ANNEX I
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
Amended and Restated as of the
Effective Date Defined Herein
TABLE OF CONTENTS
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Section Page
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SECTION 1. DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
1.01 Defined Terms..........................................................................................1
1.02 Use of Certain Terms..................................................................................15
1.03 Accounting Terms......................................................................................15
1.04 Rounding..............................................................................................15
1.05 Exhibits and Schedules................................................................................15
1.06 References to Agreements and Laws.....................................................................15
1.07 Pro Forma Calculations................................................................................16
SECTION 2. THE COMMITMENTS AND EXTENSIONS OF CREDIT..............................................................17
2.01 Amount and Terms of Commitments.......................................................................17
2.02 Borrowings, Conversions and Continuations of Loans....................................................18
2.03 Prepayments...........................................................................................18
2.04 Reduction or Termination of Commitments...............................................................18
2.05 Principal and Interest................................................................................19
2.06 Fees..................................................................................................19
2.07 Computation of Interest and Fees......................................................................20
2.08 Making Payments.......................................................................................20
2.09 Funding Sources.......................................................................................21
2.10 Extension of Maturity Date............................................................................21
SECTION 3. TAXES, YIELD PROTECTION AND ILLEGALITY................................................................22
3.01 Taxes.................................................................................................22
3.02 Illegality............................................................................................23
3.03 Inability to Determine Eurodollar Rates...............................................................23
3.04 Increased Cost and Reduced Return; Capital Adequacy...................................................24
3.05 Breakfunding Costs....................................................................................24
3.06 Matters Applicable to all Requests for Compensation...................................................25
3.07 Survival..............................................................................................25
SECTION 4. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT..........................................................25
4.01 [Reserved]............................................................................................25
4.02 Conditions to all Extensions of Credit................................................................25
SECTION 5. REPRESENTATIONS AND WARRANTIES........................................................................26
5.01 Existence and Qualification; Power; Compliance with Laws..............................................26
5.02 Power; Authorization; Enforceable Obligations.........................................................26
5.03 No Legal Bar..........................................................................................26
5.04 Financial Statements; No Material Adverse Effect......................................................27
5.05 Litigation............................................................................................27
5.06 No Default............................................................................................27
5.07 Authorizations........................................................................................27
5.08 Taxes.................................................................................................27
5.09 Margin Regulations; Investment Company Act; Public Utility Holding Company Act........................27
5.10 ERISA Compliance......................................................................................28
5.11 Assets; Liens.........................................................................................28
5.12 Environmental Compliance..............................................................................28
5.13 Use of Proceeds.......................................................................................28
5.14 Disclosure............................................................................................28
SECTION 6. AFFIRMATIVE COVENANTS.................................................................................29
6.01 Financial Statements..................................................................................29
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6.02 Certificates, Notices and Other Information...........................................................30
6.03 Payment of Taxes......................................................................................30
6.04 Preservation of Existence.............................................................................30
6.05 Maintenance of Properties.............................................................................30
6.06 Maintenance of Insurance..............................................................................31
6.07 Compliance With Laws..................................................................................31
6.08 Inspection Rights.....................................................................................31
6.09 Keeping of Records and Books of Account...............................................................31
6.10 Compliance with ERISA.................................................................................31
6.11 Compliance With Agreements............................................................................31
6.12 Use of Proceeds.......................................................................................31
6.13 Designation of Unrestricted Companies.................................................................31
SECTION 7. NEGATIVE COVENANTS....................................................................................32
7.01 Liens.................................................................................................32
7.02 Subsidiary Indebtedness...............................................................................33
7.03 Fundamental Changes...................................................................................33
7.04 ERISA.................................................................................................34
7.05 Limitations on Upstreaming............................................................................34
7.06 Margin Regulations....................................................................................34
7.07 Financial Covenants...................................................................................34
SECTION 8. EVENTS OF DEFAULT AND REMEDIES........................................................................35
8.01 Events of Default.....................................................................................35
8.02 Remedies Upon Event of Default........................................................................36
SECTION 9. ADMINISTRATIVE AGENT..................................................................................37
9.01 Appointment and Authorization of Administrative Agent.................................................37
9.02 Delegation of Duties..................................................................................38
9.03 Liability of Administrative Agent.....................................................................38
9.04 Reliance by Administrative Agent......................................................................38
9.05 Notice of Default.....................................................................................38
9.06 Credit Decision; Disclosure of Information by Administrative Agent....................................39
9.07 Indemnification of Administrative Agent...............................................................39
9.08 Administrative Agent in Individual Capacity...........................................................40
9.09 Resignation by Administrative Agent...................................................................40
9.10 Other Agents..........................................................................................40
SECTION 10. MISCELLANEOUS........................................................................................41
10.01 Amendments; Consents...............................................................................41
10.02 Requisite Notice; Effectiveness of Signatures and Electronic Mail..................................41
10.03 Attorney Costs, Expenses and Taxes.................................................................42
10.04 Binding Effect; Assignment.........................................................................43
10.05 Set-off............................................................................................44
10.06 Sharing of Payments................................................................................44
10.07 No Waiver; Cumulative Remedies.....................................................................45
10.08 Usury..............................................................................................45
10.09 Counterparts.......................................................................................46
10.10 Integration........................................................................................46
10.11 Nature of Lenders' Obligations.....................................................................46
10.12 Survival of Representations and Warranties.........................................................46
10.13 Indemnity by Borrower..............................................................................46
10.14 Nonliability of Lenders............................................................................47
10.15 No Third Parties Benefitted........................................................................48
10.16 Severability.......................................................................................48
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10.17 Confidentiality....................................................................................48
10.18 Headings...........................................................................................48
10.19 Time of the Essence................................................................................48
10.20 Foreign Lenders....................................................................................49
10.21 Removal and Replacement of Lenders.................................................................49
10.22 Governing Law......................................................................................50
10.23 Waiver of Right to Trial by Jury...................................................................50
10.24 Waiver of Notice by Requisite Time.................................................................51
iii
EXHIBITS
Form of
A Request for Extension of Credit
B Compliance Certificate
C Note
D Assignment and Acceptance
E Guarantee Agreement
SCHEDULES
A Asset Monetization Transactions
2.01 Commitments and Pro Rata Shares
7.01 Existing Liens
7.02 Existing Subsidiary Indebtedness
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364-DAY REVOLVING CREDIT AGREEMENT
----------------------------------
This 364-DAY REVOLVING CREDIT AGREEMENT is entered into as of May 7,
2002, and is amended and restated as of the Effective Date defined herein, 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 Parent or any
Restricted Subsidiary (including by way of asset or stock purchase, swap or
merger) other than from Parent or any Restricted Subsidiary or (b) the
designation by Parent 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, as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under direct or indirect
common control with, such Person.
"Agreement" means this 364-Day Revolving Credit Agreement, as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time.
1
"Annualized EBITDA" means, at any date of determination, EBITDA for the
two fiscal quarter periods then most recently ended times two (2); provided that
(x) for the purposes of calculating the Interest Coverage Ratio at December 31,
2002 and March 31, 2003, Annualized EBITDA shall mean EBITDA for the period from
the first day of the fiscal quarter in which the Effective Date occurs to such
date of determination and (y) for the purposes of calculating the Leverage Ratio
at March 31, 2003, Annualized EBITDA shall mean EBITDA for the fiscal quarter
then ended times four (4).
"Annualized Interest Expense" means, at any date of determination,
Interest Expense for the two fiscal quarter periods then most recently ended
times two (2); provided that for the purposes of calculating the Interest
Coverage Ratio at December 31, 2002 and March 31, 2003, Annualized Interest
Expense shall mean Interest Expense for the period from the first day of the
fiscal quarter in which the Effective Date occurs to such date of determination.
"Applicable Amount" means the following applicable rate per annum,
based upon the applicable Debt Ratings:
Applicable Amount (in basis points per annum)
Pricing Debt Ratings Commitment Base Rate Eurodollar Utilization Utilization
Level S&P/Moody's Fee Rate Fee (>33.3%) Fee (>66.7%)
1 >A/A2 6.5 0 22.5 12.5 25.0
2 A-/A3 8.0 0 37.5 12.5 25.0
3 BBB+/Baa1 10.0 0 62.5 12.5 25.0
4 BBB/Baa2 12.5 0 87.5 12.5 25.0
5 BBB-/Baa3 15.5 12.5 112.5 12.5 25.0
6 < BBB-/Baa3 or unrated 22.5 62.5 162.5 12.5 25.0
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 Parent's senior unsecured non-credit enhanced long-term
Indebtedness for borrowed money; provided that, solely for purposes of
determining the Applicable Amount, if a Debt Rating is issued by each of S&P and
Moody's, then the higher of such Debt Ratings shall apply (with Pricing Level 1
being the highest and Pricing Level 6 being the lowest), unless there is a split
in Debt Ratings of more than one level, in which case the level that is one
level higher than the lower Debt Rating shall apply. Initially, the Debt Ratings
shall be determined from a certificate of a Responsible Officer of Borrower
dated the Effective Date. 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
shall be increased by 25.0 and the Applicable Amount for Pricing Levels 4, 5 and
6 for Base Rate Loans shall be 12.5, 37.5 and 87.5, respectively.
2
"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, except as otherwise
provided herein.
"Applicable Time" means New York time.
"Asset Monetization Transactions" has the meaning set forth in the
definition of Consolidated Total Indebtedness.
"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit D.
"Attorney Costs" means the reasonable fees and disbursements of a law
firm or other external counsel.
"Attributable Indebtedness" means, with respect to any Sale-Leaseback
Transaction, the present value (discounted at the rate set forth or implicit in
the terms of the lease included in such Sale-Leaseback Transaction) of the total
obligations of the lessee for rental payments (other than amounts required to be
paid on account of taxes, maintenance, repairs, insurance, assessments,
utilities, operating and labor costs and other items that do not constitute
payments for property rights) during the remaining term of the lease included in
such Sale-Leaseback Transaction (including any period for which such lease has
been extended). In the case of any lease that is terminable by the lessee upon
payment of a penalty, the Attributable Indebtedness shall be the lesser of the
Attributable Indebtedness determined assuming termination on the first date such
lease may be terminated (in which case the Attributable Indebtedness shall also
include the amount of the penalty, but no rent shall be considered as required
to be paid under such lease subsequent to the first date on which it may be so
terminated) or the Attributable Indebtedness determined assuming no such
termination.
