Administrative
Agent shall negotiate in good faith to amend this definition to reflect such
changed rating system and, pending the effectiveness of such amendment (which
shall require the approval of Required Lenders), the Debt Rating shall be
determined by reference to the rating most recently in effect prior to such
change.
"Applicable Payment Date" means, (a) as to any Eurodollar Rate
Loan, the last day of the relevant Interest Period, any date that such Loan is
prepaid or Converted in whole or in part and the maturity date of such Loan;
provided, however, that if any Interest Period for a Eurodollar Rate Loan
exceeds three months, interest shall also be paid on the Business Day which
falls every three months after the beginning of such Interest Period; and (b) as
to any other Obligations, the last Business Day of each calendar quarter and the
maturity date of such Obligation, except as otherwise provided herein.
"Applicable Time" means New York time.
"Asset Monetization Transactions" has the meaning set forth in the
definition of Consolidated Total Indebtedness.
"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit D.
"Attorney Costs" means the reasonable fees and disbursements of a
law firm or other external counsel.
"Attributable Indebtedness" means, with respect to any
Sale-Leaseback Transaction, the present value (discounted at the rate set forth
or implicit in the terms of the lease included in such Sale-Leaseback
Transaction) of the total obligations of the lessee for rental payments (other
than amounts required to be paid on account of taxes, maintenance, repairs,
insurance, assessments, utilities, operating and labor costs and other items
that do not constitute payments for property rights) during the remaining term
of the lease included in such Sale-Leaseback Transaction (including any period
for which such lease has been extended). In the case of any lease that is
terminable by the lessee upon payment of a penalty, the Attributable
Indebtedness shall be the lesser of the Attributable Indebtedness determined
assuming termination on the first date such lease may be terminated (in which
case the Attributable Indebtedness shall also include the amount of the penalty,
but no rent shall be considered as required to be paid under
4
such lease subsequent to the first date on which it may be so terminated) or the
Attributable Indebtedness determined assuming no such termination.
"Base Rate" means for any day a fluctuating rate per annum equal
to the higher of (a) the Federal Funds Rate in effect for such day plus 1/2 of
1% and (b) the rate of interest in effect for such day as publicly announced
from time to time by JPMorgan Chase as its "prime rate" in effect at its
principal office in New York City (the Prime Rate not being intended to be the
lowest rate of interest charged by JPMorgan Chase in connection with extensions
of credit to debtors). Any change in such rate announced by JPMorgan Chase shall
take effect at the opening of business on the day specified in the public
announcement of such change.
"Base Rate Loan" means a Loan made hereunder that bears interest
based upon the Base Rate.
"BLR Group" means Brian L. Roberts ("BLR"), a lineal descendant of
BLR, the estate of BLR, any trust of which the principal beneficiaries are any
one or more of BLR and his lineal descendants and any group (within the meaning
of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder as in effect on the date hereof) of which any of
the foregoing is a member.
"Bridge Facility" means the Bridge Credit Agreement, dated as of
the date hereof, among certain of the parties hereto.
"Borrower" has the meaning set forth in the introductory paragraph
hereto.
"Borrowing" and "Borrow" each mean a borrowing of Loans hereunder.
"Broadband" means AT&T Broadband Corp.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York, New York are authorized or
required by law to close, and, if the applicable Business Day relates to a
Eurodollar Rate Loan, any such day on which dealings are carried out in the
applicable offshore Dollar market.
"Cable Subsidiary" means a Subsidiary of Borrower that (a)
operates cable assets or (b) directly or indirectly owns or holds an investment
in another Person that operates cable assets.
"Change of Control" means the occurrence after the consummation of
the Transactions of any of the following: (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder, as in effect on the date hereof),
other than the BLR Group, of Equity Interests representing more than the greater
of (i) 35% and (ii) the percentage owned, directly or indirectly, beneficially
or of record, by the BLR Group, of the aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of Borrower; (b) the
occupation of a majority of the seats (other than vacant seats) on the board of
directors of Borrower by Persons who were neither (i) nominated by the board of
directors of Borrower (or by the Nominating Committee of such board) nor (ii)
appointed by directors so nominated; or (c) the acquisition of direct or
indirect Control of Borrower by any Person or group, other than the BLR Group.
As used in this definition, "Control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a Person, whether through the ability to exercise voting power, by
contract or otherwise.
5
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Co-Borrower" means each of Borrower and Broadband.
"Co-Documentation Agents" has the meaning set forth in the
introductory paragraph hereto.
"Commitment" means, for each Lender, the sum of the Term Loan
Commitment and the Revolving Commitment of such Lender (collectively, the
"combined Commitments").
"Compliance Certificate" means a certificate substantially in the
form of Exhibit C, properly completed and signed by a Responsible Officer of
Borrower.
"Consolidated Total Indebtedness" means, as of any date of
determination, the total Indebtedness of Borrower and its Restricted
Subsidiaries, determined on a consolidated basis in accordance with GAAP, but
excluding (i) Indebtedness of Borrower and its Restricted Subsidiaries arising
from (A) the asset monetization transactions set forth on Schedule A and any
extensions, renewals or replacements thereof and (B) any asset monetization
transactions which are recourse only to the assets so monetized and are done on
substantially similar terms to the asset monetization transactions set forth on
Schedule A (collectively, "Asset Monetization Transactions") and (ii) the net
remaining excess of the fair value over the recorded value of the Indebtedness
of Broadband and its Subsidiaries as of the Effective Date.
"Continuation" and "Continue" mean, with respect to any Eurodollar
Rate Loan, the continuation of such Eurodollar Rate Loan as a Eurodollar Rate
Loan on the last day of the Interest Period for such Loan.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Conversion" and "Convert" mean, with respect to any Loan, the
conversion of such Loan from or into another type of Loan.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States of America, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization or similar debtor relief Laws of the
United States of America or other applicable jurisdictions from time to time in
effect affecting the rights of creditors generally.
"Debt Rating" has the meaning set forth in the definition of
Applicable Amount.
"Default" means any event that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to the Base Rate plus
2% per annum; provided, however, that with respect to a Eurodollar Rate Loan
(for so long as it is a Eurodollar Rate Loan), the Default Rate shall be an
interest rate equal to the interest rate (including any Applicable Amount)
otherwise applicable to such Loan plus 2% per annum, in each case to the fullest
extent permitted by applicable Laws.
6
"Disposition" means (a) any sale, transfer or other disposition of
assets or series of sales, transfers or other disposition of assets by Borrower
or any Restricted Subsidiary (including by way of asset or stock sale, swap or
merger) other than to Borrower or any Restricted Subsidiary or (b) the
designation by Borrower of a Restricted Subsidiary as an Unrestricted
Subsidiary.
"Dollar" and "$" means lawful money of the United States of
America.
"EBITDA" means, with respect to any Person or any income
generating assets, for any period, an amount equal to (a) the net income of such
Person or generated by such assets adjusted to exclude (i) gains and losses from
unusual or extraordinary items and (ii) interest income, plus (b) income or
gross receipts taxes (whether or not deferred), Interest Expense, depreciation,
amortization and other non-cash charges to income, in each case for such period,
minus (c) any cash payments made during such period in respect of any non-cash
charges to income accrued during a prior period and added back in determining
EBITDA during such prior period pursuant to clause (b) above, plus (d) any
restructuring and other nonrecurring charges and expenses directly related to
the Transactions incurred prior to June 30, 2004, plus (e) corporate overhead
expenses incurred by Borrower in an aggregate amount not to exceed $100,000,000
for any fiscal year of Borrower.
"Effective Date" means the date upon which all the conditions
precedent in Section 4.01 have been satisfied or waived, which date shall be at
least one Business Day after receipt by Administrative Agent of a written notice
from Borrower identifying such date as the anticipated Effective Date (which
written notice Administrative Agent will promptly forward to Lenders).
"Environmental Laws" means all Laws relating to environmental,
health, safety and land use matters applicable to any property.
"Equity Interests" means 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, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974
and any regulations issued pursuant thereto, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Borrower within the meaning of Section
414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) any "reportable event," as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by Borrower or any ERISA Affiliates of
any liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or to
appoint a trustee to administer any Plan; (f) the incurrence by Borrower or any
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by any
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from Borrower or any ERISA Affiliate
7
of any notice, concerning the imposition of withdrawal liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar Base Rate" has the meaning set forth in the definition
of Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to
any Eurodollar Rate Loan, a rate per annum determined by Administrative Agent
pursuant to the following formula:
Eurodollar Rate = Eurodollar Base Rate
-----------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period:
(a) The rate per annum equal to the rate determined by
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) In the event the rate referenced in the preceding subsection
(a) does not appear on such page or service or such page or service
shall cease to be available, the rate per annum equal to the rate
reasonably determined by Administrative Agent (after consultation with
Borrower) to be the offered rate on such other page or other service
that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, or
(c) In the event the rates referenced in the preceding subsections
(a) and (b) are not available, the rate per annum determined by
Administrative Agent as the average of the rates of interest (rounded
upward to the next 1/100th of 1%) at which deposits in Dollars for
delivery on the first day of such Interest Period in same day funds in
the approximate amount of the Eurodollar Rate Loan being made,
Continued or Converted by Administrative Agent in its capacity as a
Lender and with a term equivalent to such Interest Period are offered
by Reference Banks to major banks in the London interbank Dollar market
at their request at approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period. If any Reference
Bank does not quote such a rate at the request of Administrative Agent,
such average rate shall be determined from the rates of the Reference
Banks that quote such a rate; and
"Eurodollar Reserve Percentage" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day,
whether or not applicable to any Lender, under regulations issued from
time to time by the Board of Governors of the Federal Reserve System
for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) for a
member bank of the Federal Reserve System in respect of "Eurocurrency
liabilities" (or in respect of any other category of liabilities, which
includes deposits by reference to which the interest rate on Eurodollar
Rate Loans is determined or any category of extensions of credit or
other assets, which includes loans by a non-United States office of
any Lender to United States residents).
8
The Eurodollar Rate for each outstanding Eurodollar Rate Loan shall be
adjusted automatically as of the effective date of any change in the
Eurodollar Reserve Percentage.
The determination of the Eurodollar Reserve Percentage and the
Eurodollar Base Rate by Administrative Agent shall be conclusive in the
absence of manifest error.
"Eurodollar Rate Loan" means a Loan bearing interest based on the
Eurodollar Rate.
"Eurodollar Reserve Percentage" has the meaning set forth in the
definition of Eurodollar Rate.
"Event of Default" means any of the events specified in Section 8.
"Existing Comcast Facilities" means the collective reference to
the 364-Day Agreement and the Five Year Revolving Credit Agreement.
"Existing Letters of Credit" means the letters of credit of
Broadband and its Subsidiaries identified by Borrower to Administrative Agent
that have been issued prior to the Effective Date by Lenders and that are
outstanding on the Effective Date in an aggregate amount not to exceed
$300,000,000.
"Extension of Credit" means (a) a Borrowing, Conversion or
Continuation of Loans and (b) a Letter of Credit Action whereby a new Letter of
Credit is issued or which has the effect of increasing the amount of, extending
the maturity of, or making a material modification to an outstanding Letter of
Credit or the reimbursement of drawings thereunder (collectively, the
"Extensions of Credit").
"Facility" means either of (a) the Revolving Commitments and the
Extensions of Credit made thereunder (the "Revolving Facility") or (b) the Term
Loan Commitments and the Term Loans made thereunder (the "Term Loan Facility").
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards to the nearest 1/100 of 1%) equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate charged to JPMorgan Chase on
such day on such transactions as determined by Administrative Agent (which
determination shall be conclusive in the absence of manifest error).
"Five Year Revolving Credit Agreement" means the Five Year
Revolving Credit Agreement dated August 24, 2000, among Comcast Cable
Communications, Inc., Bank of America, N.A., as Administrative Agent and the
lenders party thereto.
"GAAP" means generally accepted accounting principles applied on a
consistent basis (but subject to changes approved by Borrower's independent
certified public accountants).
"Governmental Authority" means (a) any international, foreign,
federal, state, county or municipal government, or political subdivision
thereof, (b) any governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality, central bank or public body,
9
including the Federal Communications Commission, (c) any state public utilities
commission or other authority and any federal, state, county, or municipal
licensing or franchising authority or (d) any court or administrative tribunal.
"Guarantee Agreement" means the Guarantee Agreement to be executed
and delivered by each Guarantor, substantially in the form of Exhibit A.
"Guarantors" means Comcast Cable Communications, Inc., MediaOne
Group, Inc., AT&T Broadband, LLC, Broadband, Borrower and each Restricted
Subsidiary that becomes a party to the Guarantee Agreement pursuant to Section
7.02(c).
"Guaranty Obligation" means, as to any Person, any (a) guaranty by
such Person of Indebtedness of any other Person or (b) legally binding
obligation of such Person to purchase or pay (or to advance or supply funds for
the purchase or payment of) Indebtedness of any other Person, or to purchase
property, securities, or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness or to maintain working capital,
equity capital or other financial statement condition of such other Person so as
to enable such other Person to pay such Indebtedness; provided, however, that
the term Guaranty Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guaranty Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof,
covered by such Guaranty Obligation or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
Person in good faith.
"Indebtedness" means, as to any Person, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property or assets purchased by such Person, (d) all
obligations of such Person issued or assumed as the deferred purchase price of
property or services, (e) all Indebtedness of others secured by any Lien on
property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (f) all Guaranty Obligations of such Person
with respect to Indebtedness of others, (g) all capital lease obligations of
such Person, (h) all Attributable Indebtedness under Sale-Leaseback Transactions
under which such Person is the lessee and (i) all obligations of such Person as
an account party in respect of outstanding letters of credit (whether or not
drawn) and bankers' acceptances; provided, however, that Indebtedness shall not
include (i) trade accounts payable arising in the ordinary course of business
and (ii) deferred compensation; provided, further, that in the case of any
obligation of such Person which is recourse only to certain assets of such
Person, the amount of such Indebtedness shall be deemed to be equal to the
lesser of the amount of such Indebtedness or the value of the assets to which
such obligation is recourse as reflected on the balance sheet of such Person at
the time of the incurrence of such obligation; and provided, further, that the
amount of any Indebtedness described in clause (e) above shall be the lesser of
the amount of the Indebtedness or the fair market value of the property securing
such Indebtedness.
"Indemnified Liabilities" has the meaning set forth in Section
10.13.
"Indemnitees" has the meaning set forth in Section 10.13.
"Interest Coverage Ratio" means, at any date of determination, for
Borrower and its Restricted Subsidiaries, on a consolidated basis, the ratio of
(a) Annualized EBITDA to (b) Annualized Interest Expense.
10
"Interest Expense" means, with respect to any Person or any income
generating assets, for any period, an amount equal to, without duplication, (a)
all interest on Indebtedness of such Person or properly allocable to such
assets, and commitment and facility fees in respect thereof, accrued (whether or
not actually paid) during such period, (b) plus the net amount accrued (whether
or not actually paid) by such Person or properly allocable to such assets
pursuant to any interest rate protection agreement during such period (or minus
the net amount receivable (whether or not actually received) by such Person or
properly allocable to such assets during such period), (c) minus the
amortization of deferred financing fees recorded during such period, (d) minus
the amortization of any discount or plus the amortization of any premium
(determined as the difference between the present value and the face amount of
the subject Indebtedness) recorded during such period, and (e) minus the
amortization or plus the accretion recorded during such period of the adjustment
of the long-term Indebtedness of Broadband and its Subsidiaries to its fair
value as of the Effective Date.
"Interest Period" means, for each Eurodollar Rate Loan, (a)
initially, the period commencing on the date such Eurodollar Rate Loan is
disbursed or Continued as, or Converted into, such Eurodollar Rate Loan and (b)
thereafter, the period commencing on the last day of the preceding Interest
Period, and ending, in each case, on the earlier of (x) the scheduled maturity
date of such Loan, or (y) one, two, three, six, or subject to availability to
each Lender, 12 months thereafter; provided that:
(i) Any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next preceding Business Day;
(ii) Any Interest Period which begins on the last Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of the calendar month at the
end of such Interest Period; and
(iii) Unless Administrative Agent otherwise consents, there may
not be more than ten (10) Interest Periods for Eurodollar Rate Loans in
effect at any time.
"IRS" means the United States Internal Revenue Service.
"Issuing Lender" means each of JPMorgan Chase and any other Lender
that may agree with Borrower to issue Letters of Credit hereunder, or any
successor issuing lender hereunder, and, with respect to each Existing Letter of
Credit, the Lender which is the issuer thereof (but only so long as such
Existing Letter of Credit is outstanding). Any Lender that becomes an Issuing
Lender after the Effective Date agrees to give Administrative Agent prompt
notice thereof.
"JPMorgan Chase" means JPMorgan Chase Bank.
"Laws" or "Law" means all international, foreign, federal, state
and local statutes, treaties, rules, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including, if consistent
therewith, the interpretation or administration thereof by any Governmental
Authority charged with the enforcement, interpretation or administration
thereof.
"Lender" means each lender from time to time party hereto and, as
the context requires, Swing Line Lender and each Issuing Lender, and, subject to
the terms and conditions of this Agreement, their respective successors and
assigns (but not any purchaser of a participation hereunder unless otherwise a
party to this Agreement).
11
"Lending Office" means, as to any Lender, the office or offices of
such Lender described as such on its Administrative Questionnaire, or such other
office or offices as such Lender may from time to time notify Administrative
Agent and Borrower.
"Letter of Credit" means any letter of credit issued or deemed to
be issued hereunder, including the Existing Letters of Credit.
"Letter of Credit Action" means the issuance, supplement,
amendment, renewal, extension, modification or other action relating to a Letter
of Credit hereunder.
"Letter of Credit Application" means an application for a Letter
of Credit Action from time to time in use by an Issuing Lender.
"Letter of Credit Cash Collateral Account" means a blocked deposit
account at JPMorgan Chase in which the Co-Borrowers hereby grant a security
interest to Administrative Agent as security for Letter of Credit Usage and with
respect to which the Co-Borrowers agree to execute and deliver from time to time
such documentation as Administrative Agent may reasonably request to further
assure and confirm such security interest.
"Letter of Credit Expiration Date" means the date that is five
Business Days prior to the Revolving Termination Date.
"Letter of Credit Sublimit" means, at any date of determination,
an amount equal to the lesser of (a) the combined Revolving Commitments minus
the aggregate amount of all outstanding Revolving Loans and (b) the sum of (i)
$175,000,000 less the "Letter of Credit Usage" under the Five Year Revolving
Credit Agreement and (ii) the aggregate issued and outstanding amount of the
Existing Letters of Credit on the Effective Date. The Letter of Credit Sublimit
is part of, and not in addition to, the combined Revolving Commitments. Borrower
will promptly give notice to Administrative Agent of any "Letter of Credit
Usage" under the Five Year Revolving Credit Agreement.
"Letter of Credit Usage" means, as of any date of determination,
the aggregate undrawn face or available amount of outstanding Letters of Credit
plus the aggregate amount of all drawings under the Letters of Credit not
reimbursed by the Co-Borrowers or converted into Revolving Loans.
"Leverage Ratio" means, at any date of determination, the ratio of
(a) Consolidated Total Indebtedness as of such date to (b) Annualized EBITDA of
Borrower and its Restricted Subsidiaries, on a consolidated basis.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement (in the nature of compensating balances, cash collateral
accounts or security interests), encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest (including any conditional
sale or other title retention agreement, any financing lease or Sale-Leaseback
Transaction having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the Uniform
Commercial Code or comparable Laws of any jurisdiction), including the interest
of a purchaser of accounts receivable; provided that Liens shall not include
ordinary and customary contractual set off rights.
"Loan" means any advance made by any Lender to a Co-Borrower as
provided in Section 2 (collectively, the "Loans").
12
"Loan Documents" means this Agreement, the Guarantee Agreement,
each Note, each Letter of Credit Application, each Request for Extension of
Credit, each Compliance Certificate, each fee letter and each other instrument
or agreement from time to time delivered by any Loan Party pursuant to this
Agreement.
"Loan Parties" means Borrower and each of its Subsidiaries that is
a party to a Loan Document.
