364-DAY REVOLVING CREDIT AGREEMENT
among
COMCAST CABLE COMMUNICATIONS, INC.
and
AT&T COMCAST CORPORATION
and
The Financial Institutions Party Hereto
BANC OF AMERICA SECURITIES LLC
and
J.P. MORGAN SECURITIES INC.,
as
Joint Lead Arrangers and Joint Book Managers
CREDIT SUISSE FIRST BOSTON,
BARCLAYS BANK PLC
and
DEUTSCHE BANK SECURITIES INC.,
as Co-Arrangers
BANK OF AMERICA, N.A.,
as Administrative Agent
J.P. MORGAN SECURITIES INC.,
as Syndication Agent
CREDIT SUISSE FIRST BOSTON,
BARCLAYS BANK PLC
and
DEUTSCHE BANK SECURITIES INC.,
as Co-Documentation Agents
Dated as of May 7, 2002
TABLE OF CONTENTS
Section Page
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
1.01 Defined Terms..........................................................................................1
1.02 Use of Certain Terms..................................................................................13
1.03 Accounting Terms......................................................................................13
1.04 Rounding..............................................................................................13
1.05 Exhibits and Schedules................................................................................14
1.06 References to Agreements and Laws.....................................................................14
1.07 Pro Forma Calculations................................................................................14
SECTION 2. THE COMMITMENTS AND EXTENSIONS OF CREDIT..............................................................15
2.01 Amount and Terms of Commitments.......................................................................15
2.02 Borrowings, Conversions and Continuations of Loans....................................................16
2.03 Prepayments...........................................................................................16
2.04 Reduction or Termination of Commitments...............................................................17
2.05 Principal and Interest................................................................................17
2.06 Fees..................................................................................................17
2.07 Computation of Interest and Fees......................................................................18
2.08 Making Payments.......................................................................................18
2.09 Funding Sources.......................................................................................19
2.10 Extension of Maturity Date............................................................................19
SECTION 3. TAXES, YIELD PROTECTION AND ILLEGALITY................................................................21
3.01 Taxes.................................................................................................21
3.02 Illegality............................................................................................21
3.03 Inability to Determine Eurodollar Rates...............................................................22
3.04 Increased Cost and Reduced Return; Capital Adequacy...................................................22
3.05 Breakfunding Costs....................................................................................23
3.06 Matters Applicable to all Requests for Compensation...................................................23
3.07 Survival..............................................................................................23
SECTION 4. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT..........................................................24
4.01 Conditions Precedent to Closing Date..................................................................24
4.02 Conditions to all Extensions of Credit................................................................25
SECTION 5. REPRESENTATIONS AND WARRANTIES........................................................................25
5.01 Existence and Qualification; Power; Compliance with Laws..............................................25
5.02 Power; Authorization; Enforceable Obligations.........................................................25
5.03 No Legal Bar..........................................................................................26
5.04 Financial Statements; No Material Adverse Effect......................................................26
5.05 Litigation............................................................................................26
5.06 No Default............................................................................................26
5.07 Authorizations........................................................................................26
5.08 Taxes.................................................................................................26
5.09 Margin Regulations; Investment Company Act; Public Utility Holding Company Act........................27
5.10 ERISA Compliance......................................................................................27
5.11 Assets; Liens.........................................................................................28
5.12 Environmental Compliance..............................................................................28
5.13 Use of Proceeds.......................................................................................28
5.14 Disclosure............................................................................................28
SECTION 6. AFFIRMATIVE COVENANTS.................................................................................28
6.01 Financial Statements..................................................................................28
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6.02 Certificates, Notices and Other Information...........................................................29
6.03 Payment of Taxes......................................................................................29
6.04 Preservation of Existence.............................................................................29
6.05 Maintenance of Properties.............................................................................29
6.06 Maintenance of Insurance..............................................................................30
6.07 Compliance With Laws..................................................................................30
6.08 Inspection Rights.....................................................................................30
6.09 Keeping of Records and Books of Account...............................................................30
6.10 Compliance with ERISA.................................................................................30
6.11 Compliance With Agreements............................................................................30
6.12 Use of Proceeds.......................................................................................30
6.13 Designation of Restricted and Unrestricted Subsidiaries...............................................30
SECTION 7. NEGATIVE COVENANTS....................................................................................31
7.01 Liens.................................................................................................31
7.02 Subsidiary Indebtedness...............................................................................32
7.03 Fundamental Changes...................................................................................32
7.04 ERISA.................................................................................................33
7.05 Limitations on Upstreaming............................................................................33
7.06 Margin Regulations....................................................................................33
7.07 Financial Covenants...................................................................................33
SECTION 8. EVENTS OF DEFAULT AND REMEDIES........................................................................33
8.01 Events of Default.....................................................................................33
8.02 Remedies Upon Event of Default........................................................................35
SECTION 9. ADMINISTRATIVE AGENT..................................................................................35
9.01 Appointment and Authorization of Administrative Agent.................................................35
9.02 Delegation of Duties..................................................................................36
9.03 Liability of Administrative Agent.....................................................................36
9.04 Reliance by Administrative Agent......................................................................36
9.05 Notice of Default.....................................................................................37
9.06 Credit Decision; Disclosure of Information by Administrative Agent....................................37
9.07 Indemnification of Administrative Agent...............................................................37
9.08 Administrative Agent in Individual Capacity...........................................................38
9.09 Resignation by Administrative Agent...................................................................38
9.10 Other Agents..........................................................................................39
SECTION 10. MISCELLANEOUS........................................................................................39
10.01 Amendments; Consents...............................................................................39
10.02 Requisite Notice; Effectiveness of Signatures and Electronic Mail..................................40
10.03 Attorney Costs, Expenses and Taxes.................................................................41
10.04 Binding Effect; Assignment.........................................................................41
10.05 Set-off............................................................................................42
10.06 Sharing of Payments................................................................................43
10.07 No Waiver; Cumulative Remedies.....................................................................43
10.08 Usury..............................................................................................43
10.09 Counterparts.......................................................................................44
10.10 Integration........................................................................................44
10.11 Nature of Lenders' Obligations.....................................................................44
10.12 Survival of Representations and Warranties.........................................................44
10.13 Indemnity by Borrower..............................................................................44
10.14 Nonliability of Lenders............................................................................45
10.15 No Third Parties Benefitted........................................................................46
10.16 Severability.......................................................................................46
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10.17 Confidentiality....................................................................................46
10.18 Headings...........................................................................................47
10.19 Time of the Essence................................................................................47
10.20 Foreign Lenders....................................................................................47
10.21 Removal and Replacement of Lenders.................................................................47
10.22 Governing Law......................................................................................48
10.23 Waiver of Right to Trial by Jury...................................................................48
10.24 Waiver of Notice by Requisite Time.................................................................49
10.25 Amendment and Restatement on the Effective Date....................................................49
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EXHIBITS
Form of
A Request for Extension of Credit
B Compliance Certificate
C Note
D Assignment and Acceptance
SCHEDULES
2.01 Commitments and Pro Rata Shares
7.01 Existing Liens
7.02 Existing Subsidiary Indebtedness
ANNEXES
I Amended and Restated 364-Day Revolving Credit Agreement
iv
364-DAY REVOLVING CREDIT AGREEMENT
This 364-DAY REVOLVING CREDIT AGREEMENT is entered into as of May 7,
2002, by and among COMCAST CABLE COMMUNICATIONS, INC., a Delaware corporation
("Borrower"), AT&T COMCAST CORPORATION, a Pennsylvania corporation ("Parent"),
each lender from time to time party hereto (collectively, "Lenders" and
individually, a "Lender") and BANK OF AMERICA, N.A., as Administrative Agent.
RECITAL
Borrower has requested that Lenders provide a revolving line of credit,
and Lenders 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 Bank of America, N.A., 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 any Person directly or indirectly controlling,
controlled by, or under direct or indirect common control with, another Person.
"Agreement" means this 364-Day Revolving Credit Agreement, as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time.
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"Annualized EBITDA" means, at any date of determination, EBITDA for the
two fiscal quarter periods then most recently ended times two (2).
"Annualized Interest Expense" means, at any date of determination,
Interest Expense for the two fiscal quarter periods then most recently ended
times two (2).
"Applicable Amount" means the following applicable rate per annum,
based upon the applicable Debt Ratings:
Applicable Amount (in basis points per annum)
Debt Ratings Utilization
Pricing Level S&P/Moody's Facility Fee Eurodollar Rate Fee
------------- ----------- ------------ --------------- ---
1 >A/A2 6.5 21.0 7.5
-
2 A-/A3 8.0 29.5 7.5
3 BBB+/Baa1 10.0 35.0 10.0
4 BBB/Baa2 12.5 47.5 10.0
5 BBB-/Baa3 15.0 60.0 12.5
6 BBB-/Baa3 or unrated 20.0 80.0 12.5
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 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)(v). 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. In the event Borrower elects to convert the outstanding
principal amount of the Loans on the Maturity Date then in effect to term loans
pursuant to Section 2.10(d), from and after the date on which such conversion
occurs, each Applicable Amount set forth in the column below Eurodollar Rate
above shall be increased by 25.0 and, at all times that Pricing Level 6 is in
effect, the Applicable Amount for Base Rate Loans shall be 5.0.
"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; 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, as otherwise
provided herein.
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"Applicable Time" means New York time.
"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 such lease subsequent to the first date on which it may be so
terminated) or the Attributable Indebtedness determined assuming no such
termination.
"Audited Financial Statements" means the audited consolidated balance
sheet of Borrower and its Subsidiaries for the fiscal year ended December 31,
2001, and the related consolidated statements of income and cash flows of
Borrower and its Subsidiaries for such fiscal year.
"Bank of America" means Bank of America, N.A.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." Such rate is a rate set by Bank of America based
upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America 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" means Brian L. Roberts, the estate of Brian L. Roberts, or any
trust of which Brian L. Roberts is the principal beneficiary.