"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 in effect for such day plus 1/2 of 1% and
(b) the rate of interest in effect for such day as publicly announced from time
to time by 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 Group" means Brian L. Roberts ("BLR"), a lineal descendant of BLR,
the estate of BLR, any trust of which the principal beneficiaries are any one or
more of BLR and his lineal descendants and any group (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder, as in effect on the date hereof) of which any of the
foregoing is a member.
3
"Borrower" has the meaning set forth in the introductory paragraph
hereto.
"Borrowing" and "Borrow" each mean a borrowing of Loans hereunder.
"Broadband" means AT&T Broadband Corp., a Delaware corporation.
"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.
"Cable Subsidiary" means a Subsidiary of Parent that (a) operates cable
assets or (b) directly or indirectly owns or holds an investment in another
Person that operates cable assets.
"Change of Control" means the occurrence after the consummation of the
Transactions of any of the following: (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), other than
the BLR Group, of Equity Interests representing more than the greater of (i) 35%
and (ii) the percentage owned, directly or indirectly, beneficially or of
record, by the BLR Group, of the aggregate ordinary voting power represented by
the issued and outstanding Equity Interests of Parent; (b) the occupation of a
majority of the seats (other than vacant seats) on the board of directors of
Parent by Persons who were neither (i) nominated by the board of directors of
Parent (or by the Nominating Committee of such board) nor (ii) appointed by
directors so nominated; or (c) the acquisition of direct or indirect Control of
Parent by any Person or group, other than the BLR Group. As used in this
definition, "Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Closing Date" means the date on or about May 7, 2002 upon which this
Agreement initially became effective.
"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 Parent.
"Consolidated Total Indebtedness" means, as of any date of
determination, the total Indebtedness of Parent and its Restricted Subsidiaries,
determined on a consolidated basis in accordance with GAAP, but excluding (a)
Indebtedness of Parent and its Restricted Subsidiaries arising from (i) the
asset monetization transactions set forth on Schedule A and any extensions,
renewals or replacements thereof and (ii) any asset monetization transactions
which are recourse only to the assets so monetized and are done on substantially
similar terms to the asset monetization transactions set forth on Schedule A
(collectively, "Asset Monetization Transactions") and (b) the net remaining
excess of the fair value over the recorded value of the Indebtedness of
Broadband and its Subsidiaries as of the Effective Date.
4
"Continuation" and "Continue" mean, with respect to any Eurodollar Rate
Loan, the continuation of such Eurodollar Rate Loan as a Eurodollar Rate Loan on
the last day of the Interest Period for such Loan.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its property is bound.
"Conversion" and "Convert" mean, with respect to any Loan, the
conversion of such Loan from or into another type of Loan.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect affecting the rights
of creditors generally.
"Debt Rating" has the meaning set forth in the definition of Applicable
Amount.
"Default" means any event that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to the Base Rate plus 2%
per annum; provided, however, that with respect to a Eurodollar Rate Loan (for
so long as it is a Eurodollar Rate Loan), the Default Rate shall be an interest
rate equal to the interest rate (including any Applicable Amount) otherwise
applicable to such Loan plus 2% per annum, in each case to the fullest extent
permitted by applicable Laws.
"Disposition" means (a) any sale, transfer or other disposition of
assets or series of sales, transfers or other disposition of assets by Parent or
any Restricted Subsidiary (including by way of asset or stock sale, swap or
merger) other than to Parent or any Restricted Subsidiary or (b) the designation
by Parent of a Restricted Subsidiary as an Unrestricted Subsidiary.
"Dollar" and "$" means lawful money of the United States of America.
"EBITDA" means, with respect to any Person or any income generating
assets, for any period, an amount equal to (a) the net income of such Person or
generated by such assets adjusted to exclude (i) gains and losses from unusual
or extraordinary items and (ii) interest income, plus (b) income or gross
receipts taxes (whether or not deferred), Interest Expense, depreciation,
amortization and other non-cash charges to income, in each case for such period,
minus (c) any cash payments made during such period in respect of any non-cash
charges to income accrued during a prior period and added back in determining
EBITDA during such prior period pursuant to clause (b) above, plus (d) any
restructuring and other nonrecurring charges and expenses directly related to
the Transactions incurred prior to June 30, 2004, plus (e) corporate overhead
expenses incurred by Parent in an aggregate amount not to exceed $100,000,000
for any fiscal year of Parent.
"Effective Date" means the date upon which all the conditions precedent
in Section 4.01 of the Parent Revolving and Term Credit Agreement have been
satisfied or (with the consent of the Administrative Agent) waived, which date
shall be at least one Business Day after receipt by Administrative Agent of a
written notice from Borrower identifying such date as the anticipated Effective
Date (which written notice Administrative Agent will promptly forward to
Lenders).
5
"Environmental Laws" means all Laws relating to environmental, health,
safety and land use matters applicable to any property.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
any regulations issued pursuant thereto, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with Borrower within the meaning of Section
414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes
of provisions relating to Section 412 of the Code).
"ERISA Event" means (a) any "reportable event," as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by Borrower or any ERISA Affiliates of any liability
under Title IV of ERISA with respect to the termination of any Plan; (e) the
receipt by Borrower or any ERISA Affiliate from the PBGC or a plan administrator
of any notice relating to an intention to terminate any Plan or to appoint a
trustee to administer any Plan; (f) the incurrence by Borrower or any ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by any Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
withdrawal liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar Base Rate" has the meaning set forth in the definition of
Eurodollar Rate.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by Administrative Agent
pursuant to the following formula:
Eurodollar Rate = Eurodollar Base Rate
----------------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Base Rate" means, for such Interest Period:
(a) The rate per annum equal to the rate determined by
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for
delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
6
(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.
"Eurodollar Reserve Percentage" has the meaning set forth in the
definition of Eurodollar Rate.
"Event of Default" means any of the events specified in Section 8.
"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, 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
7
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, as amended and restated as of the Effective Date, among
Borrower, Parent, 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 Parent'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.
"Guarantee Agreement" means the Guarantee Agreement to be executed and
delivered by each Guarantor, substantially in the form of Exhibit E.
"Guarantors" means Parent, MediaOne Group, Inc., AT&T Broadband, LLC,
Broadband and each Restricted Subsidiary that becomes a party to the Guarantee
Agreement pursuant to Section 7.02(c).
"Guaranty Obligation" means, as to any Person, any (a) guaranty by such
Person of Indebtedness of any other Person or (b) legally binding obligation of
such Person to purchase or pay (or to advance or supply funds for the purchase
or payment of) Indebtedness of any other Person, or to purchase property,
securities, or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness or to maintain working capital,
equity capital or other financial statement condition of such other Person so as
to enable such other Person to pay such Indebtedness; provided, however, that
the term Guaranty Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guaranty Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof,
covered by such Guaranty Obligation or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
Person in good faith.
"Indebtedness" means, as to any Person, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property or assets purchased by such Person, (d) all
obligations of such Person issued or assumed as the deferred purchase price of
property or services, (e) all Indebtedness of others secured by any Lien on
property owned or acquired by such Person, whether or not the obligations
secured thereby have been assumed, (f) all Guaranty Obligations of such Person
with respect to Indebtedness of others, (g) all capital lease obligations of
such Person, (h) all Attributable Indebtedness under Sale-Leaseback Transactions
under which such Person is the lessee and (i) all obligations of such Person as
an account party in respect of outstanding letters of credit (whether or not
drawn) and bankers' acceptances; provided, however, that Indebtedness shall not
include (i) trade accounts payable arising in the ordinary course of business
and (ii) deferred compensation; provided, further that in the case of any
obligation of such Person which is recourse only to certain assets of such
Person, the amount of such Indebtedness shall be deemed to be equal to the
lesser of the amount of such Indebtedness or the value of the assets to which
such obligation is recourse as reflected on the balance sheet of such Person at
the time of the incurrence of such obligation; and provided, further that the
amount of any Indebtedness described in
8
clause (e) above shall be the lesser of the amount of the Indebtedness or the
fair market value of the property securing such Indebtedness.
"Indemnified Liabilities" has the meaning set forth in Section 10.13.
"Indemnitees" has the meaning set forth in Section 10.13.
"Interest Coverage Ratio" means, at any date of determination, for
Parent 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, (b) plus the net amount accrued (whether
or not actually paid) by such Person or properly allocable to such assets
pursuant to any interest rate protection agreement during such period (or minus
the net amount receivable (whether or not actually received) by such Person or
properly allocable to such assets during such period), (c) minus the
amortization of deferred financing fees recorded during such period, (d) minus
the amortization of any discount or plus the amortization of any premium
(determined as the difference between the present value and the face amount of
the subject Indebtedness) recorded during such period, and (e) minus the
amortization or plus the accretion recorded during such period of the adjustment
of the long-term Indebtedness of Broadband and its Subsidiaries to its fair
value as of the Effective Date.
"Interest Period" means, for each Eurodollar Rate Loan, (a) initially,
the period commencing on the date such Eurodollar Rate Loan is disbursed or
Continued as, or Converted into, such Eurodollar Rate Loan and (b) thereafter,
the period commencing on the last day of the preceding Interest Period, and
ending, in each case, on the earlier of (x) the scheduled Maturity Date, 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.
9
"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.
"Leverage Ratio" means, at any date of determination, the ratio of (a)
Consolidated Total Indebtedness as of such date to (b) Annualized EBITDA of
Parent 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, the Guarantee 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
any Loan Party pursuant to this Agreement.
"Loan Party" means any of Borrower, Parent and each of Parent's
Subsidiaries that is a party to a Loan Document (collectively, the "Loan
Parties").
"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 Parent
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 Parent or any Restricted
Subsidiary (other than to Parent or any Restricted Subsidiary) in connection
with the Subject Acquisition.