"Material Acquisition" means any Acquisition (the "Subject
Acquisition") (i) made at a time when the Leverage Ratio is in excess of 4.5 to
1.0 or (ii) that has an Annualized Acquisition Cash Flow Value (as defined
below) for the period ended on the last day of the fiscal quarter most recently
ended that is greater than five percent (5%) of the Annualized EBITDA of
Borrower and its Restricted Subsidiaries, on a consolidated basis, for the same
period. The "Annualized Acquisition Cash Flow Value" is an amount equal to (a)
the Annualized EBITDA of the assets comprising the Subject Acquisition less (b)
the Annualized EBITDA of any assets disposed of by Borrower or any Restricted
Subsidiary (other than to Borrower or any Restricted Subsidiary) in connection
with the Subject Acquisition.
"Material Adverse Effect" means any set of circumstances or events
which (a) has or would reasonably be expected to have a material adverse effect
upon the validity or enforceability against Borrower or any Guarantor of any
Loan Document or (b) has had or would reasonably be expected to have a material
adverse effect on the business, financial condition, assets or results of
operation of Borrower and its Restricted Subsidiaries taken as a whole,
excluding, in the case of this clause (b), any such set of circumstances or
events resulting from or arising in connection with changes in general economic,
regulatory or political conditions (it being understood that any changes in the
regulation specifically of the industries in which the Restricted Group operate
shall not constitute changes in general regulatory conditions for these
purposes).
"Material Disposition" means any Disposition (the "Subject
Disposition") (i) made at a time when the Leverage Ratio is in excess of 4.5 to
1.0 or (ii) that has an Annualized Disposition Cash Flow Value (as defined
below), for the period ended on the last day of the fiscal quarter most recently
ended that is greater than five percent (5%) of the Annualized EBITDA of
Borrower and its Restricted Subsidiaries, on a consolidated basis, for the same
period. The "Annualized Disposition Cash Flow Value" is an amount equal to (a)
the Annualized EBITDA of the assets comprising the Subject Disposition less (b)
the Annualized EBITDA of any assets acquired by Borrower or any Restricted
Subsidiary (other than from Borrower or any Restricted Subsidiary) in connection
with the Subject Disposition.
"Merger Agreement" means that certain Agreement and Plan of Merger
dated as of December 19, 2001 by and among Borrower, Comcast Corporation, AT&T
Corp., Broadband and other related parties, as amended, supplemented or
otherwise modified in writing from time to time, subject to the terms of Section
4.01(c).
"Minimum Amount" means, with respect to each of the following
actions, the minimum amount and any multiples in excess thereof set forth
opposite such action:
TYPE OF ACTION MINIMUM AMOUNT MULTIPLES IN EXCESS THEREOF
-------------- -------------- ---------------------------
Borrowing or prepayment of, or
Conversion into, Base Rate
Loans $10,000,000 $ 1,000,000
13
Borrowing, prepayment or
Continuation of, or
Conversion into, Eurodollar
Rate Loans $10,000,000 $ 1,000,000
Borrowing or prepayment of
Swing Line Loans $ 1,000,000 None
Letter of Credit Action $ 5,000 None
Reduction in Commitments $25,000,000 $ 5,000,000
Assignments $ 5,000,000 None
"Moody's" means Moody's Investors Service, Inc., or its successor,
or if it is dissolved or liquidated or no longer performs the functions of a
securities rating agency, such other nationally recognized securities rating
agency agreed upon by Borrower and Administrative Agent and approved by Required
Lenders.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA.
"Notes" means the collective reference to any promissory note
evidencing Loans.
"Obligations" means all advances to, and debts, liabilities, and
obligations of, the Co-Borrowers arising under any Loan Document, whether direct
or indirect (including those acquired by assumption), absolute or contingent,
due or to become due, now existing or hereafter arising and including interest
that accrues after the commencement of any proceeding under any Debtor Relief
Laws by or against a Co-Borrower.
"Outstanding Obligations" means, as of any date, the sum of (i)
Outstanding Revolving Obligations and (ii) the aggregate outstanding principal
amount of all Term Loans.
"Outstanding Revolving Obligations" means, as of any date, and
giving effect to making any Extension of Credit requested on such date and all
payments, repayments and prepayments made on such date, (a) when reference is
made to all Revolving Lenders, the sum of (i) the aggregate outstanding
principal amount of all Revolving Loans, (ii) all Letter of Credit Usage and
(iii) the aggregate principal amount of all Swingline Loans, and (b) when
reference is made to one Revolving Lender, the sum of (i) the aggregate
outstanding principal amount of all Revolving Loans made by such Lender, (ii)
such Lender's ratable participation in all Letter of Credit Usage and (iii) such
Lender's ratable participation in all outstanding Swing Line Loans.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto established under ERISA.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture or Governmental Authority.
"Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Borrower or any
ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five plan years.
14
"Reference Banks" means JPMorgan Chase and Citibank, N.A.
"Reference Statements" means the financial statements described in
Section 4.01(e).
"Register" has the meaning set forth in Section 2.10(b).
"Request for Extension of Credit" means, unless otherwise
specified herein, (a) with respect to a Borrowing, Conversion or Continuation of
Loans, a written request substantially in the form of Exhibit B, (b) with
respect to a Letter of Credit Action, a Letter of Credit Application, and (c)
with respect to a Swing Line Loan, any written or oral notice acceptable to
Swing Line Lender, duly completed and signed by a Responsible Officer of the
relevant Co-Borrower and delivered by Requisite Notice (in the case of a written
Request for Extension of Credit).
"Required Lenders" means, as of any date of determination, Lenders
(excluding any Lender that has failed to fund hereunder when the applicable
conditions precedent to such funding have been satisfied or waived in accordance
herewith, until such failure has been cured) holding more than 50% of: (a) until
the Effective Date, the combined Commitments, (b) after the Effective Date, the
sum of (x) the combined Revolving Commitments (excluding the Revolving
Commitment of any Lender that has failed to fund hereunder when the applicable
conditions precedent to such funding have been satisfied or waived in accordance
herewith, until such failure has been cured) then in effect and (y) the
aggregate unpaid principal amount of the Term Loans then outstanding, and (c) if
the Commitments have then been terminated and there are Outstanding Revolving
Obligations, the sum of (x) Outstanding Revolving Obligations and (y) the
aggregate unpaid principal amount of the Term Loans then outstanding.
"Requisite Notice" means a notice delivered in accordance with
Section 10.02.
"Requisite Time" means, with respect to any of the actions listed
below, the time and date set forth below opposite such action:
TYPE OF ACTION APPLICABLE TIME (NEW YORK TIME) DATE OF ACTION
-------------- ------------------------------- --------------
Delivery of Request for
Extension of Credit for, or notice
for:
- - Borrowing or prepayment of 11:00 a.m. Same Business Day as such Loans
Base Rate Loans Borrowing or prepayment
- - Conversion into Base Rate 11:00 a.m. Same Business Day as such Conversion
Loans
- - Borrowing or prepayment of 4:00 p.m. Same Business Day as such Borrowing
Swing Line Loans or prepayment
- - Borrowing, prepayment or 11:00 a.m. 3 Business Days prior to such
Continuation of, or Conversion Borrowing, prepayment, Continuation
into, Eurodollar Rate Loans or Conversion
- - Letter of Credit Action 11:00 a.m. 2 Business Days prior to such action
(or such lesser time as is
acceptable to an Issuing Lender)
- - Voluntary reduction in or 11:00 a.m. 3 Business Days prior to such
termination of Revolving reduction or termination
Commitments
15
TYPE OF ACTION APPLICABLE TIME (NEW YORK TIME) DATE OF ACTION
-------------- ------------------------------- --------------
- - Payments by Lenders or 1:00 p.m. On date payment is due
Co-Borrowers to Administrative
Agent
"Responsible Officer" means, as to any Person, the president, any
vice president, the controller, the chief financial officer, the treasurer or
any assistant treasurer of such Person. Any document or certificate hereunder
that is signed by a Responsible Officer of a particular Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate action
on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.
"Restricted Group" means, collectively, Borrower and the
Restricted Subsidiaries.
"Restricted Subsidiary" means each Subsidiary of Borrower that is
not an Unrestricted Subsidiary.
"Revolving Commitment" means, for each Lender, the amount set
forth under the heading "Revolving Commitment" opposite such Lender's name on
Schedule 2.01 or in the Assignment and Acceptance pursuant to which such Lender
became a party to this Agreement, as such amount may be reduced or adjusted from
time to time in accordance with the terms of this Agreement (collectively, the
"combined Revolving Commitments").
"Revolving Facility" has the meaning set forth in the definition
of Facility.
"Revolving Lender" means each Lender that has a Revolving
Commitment or that holds Revolving Loans.
"Revolving Loans" has the meaning set forth in Section 2.01.
"Revolving Percentage": means, as to any Revolving Lender at any
time, the percentage which such Lender's Revolving Commitment then constitutes
of the combined Revolving Commitments or, at any time after the Revolving
Commitments shall have expired or terminated, the percentage which the aggregate
principal amount of such Lender's Revolving Loans then outstanding constitutes
of the aggregate principal amount of the Revolving Loans then outstanding.
"Revolving Termination Date" means (a) the fifth anniversary of
the Effective Date or (b) such earlier date upon which the combined Revolving
Commitments may be terminated in accordance with the terms of this Agreement.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc., or its successor, or if it is dissolved or
liquidated or no longer performs the functions of a securities rating agency,
such other nationally recognized securities rating agency agreed upon by
Borrower and Administrative Agent and approved by Required Lenders.
"Sale-Leaseback Transaction" means any arrangement whereby
Borrower or any Restricted Subsidiary shall sell or transfer any property, real
or personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter rent or lease property that it intends to use for
substantially the same purpose or purposes as the property sold or transferred.
16
"Significant Subsidiary" means any Restricted Subsidiary whose
Annualized EBITDA was greater than 5% of the Annualized EBITDA of Borrower and
its Restricted Subsidiaries, on a consolidated basis, for the period of two
fiscal quarters ended on the last day of the fiscal quarter most recently ended,
or whose assets comprised more than 5% of the total assets of Borrower and its
Restricted Subsidiaries, on a consolidated basis, as of the last day of the
fiscal quarter most recently ended.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, directly or indirectly, through one or more
intermediaries, or both, by such Person. Unless otherwise specified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of Borrower.
"Swing Line" means the revolving line of credit established by
Swing Line Lender in favor of the Co-Borrowers pursuant to Section 2.04.
"Swing Line Lender" means JPMorgan Chase or any successor swing
line lender hereunder.
"Swing Line Loan" means a Base Rate Loan made by Swing Line Lender
to a Co-Borrower under the Swing Line.
"Swing Line Sublimit" means an amount equal to the lesser of (a)
$100,000,000 less the amount of "Swing Line Loans" outstanding under the Five
Year Revolving Credit Agreement and (b) the combined Revolving Commitments. The
Swing Line Sublimit is part of, and not in addition to, the combined
Commitments.
"Syndication Agent" has the meaning set forth in the introductory
paragraph hereto.
"364-Day Agreement" means the 364-Day Revolving Credit Agreement
dated July 17, 2001, among Comcast Cable Communications, Inc., Bank of America,
N.A., as Administrative Agent, and the lenders party thereto.
"Term Lender" means each Lender that has a Term Loan Commitment or
that holds a Term Loan.
"Term Loan" has the meaning set forth in Section 2.06.
"Term Loan Commitment" means, for each Lender, the amount set
forth under the heading "Term Loan Commitment" opposite such Lender's name on
Schedule 2.01, as such amount may be reduced or adjusted from time to time in
accordance with the terms of this Agreement (collectively, the "combined Term
Loan Commitments").
"Term Loan Facility" has the meaning set forth in the definition
of Facility.
"Term Loan Payment Date" means the day that is (a) 15 calendar
months after the Effective Date (the "First Term Loan Payment Date"), (b) 18
calendar months after the Effective Date (the "Second Term Loan Payment Date"),
(c) 21 calendar months after the Effective Date (the "Third Term Loan Payment
Date") and (d) 24 calendar months after the Effective Date (the "Final Term Loan
Payment Date").
17
"Threshold Amount" means $200,000,000.
"to the best knowledge of" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation described
therein is known by such Person (or, in the case of a Person other than a
natural Person, known by any officer of such Person) making the representation,
warranty or other statement, or, if such Person had exercised ordinary care in
performing his or its required duties, would have been known by such Person (or,
in the case of a Person other than a natural Person, would have been known by an
officer of such Person).
"Transactions" has the meaning set forth in Section 4.01(c).
"type" of Loan means (a) a Base Rate Loan or (b) a Eurodollar Rate
Loan.
"Unfunded Pension Liability" means the excess of a Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Plan's assets, determined in accordance with the assumptions used for funding
the Plan pursuant to Section 412 of the Code for the applicable plan year.
"Unrestricted Subsidiary" means any Subsidiary of Borrower
designated as an "Unrestricted Subsidiary" from time to time in accordance with
Section 6.13. Until so designated, each Subsidiary of Borrower shall be a
Restricted Subsidiary.
1.02 Use of Certain Terms.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or thereto, unless otherwise defined therein.
(b) As used herein, unless the context requires otherwise, the
masculine, feminine and neuter genders and the singular and plural include one
another.
(c) The words "herein" and "hereunder" and words of similar import
when used in any Loan Document shall refer to the applicable Loan Document as a
whole and not to any particular provision thereof. The term "including" is by
way of example and not limitation. References herein to a Section, subsection or
clause shall, unless the context otherwise requires, refer to the appropriate
Section, subsection or clause in this Agreement.
(d) The term "or" is disjunctive; the term "and" is conjunctive.
The term "shall" is mandatory; the term "may" is permissive.
1.03 Accounting Terms. All accounting terms not specifically or
completely defined in this Agreement shall be construed in conformity with, and
all financial data required to be submitted by this Agreement shall be prepared
in conformity with, GAAP applied on a consistent basis, as in effect from time
to time in the United States; provided, however, that for purposes of
determining compliance with the covenants set forth in Section 7.07, if there
are changes in GAAP after December 31, 2001 that materially affect the
calculation of the covenants in Section 7.07 in such a manner as to be
inconsistent with the intent of this Agreement, Administrative Agent and
Borrower shall negotiate in good faith to determine such adjustments to the
method of calculating compliance with Section 7.07 or related definitions as to
make them consistent with the intent hereof. Promptly upon Borrower and
Administrative Agent reaching such agreement, Administrative Agent shall notify
Lenders of such adjustments, which shall be conclusive unless Required Lenders
object to such adjustments within 30
18
days of receipt of notice. Each Compliance Certificate shall be prepared in
accordance with this Section 1.03, except for the exclusion of Unrestricted
Subsidiaries from the calculations therein. Notwithstanding anything to the
contrary contained herein, references herein to "Borrower and its Restricted
Subsidiaries on a consolidated basis" shall be deemed to refer to Borrower and
its Restricted Subsidiaries without taking into account the results or financial
position of any Unrestricted Subsidiary and without taking into account any
interest of Borrower or any of its Restricted Subsidiaries in any Unrestricted
Subsidiary.
1.04 Rounding. Any financial ratios required to be maintained by
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.05 Exhibits and Schedules. All exhibits and schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.06 References to Agreements and Laws. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall include all amendments, restatements,
extensions, supplements and other modifications thereto (unless prohibited by
any Loan Document), and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.07 Pro Forma Calculations. For the purposes of calculating
Annualized EBITDA of Borrower and its Restricted Subsidiaries, on a consolidated
basis, and Annualized Interest Expense of Borrower and its Restricted
Subsidiaries, on a consolidated basis, for any period (a "Test Period"), (i) if
at any time from the period (a "Pro Forma Period") commencing on the first day
of such Test Period and ending on the date which is ten days prior to the date
of delivery of the Compliance Certificate in respect of such Test Period (or, in
the case of any pro forma calculation required to be made pursuant hereto in
respect of the designation of a Restricted Subsidiary as an Unrestricted
Subsidiary that is a Material Disposition or the designation of an Unrestricted
Subsidiary as a Restricted Subsidiary that is a Material Acquisition, ending on
the date such Material Disposition or Material Acquisition is consummated after
giving effect thereto), Borrower or any Restricted Subsidiary shall have made
any Material Disposition, the Annualized EBITDA for such Test Period shall be
reduced by an amount equal to the Annualized EBITDA (if positive) for such Test
Period attributable to the assets which are the subject of such Material
Disposition or increased by an amount equal to the Annualized EBITDA (if
negative) for such Test Period attributable to such assets, and Annualized
Interest Expense for such Test Period shall be reduced by an amount equal to the
Annualized Interest Expense for such Test Period attributable to any
Indebtedness of Borrower or any Restricted Subsidiary repaid, repurchased,
defeased or otherwise discharged in connection with such Material Disposition
(or, if the capital stock of any Restricted Subsidiary is sold (pursuant to a
merger or otherwise), the Annualized Interest Expense for such Test Period
directly attributable to the Indebtedness of such Restricted Subsidiary to the
extent Borrower and its continuing Restricted Subsidiaries are no longer liable
for such Indebtedness after such Material Disposition); (ii) if during such Pro
Forma Period Borrower or any Restricted Subsidiary shall have made a Material
Acquisition, Annualized EBITDA of Borrower and its Restricted Subsidiaries, on a
consolidated basis, and Annualized Interest Expense of Borrower and its
Restricted Subsidiaries, on a consolidated basis, for such Test Period shall be
calculated after giving pro forma effect thereto (including the incurrence or
assumption of any Indebtedness in connection therewith) as if such Material
Acquisition (and the incurrence or assumption of any such Indebtedness) occurred
on the first day of such Test Period; and (iii) if during such Pro Forma Period
any Person that subsequently became a Restricted
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Subsidiary or was merged with or into Borrower or any Restricted Subsidiary
since the beginning of such Pro Forma Period shall have entered into any
Material Disposition or Material Acquisition that would have required an
adjustment pursuant to clause (i) or (ii) above if made by Borrower or a
Restricted Subsidiary during such Pro Forma Period, Annualized EBITDA of
Borrower and its Restricted Subsidiaries, on a consolidated basis, and
Annualized Interest Expense of Borrower and its Restricted Subsidiaries, on a
consolidated basis, for such Test Period shall be calculated after giving pro
forma effect thereto as if such Material Disposition or Material Acquisition
occurred on the first day of such Test Period. For the purposes of this section,
whenever pro forma effect is to be given to a Material Disposition or Material
Acquisition, the amount of income or earnings related thereto and the amount of
Annualized Interest Expense associated with any Indebtedness discharged or
incurred in connection therewith, the pro forma calculations shall be determined
in good faith by a Responsible Officer of Borrower. If any Indebtedness bears a
floating rate of interest and the incurrence or assumption thereof is being
given pro forma effect, the Annualized Interest Expense on such Indebtedness
shall be calculated as if the rate in effect on the last day of the relevant Pro
Forma Period had been the applicable rate for the entire relevant Test Period
(taking into account any interest rate protection agreement applicable to such
Indebtedness if such interest rate protection agreement has a remaining term in
excess of 12 months). Comparable adjustments shall be made in connection with
any determination of Annualized EBITDA.
SECTION 2
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01 Amount and Terms of Revolving Commitments.
(a) Subject to the terms and conditions set forth in this
Agreement, during the period from and including the Effective Date to, but not
including, the Revolving Termination Date, each Revolving Lender severally
agrees to make, Convert and Continue revolving credit loans ("Revolving Loans")
in Dollars in such amounts as a Co-Borrower may from time to time request;
provided, however, that (i) the Outstanding Revolving Obligations of each Lender
shall not exceed such Lender's Revolving Commitment at any time, and (ii) the
Outstanding Revolving Obligations of all Lenders shall not exceed the combined
Revolving Commitments at any time. The Revolving Facility is a revolving credit
and, subject to the foregoing and the other terms and conditions hereof, each
Co-Borrower may borrow, Convert, Continue, prepay and reborrow Loans as set
forth herein without premium or penalty.
(b) Each Co-Borrower shall repay all outstanding Revolving Loans
made to it on the Revolving Termination Date.