"Borrower" has the meaning set forth in the introductory paragraph
hereto.
"Borrowing" and "Borrow" each mean a borrowing of Loans hereunder.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York, New York or Dallas, Texas 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.
"Change of Control" means an event or series of events as a result of
which neither Comcast Corporation nor BLR, either separately or on a combined
basis, is to be the "beneficial owner" (as defined in Rules 13(d)-3 and 13(d)-5
3
under the Securities Exchange Act of 1934) directly or indirectly of such equity
as entitles the holder thereof, under ordinary circumstances, to elect the
majority of the board of directors of Borrower.
"Closing Date" means the date upon which this Agreement has been
executed by Borrower, Lenders and Administrative Agent and all the conditions
precedent in Section 4.01 have been satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, for each Lender, the amount set forth 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 Commitments").
"Compliance Certificate" means a certificate substantially in the form
of Exhibit B, 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.
"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.
"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.
"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.
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"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.
"Environmental Laws" means all Laws relating to environmental, health,
safety and land use matters applicable to any property.
"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 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
5
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). 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.
"Event of Default" means any of the events specified in Section 8.
"Extension of Credit" means a Borrowing, Conversion or Continuation of
Loans.
"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,
6
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 Bank of
America on such day on such transactions as determined by Administrative Agent
(which determination shall be conclusive in the absence of manifest error).
"Five-Year Agreement" means the Five-Year Revolving Credit Agreement
dated August 24, 2000, among Borrower, Bank of America, N.A., as Administrative
Agent, Swing Line Lender and Issuing Lender 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, 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.
"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 (but
shall not exceed) 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.
7
"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.
"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, plus (b) 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).
"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, or (y)
one, two, three or six 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.
"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.
"Lead Arranger" means each of Banc of America Securities LLC and J.P.
Morgan Securities Inc., in its capacity as a joint lead arranger and joint book
manager.
"Lender" means each lender from time to time party hereto 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).
"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.
8
"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 Borrower as provided in
Section 2 (collectively, the "Loans").
"Loan Documents" means this Agreement, each Note, each Request for
Extension of Credit, each Compliance Certificate, each fee letter and each other
instrument or agreement from time to time delivered by Borrower pursuant to this
Agreement.
"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
(other than circumstances or events affecting the cable industry in general)
which (a) has or would reasonably be expected to have a material adverse effect
upon the validity or enforceability against Borrower of any Loan Document or (b)
is or would reasonably be expected to be material and adverse to the business,
assets, liabilities, results of operations or financial condition of Borrower
and its Restricted Subsidiaries, taken as a whole.
"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.
"Maturity Date" means (a) May 6, 2003 as such date may be extended
pursuant to and in accordance with Section 2.10 or (b) such earlier date upon
which the combined Commitments may be terminated in accordance with the terms of
this Agreement; provided that, if the Loans are converted to a term loan
pursuant to Section 2.10(d), from and after such conversion, "Maturity Date"
shall mean (i) the
9
second anniversary of the date on which such conversion occurs or (ii) such
earlier date upon which the combined Commitments may be terminated in accordance
with the terms of this Agreement.
"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:
Multiples in excess
Type of Action Minimum Amount thereof
- ---------------------------------------------------------------------- --------------------- -------------------------
Borrowing or prepayment of, or Conversion into, Base Rate Loans $10,000,000 $1,000,000
Borrowing, prepayment or Continuation of, or Conversion into, $10,000,000 $1,000,000
Eurodollar Rate Loans
Reduction in Commitments $25,000,000 $5,000,000
Assignments $10,000,000 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.
"Note" means a promissory note made by Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit C
(collectively, the "Notes").
"Obligations" means all advances to, and debts, liabilities, and
obligations of, Borrower 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 Borrower.
"Outstanding Obligations" means, as of any date, and giving effect to
the making of 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
Lenders, the aggregate outstanding principal amount of all Loans, and (b) when
reference is made to one Lender, the aggregate outstanding principal amount of
all Loans made by such Lender.
"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
10
Section 4064(a) of ERISA) has made contributions at any time during the
immediately preceding five plan years.
"Prior 364-Day Agreement" means that certain 364-Day Revolving Credit
Agreement dated as of July 17, 2001, among Borrower, the lenders party thereto
and Bank of America, as administrative agent.
"Pro Rata Share" means, with respect to each Lender, the percentage
(rounded, if necessary to the ninth decimal place) of the combined Commitments
set forth opposite the name of such Lender on Schedule 2.01, as such share may
be adjusted as contemplated herein.
"Reference Banks" means Bank of America, JPMorgan Chase Bank, Citibank,
N.A. and The Bank of New York.
"Register" has the meaning set forth in Section 2.01(c).
"Request for Extension of Credit" means, unless otherwise specified
herein, a written request substantially in the form of Exhibit A.
"Required Lenders" means, as of any date of determination, (a) if the
Commitments are then in effect, 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) having in the aggregate more than 50% of the combined Commitments
(excluding the 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 (b) if the Commitments have then been terminated and there are Outstanding
Obligations, Lenders holding Outstanding Obligations aggregating more than 50%
of such Outstanding Obligations.
"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:
Applicable
Type of Action Time
(New York Time) Date of Action
- ----------------------------------------------------- -------------------- -----------------------------------------
Delivery of Request for Extension of Credit
for, or notice for:
o Borrowing or prepayment of Base Rate Loans 11:00 a.m. Same Business Day as such Borrowing or
prepayment
o Conversion into Base Rate Loans 11:00 a.m. Same Business Day as such Conversion
o Borrowing, prepayment or Continuation of, 11:00 a.m. 3 Business Days prior to such
or Conversion into, Eurodollar Rate Loans Borrowing, prepayment, Continuation or
Conversion
11
o Request to extend Maturity Date 11:00 a.m. Not more than 60 or less than 30 days
prior to Maturity Date then in effect
o Election to term out Loans 11:00 a.m. 5 Business Days prior to Maturity Date
then in effect
Voluntary reduction in or termination of Commitments 11:00 a.m. 3 Business Days prior to such reduction
or termination
Payments by Lenders or Borrower to Administrative 1:00 p.m. On date payment is due
Agent
"Responsible Officer" means the president, any vice president, the
controller, the chief financial officer, the treasurer or any assistant
treasurer of Borrower. Any document or certificate hereunder that is signed by a
Responsible Officer of Borrower shall be conclusively presumed to have been
authorized by all necessary corporate action on the part of Borrower and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
Borrower.
"Restricted Subsidiary" means each Subsidiary of Borrower that is not
an Unrestricted Subsidiary.
"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.
"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 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.
"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,
12
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).
"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 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.
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
13
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 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
14
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 Commitments.
(a) Subject to the terms and conditions set forth in this
Agreement, each Lender severally agrees to make, Convert and Continue Loans in
Dollars until, but not including, the Maturity Date in such amounts as Borrower
may from time to time request; provided, however, that (i) the Outstanding
Obligations of each Lender shall not exceed such Lender's Commitment at any
time, and (ii) the Outstanding Obligations of all Lenders shall not exceed the
combined Commitments at any time. This is a revolving credit and, subject to the
foregoing and the other terms and conditions hereof (including Section 2.10(d)),
Borrower may borrow, Convert, Continue, prepay and reborrow Loans as set forth
herein without premium or penalty.
(b) Upon the request of any Lender made through Administrative
Agent, a Lender's Loans may be evidenced by a Note, instead of or in addition to
its loan accounts or records. Each such Lender may attach schedules to its Note
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 Borrower to pay any amount
owing with respect to the Obligations.
(c) (i) 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
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 agent for 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).
(ii) 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 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.
(iii) Each Lender shall record on its internal loan accounts or
records (and may record on the Note 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.
15
(iv) Borrower, 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.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Borrower may irrevocably request a Borrowing, 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 Borrowings,
Conversions and Continuations 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 Lender by Requisite Notice of
its Pro Rata Share thereof. In the case of a Borrowing of Loans, each Lender
shall make the funds for its 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 for Extension of Credit. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (if
applicable to such Extension of Credit) (and, if the initial Extension of Credit
hereunder, Section 4.01), all funds so received shall be made available to
Borrower in like funds received. Administrative Agent shall promptly notify
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
Borrower and Lenders of any change in Bank of America's prime rate used in
determining the Base Rate promptly following the public announcement of such
change.
(c) Unless Borrower pays 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, the 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.
(d) The failure of any Lender to make any Loan on any date shall
not relieve any other Lender of any obligation to make a Loan on such date, but
no Lender shall be responsible for the failure of any other Lender to so make
its Loan.
2.03 Prepayments.
(a) Upon Requisite Notice to Administrative Agent not later than
the Requisite Time therefor, Borrower may at any time and from time to time
voluntarily prepay Loans in part in the Minimum Amount therefor or in full
without premium or penalty. Administrative Agent will promptly notify each
Lender thereof and of such Lender's Pro Rata Share 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.
16
(b) If for any reason the amount of the Outstanding Obligations
exceeds the combined Commitments from time to time in effect, Borrower shall
immediately prepay Loans in an aggregate amount equal to such excess.
2.04 Reduction or Termination of Commitments. Upon Requisite Notice to
Administrative Agent not later than the Requisite Time therefor, Borrower may at
any time and from time to time, without premium or penalty, permanently and
irrevocably reduce the Commitments in a Minimum Amount therefor to an amount not
less than the Outstanding Obligations at such time or terminate the Commitments.
Any such reduction or termination shall be accompanied by payment of all accrued
and unpaid facility 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 by an amount equal to such Lender's Pro Rata Share
times the amount of such reduction.
2.05 Principal and Interest.
(a) Borrower hereby promises to pay the outstanding principal
amount of each Loan on the Maturity Date.
(b) Subject to subsection (c) below, and unless otherwise
specified herein, Borrower hereby promises to pay interest on the unpaid
principal amount of each Loan (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, to the extent applicable in each case,
the Applicable Amount for such type of Loan.