"Material Adverse Effect" means any set of circumstances or events
which (a) has or would reasonably be expected to have a material adverse effect
upon the validity or enforceability against Borrower or any Guarantor of any
Loan Document or (b) has had or would reasonably be expected to have a material
adverse effect on the business, financial condition, assets or results of
operation of Parent and its Restricted Subsidiaries, taken as a whole,
excluding, in the case of this clause (b), any such set of circumstances or
events resulting from or arising in connection with changes in general economic,
regulatory or political conditions (it being understood that any changes in the
regulation specifically of the industries in which the Restricted Group operate
shall not constitute changes in general regulatory conditions for these
purposes).
10
"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 Parent
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 Parent or any Restricted Subsidiary
(other than from Parent 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 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.
"Merger Agreement" means that certain Agreement and Plan of Merger
dated as of December 19, 2001 by and among Parent, AT&T Corp., Comcast
Corporation, Broadband and other related parties, as amended, supplemented or
otherwise modified in writing from time to time.
"Minimum Amount" means, with respect to each of the following actions,
the minimum amount and any multiples in excess thereof set forth opposite such
action:
Type of Action Minimum Multiples in excess
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.
11
"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.
"Parent" means has the meaning set forth in the introductory paragraph
hereto.
"Parent Revolving and Term Credit Agreement" means that certain Credit
Agreement dated April 26, 2002, among Parent, Broadband, certain lenders,
certain agents and JPMorgan Chase Bank, as administrative agent.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto established under ERISA.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture or Governmental Authority.
"Plan" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Borrower or any
ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five plan years.
"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.
"Reference Statements" means (a) the audited consolidated financial
statements of Borrower and its Subsidiaries and of AT&T Broadband Group and its
Subsidiaries, in each case for the two most recent fiscal years ended prior to
the Effective Date as to which such financial statements are available and (b)
the unaudited interim consolidated financial statements of Borrower and its
Subsidiaries and of AT&T Broadband Group and its Subsidiaries, in each case for
each quarterly period ended subsequent to the date of the latest financial
statements described in clause (a) of this definition and prior to the Effective
Date as to which such financial statements are available.
"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.
12
"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
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, as to any Person, the president, any vice
president, the controller, the chief financial officer, the treasurer or any
assistant treasurer of such Person. Any document or certificate hereunder that
is signed by a Responsible Officer of a particular Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate action
on the part of such Loan Party and such Responsible Officer shall be
conclusively presumed to have acted on behalf of such Loan Party.
13
"Restricted Group" means, collectively, Parent and its Restricted
Subsidiaries.
"Restricted Subsidiary" means each Subsidiary of Parent 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 Parent 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 Parent and its
Restricted Subsidiaries, on a consolidated basis, for the period of two fiscal
quarters ended on the last day of the fiscal quarter most recently ended, or
whose assets comprised more than 5% of the total assets of Parent 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 Parent.
"Threshold Amount" means $200,000,000.
"to the best knowledge of" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation described
therein is known by such Person (or, in the case of a Person other than a
natural Person, known by any officer of such Person) making the representation,
warranty or other statement, or, if such Person had exercised ordinary care in
performing his or its required duties, would have been known by such Person (or,
in the case of a Person other than a natural Person, would have been known by an
officer of such Person).
"Transactions" means the merger of Comcast Corporation and Broadband
into separate, wholly-owned Subsidiaries of Parent in accordance with the terms
of the Merger Agreement and the other transactions contemplated by the Merger
Agreement.
"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 Parent designated as
an "Unrestricted Subsidiary" from time to time in accordance with Section 6.13.
Until so designated, each Subsidiary of Parent shall be a Restricted Subsidiary.
14
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.
Notwithstanding anything to the contrary contained herein, references herein to
"Parent and its Restricted Subsidiaries on a consolidated basis" shall be deemed
to refer to Parent and its Restricted Subsidiaries without taking into account
the results or financial position of any Unrestricted Subsidiary and without
taking into account any interest of Parent or any of its Restricted Subsidiaries
in any Unrestricted Subsidiary.
1.04 Rounding. Any financial ratios required to be maintained pursuant
to this Agreement shall be calculated by dividing the appropriate component by
the other component, carrying the result to one place more than the number of
places by which such ratio is expressed in this Agreement and rounding the
result up or down to the nearest number (with a round-up if there is no nearest
number) to the number of places by which such ratio is expressed in this
Agreement.
1.05 Exhibits and Schedules. All exhibits and schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.06 References to Agreements and Laws. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall include
15
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 Parent and its Restricted Subsidiaries, on a consolidated basis, and
Annualized Interest Expense of Parent 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), Parent 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 Parent 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 Parent and its
continuing Restricted Subsidiaries are no longer liable for such Indebtedness
after such Material Disposition); (ii) if during such Pro Forma Period Parent or
any Restricted Subsidiary shall have made a Material Acquisition, Annualized
EBITDA of Parent and its Restricted Subsidiaries, on a consolidated basis, and
Annualized Interest Expense of Parent 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 Parent 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 Parent or
a Restricted Subsidiary during such Pro Forma Period, Annualized EBITDA of
Parent and its Restricted Subsidiaries, on a consolidated basis, and Annualized
Interest Expense of Parent and its Restricted Subsidiaries, on a consolidated
basis, for such Test Period shall be calculated after giving pro forma effect
thereto as if such Material Disposition or Material Acquisition occurred on the
first day of such Test Period. For the purposes of this section, whenever pro
forma effect is to be given to a Material Disposition or Material Acquisition,
the amount of income or earnings related thereto and the amount of Annualized
Interest Expense associated with any Indebtedness discharged or incurred in
connection therewith, the pro forma calculations shall be determined in good
faith by a Responsible Officer of Parent. 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.
16
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.
(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
17
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), 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, 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.
(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
18
Commitments. Any such reduction or termination shall be accompanied by payment
of all accrued and unpaid commitment fees with respect to the portion of the
Commitments being reduced or terminated. Administrative Agent shall promptly
notify Lenders of any such request for reduction or termination of the
Commitments. Each Lender's Commitment shall be reduced 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) Commitment Fee. Borrower shall pay to Administrative Agent for
the account of each Lender pro rata according to its Pro Rata Share a commitment
fee equal to the Applicable Amount times the average daily amount of the excess,
if any, of its Commitment over its Outstanding Obligations. The commitment fee
shall accrue at all times from the Effective Date until the Maturity Date and,
together with the facility fee that accrued hereunder prior to (but ceased to
accrue on) the Effective Date, shall be payable quarterly in arrears on each
Applicable Payment Date. If there is any change in the Applicable Amount during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Amount separately for each period during such quarter that such
Applicable Amount was in effect. The commitment fee shall accrue at all 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
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such day exceeds 33.3% or 66.7%, as the case may be, 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.
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)
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:
20
(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
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
21
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.
(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,
22
(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
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,
23
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 the adoption of any Law or any
change in any Law or in the interpretation thereof effective after the date
hereof:
(i) Subjects such Lender to any tax, duty, or other charge
with respect to any Eurodollar Rate Loans or its obligation to make Eurodollar
Rate Loans, or changes the basis on which taxes are imposed on any amounts
payable to such Lender under this Agreement in respect of any Eurodollar Rate
Loans;
(ii) Imposes or modifies any reserve, special deposit, or
similar requirement (other than the reserve requirement utilized in the
determination of the Eurodollar Rate) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or commitments of,
such Lender (including its Commitment); or
(iii) Imposes on such Lender or on the offshore interbank
market any other condition affecting this Agreement or any of such extensions of
credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender of
making, Converting into, Continuing, or maintaining any Eurodollar Rate Loans or
to reduce any sum received or receivable by such Lender under this Agreement
with respect to any Eurodollar Rate Loans, then from time to time upon demand of
Lender (with a copy of such demand to Administrative Agent), Borrower shall pay
to such Lender such additional amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender determines that the adoption of any Law or any
change in any Law or the interpretation thereof effective after the date hereof
has the effect of reducing the rate of return on the capital of such Lender or
compliance by such Lender (or its Lending Office) or any corporation controlling
such Lender as a consequence of such Lender's obligations hereunder (taking into
consideration its policies with respect to capital adequacy and such Lender's
desired return on capital), then from time to time upon demand of such Lender
(with a copy to Administrative Agent), 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
24
(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.
SECTION 4.
CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT
--------------------------------------------
4.01 [Reserved].
4.02 Conditions to all Extensions of Credit. In addition to any
applicable conditions precedent set forth in Section 2, the obligation of each
Lender to honor any Request for Extension of Credit (other than a Conversion or
Continuation) is subject to the following conditions precedent:
(a) The representations and warranties contained in Section 5
(other than Sections 5.04(b) and 5.05) of this Agreement shall be correct in all
material respects on and as of the date of such Extension of Credit as if made
on and as of such date, except to the extent any such representation and
warranty specifically relates to any earlier date, in which case such
representation and warranty shall have been correct on and as of such earlier
date.
(b) No Default or Event of Default exists, or would result from
such Extension of Credit or the use thereof.
25
(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
------------------------------
Parent represents and warrants to Administrative Agent and Lenders that
as of the Effective Date:
5.01 Existence and Qualification; Power; Compliance with Laws. Each of
Parent and its Restricted Subsidiaries (a) is a corporation, partnership or
limited liability company duly organized or formed, validly existing and in good
standing under the Laws of the state of its organization, (b) has the power and
authority and the legal right to own, lease and operate its properties and to
conduct its business, (c) is duly qualified and in good standing under the Laws
of each jurisdiction where its ownership, lease or operation of its properties
or the conduct of its business requires such qualification, except to the extent
that the failure to be so qualified and in good standing does not have a
Material Adverse Effect, and (d) is in compliance with all Laws, except to the
extent that noncompliance does not have a Material Adverse Effect.