2.02 Procedure for Revolving Loan Borrowings.
(a) Each Co-Borrower may irrevocably request a Borrowing of
Revolving Loans on any Business Day in a Minimum Amount therefor by delivering a
Request for Extension of Credit therefor by Requisite Notice to Administrative
Agent not later than the Requisite Time therefor. All Borrowings shall
constitute Base Rate Loans unless properly and timely otherwise designated as
set forth in the prior sentence.
(b) Following receipt of a Request for Extension of Credit,
Administrative Agent shall promptly notify each Revolving Lender by Requisite
Notice of its Revolving Percentage thereof. Each Lender shall make the funds for
its Revolving Loan available to Administrative Agent at Administrative Agent's
Office not later than the Requisite Time therefor on the Business Day specified
in such Request
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for Extension of Credit. Upon satisfaction of the applicable conditions set
forth in Section 4.02, all funds so received shall be made available to the
requesting Co-Borrower in like funds received.
(c) The failure of any Lender to make any Revolving Loan on any
date shall not relieve any other Lender of any obligation to make a Revolving
Loan on such date, but no Lender shall be responsible for the failure of any
other Lender to so make its Revolving Loan.
2.03 Letters of Credit.
(a) Subject to the terms and conditions set forth in this
Agreement, during the period from and including the Effective Date to, but not
including the Letter of Credit Expiration Date, each Issuing Lender shall take
such Letter of Credit Actions denominated in Dollars as each Co-Borrower may
from time to time request; provided, however, that (i) the Outstanding Revolving
Obligations of each Lender shall not exceed such Lender's Revolving Commitment
at any time, (ii) the Outstanding Revolving Obligations of all Lenders shall not
exceed the combined Revolving Commitments at any time and (iii) the Letter of
Credit Usage shall not exceed the Letter of Credit Sublimit at any time. By
written notice to Administrative Agent prior to the Effective Date, Broadband
may request that any Existing Letter of Credit be deemed to be a Letter of
Credit issued hereunder, and all Existing Letters of Credit so identified shall
be deemed to be Letters of Credit issued hereunder on the Effective Date for the
account of Broadband, and Broadband hereby assumes the obligations of any other
existing obligor(s) to the Issuing Lenders with respect to such Existing Letters
of Credit. Subject to subsection (f) below and unless consented to by the
applicable Issuing Lender and Administrative Agent, and except for any Existing
Letter of Credit which expires more than 12 months after the date of its
issuance or last renewal, no Letter of Credit may expire more than 12 months
after the date of its issuance or last renewal; provided, however, that no
Letter of Credit shall expire after the Business Day which is at least five days
prior to the Revolving Termination Date. If any Letter of Credit Usage remains
outstanding on the Revolving Termination Date, each Co-Borrower shall, on the
Revolving Termination Date, deposit cash in an amount equal to the Letter of
Credit Usage applicable to it in a Letter of Credit Cash Collateral Account.
(b) Each Co-Borrower may irrevocably request a Letter of Credit
Action in a Minimum Amount therefor by delivering a Letter of Credit Application
therefor to the applicable Issuing Lender, with a copy to Administrative Agent,
not later than the Requisite Time therefor. Each Letter of Credit Action shall
be in a form acceptable to the applicable Issuing Lender in its sole discretion.
Each such request for a Letter of Credit Action shall, if Sections 4.02(b) and
(c) are applicable to such Letter of Credit Action, constitute a representation
and warranty by the requesting Co-Borrower that the conditions set forth in
Sections 4.02(b) and (c) are satisfied. Unless Administrative Agent notifies the
applicable Issuing Lender that such Letter of Credit Action is not permitted
hereunder, or the applicable Issuing Lender notifies Administrative Agent that
it has determined that such Letter of Credit Action is contrary to any Laws or
policies of such Issuing Lender, the applicable Issuing Lender shall effect such
Letter of Credit Action. This Agreement shall control in the event of any
conflict with any Letter of Credit Application. Upon the issuance of a Letter of
Credit (or, with respect to the Existing Letters of Credit, on the Effective
Date), each applicable Issuing Lender shall be deemed to have sold and
transferred to each Lender, and each Lender shall be deemed to have purchased
from each applicable Issuing Lender, a participation therein in an amount equal
to such Lender's Revolving Percentage times the amount of such Letter of Credit.
Each applicable Issuing Lender represents and warrants to each Lender that it
has all necessary power and authority to sell and transfer such participation to
each Lender, without breach of any Contractual Obligation to any other Person,
and that such participation is free and clear of any adverse claim.
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(c) Each Co-Borrower shall reimburse each Issuing Lender through
Administrative Agent for any payment that such Issuing Lender makes under a
Letter of Credit requested by such Co-Borrower immediately upon demand by
Administrative Agent or such Issuing Lender in Dollars; provided, however, that
if the conditions precedent set forth in Section 4.02 can be satisfied, such
Co-Borrower may request a Borrowing of Base Rate Loans to reimburse such Issuing
Lender for such payment pursuant to Section 2.02 (subject to the Minimum Amount
requirements thereof) or Section 2.04 (without regard to the Minimum Amount
requirements thereof).
(d) Upon any drawing under a Letter of Credit, the applicable
Issuing Lender shall notify Administrative Agent and the relevant Co-Borrower.
If the relevant Co-Borrower fails to timely make the payment required pursuant
to subsection (c) above, such Issuing Lender shall notify Administrative Agent
of such fact and the amount of such unreimbursed payment. Administrative Agent
shall promptly notify each Lender of its Revolving Percentage of such amount by
Requisite Notice. Each Lender shall make funds in an amount equal to its
Revolving Percentage of such amount available to Administrative Agent at
Administrative Agent's Office not later than the Requisite Time therefor on the
Business Day specified by Administrative Agent. Administrative Agent shall remit
the funds so received to such Issuing Lender. The obligation of each Lender to
so reimburse such Issuing Lender shall be absolute and unconditional and shall
not be affected by the occurrence of a Default or Event of Default or any other
occurrence or event; provided that such Issuing Lender shall not have a right to
be so reimbursed in respect of a Letter of Credit if such Issuing Lender issued
such Letter of Credit after being notified by Administrative Agent that such
issuance was not permitted hereunder. Any such reimbursement shall not relieve
or otherwise impair the obligation of each Co-Borrower to reimburse each Issuing
Lender for the amount of any payment made by such Issuing Lender under any
Letter of Credit, together with interest as provided herein.
(e) If the conditions precedent set forth in Section 4.02 can be
satisfied (except for the giving of a Request for Extension of Credit) on any
date a Co-Borrower is obligated to, but fails to, reimburse an Issuing Lender
for a drawing under a Letter of Credit, the funding by Lenders pursuant to
subsection (d) above shall be deemed to be a Borrowing of Base Rate Loans by
such Co-Borrower (without regard to the Minimum Amount therefor). If the
conditions precedent set forth in Section 4.02 cannot be satisfied on the date a
Co-Borrower is obligated to, but fails to, reimburse an Issuing Lender for a
drawing under a Letter of Credit, the funding by Lenders pursuant to the
previous subsection shall be deemed to be a funding by each Lender of its
participation in such Letter of Credit, and each Lender making such funding
shall thereupon acquire a pro rata participation, to the extent of its payment,
in the claim of such Issuing Lender against the relevant Co-Borrower in respect
of such payment and shall share, in accordance with that pro rata participation,
in any payment made by such Co-Borrower with respect to such claim. Any amounts
made available by a Lender under its participation shall be payable by the
relevant Co-Borrower upon demand of Administrative Agent, and shall bear
interest at a rate per annum equal to the Default Rate.
(f) Each Co-Borrower may request Letters of Credit that have
automatic extension or renewal provisions ("evergreen" Letters of Credit), so
long as the applicable Issuing Lender consents in its sole and absolute
discretion thereto and has the right not to permit any such extension or renewal
at least annually within a notice period to be agreed upon at the time each such
Letter of Credit is issued. Once an evergreen Letter of Credit (including any
Existing Letter of Credit) is issued, unless Administrative Agent has notified
the applicable Issuing Lender that Required Lenders have elected not to permit
such extension or renewal, the requesting Co-Borrower, Administrative Agent and
Lenders shall be deemed to have authorized (but may not require) such Issuing
Lender to, in its sole and absolute discretion, permit the renewal of such
evergreen Letter of Credit at any time to a date not later than five Business
Days prior to the Revolving Termination Date. Such Issuing Lender may, in its
sole and absolute discretion, elect not to permit an evergreen Letter of Credit
to be extended or renewed at any
22
time. If such Issuing Lender so elects, it will promptly give Administrative
Agent notice of such election. Administrative Agent will promptly notify Lenders
of the non-extension or non-renewal of any evergreen Letter of Credit.
(g) The obligation of each Co-Borrower to pay to each Issuing
Lender the amount of any payment made by such Issuing Lender under any Letter of
Credit shall be absolute, unconditional, and irrevocable. Without limiting the
foregoing, the Co-Borrowers' obligations shall not be affected by any of the
following circumstances:
(i) Any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument
relating thereto;
(ii) Any amendment or waiver of or any consent to departure
from such Letter of Credit, this Agreement or any other agreement
or instrument relating hereto or thereto;
(iii) The existence of any claim, setoff, defense or other
rights which a Co-Borrower may have at any time against such
Issuing Lender, Administrative Agent or any Lender, any
beneficiary of such Letter of Credit (or any persons or entities
for whom any such beneficiary may be acting) or any other Person,
whether in connection with such Letter of Credit, this Agreement
or any other agreement or instrument relating thereto, or any
unrelated transactions;
(iv) Any demand, statement or any other document presented
under such 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 whatsoever so long as
any such document appeared to comply with the terms of such Letter
of Credit;
(v) Any payment by such Issuing Lender in good faith under
such Letter of Credit against presentation of a draft or any
accompanying document which does not strictly comply with the
terms of such Letter of Credit, or any payment made by such
Issuing Lender under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidation, receiver or
other representative of or successor to any beneficiary or any
transferee of such Letter of Credit, including any arising in
connection with any proceeding under any Debtor Relief Laws;
(vi) Any error in the transmission of any message relating to
such Letter of Credit not caused by such Issuing Lender, or any
delay or interruption in any such message;
(vii) Any error, neglect or default of any correspondent of
such Issuing Lender in connection with such Letter of Credit;
(viii) Any consequence arising from acts of God, wars,
insurrections, civil unrest, disturbances, labor disputes,
emergency conditions or other causes beyond the control of such
Issuing Lender;
(ix) So long as such Issuing Lender in good faith determines
that the document appears to comply with the terms of such Letter
of Credit, the form, accuracy, genuineness or legal effect of any
contract or document referred to in any document submitted to such
Issuing Lender in connection with such Letter of Credit; and
23
(x) Any other circumstances whatsoever where such Issuing
Lender has acted in good faith.
In addition, the requesting Co-Borrower will promptly examine a
copy of each Letter of Credit and amendments thereto delivered to it and, in the
event of any claim of noncompliance with such Co-Borrower's instructions or
other irregularity, such Co-Borrower will immediately notify the applicable
Issuing Lender in writing. Such Co-Borrower shall be conclusively deemed to have
waived any such claim against such Issuing Lender and its correspondents unless
such notice is given as aforesaid.
(h) Each Lender and each Co-Borrower agree that, in paying any
drawing under a Letter of Credit, no Issuing Lender shall have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. No Issuing Lender,
Administrative Agent-Related Person or any of the respective correspondents,
participants or assignees of any Issuing Lender shall be liable to any Lender
for any action taken or omitted in connection herewith at the request or with
the approval of Lenders or Required Lenders, as applicable, any action taken or
omitted in the absence of gross negligence or willful misconduct or the due
execution, effectiveness, validity or enforceability of any document or
instrument related to any Letter of Credit. Each Co-Borrower hereby assumes all
risks of the acts or omissions of any beneficiary or transferee relative to any
Issuing Lender, any Lender or any Administrative Agent-Related Person with
respect to its use of any Letter of Credit; provided, however, that this
assumption is not intended to, and shall not, preclude such Co-Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. No Issuing Lender,
Administrative Agent-Related Person or any of the respective correspondents,
participants or assignees of any Issuing Lender shall be liable or responsible
for any of the matters described in subsection (g) above in the absence of such
Person's gross negligence or willful misconduct. In furtherance and not in
limitation of the foregoing, any Issuing Lender may accept documents that appear
on their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and such Issuing Lender
shall not be responsible for the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason.
(i) Unless otherwise expressly agreed by the applicable Issuing
Lender and the requesting Co-Borrower when a Letter of Credit is issued and
subject to applicable Laws, performance under Letters of Credit by each Issuing
Lender, its correspondents, and beneficiaries will be governed by, as
applicable, the rules of the International Standby Practices 1998, or such later
revision as may be published by the Institute of International Banking Law &
Practice, or the Uniform Customs and Practice for Documentary Credits,
International Chamber of Commerce Publication No. 500, as the same may be
revised from time to time.
(j) Each Co-Borrower shall pay to Administrative Agent on each
Applicable Payment Date in arrears, for the account of each Lender in accordance
with its Revolving Percentage, a Letter of Credit fee equal to the Applicable
Amount times the actual daily maximum amount available to be drawn under each
Letter of Credit requested by such Co-Borrower since the later of the Effective
Date and the previous Applicable Payment Date. Broadband shall pay directly to
each Issuing Lender of an Existing Letter of Credit any fees and expenses
payable in respect of such Existing Letter of Credit for any period prior to the
Effective Date. If there is any change in the Applicable Amount during any
quarter, the actual daily amount shall be computed and multiplied by the
Applicable Amount separately for each period during such quarter that such
Applicable Amount was in effect.
24
(k) Each Co-Borrower shall pay directly to each Issuing Lender,
for its sole account, a fronting fee for each Letter of Credit requested by such
Co-Borrower in such amount and at such times as may be set forth in a separate
letter agreement between such Co-Borrower and such Issuing Lender. In addition,
each Co-Borrower shall pay directly to each Issuing Lender, upon demand, for its
sole account, its customary documentary and processing charges in accordance
with its standard schedule, as from time to time in effect, for any Letter of
Credit Action or other occurrence relating to a Letter of Credit requested by
such Co-Borrower for which such charges are customarily made. Such fees and
charges are nonrefundable.
(l) Each Issuing Lender shall deliver to Administrative Agent, not
later than the 20th day after each calendar quarter ending after the Effective
Date, a written report, in form reasonably satisfactory to Administrative Agent,
setting forth the Letters of Credit issued by such Issuing Lender and
outstanding as of the last day of such calendar quarter, any Letter of Credit
Actions effected during such calendar quarter, and any draws made under such
Letters of Credit during such calendar quarter.
2.04 Swing Line Loans.
(a) Subject to the terms and conditions set forth in this
Agreement, Swing Line Lender agrees to make Swing Line Loans in Dollars during
the period from and including the Effective Date to, but not including, the
Revolving Termination Date in such amounts as a Co-Borrower may from time to
time request; provided, however, that (i) the aggregate principal amount of all
Swing Line Loans shall not exceed the Swing Line Sublimit at any time, (ii) the
Outstanding Revolving Obligations of each Lender shall not exceed such Lender's
Revolving Commitment at any time and (iii) the Outstanding Revolving Obligations
of all Lenders shall not exceed the combined Revolving Commitments at any time.
This is a revolving credit and, subject to the foregoing and the other terms and
conditions hereof, each Co-Borrower may borrow, prepay and reborrow Swing Line
Loans as set forth herein without premium or penalty. Each Swing Line Loan shall
be a Base Rate Loan.
(b) Unless notified to the contrary by Swing Line Lender, each
Co-Borrower may irrevocably request a Swing Line Loan in the Minimum Amount
therefor upon Requisite Notice to Swing Line Lender not later than the Requisite
Time therefor. Each such request for a Swing Line Loan shall constitute a
representation and warranty by the requesting Co-Borrower that the conditions
set forth in Sections 4.02(b) and (c) are satisfied. Promptly after receipt of
such request, Swing Line Lender shall obtain telephonic verification from
Administrative Agent that such Swing Line Loan is permitted hereunder. Upon
receiving such verification, Swing Line Lender shall make such Swing Line Loan
available to the requesting Co-Borrower. Upon the making of each Swing Line
Loan, each Lender shall be deemed to have purchased from Swing Line Lender a
risk participation therein in an amount equal to such Lender's Revolving
Percentage times the amount of the Swing Line Loan.
(c) Swing Line Lender shall be responsible for invoicing the
requesting Co-Borrower (or notifying Administrative Agent to so invoice such
Co-Borrower) for interest on the Swing Line Loans. Unless and until there is a
funding by Lenders of their participation therein, the interest payable on Swing
Line Loans is solely for the account of Swing Line Lender.
(d) Each Co-Borrower shall repay each Swing Line Loan made to it
not later than the Requisite Time for payments hereunder on the earliest of (i)
demand made by Swing Line Lender (with a copy to Administrative Agent) and (ii)
the Revolving Termination Date. Payments shall be made to Administrative Agent
for the account of Swing Line Lender. If the conditions precedent set forth in
Section 4.02 can be satisfied, each Co-Borrower may request a Borrowing of Loans
to repay Swing Line Lender pursuant to Section 2.02.
25
(e) If Swing Line Lender does not timely receive (by payment or a
Borrowing) any payment of principal of any Swing Line Loan, Swing Line Lender
shall notify Administrative Agent of such fact and the unpaid amount.
Administrative Agent shall promptly notify each Lender of its Revolving
Percentage of such unpaid amount by Requisite Notice, and each Lender shall make
its Revolving Percentage of such unpaid amount available to Administrative Agent
at Administrative Agent's Office not later than the Requisite Time. The
obligation of each Lender to make such payment shall be absolute and
unconditional and shall not be affected by the occurrence of any Event of
Default or any other event. If the conditions precedent set forth in Section
4.02 can be satisfied (except for the giving of a Request for Extension of
Credit) on any date a Co-Borrower is obligated to but fails to, repay Swing Line
Lender, the funding by Lenders pursuant to this subsection (e) shall be deemed
to be a Borrowing by such Co-Borrower of Base Rate Loans (without regard to the
Minimum Amount therefor). If the conditions precedent set forth in Section 4.02
cannot be satisfied on such date, each Lender's payment shall be deemed to be a
funding of such Lender's participation in such Swing Line Loan, and each Lender
making such funding shall thereupon acquire a pro rata participation, to the
extent of its payment, in the claim of Swing Line Lender against the relevant
Co-Borrower in respect of such payment and shall share, in accordance with that
pro rata participation, in any payment made by such Co-Borrower with respect to
such claim. Any amounts made available by a Lender under its participation shall
not relieve or otherwise impair the obligation of the relevant Co-Borrower to
repay Swing Line Lender for any amount of Swing Line Loans, together with
interest as provided herein, and such amounts made available shall be payable by
the relevant Co-Borrower upon demand of Administrative Agent, and shall bear
interest at a rate per annum equal to the Default Rate.
2.05 Reduction or Termination of Commitments. Upon Requisite
Notice to Administrative Agent not later than the Requisite Time therefor, the
Co-Borrowers may at any time and from time to time, without premium or penalty,
permanently and irrevocably (a) reduce the Revolving Commitments, in a Minimum
Amount therefor to an amount not less than the Outstanding Revolving Obligations
at such time, or terminate the Revolving Commitments and/or (b) reduce the Term
Loan Commitments, in a Minimum Amount therefor, or terminate the Term Loan
Commitments. Any such reduction or termination shall be accompanied by payment
of all accrued and unpaid ticking and commitment fees with respect to the
portion of the Commitments being reduced or terminated. Administrative Agent
shall promptly notify Lenders of any such request for reduction or termination
of the Commitments. Each Lender's Commitment shall be reduced pro rata by the
amount of such reduction.
2.06 Term Loans. Subject to the terms and conditions set forth in
this Agreement, each Term Lender severally agrees to make a term loan (a "Term
Loan") in Dollars to each Co-Borrower on the Effective Date in an aggregate
amount not to exceed the amount of the Term Loan Commitment of such Lender. The
Term Loans may from time to time be Eurodollar Loans or Base Rate Loans, as
determined by each Co-Borrower and notified to Administrative Agent in
accordance with Sections 2.07 and 2.11.
2.07 Procedure for Borrowing of Term Loans. (a) The Co-Borrowers
shall request that Lenders make the Term Loans on the Effective Date by
delivering a Request for Extension of Credit therefor by Requisite Notice to
Administrative Agent not later than the Requisite Time therefor.