(c) 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, Borrower hereby promises to pay interest on the unpaid principal
amount of each Loan (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 Borrower under
any Loan Document is not paid when due (without regard to any applicable grace
periods), 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.
On any Business Day, 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.
2.06 Fees.
(a) Facility Fee. Borrower shall pay to Administrative Agent for
the account of each Lender pro rata according to its Pro Rata Share a facility
fee equal to the Applicable Amount times the actual daily amount of its
Commitment, regardless of usage. The facility fee shall accrue at all times from
the Closing Date until the Maturity 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
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quarter that such Applicable Amount was in effect. The facility fee shall accrue
at all times, including at any time during which one or more conditions in
Section 4 are not met.
(b) Utilization Fee. Borrower shall pay to Administrative Agent
for the account of each Lender pro rata according to its Pro Rata Share a
utilization fee equal to the Applicable Amount times the outstanding principal
amount of Loans, for each day that the sum of (i) the Outstanding Obligations on
such day plus (ii) the "Outstanding Obligations," as such term is defined in the
Five-Year Agreement, on such day exceeds 33% of the sum of (x) the combined
Commitments on such day plus (y) the combined "Commitments," as such term is
defined in the Five-Year Agreement, 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.
(c) Agency Fee. Borrower shall pay to Administrative Agent an
agency fee in such amounts and at such times as set forth in a separate letter
agreement between Borrower and Administrative Agent. The agency fee is for the
services to be performed by Administrative Agent in acting as Administrative
Agent and is fully earned on the date paid. The agency fee paid to
Administrative Agent is solely for its own account and is nonrefundable.
(d) Structuring Fee. On the Closing Date, Borrower shall pay to
each Lead Arranger a structuring fee in the amount set forth in a separate
letter agreement among Borrower, each Lead Arranger, Bank of America and
JPMorgan Chase Bank. Such structuring fee is for the services of each Lead
Arranger in structuring the credit facilities under this Agreement and is fully
earned on the date paid. The structuring fee paid to each Lead Arranger is
solely for its own account and is nonrefundable.
(e) Lenders' Upfront Fees. On the Closing Date, Borrower shall
pay to Administrative Agent, for the respective accounts of Lenders, upfront
fees in the amounts set forth in a separate letter agreement among Borrower,
each Lead Arranger, Bank of America, and JPMorgan Chase Bank. Such upfront fees
are for the credit facility committed by Lenders under this Agreement and are
fully earned on the date paid. The upfront fees paid to Lenders are solely for
their own account and are nonrefundable.
2.07 Computation of Interest and Fees. Computation of interest on Base
Rate Loans when the Base Rate is determined by Bank of America'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.
2.08 Making Payments.
(a) Except as otherwise provided herein, all payments by 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 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 2.08(a) available in like funds received as follows: (i)
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if payable to Borrower, by crediting a deposit account designated from time to
time by 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 Lenders making such funds available, without interest.
(c) Subject to the definition of "Interest Period," if any
payment to be made by 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 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 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 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 Lender does not pay such corresponding amount upon
Administrative Agent's demand therefor, Administrative Agent promptly shall
notify Borrower, and 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 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 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 Borrower may have against any Lender as a result of any
default by such Lender hereunder.
(iii) If Administrative Agent or any Lender is required at any
time to return to 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 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.
2.09 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.
2.10 Extension of Maturity Date.
(a) Not earlier or later than the Requisite Time therefor,
Borrower may, upon Requisite Notice to Administrative Agent (who shall promptly
notify Lenders), request an extension of the Maturity Date then in effect (the
"Extension Request"). Within 20 days of delivery of such notice but not earlier
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than 30 days prior to the Maturity Date then in effect, each Lender shall notify
Administrative Agent by Requisite Notice whether or not it consents to such
extension. Any Lender not responding within the above time period shall be
deemed to have not consented to such extension. Administrative Agent shall
promptly notify Borrower of Lenders' responses and the aggregate amount of the
Commitments of Rejecting Lenders (the "Rejected Amount"). If the Maturity Date
is extended as provided in Section 2.10(b) and if any Lender (individually, a
"Rejecting Lender" and collectively, "Rejecting Lenders") declines, or is deemed
to have declined, to consent to such extension, Borrower shall cause each
Rejecting Lender to be removed and/or replaced as a Lender no later than the
Maturity Date then in effect pursuant to Section 10.21.
(b) The Maturity Date then in effect shall be extended only if
Lenders ("Accepting Lenders") holding more than 50% of the combined Commitments
(the amount of which shall be calculated prior to giving effect to any removals
or replacements of Rejecting Lenders) have consented thereto. If so extended,
the Maturity Date then in effect shall be extended to a date 364 days from the
Maturity Date then in effect, effective as of the Maturity Date then in effect
(the "Extension Effective Date"). Administrative Agent shall promptly confirm in
writing to Lenders and Borrower such extension and the Extension Effective Date.
As a condition precedent to such extension, Borrower shall deliver to
Administrative Agent a certificate dated as of the Extension Effective Date (in
sufficient copies for each Accepting Lender) signed by a Responsible Officer of
Borrower (i) certifying and attaching the resolutions adopted by Borrower
approving or consenting to such extension and (ii) certifying that, before and
after giving effect to such extension, no Default or Event of Default exists.
Administrative Agent shall distribute an amended Schedule 2.01 (which shall be
deemed incorporated into this Agreement) to reflect any changes in Lenders and
their Commitments.
(c) If the Maturity Date then in effect is extended pursuant to
Section 2.10(b), Borrower shall have the right, in consultation with and through
Administrative Agent, either prior to or within 60 days following the Extension
Effective Date, to request one or more Accepting Lenders to increase their
Commitments by an aggregate amount not to exceed the Rejected Amount. Each
Accepting Lender shall have the right, but not the obligation, to offer to
increase its Commitment by an amount up to the amount requested by Borrower,
which offer shall be made by notice from such Accepting Lender to Administrative
Agent not later than ten days after such Accepting Lender is notified of such
request by Administrative Agent, specifying the amount of the offered increase
in such Accepting Lender's Commitment. If the aggregate amount of the offered
increases in the Commitments of all Accepting Lenders does not equal the
Rejected Amount, then Borrower shall have the right, prior to or within 60 days
following the Extension Effective Date, to add one or more banks or other
financial institutions, each of which must be eligible to be an assignee under
Section 10.04, as Lenders ("Purchasing Lenders") to replace such Rejecting
Lenders, which Purchasing Lenders shall have an aggregate Commitment not greater
than the Rejected Amount less any increases in the Commitments of Accepting
Lenders.
(d) In the event the Maturity Date then in effect is not extended
pursuant to Section 2.10(b), Borrower may, upon Requisite Notice to
Administrative Agent (who shall promptly notify Lenders) not later than the
Requisite Time therefor elect to convert the outstanding principal amount of the
Loans on the Maturity Date then in effect to term loans, which term loans shall
be payable on the second anniversary of the date on which such conversion
occurs; provided that such conversion shall not occur if an Event of Default has
occurred and is continuing on the Maturity Date then in effect. From and after
such conversion, (i) such term loans shall continue to be Loans for purposes of
this Agreement, except that such term loans shall not be a revolving credit and,
if prepaid, may not be reborrowed, and (ii) the Commitment of each Lender shall
continue to be outstanding, except that immediately after such conversion, the
Commitment of each Lender shall automatically be reduced to an amount equal to
the principal amount of such term loans owing to such Lender.
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(e) This Section 2.10 shall supercede any provisions in Section
10.01 to the contrary.
SECTION 3.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by 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 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 3.01), Administrative Agent and such Lender
receive an amount equal to the sum it would have received had no such deductions
been made, (ii) Borrower shall make such deductions, (iii) 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, 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, 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 from any payment made 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 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, 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) 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 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
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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 Borrower through
Administrative Agent, the obligation of such Lender to make Eurodollar Rate
Loans shall be suspended until such Lender notifies Administrative Agent and
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, Borrower shall, upon demand from such Lender
(with a copy to Administrative Agent), prepay or Convert all Eurodollar Rate
Loans of such Lender, 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 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, 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.
(a) If any Lender determines that any Laws or changes therein
effective after the date hereof:
(i) Subject 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 change 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) Impose or modify 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) Impose 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), Borrower shall pay
to such Lender such additional amounts as will compensate such Lender for such
increased cost or reduction.
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(b) If any Lender determines that any change in or the
interpretation of any Laws effective after the date hereof have 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), Borrower shall pay to such Lender such additional amounts
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, 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 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 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
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.
(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 Borrower 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 Borrower's obligations under this Section 3 shall
survive termination of the Commitments and payment in full of all Obligations.
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SECTION 4.
CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT
4.01 Conditions Precedent to Closing Date. This Agreement shall become
effective and the Closing Date shall occur when Administrative Agent has
received all of the agreements, documents, instruments and other items described
in this Section 4.01 and the other conditions precedent set forth in this
Section 4.01 have been satisfied (and on the Closing Date, Administrative Agent
shall deliver written notice to Borrower and Lenders that such conditions
precedent have been satisfied and that the Closing Date has occurred, which
written notice shall be conclusive of such occurrence):
(a) Unless waived by all Lenders, 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
Borrower, each dated on, or in the case of third-party certificates recently
before, the Closing Date and each in form and substance satisfactory to
Administrative Agent and its legal counsel:
(i) Executed counterparts of this Agreement, sufficient in
number for distribution to Administrative Agent, Lenders and Borrower;
(ii) Notes executed by Borrower in favor of each Lender
requesting same, substantially in the form attached as Exhibit C;
(iii) Such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible Officers of
Borrower 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;
(iv) Such evidence as Administrative Agent may request to
verify that Borrower 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 in business, including certified copies of
Borrower's certificate of incorporation and bylaws and certificates of good
standing and/or qualification to engage in business;
(v) A certificate signed by a Responsible Officer of
Borrower certifying (A) that the conditions specified in Sections 4.01(c) and
(d) have been satisfied, (B) that there has been no event or circumstance since
the date of the Audited Financial Statements which has a Material Adverse
Effect, and (C) the current Debt Ratings;
(vi) An opinion of counsel to Borrower in form and substance
reasonably satisfactory to Administrative Agent; and
(vii) Such other customary certificates, documents or
opinions as Administrative Agent or Required Lenders reasonably may require.