5.02 Power; Authorization; Enforceable Obligations. Each Loan Party has
the power and authority and the legal right to make, deliver and perform each
Loan Document to which it is a party, and has taken all necessary action to
authorize the execution, delivery and performance of each Loan Document to which
it is a party. Borrower has the power and authority and the legal right to
borrow hereunder and has taken all necessary action to authorize the Extensions
of Credit on the terms and conditions of this Agreement. Except for such
consents, authorizations, filings or other acts which have been duly made or
obtained and are in full force and effect, no consent or authorization of,
filing with, or other act by or in respect of any Governmental Authority is
required in connection with the Extensions of Credit hereunder or with the
execution, delivery, performance, validity or enforceability of this Agreement
or any of the other Loan Documents. Each Loan Document has been duly executed
and delivered on behalf of each Loan Party party thereto, and constitutes a
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against each such Loan Party in accordance with its terms, subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws
affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
5.03 No Legal Bar. The execution, delivery, and performance by each
Loan Party of the Loan Documents to which it is a party do not and will not (a)
violate or conflict with, or result in a breach of, or require any consent under
(i) such Loan Party's organizational documents, (ii) any applicable Laws which
has a Material Adverse Effect, or (iii) any Contractual Obligation, license or
franchise of Parent 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 Parent or any
of its Restricted Subsidiaries which is not permitted hereby.
26
5.04 Financial Statements; No Material Adverse Effect.
(a) The Reference Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein, and (ii) fairly present the financial
condition of the Loan Parties covered thereby and their respective consolidated
Subsidiaries as of the date thereof and their results of operations for the
period covered thereby in accordance with GAAP consistently applied throughout
the period covered thereby, except as otherwise expressly noted therein.
(b) From December 31, 2001 to the Effective Date, there has been
no event or circumstance which has a Material Adverse Effect.
5.05 Litigation. No litigation, investigation or proceeding of or
before an arbitrator or Governmental Authority is pending or, to the best
knowledge of Parent, threatened by or against Parent 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 Parent 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. Parent 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. Parent and its Restricted Subsidiaries have filed all tax
returns which are required to be filed, and have paid, or made provision for the
payment of, all taxes with respect to the periods, property or transactions
covered by said returns, or pursuant to any assessment received by Parent 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 Parent 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
27
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 Parent, nothing has occurred which
would prevent, or cause the loss of, such qualification. Parent 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 Parent,
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 Parent 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 Parent 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 Parent nor any ERISA Affiliate has engaged in a transaction that
could be subject to Sections 4069 or 4212(c) of ERISA.
5.11 Assets; Liens. Parent 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 Parent, 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. Parent 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 (including Indebtedness to AT&T Corp. and its
Affiliates required to be repaid or retired in connection with the
Transactions), to make distributions required in connection with the
Transactions and for working capital, capital expenditures, commercial paper
backup and other lawful corporate purposes.
5.14 Disclosure. The statements, information, reports, representations
and warranties made by the Loan Parties in the Loan Documents or furnished to
Administrative Agent or Lenders in
28
connection with the Loan Documents, taken as a whole, do not contain any untrue
statement of a material fact.
SECTION 6.
AFFIRMATIVE COVENANTS
---------------------
On and after the Effective Date and so long as any Obligation remains
unpaid or unperformed, or any portion of the Commitments remains outstanding,
Parent shall, and shall (except in the case of Parent's reporting covenants)
cause each of its Restricted Subsidiaries to:
6.01 Financial Statements. Deliver to Administrative Agent and Lenders,
in form and detail satisfactory to Administrative Agent:
(a) As soon as available, but in any event within 105 days (in the
case of clauses (i) and (ii) below) or 120 days (in the case of clause (iii)
below) after the end of each fiscal year of Parent ending after the Effective
Date, consolidated balance sheets as at the end of such fiscal year and related
consolidated statements of income and cash flows for such fiscal year, of (i)
Parent and its consolidated Subsidiaries, (ii) Borrower and its consolidated
Subsidiaries and (iii) the Restricted Group, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail, audited and accompanied by a report and opinion of independent certified
public accountants of nationally recognized standing reasonably acceptable to
Administrative Agent, which report and opinion shall not be subject to any
qualifications or exceptions as to the scope of the audit nor to any
qualifications or exceptions not reasonably acceptable to Administrative Agent;
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 Parent
ending after the Effective Date, consolidated balance sheets 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 Parent's fiscal year then
ended, of (i) Parent and its consolidated Subsidiaries, (ii) Borrower and its
consolidated Subsidiaries, and (iii) the Restricted Group, setting forth in each
case in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail and certified by a Responsible Officer of Parent as
fairly presenting the financial condition, results of operations and cash flows
of Parent and its consolidated Subsidiaries, of Borrower and its consolidated
Subsidiaries or of the Restricted Group, as applicable, in accordance with GAAP,
subject only to pro forma adjustments and normal year-end audit adjustments,
except for the financial statements of the Restricted Group, which will be in
accordance with GAAP except for the exclusion of the Unrestricted Subsidiaries;
and
(c) If financial statements with respect to the 2002 fiscal year
are not delivered pursuant to Section 6.01(a), then, as soon as available, but
in any event within 105 days (in the case of clause (i) below) or 120 days (in
the case of clause (ii) below) after the end of such fiscal year, consolidated
balance sheets as at the end of such fiscal year and related consolidated
statements of income and cash flows for such fiscal year of (i) Borrower and its
consolidated Subsidiaries and (ii) AT&T Broadband Group and its consolidated
Subsidiaries, setting forth in each case in comparative form the figures for the
previous fiscal year, all in reasonable detail, audited and accompanied by a
report and opinion of independent certified public accountants of nationally
recognized standing reasonably acceptable to Administrative Agent, which report
and opinion shall not be subject to any qualifications or exceptions as to the
scope of the audit nor to any qualifications or exceptions not reasonably
acceptable to Administrative Agent.
29
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 Parent, which
Compliance Certificate shall set forth the necessary adjustments to exclude the
Indebtedness and EBITDA attributed to Unrestricted Subsidiaries from the
calculations set forth therein and shall give pro forma effect to Material
Acquisitions and Material Dispositions in accordance with Section 1.07;
(b) Promptly after the same are available, copies of all annual,
regular, periodic and special reports and registration statements which Borrower
or Parent 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 Parent obtaining knowledge of the occurrence
thereof, notice of any Default or Event of Default specifying the nature thereof
and what action Parent has taken, is taking or proposes to take with respect
thereto;
(d) Promptly after Parent obtaining knowledge of the commencement
thereof, notice of any litigation, investigation or proceeding affecting Parent
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 Parent obtaining knowledge of the occurrence
thereof, notice of any ERISA Event;
(f) Promptly after Parent 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.
30
6.06 Maintenance of Insurance. Maintain liability and casualty
insurance with financially sound and reputable insurance companies not
Affiliates of Parent in such amounts with such deductibles and against such
risks as is customary for similarly situated businesses, except to the extent
Parent 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
Parent 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
Parent 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
Parent and its ERISA Affiliates from terminating any Plan to the extent
permitted by ERISA, the Code, and other applicable law or if such termination
does not have a Material Adverse Effect.
6.11 Compliance With Agreements. Promptly and fully comply with all
Contractual Obligations to which any one or more of them is a party, except for
any such Contractual Obligations (a) then being contested or intended to be
timely contested by any of them in good faith by appropriate proceedings, or (b)
the failure to comply with which does not have a Material Adverse Effect.
6.12 Use of Proceeds. Use the proceeds of Extensions of Credit as
represented herein.
6.13 Designation of Unrestricted Companies. So long as no Default or
Event of Default exists or arises as a result thereof and subject to the next
succeeding sentence, Parent may from time to time designate a Restricted
Subsidiary as an Unrestricted Subsidiary or designate an Unrestricted Subsidiary
as a Restricted Subsidiary; provided that Parent shall (a) provide
Administrative Agent written notification of such designation prior to or
concurrently therewith (which written notification Administrative Agent will
promptly forward to Lenders), and (b) if such designation is a Material
Acquisition (in the case of the designation of an Unrestricted Subsidiary as a
Restricted Subsidiary) or a Material Disposition (in the case of the designation
of a Restricted Subsidiary as an Unrestricted Subsidiary), within 10 Business
Days after such notification, deliver to Administrative Agent a certificate, in
form reasonably acceptable to Administrative Agent, demonstrating pro-forma
compliance (in accordance with Section 1.07) with Section 7.07 immediately prior
to and after giving effect to such
31
designation. Notwithstanding anything to the contrary contained herein, (x)
Borrower and each Guarantor (other than Parent) shall at all times be a
Restricted Subsidiary for all purposes hereunder, and Parent shall not designate
Borrower or a Guarantor as an Unrestricted Subsidiary, (y) unless designated as
an Unrestricted Subsidiary in compliance with clause (z) below, each Cable
Subsidiary shall at all times be a Restricted Subsidiary for all purposes
hereunder, and (z) Parent may designate a Cable Subsidiary as an Unrestricted
Subsidiary at any time when the Leverage Ratio (calculated after giving pro
forma effect to such designation) is less than or equal to 3.00 to 1.00.
SECTION 7.
NEGATIVE COVENANTS
------------------
On and after the Effective Date, so long as any Obligations remain
unpaid or unperformed, or any portion of the Commitments remains outstanding:
7.01 Liens. Parent shall not, nor shall it permit any of its Restricted
Subsidiaries 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 of the Parent Revolving and Term
Credit Agreement securing Indebtedness which does not exceed $500,000,000 in the
aggregate for the Restricted Group (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;
32
(i) Liens in favor of Parent or any of its Restricted
Subsidiaries;
(j) Liens on "margin stock" (as defined in Regulation U of the
Board of Governors of the Federal Reserve System);
(k) Liens on property acquired (by purchase, merger or otherwise)
after the date hereof, existing at the time of acquisition thereof (but not
created in anticipation thereof), or placed thereon (at the time of such
acquisition or within 180 days of such acquisition to secure a portion of the
purchase price thereof), and any renewals or extensions thereof, so long as the
Indebtedness secured thereby is permitted hereby; provided that such Liens do
not and are not extended to cover any other property;
(l) Liens under Sale-Leaseback Transactions and other Liens, and
any renewals or extensions thereof, so long as the Indebtedness secured thereby
does not exceed $500,000,000 in the aggregate for the Restricted Group;
(m) Liens arising in connection with asset securitization
transactions, so long as the aggregate outstanding principal amount of the
obligations secured thereby does not exceed $300,000,000 at any one time; and
(n) Liens not otherwise permitted hereby which do not secure any
Indebtedness or which secure Indebtedness incurred pursuant to Asset
Monetization Transactions.