(b) Following receipt of the Request for Extension of Credit
referred to in Section 2.07(a), Administrative Agent shall promptly notify each
Term Lender thereof. Not later than 12:00 Noon, New York City time, on the
Effective Date each Term Lender shall make available to Administrative Agent at
the Administrative Agent's Office an amount in immediately available funds equal
to the Term Loan to be made by such Lender. Administrative Agent shall credit
the account of each Co-Borrower with the amount specified by it in the Request
for Extension of Credit delivered pursuant to
26
Section 2.07(a) on the books of the Administrative Agent's Office with the
aggregate of the amounts made available to Administrative Agent by Lenders in
immediately available funds.
2.08 Repayment of Term Loans. The Term Loans shall mature in four
installments, in the principal amounts and on the Term Loan Payment Dates set
forth below:
Date Principal Amount
---- ----------------
First Term Loan Payment Date $500,000,000
Second Term Loan Payment Date $750,000,000
Third Term Loan Payment Date $750,000,000
Final Term Loan Payment $1,180,000,000
If the amount of Term Loans borrowed hereunder is less than $3,000,000,000, the
amounts of the installments specified above shall be ratably reduced.
2.09 Prepayments.
(a) Upon Requisite Notice to Administrative Agent not later than
the Requisite Time therefor, each Co-Borrower may at any time and from time to
time voluntarily prepay Loans (other than Swing Line Loans) made to it in part
in the Minimum Amount therefor or in full without premium or penalty.
Administrative Agent will promptly notify each relevant Lender thereof and of
such Lender's percentage of such prepayment. Any prepayment of a Eurodollar Rate
Loan shall be accompanied by all accrued interest thereon, together with the
costs set forth in Section 3.05. The amount of each principal prepayment of the
Term Loans shall be applied to reduce the then remaining installments of the
Term Loans pro rata based upon the respective then remaining principal amounts
thereof. Amounts prepaid on account of the Term Loans may not be reborrowed.
(b) Upon Requisite Notice to Swing Line Lender (with a copy to
Administrative Agent) not later than the Requisite Time therefor, each
Co-Borrower may at any time and from time to time voluntarily prepay Swing Line
Loans made to it in part in the Minimum Amount or in full without premium or
penalty.
(c) If for any reason the amount of the Outstanding Revolving
Obligations of all Lenders exceeds the combined Revolving Commitments from time
to time in effect, the Co-Borrowers shall immediately prepay Revolving Loans
and/or deposit cash in a Letter of Credit Cash Collateral Account in an
aggregate amount equal to such excess.
2.10 Documentation of Loans.
(a) Upon the request of any Lender made through Administrative
Agent, a Lender's Loans may be evidenced by one or more Notes of each
Co-Borrower, instead of or in addition to its loan accounts or records. Each
such Lender may attach schedules to its Notes and endorse thereon the date,
amount and maturity of its Loans and payments with respect thereto. Any failure
so to record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Co-Borrowers to pay any amount owing with respect
to the Obligations.
(b) Administrative Agent shall maintain, at Administrative Agent's
Office, a register for the recordation of the names and addresses of Lenders and
the Commitments and Extensions of Credit of each Lender from time to time (the
"Register"). The Register shall be available for inspection by each Co-Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice. Administrative Agent shall maintain the Register, acting, solely for
this administrative purpose only, as
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agent for each Co-Borrower (it being acknowledged and agreed that Administrative
Agent and each Administrative Agent-Related Person, in such capacity, shall
constitute Indemnitees under Section 10.13).
(c) Administrative Agent shall record in the Register the
Commitment and Extensions of Credit from time to time of each Lender, and each
repayment or prepayment in respect thereof. Any recordation shall be conclusive
and binding on each Co-Borrower and each Lender, absent manifest error;
provided, however, that the failure to make any such recordation, or any error
in such recordation, shall not affect any Lender's Commitment or Outstanding
Obligations.
(d) Each Lender shall record on its internal loan accounts or
records (and may record on the Note(s) held by such Lender) the amount of each
Extension of Credit made by it and each payment in respect thereof; provided
that the failure to make any such recordation, or any error in such recordation,
shall not affect any Lender's Commitment or Outstanding Obligations; and
provided, further, that in the event of any inconsistency between the Register
and any Lender's records, the recordations in the Register shall govern, absent
manifest error.
(e) The Co-Borrowers, Administrative Agent and Lenders shall deem
and treat the Persons listed as Lenders in the Register as the holders and
owners of the corresponding Commitments and Extensions of Credit listed therein
for all purposes hereof, and no assignment or transfer of any such Commitment or
Extensions of Credit shall be effective, in each case, unless and until an
Assignment and Acceptance effecting the assignment or transfer thereof shall
have been accepted by Administrative Agent and recorded in the Register. Prior
to such recordation, all amounts owed with respect to the applicable Commitment
or Outstanding Obligations shall be owed to the Lender listed in the Register as
the owner thereof, and any request, authority or consent of any Person who, at
the time of making such request or giving such authority or consent, is listed
in the Register as a Lender shall be conclusive and binding on any subsequent
holder, assignee or transferee of the corresponding Commitments or Outstanding
Obligations.
2.11 Continuation and Conversion Option.
(a) Each Co-Borrower may irrevocably request a Conversion or
Continuation of Loans on any Business Day in a Minimum Amount therefor by
delivering a Request for Extension of Credit therefor by Requisite Notice to
Administrative Agent not later than the Requisite Time therefor. All Conversions
and Continuations shall constitute Base Rate Loans unless properly and timely
otherwise designated as set forth in the prior sentence.
(b) Unless the Co-Borrowers pay all amounts due under Section
3.05, if any, a Eurodollar Rate Loan may be Continued or Converted only on the
last day of the Interest Period for such Eurodollar Rate Loan. During the
existence of an Event of Default, Administrative Agent may (and upon the request
of the Required Lenders shall) prohibit Loans from being requested as, Converted
into, or Continued as Eurodollar Rate Loans, and Required Lenders may demand
that any or all of the then outstanding Eurodollar Rate Loans be Converted
immediately into Base Rate Loans.
(c) Administrative Agent shall promptly notify each relevant
Co-Borrower and Lenders of the interest rate applicable to any Eurodollar Rate
Loan upon determination of same. Administrative Agent shall from time to time
notify each Co-Borrower and Lenders of any change in JPMorgan Chase's prime rate
used in determining the Base Rate promptly following the public announcement of
such change.
2.12 Interest.
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(a) Subject to subsection (b) below, and unless otherwise
specified herein, each Co-Borrower hereby promises to pay interest on the unpaid
principal amount of each Loan made to it (before and after default, before and
after maturity, before and after judgment and before and after the commencement
of any proceeding under any Debtor Relief Laws) from the date borrowed until
paid in full (whether by acceleration or otherwise) on each Applicable Payment
Date at a rate per annum equal to the interest rate determined in accordance
with the definition of such type of Loan, plus the Applicable Amount for such
type of Loan.
(b) Beginning on the date that an Event of Default occurs under
Sections 8.01 or 8.02 and continuing until the date such Event of Default no
longer exists, each Co-Borrower hereby promises to pay interest on the unpaid
principal amount of each Loan made to it (before or after judgment and before
and after the commencement of any proceeding under any Debtor Relief Laws) at a
rate per annum equal to the Default Rate. In addition, if any amount payable by
a Co-Borrower under any Loan Document is not paid when due (without regard to
any applicable grace periods), such Co-Borrower hereby promises to pay interest
(after as well as before entry of judgment thereon to the extent permitted by
law) on such amount at a fluctuating interest rate per annum at all times equal
to the Default Rate to the fullest extent permitted by applicable Law. Accrued
and unpaid interest on past due amounts (including interest on past due
interest) shall be payable upon demand.
(c) On any Business Day, either Co-Borrower may call
Administrative Agent and request information as to the then current Eurodollar
Base Rate or Base Rate, and Administrative Agent shall provide such information.
2.13 Fees
(a) Ticking Fee. Borrower shall pay to Administrative Agent, on
its own behalf and on behalf of Broadband, for the account of each Lender pro
rata a ticking fee equal to 0.125% per annum of such Lender's Commitments. The
ticking fee shall accrue at all times from the date of this Agreement until the
Effective Date and shall be payable on the earlier of the Effective Date and the
date the Commitments are terminated in accordance with the terms of this
Agreement.
(b) Commitment Fee. Borrower shall pay to Administrative Agent, on
its own behalf and on behalf of Broadband, for the account of each Revolving
Lender pro rata according to its Revolving Percentage a commitment fee equal to
the Applicable Amount times the average daily amount of the excess, if any, of
its Revolving Commitment over its Outstanding Revolving Obligations. The
commitment fee shall accrue at all times from the Effective Date until the
Revolving Termination Date and shall be payable quarterly in arrears on each
Applicable Payment Date. If there is any change in the Applicable Amount during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Amount separately for each period during such quarter that such
Applicable Amount was in effect. The commitment fee shall accrue at all
applicable times, including at any time during which one or more conditions in
Section 4 are not met.
(c) Utilization Fee. Borrower shall pay to Administrative Agent,
on its own behalf and on behalf of Broadband, for the account of each Lender pro
rata according to its Revolving Percentage, a utilization fee, equal to the
Applicable Amount times the outstanding principal amount of Revolving Loans made
to it (including Letter of Credit Usage for this purpose), for each day that the
Outstanding Revolving Obligations on such day exceeds 33% of the combined
Revolving Commitments on such day. The utilization fee shall be payable
quarterly in arrears on each Applicable Payment Date. The utilization fee shall
accrue at all applicable times, including at any time during which one or more
conditions in Section 4 are not met.
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(d) Other Fees. Borrower agrees to pay to Administrative
Agent, on its own behalf and on behalf of Broadband, the fees in the amounts and
on the dates previously agreed to in writing by Borrower and Administrative
Agent.
2.14 Computation of Interest and Fees. Computation of interest
on Base Rate Loans when the Base Rate is determined by JPMorgan Chase's "prime
rate" shall be calculated on the basis of a year of 365 or 366 days, as the case
may be, and the actual number of days elapsed. Computation of all other types of
interest and all fees shall be calculated on the basis of a year of 360 days and
the actual number of days elapsed. Interest shall accrue on each Loan for the
day on which the Loan is made, and shall not accrue on a Loan, or any portion
thereof, for the day on which the Loan or such portion is paid, provided that
any Loan that is repaid on the same day on which it is made shall bear interest
for one day.
2.15 Making Payments.
(a) Except as otherwise provided herein, all payments by a
Co-Borrower or any Lender hereunder shall be made to Administrative Agent at
Administrative Agent's Office not later than the Requisite Time for such type of
payment. All payments received after such Requisite Time shall be deemed
received on the next succeeding Business Day for purposes of the calculation of
interest and fees, but not for purposes of determining whether a Default has
occurred. All payments of principal and interest shall be made in immediately
available funds in Dollars. All payments by a Co-Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
(b) Upon satisfaction of any applicable terms and conditions
set forth herein, Administrative Agent shall promptly make any amounts received
in accordance with Section 2.15(a) available in like funds received as follows:
(i) if payable to a Co-Borrower, by crediting a deposit account designated from
time to time by such Co-Borrower to Administrative Agent by Requisite Notice,
and (ii) if payable to any Lender, by wire transfer to such Lender at its
Lending Office. If such conditions are not so satisfied, Administrative Agent
shall return any funds it is holding to the Lenders making such funds available,
without interest.
(c) Subject to the definition of "Interest Period," if any
payment to be made by a Co-Borrower shall come due on a day other than a
Business Day, payment shall instead be considered due on the next succeeding
Business Day, and such extension of time shall be reflected in computing
interest and fees.
(d) Unless a Co-Borrower or any Lender has notified
Administrative Agent, prior to the Requisite Time any payment to be made by it
is due, that it does not intend to remit such payment, Administrative Agent may,
in its sole and absolute discretion, assume that such Co-Borrower or such
Lender, as the case may be, has timely remitted such payment and may, in its
sole and absolute discretion and in reliance thereon, make such payment
available to the Person entitled thereto. If such payment was not in fact
remitted to Administrative Agent in immediately available funds, then:
(i) If a Co-Borrower failed to make such payment,
each Lender shall forthwith on demand repay to Administrative
Agent the amount of such assumed payment made available to
such Lender, together with interest thereon in respect of each
day from and including the date such amount was made available
by Administrative Agent to such Lender to the date such amount
is repaid to Administrative Agent at the Federal Funds Rate;
and
(ii) If any Lender failed to make such payment,
Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such
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Lender does not pay such corresponding amount upon
Administrative Agent's demand therefor, Administrative Agent
promptly shall notify the relevant Co-Borrower, and such
Co-Borrower shall pay such corresponding amount to
Administrative Agent. Administrative Agent also shall be
entitled to recover interest on such corresponding amount in
respect of each day from the date such corresponding amount
was made available by Administrative Agent to a Co-Borrower to
the date such corresponding amount is recovered by
Administrative Agent, (A) from such Lender at a rate per annum
equal to the Federal Funds Rate, and (B) from such
Co-Borrower, at a rate per annum equal to the interest rate
applicable to such Borrowing. Nothing herein shall be deemed
to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which Administrative
Agent or a Co-Borrower may have against any Lender as a result
of any default by such Lender hereunder.
(e) If Administrative Agent or any Lender is required at any
time to return to a Co-Borrower, or to a trustee, receiver, liquidator,
custodian or any official under any proceeding under Debtor Relief Laws, any
portion of a payment made by such Co-Borrower, each Lender shall, on demand of
Administrative Agent, return its share of the amount to be returned, plus
interest thereon from the date of such demand to the date such payment is made
at a rate per annum equal to the Federal Funds Rate.
2.16 Funding Sources. Nothing in this Agreement shall be
deemed to obligate any Lender to obtain the funds for any Loan in any particular
place or manner or to constitute a representation by any Lender that it has
obtained or will obtain the funds for any Loan in any particular place or
manner.
SECTION 3
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by a Co-Borrower to or for the
account of Administrative Agent or any Lender under any Loan Document shall be
made free and clear of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, assessments, fees, withholdings or
similar charges, and all liabilities with respect thereto, excluding, in the
case of Administrative Agent and each Lender, taxes imposed on or measured by
its net income, and franchise taxes imposed on it, by the jurisdiction (or any
political subdivision thereof) under the Laws of which Administrative Agent or
such Lender, as the case may be, is organized or maintains a Lending Office (all
such non-excluded taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and liabilities being hereinafter referred to
as "Taxes"). If a Co-Borrower shall be required by any Laws to deduct any Taxes
from or in respect of any sum payable under any Loan Document to Administrative
Agent or any Lender, (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section), Administrative Agent and such
Lender receive an amount equal to the sum it would have received had no such
deductions been made, (ii) such Co-Borrower shall make such deductions, (iii)
such Co-Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Laws, and (iv) within
30 days after the date of such payment, such Co-Borrower shall furnish to
Administrative Agent (who shall forward the same to such Lender) the original or
a certified copy of a receipt evidencing payment thereof.
(b) In addition, each Co-Borrower agrees to pay any and all
present or future stamp, court or documentary taxes and any other excise or
property taxes or charges or similar levies which arise
31
from any payment made by it under any Loan Document or from the execution,
delivery, performance, enforcement or registration of, or otherwise with respect
to, any Loan Document (hereinafter referred to as "Other Taxes").
(c) If a Co-Borrower shall be required to deduct or pay any
Taxes or Other Taxes from or in respect of any sum payable under any Loan
Document to Administrative Agent or any Lender, such Co-Borrower shall also pay
to Administrative Agent or such Lender such additional amount that
Administrative Agent or such Lender specifies as necessary to preserve the
after-tax yield (after factoring in all taxes, including taxes imposed on or
measured by net income) that Administrative Agent or such Lender would have
received if such Taxes or Other Taxes had not been imposed.
(d) Each Co-Borrower agrees to indemnify Administrative Agent
and each Lender for the full amount of Taxes and Other Taxes (including any
Taxes or Other Taxes imposed or asserted by any jurisdiction on amounts payable
under this Section) paid by Administrative Agent and such Lender, amounts
payable under Section 3.01(c) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto.
(e) Notwithstanding anything to the contrary contained in this
Section 3.01, all obligations of each Co-Borrower to any Lender under this
Section 3.01 shall be subject to, and conditioned upon such Lender's compliance
with its obligations, if any, under, Section 10.20.
3.02 Illegality. If any Lender determines that any Laws have
made it unlawful, or that any Governmental Authority has asserted that it is
unlawful, for such Lender or its applicable Lending Office to make, maintain or
fund Eurodollar Rate Loans, or materially restricts the authority of such Lender
to purchase or sell, or to take deposits of, Dollars in the applicable offshore
interbank market, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to each Co-Borrower
through Administrative Agent, the obligation of such Lender to make Eurodollar
Rate Loans shall be suspended until such Lender notifies Administrative Agent
and each Co-Borrower that the circumstances giving rise to such determination no
longer exist. Upon receipt of such notice, each Co-Borrower shall, upon demand
from such Lender (with a copy to Administrative Agent), prepay or Convert all
Eurodollar Rate Loans of such Lender made to such Co-Borrower, either on the
last day of the Interest Period thereof, if such Lender may lawfully continue to
maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender
may not lawfully continue to maintain such Eurodollar Rate Loans. Each Lender
agrees to designate a different Lending Office if such designation will avoid
the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
3.03 Inability to Determine Eurodollar Rates. If, in
connection with any Request for Extension of Credit involving any Eurodollar
Rate Loan, (a) Administrative Agent determines that (i) deposits in Dollars are
not being offered to banks in the applicable offshore dollar market for the
applicable amount and Interest Period of the requested Eurodollar Rate Loan or
(ii) adequate and reasonable means do not exist for determining the underlying
interest rate for such Eurodollar Rate Loan, or (b) Required Lenders determine
that such underlying interest rate does not adequately and fairly reflect the
cost to Lenders of funding such Eurodollar Rate Loan, Administrative Agent will
promptly notify each Co-Borrower and all Lenders. Thereafter, the obligation of
Lenders to make or maintain such Eurodollar Rate Loan shall be suspended until
Administrative Agent revokes such notice. Upon receipt of such notice, each
Co-Borrower may revoke any pending request for a Borrowing of Eurodollar Rate
Loans or, failing that, be deemed to have converted such request into a request
for a Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy.
32
(a) If any Lender determines that the adoption of any Law or
any change in any Law or in the interpretation thereof effective after the date
hereof:
(i) Subjects such Lender to any tax, duty, or other
charge with respect to any Eurodollar Rate Loans or its
obligation to make Eurodollar Rate Loans, or changes the basis
on which taxes are imposed on any amounts payable to such
Lender under this Agreement in respect of any Eurodollar Rate
Loans;
(ii) Imposes or modifies any reserve, special
deposit, or similar requirement (other than the reserve
requirement utilized in the determination of the Eurodollar
Rate) relating to any extensions of credit or other assets of,
or any deposits with or other liabilities or commitments of,
such Lender (including its Commitment); or
(iii) Imposes on such Lender or on the offshore
interbank market any other condition affecting this Agreement
or any of such extensions of credit or liabilities or
commitments;
and the result of any of the foregoing is to increase the cost to such Lender of
making, Converting into, Continuing, or maintaining any Eurodollar Rate Loans or
to reduce any sum received or receivable by such Lender under this Agreement
with respect to any Eurodollar Rate Loans, then from time to time upon demand of
Lender (with a copy of such demand to Administrative Agent), each Co-Borrower
shall pay to such Lender such additional amounts attributable to such
Co-Borrower as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the adoption of any Law or
any change in any Law or in the interpretation thereof effective after the date
hereof has the effect of reducing the rate of return on the capital of such
Lender or compliance by such Lender (or its Lending Office) or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy to Administrative Agent), each Co-Borrower shall pay to
such Lender such additional amounts attributable to such Co-Borrower as will
compensate such Lender for such reduction.