(b) Any fees required to be paid on or before the Closing Date
shall have been paid.
(c) 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, shall be
correct in all material respects on and as of the Closing Date.
(d) No Default or Event of Default shall have occurred and be
continuing.
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(e) All consents or approvals of, filings with, and other actions
by, any Governmental Authority that are necessary or appropriate for the
execution, delivery and performance by Borrower of the Loan Documents shall have
been obtained, made or taken.
(f) Unless waived by Administrative Agent, Borrower shall have
paid all Attorney Costs of Administrative Agent to the extent invoiced prior to
or on the Closing Date.
(g) All commitments under the Prior 364-Day Agreement shall have
been terminated and all amounts owing thereunder through the date of termination
shall have been paid in full.
4.02 Conditions to all Extensions of Credit. In addition to any
applicable conditions precedent set forth elsewhere in this Section 4 or in
Section 2, the obligation of each Lender to honor any Request for Extension of
Credit (other than a Conversion or Continuation) is subject to the following
conditions precedent:
(a) The representations and warranties contained in Sections
5.01, 5.02 and 5.03 of this Agreement shall be correct in all material respects
on and as of the date of such Extension of Credit.
(b) No Default or Event of Default exists, or would result from
such Extension of Credit or the use thereof.
(c) Administrative Agent shall have timely received a Request for
Extension of Credit by Requisite Notice by the Requisite Time therefor.
(d) Such Extension of Credit shall be permitted by applicable
Laws.
Each Request for Extension of Credit by Borrower shall be deemed to be
a representation and warranty that the conditions specified in Sections 4.02(a)
and (b) have been satisfied on and as of the date of such Extension of Credit.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and Lenders
that:
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. Borrower has the
power and authority and the legal right to make, deliver and perform each Loan
Document to which it is a party and to borrow hereunder and has taken all
necessary action to authorize the Extensions of Credit on the terms and
conditions of this Agreement and to authorize the execution, delivery and
performance of this Agreement and the other Loan Documents to which it is a
party. Except for such consents,
25
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. The Loan Documents have been duly executed and
delivered by Borrower, and constitute legal, valid and binding obligations of
Borrower, enforceable against Borrower in accordance with their respective
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 Borrower
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)
Borrower's certificate of incorporation or bylaws, (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 Audited Financial 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 Borrower and its 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.
(b) Since the date of the Audited Financial Statements and to the
Closing 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
26
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) Borrower is not 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 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.
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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. Borrower will use the proceeds of Extensions of
Credit to refinance existing Indebtedness of Borrower and its Restricted
Subsidiaries or Affiliates and for working capital, capital expenditures,
commercial paper backup and other lawful corporate purposes.
5.14 Disclosure. No statement, information, report, representation, or
warranty made by Borrower in any Loan Document or furnished to Administrative
Agent or any Lender in connection with any Loan Document contains any untrue
statement of a material fact.
SECTION 6.
AFFIRMATIVE COVENANTS
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 after
the end of each fiscal year of Borrower, a consolidated balance sheet of
Borrower and its consolidated Subsidiaries as at the end of such fiscal year,
and the related consolidated statements of income and cash flows for such fiscal
year, 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; and
(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, a consolidated balance sheet of Borrower and its consolidated
Subsidiaries as at the end of such fiscal quarter, and the related consolidated
statements of income and cash flows for such fiscal quarter and for the portion
of Borrower's fiscal year then ended, 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 in accordance with GAAP, subject only
to pro forma adjustments and normal year-end audit adjustments.
28
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:
(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 (in accordance
with Section 1.07) 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.
29
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 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 Restricted and Unrestricted Subsidiaries. So long
as no Default or Event of Default exists or arises as a result thereof, 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, 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.
30
SECTION 7.
NEGATIVE COVENANTS
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 $50,000,000 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;
(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
31
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; and
(m) Liens not otherwise permitted hereby which do not secure any
Indebtedness.
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; and
(c) Other Indebtedness in an aggregate principal amount not
exceeding $750,000,000 at any time.
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 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 their
primary lines of business.
32
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 or distributions, 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 to be
less than 2.5 to 1.0; and
(b) Leverage Ratio. Borrower shall not permit the Leverage Ratio
to be greater than 5.50 to 1.0 at any time.
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) Borrower fails to pay any principal on any Outstanding
Obligation (other than fees) on the date when due; or
(b) Borrower fails to pay any interest on any Outstanding
Obligation, or any facility or utilization fees, within three 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) Borrower 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
33
(e) Any representation or warranty by Borrower in this Agreement
or any Compliance Certificate proves to have been incorrect in any material
respect when made or deemed made; or
(f) (i) Borrower (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 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 Borrower
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 or any
of its Significant Subsidiaries 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 or any of its Significant
Subsidiaries 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 or any of its Significant Subsidiaries 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.
34
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),
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 Borrower.
(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 Borrower, which are expressly waived by Borrower; and
(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 Borrower.
(c) Upon the occurrence of any Event of Default, Administrative
Agent may proceed to protect, exercise and enforce against Borrower 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 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. No application of payments will cure any Event of Default, or prevent
acceleration, or continued acceleration, of amounts payable under the Loan
Documents, or prevent the exercise, or continued exercise, of rights or remedies
of Administrative Agent and Lenders hereunder or thereunder, at Law or in
equity.
SECTION 9.
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent. Each Lender
hereby irrevocably (subject to Section 9.09) appoints, designates and authorizes
Administrative Agent to take such action on its behalf under the provisions of
this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
35
Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Loan Document,
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall Administrative Agent have or be deemed to
have any fiduciary relationship with any Lender or participant, 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. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with reference to
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
9.02 Delegation of Duties. Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees 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 agent or attorney-in-fact
that it selects in the absence of gross negligence or willful misconduct.
9.03 Liability of Administrative Agent. No Administrative Agent-Related
Person shall (i) be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein), or
(ii) be responsible in any manner to any Lender or participant for any recital,
statement, representation or warranty made by Borrower or any officer thereof
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for in,
or received by Administrative Agent under or in connection with, this Agreement
or any other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document, or
for any failure of Borrower or any other party to any Loan Document to perform
its obligations hereunder or thereunder. No Administrative Agent-Related Person
shall be under any obligation to any Lender or participant 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 Borrower or any Subsidiary or Affiliate
thereof.
9.04 Reliance by Administrative Agent.
(a) Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement 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 any Loan Document
unless it shall first receive such advice or concurrence of Required Lenders or
all Lenders as it deems appropriate and, if it so requests, it shall first be
indemnified to its satisfaction by Lenders against any and all liability and
expense which 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 or any other Loan
Document in accordance with a request or consent of Required Lenders or all
Lenders, if required hereunder, and such request and any action taken or failure
to act pursuant thereto shall be binding upon all Lenders and participants.
Where this Agreement expressly permits or prohibits an action unless Required
Lenders or all Lenders otherwise determine, and in all other instances,
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Administrative Agent may, but shall not be required to, initiate any
solicitation for the consent or a vote of Lenders.
(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,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written 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." Administrative
Agent will notify Lenders of its receipt of any such notice. Administrative
Agent shall take such action with respect to such Default or Event of Default as
may be directed by Required Lenders in accordance with Section 8; provided,
however, that unless and until Administrative Agent has received any such
direction, 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 or in the best interest of Lenders.
9.06 Credit Decision; Disclosure of Information by Administrative
Agent. Each Lender and participant acknowledges that no Administrative
Agent-Related Person has made any representation or warranty to it, and that no
act by Administrative Agent hereinafter taken, including any consent to and
acceptance of any assignment or review of the affairs of Borrower or any of its
Subsidiaries or Affiliates, shall be deemed to constitute any representation or
warranty by any Administrative Agent-Related Person to any Lender or participant
as to any matter, including whether Administrative Agent-Related Persons have
disclosed material information in their possession. Each Lender, including any
Lender by assignment, and each participant represents to Administrative Agent
that it has, independently and without reliance upon any Administrative
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of Borrower and its Subsidiaries and Affiliates, and all
applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to Borrower hereunder. Each Lender and participant also represents that
it will, independently and without reliance upon any Administrative
Agent-Related Person 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 investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of Borrower and its Subsidiaries and
Affiliates. Except for notices, reports and other documents expressly required
to be furnished to Lenders by Administrative Agent herein (which shall include
the notices, reports and other documents described in Section 6.02),
Administrative Agent shall not have any duty or responsibility to provide any
Lender or participant with any credit or other information concerning the
business, prospects, operations, property, financial and other condition or
creditworthiness of Borrower or any of its Subsidiaries or Affiliates which may
come into the possession of any Administrative Agent-Related Person.
9.07 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, Lenders shall indemnify upon
demand each Administrative Agent-Related Person (to the extent not reimbursed by
or on behalf of Borrower and without limiting the
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obligation of Borrower to do so), pro rata, and hold harmless each
Administrative Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it; provided, however, that no Lender shall be liable
for the payment to any Administrative Agent-Related Person of any portion of
such Indemnified Liabilities resulting from such Person's gross negligence or
willful misconduct; provided, however, that no action taken in accordance with
the directions of Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, each Lender shall reimburse Administrative Agent
upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by Administrative Agent in connection with
the preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Loan Document, or any document contemplated by or referred to herein,
to the extent that Administrative Agent is not reimbursed for such expenses by
or on behalf of Borrower. The undertaking in this Section shall survive the
payment of all Obligations hereunder and the resignation of Administrative
Agent.