7.02 Subsidiary Indebtedness. Parent shall not permit any of its
Restricted Subsidiaries (other than Borrower) to create, incur, assume or permit
to exist any Indebtedness, except:
(a) Indebtedness existing on the date of the Parent Revolving and
Term Credit Agreement, 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 of Parent to Parent
or any other Restricted Subsidiary of Parent;
(c) Indebtedness of a Restricted Subsidiary of Parent that is a
Guarantor (and, if requested by Administrative Agent as to any Restricted
Subsidiary of Parent that becomes a Guarantor after the Effective Date, a
satisfactory opinion of counsel is delivered to Administrative Agent relating
thereto); and
(d) Other Indebtedness of a Restricted Subsidiary of Parent that
is not a Guarantor in an aggregate principal amount for all such Restricted
Subsidiaries of Parent not exceeding $750,000,000 at any time (it being
understood that any Indebtedness incurred pursuant to Section 7.01(m) or Section
7.02(c) shall not be counted in determining such $750,000,000 limit).
7.03 Fundamental Changes.
(a) Neither Parent nor Borrower shall (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 Parent or 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
33
(i) either (x) Parent or Borrower, as the case may be, 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 Parent
or Borrower, as the case may be, immediately preceding the merger or transfer,
(B) have duly assumed all of Parent's or Borrower's, as the case may be,
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) in the case of Parent, 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) Parent and its Restricted Subsidiaries, taken as a whole,
shall continue to maintain cable and other communications businesses as its
primary lines of business.
7.04 ERISA. Parent shall not, nor shall it permit any of its Restricted
Subsidiaries 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. Parent shall not, nor shall it permit
any of its Restricted Subsidiaries to, directly or indirectly agree to any
restriction or limitation on the making of dividends, distributions, loans or
advances, the repaying of loans or advances or the transferring of assets from
any such Restricted Subsidiary to Parent or any other Restricted Subsidiary of
Parent, 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. Neither Parent nor any of its Restricted
Subsidiaries shall, 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. Parent shall not permit the Interest
Coverage Ratio as of the end of any fiscal quarter of Parent set forth below to
be less than the ratio set forth opposite such fiscal quarter:
Fiscal Quarter Ending Ratio
--------------------- -----
12/31/02 2.00 to 1.00
03/31/03 2.00 to 1.00
34
06/30/03 2.25 to 1.00
09/30/03 and thereafter 2.50 to 1.00
(b) Leverage Ratio. Parent shall not permit the Leverage Ratio as
of the end of any fiscal quarter of Parent set forth below to be greater than
the ratio set forth opposite such fiscal quarter:
Fiscal Quarter Ending Ratio
--------------------- -----
03/31/03 6.25 to 1.00
06/30/03 6.00 to 1.00
09/30/03 and thereafter 5.50 to 1.00
SECTION 8.
EVENTS OF DEFAULT AND REMEDIES
------------------------------
8.01 Events of Default. Any one or more of the following events shall
constitute an Event of Default:
(a) 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 commitment or utilization fees, within five days after the
date when due; or fails to pay any other fees or amount payable to
Administrative Agent or any Lender under any Loan Document within five days
after the date when due or, if applicable, after demand is made for the payment
thereof; or
(c) Any default occurs in the observance or performance of any
agreement contained in Section 6.02(c), 6.12, 7.03 or 7.07; or
(d) Any Loan Party fails to perform or observe any other covenant
or agreement (not specified in subsections (a), (b) or (c) above) contained in
any Loan Document on its part to be performed or observed and such failure
continues for 30 days after notice thereof to Borrower from Administrative Agent
or any Lender; or
(e) Any representation or warranty by any Loan Party in this
Agreement or any other Loan Document or any Compliance Certificate proves to
have been incorrect in any material respect when made or deemed made; or
(f) (i) Borrower, Parent or any of the Restricted Subsidiaries of
Parent (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
35
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 or any Guarantor is unable or admits in writing its
inability to pay its debts as they mature; or
(g) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement of Required Lenders or all
Lenders, as may be required hereunder, or satisfaction in full of all the
Obligations, ceases to be in full force and effect or is declared by a court of
competent jurisdiction to be null and void, invalid or unenforceable in any
material respect; or Borrower denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document; or
(h) (i) A final non-appealable judgment against Borrower, Parent,
any of the Significant Subsidiaries of Parent or any Guarantor is entered for
the payment of money (which is not covered by insurance) in excess of the
Threshold Amount, or any non-monetary final judgment is entered against
Borrower, Parent, any of the Significant Subsidiaries of Parent or any Guarantor
which has a Material Adverse Effect if, in each case, such judgment remains
unsatisfied without procurement of a stay of execution for (A) 30 calendar days
after the date of entry of such judgment or (B) if earlier, five days prior to
the date of any possible execution sale, or (ii) any writ or warrant of
attachment or execution or similar process is issued or levied against all or
any material part of the property of any such Person and is not released,
vacated, stayed or fully bonded within 30 calendar days after its issue or levy;
or
(i) Borrower, Parent, any of the Significant Subsidiaries of
Parent or any Guarantor institutes or consents to the institution of any
proceeding under Debtor Relief Laws, or makes an assignment for the benefit of
creditors; or applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer
for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of that Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding under
Debtor Relief Laws relating to any such Person or to all or any part of its
property is instituted without the consent of that Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(j) There occurs any Change of Control.
8.02 Remedies Upon Event of Default. Without limiting any other rights
or remedies of Administrative Agent or Lenders provided for elsewhere in this
Agreement, or the other Loan Documents, or by applicable Law, or in equity, or
otherwise:
(a) Upon the occurrence, and during the continuance, of any Event
of Default other than an Event of Default described in Section 8.01(i),
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):
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(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.
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
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.
37
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,
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,
38
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 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
39
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.
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.
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SECTION 10.
MISCELLANEOUS
-------------
10.01 Amendments; Consents. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by any Loan Party therefrom shall be effective unless in writing
signed by each Loan Party party thereto and Required Lenders and acknowledged by
Administrative Agent (or signed by Administrative Agent with the prior written
consent of Required Lenders), and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
Notwithstanding the foregoing sentence, without the approval in writing of
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 commitment or utilization fee,
or any other amount payable to such Lender under the Loan Documents;
(d) Postpone any date scheduled for the payment of principal of,
or interest on, any Loan or for the payment of any commitment or utilization fee
or for the payment of any other amount, in each case payable to such Lender
under the Loan Documents, or extend the term of, or increase the amount of, such
Lender's Commitment (it being understood that a waiver of any Event of Default
not referred to in subsection (c) above shall require only the consent of
Required Lenders) or modify 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, (ii) any fee letters may be amended, or rights or
privileges thereunder waived, in a writing executed by the parties thereto and
(iii) no amendment, waiver or consent shall release all or substantially all of
Guarantors from their obligations under the Guarantee Agreement without the
written consent of all Lenders. Any amendment, modification, supplement,
termination, waiver or consent pursuant to this Section shall apply equally to,
and shall be binding upon, all Lenders and Administrative Agent.
10.02 Requisite Notice; Effectiveness of Signatures and Electronic
Mail.
(a) Requisite Notice. Notices given in connection with any Loan
Document shall be delivered to the intended recipient at the number and/or
address set forth on the Administrative Questionnaire (or as otherwise specified
from time to time by such recipient in writing to Administrative Agent) and
shall be given by (i) irrevocable written notice or (ii) except as otherwise
provided,
41
irrevocable telephonic (not voicemail) notice. Such notices may be delivered,
must be confirmed and shall be effective as follows:
Mode of Delivery Effective:
-----------------------------------------------------------------------------------------------
Mail On earlier of actual receipt and fourth Business Day after
deposit in U.S. Mail, first class postage pre-paid
Courier or hand delivery When signed for by recipient
Telephone (not voicemail) When conversation completed (must be
confirmed in writing)
Facsimile When confirmed by telephone (not voicemail)
Electronic Mail When delivered (usage subject to subsection (c) below)
provided, however, that notices delivered to Administrative Agent pursuant to
Section 2 shall not be effective until actually received by Administrative
Agent; provided, further, that Administrative Agent may require that any notice
be confirmed or followed by a manually-signed hard copy thereof. Notices shall
be in any form prescribed herein and, if sent by 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 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
42
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, 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
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.
43
(c) After receipt of a completed Assignment and Acceptance, and
receipt of an assignment fee of $3,500 from such assignee and/or such assigning
Lender (including in the case of assignments to Affiliates of assigning
Lenders), Administrative Agent shall, promptly accept such Assignment and
Acceptance and record information contained therein in the Register on the
effective date thereof determined pursuant thereto.
(d) Each Lender may from time to time, without the consent of any
other Person, grant participations to one or more other Persons (including
another Lender) in all or any portion of its 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 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
44
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-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,
45
(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,
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
46
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 against any AT&T Broadband Party, in each case
by or on behalf of Administrative Agent, any Lender, Borrower or any Guarantor,
in respect of the Obligations, this Agreement or any other Loan Document, all
such liabilities, rights, remedies and claims, if any, being expressly waived.
As used herein, (x) "AT&T Party" shall mean AT&T Corp., a New York corporation,
or any of its Subsidiaries or any of the respective officers, directors,
employees, representatives or agents of any of the foregoing, other than any
AT&T Broadband Party and (y) "AT&T Broadband Party" shall mean Broadband and its
Subsidiaries.
10.14 Nonliability of Lenders. Borrower acknowledges and agrees that:
(a) Any inspections of any property of Borrower made by or through
Administrative Agent or Lenders are for purposes of administration of the Loan
Documents only, and Borrower is not entitled to rely upon the same (whether or
not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be observed,
performed, fulfilled or given to Administrative Agent or Lenders pursuant to the
Loan Documents, neither Administrative Agent nor Lenders shall be deemed to have
warranted or represented the sufficiency, legality, effectiveness or legal
effect of the same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not constitute a warranty or representation
to anyone with respect thereto by Administrative Agent or Lenders;
(c) The relationship between 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 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.
47
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 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.