3.05 Breakfunding Costs. Subject to Section 3.06(a), upon
demand of any Lender (with a copy to Administrative Agent) from time to time,
each Co-Borrower shall promptly compensate such Lender for and hold such Lender
harmless from any actual loss, cost or expense incurred by it as a result of:
(a) Any Continuation, Conversion, payment or prepayment by
such Co-Borrower of any Eurodollar Rate Loan on a day other than the last day of
the Interest Period for such Eurodollar Rate Loan (whether voluntary, mandatory,
automatic, by reason of acceleration or otherwise); or
(b) Any failure by such Co-Borrower (for a reason other than
the failure of such Lender to make a Eurodollar Rate Loan) to prepay, borrow,
Continue or Convert any Eurodollar Rate Loan on the date or in the amount
notified by such Co-Borrower;
excluding any loss of anticipated profits but including any loss or expense
arising from the liquidation or reemployment of funds obtained by it to maintain
such Loan or from fees payable to terminate the deposits from which such funds
were obtained.
3.06 Matters Applicable to all Requests for Compensation.
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(a) A certificate of Administrative Agent or any Lender
claiming compensation under this Section 3 and setting forth the additional
amount or amounts to be paid to it hereunder shall be conclusive in the absence
of clearly demonstrable error; provided that such certificate (i) sets forth
with reasonable specificity the calculation of the amount to be paid, (ii)
states that Administrative Agent or such Lender, as applicable, is treating
substantially all similarly situated borrowers in a manner that is consistent
with the treatment afforded the Co-Borrowers hereunder, (iii) is delivered
within 90 days of the later of the date of the event giving rise to such
compensation and the date Administrative Agent or such Lender knew or, with the
exercise of reasonable care, should have known of the requirements for such
compensation, and (iv) confirms (in the case of a claim for compensation under
Section 3.01 or Section 3.04) that either a change in the Administrative Agent's
Office or Lending Office, as the case may be, of Administrative Agent or such
Lender, as the case may be, would not have eliminated the request for
compensation or that such change would have been otherwise disadvantageous to
Administrative Agent or such Lender, as the case may be. In determining the
amount of such compensation, Administrative Agent or any Lender may use any
reasonable averaging and attribution methods.
(b) Upon any Lender becoming prohibited from making,
maintaining or funding Eurodollar Rate Loans pursuant to Section 3.02, or upon
any Lender making a claim for compensation under Section 3.01 or Section 3.04,
Borrower may remove and replace such Lender in accordance with Section 10.21.
3.07 Survival. All of the Co-Borrowers' obligations under this
Section 3 shall survive termination of the Commitments and payment in full of
all Obligations.
SECTION 4
CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT
4.01 Conditions Precedent to Effective Date. The agreement of
each Lender to make the initial Extension of Credit requested to be made by it
is subject to the satisfaction, on or before March 31, 2003 of the conditions
precedent set forth in this Section 4.01:
(a) Unless waived by all Lenders, receipt by the
Administrative Agent of each of the following, each of which shall be originals
or facsimiles (followed promptly by originals) unless otherwise specified, each
properly executed by a Responsible Officer of the applicable Loan Party, each
(other than the items listed in (i)(A) below, which shall be delivered on or
before the date of this Agreement) dated on, or in the case of third-party
certificates, recently before, the Effective Date and each in form and substance
satisfactory to Administrative Agent and its legal counsel:
(i) Executed counterparts of (A) this Agreement,
executed and delivered by each Co-Borrower, each Agent and
each Person listed on Schedule 2.01 and (b) the Guarantee
Agreement, executed and delivered by each Guarantor;
(ii) Such certificates of resolutions or other
action, incumbency certificates and/or other certificates of
Responsible Officers of each Loan Party as Administrative
Agent may request to establish the identities of and verify
the authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer thereof;
(iii) Such evidence as Administrative Agent may
request to verify that each Loan Party is duly organized or
formed, validly existing, in good standing and qualified to
engage in business in each jurisdiction in which it is
required to be qualified to engage
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in business, including certified copies of its organizational
documents, certificates of good standing and/or qualification
to engage in business;
(iv) A certificate signed by a Responsible Officer of
Borrower certifying (A) that the conditions specified in
Sections 4.01(j) and (k) have been satisfied, (B) that there
has been no event or circumstance since the date of the
Reference Statements which has a Material Adverse Effect, and
(C) as to the Debt Ratings as of the Effective Date;
(v) An opinion of counsel to Borrower in form and
substance reasonably satisfactory to Administrative Agent; and
(vi) Such other customary certificates, documents or
opinions as Administrative Agent or Required Lenders
reasonably may require.
(b) Any fees (including, without limitation, the ticking fee)
required to be paid on or before the Effective Date shall have been paid.
(c) Prior to or substantially simultaneously with the making
of such initial Extension of Credit, Comcast Corporation and Broadband shall
have merged (the "Merger") into separate, wholly-owned subsidiaries of Borrower
in accordance with the terms of the Merger Agreement, the other transactions
contemplated by the Merger Agreement (together with the Merger, the
"Transactions") shall have been consummated in accordance with the terms of the
Merger Agreement, and no provision of the Merger Agreement shall have been
waived, amended, supplemented or otherwise modified in any manner which is
materially adverse to the interests of the Lenders.
(d) All material governmental and third party approvals
necessary in connection with the Transactions and the financing contemplated
hereby shall have been obtained and be in full force and effect, and all
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority that would restrain, prevent or otherwise
impose materially adverse conditions on the Transactions or the financing
contemplated hereby.
(e) Lenders shall have received (i) satisfactory audited
consolidated financial statements of Comcast Cable Communications, Inc. and its
Subsidiaries and of AT&T Broadband Group and its Subsidiaries, in each case for
the two most recent fiscal years ended prior to the Effective Date as to which
such financial statements are available and (ii) satisfactory unaudited interim
consolidated financial statements of Comcast Cable Communications, Inc. and its
Subsidiaries and of AT&T Broadband Group and its Subsidiaries, in each case for
each quarterly period ended subsequent to the date of the latest financial
statements delivered pursuant to clause (i) of this paragraph as to which such
financial statements are available.
(f) Borrower shall have delivered a satisfactory pro forma
consolidated balance sheet of (i) Borrower and its subsidiaries and (ii) the
Restricted Group, in each case as at the date of the most recent consolidated
balance sheet delivered pursuant to subsection (e) above, adjusted to give
effect to the consummation of the Transactions and the financing thereof as if
such transactions had occurred on such date.
(g) (i) The Existing Comcast Facilities shall have been duly
amended in a satisfactory manner (which shall include extending the commitment
period of the 364-Day Agreement for an additional 364 days and conforming
certain terms and conditions of the Existing Comcast Facilities, including
covenant and pricing provisions, with the terms of this Agreement) pursuant to
amendments executed and delivered on or prior to the date of this Agreement, and
the facilities provided for thereunder
35
shall be fully available to Comcast Cable Communications, Inc. in amounts
satisfactory to the Agents, and (ii) the Co-Borrowers shall have entered into
the Bridge Facility substantially contemporaneously with entering into this
Agreement, and the facilities provided for thereunder shall be fully available
to the Co-Borrowers.
(h) The organizational and capital structure of Borrower and
its Subsidiaries, including the liabilities of the Subsidiaries of Borrower,
shall be substantially as described in the Confidential Information Memorandum
dated March, 2002.
(i) Borrower's Debt Rating, after giving effect to the
consummation of the Transactions and the financing thereof, shall have been
rated BBB- or better by S&P and Baa3 or better by Moody's.
(j) The representations and warranties made by Borrower
herein, or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection herewith or
therewith, shall be correct in all material respects on and as of the Effective
Date.
(k) No Default or Event of Default shall have occurred and be
continuing.
(l) Unless waived by Administrative Agent, Borrower shall have
paid all Attorney Costs of Administrative Agent to the extent invoiced prior to
or on the Effective Date.
4.02 Conditions to all Extensions of Credit. In addition to
any applicable conditions precedent set forth in Section 2, the obligation of
each Lender to honor any Request for Extension of Credit (including the initial
Extension of Credit on the Effective Date, but other than a Conversion or
Continuation) is subject to the following conditions precedent:
(a) The conditions precedent set forth in Section 4.01 of this
Agreement shall have been satisfied as of the Effective Date.
(b) The representations and warranties of Borrower contained
in Section 5 (other than Sections 5.04(b) and 5.05) of this Agreement shall be
correct in all material respects on and as of the date of such Extension of
Credit as if made on and as of such date, except to the extent any such
representation and warranty specifically relates to any earlier date, in which
case such representation and warranty shall have been correct on and as of such
earlier date.
(c) No Default or Event of Default exists, or would result
from such Extension of Credit or the use thereof.
(d) Administrative Agent shall have timely received a Request
for Extension of Credit by Requisite Notice by the Requisite Time therefor.
(e) Such Extension of Credit shall be permitted by applicable
Laws.
Each Request for Extension of Credit by a Co-Borrower shall be
deemed to be a representation and warranty that the conditions specified in
Sections 4.02(b) and (c) have been satisfied on and as of the date of such
Extension of Credit.
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SECTION 5
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and
Lenders that as of the Effective Date:
5.01 Existence and Qualification; Power; Compliance with Laws.
Each of Borrower and its Restricted Subsidiaries (a) is a corporation,
partnership or limited liability company duly organized or formed, validly
existing and in good standing under the Laws of the state of its organization,
(b) has the power and authority and the legal right to own, lease and operate
its properties and to conduct its business, (c) is duly qualified and in good
standing under the Laws of each jurisdiction where its ownership, lease or
operation of its properties or the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified and in
good standing does not have a Material Adverse Effect, and (d) is in compliance
with all Laws, except to the extent that noncompliance does not have a Material
Adverse Effect.
5.02 Power; Authorization; Enforceable Obligations. Each Loan
Party has the power and authority and the legal right to make, deliver and
perform each Loan Document to which it is a party, and has taken all necessary
action to authorize the execution, delivery and performance of each Loan
Document to which it is a party. Each Co-Borrower has the power and authority
and the legal right to borrow hereunder and has taken all necessary action to
authorize the Extensions of Credit on the terms and conditions of this
Agreement. Except for such consents, authorizations, filings or other acts which
have been duly made or obtained and are in full force and effect, no consent or
authorization of, filing with, or other act by or in respect of any Governmental
Authority is required in connection with the Extensions of Credit hereunder or
with the execution, delivery, performance, validity or enforceability of this
Agreement or any of the other Loan Documents. Each Loan Document has been duly
executed and delivered on behalf of each Loan Party party thereto, and
constitutes a legal, valid and binding obligation of each Loan Party party
thereto, enforceable against each such Loan Party in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or
other Laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in equity
or at law.
5.03 No Legal Bar. The execution, delivery, and performance by
each Loan Party of the Loan Documents to which it is a party do not and will not
(a) violate or conflict with, or result in a breach of, or require any consent
under (i) such Loan Party's organizational documents, (ii) any applicable Laws
which has a Material Adverse Effect, or (iii) any Contractual Obligation,
license or franchise of Borrower or any of its Restricted Subsidiaries or by
which any of them or any of their property is bound or subject which has a
Material Adverse Effect, (b) constitute a default under any such Contractual
Obligation, license or franchise which has a Material Adverse Effect or (c)
result in, or require, the creation or imposition of any Lien on any of the
properties of Borrower or any of its Restricted Subsidiaries which is not
permitted hereby.
5.04 Financial Statements; No Material Adverse Effect.
(a) The Reference Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (ii) fairly present the financial
condition of the Guarantors and other Persons covered thereby and their
respective consolidated Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein.
37
(b) From December 31, 2001 to the Effective Date, there has
been no event or circumstance which has a Material Adverse Effect.
5.05 Litigation. No litigation, investigation or proceeding of
or before an arbitrator or Governmental Authority is pending or, to the best
knowledge of Borrower, threatened by or against Borrower or any of its
Restricted Subsidiaries or against any of their properties or revenues that is
reasonably likely to be determined adversely, and, if so adversely determined,
has a Material Adverse Effect.
5.06 No Default. Neither Borrower nor any of its Restricted
Subsidiaries is in default under or with respect to any Contractual Obligation,
license or franchise which has a Material Adverse Effect, and no Default or
Event of Default has occurred and is continuing or will result from the
execution and delivery of this Agreement or any of the other Loan Documents, or
the making of the Extensions of Credit hereunder.
5.07 Authorizations. Borrower and its Restricted Subsidiaries
possess all licenses, permits, franchises, consents, approvals, and other
authorities required to be issued by Governmental Authorities that are necessary
or required in the conduct of their businesses, all of which are valid, binding,
enforceable, and subsisting without any defaults thereunder, other than any
failures to possess or defaults that do not have a Material Adverse Effect.
5.08 Taxes. Borrower and its Restricted Subsidiaries have
filed all tax returns which are required to be filed, and have paid, or made
provision for the payment of, all taxes with respect to the periods, property or
transactions covered by said returns, or pursuant to any assessment received by
Borrower or its affected Restricted Subsidiaries, except such taxes, if any, as
are being contested in good faith by appropriate proceedings and as to which
adequate reserves have been established and maintained in accordance with GAAP,
and, except for the failure to file tax returns and/or to pay taxes which
failures do not, in the aggregate, have a Material Adverse Effect.
5.09 Margin Regulations; Investment Company Act; Public
Utility Holding Company Act.
(a) Neither Co-Borrower is engaged or will engage, principally
or as one of its important activities, in the business of extending credit for
the purpose of "purchasing" or "carrying" "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect. No part of the proceeds of any Extensions of Credit hereunder will be
used for "purchasing" or "carrying" "margin stock" as so defined in a manner
which violates, or which would be inconsistent with, the provisions of
Regulations T, U, or X of such Board of Governors.
(b) Neither Borrower nor any of its Restricted Subsidiaries
(i) is a "holding company," or a "subsidiary company" of a "holding company," or
an "affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
or (ii) is or is required to be registered as an "investment company" under the
Investment Company Act of 1940.
5.10 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state Laws.
Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for
such a
38
letter is currently being processed by the IRS (or will be filed before the end
of any applicable remedial amendment period under Section 401(b) of the Code)
with respect thereto and, to the best knowledge of Borrower, nothing has
occurred which would prevent, or cause the loss of, such qualification. Borrower
and each ERISA Affiliate have made all required contributions to each Plan
subject to Section 412 of the Code, and no application for a funding waiver or
an extension of any amortization period pursuant to Section 412 of the Code has
been made with respect to any Plan.
(b) There are no pending or, to the best knowledge of
Borrower, threatened claims, actions or lawsuits, or action by any Governmental
Authority, with respect to any Plan that has a Material Adverse Effect. There
has been no non-exempt prohibited transaction (within the meaning of Section 401
of ERISA) or violation of the fiduciary responsibility rules of ERISA with
respect to any Plan that has a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected
to occur which has a Material Adverse Effect; (ii) no Plan has any Unfunded
Pension Liability; (iii) neither Borrower nor any ERISA Affiliate has incurred,
or reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Plan (other than premiums due and not delinquent under Section
4007 of ERISA); (iv) neither Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability (and no event has occurred which,
with the giving of notice under Section 4219 of ERISA, would result in such
liability) under Sections 4201 or 4243 of ERISA with respect to a Multiemployer
Plan; and (v) neither Borrower nor any ERISA Affiliate has engaged in a
transaction that could be subject to Sections 4069 or 4212(c) of ERISA.
5.11 Assets; Liens. Borrower and its Restricted Subsidiaries
own, or possess the right to use, all properties and assets, including without
limitation, trademarks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intangible assets, that are used in the conduct
of their respective businesses as now operated, and none of such properties and
assets, to the best knowledge of Borrower, conflicts with the valid ownership or
other right of use of any other Person to the extent that such failure to own or
possess or conflict has a Material Adverse Effect. None of such properties or
assets is subject to any Lien, except as permitted in Section 7.01.
5.12 Environmental Compliance. Borrower and its Restricted
Subsidiaries are in compliance with Environmental Laws except to the extent that
noncompliance does not have a Material Adverse Effect.
5.13 Use of Proceeds. The Co-Borrowers will use the proceeds
of Extensions of Credit to refinance existing Indebtedness (including
Indebtedness to AT&T Corp. and its Affiliates) and other obligations of Borrower
and its Subsidiaries required to be repaid or retired in connection with the
Transactions (and to make distributions required in connection with the
Transactions) and to pay fees and expenses incurred in connection with the
Transactions and the financing thereof. The proceeds of the Revolving Loans
shall also be available for working capital, capital expenditures, commercial
paper backup and other lawful corporate purposes.
5.14 Disclosure. The statements, information, reports,
representations and warranties made by the Loan Parties in the Loan Documents or
furnished to Administrative Agent or the Lenders in connection with the Loan
Documents, taken as a whole, do not contain any untrue statement of a material
fact.
39
SECTION 6
AFFIRMATIVE COVENANTS
On and after the Effective Date, and so long as any Obligation
remains unpaid or unperformed, or any portion of the Commitments remains
outstanding, Borrower shall, and shall (except in the case of Borrower's
reporting covenants), cause each Restricted Subsidiary to:
6.01 Financial Statements. Deliver to Administrative Agent and
Lenders, in form and detail satisfactory to Administrative Agent:
(a) As soon as available, but in any event within 105 days (in
the case of clause (i) below) or 120 days (in the case of clause (ii) below)
after the end of each fiscal year of Borrower ending after the Effective Date,
consolidated balance sheets as at the end of such fiscal year and related
consolidated statements of income and cash flows for such fiscal year of (i)
Borrower and its consolidated Subsidiaries and (ii) the Restricted Group,
setting forth in each case in comparative form the figures for the previous
fiscal year, all in reasonable detail, audited and accompanied by a report and
opinion of independent certified public accountants of nationally recognized
standing reasonably acceptable to Administrative Agent, which report and opinion
shall not be subject to any qualifications or exceptions as to the scope of the
audit nor to any qualifications or exceptions not reasonably acceptable to
Administrative Agent;
(b) As soon as available, but in any event within 60 days
after the end of each of the first three fiscal quarters of each fiscal year of
Borrower ending after the Effective Date, consolidated balance sheets as at the
end of such fiscal quarter, and related consolidated statements of income and
cash flows for such fiscal quarter and for the portion of Borrower's fiscal year
then ended, of (i) Borrower and its consolidated Subsidiaries and (ii) the
Restricted Group, setting forth in each case in comparative form the figures for
the corresponding fiscal quarter of the previous fiscal year and the
corresponding portion of the previous fiscal year, all in reasonable detail and
certified by a Responsible Officer of Borrower as fairly presenting the
financial condition, results of operations and cash flows of Borrower and its
consolidated Subsidiaries, or of the Restricted Group, as applicable, in
accordance with GAAP, subject only to pro forma adjustments and normal year-end
audit adjustments, except for the financial statements of the Restricted Group,
which will be in accordance with GAAP except for the exclusion of the
Unrestricted Subsidiaries; and
(c) If financial statements with respect to the 2002 fiscal
year are not delivered pursuant to Section 6.01(a), then, as soon as available,
but in any event within 105 days (in the case of clause (i) below) or 120 days
(in the case of clause (ii) below) after the end of such fiscal year,
consolidated balance sheets as at the end of such fiscal year and related
consolidated statements of income and cash flows for such fiscal year of (i)
Comcast Cable Communications, Inc. and its consolidated Subsidiaries and (ii)
AT&T Broadband Group and its consolidated Subsidiaries, setting forth in each
case in comparative form the figures for the previous fiscal year, all in
reasonable detail, audited and accompanied by a report and opinion of
independent certified public accountants of nationally recognized standing
reasonably acceptable to Administrative Agent, which report and opinion shall
not be subject to any qualifications or exceptions as to the scope of the audit
nor to any qualifications or exceptions not reasonably acceptable to
Administrative Agent.