9.08 Administrative Agent in Individual Capacity. Bank of America and
its Affiliates may make loans to, issue letters of credit for the account of,
accept deposits from, acquire equity interests in and generally engage in any
kind of banking, trust, financial advisory, underwriting or other business with
Borrower and its Subsidiaries and Affiliates as though Bank of America were not
Administrative Agent hereunder and without notice to or consent of Lenders.
Lenders and participants acknowledge that, pursuant to such activities, Bank of
America or its Affiliates may receive information regarding Borrower or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of Borrower or such Affiliate) and acknowledge that
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as
though it were not Administrative Agent.
9.09 Resignation by Administrative Agent. Administrative Agent may
resign as Administrative Agent upon 30 days' notice to Lenders. If
Administrative Agent resigns under this Agreement, Required Lenders shall
appoint from among Lenders a successor administrative agent for Lenders which
successor administrative agent shall be consented to by Borrower at all times
other than during the existence of an Event of Default (which approval of
Borrower shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the resignation
of Administrative Agent, Administrative Agent may appoint, after consulting with
Lenders and Borrower, a successor administrative agent from among Lenders (or,
if no Lender is willing to act as successor administrative agent, among other
commercial banks each having a combined capital and surplus of at least
$1,000,000,000), which successor administrative agent shall be consented to by
Borrower at all times other than during the existence of an Event of Default
(which approval of Borrower shall not be unreasonably withheld or delayed). Upon
the acceptance of its appointment as successor administrative agent hereunder,
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Section 9 and Sections 10.03 and
10.13 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. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which 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 perform all of the duties of
Administrative Agent hereunder until such time, if any, as Required Lenders
appoint a successor agent as provided for above.
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9.10 Other Agents. None of Lenders (other than Bank of America) identified on
the facing page or signature pages of this Agreement as having a title or role
other than as a Lender shall have any right, power, obligation, liability,
responsibility or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, none of Lenders so identified
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 Lenders
so identified 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 Borrower therefrom shall be effective unless in writing signed by
Borrower and Required Lenders and acknowledged by Administrative Agent, 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 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;
(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
Borrower to pay when due principal, interest, any facility 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 for the payment of any facility 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 the Pro Rata Share of such Lender (except as
contemplated hereby);
(e) Amend or waive the definition of "Required Lenders" or the
provisions of this Section 10.01 or 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 Administrative Agent in addition to Required Lenders or
each affected Lender, as the case may be, affect the rights or duties of
Administrative Agent, and (ii) any fee letters may be amended, or rights or
privileges thereunder waived, in a writing executed by the parties thereto. 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.
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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 Effective on earlier of actual receipt, and:
---------------------------------- -------------------------------------------------------------
Mail 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 Borrower, shall be made by a
Responsible Officer of 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
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 Borrower.
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 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
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purportedly given by or on behalf of 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 Lead Arrangers 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 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 Borrower,
Administrative Agent, Lenders and their respective successors and assigns,
except that 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 its 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 Closing Date, each Lender may
assign to one or more banks or other financial institutions (with any such bank
or other financial institution, other than 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 Commitment and/or Extensions of Credit;
provided that (i) such assignment, if not to a Lender or an Affiliate of the
assigning 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 the
assigning Lender or to another Lender or (B) of the entire remaining Commitment
of the assigning Lender, the portion of the Commitment assigned shall not be
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. 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,
Borrower shall
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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.
(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 following the effective date
thereof, provide to Borrower and Lenders a revised Schedule 2.01 giving effect
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 Commitment and/or Extensions of
Credit; 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
Maturity 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 Borrower, any such notice
being waived by Borrower to the fullest extent permitted by law, to proceed
directly, by right of set-off, banker's lien or otherwise, against any assets of
Borrower 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 Borrower) 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 Borrower and Administrative
Agent after any
42
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.
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 Borrower or otherwise, receives payment of the Obligations held by it of
a type owed ratably to the various Lenders that is ratably more than any other
Lender receives in payment of those 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 Borrower or any
Person claiming through or succeeding to the rights of 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. 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 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 Administrative Agent 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-
43
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 unpaid principal,
refunded to 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 Pro Rata Share 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, Borrower agrees 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 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 Borrower,
44
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 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 Effective Date (as defined in the Amended and Restated Agreement
described in Section 10.25(a)), as against any AT&T Broadband Party, in each
case by or on behalf of Administrative Agent, any Lender, Borrower or any
Guarantor (as defined in such Amended and Restated Agreement), 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 AT&T Broadband Corp., a Delaware
corporation, 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 Borrower 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
45
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 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
Borrower, Administrative Agent and Lenders in connection with the Extensions of
Credit, and is made for the sole benefit of Borrower, Administrative Agent and
Lenders, and 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 10.17 and who have been advised of and acknowledge their
obligation to keep such information confidential in accordance with this Section
10.17, (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
46
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.
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 Closing Date 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 1001 or 4224,
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 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 (or, in the case of Section 2.10(a),
obligation) to remove or replace a Lender as a party to this Agreement, Borrower
may (or, in the case of Section 2.10(a), shall), upon notice to such Lender and
47
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 permitted assignees
procured by Borrower. Borrower shall, in the case of a termination of such
Lender's Commitment pursuant to clause (i) preceding, (y) pay in full all
principal, interest, fees and other amounts owing to such Lender through the
date of termination (including any amounts payable pursuant to Section 3), and
(z) release such Lender from its obligations under the Loan Documents from and
after the date of termination. Any such Lender whose Commitment is being
assigned shall execute and deliver an Assignment and Acceptance covering such
Lender's Commitment. 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). 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.
(a) THE LOAN DOCUMENTS HAVE BEEN ENTERED INTO PURSUANT TO SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND THE LOAN DOCUMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE;
PROVIDED THAT ADMINISTRATIVE AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK
SITTING IN THE BOROUGH OF MANHATTAN OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT,
BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS
PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW. BORROWER,
ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES, TO THE EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION, INCLUDING ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED THERETO.
BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY THE MAILING OF COPIES
THEREOF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE PREPAID, TO ITS
ADDRESS SPECIFIED HEREIN, OR BY ANY OTHER MEANS PERMITTED BY THE LAWS OF THE
STATE OF NEW YORK.
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 HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND,
48
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.
10.24 Waiver of Notice by Requisite Time. By its execution hereof, each
Lender that is also a "Lender," under and as defined in the Prior 364-Day
Agreement, hereby waives three Business Days' prior notice of the termination of
the "combined Commitments," as defined in the Prior 364-Day Agreement, and
agrees that such notice shall be effective on and as of the date it is given.
10.25 Amendment and Restatement on the Effective Date.
(a) By its execution hereof, Borrower, Parent, each Lender and
Administrative Agent agree that, (i) effective on the Effective Date (as defined
in the Amended and Restated Agreement), (ii) subject to the satisfaction or
waiver of the conditions precedent set forth in Section 10.25(b), and (iii)
without any further action by Borrower, Parent, any Lender or Administrative
Agent, this Agreement shall be amended and, as so amended, shall be restated to
read in its entirety as set forth in Annex I hereto (the "Amended and Restated
Agreement"). Unless otherwise defined in this Section 10.25, each defined term
used in this Section 10.25 has the meaning given such term in the Amended and
Restated Agreement.
(b) The amendment and restatement of this Agreement pursuant to
Section 10.25(a) is subject to the satisfaction, on or before March 31, 2003 of
the following conditions precedent:
(i) Unless waived by all Lenders, receipt by 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, each 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:
(A) Executed counterparts of the Guarantee Agreement,
executed and delivered by each Guarantor;
(B) Such certificates of resolution or other action,
incumbency certificates and/or other certificates of Responsible Officers of
each Guarantor as Administrative Agent may request to establish the identities
of and verify the authority and capacity of each Responsible Officer of each
Guarantor authorized to act as a Responsible Officer of each Guarantor;
(C) Such evidence as Administrative Agent may request
to verify that each Guarantor 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 in business, including certified copies
of its organizational documents and certificates of good standing and/or
qualification to engage in business;
(D) A certificate signed by a Responsible Officer of
Borrower certifying (x) that the conditions specified in Sections 10.25(b)(viii)
and 10.25(b)(ix) have been satisfied, (y) that there has been no event or
circumstance since December 31, 2001 that has a Material Adverse Effect, and (z)
as to the Debt Ratings of Parent as of the Effective Date;
(E) An opinion of counsel to the Loan Parties with
respect to such matters as Administrative Agent may reasonably request; and
49
(F) Such other customary certificates, documents or
opinions as Administrative Agent or Required Lenders may reasonably require.
(ii) Prior to or substantially simultaneously with such
amendment and restatement, Comcast Corporation and Broadband shall have merged
into separate, wholly-owned subsidiaries of Parent in accordance with the terms
of the Merger Agreement, the other Transactions contemplated by the Merger
Agreement 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 Lenders.
(iii) All material governmental and third party approvals
necessary in connection with the Transactions and the financing thereof 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 thereof.
(iv) Lenders shall have received the Reference Statements.
(v) Borrower shall have delivered a satisfactory pro forma
consolidated balance sheet of (i) Parent and its Subsidiaries and (ii) the
Restricted Group, in each case as at the date of the most recent consolidated
balance sheet of Borrower included in the Reference Statements, adjusted to give
effect to the consummation of the Transactions and the financing thereof as if
such transactions had occurred on such date.
(vi) The organizational and capital structure of Parent and
its Subsidiaries, including the liabilities of the Subsidiaries of Parent, shall
be substantially as described in the Confidential Information Memorandum dated
March, 2002.
(vii) Parent's Debt Rating, after giving effect to the
consummation of the Transactions and the financing thereof, shall be BBB- or
better by S&P and Baa3 or better by Moody's.
(viii) The representations and warranties made by Parent in
the Amended and Restated Agreement, or which are contained in any certificate,
document or financial or other statement furnished at any time under or in
connection with the Amended and Restated Agreement, shall be correct in all
material respects on and as of the Effective Date.