48
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 W-8ECI or
W-8BEN, as appropriate, or any successor form prescribed by the IRS, certifying
that such Lender is entitled to benefits under an income tax treaty to which the
United States is a party which reduces the rate of withholding tax on payments
of interest or certifying that the income receivable pursuant to the Loan
Documents is effectively connected with the conduct of a trade or business in
the United States, or (ii) if such Lender is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and intends to claim an exemption from United
States withholding tax under Section 871(h) or 881(c) of the Code with respect
to payments of "portfolio interest," IRS Form W-8, or any successor form
prescribed by the IRS, and a certificate representing that such Lender is not a
bank for purposes of Section 881(c) of the Code, is not a ten-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of
Borrower, and is not a controlled foreign corporation related to Borrower
(within the meaning of Section 864(d)(4) of the Code). Thereafter and from time
to time, each such Person shall (a) promptly submit to Administrative Agent such
additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
Borrower and Administrative Agent of any available exemption from or reduction
of, United States withholding taxes in respect of all payments to be made to
such Person by Borrower pursuant to this Agreement, (b) promptly notify
Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (c) take such steps as shall not
be materially disadvantageous to it, in the reasonable judgment of such Lender,
and as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws that 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
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
49
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, 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.
50
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.
[REMAINDER OF PAGE INTENTIONALLY BLANK.]
51
SCHEDULE A
ASSET MONETIZATION TRANSACTIONS
-------------------------------
- --------------------------------------------------------------------------------
Outstanding Amount
at December 31, 2001
- --------------------------------------------------------------------------------
JP Morgan Comcast 3-Year $ 243,990,000
- --------------------------------------------------------------------------------
JP Morgan Comcast 4-Year 243,939,000
- --------------------------------------------------------------------------------
JP Morgan Comcast 5-Year 244,548,000
- --------------------------------------------------------------------------------
COMCAST SAILS-3 YEAR 319,973,000
- --------------------------------------------------------------------------------
COMCAST SAILS-4 YEAR 277,251,000
- --------------------------------------------------------------------------------
COMCAST SAILS-5 YEAR 285,908,000
- --------------------------------------------------------------------------------
DEUTCHE BANK MICROSOFT-3 YEAR 458,157,000
- --------------------------------------------------------------------------------
DEUTCHE BANK MICROSOFT-4 YEAR 458,157,000
- --------------------------------------------------------------------------------
DEUTCHE BANK MICROSOFT-5 YEAR 452,994,000
- --------------------------------------------------------------------------------
MICROSOFT SAILS-3 YEAR 201,011,000
- --------------------------------------------------------------------------------
MICROSOFT SAILS-4 YEAR 197,745,000
- --------------------------------------------------------------------------------
MICROSOFT SAILS-5 YEAR 195,790,000
- --------------------------------------------------------------------------------
MEDIAONE FRN DEBT 1,739,486,000
- --------------------------------------------------------------------------------
MEDIAONE PIES II 714,707,000
- --------------------------------------------------------------------------------
CABLEVISION MONETIZATION 1,030,259,000
- --------------------------------------------------------------------------------
RAINBOW MEDIA MONETIZATION 195,683,000
- --------------------------------------------------------------------------------
TOTAL ASSET MONETIZATION TRANSACTIONS $7,259,598,000
- --------------------------------------------------------------------------------
1
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
-------------------
NOTE: THIS SCHEDULE 2.01 REFLECTS COMMITMENTS AND PRO RATA SHARES OF LENDERS AS
OF MAY 7, 2002. IT DOES NOT REFLECT ANY CHANGES OF ANY OF THE COMMITMENTS OR PRO
RATA SHARES OF LENDERS WHICH HAVE OCCURRED SINCE MAY 7, 2002 AS A RESULT OF
ASSIGNMENTS OR OTHER ADJUSTMENTS CONTEMPLATED BY THE AGREEMENT. THE CURRENT
COMMITMENTS AND PRO RATA SHARES OF LENDERS ARE REFLECTED IN THE REGISTER.
============================================================================================
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
- --------------------------------------------------------------------------------
Transponder Lease 104,092,000
- --------------------------------------------------------------------------------
GE Capital Capital Leases 2,204,000
- --------------------------------------------------------------------------------
Digiventures Capital Leases 122,416,000
- --------------------------------------------------------------------------------
RoadRunner Capital Leases 8,371,000
- --------------------------------------------------------------------------------
Media One Capital Leases 6,516,000
- --------------------------------------------------------------------------------
Cablevision Capital Leases 1,805,000
- --------------------------------------------------------------------------------
Insight Capital Leases 1,153,000
- --------------------------------------------------------------------------------
Other Media One Capital Leases 454,000
- --------------------------------------------------------------------------------
Media One Capital Asset Leases 147,046,000
- --------------------------------------------------------------------------------
DAKOTALAND BRDCASTG 740,000
- --------------------------------------------------------------------------------
TOTAL BROADBAND OUTSTANDING LIENS $394,797,000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TOTAL AT&T COMCAST CORP RESTRICTED GROUP LIENS $406,666,799
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
Intercompany Debt due to AT&T Corp. 3,959,000,000
- --------------------------------------------------------------------------------
PUBLIC DEBT 750MM 8.75% 802,003,000
- --------------------------------------------------------------------------------
$750MM GLOBAL BOND 755,592,000
- --------------------------------------------------------------------------------
9.8% SR PUBLIC DEBT 689,734,000
- --------------------------------------------------------------------------------
CHASE $600M 8.300% 613,919,000
- --------------------------------------------------------------------------------
7 7/8% SENIOR DEBENTURES 613,261,000
- --------------------------------------------------------------------------------
$600M 7 7/8% DUE 2026 588,365,000
- --------------------------------------------------------------------------------
BNY $525M 9.500% 563,678,000
- --------------------------------------------------------------------------------
8 1/4 SENIOR NOTES 563,161,000
- --------------------------------------------------------------------------------
Trust Preferred 3089 - FIN 1 527,023,000
- --------------------------------------------------------------------------------
Trust Preferred 3091 - FIN 2 512,882,000
- --------------------------------------------------------------------------------
Media One Trust 3 503,610,000
- --------------------------------------------------------------------------------
$400M 6 7/8% DUE 2006 411,774,000
- --------------------------------------------------------------------------------
PUBLIC DEBT 350MM 8% 371,105,000
- --------------------------------------------------------------------------------
Trust Preferred 3096 - Fin 3 355,295,000
- --------------------------------------------------------------------------------
$300M 7.125% BOND 319,494,000
- --------------------------------------------------------------------------------
MORGAN STANLEY 300MM 319,265,000
- --------------------------------------------------------------------------------
BANK ONE $300M 9.000% 318,514,000
- --------------------------------------------------------------------------------
7 1/4% SENIOR NOTES 311,442,000
- --------------------------------------------------------------------------------
BNY $275M 8.875% 285,614,000
- --------------------------------------------------------------------------------
1
Capital Lease Obligations 247,011,000
- --------------------------------------------------------------------------------
Media One Trust 2 214,541,000
- --------------------------------------------------------------------------------
Trust Preferred 3097 - FIN 4 203,685,000
- --------------------------------------------------------------------------------
PUBLIC DEBT 9.25% 202,083,000
- --------------------------------------------------------------------------------
CFI $200M 8.15% 187,474,000
- --------------------------------------------------------------------------------
9 1/4 SR DEBENTURES 170,308,000
- --------------------------------------------------------------------------------
200M PRIVATE PLACEMENT 155,556,000
- --------------------------------------------------------------------------------
Media One Capital Asset Leases 147,046,000
- --------------------------------------------------------------------------------
250MM 8 3/4 SR DEBENTURES 128,627,000
- --------------------------------------------------------------------------------
$100M MTN 102,029,000
- --------------------------------------------------------------------------------
BANK ONE $100M 8.625% 101,646,000
- --------------------------------------------------------------------------------
MTN 100MM 6.58% 8.35% 100,000,000
- --------------------------------------------------------------------------------
PUBLIC DEBT 10 1/8% 88,210,000
- --------------------------------------------------------------------------------
$75MM SERIES C-4 74,984,000
- --------------------------------------------------------------------------------
$75MM MTN SERIES C-7 74,983,000
- --------------------------------------------------------------------------------
9.65% SR NOTE 65,255,000
- --------------------------------------------------------------------------------
9 7/8% SR DEBENTURES 57,860,000
- --------------------------------------------------------------------------------
MED TERM SERIES C-3 49,948,000
- --------------------------------------------------------------------------------
CFI $39.95M 7.30% 39,152,000
- --------------------------------------------------------------------------------
Media One TOPRs 30,357,000
- --------------------------------------------------------------------------------
Media One TOPRs II 27,867,000
- --------------------------------------------------------------------------------
LEHMAN BROS MTN #55 27,500,000
- --------------------------------------------------------------------------------
CFI $25.145M 6.85% 25,139,000
- --------------------------------------------------------------------------------
TOPRS Step-up 25,086,000
- --------------------------------------------------------------------------------
MTN $25MM SERIES C-5 24,942,000
- --------------------------------------------------------------------------------
CFI $22.914M 6.75% 22,232,000
- --------------------------------------------------------------------------------
$15MM MTN #58 15,000,000
- --------------------------------------------------------------------------------
1ST BOSTON MTN #56 14,200,000
- --------------------------------------------------------------------------------
CFI $15M 6.55% 14,121,000
- --------------------------------------------------------------------------------
JP Morgan Comcast 3-Year 243,990,000
- --------------------------------------------------------------------------------
JP Morgan Comcast 4-Year 243,939,000
- --------------------------------------------------------------------------------
JP Morgan Comcast 5-Year 244,548,000
- --------------------------------------------------------------------------------
COMCAST SAILS-3 YEAR 319,973,000
- --------------------------------------------------------------------------------
COMCAST SAILS-4 YEAR 277,251,000
- --------------------------------------------------------------------------------
COMCAST SAILS-5 YEAR 285,908,000
- --------------------------------------------------------------------------------
DEUTCHE BANK MICROSOFT-3 YEAR 458,157,000
- --------------------------------------------------------------------------------
DEUTCHE BANK MICROSOFT-4 YEAR 458,157,000
- --------------------------------------------------------------------------------
DEUTCHE BANK MICROSOFT-5 YEAR 452,994,000
- --------------------------------------------------------------------------------
MICROSOFT SAILS-3 YEAR 201,011,000
- --------------------------------------------------------------------------------
MICROSOFT SAILS-4 YEAR 197,745,000
- --------------------------------------------------------------------------------
MICROSOFT SAILS-5 YEAR 195,790,000
- --------------------------------------------------------------------------------
MEDIAONE FRN DEBT 1,739,486,000
- --------------------------------------------------------------------------------
MEDIAONE PIES II 714,707,000
- --------------------------------------------------------------------------------
CABLEVISION MONETIZATION 1,030,259,000
- --------------------------------------------------------------------------------
RAINBOW MEDIA MONETIZATION 195,683,000
- --------------------------------------------------------------------------------
Other Broadband Subsidiary Indebtedness
(Less than $10MM on an individual basis.) 4,048,000
- --------------------------------------------------------------------------------
Broadband Letters of Credit 288,000,000
2
- --------------------------------------------------------------------------------
TOTAL BROADBAND SUBSIDIARY INDEBTEDNESS $ 23,573,219,000
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TOTAL AT&T COMCAST CORP RESTRICTED SUBSIDIARY INDEBTEDNESS $ 32,188,579,618
- --------------------------------------------------------------------------------
3
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 contained in Section 5
(other than Sections 5.04(b) and 5.05) of the Agreement are correct in
all material respects, except to the extent any such representation and
warranty specifically relates to any earlier date, in which case such
representation and warranty was correct on and as of such earlier date;
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, a Pennsylvania corporation ("Parent"),
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 Parent, and that, as such, he is
authorized to execute and deliver this Certificate to Administrative Agent on
the behalf of Parent, 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
Parent 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 year-end financial statements, if applicable]
1. Attached hereto as Annex 1 are the year-end audited financial
statements required by Section 6.01(c) of the Agreement for the fiscal year of
Borrower and Broadband ended as of the above date, together with the reports and
opinions 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 Parent
ended as of the above date. Such financial statements fairly present the
financial condition, results of operations and changes in financial position of
Parent and its Subsidiaries, Borrower and its Subsidiaries and the Restricted
Group, as the case may be, 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
Parent and its Restricted Subsidiaries during the accounting period covered by
the attached financial statements.