6.02 Certificates, Notices and Other Information. Deliver to
Administrative Agent in form and detail satisfactory to Administrative Agent,
with sufficient copies for each Lender:
40
(a) No later than the date required for the delivery of the
financial statements referred to in Sections 6.01(a) and (b), a duly completed
Compliance Certificate signed by a Responsible Officer of Borrower, which
Compliance Certificate shall set forth the necessary adjustments to exclude the
Indebtedness and EBITDA attributed to Unrestricted Subsidiaries from the
calculations set forth therein and shall give pro forma effect to Material
Acquisitions and Material Dispositions in accordance with Section 1.07;
(b) Promptly after the same are available, copies of all
annual, regular, periodic and special reports and registration statements which
Borrower may file or be required to file with the Securities and Exchange
Commission under Sections 13 or 15(d) of the Securities Exchange Act of 1934,
and not otherwise required to be delivered to Administrative Agent pursuant
hereto;
(c) Promptly after Borrower obtaining knowledge of the
occurrence thereof, notice of any Default or Event of Default specifying the
nature thereof and what action Borrower has taken, is taking or proposes to take
with respect thereto;
(d) Promptly after Borrower obtaining knowledge of the
commencement thereof, notice of any litigation, investigation or proceeding
affecting Borrower or any of its Restricted Subsidiaries where the amount
involved exceeds the Threshold Amount, or in which injunctive relief or similar
relief is sought, which relief, if granted, has a Material Adverse Effect;
(e) Promptly after Borrower obtaining knowledge of the
occurrence thereof, notice of any ERISA Event;
(f) Promptly after Borrower obtaining knowledge of the
announcement thereof, notice of any announcement by Moody's or S&P of any change
in a Debt Rating; and
(g) Promptly after such request, such other data and
information as from time to time may be reasonably requested by Administrative
Agent or any Lender through Administrative Agent.
6.03 Payment of Taxes. Pay and discharge when due all taxes,
assessments and governmental charges or levies imposed on it or on its income or
profits or any of its property, except for any such tax, assessment, charge or
levy which is being contested in good faith and by appropriate proceedings, if
adequate reserves with respect thereto are maintained on its books in accordance
with GAAP, and except, for such payments which, if not paid, do not in the
aggregate, have a Material Adverse Effect.
6.04 Preservation of Existence. Preserve and maintain its
existence, licenses, permits, rights, franchises and privileges necessary or
desirable in the normal conduct of its business, except where failure to do so
does not have a Material Adverse Effect, and except that nothing in this Section
6.04 shall prohibit any transaction permitted by Section 7.03.
6.05 Maintenance of Properties. Maintain, preserve and protect
all of its material properties and equipment necessary in the operation of its
business in good order and condition, subject to wear and tear in the ordinary
course of business, except to the extent that the failure to do so does not have
a Material Adverse Effect.
6.06 Maintenance of Insurance. Maintain liability and casualty
insurance with financially sound and reputable insurance companies not
Affiliates of Borrower in such amounts with such deductibles and against such
risks as is customary for similarly situated businesses, except to the
41
extent Borrower or such Restricted Subsidiary maintains reasonable
self-insurance with respect to such risks.
6.07 Compliance With Laws.
(a) Comply with the requirements of all applicable Laws and
orders of any Governmental Authority, noncompliance with which has a Material
Adverse Effect.
(b) Conduct its operations and keep and maintain its property
in compliance with all Environmental Laws, noncompliance with which has a
Material Adverse Effect.
6.08 Inspection Rights. At any time during regular business
hours, upon reasonable notice, and as often as reasonably requested, but subject
to Section 10.17, permit Administrative Agent or any Lender, or any employee,
agent or representative thereof, to examine (and during the existence of an
Event of Default, make copies and abstracts from) the records and books of
account of Borrower and its Restricted Subsidiaries and to visit and inspect
their properties and to discuss their affairs, finances and accounts with any of
their officers and key employees.
6.09 Keeping of Records and Books of Account. Keep adequate
records and books of account reflecting all material financial transactions in
conformity with GAAP, consistently applied, and in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over Borrower or the applicable Restricted Subsidiary.
6.10 Compliance with ERISA. Cause, and cause each of its ERISA
Affiliates to (a) maintain each Plan in compliance in all material respects with
the applicable provisions of ERISA, the Code and other federal or state law; (b)
cause each Plan which is qualified under Section 401(a) of the Code to maintain
such qualification; and (c) make all required contributions to any Plan subject
to Section 412 of the Code; provided that this Section 6.10 shall not prohibit
Borrower and its ERISA Affiliates from terminating any Plan to the extent
permitted by ERISA, the Code, and other applicable law or if such termination
does not have a Material Adverse Effect.
6.11 Compliance With Agreements. Promptly and fully comply
with all Contractual Obligations to which any one or more of them is a party,
except for any such Contractual Obligations (a) then being contested or intended
to be timely contested by any of them in good faith by appropriate proceedings,
or (b) the failure to comply with which does not have a Material Adverse Effect.
6.12 Use of Proceeds. Use the proceeds of Extensions of Credit
as represented herein.
6.13 Designation of Unrestricted Companies. So long as no
Default or Event of Default exists or arises as a result thereof and subject to
the next succeeding sentence, Borrower may from time to time designate a
Restricted Subsidiary as an Unrestricted Subsidiary or designate an Unrestricted
Subsidiary as a Restricted Subsidiary; provided that Borrower shall (a) provide
Administrative Agent written notification of such designation prior to or
concurrently therewith (which written notification Administrative Agent will
promptly forward to Lenders), and (b) if such designation is a Material
Acquisition (in the case of the designation of an Unrestricted Subsidiary as a
Restricted Subsidiary) or a Material Disposition (in the case of the designation
of a Restricted Subsidiary as an Unrestricted Subsidiary), within 10 Business
Days after such notification, deliver to Administrative Agent a certificate, in
form reasonably acceptable to Administrative Agent, demonstrating pro-forma
compliance (in accordance with Section 1.07) with Section 7.07 immediately prior
to and after giving effect to such designation. Notwithstanding anything to the
contrary contained herein, (x) each Guarantor shall at all times be a Restricted
Subsidiary for all purposes hereunder, and Borrower shall not designate a
42
Guarantor as an Unrestricted Subsidiary, (y) unless designated as an
Unrestricted Subsidiary in compliance with clause (z) below, each Cable
Subsidiary shall at all times be a Restricted Subsidiary for all purposes
hereunder, and (z) Borrower may designate a Cable Subsidiary as an Unrestricted
Subsidiary at any time when the Leverage Ratio (calculated after giving pro
forma effect to such designation) is less than or equal to 3.00 to 1.00.
SECTION 7
NEGATIVE COVENANTS
On and after the Effective Date, and so long as any
Obligations remain unpaid or unperformed, or any portion of the Commitments
remains outstanding:
7.01 Liens. Borrower shall not, nor shall it permit any
Restricted Subsidiary to, directly or indirectly, incur, assume or suffer to
exist, any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof securing Indebtedness
which does not exceed $500,000,000 in the aggregate (which, in the case of any
such Lien securing Indebtedness in the amount of $100,000 or more, is listed on
Schedule 7.01), and any renewals or extensions thereof, provided that such Liens
are not extended to cover any other property, assets or revenues;
(c) Liens for taxes not yet due or which are being contested
in good faith and by appropriate proceedings, if adequate reserves with respect
thereto are maintained on the books of the applicable Person or such Liens are
otherwise permitted under Section 6.03;
(d) Carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested
or intended to be timely contested in good faith and by appropriate proceedings;
(e) Pledges or deposits in connection with worker's
compensation, unemployment insurance and other social security legislation;
(f) Deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(g) Easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which do not in any case materially detract
from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;
(h) Attachment, judgment or other similar Liens arising in
connection with litigation or other legal proceedings (and not otherwise a
Default hereunder) that are currently being contested in good faith by
appropriate proceedings or are intended to be timely contested in good faith by
appropriate proceedings, if adequate reserves with respect thereto are
maintained on the books of the applicable Person;
43
(i) Liens in favor of Borrower or any Restricted Subsidiary;
(j) Liens on "margin stock" (as defined in Regulation U of the
Board of Governors of the Federal Reserve System);
(k) Liens on property acquired (by purchase, merger or
otherwise) after the date hereof, existing at the time of acquisition thereof
(but not created in anticipation thereof), or placed thereon (at the time of
such acquisition or within 180 days of such acquisition to secure a portion of
the purchase price thereof), and any renewals or extensions thereof, so long as
the Indebtedness secured thereby is permitted hereby; provided that such Liens
do not and are not extended to cover any other property;
(l) Liens under Sale-Leaseback Transactions and other Liens,
and any renewals or extensions thereof, so long as the Indebtedness secured
thereby does not exceed $500,000,000 in the aggregate;
(m) Liens arising in connection with asset securitization
transactions, so long as the aggregate outstanding principal amount of the
obligations secured thereby does not exceed $300,000,000 at any one time; and
(n) Liens not otherwise permitted hereby which do not secure
any Indebtedness or which secure Indebtedness incurred pursuant to Asset
Monetization Transactions.
7.02 Subsidiary Indebtedness. Borrower shall not permit any of
its Restricted Subsidiaries to create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness existing on the date hereof, which, for all
such Indebtedness other than any Indebtedness which is less than $10,000,000 on
an individual basis, is set forth on Schedule 7.02, and extensions, renewals and
replacements of such Indebtedness that do not increase the outstanding principal
amount thereof;
(b) Indebtedness of any Restricted Subsidiary to Borrower or
any other Restricted Subsidiary;
(c) Indebtedness of any Restricted Subsidiary that is a
Guarantor (and, if requested by Administrative Agent as to any Restricted
Subsidiary that becomes a Guarantor after the Effective Date, a satisfactory
opinion of counsel is delivered to Administrative Agent relating thereto); and
(d) Other Indebtedness of a Restricted Subsidiary that is not
a Guarantor in an aggregate principal amount not exceeding $750,000,000 at any
time (it being understood that any Indebtedness incurred pursuant to Section
7.01(m) or Section 7.02(c) shall not be counted in determining such $750,000,000
limit).
7.03 Fundamental Changes. (a) Borrower shall not (A) merge or
consolidate with or into any Person or (B) liquidate, wind-up or dissolve itself
or (C) sell, transfer or dispose of all or substantially all of its assets,
provided, nothing in this Section 7.03 shall be construed to prohibit Borrower
from reincorporating in another jurisdiction, changing its form of organization
or merging into, or transferring all or substantially all of its assets to,
another Person so long as:
(i) either (x) Borrower shall be the surviving entity
with substantially the same assets immediately following the
reincorporation or reorganization or (y) the surviving entity
or transferee (the "Successor Corporation") shall, immediately
following the
44
merger or transfer, as the case may be, (A) have substantially
all of the assets of Borrower immediately preceding the merger
or transfer, as the case may be, (B) have duly assumed all of
Borrower's obligations hereunder and under the other Loan
Documents in form and substance satisfactory to Administrative
Agent (and, if requested by Administrative Agent, the
Successor Corporation shall have delivered an opinion of
counsel as to the assumption of such obligations) and (C)
either (I) have then-effective ratings (or implied ratings)
published by Moody's or S&P applicable to such Successor
Corporation's senior, unsecured, non-credit-enhanced, long
term indebtedness for borrowed money, which ratings shall be
either Baa3 or higher (if assigned by Moody's) or BBB- or
higher (if assigned by S&P) or (II) be acceptable to Required
Lenders; and
(ii) immediately after giving effect to such
transaction no Default or Event of Default shall have occurred
and be continuing.
(b) Borrower and its Restricted Subsidiaries, taken as a
whole, shall continue to maintain cable and other communications businesses as
its primary lines of business.
7.04 ERISA. Borrower shall not, nor shall it permit any
Restricted Subsidiary to, directly or indirectly, at any time engage in a
transaction which could be subject to Sections 4069 or 4212(c) of ERISA, or
permit any Plan to (a) engage in any non-exempt "prohibited transaction" (as
defined in Section 4975 of the Code); (b) fail to comply with ERISA or any other
applicable Laws; or (c) incur any material "accumulated funding deficiency" (as
defined in Section 302 of ERISA); which, with respect to each event described in
clauses (a), (b) or (c) above, has a Material Adverse Effect.
7.05 Limitations on Upstreaming. Borrower shall not, nor shall
it permit any Restricted Subsidiary to, directly or indirectly agree to any
restriction or limitation on the making of dividends, distributions, loans or
advances, the repaying of loans or advances or the transferring of assets from
any Restricted Subsidiary to Borrower or any other Restricted Subsidiary, except
(a) restrictions and limitations imposed by Law or by the Loan Documents, (b)
customary restrictions and limitations contained in agreements relating to the
sale of a Subsidiary or its assets that is permitted hereunder and (c) any other
restrictions that could not reasonably be expected to impair Borrower's ability
to repay the Obligations as and when due.
7.06 Margin Regulations. Borrower shall not, nor shall it
permit any Restricted Subsidiary to, directly or indirectly, use the proceeds of
any Extensions of Credit hereunder for "purchasing" or "carrying" "margin stock"
(as such terms are defined in Regulation U of the Board of Governors of the
Federal Reserve System), if such use would violate, or would be inconsistent
with, the provisions of Regulations T, U, or X of such Board of Governors.
7.07 Financial Covenants.
(a) Interest Coverage Ratio. Borrower shall not permit the
Interest Coverage Ratio as of the end of any fiscal quarter of Borrower set
forth below to be less than the ratio set forth below opposite such fiscal
quarter:
Fiscal Quarter Ending Ratio
--------------------- -----
12/31/02 2.00 to 1.00
03/31/03 2.00 to 1.00
06/30/03 2.25 to 1.00
09/30/03 and thereafter 2.50 to 1.00
45
(b) Leverage Ratio. Borrower shall not permit the Leverage
Ratio as of the end of any fiscal quarter of Borrower set forth below to be
greater than the ratio set forth below opposite such fiscal quarter:
Fiscal Quarter Ending Ratio
--------------------- -----
03/31/03 6.25 to 1.00
06/30/03 6.00 to 1.00
09/30/03 and thereafter 5.50 to 1.00
SECTION 8
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any one or more of the following
events shall constitute an Event of Default:
(a) A Co-Borrower fails to pay any principal on any of its
Outstanding Obligations (other than fees) on the date when due; or
(b) A Co-Borrower fails to pay any interest on any of its
Outstanding Obligations, or any ticking, commitment or utilization fees, within
five days after the date when due; or fails to pay any other fees or amount
payable to Administrative Agent or any Lender under any Loan Document within
five days after the date when due or, if applicable, after demand is made for
the payment thereof; or
(c) Any default occurs in the observance or performance of any
agreement contained in Section 6.02(c), 6.12, 7.03 or 7.07; or
(d) Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsections (a), (b) or (c) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for 30 days after notice thereof to Borrower from
Administrative Agent or any Lender; or
(e) Any representation or warranty by any Loan Party in this
Agreement or any other Loan Document or any Compliance Certificate proves to
have been incorrect in any material respect when made or deemed made; or
(f) (i) Borrower or any Restricted Subsidiary (x) defaults in
any payment when due (including any stated grace periods) of principal of or
interest on any Indebtedness (other than the Obligations) having an aggregate
principal amount in excess of the Threshold Amount or (y) defaults in the
observance or performance of any other agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur, the effect of which default or other event (after giving effect to any
applicable stated grace periods) is to cause, or to permit the holder or holders
of such Indebtedness (or a trustee or agent on behalf of such holder or holders
or beneficiary or beneficiaries) to cause, with the giving of notice if
required, Indebtedness having an aggregate principal amount in excess of the
Threshold Amount to be demanded or become due (automatically or otherwise) or to
become subject to mandatory redemption prior to its stated maturity, or any
Guaranty Obligation in such amount to become payable or cash collateral in
respect thereof to be demanded (provided that to the extent that any default
referred to in the preceding provisions of this Section 8.01(f) is cured or duly
waived by the required
46
holders of the applicable Indebtedness, such default shall cease to be an Event
of Default hereunder, unless and except to the extent that Administrative Agent
has theretofore exercised remedies hereunder pursuant to Section 8.02), or (ii)
Borrower or any Guarantor is unable or admits in writing its inability to pay
its debts as they mature; or
(g) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement of Required Lenders or all
Lenders, as may be required hereunder, or satisfaction in full of all the
Obligations, ceases to be in full force and effect or is declared by a court of
competent jurisdiction to be null and void, invalid or unenforceable in any
material respect; or Borrower denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document; or
(h) (i) A final non-appealable judgment against Borrower, any
of its Significant Subsidiaries or any Guarantor is entered for the payment of
money (which is not covered by insurance) in excess of the Threshold Amount, or
any non-monetary final judgment is entered against Borrower, any of its
Significant Subsidiaries or any Guarantor which has a Material Adverse Effect
if, in each case, such judgment remains unsatisfied without procurement of a
stay of execution for (A) 30 calendar days after the date of entry of such
judgment or, (B) if earlier, five days prior to the date of any possible
execution sale, or (ii) any writ or warrant of attachment or execution or
similar process is issued or levied against all or any material part of the
property of any such Person and is not released, vacated, stayed or fully bonded
within 30 calendar days after its issue or levy; or
(i) Borrower, any of its Significant Subsidiaries or any
Guarantor institutes or consents to the institution of any proceeding under
Debtor Relief Laws, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of that Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under Debtor
Relief Laws relating to any such Person or to all or any part of its property is
instituted without the consent of that Person and continues undismissed or
unstayed for 60 calendar days, or an order for relief is entered in any such
proceeding; or
(j) There occurs any Change of Control.
8.02 Remedies Upon Event of Default. Without limiting any
other rights or remedies of Administrative Agent or Lenders provided for
elsewhere in this Agreement, or the other Loan Documents, or by applicable Law,
or in equity, or otherwise:
(a) Upon the occurrence, and during the continuance, of any
Event of Default other than an Event of Default described in Section 8.01(i):
(i) Administrative Agent may (and, subject to the
terms of Section 9, shall upon the request of Required
Lenders) terminate the Commitments and/or declare all or any
part of the unpaid principal of all Loans, all interest
accrued and unpaid thereon and all other amounts payable under
the Loan Documents to be immediately due and payable,
whereupon the same shall become and be immediately due and
payable, without protest, presentment, notice of dishonor,
demand or further notice of any kind, all of which are
expressly waived by each Co-Borrower; and
(ii) Administrative Agent may (and, subject to the
terms of Section 9, shall upon the request of Required
Lenders) demand immediate payment by the Co-Borrowers of an
47
amount equal to the aggregate amount of all outstanding Letter
of Credit Usage to be held in a Letter of Credit Cash
Collateral Account.
(b) Upon the occurrence of any Event of Default described in
Section 8.01(i):
(i) The Commitments and all other obligations of
Administrative Agent or Lenders shall automatically terminate
without notice to or demand upon either Co-Borrower, which are
expressly waived by each Co-Borrower;
(ii) The unpaid principal of all Loans, all interest
accrued and unpaid thereon and all other amounts payable under
the Loan Documents shall be immediately due and payable,
without protest, presentment, notice of dishonor, demand or
further notice of any kind, all of which are expressly waived
by each Co-Borrower; and
(iii) An amount equal to the aggregate amount of all
outstanding Letter of Credit Usage shall be immediately due
and payable to Administrative Agent without notice to or
demand upon either Co-Borrower, which are expressly waived by
each Co-Borrower, to be held in a Letter of Credit Cash
Collateral Account.
(c) Upon the occurrence of any Event of Default,
Administrative Agent may proceed to protect, exercise and enforce against the
Co-Borrowers the rights and remedies of Administrative Agent and Lenders under
the Loan Documents and such other rights and remedies as are provided by Law or
equity.
(d) The order and manner in which Administrative Agent's and
Lenders' rights and remedies are to be exercised shall be determined by
Administrative Agent or Required Lenders in their sole and absolute discretion.
Regardless of how a Lender may treat payments for the purpose of its own
accounting, for the purpose of computing the Obligations hereunder, payments
received during the existence of an Event of Default shall be applied first, to
costs and expenses (including Attorney Costs) incurred by Administrative Agent
and each Lender (to the extent that each Lender has a right to reimbursement
thereof pursuant to the Loan Documents), second, to the payment of accrued and
unpaid interest on the Obligations to and including the date of such
application, third, to the payment of, or as cash collateral for, the unpaid
principal of the Obligations, and fourth, to the payment of all other amounts
(including fees) then owing to Administrative Agent and Lenders under the Loan
Documents, in each case paid pro rata to each Lender in the same proportions
that the aggregate Obligations owed to each Lender under the Loan Documents bear
to the aggregate Obligations owed under the Loan Documents to all Lenders,
without priority or preference among Lenders.