(ix) No Default or Event of Default shall have occurred and
be continuing on the Effective Date.
(x) 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.
(xi) The Effective Date (as defined in the Parent Revolving
and Term Credit Agreement) shall have occurred.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGE FOLLOWS.]
50
Signature Page to that certain 364-Day Revolving Credit Agreement dated
as of the date first set forth above, among Comcast Cable Communications, Inc.,
as Borrower, AT&T Comcast Corporation, as Parent, each Lender, and Bank of
America, N.A., as Administrative Agent.
COMCAST CABLE COMMUNICATIONS, INC., as Borrower BARCLAYS BANK PLC, as a Lender
By: /s/ Kenneth Mikalauskas By: /s/ Timothy C. Harrington
--------------------------------------------------------- ---------------------------------------------------------
Kenneth Mikalauskas,Vice President-Finance Timothy C. Harrington, Director
AT&T COMCAST CORPORATION, DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender
as Parent
By: /s/ William W. McGinty
By: /s/ Arthur R. Block ---------------------------------------------------------
--------------------------------------------------------- William W. McGinty, Director
Arthur R. Block, Senior Vice President
By: /s/ Christopher S. Hall
BANK OF AMERICA, N.A., as Administrative Agent and as a Lender ---------------------------------------------------------
Christopher S. Hall, Managing Director
By: /s/ Todd Shipley
--------------------------------------------------------- CITIBANK, N.A., as a Lender
Todd Shipley, Managing Director
By: /s/ Carolyn A. Kee
JPMORGAN CHASE BANK, as a Lender ---------------------------------------------------------
Carolyn A. Kee, Vice President
By: /s/ Tracey Navin Ewing
--------------------------------------------------------- WACHOVIA BANK, NATIONAL ASSOCIATION, as a Lender
Tracey Navin Ewing, Vice President
By: /s/ John D. Brady
CREDIT SUISSE FIRST BOSTON, as a Lender ---------------------------------------------------------
John D. Brady, Director
By: /s/ Paul J. Corona
--------------------------------------------------------- MIZUHO CORPORATE BANK LTD., as a Lender
Paul J. Corona, Director
By: /s/ Raymond Ventura
By: /s/ Cassandra Droogan ---------------------------------------------------------
--------------------------------------------------------- Raymond Ventura, Senior Vice President
Cassandra Droogan, Associate
FLEET NATIONAL BANK, as a Lender
By: /s/ Michael Elwell
---------------------------------------------------------
Michael Elwell, Vice President
Signature Page to that certain 364-Day Revolving Credit Agreement dated
as of the date first set forth above, among Comcast Cable Communications, Inc.,
as Borrower, AT&T Comcast Corporation, as Parent, each Lender, and Bank of
America, N.A., as Administrative Agent.
ABN AMRO BANK, N.V., as a Lender BAYERISCHE LANDESBANK GIROZENTRALE,
CAYMAN ISLANDS BRANCH, as a Lender
By: /s/ David Carrington
--------------------------------------------------------- By: /s/ Peter Obermann
David Carrington, Group Vice President ---------------------------------------------------------
Peter Obermann, Senior Vice President
By: /s/ Thomas Cha
--------------------------------------------------------- By: /s/ Matthew DeCarlo
Thomas Cha, Assistant Vice President ---------------------------------------------------------
Matthew DeCarlo, Second Vice President
THE BANK OF NOVA SCOTIA, as a Lender
LLOYDS TSB BANK PLC, as a Lender
By: /s/ Brenda S. Insull
--------------------------------------------------------- By: /s/ Windsor R. Davies
Brenda S. Insull, Authorized Signatory ---------------------------------------------------------
Windsor R. Davies, Director, Corporate Banking, USA
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, as a Lender By: /s/ Lisa Maguire
---------------------------------------------------------
Lisa Maguire, Assistant Vice President
By: /s/ Lucie Guernsey
---------------------------------------------------------
Lucie Guernsey, Director MERRILL LYNCH CAPITAL CORPORATION, as a Lender
By: /s/ Lisa Walker By: /s/ Zoran Fotak
--------------------------------------------------------- ---------------------------------------------------------
Lisa Walker, Associate Director Zoran Fotak, Managing Director
SUNTRUST BANK, as a Lender MORGAN STANLEY SENIOR FUNDING, INC., as a Lender
By: /s/ J. Eric Millham By: /s/ Lucy Galbraith
--------------------------------------------------------- ---------------------------------------------------------
J. Eric Millham, Director Lucy Galbraith, Vice President
BANK ONE, NA, as a Lender U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Curtis R. Worthington By: /s/ Jaycee Earll
--------------------------------------------------------- ---------------------------------------------------------
Curtis R. Worthington, Associate Director Jaycee Earll, Assistant Vice President
Signature Page to that certain 364-Day Revolving Credit Agreement dated
as of the date first set forth above, among Comcast Cable Communications, Inc.,
as Borrower, AT&T Comcast Corporation, as Parent, each Lender, and Bank of
America, N.A., as Administrative Agent.
FIRST TENNESSEE BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ James H. Atchley
---------------------------------------------------------
James H. Atchley, Senior Vice President
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
============================================================================================
Commitment Pro Rata Share
- --------------------------------------------------------------------------------------------
Bank of America, N.A. $ 225,000,000.00 11.688311689%
- --------------------------------------------------------------------------------------------
JPMorgan Chase Bank $ 225,000,000.00 11.688311689%
- --------------------------------------------------------------------------------------------
Credit Suisse First Boston $ 187,500,000.00 9.740259740%
- --------------------------------------------------------------------------------------------
Barclays Bank PLC $ 175,000,000.00 9.090909091%
- --------------------------------------------------------------------------------------------
Deutsche Bank AG, New York $ 175,000,000.00 9.090909091%
- --------------------------------------------------------------------------------------------
Citibank, N.A. $ 155,000,000.00 8.051948052%
- --------------------------------------------------------------------------------------------
Wachovia Bank, National Association $ 115,000,000.00 5.974025974%
- --------------------------------------------------------------------------------------------
Mizuho Corporate Bank, Ltd. $ 100,000,000.00 5.194805195%
- --------------------------------------------------------------------------------------------
Fleet National Bank $ 90,000,000.00 4.675324675%
- --------------------------------------------------------------------------------------------
ABN AMRO Bank N.V. $ 75,000,000.00 3.896103896%
- --------------------------------------------------------------------------------------------
The Bank of Nova Scotia $ 75,000,000.00 3.896103896%
- --------------------------------------------------------------------------------------------
Westdeutsche Landesbank Girozentrale, NY $ 75,000,000.00 3.896103896%
- --------------------------------------------------------------------------------------------
SunTrust Bank $ 50,000,000.00 2.597402597%
- --------------------------------------------------------------------------------------------
Bank One, NA $ 37,500,000.00 1.948051948%
- --------------------------------------------------------------------------------------------
Bayerische Landesbank $ 37,500,000.00 1.948051948%
- --------------------------------------------------------------------------------------------
Lloyds TSB Bank plc $ 37,500,000.00 1.948051948%
- --------------------------------------------------------------------------------------------
Merrill Lynch Capital Corporation $ 37,500,000.00 1.948051948%
- --------------------------------------------------------------------------------------------
Morgan Stanley Senior Funding, Inc. $ 37,500,000.00 1.948051948%
- --------------------------------------------------------------------------------------------
U.S. Bank National Association $ 12,500,000.00 0.649350649%
- --------------------------------------------------------------------------------------------
First Tennessee Bank National Association $ 2,500,000.00 0.129870130%
- --------------------------------------------------------------------------------------------
Total $ 1,925,000,000.00 100.000000000%
============================================================================================
1
SCHEDULE 7.01
EXISTING LIENS
- -----------------------------------------------------------------------------
Outstanding Amount
Secured
at December 31, 2001
- -----------------------------------------------------------------------------
Prime Cable Automobile Leases $ 1,287,228
- -----------------------------------------------------------------------------
Holdings - P.C. Building Leases 529,524
- -----------------------------------------------------------------------------
CN8 Capital Leases 127,187
- -----------------------------------------------------------------------------
Southeast Region Capital Leases 22,682
- -----------------------------------------------------------------------------
SCH Holdings Capital Leases 2,976
- -----------------------------------------------------------------------------
Jones Car Leases (Various Subs) 4,253,436
- -----------------------------------------------------------------------------
Jones West Chester Data Center Mortgage 2,144,442
- -----------------------------------------------------------------------------
Lenfest AUL Loan 2,491,147
- -----------------------------------------------------------------------------
Lenfest PIDA Loan 756,758
- -----------------------------------------------------------------------------
Lenfest Capital Leases (Various Subs) 254,419
- -----------------------------------------------------------------------------
TOTAL COMCAST CABLE OUTSTANDING LIENS $ 11,869,799
- -----------------------------------------------------------------------------
1
SCHEDULE 7.02
EXISTING SUBSIDIARY INDEBTEDNESS
- ------------------------------------------------------------------------------------------------------
Outstanding Amount
at December 31, 2001
- ------------------------------------------------------------------------------------------------------
Comcast Cable Commercial Paper $ 397,347,958
- ------------------------------------------------------------------------------------------------------
Comcast Cable Five-Year Revolver 850,000,000
- ------------------------------------------------------------------------------------------------------
Comcast Cable 8 1/8% Sr. Notes Due 2004 320,367,497
- ------------------------------------------------------------------------------------------------------
Comcast Cable 8 3/8% Sr. Notes Due 2007 597,514,452
- ------------------------------------------------------------------------------------------------------
Comcast Cable 8 7/8% Sr. Notes Due 2017 545,914,708
- ------------------------------------------------------------------------------------------------------
Comcast Cable 8 1/2% Sr. Notes Due 2027 249,590,672
- ------------------------------------------------------------------------------------------------------
Comcast Cable 6.20% Sr. Notes Due 2008 798,409,153
- ------------------------------------------------------------------------------------------------------
Comcast Cable 6 3/8% Sr. Notes Due 2006 511,344,591
- ------------------------------------------------------------------------------------------------------
Comcast Cable 6 3/4% Sr. Notes Due 2011 993,077,752
- ------------------------------------------------------------------------------------------------------
Comcast Cable 6 7/8% Sr. Notes Due 2009 751,538,963
- ------------------------------------------------------------------------------------------------------
Comcast Cable 7 1/8% Sr. Notes Due 2013 748,390,700
- ------------------------------------------------------------------------------------------------------
Jones 9 5/8% Sr. Notes Due 2002 200,000,000
- ------------------------------------------------------------------------------------------------------
Jones 8 7/8% Sr. Notes Due 2007 249,116,468
- ------------------------------------------------------------------------------------------------------
Jones 7 5/8% Sr. Notes Due 2008 197,381,520
- ------------------------------------------------------------------------------------------------------
Lenfest 8 3/8% Sr. Notes Due 2005 696,955,569
- ------------------------------------------------------------------------------------------------------
Lenfest 10 1/2% Sr. Sub. Notes Due 2006 132,997,223
- ------------------------------------------------------------------------------------------------------
Lenfest 7 5/8% Sr. Notes Due 2008 156,419,207
- ------------------------------------------------------------------------------------------------------
Lenfest 8 1/4% Sr. Sub. Notes Due 2008 154,345,046
- ------------------------------------------------------------------------------------------------------
Other Comcast Cable Subsidiary Indebtedness (Less than $10MM on an
individual basis.) 11,869,799
- ------------------------------------------------------------------------------------------------------
Comcast Cable Letters of Credit 52,779,340
- ------------------------------------------------------------------------------------------------------
TOTAL COMCAST CABLE SUBSIDIARY INDEBTEDNESS $ 8,615,360,618
- ------------------------------------------------------------------------------------------------------
1
EXHIBIT A
FORM OF REQUEST FOR EXTENSION OF CREDIT
Date: _____________, 200__
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain 364-Day Revolving Credit Agreement
dated as of May 7, 2002, among Comcast Cable Communications, Inc., a Delaware
corporation ("Borrower"), AT&T Comcast Corporation, Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined).