3. A review of the activities of Parent and its Restricted Subsidiaries
during such fiscal period has been made under my supervision with a view to
determining whether during such fiscal period
1
Parent and its Restricted Subsidiaries performed and observed their obligations
under the Loan Documents, and
[select one:]
[to the best knowledge of the undersigned during such fiscal period,
Parent and each Restricted Subsidiary performed and observed each covenant and
condition of the Loan Documents applicable to it.]
--or--
[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_.
AT&T COMCAST CORPORATION
By: ________________________________
Name: ________________________________
Title: ________________________________
2
ANNEX 1
FINANCIAL STATEMENTS
--------------------
3
ANNEX 2
SET FORTH DETAILED CALCULATIONS
-------------------------------
4
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
End of Principal or Principal
Type of Amount of Interest Interest Paid Balance This Notation
Date Loan Made Loan Made Period This Date Date Made By
- -------------------------------------------------------------------------------------------------------------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
- ------------ --------- --------- --------- --------- --------- ---------
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, a Pennsylvania corporation
("Parent"), 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 any Loan Party or the
performance by any Loan Party 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.
2
7. If either Assignee or Assignor desires a Note to evidence its Loans,
it shall request Administrative Agent to procure a Note from Borrower.
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
EXHIBIT E
FORM OF GUARANTEE AGREEMENT
---------------------------
GUARANTEE AGREEMENT, dated as of __________________ __, 200__, made by
each of the signatories hereto, in favor of BANK OF AMERICA, N.A., as
Administrative Agent (in such capacity, the "Administrative Agent") for the
banks and other financial institutions or entities (the "Lenders") from time to
time parties to the 364-Day Revolving Credit Agreement dated as of May 7, 2002
(as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among COMCAST CABLE COMMUNICATIONS, INC. ("Borrower"), AT&T
COMCAST CORPORATION, the Lenders and the Administrative Agent.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have severally
agreed to make extensions of credit to the Borrower upon the terms and subject
to the conditions set forth therein;
WHEREAS, the Borrower is a member of an affiliated group of companies
that includes each Guarantor;
WHEREAS, the proceeds of the extensions of credit under the Credit
Agreement will be used in part to enable the Borrower to make valuable transfers
to one or more of the Guarantors in connection with the operation of their
respective businesses;
WHEREAS, the Borrower and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreement;
and
WHEREAS, it is a condition precedent to the obligation of the Lenders
to make further extensions of credit to the Borrower under the Credit Agreement
that the Guarantors shall have executed and delivered this Agreement to the
Administrative Agent for the ratable benefit of the Lenders;
NOW, THEREFORE, in consideration of the premises and to induce the
Lenders to make further extensions of credit to the Borrower thereunder, each
Guarantor hereby agrees with the Administrative Agent, for the ratable benefit
of the Lenders, as follows:
SECTION 1 - DEFINED TERMS
1.1 Definitions. (a) Unless otherwise defined herein, terms defined in
the Credit Agreement and used herein shall have the meanings given to them in
the Credit Agreement.
(b) The following terms shall have the following meanings:
"Agreement": this Guarantee Agreement, as the same may be amended,
supplemented or otherwise modified from time to time.
"Guarantors": the collective reference to each of the signatories
hereto and the other entities that may become a party hereto as provided herein.
1
"Lender Swap Agreements": all Swap Agreements entered into by the
Borrower with any Lender (or any affiliate of any Lender) in respect of interest
rates, currency exchange rates or commodity prices.
"Obligations": the collective reference to the unpaid principal of
and interest on the Loans made to the Borrower and all other obligations and
liabilities of the Borrower (including, without limitation, interest accruing at
the then applicable rate provided in the Credit Agreement after the maturity of
the Loans made to it and interest accruing at the then applicable rate provided
in the Credit Agreement after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) to the Administrative Agent or any Lender (or, in
the case of any Lender Swap Agreement of the Borrower, any Affiliate of any
Lender), whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement, this Agreement, the other Loan Documents,
any Lender Swap Agreement of the Borrower or any other document made, delivered
or given in connection with any of the foregoing, in each case whether on
account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses or otherwise (including, without limitation, all fees and
disbursements of counsel to the Administrative Agent or to the Lenders that are
required to be paid by the Borrower pursuant to the terms of any of the
foregoing agreements).
"Swap Agreement": any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions.
1.2 Other Definitional Provisions. (a) The words "hereof," "herein",
"hereto" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement, and Section and Schedule references are to this Agreement unless
otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. - Guarantee
2.1 Guarantee. (a) Each of the Guarantors hereby, jointly and
severally, unconditionally and irrevocably, guarantees to the Administrative
Agent, for the ratable benefit of the Lenders and their respective successors,
indorsees, transferees and assigns, the prompt and complete payment and
performance by the Borrower when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations.
(b) Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder shall in no
event exceed the amount which can be guaranteed by such Guarantor under
applicable federal and state laws relating to the insolvency of debtors (after
giving effect to the right of contribution established in Section 2.2).
(c) Each Guarantor agrees that the Obligations may at any time and from
time to time exceed the amount of the liability of such Guarantor hereunder
without impairing the guarantee contained in this Section 2 or affecting the
rights and remedies of the Administrative Agent or any Lender hereunder.
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(d) The guarantee contained in this Section 2 shall remain in full
force and effect until all the Obligations and the obligations of each Guarantor
under the guarantee contained in this Section 2 shall have been satisfied by
payment in full and the Commitments shall be terminated, notwithstanding that
from time to time during the term of the Credit Agreement the Borrower may be
free from the Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any other
guarantor or any other Person or received or collected by the Administrative
Agent or any Lender from the Borrower, any of the Guarantors, any other
guarantor or any other Person by virtue of any action or proceeding or any
set-off or appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment (other than any payment made by such
Guarantor in respect of the Obligations or any payment received or collected
from such Guarantor in respect of the Obligations), remain liable for the
Obligations up to the maximum liability of such Guarantor hereunder until the
Obligations are paid in full and the Commitments are terminated.
2.2 Right of Contribution. Each Guarantor hereby agrees that to the
extent that a Guarantor shall have paid more than its proportionate share of any
payment made hereunder, such Guarantor shall be entitled to seek and receive
contribution from and against any other Guarantor hereunder which has not paid
its proportionate share of such payment. For purposes of this Section 2.2,
"proportionate share" means, as to any Guarantor a fraction the numerator of
which shall be the net worth of such Guarantor and the denominator of which
shall be the aggregate net worth of all Guarantors. Each Guarantor's right of
contribution shall be subject to the terms and conditions of Section 2.3. The
provisions of this Section 2.2 shall in no respect limit the obligations and
liabilities of any Guarantor to the Administrative Agent and the Lenders, and
each Guarantor shall remain liable to the Administrative Agent and the Lenders
for the full amount guaranteed by such Guarantor hereunder.
2.3 No Subrogation. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the
Administrative Agent or any Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Administrative Agent or any Lender
against the Borrower or any other Guarantor or any collateral security or
guarantee or right of offset held by the Administrative Agent or any Lender for
the payment of the Obligations, nor shall any Guarantor seek or be entitled to
seek any contribution or reimbursement from the Borrower or any other Guarantor
in respect of payments made by such Guarantor hereunder, until all amounts owing
to the Administrative Agent and the Lenders by the Borrower on account of the
Obligations are paid in full and the Commitments are terminated. If any amount
shall be paid to any Guarantor on account of such subrogation rights at any time
when all of the Obligations shall not have been paid in full, such amount shall
be held by such Guarantor in trust for the Administrative Agent and the Lenders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Administrative Agent in the exact form
received by such Guarantor (duly indorsed by such Guarantor to the
Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Administrative Agent may
determine.