SECTION 9
THE AGENTS
9.01 Appointment. Each Lender hereby irrevocably designates
and appoints Administrative Agent as the agent of such Lender under this
Agreement and the other Loan Documents, and each such Lender irrevocably
authorizes Administrative Agent, in such capacity, to take such action on its
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement,
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any
48
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against Administrative
Agent.
9.02 Delegation of Duties. Administrative Agent may execute
any of its duties under this Agreement and the other Loan Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Administrative Agent shall not
be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
9.03 Exculpatory Provisions. Neither any Agent nor any of
their respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any Loan Party or any officer
thereof contained in this Agreement or any other Loan Document or in any
certificate, report, statement or other document referred to or provided for in,
or received by the Agents under or in connection with, this Agreement or any
other Loan Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
for any failure of any Loan Party a party thereto to perform its obligations
hereunder or thereunder. The Agents shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party.
9.04 Reliance by Administrative Agent. (a) Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to Borrower), independent
accountants and other experts selected by Administrative Agent. Administrative
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders (or, if so specified by this
Agreement, all Lenders) as it deems appropriate or it shall first be indemnified
to its satisfaction by Lenders against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such action.
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all Lenders and all future holders of the
Loans.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, absent Requisite Notice by such Lender to
Administrative Agent to the contrary, each Lender shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter either sent by Administrative Agent to each Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to a Lender.
9.05 Notice of Default. Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless Administrative Agent has received
49
notice from a Lender or Borrower referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". In the event that Administrative Agent receives such a notice,
Administrative Agent shall give notice thereof to Lenders. Administrative Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders); provided that unless and until Administrative Agent
shall have received such directions, Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of Lenders.
9.06 Non-Reliance on Agents and Other Lenders. Each Lender
expressly acknowledges that neither the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to Lenders by Administrative Agent
hereunder, Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any affiliate of a Loan Party that may
come into the possession of Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates.
9.07 Indemnification. Lenders agree to indemnify each Agent
and Issuing Bank in its capacity as such (to the extent not reimbursed by
Borrower and without limiting the obligation of Borrower to do so), ratably
according to their respective Aggregate Exposure Percentage in effect on the
date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentage immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever that may at any time (whether before or after the payment of the
Loans) be imposed on, incurred by or asserted against such Agent in any way
relating to or arising out of, the Commitments, this Agreement, any of the other
Loan Documents or any documents contemplated by or referred to herein or therein
or the transactions contemplated hereby or thereby or any action taken or
omitted by such Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from such Agent's
gross negligence or willful misconduct. The agreements in this Section shall
survive the payment of the Loans and all other amounts payable hereunder.
9.08 Agent in Its Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with any Loan Party as though such
50
Agent were not an Agent. With respect to its Loans made or renewed by it and
with respect to any Letter of Credit issued or participated in by it, each Agent
shall have the same rights and powers under this Agreement and the other Loan
Documents as any Lender and may exercise the same as though it were not an
Agent, and the terms "Lender" and "Lenders" shall include each Agent in its
individual capacity.
9.09 Successor Administrative Agent. Administrative Agent may
resign as Administrative Agent upon 30 days' notice to Lenders and Borrower. If
Administrative Agent shall resign as Administrative Agent under this Agreement
and the other Loan Documents, then the Required Lenders shall appoint from among
Lenders a successor agent for Lenders, which successor agent shall (unless an
Event of Default under Section 8.01(a), Section 8.01(b) or Section 8.01(i) with
respect to Borrower shall have occurred and be continuing) be subject to
approval by Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers and
duties of Administrative Agent, and the term "Administrative Agent" shall mean
such successor agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective, and Lenders
shall assume and perform all of the duties of Administrative Agent hereunder
until such time, if any, as the Required Lenders appoint a successor agent as
provided for above. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 9 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
9.10 Co-Documentation Agents and Syndication Agent. None of
Co-Documentation Agents nor Syndication Agent shall have any right, power,
obligation, liability, responsibility or duty hereunder in its capacity as such.
Without limiting the foregoing, none of Co-Documentation Agents nor Syndication
Agent in its capacity as such shall have or be deemed to have any fiduciary
relationship with any Lender. Each Lender acknowledges that it has not relied,
and will not rely, on any of Co-Documentation Agents or Syndication Agent in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
SECTION 10
MISCELLANEOUS
10.01 Amendments; Consents. No amendment, modification,
supplement, extension, termination or waiver of any provision of this Agreement
or any other Loan Document, no approval or consent thereunder, and no consent to
any departure by any Loan Party therefrom shall be effective unless in writing
signed by each Loan Party party thereto and Required Lenders and acknowledged by
Administrative Agent (or signed by Administrative Agent with the prior written
consent of Required Lenders), and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
Notwithstanding the foregoing sentence, without the approval in writing of each
Co-Borrower, Administrative Agent and each Lender affected thereby, no
amendment, modification, supplement, termination, waiver, approval, or consent
may be effective to:
(a) Reduce the amount of principal of any Outstanding
Obligations owed to such Lender;
51
(b) Reduce the rate of interest payable on any Outstanding
Obligations owed to such Lender or the amount or rate of any fee or other amount
payable to such Lender under the Loan Documents, except that Required Lenders
may waive or defer the imposition of the Default Rate;
(c) Waive an Event of Default consisting of the failure of a
Co-Borrower to pay when due principal, interest, any ticking, commitment or
utilization fee, or any other amount payable to such Lender under the Loan
Documents;
(d) Postpone any date scheduled for the payment of principal
of, or interest on, any Loan or any Letter of Credit reimbursement obligation or
for the payment of any ticking, commitment or utilization fee or for the payment
of any other amount, in each case payable to such Lender under the Loan
Documents, or extend the term of, or increase the amount of, such Lender's
Commitment (it being understood that a waiver of any Event of Default not
referred to in subsection (c) above shall require only the consent of Required
Lenders) or modify such Lender's share of the Commitments (except as
contemplated hereby);
(e) Amend or waive the definition of "Required Lenders" or the
provisions of this Section 10.01 or Section 10.06; or
(f) Amend or waive any provision of this Agreement that
expressly requires the consent or approval of such Lender;
provided, however, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the affected Issuing Lender or Swing Line Lender, as the
case may be, in addition to Required Lenders or each affected Lender, as the
case may be, affect the rights or duties of such Issuing Lender or Swing Line
Lender, as the case may be, (ii) no amendment, waiver or consent shall, unless
in writing and signed by Administrative Agent in addition to Required Lenders or
each affected Lender, as the case may be, affect the rights or duties of
Administrative Agent, (iii) any fee letters may be amended, or rights or
privileges thereunder waived, in a writing executed by the parties thereto; (iv)
any amendment, waiver, or consent to a Letter of Credit Application which is not
inconsistent with Section 2.03 shall require only the written approval of the
relevant Co-Borrower, Administrative Agent and the applicable Issuing Lender;
(v) any amendment, waiver or consent relating to the timing of any Swing Line
Loan, the Minimum Amount of any Swing Line Loan or any procedural matter
respecting any Swing Line Loan shall require only the consent of Swing Line
Lender, the relevant Co-Borrower and Administrative Agent; and (vi) no
amendment, waiver or consent shall release all or substantially all of
Guarantors from their obligations under the Guarantee Agreement without the
written consent of all Lenders. Any amendment, modification, supplement,
termination, waiver or consent pursuant to this Section shall apply equally to,
and shall be binding upon, all Lenders and Administrative Agent.
10.02 Requisite Notice; Effectiveness of Signatures and
Electronic Mail.
(a) Requisite Notice. Notices given in connection with any
Loan Document shall be delivered to the intended recipient at the number and/or
address set forth on the Administrative Questionnaire (or as otherwise specified
from time to time by such recipient in writing to Administrative Agent) and
shall be given by (i) irrevocable written notice or (ii) except as otherwise
provided, irrevocable telephonic (not voicemail) notice. Such notices may be
delivered, must be confirmed and shall be effective as follows:
Mode of Delivery
52
Mail Effective on earlier of actual receipt and fourth
Business Day after deposit in U.S. Mail, first class
postage pre-paid
Courier or hand delivery When signed for by recipient
Telephone (not voicemail) When conversation completed (must be confirmed in
writing)
Facsimile When confirmed by telephone (not voicemail)
Electronic Mail When delivered (usage subject to
subsection (c) below)
provided, however, that notices delivered to Administrative Agent pursuant to
Section 2 shall not be effective until actually received by Administrative
Agent; provided, further, that Administrative Agent may require that any notice
be confirmed or followed by a manually-signed hard copy thereof. Notices shall
be in any form prescribed herein and, if sent by a Co-Borrower, shall be made by
a Responsible Officer of such Co-Borrower. Notices delivered and, if required,
confirmed in accordance with this subsection shall be deemed to have been
delivered by Requisite Notice.
(b) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed hard copies and shall be binding on
each Co-Borrower, Administrative Agent and Lenders. Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed hard copy thereof; provided, however, that the failure to
request or deliver the same shall not limit the effectiveness of any facsimile
document or signature.
(c) Limited Usage of Electronic Mail. Electronic mail and
internet and intranet websites may be used to distribute routine communications,
such as financial statements and other information, and to distribute agreements
and other documents to be signed by Administrative Agent, Lenders and the
Co-Borrowers. No other legally-binding and/or time-sensitive communication or
Request for Extension of Credit may be sent by electronic mail without the
consent of, or confirmation to, the intended recipient in each instance.
(d) Reliance by Administrative Agent and Lenders.
Administrative Agent and Lenders shall be entitled to rely and act upon any
notices purportedly given by or on behalf of a Co-Borrower even if (i) such
notices were not made in a manner specified herein, were incomplete or were not
preceded or followed by any other notice specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation thereof.
Borrower shall indemnify Administrative Agent-Related Persons and Lenders from
any loss, cost, expense or liability as a result of relying on any notices
purportedly given by or on behalf of a Co-Borrower absent the gross negligence
or willful misconduct of the Person seeking indemnification.
10.03 Attorney Costs, Expenses and Taxes. Borrower agrees (a)
to pay or reimburse Administrative Agent and Syndication Agent for all
reasonable costs and expenses incurred in connection with the development,
preparation, negotiation and execution of the Loan Documents, and to pay or
reimburse Administrative Agent for all reasonable costs and expenses incurred in
connection with the development, preparation, negotiation and execution of any
amendment, waiver, consent, supplement or modification to, any Loan Documents,
and any other documents prepared in connection herewith or
53
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs of Administrative
Agent and (b) to pay or reimburse Administrative Agent and each Lender for all
costs and expenses incurred in connection with any restructuring, reorganization
(including a bankruptcy reorganization) or enforcement or attempted enforcement
of, or preservation of any rights under, any Loan Documents, and any other
documents prepared in connection herewith or therewith, or in connection with
any refinancing or restructuring of any such documents in the nature of a
"workout" or of any insolvency or bankruptcy proceeding, including Attorney
Costs. The agreements in this Section shall survive repayment of all
Obligations.
10.04 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which
Borrower is a party will be binding upon and inure to the benefit of the
Co-Borrowers, Administrative Agent, Lenders and their respective successors and
assigns, except that, a Co-Borrower may not, except as permitted by Section
7.03, assign its rights hereunder or thereunder or any interest herein or
therein without the prior written consent of all Lenders and any such attempted
assignment shall be void. Any Lender may at any time pledge a Note or any other
instrument evidencing its rights as a Lender under this Agreement to a Federal
Reserve Bank or, if such Lender is a fund, to any trustee or to any other
representative of holders of obligations owed or securities issued by such fund
as security for such obligations or securities, but no such pledge shall release
such Lender from its obligations hereunder or grant to such Federal Reserve Bank
or trust or other representative the rights of a Lender hereunder absent
foreclosure of such pledge, and any transfer to any Person upon the enforcement
of such pledge shall be subject to this Section 10.04.
(b) From time to time following the date of this Agreement,
each Lender may assign to one or more banks, financial institutions or other
entities (with any such bank, financial institution or other entity, in the case
of an assignment of rights and obligations under the Revolving Facility other
than to an Affiliate of the assigning Lender, being required to have a combined
capital and surplus of at least $250,000,000 (such qualifications being subject
to waiver by Borrower and Administrative Agent)), all or any portion of its
rights and obligations under this Agreement and the other Loan Documents;
provided that (i) such assignment, if not to a Lender or an Affiliate of a
Lender, shall be consented to (which consents shall not be unreasonably
withheld) by Borrower at all times other than during the existence of an Event
of Default and by Administrative Agent, (ii) a copy of a duly signed and
completed Assignment and Acceptance shall be delivered to Administrative Agent,
(iii) except in the case of an assignment (A) to an Affiliate of a Lender or to
another Lender or (B) of the entire remaining Commitment of the assigning
Lender, such assignment shall be in an aggregate principal amount not less than
the Minimum Amount therefor, and (iv) the effective date of any such assignment
shall be as specified in the Assignment and Acceptance, but not earlier than the
date which is five Business Days after the date Administrative Agent has
received the Assignment and Acceptance. Any such assignment need not be ratable
among the Facilities. Upon obtaining any consent required as set forth in the
prior sentence, any forms required by Section 10.20 and payment of the requisite
fee described below, the assignee named therein shall be a Lender for all
purposes of this Agreement to the extent of the Assigned Interest (as defined in
such Assignment and Acceptance), and, except for rights and obligations which by
their terms survive termination of any Commitments, the assigning Lender shall
be released from any further obligations under this Agreement to the extent of
such Assigned Interest. Upon request, the Co-Borrowers shall execute and deliver
new or replacement Notes to the assigning Lender and the assignee Lender to
evidence Loans made by them. Administrative Agent's consent to any assignment
shall not be deemed to constitute any representation or warranty by any
Administrative Agent-Related Person as to any matter. Administrative Agent shall
record the information contained in the Assignment and Acceptance in the
Register.
54
(c) After receipt of a completed Assignment and Acceptance,
and receipt of an assignment fee of $3,500 from such assignee and/or such
assigning Lender (including in the case of assignments to Affiliates of
assigning Lenders), Administrative Agent shall promptly accept such Assignment
and Acceptance and record the information contained therein in the Register on
the effective date determined pursuant thereto.
(d) Each Lender may from time to time, without the consent of
any other Person, grant participations to one or more other Persons (including
another Lender) in all or any portion of its Commitments, Extensions of Credit
or any other interest of such Lender hereunder and under the other Loan
Documents; provided, however, that (i) such Lender's obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participating bank or other financial institution shall not be a
Lender hereunder for any purpose except, if the participation agreement so
provides, for the purposes of the increased cost provisions of Section 3 (but
only to the extent that the cost of such benefits to Borrower does not exceed
the cost which Borrower would have incurred in respect of such Lender absent the
participation) and for purposes of Section 10.06, (iv) Borrower, Administrative
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and (v) the consent of the holder of such participation interest
shall not be required for amendments or waivers of provisions of the Loan
Documents; provided, however, that the assigning Lender may, in any agreement
with a participant, give such participant the right to consent (as between the
assigning Lender and such participant) to any matter which (A) extends the
Revolving Termination Date or any Term Loan Payment Date as to such participant
or any other date upon which any payment of money is due to such participant,
(B) reduces the rate of interest owing to such participant or any fee or any
other monetary amount owing to such participant, or (C) reduces the amount of
any scheduled payment of principal owing to such participant. Any Lender that
sells a participation to any Person that is a "foreign corporation, partnership
or trust" within the meaning of the Code shall include in its participation
agreement with such Person a covenant by such Person that such Person will
comply with the provisions of Section 10.20 as if such Person were a Lender and
provide that Administrative Agent and Borrower shall be third party
beneficiaries of such covenant. Each Lender that sells or grants a participation
shall (a) withhold or deduct from each payment to the holder of such
participation the amount of any tax required under applicable law to be withheld
or deducted from such payment and not withheld or deducted therefrom by Borrower
or Administrative Agent, (b) pay the tax so withheld or deducted by it to the
appropriate taxing authority in accordance with applicable law and (c) indemnify
Borrower and Administrative Agent for any losses, cost and expenses that they
may incur as a result of any failure to so withhold or deduct and pay such tax.
10.05 Set-off. In addition to any rights and remedies of
Administrative Agent and Lenders or any assignee of any Lender or any Affiliate
thereof (each, a "Proceeding Party") provided by law, upon the occurrence and
during the continuance of any Event of Default, each Proceeding Party is
authorized at any time and from time to time, without prior notice to the
Co-Borrowers, any such notice being waived by the Co-Borrowers to the fullest
extent permitted by law, to proceed directly, by right of set-off, banker's lien
or otherwise, against any assets of the Co-Borrowers which may be in the hands
of such Proceeding Party (including all general or special, time or demand,
provisional or other deposits and other indebtedness owing by such Proceeding
Party to or for the credit or the account of the Co-Borrowers) and apply such
assets against the Obligations then due and payable, irrespective of whether
such Proceeding Party shall have made any demand therefor. Each Lender agrees
promptly to notify the Co-Borrower and Administrative Agent after any such
set-off and application made by such Lender; provided, however, that the failure
to give such notice shall not affect the validity of such set-off and
application.
55
10.06 Sharing of Payments. Each Lender severally agrees that
if it, through the exercise of any right of setoff, banker's lien or
counterclaim against a Co-Borrower or otherwise, receives payment of the
Obligations held by it that is ratably more than any other Lender receives in
payment of the Obligations held by such other Lender, then, subject to
applicable Laws, (a) such Lender exercising the right of setoff, banker's lien
or counterclaim or otherwise receiving such payment shall purchase, and shall be
deemed to have simultaneously purchased, from the other Lender a participation
in the Obligations held by the other Lender and shall pay to the other Lender a
purchase price in an amount so that the share of the Obligations held by each
Lender after the exercise of the right of setoff, banker's lien or counterclaim
or receipt of payment shall be in the same proportion that existed prior to the
exercise of the right of setoff, banker's lien or counterclaim or receipt of
payment; and (b) such other adjustments and purchases of participations shall be
made from time to time as shall be equitable to ensure that all Lenders share
any payment obtained in respect of the Obligations ratably in accordance with
each Lender's share of the Obligations immediately prior to, and without taking
into account, the payment; provided that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by a Co-Borrower or any Person claiming through or
succeeding to the rights of a Co-Borrower, the purchase of a participation shall
be rescinded and the purchase price thereof shall be restored to the extent of
the recovery, but without interest. Each Lender that purchases a participation
in the Obligations pursuant to this Section shall from and after the purchase
have the right to give all notices, requests, demands, directions and other
communications under this Agreement with respect to the portion of the
Obligations purchased to the same extent as though the purchasing Lender were
the original owner of the Obligations purchased. Each Co-Borrower expressly
consents to the foregoing arrangements and agrees that any Lender holding a
participation in an Obligation so purchased may exercise any and all rights of
setoff, banker's lien or counterclaim with respect to the participation as fully
as if Lender were the original owner of the Obligation purchased.
10.07 No Waiver; Cumulative Remedies.
(a) No failure by any Lender or Administrative Agent to
exercise, and no delay by any Lender or Administrative Agent in exercising, any
right, remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege.
(b) The rights, remedies, powers and privileges herein or
therein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by Law. Any decision by Administrative Agent or
any Lender not to require payment of any interest (including interest at the
Default Rate), fee, cost or other amount payable under any Loan Document or to
calculate any amount payable by a particular method on any occasion shall in no
way limit or be deemed a waiver of Administrative Agent's or such Lender's right
to require full payment thereof, or to calculate an amount payable by another
method that is not inconsistent with this Agreement, on any other or subsequent
occasion.
(c) Except with respect to Section 9.09, the terms and
conditions of Section 9 are for the sole benefit of the Agents and Lenders.
10.08 Usury. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "Maximum Rate"). If Administrative Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excessive interest shall be applied to the principal of the Outstanding
Obligations or, if it exceeds the
56
unpaid principal, refunded to the applicable Co-Borrower. In determining whether
the interest contracted for, charged or received by Administrative Agent or any
Lender exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee or premium rather than interest, (b) exclude voluntary prepayments
and the effects thereof, and (c) amortize, prorate, allocate and spread, in
equal or unequal parts, the total amount of interest throughout the contemplated
term of the Obligations.