The undersigned Responsible Officer hereby requests (select one):
[__] A Borrowing of Loans [__] A Conversion or Continuation of Loans
1. On (a Business Day).
---------------------------------------
2. In the amount of $_______________________.
3. Comprised of .
----------------------------------------
[type of Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of __ months.
The foregoing request complies with the requirements of Sections 2.01
and 2.02 of the Agreement. If the requested Extension of Credit is a Borrowing
of Loans, the undersigned hereby certifies that the following statements will be
true on the date of the requested Extension of Credit:
(a) The representations and warranties of Borrower contained
in Sections 5.01, 5.02 and 5.03 of the Agreement are correct in all
material respects; and
(b) no Default or Event of Default exists or will result from
the requested Extension of Credit.
COMCAST CABLE COMMUNICATIONS, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
1
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _____________, 200__
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain 364-Day Revolving Credit Agreement dated as of
May 7, 2002, among Comcast Cable Communications, Inc., a Delaware corporation
("Borrower"), AT&T Comcast Corporation, Lenders from time to time party thereto,
and Bank of America, N.A., as Administrative Agent (as amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined).
The undersigned Responsible Officer hereby certifies as of the date
hereof that he is the ____________ of Borrower, and that, as such, he is
authorized to execute and deliver this Certificate to Administrative Agent on
the behalf of Borrower, and that:
[Use following for fiscal year-end financial statements]
1. Attached hereto as Annex 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
Borrower ended as of the above date, together with the report and opinion of
independent certified public accountants required by such section.
[Use following for fiscal quarter-end financial statements]
1. Attached hereto as Annex 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of Borrower
ended as of the above date. Such financial statements fairly present the
financial condition, results of operations and changes in financial position of
Borrower and its Subsidiaries in accordance with GAAP as at such date and for
such periods, subject only to pro forma adjustments and normal year-end audit
adjustments and the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his supervision, a
detailed review of the transactions and conditions (financial or otherwise) of
Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of Borrower during such fiscal period has
been made under my supervision with a view to determining whether during such
fiscal period Borrower performed and observed its Obligations under the Loan
Documents, and
[select one:]
[to the best knowledge of the undersigned during such fiscal period,
Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it.]
--or--
1
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default or Event of Default
and its nature and status:]
4. The financial covenant analyses and information set forth on Annex 2
attached hereto are true and accurate. Such analyses and information set forth
the necessary adjustments to exclude the Indebtedness, EBITDA and Interest
Expense attributed to Unrestricted Subsidiaries and give pro forma effect (in
accordance with Section 1.07 of the Agreement) to Material Acquisitions and
Material Dispositions made during the period covered thereby.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
_________, 200_.
COMCAST CABLE COMMUNICATIONS, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
2
ANNEX 1
FINANCIAL STATEMENTS
3
For the Quarter/Year ended ___________________, 200_ ("Statement Date")
ANNEX 2
to the Compliance Certificate
($ in 000's)
- -------------------------------------------------------------------------------------------------------------------
I. Section 7.07(a) - Interest Coverage Ratio.
- -------------------------------------------------------------------------------------------------------------------
A. Consolidated EBITDA for two consecutive fiscal quarters ending on Statement Date
("Subject Two Quarters"):
- -------------------------------------------------------------------------------------------------------------------
1. Consolidated net income for Subject Two Quarters (excluding gains and losses $
from unusual or extraordinary items and interest income):
- -------------------------------------------------------------------------------------------------------------------
2. Consolidated Interest Expense for Subject Two Quarters: $
- -------------------------------------------------------------------------------------------------------------------
3. Provision for income or gross receipts taxes for Subject Two Quarters: $
- -------------------------------------------------------------------------------------------------------------------
4. Depreciation expense for Subject Two Quarters: $
- -------------------------------------------------------------------------------------------------------------------
5. Amortization expense for Subject Two Quarters: $
- -------------------------------------------------------------------------------------------------------------------
6. Other non-cash charges to income for Subject Two Quarters: $
- -------------------------------------------------------------------------------------------------------------------
7. Management and programming fees paid to Comcast Corporation or any of its $
wholly-owned Subsidiaries other than Borrower or any Restricted Subsidiary
during Subject Two Quarters:
- -------------------------------------------------------------------------------------------------------------------
8. Cash payments made in Subject Two Quarters in respect of non-cash charges $
accrued during a prior period:
- -------------------------------------------------------------------------------------------------------------------
9. Consolidated EBITDA for Subject Two Quarters (Lines I.A.1 + 2 + 3 + 4 + 5 + $
6 + 7 - 8):
- -------------------------------------------------------------------------------------------------------------------
B. EBITDA of Unrestricted Subsidiaries for Subject Two Quarters:
- -------------------------------------------------------------------------------------------------------------------
1. Net income of Unrestricted Subsidiaries for Subject Two
Quarters (excluding $ gains and losses from unusual or
extraordinary items and interest income):
- -------------------------------------------------------------------------------------------------------------------
2. Interest Expense of Unrestricted Subsidiaries for Subject Two Quarters: $
- -------------------------------------------------------------------------------------------------------------------
3. Provision for income or gross receipts taxes of Unrestricted Subsidiaries $
for Subject Two Quarters:
- -------------------------------------------------------------------------------------------------------------------
4. Depreciation expense of Unrestricted Subsidiaries for Subject Two Quarters: $
- -------------------------------------------------------------------------------------------------------------------
5. Amortization expense of Unrestricted Subsidiaries for Subject Two Quarters: $
- -------------------------------------------------------------------------------------------------------------------
6. Other non-cash charges to income of Unrestricted Subsidiaries for Subject $
Two Quarters:
- -------------------------------------------------------------------------------------------------------------------
7. Management and programming fees paid by Unrestricted
Subsidiaries to Comcast $ Corporation or any of its
wholly-owned Subsidiaries other than Borrower or a Restricted
Subsidiary during Subject Two Quarters:
- -------------------------------------------------------------------------------------------------------------------
8. Cash payments made by Unrestricted Subsidiaries in Subject Two Quarters in $
respect of non-cash charges accrued during a prior period:
- -------------------------------------------------------------------------------------------------------------------
9. EBITDA of Unrestricted Subsidiaries for Subject Two Quarters (Lines I.B.1 + $
2 + 3 + 4 + 5 + 6 + 7 - 8):
- -------------------------------------------------------------------------------------------------------------------
C. EBITDA of Borrower and Restricted Subsidiaries for Subject Two Quarters ((Line $
I.A.9) - (Line I.B.9)):
- -------------------------------------------------------------------------------------------------------------------
4
- -------------------------------------------------------------------------------------------------------------------
D. Annualized EBITDA of Borrower and Restricted Subsidiaries (Line I.C times two $
(2)):
- -------------------------------------------------------------------------------------------------------------------
E. Consolidated Interest Expense for Subject Two Quarters: $
- -------------------------------------------------------------------------------------------------------------------
F. Interest Expense of Unrestricted Subsidiaries for Subject Two Quarters: $
- -------------------------------------------------------------------------------------------------------------------
G. Interest Expense of Borrower and Restricted Subsidiaries for Subject Two $
Quarters ((Line I.E) - (Line I.F)):
- -------------------------------------------------------------------------------------------------------------------
H. Annualized Interest Expense of Borrower and Restricted Subsidiaries (Line I.G $
times two (2)):
- -------------------------------------------------------------------------------------------------------------------
I. Interest Coverage Ratio ((Line I.D) ) (Line I.H)): _____ to 1
Minimum required: 2.50 to 1
- -------------------------------------------------------------------------------------------------------------------
II. Section 7.07(b) - Leverage Ratio.
- -------------------------------------------------------------------------------------------------------------------
A. Consolidated Indebtedness at Statement Date: $
- -------------------------------------------------------------------------------------------------------------------
B. Indebtedness of Unrestricted Subsidiaries at Statement Date: $
- -------------------------------------------------------------------------------------------------------------------
C. Consolidated Total Indebtedness at Statement Date: (Line II.A) - (Line II.B) $
- -------------------------------------------------------------------------------------------------------------------
D. Annualized EBITDA of Borrower and Restricted Subsidiaries (Line I.D): $
- -------------------------------------------------------------------------------------------------------------------
E. Leverage Ratio ((Line II.C) ) (Line II.D)): _____ to 1
- -------------------------------------------------------------------------------------------------------------------
Maximum permitted: 5.50 to 1
- -------------------------------------------------------------------------------------------------------------------
5
EXHIBIT C
FORM OF NOTE
________________, 200__
FOR VALUE RECEIVED, the undersigned ("Borrower"), hereby promises to
pay to the order of ____________________ ("Lender"), on the date specified in
the Agreement referred to below, the unpaid principal amount of Loans (as
defined in the Agreement referred to below) made by Lender to Borrower under
that certain 364-Day Revolving Credit Agreement dated as of May 7, 2002, among
Borrower, AT&T Comcast Corporation, Lenders from time to time party thereto, and
Bank of America, N.A., as Administrative Agent (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined).
Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates and at such times as are specified in the
Agreement. All payments of principal and interest shall be made to
Administrative Agent at Administrative Agent's Office for the account of Lender
in immediately available funds. If any amount is not paid in full when due
hereunder, such unpaid amount shall bear interest, to be paid upon demand, from
the due date thereof until the date of actual payment (and before as well as
after judgment) at the per annum rate set forth in the Agreement.
This Note is one of the "Notes" referred to in the Agreement. Reference
is hereby made to the Agreement for rights and obligations of payment and
prepayment, events of default and the right of Administrative Agent, on behalf
of Lender, to accelerate the maturity hereof upon the occurrence of such events.
Loans made by Lender shall be evidenced by one or more loan accounts or records
maintained by Lender in the ordinary course of business. Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Loans and payments with respect thereto.
Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
Borrower agrees to pay all collection expenses, court costs and
Attorney Costs (whether or not litigation is commenced) which may be incurred by
Administrative Agent or Lender in connection with the collection or enforcement
of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
COMCAST CABLE COMMUNICATIONS, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
1
LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of Outstanding
Principal or Principal
Date Type of Loan Amount of End of Interest Paid Balance This Notation Made
Made Loan Made Interest Period This Date Date By
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2
EXHIBIT D
FORM OF ASSIGNMENT AND ACCEPTANCE
______, 200___
Reference is made to that certain 364-Day Revolving Credit Agreement
dated as of May 7, 2002, among Comcast Cable Communications, Inc., a Delaware
corporation ("Borrower"), AT&T Comcast Corporation, Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined). The assignor identified on the signature page hereto ("Assignor") and
the assignee identified on the signature page hereto ("Assignee") agree as
follows:
1. (a) Subject to Paragraph 11, effective as of the date written on
Annex 1 hereto (the "Effective Date"), Assignor irrevocably sells and assigns to
Assignee without recourse to Assignor, and Assignee hereby irrevocably purchases
and assumes from Assignor without recourse to Assignor, the interest described
on Annex 1 hereto (the "Assigned Interest") in and to Assignor's rights and
obligations under the Agreement.
(b) From and after the Effective Date, (i) Assignee shall be a party
under the Agreement and will have all the rights and obligations of a Lender for
all purposes under the Loan Documents to the extent of the Assigned Interest and
be bound by the provisions thereof, and (ii) Assignor shall relinquish its
rights and be released from its obligations under the Agreement to the extent of
the Assigned Interest. Assignor and/or Assignee, as agreed by Assignor and
Assignee, shall deliver to Administrative Agent any applicable assignment fee
required under Section 10.04(c) of the Agreement.
2. On the Effective Date, Assignee shall pay to Assignor, in
immediately available funds, an amount equal to the purchase price of the
Assigned Interest as agreed upon by Assignor and Assignee.
3. Assignor and Assignee agree that all payments of principal,
interest, fees and other amounts in respect of the Assigned Interest accruing
from and after the Effective Date shall be for the account of Assignee, and all
payments of such amounts in respect of the Assigned Interest accruing prior to
the Effective Date shall remain for the account of Assignor. Assignor and
Assignee hereby agree that if either receives any payment of such amounts which
is for the account of the other, it shall hold the same in trust for such party
and shall promptly pay the same to such party.
4. Assignor represents and warrants to Assignee that:
(a) Assignor is the legal and beneficial owner of the Assigned
Interest, and the Assigned Interest is free and clear of any adverse
claim;
(b) The Assigned Interest listed on Annex 1 accurately and
completely sets forth the amount of all Outstanding Obligations
relating to the Assigned Interest as of the Effective Date;
(c) It has the power and authority and the legal right to
make, deliver and perform, and has taken all necessary action, to
authorize the execution, delivery and performance of this Assignment
and Acceptance, and any and all other documents delivered by it in
connection herewith and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Assignment and
Acceptance and the Loan Documents, and no consent or authorization of,
1
filing with, or other act by or in respect of any Governmental
Authority, is required in connection in connection herewith or
therewith; and
(d) This Assignment and Acceptance constitutes the legal,
valid and binding obligation of Assignor.
Assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrower or the
performance by Borrower of its obligations under the Loan Documents, and assumes
no responsibility with respect to any statements, warranties or representations
made under or in connection with any Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan Document
other than as expressly set forth above.
5. Assignee represents and warrants to Assignor and Administrative
Agent that:
(a) It is eligible to purchase the Assigned Interest pursuant
to Section 10.04 of the Agreement;
(b) It has the power and authority and the legal right to
make, deliver and perform, and has taken all necessary action, to
authorize the execution, delivery and performance of this Assignment
and Acceptance, and any and all other documents delivered by it in
connection herewith and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Assignment and
Acceptance and the Loan Documents, and no consent or authorization of,
filing with, or other act by or in respect of any Governmental
Authority, is required in connection in connection herewith or
therewith;
(c) This Assignment and Acceptance constitutes the legal,
valid and binding obligation of Assignee;
(d) Under applicable Laws no tax will be required to be
withheld by Administrative Agent or Borrower with respect to any
payments to be made to Assignee hereunder or under any Loan Document,
and prior to or concurrently with Administrative Agent's receipt of
this Assignment and Acceptance, Assignee has delivered to
Administrative Agent any tax forms required by Section 10.20 of the
Agreement; and
(e) Assignee has received a copy of the Agreement, together
with copies of the most recent financial statements delivered pursuant
thereto, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance. Assignee has independently and without
reliance upon Assignor or Administrative Agent and based on such
information as Assignee has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Assignee will,
independently and without reliance upon Administrative Agent or any
Lender, and based upon such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Agreement.
6. Assignee appoints and authorizes Administrative Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
the Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to Administrative Agent by
the terms thereof, together with such powers as are incidental thereto.
7. If either Assignee or Assignor desires a Note to evidence its Loans,
it shall request Administrative Agent to procure a Note from Borrower.
2
8. Assignor and Assignee agree to execute and deliver such other
instruments, and take such other action, as either party may reasonably request
in connection with the transactions contemplated by this Assignment and
Acceptance.
9. This Assignment and Acceptance shall be binding upon and inure to
the benefit of the parties and their respective successors and assigns; provided
however, that Assignee shall not assign its rights or obligations hereunder
without the prior written consent of Assignor and any purported assignment,
absent such consent, shall be void.
10. This Assignment and Acceptance may be executed by facsimile
signatures with the same force and effect as if manually signed and 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. This
Assignment and Acceptance shall be governed by and construed in accordance with
the laws of the state specified in the Agreement.
11. The effectiveness of the assignment described herein is subject to:
(a) If such consent is required by the Agreement, Assignor and
Assignee obtaining the consent of Administrative Agent and Borrower to
the assignment described herein. By delivering a copy of this
Assignment and Acceptance to Administrative Agent, Assignor and
Assignee hereby request any such required consent and request that
Administrative Agent register Assignee as a Lender under the Agreement
effective as of the Effective Date.
(b) Receipt by Administrative Agent of (or other arrangements
acceptable to Administrative Agent with respect to) any applicable
assignment fee referred to in Section 10.04(c) of the Agreement and any
tax forms required by Section 10.20 of the Agreement.
By signing below, Administrative Agent agrees to register Assignee as a
Lender under the Agreement, effective as of the Effective Date with respect to
the Assigned Interest and will adjust the registered Pro Rata Share of Assignor
under the Agreement to reflect the assignment of the Assigned Interest.
12. Attached hereto as Annex 2 is all contact, address, account and
other administrative information relating to Assignee.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers.
Assignor:
By:
---------------------------------------
Name:
--------------------------------
Title:
-------------------------------
3
Assignee:
[--]
Tax forms required by
Section 10.20 of the Agreement
Included
By:
---------------------------------------
Name:
--------------------------------
Title:
-------------------------------
(Signatures continue)
4
In accordance with and subject to Section 10.04 of the Credit Agreement, the
undersigned consent to the foregoing assignment as of the Effective Date:
COMCAST CABLE COMMUNICATIONS, INC.
By:
-----------------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
BANK OF AMERICA, N.A.,
as Administrative Agent
By:
-----------------------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
5
ANNEX 1 TO ASSIGNMENT AND ACCEPTANCE
THE ASSIGNED INTEREST
Effective Date: ______________________
Assigned Commitment Amount of Outstanding Obligations assigned Assigned Pro Rata Share
- ------------------------------------ ----------------------------------------------- -------------------------------
- ------------------------------------ ----------------------------------------------- -------------------------------
$ $ %
- ------------------------------------ ----------------------------------------------- -------------------------------
6
ANNEX 2 TO ASSIGNMENT AND ACCEPTANCE
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information)
7