2.4 Amendments, etc. with respect to the Obligations. Each Guarantor
shall remain obligated hereunder notwithstanding that, without any reservation
of rights against any Guarantor and without notice to or further assent by any
Guarantor, any demand for payment of any of the Obligations made by the
Administrative Agent or any Lender may be rescinded by the Administrative Agent
or such Lender and any of the Obligations continued, and the Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Administrative
Agent or any Lender, and the Credit
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Agreement and the other Loan Documents and any other documents executed and
delivered in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as the Administrative Agent (or the Required
Lenders or all Lenders, as the case may be) may deem advisable from time to
time, and any collateral security, guarantee or right of offset at any time held
by the Administrative Agent or any Lender for the payment of the Obligations may
be sold, exchanged, waived, surrendered or released. Neither the Administrative
Agent nor any Lender shall have any obligation to protect, secure, perfect or
insure any Lien at any time held by it as security for the Obligations or for
the guarantee contained in this Section 2 or any property subject thereto.
2.5 Guarantee Absolute and Unconditional. Each Guarantor waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon the guarantee contained in this Section 2 or acceptance of the
guarantee contained in this Section 2; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantee contained in this
Section 2; and all dealings between the Borrower and any of the Guarantors, on
the one hand, and the Administrative Agent and the Lenders, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. Each Guarantor waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Borrower or any of the Guarantors with respect to the
Obligations. Each Guarantor understands and agrees that the guarantee contained
in this Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability of the
Credit Agreement or any other Loan Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Administrative Agent or any
Lender, (b) any defense, set-off or counterclaim (other than a defense of
payment or performance) which may at any time be available to or be asserted by
the Borrower or any other Person against the Administrative Agent or any Lender,
or (c) any other circumstance whatsoever (with or without notice to or knowledge
of the Borrower or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Borrower for the Obligations,
or of such Guarantor under the guarantee contained in this Section 2, in
bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor, the
Administrative Agent or any Lender may, but shall be under no obligation to,
make a similar demand on or otherwise pursue such rights and remedies as it may
have against the Borrower, any other Guarantor or any other Person or against
any collateral security or guarantee for the Obligations or any right of offset
with respect thereto, and any failure by the Administrative Agent or any Lender
to make any such demand, to pursue such other rights or remedies or to collect
any payments from the Borrower, any other Guarantor or any other Person or to
realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of the Borrower, any other Guarantor or any
other Person or any such collateral security, guarantee or right of offset,
shall not relieve any Guarantor of any obligation or liability hereunder, and
shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Administrative Agent or any Lender against
any Guarantor. For the purposes hereof "demand" shall include the commencement
and continuance of any legal proceedings.
2.6 Reinstatement. The guarantee contained in this Section 2 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is rescinded or must
otherwise be restored or returned by the Administrative Agent or any Lender upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
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2.7 Payments. Each Guarantor hereby guarantees that payments hereunder
will be paid to the Administrative Agent without set-off or counterclaim in
Dollars at the Administrative Agent's Office.
SECTION 3. - MISCELLANEOUS
3.1 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in
accordance with Section 10.01 of the Credit Agreement.
3.2 Notices. All notices, requests and demands to or upon the
Administrative Agent or any Guarantor hereunder shall be effected in the manner
provided for in Section 10.02 of the Credit Agreement; provided that any such
notice, request or demand to or upon any Guarantor shall be addressed to such
Guarantor at its notice address set forth on Schedule 1.
3.3 No Waiver by Course of Conduct; Cumulative Remedies. Neither the
Administrative Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 3.1), delay, indulgence, omission or otherwise be
deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by the Administrative Agent or any Lender of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Administrative Agent or such Lender would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
other rights or remedies provided by law.
3.4 Enforcement Expenses; Indemnification. (a) Each Guarantor agrees to
pay or reimburse each Lender and the Administrative Agent for all its costs and
expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Agreement and the other Loan Documents to which such Guarantor is a party,
including, without limitation, the fees and disbursements of counsel (including
the allocated fees and expenses of in-house counsel) to each Lender and of
counsel to the Administrative Agent.
(b) Each Guarantor agrees to pay, and to save the Administrative Agent
and the Lenders harmless from, any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement to the extent the
Borrower would be required to do so pursuant to Section 10.03 of the Credit
Agreement.
(c) 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 against any AT&T Broadband Party, in each case
by or on behalf of Administrative Agent, any Lender, Borrower or any Guarantor,
in respect of the Obligations, this Agreement or any other Loan Document, all
such liabilities, rights, remedies and claims, if any, being expressly waived.
As used herein, (x) "AT&T Party" shall mean AT&T Corp., a New York corporation,
or any of its Subsidiaries or any of the respective officers, directors,
employees, representatives or agents of any of the foregoing, other than any
AT&T Broadband Party and (y) "AT&T Broadband Party" shall mean Broadband and its
Subsidiaries.
(d) The agreements in this Section 3.4 shall survive repayment of the
Obligations and all other amounts payable under the Credit Agreement and the
other Loan Documents.
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3.5 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Guarantor and shall inure to the benefit of the
Administrative Agent and the Lenders and their successors and assigns; provided
that no Guarantor may assign, transfer or delegate any of its rights or
obligations under this Agreement (except pursuant to a merger, consolidation or
similar transaction permitted by the Credit Agreement) without the prior written
consent of the Administrative Agent.
3.6 Set-Off. Each Guarantor hereby irrevocably authorizes the
Administrative Agent and each Lender at any time and from time to time while an
Event of Default shall have occurred and be continuing, without notice to such
Guarantor or any other Guarantor, any such notice being expressly waived by each
Guarantor, to set-off and appropriate and apply any and all deposits (general or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Administrative Agent or such Lender to or for the credit or the
account of such Guarantor, or any part thereof in such amounts as the
Administrative Agent or such Lender may elect, against and on account of the
obligations and liabilities of such Guarantor to the Administrative Agent or
such Lender hereunder and claims of every nature and description of the
Administrative Agent or such Lender against such Guarantor, in any currency,
whether arising hereunder, under the Credit Agreement, any other Loan Document
or otherwise, as the Administrative Agent or such Lender may elect, whether or
not the Administrative Agent or any Lender has made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Administrative Agent and each Lender shall notify such Guarantor
promptly of any such set-off and the application made by the Administrative
Agent or such Lender of the proceeds thereof, provided that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of the Administrative Agent and each Lender under this 3.6 are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Administrative Agent or such Lender may have.
3.7 Counterparts. This Agreement may be executed by one or more of the
parties to this Agreement on any number of separate counterparts (including by
telecopy), and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
3.8 Severability. Any provision of this Agreement which is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
3.9 Section Headings. The Section headings used in this Agreement are
for convenience of reference only and are not to affect the construction hereof
or be taken into consideration in the interpretation hereof.
3.10 Integration. This Agreement and the other Loan Documents represent
the agreement of the Guarantors, the Administrative Agent and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Administrative Agent or any
Lender relative to subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Loan Documents.
3.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
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3.12 Submission To Jurisdiction; Waivers. Each Guarantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may
be effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Guarantor at its
address referred to in Section 3.2 or at such other address of which the
Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect service
of process in any other manner permitted by law or shall limit the right to sue
in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
3.13 Acknowledgements. Each Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a party;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to any Guarantor arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Guarantors, on the one hand, and the Administrative Agent and Lenders, on
the other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among the Guarantors and the Lenders.
3.14 Additional Guarantors. Each Subsidiary of the Borrower that is
required to become a party to this Agreement pursuant to Section 7.02(c) of the
Credit Agreement shall become a Guarantor for all purposes of this Agreement
upon execution and delivery by such Subsidiary of an Assumption Agreement in the
form of Annex 1 hereto.
3.15 WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
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IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee Agreement
to be duly executed and delivered as of the date first above written.
AT&T COMCAST CORPORATION
By: ________________________________
Name: ________________________________
Title: ________________________________
AT&T BROADBAND CORP.
By: ________________________________
Name: ________________________________
Title: ________________________________
MediaOne Group, Inc.
By: ________________________________
Name: ________________________________
Title: ________________________________
AT&T Broadband, LLC
By: ________________________________
Name: ________________________________
Title: ________________________________
Signature Page to Guarantee Agreement
Schedule 1
NOTICE ADDRESSES OF GUARANTORS
9
Annex 1 to
Guarantee Agreement
ASSUMPTION AGREEMENT, dated as of ________________, 200_, made by
______________________________ (the "Additional Guarantor"), in favor of Bank of
America, N.A., as administrative agent (in such capacity, the "Administrative
Agent") for the banks and other financial institutions or entities (the
"Lenders") parties to the Credit Agreement referred to below. All capitalized
terms not defined herein shall have the meaning ascribed to them in such Credit
Agreement.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, COMCAST CABLE COMMUNICATIONS, INC. (the "Borrower"), AT&T
COMCAST CORPORATION, the Lenders and the Administrative Agent have entered into
a 364-Day Revolving Credit Agreement dated as of May 7, 2002 (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement");
WHEREAS, in connection with the Credit Agreement, certain of the
Borrower's Affiliates (other than the Additional Guarantor) have entered into
the Guarantee Agreement, dated as of __________ __, 200_ (as amended,
supplemented or otherwise modified from time to time, the "Guarantee Agreement")
in favor of the Administrative Agent for the benefit of the Lenders;
WHEREAS, the Credit Agreement requires the Additional Guarantor to
become a party to the Guarantee Agreement; and
WHEREAS, the Additional Guarantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the Guarantee Agreement;
NOW, THEREFORE, IT IS AGREED:
1. Guarantee Agreement. By executing and delivering this Assumption
Agreement, the Additional Guarantor, as provided in Section 3.13 of the
Guarantee Agreement, hereby becomes a party to the Guarantee Agreement as a
Guarantor thereunder with the same force and effect as if originally named
therein as a Guarantor and, without limiting the generality of the foregoing,
hereby expressly assumes all obligations and liabilities of a Guarantor
thereunder. The information set forth in Annex 1-A hereto is hereby added to the
information set forth in the Schedule to the Guarantee Agreement.
2. Governing Law. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption
Agreement to be duly executed and delivered as of the date first above written.
[ADDITIONAL GUARANTOR]
By: ________________________________
Name: ________________________________
Title: ________________________________
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Annex 1-A to
Assumption Agreement
Supplement to Schedule 1
------------------------
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