10.09 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.10 Integration. This Agreement, together with the other
Loan Documents and any letter agreements referred to herein, comprises the
complete and integrated agreement of the parties regarding the subject matter
hereof and supersedes all prior agreements, written or oral, on the subject
matter hereof. In the event of any conflict between the provisions of this
Agreement and those of any other Loan Document, the provisions of this Agreement
shall control and govern; provided that the inclusion of supplemental rights or
remedies in favor of Administrative Agent or Lenders in any other Loan Document
shall not be deemed a conflict with this Agreement. Each Loan Document was
drafted with the joint participation of the respective parties thereto and shall
be construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof. THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
BETWEEN THE PARTIES THERETO AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY SUCH PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN SUCH PARTIES.
10.11 Nature of Lenders' Obligations. Nothing contained in
this Agreement or any other Loan Document and no action taken by Administrative
Agent or Lenders or any of them pursuant hereto or thereto may, or may be deemed
to, make Lenders a partnership, an association, a joint venture or other entity,
either among themselves or with Borrower or any Subsidiary or Affiliate of
Borrower. Each Lender's obligation to make any Extension of Credit pursuant
hereto is several and not joint or joint and several. A default by any Lender
will not increase the Commitments attributable to any other Lender.
10.12 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document
shall survive the execution and delivery thereof. Such representations and
warranties have been or will be relied upon by Administrative Agent and each
Lender, notwithstanding any investigation made by Administrative Agent or any
Lender or on their behalf.
10.13 Indemnity by Borrower. (a) Whether or not the
transactions contemplated hereby are consummated, the Co-Borrowers jointly and
severally agree to indemnify, save and hold harmless each Administrative
Agent-Related Person and each Lender and their respective Affiliates, directors,
officers, agents, attorneys and employees (collectively the "Indemnitees") from
and against: (i) any and all claims, demands, actions or causes of action that
are asserted against any Indemnitee by any Person (other than Administrative
Agent or any Lender) relating directly or indirectly to a claim, demand, action
or cause of action that such Person asserts or may assert against a Co-Borrower,
any of its Affiliates or any of its officers or directors; (ii) any and all
claims, demands, actions or causes of action arising out of or relating to the
Loan Documents, the Commitments, the use or contemplated use of the proceeds of
any Extension of Credit, or the relationship of the Co-Borrowers, Administrative
Agent and Lenders under this Agreement; (iii) any administrative or
investigative proceeding by any Governmental Authority arising out of or related
to a claim, demand, action or cause of action described in subsection (i) or
(ii) above; and (iv) any and all liabilities (including liabilities under
indemnities), losses, costs or
57
expenses (including Attorney Costs (limited to one law firm for Lenders unless
Lenders have differing interests or defenses that preclude the engagement of one
law firm to represent Lenders)) that any Indemnitee suffers or incurs as a
result of the assertion of any foregoing claim, demand, action, cause of action
or proceeding, or as a result of the preparation of any defense in connection
with any foregoing claim, demand, action, cause of action or proceeding, in all
cases, including settlement costs incurred with the prior written consent of
Borrower (which consent shall not be unreasonably withheld), whether or not
arising out of the negligence of an Indemnitee, and whether or not an Indemnitee
is a party to such claim, demand, action, cause of action or proceeding (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that no
Indemnitee shall be entitled to indemnification for any loss caused by its own
gross negligence or willful misconduct. The agreements in this Section shall
survive repayment of all Obligations.
(b) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, no liability, right, remedy or claim shall arise,
be asserted or be enforceable (i) at any time as against any AT&T Party or (ii)
prior to the first to occur of the initial Borrowing hereunder by Broadband or
the consummation of the Transactions, as against any AT&T Broadband Party, in
each case by or on behalf of any Agent, any Lender, any other Co-Borrower or
Guarantor, in respect of the Obligations, this Agreement or any other Loan
Document, all such liabilities, rights, remedies and claims, if any, being
expressly waived. As used herein, (x) "AT&T Party" shall mean AT&T Corp., a New
York corporation, or any of its Subsidiaries or any of the respective officers,
directors, employees, representatives or agents of any of the foregoing, other
than any AT&T Broadband Party and (y) "AT&T Broadband Party" shall mean
Broadband and its Subsidiaries.
10.14 Nonliability of Lenders. Borrower acknowledges and
agrees that:
(a) Any inspections of any property of Borrower made by or
through Administrative Agent or Lenders are for purposes of administration of
the Loan Documents only, and Borrower is not entitled to rely upon the same
(whether or not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be
observed, performed, fulfilled or given to Administrative Agent or Lenders
pursuant to the Loan Documents, neither Administrative Agent nor Lenders shall
be deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not constitute
a warranty or representation to anyone with respect thereto by Administrative
Agent or Lenders;
(c) The relationship between the Co-Borrowers and
Administrative Agent and Lenders is, and shall at all times remain, solely that
of borrower and lenders; neither Administrative Agent nor any Lender shall under
any circumstance be deemed to be in a relationship of confidence or trust or a
fiduciary relationship with Borrower or its Affiliates, or to owe any fiduciary
duty to Borrower or its Affiliates; neither Administrative Agent nor any Lender
undertakes or assumes any responsibility or duty to Borrower or its Affiliates
to select, review, inspect, supervise, pass judgment upon or inform Borrower or
its Affiliates of any matter in connection with their property or the operations
of Borrower or its Affiliates; Borrower and its Affiliates shall rely entirely
upon their own judgment with respect to such matters; and any review,
inspection, supervision, exercise of judgment or supply of information
undertaken or assumed by Administrative Agent or any Lender in connection with
such matters is solely for the protection of Administrative Agent and Lenders
and neither Borrower nor any other Person is entitled to rely thereon; and
(d) Neither Administrative Agent nor any Lender shall be
responsible or liable to any Person for any loss, damage, liability or claim of
any kind relating to injury or death to Persons or damage
58
to property caused by the actions, inaction or negligence of Borrower and/or its
Affiliates and Borrower hereby indemnifies and holds Administrative Agent and
Lenders harmless from any such loss, damage, liability or claim.
10.15 No Third Parties Benefitted. This Agreement is made for
the purpose of defining and setting forth certain obligations, rights and duties
of the Co-Borrowers, Administrative Agent and Lenders in connection with the
Extensions of Credit, and is made for the sole benefit of the Co-Borrowers,
Administrative Agent and Lenders, Administrative Agent's and Lenders' successors
and permitted assigns, and, with respect to Section 10.13(b), the AT&T Parties
and the AT&T Broadband Parties. Except as provided in Sections 10.04 and 10.13,
no other Person shall have any rights of any nature hereunder or by reason
hereof.
10.16 Severability. Any provision of the Loan Documents that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective and severable to the extent of such prohibition or
unenforceability without invalidating the remaining provisions thereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Administrative
Agent, Lenders and Borrower agree to negotiate, in good faith, the terms of a
replacement provision as similar to the severed provision as may be possible and
be legal, valid, and enforceable.
10.17 Confidentiality. Administrative Agent and each Lender
shall use any confidential non-public information concerning Borrower and its
Subsidiaries and Affiliates that is furnished to Administrative Agent or such
Lender by or on behalf of Borrower and its Subsidiaries in connection with the
Loan Documents (collectively, "Confidential Information") solely for the purpose
of administering and enforcing the Loan Documents, and it will hold the
Confidential Information in confidence. Notwithstanding the foregoing,
Administrative Agent and each Lender may disclose Confidential Information (a)
to their affiliates or any of their or their affiliates' directors, officers,
employees, auditors, counsel, advisors, or representatives (collectively, the
"Representatives") who need to know such information for the purposes set forth
in this Section and who have been advised of and acknowledge their obligation to
keep such information confidential in accordance with this Section, (b) to any
bank or financial institution or other entity to which such Lender has assigned
or desires to assign an interest or participation in the Loan Documents or the
Obligations, provided that any such foregoing recipient of such Confidential
Information agrees to keep such Confidential Information confidential as
specified herein, (c) to any governmental agency or regulatory body having or
claiming to have authority to regulate or oversee any aspect of Administrative
Agent's or such Lender's business or that of their Representatives in connection
with the exercise of such authority or claimed authority, (d) to the extent
necessary or appropriate to enforce any right or remedy or in connection with
any claims asserted by or against Administrative Agent or such Lender or any of
their Representatives, and (e) pursuant to any subpoena or any similar legal
process. For purposes hereof, the term "Confidential Information" shall not
include information that (x) is in Administrative Agent's or a Lender's
possession prior to its being provided by or on behalf of Borrower or any of its
Subsidiaries or Affiliates, provided that such information is not known by
Administrative Agent or such Lender to be subject to another confidentiality
agreement with, or other legal or contractual obligation of confidentiality to,
Borrower or any of its Subsidiaries or Affiliates, (y) is or becomes publicly
available (other than through a breach hereof by Administrative Agent or such
Lender), or (z) becomes available to Administrative Agent or such Lender on a
nonconfidential basis, provided that the source of such information was not
known by Administrative Agent or such Lender to be bound by a confidentiality
agreement or other legal or contractual obligation of confidentiality with
respect to such information.
59
10.18 Headings. Section headings in this Agreement and the
other Loan Documents are included for convenience of reference only and are not
part of this Agreement or the other Loan Documents for any other purpose.
10.19 Time of the Essence. Time is of the essence of the Loan
Documents.
10.20 Foreign Lenders. Each Lender organized under the Laws of
a jurisdiction outside the United States, on or prior to the date of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by Borrower or
Administrative Agent (but only so long as such Lender remains lawfully able to
do so), shall provide Borrower and Administrative Agent with (i) if such Lender
is a "bank" within the meaning of Section 881(c)(3)(A) of the Code, IRS Form
W-8ECI or W-8BEN, as appropriate, or any successor form prescribed by the IRS,
certifying that such Lender is entitled to benefits under an income tax treaty
to which the United States is a party which reduces the rate of withholding tax
on payments of interest or certifying that the income receivable pursuant to the
Loan Documents is effectively connected with the conduct of a trade or business
in the United States, or (ii) if such Lender is not a "bank" within the meaning
of Section 881(c)(3)(A) of the Code and intends to claim an exemption from
United States withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of "portfolio interest," IRS Form W-8, or any successor form
prescribed by the IRS, and a certificate representing that such Lender is not a
bank for purposes of Section 881(c) of the Code, is not a ten-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of
Borrower, and is not a controlled foreign corporation related to Borrower
(within the meaning of Section 864(d)(4) of the Code). Thereafter and from time
to time, each such Person shall (a) promptly submit to Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
Borrower and Administrative Agent of any available exemption from or reduction
of, United States withholding taxes in respect of all payments to be made to
such Person by Borrower pursuant to this Agreement, (b) promptly notify
Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (c) take such steps as shall not
be materially disadvantageous to it, in the reasonable judgment of such Lender,
and as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws that a Co-Borrower make any
deduction or withholding for taxes from amounts payable to such Person. If such
Person fails to deliver the above forms or other documentation, then
Administrative Agent may withhold from any interest payment to such Person an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction. If any Governmental Authority asserts that
Administrative Agent did not properly withhold any tax or other amount from
payments made in respect of such Person, such Person shall indemnify
Administrative Agent therefor, including all penalties and interest, any taxes
imposed by any jurisdiction on the amounts payable to the Agent under this
Section, and costs and expenses (including Attorney Costs) of Administrative
Agent. The obligation of Lenders under this Section shall survive the payment of
all Obligations and the resignation of Administrative Agent.
10.21 Removal and Replacement of Lenders.
(a) Under any circumstances set forth in this Agreement
providing that Borrower shall have the right to remove or replace a Lender as a
party to this Agreement, Borrower may, upon notice to such Lender and
Administrative Agent, remove such Lender by (i) non ratably terminating such
Lender's Commitment and/or (ii) causing such Lender to assign its Commitment
pursuant to Section 10.04(b) to one or more other Lenders or eligible assignees
procured by Borrower. Each Co-Borrower shall, in the case of a termination of
such Lender's Commitment pursuant to clause (i) preceding, (x) pay in full all
60
principal, interest, fees and other amounts owing to such Lender through the
date of termination (including any amounts payable pursuant to Section 3), (y)
provide appropriate assurances and indemnities (which may include letters of
credit) to such Lender and Issuing Lender as each may reasonably require with
respect to any continuing risk participation interest in any Letters of Credit
or Swing Line Loans then outstanding and (z) release such Lender from its
obligations under the Loan Documents from and after the date of termination.
Each Co-Borrower shall, in the case of an assignment pursuant to clause (ii)
preceding, cause to be paid the assignment fee payable to Administrative Agent
pursuant to Section 10.04(c). Any such Lender whose Commitment is being assigned
shall execute and deliver an Assignment and Acceptance covering such Lender's
Commitment. Administrative Agent shall distribute an amended Schedule 2.01,
which shall be deemed incorporated into this Agreement, to reflect adjustments
to Lenders and their Commitments.
(b) This section shall supercede any provisions in Section
10.01 to the contrary.
10.22 Governing Law; Submission to Jurisdiction; Waivers.
(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
(b) Each party to this Agreement irrevocably and
unconditionally:
(i) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other
Loan Documents to which it is a party, or for recognition and
enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State
of New York, the courts of the United States for the Southern
District of New York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding may
be brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead
or claim the same;
(iii) agrees that service of process in any such
action or proceeding may be effected by mailing a copy thereof
by registered or certified mail (or any substantially similar
form of mail), postage prepaid, to it at its address provided
for in Section 10.02;
(iv) agrees that nothing herein shall affect the
right to effect service of process in any other manner
permitted by law or shall limit the right to sue in any other
jurisdiction; and
(v) waives, to the maximum extent not prohibited by
law, any right it may have to claim or recover in any legal
action or proceeding referred to in this Section any special,
exemplary, punitive or consequential damages.
10.23 Waiver of Right to Trial by Jury. EACH PARTY TO THIS
AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY
CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR
ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED
THERETO, IN EACH CASE WHETHER NOW EXISTING OR
61
HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
AT&T COMCAST CORPORATION
By:
/s/ Arthur R. Block
-----------------------------------
Name: Arthur R. Block
Title: Senior Vice President
AT&T BROADBAND CORP.
By:
/s/ Robert S. Feit
-----------------------------------
Name: Robert S. Feit
Title: Vice President and
Assistant Secretary
1
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
JPMORGAN CHASE BANK, as Administrative
Agent, a Swing Line Lender and an Issuing
Lender, and as a Lender
By: /s/ B. Joseph Lillis
--------------------------------------
Name: B. Joseph Lillis
Title: Managing Director
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Citibank, N.A.
By: /s/ Carolyn Kee
--------------------------------------
Name: Carolyn Kee
------------------------------------
Title: Vice President
-----------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Bank of America, N.A.
By: /s/Todd Shipley
--------------------------------------
Name: Todd Shipley
------------------------------------
Title: Managing Director
-----------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Merrill Lynch Capital
Corporation
By: /s/ Zoran Fotak
--------------------------------------
Name: Zoran Fotak
------------------------------------
Title: Managing Director
-----------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Morgan Stanley Senior Funding
By: /s/ Lucy Galbraith
----------------------------------------------
Name: Lucy Galbraith
--------------------------------------------
Title: Vice President
-------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: ABN AMRO Bank N.V.
By: /s/ David Carrington
--------------------------------------------
Name: David Carrington
--------------------------------------------
Title: Group Vice President
--------------------------------------------
By: /s/ Thomas Cha
--------------------------------------------
Name: Thomas Cha
--------------------------------------------
Title: Assistant Vice President
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Bank One, NA
By: /s/ Curtis R. Worthington
--------------------------------------------
Name: Curtis R. Worthington
--------------------------------------------
Title: Associate Director
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: The Bank of New York Company,
Inc.
By: /s/ Michael E. Masters
--------------------------------------------
Name: Michael E. Masters
--------------------------------------------
Title: Assistant Vice President
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: The Bank of Nova Scotia
By: /s/ Brenda S. Insull
--------------------------------------------
Name: Brenda S. Insull
--------------------------------------------
Title: Authorized Signatory
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: The Bank of Tokyo-Mitsubishi,
Ltd.
By: /s/ Mark R. Marron
--------------------------------------------
Name: Mark R. Marron
--------------------------------------------
Title: Authorized Signatory
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Barclays Bank PLC
By: /s/ Benjamin Smith
--------------------------------------------
Name: Benjamin Smith
--------------------------------------------
Title: Associate Director
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: BNP Paribas
By: /s/ Gregg Bonardi
--------------------------------------------
Name: Gregg Bonardi
--------------------------------------------
Title: Director
--------------------------------------------
By: /s/ Ola Anderssen
--------------------------------------------
Name: Ola Anderssen
--------------------------------------------
Title: Director
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Deutsche Bank AG, New York
By: /s/ William W. McGinty
--------------------------------------------
Name: William W. McGinty
--------------------------------------------
Title: Director
--------------------------------------------
By: /s/ Christopher S. Hall
--------------------------------------------
Name: Christopher S. Hall
--------------------------------------------
Title: Managing Director
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Dresdner Bank AG, New York &
Grand Cayman Branches
By: /s/ Brian E. Haughney
--------------------------------------------
Name: Brian E. Haughney
--------------------------------------------
Title: Vice President
--------------------------------------------
By: /s/ William E. Lambert
--------------------------------------------
Name: William E. Lambert
--------------------------------------------
Title: Vice President
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Fleet National Bank
By: /s/ Sue Anderson
--------------------------------------------
Name: Sue Anderson
--------------------------------------------
Title: Managing Director
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Goldman Sachs Credit Partners,
L.P.
By: /s/ Stephen P. Hickey
--------------------------------------------
Name: Stephen P. Hickey
--------------------------------------------
Title: Authorized Signatory
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Lehman Commercial Paper Inc.
By: /s/ G. Andrew Keith
--------------------------------------------
Name: G. Andrew Keith
--------------------------------------------
Title: Authorized Signatory
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: The Royal Bank of Scotland plc
By: /s/ David A. Lucus
--------------------------------------------
Name: David A. Lucus
--------------------------------------------
Title: Senior Vice President
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: UBS AG, Stamford Branch
By: /s/ Wilfred V. Saint
--------------------------------------------
Name: Wilfred V. Saint
--------------------------------------------
Title: Associate Director
--------------------------------------------
By: /s/ Thomas R. Salzano
--------------------------------------------
Name: Thomas R. Salzano
--------------------------------------------
Title: Director
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Westdeutsche Landesbank
Gitrozentrale, New York Branch
By: /s/ Lucie Guernsey
--------------------------------------------
Name: Lucie Guernsey
--------------------------------------------
Title: Director
--------------------------------------------
By: /s/ Lisa Walker
--------------------------------------------
Name: Lisa Walker
--------------------------------------------
Title: Associate Director
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: U.S. Bank National Association
By: /s/ Jaycee Earll
--------------------------------------------
Name: Jaycee Earll
--------------------------------------------
Title: Assistant Vice President
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Bayerische Landesbank
By: /s/ Hereward Drummond
--------------------------------------------
Name: Hereward Drummond
--------------------------------------------
Title: Senior Vice President
--------------------------------------------
By: /s/ James H. Boyle
--------------------------------------------
Name: James H. Boyle
--------------------------------------------
Title: Vice President
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Lloyds TSB Bank plc
By: /s/ Richard M. Heath
--------------------------------------------
Name: Richard M. Heath
--------------------------------------------
Title: Vice President
--------------------------------------------
By: /s/ Lisa Maguire
--------------------------------------------
Name: Lisa Maguire
--------------------------------------------
Title: Assistant Vice President
--------------------------------------------
Signature Page to that certain Credit Agreement, dated as of
the date first set forth above, among AT&T Comcast Corporation and AT&T
Broadband Corp., as Co-Borrowers, each Lender, JPMorgan Chase Bank, as
Administrative Agent, Swing Line Lender, and an Issuing Lender, Citibank, N.A.,
as Syndication Agent, and Bank of America, N.A., Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated and Morgan Stanley Senior Funding,
Inc., as Co-Documentation Agents.
Name of Lender: Bank of Communications,
New York Branch
By: /s/ De Cai Li
--------------------------------------------
Name: De Cai Li
--------------------------------------------
Title: General Manager
--------------------------------------------